ORIENTAL INSURANCE CO. LTD. Vs. G. VELKUMAR

JUDGEMENT

(1.) This revision petition has been filed under section 21(b) of the Consumer Protection Act, 1986 against the impugned order dated 04.06.2007, passed by the Tamilnadu State Consumer Disputes Redressal Commission (for short 'the State Commission') in A.P. No. 545/2004, "The Oriental Insurance Company versus G. Velkumar" vide which, while dismissing appeal, the order dated 05.10.2004, passed by the District Consumer Disputes Redressal Forum, Madurai in consumer complaint C.O.P. No. 250/2002 allowing the said complaint, was upheld.

(2.) Brief facts of the case are that the complainant/respondent is the owner of a Tata-407 vehicle, bearing registration no. TN 59-6096, insured with the petitioner/OP for the period 06.05.2001 to 05.05.2002. The said vehicle was badly damaged in an accident on 04.04.2002. An intimation regarding the alleged loss was given to the petitioner/OP, who deputed a surveyor to assess the loss. The complainant got his vehicle repaired by incurring an expenditure of Rs. _86,820/- and then submitted the necessary claim with the petitioner/OP, but the claim was repudiated by the insurance company on the premise that although it was a goods-carriage vehicle, a large number of passengers were being carried in it, resulting in breach of the policy conditions. The complainant then filed the consumer complaint in question, seeking directions to the OP to pay the repair charges of Rs. _86,820/-, Rs. _1,00,000/- as compensation for mental agony and Rs. _1,000/- towards loss of income and Rs. _2,000/- towards cost of litigation. The petitioner/OP contested the complaint and stated in the written statement that the vehicle was registered and insured as a goods-carrying vehicle and it was holding a permit to carry goods only. It was stated that the vehicle was carrying 40 unauthorised persons in gross violation of the permit condition as well as the terms and conditions of the policy. However, the District Forum, vide their order dated 05.10.2004, allowed the complaint and directed the insurance company to pay a sum of Rs. _29,883/- towards repair charges with interest @9% p.a. from the date of repudiation of the claim, together with a sum of Rs. _5,000/- as compensation for mental agony and Rs. _1,000/- as cost of litigation. An appeal filed against this order was dismissed by the State Commission vide impugned order dated 04.06.2007. It is against this order that the present petition has been made.

(3.) At the time of arguments before me, the learned counsel for the petitioner/OP Insurance Company stated that the facts of the case made it very clear, and rather, it is admitted that it was a goods-carrying vehicle, but at the time of the accident, it was carrying 40 passengers and it thus, violated the terms and conditions of the policy as well as of the permit issued to him. The District Forum and the State Commission had taken an erroneous view in allowing the complaint and hence, their orders should be set aside. It has been stated in the order of the District Forum that as per the FIR with the Police, the vehicle was carrying about 40 persons at the time of accident. Learned counsel has drawn attention to the order passed by this Commission in "Oriental Insurance Company versus Pabindra Narayan Uzir", 2006 4 CPJ 396, saying that in this case, 60 persons were being carried in the insured vehicle against a ceiling of 6. The carrying of such a large number of passengers was tried to be justified on the pretext that passengers forcibly travelled in that vehicle. However, it was held by this Commission that there was no deficiency in service on the part of the Insurance Company in repudiating the claim and it should be ensured that the life and limb of persons travelling in the vehicle and passers-by on the road are not endangered. In this order, the case "B.V. Nagaraju versus Oriental Insurance Company Limited", 1996 AIR(SC) 2054 has also been discussed. The State Commission have also placed reliance on this case, while passing the impugned order. However, the National Commission clearly held in that case that just three additional persons were being carried and they were owners of the goods allotted. The accident occurred due to head-on collision of the insured vehicle with a coming vehicle. The facts of the present case are similar to the case, "Oriental Insurance Company versus Pabindra Narayan Uzir" . The learned counsel stated that it was a case of fundamental breach of policy conditions and hence, the petition should be allowed.