Decided on March 18,2009

Sunaina Garg Respondents


- (1.) THIS case was listed today for dictating judgment. However on the request of learned Counsel for the parties, it was heard further.
(2.) IT is admitted case of the parties that vehicle bearing registration No HR -58 -3353 was insured in the sum of Rs. 6.80 lacs on IDV (Insured s Declared Value). It met with accident on 30.7.2004 near Dom Bagh (Haryalta), Tehsil Sangrah, District Sirmour. After accident on receipt of intimation, appellant deputed its Surveyor. Final survey report of the Surveyor is Annexure OP -V. Its perusal shows that the Surveyor has found net loss on repair basis at Rs. 5,12,535, and salvage value was found at Rs. 35,000 approximately. At the same time in his report he has observed that loss on net of salvage basis amount comes to Rs. 4,25,000 minus excess clause of Rs. 1,500.
(3.) WHEN claim was not settled respondent preferred Complaint No. 28/2006. During pendency of the complaint, claim of the respondent was repudiated on the plea that there were four unauthorized gratuitous passengers travelling in the vehicle at the time of accident, therefore, appellant was not liable because terms and conditions of the insurance policy subject to which the vehicle was insured had been violated. This was also the ground of contest by the appellant in the complaint filed by the respondent. Besides vehicle being overcrowded which resulted in driver being unable to negotiate the curve and this was the cause of accident. District Forum below after hearing the parties allowed the complaint and directed the appellant to pay Rs. 5,12,534 with 9% interest from the date of filing of the complaint i.e. 20.4.2006 till actual realization with litigation cost of Rs. 3,500. Hence this appeal by the Insurance Company. Mr. Gupta learned Counsel for the appellant raised following pleas : (a) That from the defence set out by his client, coupled with the copy of FIR No. 56/2004, dated 30.7.2004 at Police Station Renuka Ji, District Sirmour, it is conclusively proved that there were unauthorized gratuitous passengers travelling in the vehicle, as such terms of policy stood violated which fact has been erroneously ignored by the District Forum below. (b) With a view to support the first submission Mr. Gupta referred to three affidavits filed on behalf of the appellant, namely of Mr. Manohar Lal, Branch Manager of his client, Sh. Ravi Kumar Gupta, Surveyor and Sh. Satvinder Singh, Investigator. He also relied on Surveyor s report Annexure OP -V, and Annexure OP -II the investigators report and per him by ignoring these District Forum below committed grave error, as such appeal deserves to be allowed; and (c) He further criticized Annexure E copy of the order passed by Motor Accident Claims Tribunal -I, Nahan, Sirmour District in MAC Petition No 108/MV/2/2004, dated 8.7.2005 and urged that it has been wrongly relied upon by the District Forum below and his client was not liable for payment of any amount.;

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