New India Assurance Co. Ltd. and another vs B.D. Sharma (Dead) Thr. His Lrs

This revision petition has been filed by the petitioners against the order dated 19.6.2008 passed by State Consumer Disputes Redressal Commission, Shimla (in Short the State Commission) in Appeal No. 236/2007, The New India Assurance Co Ltd. v. Sh. B.D. Sharma by which, appeal was dismissed.

Brief facts of the case are that complainant/respondent was owner of mini bus HP-07-5099 which was insured by OP/petitioner for a sum of Rs. 2,92,000 for a period of one year. During subsistence of insurance policy, on 21.1.2005, vehicle met with an accident at Jablo Darlaghat where bus had been taken by staff members without consent and knowledge of complainant on account of which, bus suffered extensive damage. FIR was lodged and intimation was given to OP. Complainant incurred expenditure of Rs. 4,35,000 in repair of the bus. Complainant lodged claim which was repudiated by OP on the ground that it was overloaded and was being plied without special permit beyond the area of operation. Alleging deficiency on the part of OP, complainant filed complaint before District Forum. OP resisted complaint admitted issuance of policy, but submitted that as per registration certificate vehicle was having sitting capacity of 23 persons whereas at the time accident 27 persons were travelling. It was further pleaded that vehicle was being plied on route without any permit to ply on that route; so, claim was rightly repudiated and prayed for dismissal of complaint. Learned District Forum after hearing both the parties allowed complaint and directed OP to pay Rs. 1,95,111 with 9% p.a. interest along with Rs. 2,500 as cost of litigation. Appeal filed by OP was dismissed by learned State Commission vide impugned order against which, this revision petition has been filed.

None appeared for LRs of respondent even after service of notice and they were proceeded ex parte.

Heard learned Counsel for the petitioner and perused record.

Learned Counsel for the petitioner submitted that as vehicle was being plied on route beyond permit, claim was rightly repudiated, but learned District Forum committed error in allowing complaint and learned State Commission further committed error in dismissing appeal, hence, revision petition be allowed and impugned order be set aside and complaint be dismissed.

Learned State Commission has dismissed appeal on the basis of telephonic information received from the local office of HRTC pertaining to distance of Shimla and Darlaghat whereas it is a case of plying bus beyond the route which is clearly violation of terms and conditions of policy.

Learned Counsel for the petitioner has drawn our attention to judgment of Hon''ble High Court of Himachal Pradesh in FAO Nos. 138/2006, New India Assurance Co. v. Deepa & Ors., along with other appeals pertaining to the same incident in which claims were allowed by Motor Accident Claims Tribunal, but Hon''ble High Court allowed appeals and observed that Insurance Company is not liable to pay compensation on account of breach of specific condition of the policy by plying vehicle on a route which was not permitted in the permit.

Perusal of aforesaid judgment makes it crystal clear that at the time of accident, complainant''s vehicle was being driven on route which was not covered by its route permit which amounted to violation of terms and conditions of the policy on account of which, even no liability of Insurance Company was affirmed regarding 3rd party liability and in such circumstances, complainant was not entitled to recover losses caused to the vehicle on account of vehicle being driven beyond the route permit and OP has not committed any deficiency in repudiating claim, but learned District Forum committed error in allowing complaint and learned State Commission further committed error in dismissing appeal and revision petition is to be allowed.

Consequently, revision petition filed by the petitioner is allowed and impugned order dated 19 6.2008 passed by State Commission in Appeal No. 236/2007, The New India Assurance Co. Ltd. v. Sh. B.D. Sharma and order of District Forum dated 3.4.2007 passed in Complaint No. 194 of 2005, Shri B.D. Sharma v. The New India Assurance Co. Ltd. is set aside and complaint stands dismissed. Parties to bear their costs. Revision Petition allowed.