The main legal point established in the judgment is that the insurance company must prove the breach of policy conditions and that overloading of passengers was not the cause of the accident to establish deficiency in service.

Mr. Justice S.K. Dubey, President—This appeal is directed against the order dated 24.3.2000 passed in Case No. 420/1998 by the District Consumer Disputes Redressal Forum, Gwalior (for short the ‘District Forum’), whereby the complaint of the respondent for deficiency in service in not making the own damage claim of the passenger bus bearing registration No. M.P. 07-B-7124 comprehensively insured covering the risk from 5.12.1995 to 4.12.1996 met with an accident on 24.11.1996 was allowed with an order to pay Rs. 80,000/- the amount as assessed by the Surveyor with interest thereon at the rate of 12 per cent per annum from the date of the Surveyor report dated 23.7.1997 along with Rs. 1,300/- as costs of the proceedings.

2. Learned Counsel for the Insurance Company submitted that at the time of accident the bus was carrying 110 passengers more than its seating capacity of 52, in breach of the conditions of the policy, therefore, the claim was repudiated.

3. Learned Counsel for the respondent submitted that the burden to prove the breach of condition of the policy is on the Insurance Company. The respondent never admitted that it was carrying passengers more than its seating capacity. The Insurance Company has not proved the breach of the condition of the policy by any legal evidence. Even, for arguments sake, if the bus was carrying passengers more than its seating capacity, such passengers were not the cause of the accident, therefore, the District Forum rightly placing reliance on the decision of the Supreme Court in B.V. Nagraju v. Oriental Insurance Company Ltd., II (1996) CPJ 28 (SC), and a decision of the State Consumer Disputes Redressal Commission, Gujarat in United India Insurance Co. Ltd. v. Balsangji Somaji Thakore, I (1994) CPJ 11, rightly held the Insurance Company was deficient in service.

4. After hearing learned Counsel for the parties and on reappraisal of the evidence, we are of the view that this appeal is devoid of merit. The Insurance Company to establish the fact that the passenger bus was carrying passengers more than its seating capacity, has not produced any evidence except the photocopy of the FIR and of the statements recorded during investigation. It is well settled that FIR is not a substantive piece of evidence. The evidence collected during investigation cannot be looked into unless the material collected during investigation is translated into legal evidence. See, the decisions of Supreme Court in Virendra v. State of Delhi, JT 1999 (3) SC 31, and Kaptan Singh v. State of M.P., AIR 1997 SC 2485, followed by this Commission in Appeal No. 738/1999 decided on 15.11.1999 in Oriental Insurance Co. Ltd. v. Surendra Kumar Chouksey.

5. This Commission in case of Ajay Kumar Singh v. United India Insurance Co. Ltd., III (2000) CPJ 514=2000 (2) CPR 179, a case wherein the allegation was that seating capacity was of 52 while the bus was carrying 76 passengers which met with the accident and dashed with the coming shuttle while crossing the railway track, observed that the cause of action was not the over-loaded passengers nor the cause of accident can be attributed to the excess passengers carried in the bus. Therefore, placing reliance on the decision of the National Commission in case of United India Insurance Ltd. v. Surjit Singh Asai, (2000) NCJ 113, observed in para 6 thus :

“6. The main ground of treating the claim as no claim is carrying of passengers beyond its seating capacity, that is over-loading of the bus, therefore, in terms of the policy “General Exceptions” the Insurance Company treated the claim as no claim. It is not the case of the Insurance Company that the over-loaded passengers were the cause of the accident. On the other hand, the accident occurred while the bus was crossing the railway track and from coming shuttle, the bus dashed and accident occurred, the bus was broken in two pieces. The legal representatives of the deceased persons and the injured persons have filed the claim petit