IN THE DISTRICT CONSUMERS’ DISPUTES REDRESSAL FORUM AT MYSORE<br /> <br /> PRESENT: 1. Shri.D.Krishnappa<br /> B.A., L.L.B - President <br /> <br /> <br /> 2. Smt.Y.V.Uma Shenoi<br /> M.Sc., B.Ed., - Member<br /> <br /> 3. Shri. Shivakumar.J.<br /> B.A., L.L.B., - Member<br /> <br /> CC 299/08 DATED 18.12.2008<br /> <br /> ORDER<br /> <br /> Complainant H.P.Venkatesh, S/o Late Puttaswamygowda, Hebbal Koppalu, Hebal Post, K.R.Nagar Taluk, Mysore District.<br /> (By Sri.S.Krishnegowda, Advocate)<br /> <br /> Vs. <br /> Opposite Party The Manager, The Oriental Insurance Company Ltd., Divisional Office-I, Thejas Complex, 1st Floor, P.B.No.27, Sayyaji Rao Road, Mysore.<br /> (By Sri.C.K.Venkatesh, Advocate)<br /> <br /> Nature of complaint : Deficiency in service<br /> Date of filing of complaint : 01.10.2008<br /> Date of appearance of O.P. : 28.10.2008<br /> Date of order : 18.12.2008<br /> Duration of Proceeding : 1 MONTH 19 DAYS<br /> <br /> <br /> PRESIDENT <br /> <br /> <br /> <br /> MEMBER<br /> <br /> <br /> MEMBER<br /> <br /> <br /> Sri.D.Krishnappa,<br /> President<br /> <br /> 1. The complainant has come up with this complaint against the opposite party with his grievance which in brief is as follows:-<br /> That he is the registered owner of DCM Toyota Maxi Cab (Passanger vehicle) was insured with the opposite party w.e.f. 20.03.2007 to 19.03.2008. That on 22.07.2007 said vehicle was proceeding from Mysore to K.R.Nagar near Bilikere tank, while the driver was over taking a lorry lost control and dashed against a person who was standing by the side ditch of the road, went off the road, rolled over and fell into a road side, as the result the vehicle got completely damaged and he suffered loss of Rs.75,000/-. Then he made a claim to the opposite party for indemnifying his loss, but the opposite party on 07.05.2008 repudiated his claim on the ground that the driver of the Maxi Cab was carrying 26 passengers as against 12 violating the permit condition and therefore has prayed for a direction to the opposite party to pay him Rs.1,25,000/- with interest at 12% p.a.<br /> 2. The opposite party has appeared through his advocate and filed version admitting the ownership of the complainant over the vehicle and also the accident, but has justified their action in repudiating the claim by contending that the driver as on the date of the accident was carrying 26 passengers as against permitted capacity of 12+1. It is further contended that the vehicle in question, was being run as stage carrier instead of contract carrier which is also in violation of the permit condition and stated that one of the injured namely Swamy gave a complaint at the first instance stating that 15 to 20 passengers were traveling in the vehicle, but later on his statement has been twisted and taken to over come the earlier statement and thus contending that the vehicle was used against the permit condition, as such he is not liable to indemnify the complainant and thereby has prayed for dismissal of the complaint.<br /> 3. In the course of enquiry into the complaint, the complainant and the Divisional Manager of opposite party have filed their affidavit evidence reiterating what they have stated in their respective complaint and version. The complainant has produced the repudiation letter issued by the opposite party, copies of the police investigation reports, motor vehicle accident report and insurance policy. The opposite party has produced report of the investigator and motor survey report. The opposite party has also produced a copy of the R.C. and policy schedule. Heard the counsel for both the parties and perused the records. <br /> 4. On the above contentions, following points for determination arise.<br /> 1. Whether the opposite party proves that the complainant used the vehicle in question against the permit conditions and therefore they are justified in repudiating the claim of the complainant.<br /> 2. To what relief the complainant is entitled to?<br /> 5. Our findings are as under:-<br /> Point no.1 : In the Affirmative.<br /> Point no.2 : See the final order.<br /> <br /> REASONS<br /> <br /> 6. Point no. 1:- As there is no dispute with regard to the ownership of the vehicle, the date of the accident, the driver holding a valid driving license and the claim made by the complainant with the opposite party, we shall not endeavour to narrate those details here, but it is sufficient to examine the ground on which the opposite party has repudiated the claim of the complainant.<br /> 7. The opposite party vide their letter dated 07.05.2008 addressed to the complainant has repudiated the claim of the complainant on the ground that at the time of the accident, the driver was carrying more than 26 passengers as against the authorized capacity of 12 passengers. The opposite party in order to prove, that the vehicle in question had the passengers capacity of 12+2 has produced a certified copy of the policy and also a Xerox copy of the R.C. book. In the policy issued covering the vehicle in question, capacity of the vehicle including driver is shown as 12+2 passengers. In the R.C. issued in respect of this vehicle to the complainant who is a R.C. owner seating capacity of this vehicle is clearly shown as 12+1 that is 13 only. Therefore, there seems to be a mistake is committed while making entry in the policy by adding 2 passengers for 12 that plus 2 must be one because that is the driver. Thus, the seating capacity found in the R.C. book stands to the correctness of the seating capacity and that has not been rebutted by the complainant, as such it is proved that the vehicle in question had seating capacity of 12+1 that is 13 only.<br /> 8. The opposite party in order to prove that the driver of the vehicle in question as on the date of the accident was carrying more than the permissible capacity has relied upon a complaint given by one of the passengers who was also an injured by name Swamy to the concerned police on 22.07.2007. On the basis of which, a crime in crime No.190/07 has been registered and a FIR was also sent to the jurisdictional magistrate, in which this complainant has stated that about 15 to 20 passengers were traveling in the ill-fated vehicle. The opposite party appears to had appointed an investigator to investigate into the details of accident who has filed his report to the opposite party who has in turn produced the same before this Forum. The investigator as per his report found to have investigated the cause of the accident including recording of the complaint, treatment to the passengers injured etc., The investigator in his report has stated that on his enquiry in the K.R.Hospital fouond that concerned police who registered the crime had sent a letter dated 22.07.2007 to the K.R.Hospital for treating 26 people who suffered injuries in the accident and it is further shown that those 26 people are treated in K.R.Hospital on the same day for injuries they suffered in this accident. The counsel for the opposite party argued that all these materials placed before this Forum prove that the driver of the vehicle was carrying passengers more than its permitted limit. The counsel appearing for the complainant invited our attention to a further statement of the complainant Swamy recorded in the course of investigation under section 161 Cr.P.C and stated as that Swamy in his further statement has clarified that he had huridly gave complaint stating that 15 to 20 passengers were traveling in the vehicle, but was not so and stated that only 8 to 10 passengers were traveling in the vehicle and submitted that in view of the further statement of the complainant Swamy it cannot be said that 15 to 20 passengers were traveling in the ill-fated vehicle. This further statement said to have been recorded by the concerned investigation officer found to be an improvement made probably with an intention to help the complainant to get the loss suffered to the vehicle indemnified. The F.I.R. sent to the concerned magistrate on the complaint given by that Swamy remained as it is and the letter addressed by the investigation office to the K.R.Hospital for treating the injured has also remained as it is under which 26 victims are treated in the hospital on that day. These materials as we have stated remained uncontrovereted. No doubt, the report of the investigator appointed by the opposite party is not conclusive and binding, but the facts he has collected with regard to the letter of the police officer addressed to the K.R.Hospital and hospital records having treated 26 passengers on that day are the materials which clinches the issue, which have remained uncontroverted speaks to the fact of over loading of the vehicle. Therefore, the improved version of that complainant Swamy in our view is nothing but a manipulation and cannot be relied upon. As the fact remains uncontroverted the driver of the vehicle was carrying passengers more than the permissible limit, which has resulted in violation of permit condition. This violation in our view is a material fact for determining whether insurance company is liable to indemnify the complainant or not. As seen from the contents of the complaint given by that Swamy to the police and statement of other witness reveal that the driver was carrying those passengers was driving the vehicle rashly and negligently and while over taking the lorry he lost control over the vehicle, which hit against the motor cyclist went off the road rolled over and fell into the road site ditch. This over loading act of this driver appears to have contributed for the accident as the driver could not take control of the vehicle. Therefore, under these circumstances the complainant is not entitled for any damages even on non-standard basis.<br /> 9. The counsel appearing for the complainant argued that even if the vehicle was found over loaded that cannot be a ground for repudiation of the claim has placed reliance on a decision reported in 1971 ACJ page 329 of High Court of kerala and another decision of Higher Court of Karnataka reported in 1977 ACJ page 241. Whereas the counsel for the opposite party arguing that violation of the permit condition or the policy condition would empower the insurance company to repudiate the claim has relied upon 2 decisions reported in II (2007) CPJ 417 of Jammu and Kashmir State Consumer Disputes Redressal Commission and another decision reported in II (2007) CPJ page 156 of Chatisghar State Consumer Disputes Redressal Commission. The Hon’ble National Commission in a decision reported in I (2007) CPJ page 23 between National Insurance Company Ltd., and another Vs. Suresh Babu and another has held breach of terms of policy and provisions of law – carrying more passengers than permitted is an offence under Act of 1988, in case of over loading of vehicles beyond licensing capacity, discretion is given to the insurer to settle the claim on non-standard basis. In the instant case, there is under declaration of license carrying capacity in vehicle over loading was beyond reasonable limits. Hence, direction to the insurer to pay non-standard claim would be unjustified on account of gross violation of policy and legal provisions by insured and held that insurance company is not liable. Basing on the decisions relied on by the counsel for the opposite party and also the decision of the Hon’ble National Commission, which are of recent, the decisions relied upon by the complainant cannot be based to concur with the claim of the complainant. As such, we are of the view that the complainant since has used the vehicle by violating the condition of permit and the policy is not entitled for getting his loss indemnified. As such, we answer point no.1 in the affirmative and we pass the following order. <br /> ORDER<br /> <br /> 1. The Complaint is dismissed.<br /> 2. Parties to bear their own costs.<br /> 3. Give a copy of this order to each party according to Rules.<br /> <br /> (Dictated to the Stenographer, transcribed by her, transcript revised by us and then pronounced in the open Forum on this the day 18th December 2008)<br /> <br /> <br /> <br /> <br /> <br /> (D.Krishnappa) <br /> President <br /> <br /> <br /> <br /> (Y.V.Uma Shenoi)<br /> Member<br /> <br /> <br /> <br /> (Shivakumar.J.)<br /> Member<br /> <br /> <br /> <br /> <br /> <br /> <br /> <br />