ORDER

Arun Kumar Goel, President - We have heard learned Counsel for the parties and with their assistance have also examined the record of the case. Vehicle being insured on the date of its accident with the appellant is not in dispute. However, on claim being lodged, it was not settled by the Insurance Company. This resulted in filing of the complaint under Section 12 of the Consumer Protection Act, 1986. Thereafter, when put to notice, stand of the appellant was that vehicle being a transport vehicle was adapted and meant for carriage of goods, passengers could not have been carried in it. Mr. Sharma, learned Counsel for the appellant pointed out that against the capacity of 1+3, there were as many as 7 passengers travelling in the vehicle at the time of accident i.e., 1+6 more persons. Therefore, according to him, impugned order is liable to be set aside on this short ground alone.

2. Alternatively and without conceding he urged that if his first submission falls, in such a situation, after allowing depreciation on the sum insured, the impugned order may be modified by settling the same as a non-standard claim instead of the impugned order. With a view to support his submission, he placed reliance on a decision of the National Commission in the case of New India Assurance Co. Ltd. v. Narayan Prasad Appaprasad Pathak, (2006) 2 CPJ 144 (NC) and urged that Clause 10 of the Guidelines issued by the General Insurance Corporation of India Ltd. for settling claims on non-standard basis' is clearly attracted. Thus, he prayed for reduction of the amount in question as awarded by the District Forum below. On a reference to the impugned order dated 17.1.2007 in Consumer Complaint No. 8/2005, we find that the appellant has been directed to pay Rs. 1,70,777 to the respondent with 9% interest from the date of filing of the complaint i.e., 27.12.2004 along with Rs. 1,000 as litigation cost. Reliance was placed by Mr. Sharma on the policy condition Limitations as to use at the time of accident of the vehicle carrying excess passengers who were travelling as unauthorised passengers. All these pleas have been contested by Mr. Sarpal Singh, learned Counsel for the respondent. Per him, onus was upon the appellant to have established the number of persons firstly being carried unauthorisedly in the vehicle and also at the same time that such excess number of persons was the cause of accident or contributed to the accident in question. Onus being on the appellant-Insurance Company, he relied upon a decision of this State Commission in the case of Megh Pal Thakur v. Oriental Insurance Company Limited, 2004 (1) CLJ (HP) 596. On the basis of this judgment, he urged that since appellant has failed to prove this fact, therefore, alternate submission urged by Mr. Narinder Sharma, learned Counsel for the appellant, needs to be rejected. We are unable to accept this submission urged by Mr. Singh because reference to para 5 of the judgment of this State Commission relied upon by him shows that the Insurance Company in this case itself had offered to settle the claim as per recommendations of its surveyor and the net liability of the loss on total loss basis was of Rs. 5,78,500. Its subsequent scaling down by converting the claim under the category of non-standard claim by its Divisional Manager was unjustified. This, in our opinion had mainly weighed with the District Forum below in this case while upholding the claim of the appellant and scaling down of compensation was set aside. This judgment is dated 18.3.2002. On the other hand, in support of the alternate submission, decision in the case of New India Assurance Co. Ltd. v. Narayan Prasad Appaprasad Pathak (supra), relied upon by Mr. Sharma, negatives the submission of Mr. Singh. Since we are accepting that the number of persons travelling in the truck at the time of accident were six i.e., beyond the li