State Consumer Disputes Redressal Commission
The Oriental Insurance Company Limited vs Harendra Singh Kanwasi on 24 May, 2011
STATE CONSUMER DISPUTES REDRESSAL COMMISSION UTTARAKHAND
DEHRADUN
FIRST APPEAL NO. 210 / 2010
The Oriental Insurance Company Limited
through its Senior Divisional Manager
Divisional Office, 47, Rajpur Road
Dehradun
......Appellant / Opposite Party
Versus
Sh. Harendra Singh Kanwasi S/o late Sh. Vijay Singh Kanwasi
R/o Village Bunga, Post Kanswa
Presently R/o Pal Bhawan, Chamoli
Tehsil and District Chamoli
......Respondent / Complainant
Sh. Suresh Gautam, Learned Counsel for the Appellant
Sh. G.S. Bisht, Learned Counsel for Respondent
Coram: Hon'ble Justice B.C. Kandpal, President
C.C. Pant, Member
Smt. Kusum Lata Sharma, Member
Dated: 24/05/2011
ORDER
(Per: C.C. Pant, Member):
This appeal is directed against the order dated 11.03.2010 passed by the District Forum, Chamoli, allowing consumer complaint No. 36 of 2007 and directing the opposite party - The Oriental Insurance Company Limited to pay to the complainant sum of Rs. 1,21,581/- towards indemnification of the loss suffered by him on account of accident of his vehicle; Rs. 1,000/- as compensation for mental agony and financial loss and Rs. 1,000/- towards litigation expenses within a month from the date of the order, failing which the opposite party shall be liable to pay interest @6% p.a. on the above amount from the date of filing of the consumer complaint till the date of actual payment.2
2. The facts of the case, in brief, are that the complainant Sh. Harendra Singh Kanwasi is the registered owner of a maxi cab bearing registration No. UA07-N-1847. The said vehicle was comprehensively insured with The Oriental Insurance Company Limited for the period from 12.05.2006 to 11.05.2007 for sum of Rs. 4,32,982/-. The said vehicle met with an accident on 25.08.2006 due to some mechanical fault and got badly damaged. When the complainant preferred a claim with the insurance company, it was repudiated on the ground that the vehicle was carrying 14 passengers as against the permitted seating capacity of 10 passengers and, hence, the complainant had committed breach of the policy conditions and has also violated the provisions of the Motor Vehicles Act, 1988. This led the complainant to file a consumer complaint before the District Forum, Chamoli. The District Forum, after an appreciation of the facts of the case in the light of its legal aspect, allowed the consumer complaint vide order dated 11.03.2010 in the above manner. Aggrieved by the said order, the insurance company has filed this appeal.
3. We have heard the learned counsel for the parties and perused the material placed on record.
4. The main plea of the insurance company in justification of the repudiation of the claim is that the said vehicle was overloaded at the time of the accident. Learned counsel for the appellant submitted that the District Forum has ignored this fact though it was well proved by the report of the investigator deputed by the appellant and also from the police report. He also submitted that the District Forum failed to consider the surveyor's report wherein the surveyor has assessed the loss at Rs. 79,500/-. Instead, the District Forum has awarded an 3 amount of Rs. 1,21,581/- without giving any reason as to why the surveyor's report was not acceptable.
5. The learned counsel for the complainant - respondent reiterated the facts of the case as stated in the consumer complaint and argued that law laid down by the Hon'ble Supreme Court in such cases is that by allowing one or two extra persons in the vehicle, the contract of insurance can not be put to an end. Learned counsel referred a decision of the Hon'ble National Commission in the case of P.B. Venkata Reddy Vs. New India Assurance Company Limited; 2009 (2) UC 1346, wherein the Hon'ble National Commission while relying on the Hon'ble Apex Court's decision in the case of B.V. Nagaraju Vs. Oriental Insurance Company Limited; 1996 (4) SCC 647, has held that mere one or two extra passengers in the vehicle, can not be construed as violation of the policy conditions.
6. We considered the submission made by the learned counsel for the parties. There is no dispute in respect of the accident and the vehicle's insurance. Though the complainant has stated that there was no extra passenger in the vehicle, but the FIR, police report and investigator's report indicate that there were 14 passengers including the driver in the vehicle at the time of the accident as against the permitted seating capacity of 10 persons including the driver. Thus, there were 40% more passengers in the vehicle. Further, the ratio of the decision of the Hon'ble Apex Court in the case of B.V. Nagaraju (supra) shall not apply in this case because the Hon'ble Apex Court has itself distinguished it in the case of National Insurance Company Limited Vs. Laxmi Narain Dhut; III (2007) CPJ 13 (SC), holding that the decision in the case of B.V. Nagaraju (supra), is in respect of third party risk and it will not apply in an own damage case. Therefore, we are of the view that the District Forum has failed 4 in appreciating the legal aspect of the case and, thus, the impugned order is not sustainable. Since there were 40% more passengers in the vehicle, the appellant has rightly repudiated the complainant's claim on the ground that he had committed breach of the policy conditions and had violated the terms of the permit and provisions of the Motor Vehicles Act, 1988. Thus, the impugned order suffers from legal infirmity and is liable to be set aside.
7. For the reasons aforesaid, appeal is allowed. Order impugned dated 11.03.2010 of the District Forum is set aside and consumer complaint No. 36 of 2007 is dismissed. No order as to costs.
(SMT. KUSUM LATA SHARMA) (C.C. PANT) (JUSTICE B.C. KANDPAL) K