KISHORE R GOHEL Vs. ORIENTAL INSURANCE COMPANY LIMITED

JUDGEMENT

(1.) By way of this appeal the original opponent United India Insurance Company has challenged order dated 15.1.2003 rendered by the learned Consumer Disputes Redressal Forum, Sabarkantha in Complaint No.158 of 1998, directing the said company to pay to the complainant Rs.3,35,000/- with interest @ 9% p. a. , compensation in the sum of Rs.5,000/- on the head of mental agony and cost in the sum of Rs.2,000/-. We have heard the learned Advocates for the parties. We have gone through the impugned order.

(2.) The complainant's insured vehicle was destroyed by fire on 16.2.1997 during the period of insurance while it was proceeding with dry paddy grass carried in the vehicle. The opponent Insurance Company repudiated the claim on the ground that the vehicle in question was carrying approximately 1200 bundles of dry paddy grass which raised the height of the vehicle from the permissible height and that resulted into the grass touching the live wires of Gujarat Electricity Board which were at the height of 15 feet from the ground level. The learned Forum negatived the repudiation on the ground that on the one hand there was no condition in the policy which would prohibit height of the vehicle being increased beyond a particular level resulting into loss exonerating the Insurance Company from the liability and on the other hand the opponent Insurance Company failed to establish the fact that fire was caused on account of fault/negligence on the part of the complainant or the complainant's driver in allowing the height of the vehicle to exceed particular limit and that resulted into the accident in question.

(3.) It has first to be verified if there is any provision of law limiting height of the motor vehicle. Reference may be made to Rule 93 (4) read with Rule 29 of Appendix-II of the Central Motor Vehicles Rules, 1989. The relevant Sub-rule (4) would read as under: " (4) The overall height of a motor vehicle measured from the surface on which the vehicle rests- (i) in the case of a vehicle other than a double-decked motor vehicle, shall not exceed 3.8 metres; (ii) xxx xxx xxx (iii) in the case of a laden trailer carrying ISO Series 1 Freight Container, shall not exceed 4.2 metres. " Sub-rule (8) indicates that no motor vehicle shall be loaded in such a manner that the load or any part thereof extends-xxxx a height beyond the limits specified in Sub-rule (4 ).-Rule 29 deals with 'projection of loads' which says that 'no person shall drive in any public place any motor vehicle which is loaded in a manner likely to cause danger to any person in such a manner that the load or any part thereof or anything extends laterally beyond the side of the body or to the front or to rear or in height beyond the permissible limit. ' reconciling the aforesaid provision of law reference has been made to Condition No.2 of policy of insurance in question. It reads Company shall be liable to make payment in respect of- (a) consequential loss, depreciation, wear and tear, mechanical or electrical break-down failures or breakages nor for damages caused by overloading or strain of the motor vehicle nor for loss of or damage to accessories by burglary house-breaking or theft unless such Motor Vehicle is stolen at the same time. " it has, therefore, been submitted that the vehicle in question was overloaded in the sense it exceeded the permissible height according to the aforesaid rules. In our considered opinion, although there is no meaning of overloading available in the policy of insurance in question, it would clearly appear that the meaning has got to be gathered from the provisions of the Motor Vehicles Act read with Rules. As stated above, Sub-rule (8) of Rule 93 would clearly provide for loading a vehicle in following terms: "no motor vehicle shall be loaded in such manner that the load or any part thereof extends- (i) xxxx (ii) xxxx (iii) xxxx (iv) to a height beyond the limits specified in Sub-rule (4 ). " It, therefore, clearly appears that there is a condition in the policy which deals with overloading of vehicles and if that be the direct cause of the accident, entitlement for loss would depend upon the nature of the breach of such condition.