Per Shri S.R. Khanzode,  Hon’ble Presiding Judicial Member:

(1)          This appeal takes an exception to an order dated 06.06.2009 passed in consumer Complaint No.343/2008, Smt.Binda Ramkrippal Yadav V/s. M/s.Oriental Insurance Co. Ltd., by District Consumer Disputes Redressal Forum, Thane (‘Forum below’ in short)

(2)          The consumer complaint was filed on repudiation of insurance claim.  The Forum below upheld the contention of the Complainant and directed Insurance Company to pay compensation of Rs.2,00,000/- along with interest @9% per annum and further awarded additional compensation of Rs.10,000/- towards mental and physical torture and cost of Rs.5,000/-.  Feeling aggrieved thereby the Insurance Company has preferred this appeal.

(3)          According to Complainant, deceased Ramkrippal Yadav, late husband of Complainant Smt.Binda Ramkrippal Yadav, owned Tata make truck bearing No.MH-18-M-1005.  Said truck was insured with the Appellant/Original Opposite Party Insurance Company under, “Liability only policy for Zone-C” for the period 15 hours on 10.10.2005 to midnight of 09.10.2006.  Said policy offered indemnity cover for legal liability of an employee or the driver and also covers owner/driver with personal accident under certain conditions to indemnity upto Rs.2,00,000/-.  It is alleged by the Complainant that the truck bearing NO.MH-18-M-1005 when he was going to Pune for loading the goods had a brake down before octroi naka at Kolhapur District on 03.09.2006 and was therefore parked on the edge of the road for the entire night.   Next day morning the owner of the truck – deceased Ramkrippal Yadav came on the spot and while he was inspecting the repairing work, another vehicle bearing No.MH-04-CP-7509 came in rash and negligent manner and dashed to the truck of the deceased from behind and due to sudden dash, deceased (Ramkrippal Yadav) suffered injuries and died on the spot.  Wife of late Ramkrippal Yadav, Complainant - Binda Yadav, filed this complaint alleging deficiency in service on the part of the Insurance company for not releasing the amount of compensation of Rs.2,00,000/- in her favour.

(4)          Insurance Company by filing the written version opposed the claim, inter alia claiming that as per the terms of the policy no claim could be awarded.

(5)          Heard Mr.Vidyarthi, Advocate for the Appellant and Mr.Tigde, Advocate for the Respondent.  Perused the record.

(6)          There is no dispute about the factual matrix.  Referring to the statement of the Driver – Rajendra Patel, who was on truck NO.MH—18-M-1005 at the time of the event, it can be seen that when he was driving said truck, on 03.09.2006 it had breakdown and was therefore, parked it by the side of road on Mumbai Pune Express Highway.  On the next day morning he informed the owner of the truck, viz. late Ramkrippal Yadav and when said owner came there and was observing repair work of the said truck by standing at the rear side of the said truck, oil tanker came there from behind and crushed him and then gave dash to the truck standing there.  In the said accident late Ramkrippal Yadav died.  This version finds support from the statement made by the Complainant in the complaint also.  The facts made it clear that at that time late Ramkrippal Yadav was not driving the truck bearing No.MH-18-M-1005 and he was also not travelling in the said truck as co-driver.  Said truck was stationary and was parked at the side of road where it was undergoing repairs.  Deceased was merely standing, observing the repair work to the rear side of the said truck, at that time an oil tanker came from behind and gave dash to him and also the truck bearing No.MH-18-M-1005.  So, it is not the accident of truck no.MH-18-M-1005.  The accident was because of an oil tanker bearing No.MH-05-CP-7509 and the information of the said accident was given by the Driver of the said oil tanker on the basis of which First Information Report was given by Shri S.B. Shivalkar, Assistant Police Inspector, Khalapur Police Station and registered the crime.

(7)          As per the terms of Insurance Policy sine-quo-non to get indemnified insurance cover to the owner-driver when he was driving the vehicle including mounting into dismounting from or travelling in the insured vehicle as co-driver.  None of these conditions exists in the instant case.  Therefore, Insurance Company rightly submitted that they are not bound under the Insurance Policy in question to award any claim.  Forum below ignored these contractual obligations/terms of the Insurance Policy in question and committed an error of law.  We hold accordingly and pass the following order:

O  R  D  E  R

  (i)          Appeal is allowed.

(ii)          Impugned order dated 06/06/2009 passed in Consumer Complaint No.343/2008 by Forum below is set aside and in the result, Consumer Complaint No.343/2008 stands dismissed.

(iii)          In the given circumstances, no order as to costs.