IMPORTANT POINT
Insurance claim cannot be rejected in toto where breach of policy conditions is not fundamental in nature.

Suresh Chandra, Member—This revision petition has been filed by the OP Insurance Co. against the order dated 19.11.2009 passed by the Rajasthan State Consumer Disputes Redressal Commission, Jaipur (‘State Commission’ for short) allowing the appeal of the complainant, respondent herein, against the order of the District Forum, Chittorgarh by which the District Forum had dismissed the complaint of the respondent. The respondent had filed a complaint against the OP Insurance Co. on 7.7.2008 stating therein that her bus bearing Registration No.RJ 09P 1481 which had been insured with the petitioner Insurance Co. for the period from 15.5.2006 to 14.5.2007 for a sum of Rs.2,97,500/- as IDV was involved in an accident in which the bus fell into a river. It was stated in the complaint that on 15.8.2006 when the bus in question was coming from Badi Sadri to Jogania Mata near village Bichhore, because of the heavy rain the water level in the nalah was very high and since the water was flowing over the bridge when the driver of the bus tried to reverse the bus, the same fell into the river thereby killing 5 persons and damaging the vehicle in question in the accident. FIR of the incident was lodged with the police station and a challan was filed against the driver of the bus for committing offence under section 304 of IPC. It was stated in the complaint that at the time of accident, the driver had a valid and effective driving licence. A claim was lodged with the petitioner Insurance Co. but the same was not settled. It was claimed that the complainant had suffered a loss to the tune of Rs.1,00,000/- for the damage of the vehicle and hence a claim was made for that amount. On being noticed, the OP Insurance Co. resisted the complaint by stating that at the time of accident, the bus was overloaded and was carrying 70-80 passengers against the permissible capacity of 47 persons in the bus. According to the Insurance Co., it was because of the overloading of the bus that the driver while passing through the bridge had lost control as a result of which, the bus had fallen in the river and thus the accident had taken place because of the rash and negligent driving of the driver of the bus and further taking into consideration that the driver had violated the specific terms and conditions of the policy by taking more passengers than permitted, no claim was payable under the policy. It was further stated in the reply of the Insurance Co. that no doubt the surveyor in his report dated 27.8.2006 had assessed the loss to the tune of Rs.53,838.80 paisa but since there was violation of the terms and conditions of the policy and since it was a case of rash and negligent driving by the driver, the claim was not payable and it was prayed that the complaint be dismissed. On appraisal of the issues and the evidence adduced, the District Forum vide its order dated 16.1.2009 dismissed the complaint and held as under:-

“(i) That since the capacity for carrying the passengers was 40-50 persons but at the time of accident there were 60-70 persons were found sitting in the bus and therefore, there was violation of the terms and conditions of the permit.

(ii) That since there were 60-70 persons were being carried in the bus against the capacity of 40-50 persons, therefore, because of the violation of the terms and conditions of the policy, claim was not payable.

(iii) That the respondents were justified in not settling the claim of the complainant appellant.”

2. Aggrieved by the order of the District Forum, the complainant filed an appeal before the State Commission challenging the order of the District Forum. It was contended by the appellant that even though it may have been found that at the time of accident more persons were sitting in the bus than permitted, the cause of the accident could not be related to the persons sitting in the bus as the bus had fallen in the river because of the high level of the water and thus the petitioner Insurance Co