By: Miss. R.K.Madanavally, Member
Facts in brief
The complainant is the Rc owner of the vehicle bearing No.KL-55-D-9043 Goods carriage. The above said vehicle was collided with lorry bearing No. KL-11-B 4843. As a result of the accident, 3 persons were died and other passengers sustained injuries. The Tirur police had registered a crime against the driver of the pick -up van bearing No.KL-11-B-4843 as crime No.594/11.
There after, the vehicle bearing No.KL-55-D 9043 was repaired and the complainant had submitted a claim form to opposite party for an amount of Rs.2,77.160 and a surveyer was also appointed. The surveyer had submitted the report to opposite party with entitre cash bills. The claim forms submitted by the complainant was repudiated by the opposite party, on the ground that 45 persons were carried in the vehicle against the capacity of 2+1 and the same was intimated to the complainant on 2.6.11. According to the complainant, the above said accident was not due to the over load of the vehicle and hence the repudiation of the claim on the basis of over load is highly improper, baseless and unjustifiable. Hence this complaint.
The opposite party, in their written version admitted the insurance of the vehicle No.KL 55 D 9043 at the relevent time of accident. According to opposite party, the complainant is not entitled to get the compensation since close 2(a) of the policy condition were violated. As per the above condition, the opposite party is not entitled to compensate to a vehicle which run by over loading and caused damages. The seating capacity is 2+1, instead, 45 persons were allowed to travel in the vehicle.
The all other allegations and heads were also denied by the opposite party.
The main issues arised for our consideration here in are;
Whether the opposite party is deficient in service?
If so relief and cost?
Point No1 and 2.
Admittedly the vehicle involved in the accident is a Goods Carriage vehicle which is insured with the opposite party. According to opposite party, by allowing 45 persons to travel in the lorry, the owner has violated the policy conditions and so he is not entitled to get any compensations. The insurance policy and conditions and the survey report were produced and marked as Ext. B1 and Ext. B2 respectively.
The complainant has produced Ext.A2, ie the FIR prepared by Tirur Police station in crime No.594/11 u/s 279,337 and 304 (A) IPC. The FIR and FIS clearly stated that the accident had occurred due to the rash and negligent driving of the other vehicle ie, the Lorry bearing No.KL-11B-4843. So, naturally, charge will be against the vehicle No. KL-11-B-4843. No single whispering is shown about the over load of the vehicle bearing No.KL-55.D-9043. No where it is stated that, due to the over load of the vehicle, the accident had occurred. Hence we cannot believe the reason behind the reupdiation of the claim ie, the over load. As per the reported ruling in UNITED INDIA INSURANCE COMPANY VS SURJITSINGH ASAI 1999 CPJ 79 (NC), it was held that the insurance company was not right in repudiation of the claim of the insured mainly because, the vehicle was carrying excess passengers when the cause of accident was totally unrelated to carrying of excess passengers.
Hence, before us, the complainant is not seeking compensation for the 45 persons. But, he is seeking compensation for his damaged vehicle. Perhaps, the opposite party can take a contention before an Accident Tribunal, where the parties are seeking compensation for more tha 3 persons. In such a case the question of over load can be decided. Hence this Forum is discarding the opposite party's contention of over load. More over the opposite party has failed to proove that the accident had occurred on account of the excess passengers. The learned counsel for the complainant has produced a rulling to that effect by the Honourable National Comission, which was already discussed by us.
The complainant is seeking an amount of Rs.2,77,160 as the repair charge. The material documents ie Ext. B2, the survey report prepared by the surveyor has assessed the net liability of Rs.127045.40. Unless and until the contentions of the complainant is proved, we are helpless to grant an excess amount than the amount mentioned in the survey report. No document is produced by the complainant is to show the repair charge of Rs. 277160/-.
In the result we order that the opposite party shall pay an amount of Rs. 127045 with 12% interest from the date of filing of the complaint together with a compensation of Rs.5000/- and a cost of Rs.2000/-. This order shall be complied within one month from the date of receipt of the copy of this order.
Dated this 29th day of November , 2014
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K.MOHAMMED ALI , PRESIDENT
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R.K.MADANAVALLY , MEMBER
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MINI MATHEW, MEMBER
APPENDIX
Witness examined on the side of the complainant : Nil
Documents marked on the side of the complainant : Ext.A1to A2
Ext.A1 : Letter issued by the opposite party to the complainant
Ext.A2 : FIR copy prepared by Tirur Police station
Witness examined on the side of the opposite party : Nil
Documents marked on the side of the opposite party : Ext. B1 to B2
Ext.B1 : Motor Insurance Certificate Cum Policy Schedule
Ext.B2 : Survey Report of the Insurance Surveyor
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K.MOHAMMED ALI , PRESIDENT
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R.K.MADANAVALLY , MEMBER
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MINI MATHEW, MEMBER
