TASHI RIGZIN Vs. NATIONAL INSURANCE COMPANY

JUDGEMENT

(1.) Shri Tashi Rigzin is the owner of the passenger bus bearing No. JK01a-7387 which met with fatal accident on 27.6.2001 at "khardunglapass" while on its way from the town of Leh to Nobra. The bus was insured vide policy No.420805/31/2k/63/01/290 which had to expire on 17.9.2001. It is alleged by the complainant that the accident occurred because the site was located at "khardunglapass" which is 18000 ft. high from the sea level and at that time, road had become slippery due to the presence of snow. Extensive damage was caused to the body of the bus and loss was caused to the tune of Rs.3.70 lakh as well as 70,000 were spent as charges of towing salvage, from the site of the accident to bring it in the town of Leh. That the actual damage was on the higher side i. e. to the tune of Rs.9,80,000 yet the complainant has based his claim upto the above stated limits. The intimation of the accident was immediately given to the O. Ps. who deputed surveyor of the firm of M/s. Arun Kumar Surveyor Pvt. Ltd. , Jalandhar to investigate about the matter. The said surveyor visited the site of accident on 7th and 8th of July, 2001 and the complainant had submitted all necessary documents to him including the estimated expenses of Rs.9.80 lakh to defray the costs of replaceable parts of the engine, fabrication of new body of the bus and towing charges, etc. The matter was intentionally delayed for the final settlement on one pretext or the other that O. Ps. had suggested a compromise to settle the claim and on this assurance the complainant projected his claim only to the extent of Rs.3.70 lakh as actual loss occurred and Rs.70,000 as charges of towing the salvage from the place of the site of the accident but this offer was not accepted. The complainant served a legal notice on 9.8.2002 thereby demanding Rs.3.70 lakh and Rs.70,000 respectively with interest and damages, etc. Finally, the complainant was informed by the O. Ps. vide their letter dated 30.10.2002 (Annexure C-4) that his claim had been repudiated. Through the medium of this complaint, the complainant has claimed the above stated amount along with interest @ 12% per annum from the date of expenditure till making the final payment and in addition to that compensation of Rs.2.00 lakh is also claimed by way of physical and mental harassment and travelling expenses extra.

(2.) The O. Ps. in their objections have pleaded that the complainant has not only violated the terms and conditions of the policy but also has played with the lives of so many passengers as in this accident 22 persons died and more than 75 were injured. That at the time of the accident, there were 97 passengers loaded in the bus and some of them were even made to sit on its roof. The accident had taken place purely because of excessive over-loading of the passengers as well as negligent driving of the bus. That the driver of the bus was not having a valid and effective driving licence. In this case there was a breach of Clause 2 (1) (a) of the insurance policy which stated that company was not liable to indemnify the loss in the event of a vehicle being driven after overloaded with passengers. That after proper verification, the O. Ps. repudiated the claim and as such the complaint is not maintainable. The misjoinder and non-joinder of necessary parties is also pleaded. On facts it was pleaded that the risk covered under the insurance policy in question was only upto Rs.5.00 lakh. It is denied that accident had taken place due to slippery road on account of snow there but the causes were that an inexperienced driver holding an invalid driving licence had driven it after overloading with maximum number of passengers which numbered 97. That for small monetary benefits the complainant allowed 97 passengers to board the bus against the permitted sitting capacity of 42 passengers. That after getting the information about the accident the O. Ps. appointed M/s. K. B. Anko Company from Jammu for conducting spot survey and, thereafter, M/s. Arun Kumar Surveyor Pvt. Ltd. were appointed for final assessment of the loss caused to the vehicle. That as per the report of M/s. Arun Kumar Surveyor Pvt. Ltd. an amount of Rs.2,18,500 was assessed as loss on net salvage value of the vehicle, subject to the terms and conditions of the policy. It is also pleaded that the vehicle was being plied against the terms of the route permit because the complainant had no permission to ply the bus in question on that route. It is denied that Rs.70,000 were spent as towing charges for the salvage of the vehicle.

(3.) Heard the arguments.