NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION
(From the order dated 28.3.2002 in Complaint No. 124 of 1999 of the State Commission, M.P.)
M/s. Oriental Insurance Co. Ltd. Appellant
HONBLE MR. JUSTICE M.B.SHAH, PRESIDENT.
HONBLE MR. JUSTICE S.N.KAPOOR, MEMBER.
For the Appellant : Mr. S. Srishaila, Advocate.
For the Respondent : Mr. Mohd. Sheriff, Advocate.
M.B.SHAH, J. PRESIDENT
Aggrieved by the judgment and order dated 28th March, 2002, passed by the Karnataka State Consumer Disputes Redressal Commission in complaint Case No. 124 of 1999, the Oriental Insurance Co. Ltd. (hereinafter referred to as the Insurance Company) has filed First Appeal No.138 of 2002 praying for dismissal of the complaint.
The say of the Complainant before the State Commission was that the Insurance Company had unjustifiably refused to reimburse the Complainant for the loss of brand new vehicle, a maxi-cab, which was burnt by the public because it met with an accident which caused death of three persons. The State Commission allowed the complaint and directed the Insurance Company to pay a sum of Rs.5,55,000/- on the basis of the loss assessed by the Surveyor with interest at the rate of 12% p.a. from the date of repudiation of the claim till its payment. The Insurance Company was also directed to pay Rs.1 lakh as compensation for not settling the claim in time, with costs at Rs.2,000/- towards the proceedings.
Against that order, the Insurance Company has preferred this appeal.
At the time of hearing of this appeal, the learned Counsel for the Insurance Company submitted that the order passed by the State Commission is on the face of it illegal and erroneous, because:
(i) the State Transport Authority has issued contract carriage permit, but the maxi-cab was used as a Stage Carriage; and
(ii) there is violation of the terms of the insurance policy which provided that the seating capacity in the maxi-cab was 12+1 and the bus was carrying 40 to 50 passengers at the time of accident. For this, reliance is placed on the survey report. The Surveyor visited the spot on 23.2.1999 where the accident took place, made inspection of the vehicle and also collected the information; and, as per the report, around 45 to 50 passengers were travelling and due to that accident has taken place. Because of this accident, unruly mob set the vehicle on fire.
Thereafter, the Insurance Company appointed M/s.Lavanya & Co., Investigators, to find out as to whether there was any overloading, and secondly, whether the vehicle was being driven under the permission of contract carriage. They submitted interim reports dated 5.4.1999, 12.4.1999, 4.5.1999 and final report dated 10.6.1999. They recorded the statements of the witnesses. After examination of the reports of the Surveyors and the Investigator, the Insurance Company arrived at the conclusion that the maxi-cab was carrying 30 to 40 passengers against the permitted capacity of 12+1.
(i) There is nothing on record to establish that the Vehicle was used as stage carriage and not as a contract carriage. Hence, there is no substance in the first contention.
(ii) For the second contention, in our view, if
in a maxi-cab which has the permitted seating capacity of 12+1 was carrying 30
to 40 passengers, it is an apparent violation of law as well as it is a risk to
the public at large and it endangers the life of others who may be passing on
the road. In such a situation, there is no safety of the passengers in bus nor of the passers by. Such an illegality would certainly be
a ground for rejecting the claim on the basis that there is a gross violation
of the terms of the policy. In such cases, the decision by
However, the State Commission has arrived at the conclusion that there is no evidence on record to establish that at the time of accident the Driver of the vehicle was carrying excess passengers and it was for the Insurance Company to prove the said contention by placing sufficient material.
So as to satisfy ourselves with regard to the alleged contention of the Insurance Company that there was overloading to the extent of 30 to 40 passengers in the maxi cab, we have asked the Complainants to produce the relevant papers including the FIR, charge sheet and statements recorded by the investigating officer. We have, also, permitted the Insurance Company to produce any other document for establishing its contentions. The learned Counsel for the Complainant has produced on record, along with the written submissions, eleven documents.
As against this, the learned Counsel for the Insurance Company has relied upon the Surveyors statement in the report that there were 30 to 40 passengers in the vehicle at the time of the accident. To negative the said contention the Complainant produced on record the FIR, charge sheet and the statements recorded under Section 161 Cr.P.C. by the Investigating Officer. In those statements except one statement, it is nowhere mentioned that there were 25 to 30 passengers in the maxi cab. The FIR was lodged by one Mr.Somashekar, a Police Constable, who was taking rounds at the relevant time. He saw that the driver of the maxi cab was driving the vehicle rashly and negligently so as to endanger human life. In order to avoid dashing with the scootarist the driver applied the sudden brakes, and, due to this, the maxi cab skidded and fell down and as a result three passengers inside the maxi cab sustained grievous injuries and died on the spot. Nearly 8 to 10 passengers sustained grievous injuries. Nowhere it is mentioned in the charge-sheet that there were 30 passengers. The statement of one S.N.Ravi Kumar, an injured witness, also speaks to the same effect.
However, one witness namely, Ravi Kumar, in his statement has stated that there were 60 passengers in the maxi cab. The Surveyor, Mr. P.S.Krishna Rao, in his concluded portion has stated that as per the information collected there were 45 to 50 passengers travelling in the bus at the time of accident. Mr. K.Rang Rao, 2nd Surveyor, has recorded that as per the newspaper cutting it was reported that some passengers were sitting over the roof and the maxi cab carried excess passengers. In the Investigation Report dated 5.4.1991, by Lavanya & Co., it is stated that the Vehicle at the time of accident had minimum passengers of 35 passengers and 10 on the top - in all 45 passengers.
As both the parties have not lead proper evidence on this issue, which is the most relevant aspect for deciding the dispute between the parties, the matter is required to be remitted to the State Commission, Karnataka, by permitting the parties to lead necessary evidence to find out whether in the maxi cab, having seating capacity of 13 passengers, there were more than 30 passengers or not. It would be open to the Insurance Company to summon the Police Constable who has lodged the F.I.R. or other witness/es to establish that at the time of the accident there were more than 25 to 30 passengers. It would also be open to it to produce the judgment in Motor Accident Claims Petition, if any. It would be open to the Complainant to also lead necessary evidence.
In the result, the appeal is allowed accordingly. The matter is remitted to the State Commission for being decided afresh only on the aforesaid issue on the basis of the evidence which may be lead by the parties. There shall be no order as to costs.
The parties are directed to appear before the State Commission, Karnataka, on 13.3.2006 to take further directions in the matter. As the matter is of the year 1999, we hope the State Commission will dispose of the same as early as possible.