This appeal is directed against the final order passed by the Ld. D.C.D.R.F, Siliguri dated 16/07/2018 in connection with Cc/56/S/2016. The fact of the case in nutshell is that one Kashinath Prashad being a register owner of a truck bearing registration no. WB73C/0461 which was covered with a motor vehicle Insurance under Shriram Gen. Insurance Co. of Sevoke Road Brach, Siliguri vide policy no. 334029/31/15/000693 which was valid for the period between 15/03/2015 and 14/03/2016. The instant vehicle met with a road traffic accident on 01/11/2015 on NH10 express way under Kalimpong P.S and fell down about 200 feet from the road and sink into the Teesta River. The vehicle was totally damaged. The accident case was registered before the concerned police station and the said registered owner Kashinath Prashad submitted a claim application before the Insurance Company for the recovery of the total value of the fully damaged truck amounting to Rs. 9,84,000/-. Subsequently, the claim was repudiated by the Insurance Co. after obtaining a survey report on 31/03/2016 and the ground of repudiation was that the vehicle owner had violated the policy condition as because the vehicle was meant for carrying goods and there was two plus one sitting arrangement including the driver as stipulated in the Insurance policy but the driver at the material point of time was carrying 5 persons including himself and for that reason, the claim of the register owner was denied on the part of the Insurance Co. So, the consumer case was registered by the registered owner Kashinath Prasad against the Insurance co. claiming compensation for loss of the value of the truck and others relieves. The consumer complaint was contested by the Shriram General Insurance Co. by filing the W.V and denied all the material allegations contended interalia in the consumer complaint and the specific case was that the policy holder had violated the terms and conditions of the policy and also violated the provisions of Motor Vehicles Act as because the vehicle was carrying passengers of five persons including the driver at the time of accident and for that reason the claim was rightly repudiated. After hearing both sides, the Ld. Forum has come to a conclusion that the capacity of the vehicle was three including the driver while there was five persons in the vehicle at the time of incident and for that reason, the terms and conditions of the policy was violated for which Ld. Forum has refused the claim of the complainant.

Being aggrieved with the said judgement and order this appeal follows on the ground that Ld. Forum has misinterpreted the provisions of law and did not appreciate the evidences properly. The vehicle in question was total damaged having no monetary value after the accident and for that reason the appeal should be allowed and the proper compensation should be awarded. The appeal was registered in due time and it was admitted on its merit. The Insurance co. as respondent of the appeal was served notice. The respondent Insurance co. has contested the case through the Ld. Advocate appointed by the company. The appeal was heard in presence of both sides and they moved their respective cases thoroughly.

Decisions with reasons: -

Having heard the Ld. Advocates of both sides and after going through the Insurance policy and other related documents it comes to the notice of the Commission that the vehicle in question was properly registered before the Motor Vehicle Authority, having valid driving license of the driver and the vehicle was permitted to carry goods in certain places as empowered by the authority concerned. It is also admitted fact that the said vehicle had met with an accident on 01/11/2015 on NH10 between Hanumanjhora and Sethijhora for carrying goods towards Sikkim. In the memo of appeal the complainant/appellant clearly mentions in his pleading that at the time of accident the driver and cleaner was there in the vehicle and certain persons who were on the road side got severe injuries and unfortunately, three were found dead and one was missing. The FIR of the accident was registered by one Sanjay Chandar of west Sikkim on 1/11/2015 at 9.05 a.m. mentioned in that FIR that his brother D. Chandar who was travelling in the said truck met with an accident and died on spot in the night between 00.01 hrs. and 00.02 hrs. The case was investigated by the Kalimpong P.S and the investigation was culminated to a charge sheet under section 279/304 A of IPC against the driver of the vehicle Harun Chhetri. In the charge sheet it was mentioned that the driver was carrying goods with the said truck from Siliguri towards Sikkim along with some passengers. Three passengers after the accident died on the spot. One was missing as the vehicle fell into river and the driver received serious injuries and he was shifted to Hospital. So, it has become crystal clear that when the permissible limit to carry people was confined to three persons including driver at the time of accident while it is established beyond any doubt that the vehicle was carrying five persons including the driver. No contrary evidences was there on the part of the appellant/complainant that only the driver and the cleaner were inside the vehicle and three persons standing on the road got injured and succumbed to injuries due to such accident. Therefore, there was certain ground to hold that beyond the permissible limit the driver was carrying more persons and, in this way, simply violated the terms and conditions of Insurance policy. At the time of argument, the Ld. Advocate of the appellant referred a decision of Hon’ble Supreme Court reported in 1 (2018) CPJ 1(SC) where Hon’ble apex Court has observed that the violation of condition of Insurance policy should be such a fundamental breach so that claimant cannot claim any amount whatsoever. In that case, Hon’ble apex Court further observed the appellant who was the owner of the vehicle was not at fault. The driver has given a lift to some passengers and carrying some passengers may be breach of policy but it cannot be said to be such a fundamental breach as to bring Insurance policy to end and to terminate the Insurance policy. It was further observed that the driver on a cold wintering night gave lift to some persons standing on a road. It was a humanitarian gesture. It cannot be said that to be such a breach that it nullifies policy.

 Ld. Advocate of the respondent that is Insurance company at the time of his argument mentioned that the surveyor has given a very elaborate survey report for arriving at its conclusions and such conclusion could not be controverted by the complainant/respondent by showing any cogent evidence. He further submitted that Ld. Forum has consulted the survey report very carefully and found the fundamental breach of the policy of Insurance and for that reason, the Ld. Forum has upheld the very repudiation of the Insurance claim. In support of his contention Ld. Advocate of Insurance Co. has cited a judicial decision reported in ii (2018) CPJ 267 (NC) where it was decided that the charge sheet related to the road traffic accident was ended to an observation that the alleged accident was the result of the course of negligible driving on the part of the driver and for that reason the repudiation of claim on the part of the Insurance company was deemed justified.

 After consulting all the relevant and annexure documents of this case and after going through the decision of the Ld. Forum this Commission has conclusively determined that the survey report on the part of the Insurance company should not be treated as a sacrosanct for adjudication of a consumer dispute. There is no mention in the survey report as to why and in which conditions the driver was carrying the persons more than the stipulated limit. The fact is that the alleged incident was held in the mid night and the month of November in a hilly area always is a very cold one. So, in a wintering night if the driver took some persons in the vehicle beyond the knowledge of the registered owner then the damage, he sustained due to fault of the driver should not be curtailed or his claim for such damage should not be frustrated. Therefore, the opinion of this Commission is that the Insurance company has unnecessarily and arbitrarily repudiated the claim of the complainant/appellant. Ld. Forum has come to a conclusion only on the basis of the survey report which is not appreciable one as other evidence could be appreciated. Practically, in this case the evidences could not be recorded and properly scanned. The vehicle was registered for the first time on 26/04/2011 and the accident was held on 01/11/2015. So, the claim of the complainant as per purchase amount of the vehicle is not appreciable one. The vehicle has plied more than four years since its registration and the face value of the truck certainly was decreased from its purchase value at the time of accident.

On the other hand, in the survey report it has not been properly assessed the quantum of damage which was suffered by the claimant/complainant due to such accident. The survey report is not exhaustive one. The policy coverage speaks that there was a limit of liability of the Insurance company stipulated in the Insurance policy.

 In conclusion, the Commission may form an opinion that the judgement and final order delivered by the Ld. D.C.D.R.F, Siliguri based on mis conception and without appreciation of merit of this case. Therefore, the appeal succeeds.

Hence it is ordered: -

That the appeal be and the same is allowed on contest without any cost. The judgement and final order dated 16/07/2018 in CC no 56/S/2016 of the Ld. D.C.D.R.F, Siliguri is hereby set aside.

Ld. Forum is asked to hear the argument of the case again in presence of both sides to fix and confine the quantum of amount the complainant is entitled there to after obtaining the actual loss assessment report from the surveyor for the damage of the truck sustained in the accident and also to consider the outer limit of the liability of Insurance company stipulated in the policy itself.

Both parties are directed to appear before the Ld. D.C.D.R.F Siliguri on 4/09/2019.

Let a copy of this order be supplied to the parties free of cost. The order of this appeal be communicated to the Ld. D.C.D.R.F Siliguri by e-mail.