The court established that an insurance claim must be adjusted for overloading, allowing only 75% of the assessed loss.

(Per: Ms. Kumkum Rani, President):

This appeal has been directed against the impugned judgment and order dated 24.12.2021 passed by learned District Consumer Disputes Redressal Commission, Nainital (hereinafter to be referred as “The District Commission”) in consumer complaint No. 88 of 2018, styled as Sh. Faizal Vs. M/s National Insurance Company Limited, wherein and whereby the consumer complaint was allowed and the appellant / opposite party was directed to pay compensation of Rs. 2,42,588/- to the respondent / complainant on account of loss / damage occasioned to insured vehicle bearing registration No. DL-1V-A7763, within a period of one month from the date of impugned judgment and order, failing which the appellant / opposite party was also held liable to pay interest @6% p.a. on the aforesaid amount from the date of impugned judgment and order till actual payment.

2. The facts giving rise to the present appeal, in brief, are, as such that the respondent / complainant is the registered owner of vehicle bearing registration No. DL-1V-A7763 (bus), which was comprehensively insured with the appellant / opposite party (insurance company) vide policy No. 461800/31/16/6300003447, which was valid for the period from 17.08.2016 to 04.07.2017 at an IDV of Rs. 4,72,500/-. During the currency of the insurance company, on account of mechanical failure, the insured vehicle met with an accident on 01.01.2017 at about 5:30 p.m. near Nalini, P.S. Mallital and got completely damaged. The cause of the accident was mechanical failure, as the brakes of the bus failed, resulting in the accident of the insured vehicle. The cause of accident was neither the excess number of passengers, nor natural calamity, but it took place on account of sudden brake failure. The complainant submitted claim with the insurance company, but his claim was repudiated by the insurance company through letter dated 06.09.2018. At the time of accident, late Abdul Rahman was driving the insured vehicle, who was possessing a valid and effective driving license, who unfortunately died during the course of his treatment. The reason for repudiation of the claim was not at all justified. The complainant did not violate the terms and conditions of the insurance policy. Therefore, the consumer complaint was filed by the complainant before the District Commission, seeking relief as set out in prayer clause of the consumer complaint.

3. The appellant – insurance company filed written statement before the District Commission and pleaded that the insurance policy was issued subject to terms and conditions and the vehicle was insured on the IDV of Rs. 4,72,500/- with the consent of the complainant. The terms and conditions of the policy were supplied to the complainant along with the policy. It is admitted that the insured vehicle met with an accident on dated 01.01.2017 and got damaged. After receiving the intimation of accident, the insurance company deputed investigator, who investigated the accident. On investigation, it was found that the complainant had committed breach of the policy conditions, as it was found that the vehicle was carrying 30 persons including driver against the seating capacity of 20 persons in all. The fact of overloading was a fundamental breach of the policy. Therefore, as per the terms and conditions of the insurance policy, the claim was not payable. The independent surveyor has assessed the loss to the tune of Rs. 2,96,500/- on net of salvage basis, subject to policy terms and conditions. It was also submitted that Hon’ble National Commission in the case of Nand Kishore Jaiswal Vs. National