State Consumer Disputes Redressal Commission
Amrita Devi & Ors. vs Bajaj Allianz General Insurance on 6 July, 2012
BEFORE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM SOLAN, H H.P. STATE CONSUMER DISPUTES REDRESSAL COMMISSION, SHIMLA. First Appeal No.14/2011. Date of Decision: 06.07.2012. .... 1. Amrita Devi Wd/o late Shri Santosh Kumar, R/O Village Gagwana, Post Office Chuku, Tehsil Padhar, District Mandi, H.P. 2. Shivani (minor) daughter of late Shri Santosh Kumar, 3. Akshaya Kumar S/o late Shri Santosh Kumar, Respondents No.2 & 3, being minor, through their mother, Smt. Amrita Dev, Natural Guardian and next friend. Appellants. Versus Bajaj Allianz General Insurance, Through its Branch Manager, Branch Mandi, District Mandi, H.P. Respondent. .................................................................................................... Coram Honble Mr. Justice (Retd.) Surjit Singh, President Honble Mr. Chander Shekhar Sharma, Member
Honble Mrs. Prem Chauhan, Member.
Whether approved for reporting?[1] yes For the Appellants: Mr. Vikas Bhardwaj, Advocate.
For the Respondent: Mr. Suryadeep Thakur, Advocate vice Mr. Chandan Goel, Advocate.
O R D E R:
Justice (Retd.) Surjit Singh, President (Oral) Appellants are aggrieved by the order dated 10th December, 2010, of learned District Consumer Disputes Redressal Forum, Mandi, whereby a complaint, under Section 12 of the Consumer Protection Act, 1986, filed by them against respondent Bajaj Allianz General Insurance, seeking issuance of a direction to the respondent to pay insurance claim for damage to the insured vehicle, has been dismissed.
2. Appellants owned a vehicle, which was registered as a taxi. Vehicle had the capacity to carry 9 passengers and a driver. Vehicle was insured with the respondent, inter alia, for own damage. It met with an accident on 15.10.2008, when the insurance policy was still in force and was extensively damaged. Driver of the vehicle and 9 other persons on board the vehicle died. Appellants apprised the respondent of the accident. After investigation, the respondent repudiated the claim on the plea that there were 27 persons on board the vehicle at the time when the accident took place.
3. Appellants then filed a complaint, under Section 12 of the Consumer Protection Act, 1986. It was contested by the respondent mainly on the ground that the vehicle was being driven in violation of the terms and conditions of the policy, as also the law, inasmuch as, there were 27 persons on board the vehicle against the permissible capacity of 10 persons, when the accident took place. Learned District Forum upheld the respondents plea and dismissed the complaint.
4. Appellants have moved an application for additional evidence. Evidence, which is sought to be adduced, consists of the award of learned Motor Accident Claims Tribunal (I) Mandi, certified copy of which has been submitted along with the application. By this award, the learned Motor Accident Claims Tribunal (I) Mandi, has rejected respondents plea that there were more passengers than the prescribed limit, on board the vehicle, when the accident took place. Though, the prayer is opposed by the respondent, we allow the application since the award has been passed by learned Motor Accident Claims Tribunal (I) Mandi, after the passing of the impugned order, by the learned District Forum and it has got some relevance. Application stands disposed of. Award shall be looked into as a piece of evidence in deciding the appeal.
5. As regards the appeal, learned counsel representing the appellants submits that it was humanly impossible to carry 27 persons in the vehicle, which had the capacity to accommodate only 10 persons, including the driver and in support of this submission, he places reliance upon the award of the learned Motor Accident Claims Tribunal (I) Mandi, in which an observation like this has been made. This observation by the learned Motor Accident Claims Tribunal (I) Mandi is hypothetical. We have on record of the learned District Forum definite and substantive evidence that there were 27 persons on board the vehicle. This evidence is in the form of admission of one of the appellants, namely Amrita Devi. In the insurance claim form, which she submitted to the respondent and which is available at pages 193 to 194 of the record of learned District Forum, she herself stated that there were 27 persons on board the vehicle and that 9 of them died and others had been injured and were undergoing treatment.
6. Learned counsel representing the appellants submits that this claim form cannot be used as admission on the part of the appellants, as according to him, Amrita Devi was not present on the spot when the accident took place and was, therefore, unaware of the exact number of persons travelling by the vehicle and also that her statement to this effect in the application form is based upon the F.I.R.
7. Admission is a statement made by a party against its own interests and it is a piece of substantive evidence. Opposite party is not supposed to lead any evidence indicating that the party making the admission had been in the know of the fact admitted in the admission. The party making the admission itself can retract saying that the admission had been made under some mistaken belief, which is not the case here.
8. As regards the statement that the admission is based upon the contents of the F.I.R., suffice it to say that in the F.I.R. it is nowhere stated that there were 27 persons on board the vehicle. According to the F.I.R., there were 25-30 persons. Otherwise also, in view of the above stated legal position with regard to the evidentiary value of the admission, the submission is without substance.
9. Next, it is submitted that nothing has come on record indicating that overloading of the vehicle had any nexus with the accident. It is stated that unless nexus between the breach of condition of policy and the accident is established, insurance claim cannot be repudiated. Reliance is placed in support of this contention upon a judgment of the Honble Supreme Court in B.V. Nagaraju versus M/s. Oriental Insurance Company Limited, AIR 1996 Supreme Court 2054. Aforesaid judgment was rendered by the Honble Supreme Court in a case of third party claim under the Motor Vehicles Act. Also, it was a case of carrying of human beings in a goods carrier, and not a case of overloading.
10. In the present case, against the fixed capacity of 10 passengers, there were 27 passengers on board the vehicle and thus this was not only a case of just overloading, but loading almost three times the permitted number. The very fact that the number of passengers was almost three times the permissible limit is suggestive that the case of the accident was most likely the overloading of the vehicle.
11. Otherwise also, law especially in respect of own damage claims, for which insurance is obtained not by virtue of the mandate of any statute, but because of the volition of the parties, has undergone a sea change. There are several precedents of the Honble Supreme Court & the Honble National Consumer Disputes Redressal Commission that where there is violation of the terms and conditions of the policy and the breach of law, insurer shall be justified in repudiating the claim. Reference in this behalf may be made to a precedent of Honble National Consumer Disputes Redressal Commission, New Delhi, in case New India Assurance Company Ltd. versus Pawan Kumar Takkar, First Appeal No.288/2005, decided on 29.01.2010. This was a case, where 17 persons in excess of the prescribed limit, were on board the vehicle and the claim was repudiated by the insurer on this ground. Honble National Consumer Disputes Redressal Commission held that the insurer was not liable to indemnify the insured for own damage.
12. A similar view has been taken by the Honble National Consumer Disputes Redressal Commission in Revision Petition No. 4055 of 2010, New India Assurance Company Ltd. versus Smt. Meera Banolta, decided on 11th April, 2011. Honble Supreme Court, in case Oriental Insurance Co. Ltd. versus Sony Cheriyan, AIR 1999 Supreme Court 3252, upheld the insurers plea that it cannot be made liable to indemnify the insured where the vehicle was found to be carrying certain material in violation of the terms and conditions of the policy.
13. Another submission made on behalf of the appellants is that the claim should be treated as non-standard and atleast 75% of the amount of loss sustained by the appellants, on account of damage to the vehicle, be ordered to be paid. This submission can also not be accepted in view of the precedent set by the Honble National Consumer Disputes Redressal Commission, New Delhi, in Meera Banoltas case, referred to hereinabove.
14. Consequently, the appeal is dismissed.
15. One copy of this order be sent to each of the parties, free of cost, as per Rules.
(Justice Surjit Singh) President (Chander Shekhar Sharma) Member (Prem Chauhan) Member July 06, 2012.
N Mehta} [1] Whether reporters of the local papers may be allowed to see the order?