The breach of the contractual obligation by the insured was considered a fundamental breach, but the exclusion term of the insurance policy has to be read down to serve the main purpose of the policy of insurance.

ORDER

Arun Kumar Goel, President (Oral)- Heard learned Counsel for the parties. Vehicle was admittedly insured with the appellant on the date of its accident on 16.8.2003, therefore, we are not noting down detailed facts which have otherwise been taken note of by the District Forum below, in its impugned order.

2. Learned Counsel for the appellant raised two-fold plea in support of this plea. According to him in terms of the policy of insurance his client had contracted to cover the risk of one driver and four labourers, whereas, at the time of accident there was one driver plus six persons travelling in the truck in question. As such this was the first violation committed by the respondent. In addition to this, Mr. Kochhar pointed out that the laiden weight of the vehicle as per registration certificate was to be 16,200 kgs., whereas it was 16,950 kgs. at the time of its accident. With a view to advance this submission he referred to the affidavit of Mr. Umesh Kumar Sood, Engineer/Surveyor and Loss Assessor Ext. OPW-2 placed before the District Forum. Reference was made by him to the Surveyor's report as well.

3. No doubt that the contractual obligation incurred by the appellant is qua one driver plus four labourers, whereas at the time of accident there was one plus six persons travelling in the vehicle in question. This according to Mr. Kochhar is a fundamental breach and as such on this ground the impugned order is liable to be set aside. In case we uphold this contention of Mr. Kochhar, then there is no escape, but for allowing this appeal otherwise consequence is obvious. We are further of the view that in order to succeed on this ground, it was incumbent upon the appellant-Insurance Company to have established that breach was committed by the truck owner who carrying the human beings in a vehicle more than permitted, in terms the policy as in the present case is such a fundamental breach, so as to afford the insurer to eschew liability altogether. Exclusion term of Insurance policy has to be read down to serve the main purpose of the policy of insurance. This is the view of the Hon'ble Supreme Court in B.V. Nagaraju v. M/s. Oriental Insurance Co. Ltd. Divisional Office, Hassan, AIR 1996 SC 2054. To be fair to Mr. Kochhar we may point that he tried to give support to his submission based on the observation made in the paragraph 7 in this judgment. We are of the view that it instead of supporting the case of the appellant, hampers it. While dealing with the case of exclusion clause reference was made again by the Hon'ble Supreme Court, to its earlier judgment in the case of Skandia Insurance Co. Ltd. v. Kokilaben Chandravadan and Others, AIR 1987 SC 1184.

4. After having referred to the entire complaint file, nothing could be brought to our notice to the effect that carriage of two extra passengers in the vehicle at the time of accident having resulted in causing accident and/or having contributed to it. That being the position in the absence of evidence, plea urged by Mr. Kochhar is hereby rejected.

5. Now coming to the plea of the laiden weight of the vehicle being more than what is prescribed under Motor Vehicles Act, 1988. No doubt Mr. Sood Surveyor in his affidavit has stated that the truck was a heavy goods vehicle and there were 496 apple boxes each having 20 kgs. weight i.e., 9920 kgs. However, when reference is made to the report submitted by him, Annexure O.P./4, except for mentioning number of apple boxes he has not spoken anything regarding weight of each box. Therefore, in our opinion he by showing the laiden weight of the vehicle being excess in his affidavit he became by wiser after the event. Reason for making this observation is that at the time of survey he could easily check from the agency who had issued the goods receipt reference to which he has made para 6 at page 2 of his report. Annexure O.P. 4 Affidavit has to come in support of his report. That being the position submission of Mr. Kochhar that the la