IN THE CONSUMER DISPUTES REDRESSAL FORUM, KASARAGOD

C.C.No.202/05

Dated this, the 25th day of April 2008

PRESENT

SRI.K.T.SIDHIQ : PRESIDENT

SMT.P.REMADEVI : MEMBER

SMT.P.P.SHYMALADEVI : MEMBER

K.Satheesan, S/o.Kunhiraman, }                                 Complainant

R/at.K.R.Nivas, Nelkala, Anangoore,

Kasaragod. The Manager, }                                             Opposite party

New India Assurance Co.Ltd, M.G.Road,

Kasaragod.

                                                                        O R D ER

SRI.K.T.SIDHIQ, PRESIDEN

The core question to be answered in this complaint is whether carrying 2 or 3 persons in addition to the permitted persons in an offloaded goods vehicle amounts to overloading so as to afford a ground to Insurance Co. to escape from the liability of indemnifying damages? 2. Un disputed facts of the case is that the goods vehicle bearing Reg.No.KL14/A 2002 insured with the opposite party involved in an accident while it was going to laden the goods. As a result it irreparably damaged. The complainant being the R.C. owner preferred an own damaged claim but the opposite party repudiated the claim for the reason overloading. Hence this complaint claiming Rs.109500/- the amount assessed by the surveyor with interest and cost. 3. The opposite party refutes the claim. According to the opposite party the vehicle at the time of accident carrying 5 persons inside the cabin vehicle and one in the platform . The seating capacity of the vehicle is only 3. The complainant had paid premium only for one passenger in the vehicle. Carrying overload was the cause of accident. As per the survey report the loss assessed is Rs.80,000/- and not Rs.109500/-. Since complainant violated the policy conditions, the opposite party is not liable to the indemnify the damages. Hence there is no deficiency in service in repudiating the claim. 4. Complainant filed an affidavit in support of his claim. Exts.A1 to A8 marked. Opposite party has not adduced any oral evidence. Exts.B1 to B5 marked. 5. Heard both sides. According to the counsel for the complainant , the vehicle was not overloaded. There was no load in the vehicle at the relevant time of accident. There was only 5 persons in the vehicle including the driver. Additional premium was paid for two employees and one non fare paid passenger and also for the owner of the goods and driver. Hence it can carry 5 persons even as per policy conditions. Therefore the repudiation of the claim is unjustifiable on the ground of overload and it amounts to deficiency in service. 6. The counsel for the opposite party contents that the vehicle was carrying 6 persons against permitted capacity 3. Hence the vehicle was overloaded and that was the reason for the accident. This being a breach of policy condition, claim is repudiated. 7. Here the dispute is with respect to the number of persons carried in the vehicle. There is no dispute that the vehicle was without any laden weight. There is no evidence to show that carrying the persons( whether it is 5 or 6) was the reason for the accident. There is also no dispute that the vehicle was damaged irreparably. 8. The Hon’ble Supreme Court in B.V.Nagaraju Vs Oriental Insurance Co.Ltd reported in II(1996)CPJ 18(SC) held ‘Merely by lifting a person or two or even three, by the driver or cleaner of the vehicle without the knowledge of the owner, cannot be said to be such a fundamental breach that the owner should, in all events, be denied indemnification. The misuse is though irregular but not so fundamental in nature so as to put an end to the contract, unless some factors existed which, by themselves had gone to contribute to the causing of the accident. It further held strict construction of such exclusion clause of insurance policy must be read down so as to serve the main purpose of the policy. That is to indemnify the damages caused to the vehicle’. In this case we do not find any such contributory factor. Hence applying this principle we answer the question in negative and held that the repudiation of the claim is unreasonable and amounts to deficiency in service. 9. Reliefs and costs The claim of the complainant is Rs.109500/- with interest and cost. According to the opposite party the recommendation of the surveyor is Rs.80,000/- only. But in Ext.A3 the surveyor’s report it is seen that the surveyor has assessed the damages on 3 basis. On repair basis the assessment is Rs.1,22,546/-, on salvage basis the amount arrived is Rs.109500/- and on cash loss basis it is Rs.80,000/- subject to the consent of the insured. 10. The vehicle involved in the accident is irreparably damaged. Hence the amount assessed on repair basis cannot be granted. On cash loss basis it is Rs.80,000/- for which the consent of the insured is required. But the opposite party instead of seeking his consent to settle the claim on cash loss basis rejected it in toto. So the claim as per the salvage basis is deems fit to be awarded which we hereby do. In the result, the complaint is allowed and the opposite party is directed to pay an amount of Rs.109500/- with interest @9% per annum to the complainant from the date of complaint. Opposite party further directed to pay Rs.2000/- towards the cost of the proceedings. Time for compliance of this order is 2 months from the date of receipt of copy of the order, failing which the complainant can approach with execution proceedings as envisaged in the C.P.Act. MEMBER MEMBER PRESIDENT Exts A1.Copy of Insurance policy A2. Dt.6-11-2004 copy of First Information Report A3. 8-4-2005 Copy of Surveyor’s report. A4.26-10-2005 Intimation by the Opposite party by repudiating the claim. A5. 10-8-2007 copy of Order in OP(MV.No.156/2005) B1. 6-11-2004 copy of FIR B2. Motor Claim Form, B3. Copy of RC KL14/A.2002 B4. Goods Carriage permit B5. True Copy of Policy. MEMBER MEMBER PRESIDENT Eva/