1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR O R D E R S.B.Civil Writ Petition No. 6308/2008 ICICI Lombard General Insurance Co. Ltd. Vs. Permanent Lok Adalat and Another ......... Date of Order : 11/09/2008 P R E S E N T HON'BLE MR. JUSTICE H.R.PANWAR Mr. Jagdish Vyas for the petitioner. Mr. R. Bhatnagar for the respondent No.2. BY THE COURT By the instant writ petition under Articles 226 and 227 of the Constitution of India, judgment Annex.9 dated 23.10.2007 passed by respondent No.1 Permanent Lok Adalat, Sriganganagar has been assailed by the petitioner. The facts and circumstances giving rise to the instant writ petition are that the respondent No.2 filed an application being Application No.590/2007 before the respondent No.1 Permanent Lok Adalat, District Legal Services Authority, Sriganganagar (for short 'the Permanent Lok Adalat' hereinafter) 2 under Section 22 (c) of the Legal Services Authorities Act, 1987 (for short 'the Act of 1987' hereinafter) raising a claim of Rs. 4,30,800/- on the ground that jeep owned by respondent No.2 bearing No.RJ-22/T-1172 (Bolero Jeep) Model 2003 and was got insured comprehensively with the petitioner ICICI Lombard Gen. Insurance Co. Ltd. (for short 'the Insurance Company” hereinafter) for the period from 20.01.2007 to 19.01.2008. The said jeep met with an accident and has gone in total loss and therefore, the respondent No.2 claimed amount of insurance cover amounting to Rs. 4,30,800/-. The claim was repudiated by the insurance company and therefore, the respondent No.2 registered owner of the vehicle filed an application under Section 22 (c) of the Act of 1987 before the respondent No.1 and by judgment and order impugned Annex.9 dated 23.10.2007, the respondent No.1 the Permanent Lok Adalat held that the jeep in question has gone in total loss on account of accident and the respondent No.2 insured is entitled for a sum of Rs. 4,30,800/- from the petitioner insurance company as insurance cover of the said jeep along with interest @ 9% p.a. with effect from 20.04.2007 till actual payment. Apart from this, a sum of Rs. 20,000/- was awarded for the mental and economic sufferings including litigation expenses. Hence this writ petition. I have heard learned counsel for the parties. It is contended by learned counsel for the petitioner 3 that the sitting capacity of the jeep insured by the insurance company is seven persons including its driver, whereas at the time of accident on 28.1.2007 when the said jeep met with the accident as it collided with a bus, the jeep in question was carrying 10 passengers, out of which as many as two passengers and driver of the jeep died and some of the passengers suffered injuries. According to learned counsel for the petitioner, at the time of accident, the jeep in question was carrying 10 persons including the driver of the jeep and therefore, the jeep was carrying the persons more than permissible sitting capacity of the jeep. Learned counsel for the respondent submits that since the jeep was insured and insurance cover has not been disputed by the petitioner insurance company and the fact that in the road accident the damage to jeep has resulted in total loss, therefore, the insurance company is liable to indemnify the insured to the extent of total loss suffered by him and insured by the petitioner insurance company. Learned counsel for the petitioner has relied on decision of the Hon'ble Supreme Court in B.V.Nagaraju Vs. Oriental Insurance Co. Ltd. 1996 ACJ 1178, in National Insurance Co. Ltd. Vs. Anjana Shyam and Others (2007) 7 SCC 445, in National Insurance Co. Ltd. Vs. Laxmi Narain Dhut MACD 2007 (1) (SC) 472 and a decision of this Court in National 4 Insurance Company Ltd. Vs. Smt. Radha Bai and Ors. 2005 R.A.R. 294 (Raj.). In B.V. Nagaraju Vs. Oriental Insurance Co. Ltd. (supra), the Hon'ble Supreme Court observed as under :- “It is plain from the terms of the insurance policy that the insured vehicle was entitled to carry 6 workmen, excluding the driver. If those 6 workmen when travelling in the vehicle are assumed not to have increased any risk from the point of view of the insurance company on occurring of an accident, how could those added persons be said to have contributed to the causing of it is the poser, keeping apart the load it was carrying. Here, it is nobody's case that the driver of the insured vehicle was responsible for the accident. In fact, it was not disputed that the oncoming vehicle had collided head-on against the insured vehicle, which resulted in the damage. Merely by lifting a person or two, or even three, by the driver or the cleaner of the vehicle, without the knowledge of owner, cannot be said to be such a fundamental breach that the owner should, in all events, be denied the indemnification. The misuse of the vehicle was somewhat irregular though, but not so fundamental in nature so as to put an end to the contract, unless some factors existed which, by themselves, had gone to contribute to the causing of the accident. In the instant case, however, we find no such contributory factor. The Hon'ble Supreme Court relied on its earlier decision in Skandia Insurance Co. Ltd. Vs. Kokilaben Chandravadan 1987 ACJ 411 (SC) wherein it has been observed by the Hon'ble Supreme Court as under:- “...When the option is between opting for a view which will relieve the distress and misery of the victims of accidents or their dependents 5 on the one hand and the equally plausible view which will reduce the profitability of the insurer in regard to the occupational hazard undertaken by it, by way of business activity, there is hardly any choice. The court cannot but opt for the former view. Even if one were to make a strictly doctrinaire approach, the very same conclusion would emerge in obeisance to the doctrine of 'reading down' the exclusion clause in the light of the 'main purpose' of the provision so that the 'exclusion clause' does not cross swords with the 'main purpose' highlighted earlier. The effort must be to harmonize the two instead of allowing the exclusion clause to snipe successfully at the main purpose.” In National Insurance Co. Ltd. Vs. Anjana Shyam and Others (supra), while considering the provisions of Sections 147 (1) (b) (ii) & 2, 146, 149 (1), (2) & (5), 58, 72, 86 and Section 166 of the Motor Vehicles Act, 1988 and applying harmonious construction, the Hon'ble Supreme Court held that proper course for quantification of compensation payable by the insurer in a case where the insured passengers and other passengers could not be identified, insurance company bound to cover and accordingly deposit higher of the amounts of compensation awarded. In that case, a bus bearing Registration No.HP 06, 1245 was insured having capacity of carrying 42 passengers, one driver and one conductor. The bus was insured with the insurance company for 42 passengers. The said bus met with an accident while it was carrying at least 90 passengers resulting in death of 26 persons and injuries to 63 persons. The legal 6 representatives of deceased persons as well as the injured therein filed the claim petitions before MACT claiming compensation. The question came up for consideration before Hon'ble Supreme Court was as to whether the insurance company is liable to indemnify the insured to the extent of number of passengers insured or all the passengers carried in the vehicle. The Apex Court held that the insurance company is liable to indemnify the insured to the extent of number of persons insured i.e. 42 passengers, one driver and one conductor, however, made it clear that the insurance company would satisfy the higher amount of awards out of various claims awarded by the Motor Accident Claims Tribunal. In the instant case, the controversy is altogether different. It is not the case that the respondent No.2 claimed the damages caused to the occupants of the jeep. The claim before the Permanent Lok Adalat was for the recovery of own damages by the insured since the vehicle in question was comprehensively insured by the petitioner. In National Insurance Co. Ltd. Vs. Laxmi Narain Dhut (supra), while considering the claims other than third party and liability of the insurer, the Hon'ble Supreme Court held that there being no contractual relation between the Insurance Company and the third party, the benefit qua the third party cannot be 7 extended to the owner of offending vehicle. In National Insurance Company Vs. Smt. Radha Bai and Ors. (supra) this Court observed as under :- “Thus, to say the least, Hon'ble the Supreme Court has in very categoric terms held, that carrying passengers, more than the number specified in the permit, will not be a violation of the purpose for which the permit is granted.” The decisions relied on by learned counsel for the petitioners in National Insurance Company Ltd. Vs. Anjana Shyam and Others (supra), in National Insurance Co. Ltd. Vs. Laxmi Narain Dhut (supra) and in National Insurance Company Vs. Smt. Radha Bai and Ors. turn on their own facts and are of no help to the petitioner. The controversy involved in the instant case has been concluded and answered by the Hon'ble Supreme Court in para 7 of the Report in B.V. Nagaraju Vs. Oriental Insurance Co. Ltd. (supra) wherein considering the similar controversy, the Hon'ble Supreme Court held that carrying persons more the capacity in vehicle cannot be said to be such a fundamental breach that the owner should, in all events, be denied indemnification. The facts of B.V. Nagaraju Vs. Oriental Insurance Co. Ltd.'s case and the instant case are almost similar. 8 In that case, according to terms of the insurance policy, the insured vehicle was entitled to carry six workmen excluding the driver. If those six workmen when travelling in the vehicle are assumed not to have increased any risk from the point of view of the insurance company on occurring of an accident, how could those added persons be said to have contributed to the causing of it is the poser. In the instant case, as per the insurance policy issued by the petitioner insurance company as also the Registration Certificate and the permit, the sitting capacity of the Bolero jeep is seven persons including the driver, meaning thereby 6+1 as was in the case of B.V. Nagaraju Vs. Oriental Insurance Co. Ltd. The said jeep said to have collided with a bus and resulted in total loss. The vehicle was comprehensively insured with the petitioner and when it has resulted in total loss, it is the petitioner insurance company who is to make good of the loss caused to the owner of the vehicle as by insurance contract, the insurance company has undertaken to make good all the loss within permissible limit of the insurance. The permissible limit of the insurance in the instant case was 4,30,800/- and since the vehicle has resulted in total loss and therefore, the respondent No.2 was entitled to make good of his loss under the cover of policy. Even assuming the contention raised by learned counsel for the petitioner that at the relevant time of accident, instead of seven persons there were 10 persons 9 and may be three persons in excess of the sitting capacity, but it cannot be said that by carrying three persons in excess of sitting capacity, those three persons have contributed anything in happening of the accident and therefore, in my view, the respondent No.1 was justified in passing the order impugned in view of the decision of the Hon'ble Supreme Court in B.V. Nagaraju Vs. Oriental Insurance Co. Ltd. (supra). In this view of the matter, I do not find any merit in the writ petition and the writ petition is therefore, dismissed. No order as to costs. (H.R.PANWAR), J. rp 10 S.B.CIVIL MISC. STAY PETITION NO. 11105/08 IN S.B.CIVIL WRIT PETITION NO. 6308/2008 Date of Order : 11/09/2008 P R E S E N T HON'BLE MR. JUSTICE H.R.PANWAR Mr. Jagdish Vyas for the petitioner. Mr. R. Bhatnagar for the respondent No.2. Since the writ petition itself has been dismissed, the stay petition also stands dismissed. (H.R.PANWAR), J. rp