Tashi Rigzin vs National Insurance Company

SHRI Tashi Rigzin is the owner of the passenger bus bearing No. JK01A-7387 which met with fatal accident on 27.6.2001 at "Khardunglapass" while on its way from the town of Leh to Nobra. The bus was insured vide policy No. 420805/31/2K/63/01/290 which had to expire on 17.9.2001. It is alleged by the complainant that the accident occurred because the site was located at "Khardunglapass" which is 18000 ft. high from the sea level and at that time, road had become slippery due to the presence of snow. Extensive damage was caused to the body of the bus and loss was caused to the tune of Rs. 3.70 lakh as well as 70,000 were spent as charges of towing salvage, from the site of the accident to bring it in the town of Leh. That the actual damage was on the higher side i.e. to the tune of Rs. 9,80,000 yet the complainant has based his claim upto the above stated limits. The intimation of the accident was immediately given to the O.Ps. who deputed surveyor of the firm of M/s. Arun Kumar Surveyor Pvt. Ltd., Jalandhar to investigate about the matter. The said surveyor visited the site of accident on 7th and 8th of July, 2001 and the complainant had submitted all necessary documents to him including the estimated expenses of Rs. 9.80 lakh to defray the costs of replaceable parts of the engine, fabrication of new body of the bus and towing charges, etc. The matter was intentionally delayed for the final settlement on one pretext or the other that O.Ps. had suggested a compromise to settle the claim and on this assurance the complainant projected his claim only to the extent of Rs. 3.70 lakh as actual loss occurred and Rs. 70,000 as charges of towing the salvage from the place of the site of the accident but this offer was not accepted. The complainant served a legal notice on 9.8.2002 thereby demanding Rs. 3.70 lakh and Rs. 70,000 respectively with interest and damages, etc. Finally, the complainant was informed by the O.Ps. vide their letter dated 30.10.2002 (Annexure C-4) that his claim had been repudiated. Through the medium of this complaint, the complainant has claimed the above stated amount along with interest @ 12% per annum from the date of expenditure till making the final payment and in addition to that compensation of Rs. 2.00 lakh is also claimed by way of physical and mental harassment and travelling expenses extra.

THE O.Ps. in their objections have pleaded that the complainant has not only violated the terms and conditions of the policy but also has played with the lives of so many passengers as in this accident 22 persons died and more than 75 were injured. That at the time of the accident, there were 97 passengers loaded in the bus and some of them were even made to sit on its roof. THE accident had taken place purely because of excessive over-loading of the passengers as well as negligent driving of the bus. That the driver of the bus was not having a valid and effective driving licence. In this case there was a breach of Clause 2(1)(a) of the insurance policy which stated that company was not liable to indemnify the loss in the event of a vehicle being driven after overloaded with passengers. That after proper verification, the O.Ps. repudiated the claim and as such the complaint is not maintainable. THE misjoinder and non-joinder of necessary parties is also pleaded. On facts it was pleaded that the risk covered under the insurance policy in question was only upto Rs. 5.00 lakh. It is denied that accident had taken place due to slippery road on account of snow there but the causes were that an inexperienced driver holding an invalid driving licence had driven it after overloading with maximum number of passengers which numbered 97. That for small monetary benefits the complainant allowed 97 passengers to board the bus against the permitted sitting capacity of 42 passengers. That after getting the information about the accident the O.Ps. appointed M/s. K.B. Anko Company from Jammu for conducting spot survey and, thereafter, M/s. Arun Kumar Surveyor Pvt. Ltd. were appointed for final assessment of the loss caused to the vehicle. That as per the report of M/s. Arun Kumar Surveyor Pvt. Ltd. an amount of Rs. 2,18,500 was assessed as loss on net salvage value of the vehicle, subject to the terms and conditions of the policy. It is also pleaded that the vehicle was being plied against the terms of the route permit because the complainant had no permission to ply the bus in question on that route . It is denied that Rs. 70,000 were spent as towing charges for the salvage of the vehicle. Heard the arguments.

The learned Counsel appearing for the complainant has contended that the accident took place because the site of the accident is located at the height of 18000 ft. from the sea level which had become slippery on account of snow and there was no violation of any of the terms of the Insurance Policy. That the limit of the Insurance Policy was upto the limit of Rs. 5.00 lakh. That the claim may be satisfied upto this extent. This plea of the learned Advocate has been controverted at the very outset by the Counsel of the O.Ps. by stating that the O.P. company had validily repudiated the claim of the complainant (hereinafter to be referred as insurer) because there was violation of Clause 2(1)(a) of the Insurance Policy which clearly states that the company is not liable to indemnify if damage is caused to the vehicle due to over-loading. That the fact of overloading at the time of accident by allowing the boarding of 97 passengers (both inside and on the roof of the bus) is an admitted fact and in this view of the matter; the complaint requires dismissal at the initial stage. He has referred to an entry at page 2 of the "Proposal Form" submitted by the complainant to get the claim in pursuance of insurance policy in question wherein the number of passengers permitted in the accidental bus shown at the top of page 2 is 97 and at page 3 against entry No. 7 it is further admitted that out of them 75 were injured and 22 died. This form was filled in by the insurer himself on 27.8.2001. Furthermore, the Counsel has referred to the copy of the challan submitted by the police in the Court after investigating the accident covered under FIR No. 44 of 2001, Police Station Leh wherein commission of offences falling under Sections 279, 337, 338, 304A, IPC are stated to have been committed. In other words, the accident had occurred because of rash and negligent driving of the driver. There was overloading of the bus by the passengers numbering 97 passengers and out of them 22 had died.

WE have considered the submissions of the Counsel of the parties and find no difficulty in holding that the accident had occurred due to excessive overloading of the bus with passengers. The "Proposal Form" filled in by the complainant himself for getting the insurance claim contains his admission that 97 passengers were allowed to board the bus and out of them 75 got injured and 22 died. It is an admitted proposition of law that if admission is true and clear it is by far the best proof of the facts admitted. The police challan also contains the fact that there were 97 passengers inside and on the roof of the bus in question at the time of accident and the bus was being plied rashly and negligently. As per Section 76 of the Evidence Act, the police challan (final police report) is a public document and admissible in evidence. A bare reading of Clause 2(1)(a) of the insurance policy in question makes it clear that insurer stands absolved of its liability to indemnify the insured in case there is breach of this clause contained in the agreement of insurance policy. A valid assertion made in the complaint and orally supported in evidence by the complainant and his driver namely, Lobzang Zopta that due to snow the road had become slippery is not an acceptable proposition as a cause of the accident. The police challan which is a public document recites that the cause of accident was due to overloading of the passengers and rash driving of the bus. In this view of the matter, the insurer had validily repudiated the claim of the insurer complainant and his complaint cannot stand on its legs. There are other preliminary objections raised by the O.Ps. and they are that the driver of the complainant at the time of accident was not possessing valid and effective driving licence because he was not allowed to drive/ply a passenger vehicle. That on this count also there was contravention of the terms and conditions of the Insurance Policy and Route permit and he is debarred to claim anything. These objections are not supported by any documentary evidence. The driver of the bus namely, Lobzang Zopta has produced copy of his driving licence which does not contain any disabling entry to drive the bus in question. In the presence of this documentary proof the objections pales into insignificance. The last preliminary objection is to the effect that there was a contravention of the Route Permit because the complainant had been authorised to ply the bus in question from Leh to Bheema, whereas, at the time of the accident vide letter dated 1.1.1997, RTO had issued a letter in the name of passenger (sic.)Ladakh Pvt. Ltd. Bus Operators Union to allow the buses to operate anywhere in the District. This is a disputed question of fact and law. Because the letter in question written by RTO whether could override the power of the Government, to delegate this sovereign function to private agency because RTO himself is a delegate of the Government. The nature of the proceeding before the Commission is essentially of a summary nature and factual position which is required to be established by documents and oral evidence cannot be settled. We, therefore, refrain ourselves to give any finding on this objection.

IN view of the discussion made above, the complainant is found not entitled to any relief and in result his complaint is dismissed but the parties shall bear their own costs. Complaint dismissed.