KAMLESHWAR PRASAD SINGH vs National Insurance Co Ltd

-THE petitioner/complainant is aggrieved by the order of dismissal of complaint in appeal filed by the National Insurance Company Limited.

BRIEF facts of the case are as under: the Public Career Bus bearing No. BR-12a-9181 was insured for the period starting from 31. 3. 1997 to 29. 3. 1998. The Bus was going from Giridih to Dumka. On 22. 7. 1997, while the bus was plying from Giridih to Dumka, it met with an accident on account of burst of front right tyre and steering failure while crossing the bridge and fell down in Ushri River. It was totally damaged. Driver and some passengers died. A criminal case under Sections 279 and 337, IPC was registered. The Insurance Company was informed on 23rd July, 1997. The petitioner/complainant preferred claim with the Insurance Company. Shri Ranjvir Kumar, Surveyor was deputed by the Insurance Company. He assessed the loss and damage of the bus of Rs. 3,77,824. 60 paise. After submission of the report, the complainant sent several reminders to the Insurance Company for settling his claim. The claim was not settled by the Insurance Company. Ultimately, be filed a complaint on 30. 3. 2001.

During the pendency of the claim, the complainant was informed by the Branch Manager of the Insurance Company about the repudiation of this claim.

THE Insurance Company contested the matter, inter alia, on the ground that the alleged bus accident had taken place due to flood peril which was not covered by the policy of the complainant and hence the Insurance Company was not liable to pay any compensation to him under the policy for the alleged accident for there was flood in Ushri River and about 3 to 4 feet of water in height with current was flowing on Barganda Bridge lying on Ushri River. The side pillars of the bridge were hardly visible and when the Insured Bus of the complainant reached near the southern side of bridge from Giridih side some villagers and passengers suggested the driver not to cross the bridge. But the driver ignored their suggestion and attempted to cross the river, which led to the accident. While the bus was crossing the bridge it stopped on the bridge and its right front tyre entangled with an angle of the bridge. The driver of the bus tried to disentangle the bus tyre taking reverse gear but he could not succeed and entangled bus tyre got lifted. Due to rush of flood water on bridge he also lost control over steering of the bus and bus slowly fell into the flooded river and swept away to the considerably distance over one kilometre. Consequently, the bus driver, Deeki Nandan Sharma (Pujari) was also not competent to drive the insured bus and his driving licence to drive HMV was forged and fabricated. The complainant had dishonestly suppressed the material fact that he also filed complaint before Insurance Ombudsman, Calcutta and lossed there.

WE have heard the learned Counsel and gone through the record. It is notable that in terms of the policy, it was subject to conditions 22 and 23 of the policy, which relates to the exclusion clauses. They read as under: "imt-22 Exclusion of Special Perils (earthquake, fire and shock damage)In consideration of an appropriate discount under the policy, it is hereby understood and agreed that the words "earthquake") Fire and Shock Damage) in Section 1, (item d) of the policy are hereby deleted and the Company shall not be liable for accidental loss or damage caused by or liability directly arising out of the above perils. In the event of any claim the insured shall prove that the accident loss in the event of any claim the insured shall prove that the accident loss damage or liability arose independently of and was in no way connected with or occasioned to by or traceable to any of the said occurrence or any consequences thereof and in default of such proof the Company shall not be liable to make any payment in respect of such a claim.

IMT 23 - Exclusion of Special Perils (Flood, Typhoon, etc.)In consideration of an appropriate discount under the policy it is hereby understood and agreed that the words "flood, Typhoon, Hurricane, Storm, Tempest, Inundation, Cyclone, Hailstorm, Frost" in Section 1 (item (e) of the policy) are hereby deleted and the Company shall not be liable for accidental loss or damage caused by or liability directly arising out of the above perils. In the event of any claim the insured shall prove that the accident loss, damage or liability arose independently of and was in no way connected with or occasioned by or contributed to by or traceable to any of the said occurrence or any consequences thereof and in default of such proof the Company shall not be liable to make any payment in respect of such a claim. "

It is evident, therefore, that the flood perils relating to flood, typhoon, etc. were not covered. At the time of the accident, as has been established, on the bridge itself over 3 ft. water was over flowing. The pillars of the bridge were hardly visible. The river was in spate. The tyres were not visible. The passengers and the villagers suggested not to cross the bridge. The driver did not pay any heed to their advice and tried to cross the bridge. On account of the flood, he could not see that the tyre was likely to be entangled with the angles of the bridge. The flow of the water was so strong that the bus tilted and raised from one side, turned and fell down into the river and was carried away by the strong flow of water to a long distance. To say that the accident had not caused due to perils of the flood is too much and cannot be accepted by any stretch of imagination. It was also contended by the learned Counsel for the petitioner that the main purpose rule should not be ignored while interpreting the policy. In this regard, he relied upon Skandia Insurance Co. Ltd. v. Kokilaben Chandravadan and Others, I (1987) ACC 413 (SC)= (1987) 2 SCC 654, where the Supreme Court had held the exclusion term of insurance policy must be read down so as to serve the main purpose of the policy i. e. to indemnify the damages caused to the vehicle. The scope of main purpose rule was never intended to totally eclipse the term of the contract and if the flood perils relating to flood was not covered, it would be covered by application of the said rule.

ONE of the grounds taken was that the claim could be treated as non-standard claim. The question of treating the claim as non-standard claim could have been considered if there was no specific clause or it related to minor breaches. It is not a breach of a term of the insurance policy. The peril was outside the scope of the policy. This kind of distinction and difference has to be taken note of while considering this kind of submissions.

THE complainant undisputedly approached insurance ombudsman to raise his claim and as ombudsman had observed, is notable. The bus was carrying passengers more than its capacity of 52 passengers. Estimated 60 to 65 passengers were in the ill-fated bus. If it was more than its capacity of 52 passengers, if such a fully packed bus could not withstand the furiously flowing stream of Ushri River of the bridge, one could just imagine the force of the floodwater. The ombudsman observed that the insured had disregarded the essential conditions of exercising reasonable care to safeguard the bus from loss, by driving into the flooded bridge and secondly, the bus was found to be without the flood peril insurance cover in terms of Condition No. 23 of the insurance policy, the insured having availed of the appropriate discount. The plea of the insured that the accident took place because of the bursting of the right front tyre and failure of the steering wheel has not been established by credible evidence. In the light of the fact that the vehicles age being only three and half months with no history of breakdown of tyres or steering wheel, it was highly improbable that the front tyre or the clearing wheel would give away. The severe impact of the flooded bridge to which the bus driver carelessly led the vehicle, on the fateful day expensing himself and the bus passengers "along with" insured bus itself indicates that the driver had not acted prudently by ignoring the advice of the villagers and passengers. The Insurance Company was no doubt directed to pass an appropriate order to settle the claim in the light of the facts and circumstances of the case. It was never intended to settle the matter in favour of the complainant in the light of orders of ombudsman and the facts mentioned therein. In the light and circumstances of the case, settling of the case would only mean that the matter should be settled in favour of the Insurance Company. Considering the overall facts and circumstances, we feel that there is no force in this revision petition and it is required to be dismissed and it is dismissed accordingly. R. P. dismissed.