Judgment:
Justice (Retd.) Surjit Singh, President (Oral)
1. Appellant is aggrieved by the order dated 05.10.2013, of learned District Consumer Disputes Redressal Forum, Shimla, whereby his complaint, under Section 12 of the Consumer Protection Act, 1986, which he filed against the respondent, has though been allowed, yet the amount of money, which has been awarded on account of insurance claim, is below his claim.
2. Appellant owned a goods carriage, which was insured with the respondent in the sum of Rs.3,48,000/- for the period from 12.05.2010 to 11.05.2011. On 29.07.2010, vehicle met with an accident and was damaged. Intimation of accident was given to the respondent, with whom, it was insured. A surveyor deputed by respondent assessed the loss at Rs.1,74,500/-. Claim was, however, repudiated on the ground that at the time, when accident took place, there was one unauthorized passenger, on board the vehicle, and this amounted to violation of one of the terms and conditions of the policy.
3. A complaint, under Section 12 of the Consumer Protection Act, 1986, was filed by the appellant, seeking a direction to the respondent to pay the amount of loss assessed by its surveyor, as insurance claim; besides seeking compensation and litigation expenses.
4. Respondent contested the complaint and pleaded that because one unauthorized person was travelling in the vehicle, when accident took place, it was not liable to pay anything to the appellant and was justified in repudiating the claim.
5. Learned District Forum, vide impugned order, relying upon a precedent of the Honble National Consumer Disputes Redressal Commission, in New India Assurance Company Limited Versus Malati Bhikhabhai Bhoya, II (2013) CPJ 483 (NC), has held that appellant is entitled to 75% of the admissible claim because of the breach of condition. Consequently, a sum of Rs.1,30,875/-, with interest at the rate of 9% per annum, has been ordered to be paid, together with compensation to the tune of Rs.10,000/- and litigation expenses, quantified at Rs.2,000/-.
6. Appellant has preferred the present appeal, seeking a direction to the respondent to pay the entire amount of Rs.1,74,500/-, on account of insurance claim, with interest.
7. We have heard learned counsel for the parties and gone through the record.
8. Admittedly, the registration certificate, in respect of vehicle, copy of which is available on record as Annexure R-1, prescribes the seating capacity of the vehicle as œ2? (persons). It is not in dispute that at the time when accident took place, there were only two persons, on board the vehicle, including the driver. That means, the number of persons, on board the vehicle, at the time when accident took place, was not in excess of the seating capacity mentioned in the registration certificate. The condition in policy of which breach is alleged, reads as follows:-
œLimitation as to use:
The policy covers use only under a permit within the meaning of the Motor Vehicles Act, 1988, or such a carriage falling under Sub-section (3) of Section 66 of the Motor Vehicles Act, 1988. The policy does not cover use for (a) organized racing; (b) pace making; (c) reliability trials; and (d) speed testing.?
9. The aforesaid clause nowhere says that no person is to be carried in the vehicle, even if the registration certificate authorizes the carrying of person(s), in addition to the driver. In the case before Honble National Consumer Disputes Redressal Commission, upon which reliance has been placed by learned District Forum, the condition in the policy reads as follows:-
œUse only for carriage of goods within the meaning of the M.V. Act, 1988. The policy does not cover use for organized racing pace making reliability trail or speed testing. Use while drawing a trawler except the towing, (other than for reward) of any one disabled mechanically propelled vehicle. Use for carrying passengers in the vehicle except employees (other than the driver) not exceeding six in number coming under the purview of Workmens Compensation Act, 1923.?
10. It is clear from a reading of the above reproduced condition in the policy, which was the subject matter of interpretation before the Honble National Consumer Disputes Redressal Commission that use of carrying passengers, except employees of the insured was prohibited and the passengers, who were being carried, though within the prescribed limit, were not the employees of the insured. It was under these circumstances that the Honble National Consumer Disputes Redressal Commission ordered the treatment of claim as non-standard and reduced the money payable by 25%.
11. As a result of the above stated position, we allow the appeal, set aside the impugned order and direct the respondent to pay a sum of Rs.43,625/-, with interest at the rate of 9% per annum, from the date of the filing of complaint, i.e. 09.03.2011, to the payment of the aforesaid amount, in addition to the money, directed by learned District Forum, to be paid by way of insurance claim; besides paying compensation and litigation expenses, as awarded by the learned District Forum.
12. A copy of this order be sent to each of the parties, free of cost, as per Rules.