NEW INDIA ASSURANCE CO LTD Vs. MOHANBAI

JUDGEMENT

(1.) This revision petition has been filed by the OP Insurance Co. against the order dated 19.11.2009 passed by the Rajasthan State Consumer Disputes Redressal Commission, Jaipur ('State Commission' for short) allowing the appeal of the complainant, respondent herein, against the order of the District Forum, Chittorgarh by which the District Forum had dismissed the complaint of the respondent. The respondent had filed a complaint against the OP Insurance Co. on 7.7.2008 stating therein that her bus bearing Registration No. RJ 09P 1481 which had been insured with the petitioner Insurance Co. for the period from 15.5.2006 to 14.5.2007 for a sum of Rs. 2,97,500/- as IDV was involved in an accident in which the bus fell into a river. It was stated in the complaint that on 15.8.2006 when the bus in question was coming from Badi Sadri to Jogania Mata near village Bichhore, because of the heavy rain the water level in the nalah was very high and since the water was flowing over the bridge when the driver of the bus tried to reverse the bus, the same fell into the river thereby killing 5 persons and damaging the vehicle in question in the accident. FIR of the incident was lodged with the police station and a challan was filed against the driver of the bus for committing offence under section 304 of IPC. It was stated in the complaint that at the time of accident, the driver had a valid and effective driving licence. A claim was lodged with the petitioner Insurance Co. but the same was not settled. It was claimed that the complainant had suffered a loss to the tune of Rs. 1,00,000/- for the damage of the vehicle and hence a claim was made for that amount. On being noticed, the OP Insurance Co. resisted the complaint by stating that at the time of accident, the bus was overloaded and was carrying 70-80 passengers against the permissible capacity of 47 persons in the bus. According to the Insurance Co. , it was because of the overloading of the bus that the driver while passing through the bridge had lost control as a result of which, the bus had fallen in the river and thus the accident had taken place because of the rash and negligent driving of the driver of the bus and further taking into consideration that the driver had violated the specific terms and conditions of the policy by taking more passengers than permitted, no claim was payable under the policy. It was further stated in the reply of the Insurance Co. that no doubt the surveyor in his report dated 27.8.2006 had assessed the loss to the tune of Rs. 53,838.80 paisa but since there was violation of the terms and conditions of the policy and since it was a case of rash and negligent driving by the driver, the claim was not payable and it was prayed that the complaint be dismissed. On appraisal of the issues and the evidence adduced, the District Forum vide its order dated 16.1.2009 dismissed the complaint and held as under:-

(2.) Aggrieved by the order of the District Forum, the complainant filed an appeal before the State Commission challenging the order of the District Forum. It was contended by the appellant that even though it may have been found that at the time of accident more persons were sitting in the bus than permitted, the cause of the accident could not be related to the persons sitting in the bus as the bus had fallen in the river because of the high level of the water and thus the petitioner Insurance Co. was not justified in not settling the claim of the complainant and the District Forum had committed serious error and illegality in dismissing the complaint. After hearing the parties, the State Commission allowed the appeal of the complainant and set aside the order of the District Forum. The appeal was allowed in the manner that the petitioner Insurance Co. was directed to pay to the complainant a sum of Rs. 40,379/- along with interest @ 9% p. a. from the date of filing of the complaint till the payment is made along with Rs. 3,000/- as cost of litigation. The State Commission has recorded the following reasons in support of its order:-

(3.) We have heard learned counsel for the petitioners. No one has appeared for the respondent. Learned counsel has argued that accepting the claim of the respondent by the State Commission on non-standard basis is erroneous in that the violation of the terms and conditions of the policy has not been disputed by the respondent. He further submitted that it was because of the excess number of passengers in the bus that the driver lost his control over the bus thereby leading to the serious accident resulting in damage to the bus as well as casualties. In this context, learned counsel specifically relied on the judgement of this Commission delivered on 30.11.2006 in appeal no. 166 of 2003 of National Insurance Co. Ltd. Vs. Suresh Babu & Anr., 2007 1 CPJ 23. He drew our attention to the following observations of this Commission in that case in support of his arguments:-