F.A. No. 249 of 2007

          Heard learned counsel for the appellants. None appears for the respondent.

2.      This appeal is filed u/s 15 of the Consumer Protection Act (hereinafter called the ‘Act’ in short). Parties hereinafter were arrayed as the complainants and OPs as per their nomenclature before the learned District Forum.

3.      The case of the complainant in nutshell is that the complainant being owner of vehicle bearing Registration No. OR-02-R-9496 has purchased the policy for the vehicle from the OPs for the period from 27.6.2004 to 26.6.2005. It is alleged inter alia that the vehicle met with accident on 16.10.2004 near Jamusahi. Thereafter, the matter was reported to the insurer and the police. The OP deputed surveyor who computed the loss but repudiated the claim because the complainant was carrying four passengers against the goods carriage permit. So, finding no other way the complainant filed the complaint.

4.      OPs filed written version stating that the case is barred by limitation and the complaint is bad for non-joinder of necessary party. The complainant has violated the policy condition by carrying four passengers against the goods carriage permit. Therefore, OPs have no deficiency in service on their part.

5.      After hearing both the parties, the learned District Forum passed the following order:-

“xxxxxxxxx

The complainant’s case is partly allowed against the OPs on contest. The OPs are directed to pay Rs.47,574/- (Rupees forty seven thousand five hundred seventy four only) along with 12% interest per annum from the date of repudiation of the clam under policy no. 551001/31/04/00614, that is from 26.5.05 till the date of payment. The OPs are further directed to pay Rs.500/- (Rupees five hundred only) as litigation expenses to the complainant. The OPs shall carryout this order within 2(two) months from the date of communication of this order.”

6.      Learned counsel for the appellant submitted that the policy condition requires that the complainant has to abide  by the provisions of M.V.Act and Rules. Since four persons being carried by the vehicle and it is a goods vehicle, there is violation of the policy condition and as such the repudiation is proper. So the impugned order should be set aside by allowing the appeal.

 7.     Considered the submission of learned counsel for the appellantsand perused the impugned order including the DFR.

8.    It is admitted fact that during currency of the policy the vehicle met accident and the OPs havebeen informed. The surveyor has already computed the loss. However, the main question arises whether the carrying of four numbers of passengers in the goods vehicle can be a ground to repudiate the claim. In this regard,we  rely on the judgment of Hon’ble Supreme Court of India  in Laxmi Chand vrs. Reliance General InsuranceCo.Lt.in Civil Appeal No. 49-50 of 2016 disposed of on  7.01.2016 and subsequent decisions where the carrying of over loading passenger  having no direct nexus with the accident can never be ground to repudiate claim. In the instant case, there is no such evidence to show that carrying of more passengers are the cause of accident. Therefore, in the instant case, the repudiation of claim on the ground that passengers werebeing carried but being not direct cause of accident,such repudiation is illegal. So, there is no deficiency in service on the part of the OPs.

9.      With regard to the computation of loss the report of the surveyor should be taken as the basis of loss. The surveyor has computed the loss at Rs. 13,662.50 whereas the complainant has spent Rs.47,574/- for repairing of the vehicle. We have gone through the surveyor’s report.  It should be the basis for computation of loss. But it appears that the surveyor has not properly assessed the labour charges because the estimated cost of labour charge has not been considered, he on his own has put the  figure about labour charge. So in our view,  the OPs should pay to the complainant a consolidated sum of Rs.20,000/- as loss to the vehicle. While confirming the impugned order, we hereby direct the OPs to pay Rs.20,000/- with interest at the rate of 12% per annum  to the complainant from the date of impugned order till the date of payment within 45 days from today. Rest of the impugned order remains unaltered.

          DFR be sent back forthwith.

Supply free copy of this order to the respective parties or the copy of this order be downloaded from Confonet or Website of this Commission to treat same as copy supplied from this Commission.