National Consumer Disputes Redressal
Divisional Manager, National ... vs Pravinbhai D. Prajapati on 9 November, 2010
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION
NEW DELHI
REVISION PETITION NO. 3130 OF 2006
(Against
the order dated 30.06.2006 in Civil Misc. Application No. 312/2006 of the State Commission, Gujarat)
Divisional Manager,
National Insurance Co. Ltd.
Arogiyanager
Himantnager
Sabarkantha District
.Petitioner
Versus
Pravinbhai D. Prajapati
Bankor,
Himantnager
District- Sabarkantha .........Respondent
BEFORE:
HON'BLE
MR. JUSTICE R.K. BATTA, PRESIDING MEMBER
HONBLE
MR. VINAY KUMAR, MEMBER
For the Petitioner
: Mrs.
Pankaj Bala Varma, Advocate
For the Respondent: NEMO
PRONOUNCED
ON 9.11.2010
ORDER
PER MR.VINAY KUMAR, MEMBER
1. The facts on record are that the Complainant had insured his TATA-407 vehicle with the respondent in January 2001 for a sum of Rs.2 lakhs. This vehicle met with an accident in May 2001. The estimates for repairs showed a requirement of Rs.1,35,370/- which was assessed by the surveyor appointed by the insurance company. The surveyor recommended Rs.68,610/- as the net payable amount. But, the National Insurance Co. sent him an offer for only Rs.47,600/-, in settlement of the claim on non-standard basis, on the ground that at the time of the accident of this vehicle, there were extra passengers sitting in it. When this offer was not accepted by the complainant, the Insurance Co closed it as a no claim case.
2. The District Forum, Himmat Nagar Sabarkantha, considered the claim of Rs.1,23,000/- made by the Complainant and directed the Insurance Co. to pay the total repair bill of Rs.98,860/-, with 6% interest and compensation of Rs.2,000/-. The District Forum held that medical reports of only 4 persons were presented and that the Insurance Co was not able to prove that the vehicle was illegally carrying more passengers, at the time of the accident.
3. In the appeal before the Gujarat State Commission, it was argued that there were 9 persons in the vehicle at the time of the accident. The State Commission held that the number of persons was not relevant to the cause of accident. The State Commission therefore concluded that there was no point involved for decision in the appeal. It dismissed the appeal, along with the application for condonation of delay and upheld the order of the District Forum. The Revision petition before us is against this order of the State Commission.
4. In the RP, the main issue raised pertains to the allegation that 9 persons traveling in the vehicle was a matter in clear breach of the policy condition. As per the policy, besides the driver, not more than 6 persons could travel in it.
Counsel for the RP argued that 2 persons had died and 4 were injured in this accident. Therefore, it needs to be viewed as a fundamental breach.
5. It is not the case of the Revision Petitioner that the vehicle at the time of accident was being driven by a person not authorized to drive light goods vehicle. The question therefore, gets limited to the number of persons traveling in it. We have already referred to the observation of the District Forum in this regard.
6. Counsel for the revision petitioner has cited the ruling of the Honble Supreme Court of India in National Insurance Co. Limited Vs. Kaushalaya Devi and Ors., (2008) 8 SCC 246. This was a case in which the son of the complainant had died in a truck accident.
The objections taken were that the Driver did not possess a valid licence and that the deceased was traveling as an unauthorized person on the truck, which was a goods carriage. The Tribunal had awarded a compensation of Rs.1,18,000/-. In the appeal, the High Court held that the driver did not have a valid driving licence and therefore, the insurance company was wrongly held liable to pay compensation. The High Court also accepted the plea of the Insurance Company that the deceased was an unauthorized person. The Supreme Court upheld the judgment of the High Court and observed that in view of its findings, the owner alone should be liable to pay compensation to the complainant for the death of her son caused by rash and negligent driving on the part of the driver of the truck.
7. It is clear from the above that the matter was considered by Honble Supreme Court of India in the context of liability of the insurer towards the deceased who was an unauthorized traveler in the truck at the time of the accident. The issue in the case before us is very different and relates to the rights, not of a third party but, of the insured himself, under the policy. The issue is whether the insurance company can rely upon presence of certain others in the vehicle at the time of the accident to deny the claim of the insured to get the repair cost of the vehicle. In other words, would it constitute such a fundamental breach of the terms of the policy as to justify denial of full benefits thereunder. The law in this behalf has been laid down by Honble Supreme Court of India, in B.V. Nagaraju Vs. Oriental Insurance Company Ltd., Divisional Officer, Hassan, (1996) 4 SCC 647 as the Doctrine of Fundamental Breach. It was held that:
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 traveling 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. In the present case the driver of the vehicle was not responsible for the accident.
Merely by lifting a person or two, or even three, by the driver or the cleaner of the vehicle, without the knowledge of the owner, cannot be said to be such a fundamental breach that the owner should, in all events, be denied 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.
8. We therefore agree with the view of the State Commission that allowing a few more persons to travel is hardly relevant to the cause of the accident and should not disentitled the complainant to receiving full compensation under the policy, if otherwise eligible. Accordingly, the revision petition against concurrent findings of the District Forum and State Commission, is dismissed. The parties to bear their own costs.
(R.K BATTA, J) ( PRESIDING MEMBER) ..
(VINAY KUMAR) MEMBER Sj/-