Compensation in insurance claims should be based on the Surveyor's report and the breach of policy conditions should be considered in determining the compensation amount.

Mr. Justice K.S. Gupta, Presiding Member—This revision is directed against the order dated 11.10.2004 of Karnataka State Consumer Disputes Redressal Commission, Bangalore dismissing appeal against the order dated 3.12.2002 of a District Forum whereby petitioner/opposite party Insurance Company was directed to pay amount of Rs. 1,70,000 with 12% interest from the date of filing of complaint to the respondent/complainant.

2. In nutshell, the facts leading to filing of this revision are these. Respondent was the owner of vehicle bearing No. KA - 16-5189 which was insured with the petitioner for the period from 1.11.2000 to 30.10.2001. Vehicle met with an accident on 14.2.2001. On being informed of the accident the petitioner appointed Surveyor. Respondent alleged that he incured expenses of Rs. 1,50,000 on repairs of the vehicle. On claim being repudiated by the petitioner through the letter dated 20.2.2002 on ground of vehicle carrying 70 passengers in violation of the conditions of policy, the respondent filed complaint which was contested by the petitioner on the ground similar to that taken in repudiation letter.

3. Copy of the policy is at page 37 while that of F.I.R. at pages 61 to 63. Copy of the report of B.V. Kumaraswamy, Surveyor is at pages 38 to 45 while that of cross-examination of Kotreshi, Conductor on the vehicle at pages 58-60.

4. In the policy the seating capacity of the vehicle is shown as 48+2.

5. It was pointed out by Mr. Abhishek Kumar for petitioner that F.I.R. of the incident was registered on the basis of statement of Kotreshi, conductor and on an application filed by respondent at the end of case the affidavit of said conductor was permitted to be taken on file by way of evidence by the District Forum. F.I.R. registered on the basis of statement of Kotreshi notices that there were 70 passengers inside and on the top of the bus at the time of accident. After the affidavit of this conductor was allowed to be taken on file he was cross-examined on behalf of petitioner - Insurance Company. He denied of having stated to the police that at the time of accident there were 70 passengers in the bus. He stated that he had not lodged any complaint with the police regarding the occurrence. He admitted of having not made any complaint to higher authorities that the police had incorrectly recorded his statement. In our view, there was hardly any occasion for the police to have registered case under various sections of I.P.C. and M.V. Act if the said conductor had not made the statement to it. Further, in all probabilities the said conductor would have made complaint against the duty officer registering the F.I.R. to higher police officials in case the statement was not made by him which course of action was admittedly not taken by him. Thus, much importance cannot be attached either to the affidavit or the cross-examination denying the bus not carrying 70 passengers at the time of accident. Fora below have acted with material irregularity in not considering the affidavit/cross-examination of the said witness in correct perspective. Obviously, there was breach of the condition of policy in carrying passengers much beyond the authorized seating capacity. In aforesaid report, the Surveyor assessed the net loss payable at Rs. 34,195.53. Fora below awarded amount of Rs. 1,50,000 accepting the case of respondent that he had incurred this amount on repairs of the vehicle. Surveyor’s report which is an importance piece of evidence was totally ignored by Fora below in assessing the amount of compensation. In our opinion, the respondent can be awarded compensation only on the basis of Surveyor’s report. Under the guidelines issued by petitioner - Insurance Company the claim of breach of condition of this kind can be settled at 75% on non-standard basis. Respondent is, thus, entitled to only Rs. 25,646 being 75% of aforesaid amount of Rs. 34,195.53 with interest at the rate allowed by the Fora below from date of filing of compl