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Judgment
THESE two appeals were earlier decided on 16.10.1995 allowing A.P. No. 703/95 and dismissing A.P. No. 454/1995. A.P. No. 703/1995 was filed by the opposite parties against the order of the District Forum granting an award while A.P. No. 454/ 1995 was filed by the complainant for enhancement of compensation awarded. Against the said orders in the appeals, revision petitions were filed in the National Commission. The National Commission by its common order dated 17.12.1996 allowed both the revision petitions and remanded the matters to this Commission for fresh disposal in the light of the observations made in the Revision Order. This is how these two appeals have come up for hearing again by this Commission.
THE facts are: a bus of the complainant which had been insured with the opposite par- ties met with an accident during the currency of the insurance policy. Since the opposite parties repudiated the claim made by the complainant for payment of compensation, the complainant filed OP No. 152/93 before the District Forum alleging deficiency in service on the part of the opposite parties in not paying the compensation and claiming a sum of Rs. 4,00,000/- as compensation as the market value of the bus or in the alternative, a sum of Rs. 3,36,155/- as cost of repair charges with interest @ 18% p.a. from 24.9.1992. A further sum of Rs. 10.000/- has been claimed for mental agony and sufferings due to the refusal on the part of the Insurance Company in not paying the compensation amount. The opposite parties contested the OP contending that while the bus had a permit for 59 passengers only, at the time of the accident, 71 passengers were allowed to travel in the bus, and this disentitled the complainant to any claim as per the conditions in the policy.
The District Forum in its order held that at the time of accident there were only 50 to 55 passengers in the bus and not 71 passengers as contended by the opposite parties and as such there was no violation of the conditions of the policy, and, therefore, the complainant is en- titled for compensation. The compensation was arrived at by the District Forum at Rs. 2,14,095/- as damages to the bus and Rs. 33,935/- as the interest payable, and Rs. 1,000/- for mental agony and Rs. 500/- towards costs. Accordingly an award was passed.
AS against this order, as stated above, the complainant filed in this Commission A.P. No. 454/1995 for enhancement of the compensation and the opposite parties filed A.P. No. 703/1995 for setting aside the order of the District Forum and dismissing the complaint. This Commission, by a common order, held that at the time of accident 71 passengers travelled in the bus as contended by the opposite parties as against the permitted No. of 59 passengers, and as such, the condition of the policy has been violated and hence the complainant was not entitled to make any claim from the opposite parties. Thus find- ing, this Commission allowed the Appeal No. 703/1995 filed by the opposite parties and set aside the order of the District Forum, and dismissed the Appeal No. 454/1995 filed by the complainant. The National Commission, in the revisions filed against the order of this Commission in both the appeals, held that in view of the present judgment of the Supreme Court in B.V. Nagaraju v. M/s. Oriental Insurance Company Ltd., Divisional Office, Hassan, II (1996) CPJ 28 (SC), unless these is a proximate nexus between the factum of carriage of excess number of passengers in a public carriage vehicle and the occurrence of the accident to the vehicle, the exclusion clause contained in the policy of insurance will not come into operation. In this view of the Supreme Court, the National Com- mission set aside the order passed in the appeals by this Commission and remanded the matters for fresh disposal after deciding on the point stated in the judgment of the Supreme Court, that is, whether the fact of excess passengers travel- ling in the bus contributed to the accident, and after taking further evidence if necessary.
NO further evidence has been made by either of the sides. The learned Counsel appearing for the complainant in the appeal submits that in the absence of any evidence to show that the excess passengers travelled in the bus contributed to the occurrence of the accident, it has to be held that there was no nexus between the carrying excess passengers and the accident and as such it must be held that the excess passengers were not the cause for the accident. We agree with this submission of the learned Counsel. Therefore, it follows that the fact that there were passengers more than the permitted limit was not the reason for the accident, and as such, it cannot be held that there was violation of the conditions of the policy, which disentitles the complainant from making a claim. The next point that arises for consideration is whether the quantum of compensation awarded by the District Forum is inadequate as contended by the complainant. In her Appeal No. 454/95, as above noted, the complainant herself has stated that as a result of the accident the bus was extensively damaged and it was nearly a total loss. Even according to the complainant, it was not a case of absolute total loss. Therefore, the damages awardable cannot be the market value of the bus at the time of the accident but it can only be the repair charges. The complainant, as aforestated has prayed for Rs. 4,00,000/- as the market value of the bus or in the alternative Rs. 3,36,155/- as repair charges. As just above seen by us, no market value can be granted as compensation but only the repair charges can be granted. In respect of her claim as repair charges, the complainant has filed Ex. A-7 as the Proforma for Labour charges issued by M/s. Royal Coach Builders, Karur for Rs. 65,000 /-. Ex. A8 as the Quotation for material cost to the vehicle issued by M/s. Veeyen Traders, Karur for Rs. 2,32,060/-; and Ex. A9 as the collision damage and estimate for mechanical repairs and parts issued by M/s. T.V. Sundaram lyengar & Sons Ltd., Salem for Rs. 39.095/-, all totalling to Rs. 3,36,155/-. A careful perusal of the written version shows that the opposite parties have not said anything disputing the quantum of compensation claimed in the complaint. There- fore, in the circumstances, the complainant''s claim of Rs. 3,36,155/- as the cost that she would have to incur for repair has to be taken as correct.
AS regards the interest claimed, the District Forum has awarded interest @ 18% p.a. from 24.9.1992, that is, the date of claim till the date of complaint. But in our view, the interest cannot be awarded from the date of claim itself since there must be some reasonable time al- lowed for the Insurance Company to consider the claim and, we think that the reasonable time would be three months, and, therefore, the interest can be awarded from 24.12.1992. The rate of interest @ 18% p.a. allowed by the District Forum also in our view, considering the circum- stances of the case, is rather excessive and the reasonable rate of interest would be 15% p.a. Then the District Forum has awarded interest only till the date of complaint. In our view, that is not correct and the interest must be awarded till the date of payment of the amount. Regarding the claim for mental agony, we hold that the amount of Rs. 1,000/- awarded by the District Forum is too low and that could be Rs. 5,000/-.
IN the result, A.P. No. 703/1995 filed by the opposite parties is dismissed. A.P. No. 454/ 1995 filed by the complainant is ordered in the following terms: the opposite parties are directed to pay a sum of Rs. 3,33,155/- as repair charges, with interest thereon @ 15% p.a. from 24.12.1992 till the date of payment; Rs. 5,000/- as compensation for mental agony. IN both the appeals, there will be no order as to costs. But the costs of Rs. 500/- awarded by the District Forum will remain undisturbed. A.P. 703/1995 dismissed. A.P. 454/1995 allowed with costs.