(Per : C.C. Pant, Member)

This appeal is directed against the order dated 26.10.2005 passed by the District Consumer Forum, Chamoli, partly allowing Consumer Complaint No. 21/2005; Budhi Singh Pharswan Vs. The Oriental Insurance Co. Ltd., 3/4, Astley Hall, Rajpur Road, Dehradun and directing the insurer – appellant to pay compensation of Rs. 1,27,000/- together with interest @5% thereon from the date of complaint till the actual payment and Rs. 1,000/- as the cost of litigation.

2. Very briefly the facts of the case leading to filing the complaint were that the complaint owned a Tata Sumo bearing registration No. UP-07-C-9793. On 14.04.2004, the vehicle was carrying passengers from Joshimath to Chamoli. At about 11:05 a.m., the vehicle met with an accident near Joshidhara due to some technical fault and fell down into a deep rocky khud. The vehicle got totally damaged and it could not be recovered in one piece but in mutilated from. The vehicle was insured with the appellant – insurer for a sum of Rs. 2,00,000/- under policy cover note No. 04/6555, which was valid for the period from 01.03.2004 to 28.02.2005. On receiving the intimation from the insured on 17.04.2004, the insurer got conducted spot survey. The surveyor in his final report dated 07.11.2004 assessed the loss at Rs. 1,27,000/-. The insured agreed at this amount and sent his consent to the Branch Manager, Dehradun. When no payment was made by the insurer, the insured filed the consumer complaint No. 21/2005 before the District Consumer Forum, Chamoli with the request that the insurer be directed to pay compensation of Rs. 3,00,000/- together with the expenses of Rs. 25,000/- as labour charges spent in retrieving the vehicle from the khud and transporting the salvage to insurer’s office. A sum of Rs. 3,000/- as cost of litigation was also claimed.

3. The District Consumer Forum allowed the complaint partly and directed the insurer to pay the compensation of Rs. 1,27,000/- together with interest @ 5% from the date of complaint and Rs. 1,000/- as cost of litigation.

4. Aggrieved by the order of the District Forum, the insurer has preferred this appeal before the State Commission.

5. We have heard the learned counsel for the parties and have carefully perused the written arguments filed by the complainant and other material on record in the light of the legal aspects of the case.

6. The insurer – appellant repudiated the complainant’s claim on the ground that the vehicle was carrying 12 persons against the permitted capacity of 10 persons and also on the ground that the driving licence of the driver did not contain hill endorsement on the date of the accident. The District Forum, while allowing the complaint, has given its finding that the vehicle was carrying 10 adults and 2 minors and, as such, it was not a case of overloading. In our opinion, even if the vehicle was carrying 12 persons (all adults) against the permitted capacity of 10 persons, then also it cannot be said to be a gross violation of the terms and conditions of the policy of insurance and the provisions of the Motor Vehicles Act, 1988 in the light of the decision of the Hon’ble Supreme court in the case of B.V. Nagaraju Vs. Oriental Insurance Co. Ltd.; II (1996) CPJ 28 (SC) = 1 (1997) ACC 123 (SC) = (1996) 4 SCC 647. Of course, in the case of National Insurance Co. Ltd. Vs. Suresh Babu; I (2007) CPJ 23 (NC), the Hon’ble National Commission, while allowing the appeal, has expressed the view that decision given in B.V. Nagaraju’s case would have no bearing because in that case, the vehicle was carrying 35 passengers against the permitted capacity of 19 passengers and, therefore, there was a gross violation of the terms of the policy and the provisions of the law.

7. On the point of driver’s driving license, we are unable to understand as how the District Forum concluded that the driving licence was valid for the hill roads as well on the date of the accident. A careful perusal of the accident in