State Consumer Disputes Redressal Commission
Jeet Singh Bagga vs B.M. The New India Insurance Co.Ltd. on 10 October, 2017
CHHATTISGARH STATE
CONSUMER DISPUTES REDRESSAL COMMISSION,
PANDRI, RAIPUR (C.G.)
Complaint Case No.CC/2017/47
Instituted on : 09.05.2017
Jeet Singh Bagga, Aged about 62 years,
S/o Late Trilok Singh Bagga,
R/o : Sai Travels, New Bus Stand,
Raipur, Tehsil & District Raipur (C.G) ... Complainant.
Vs.
Branch Manager,
The New India Assurance Company Limited,
Talk Tower, Above Karnataka Bank, Jail Road,
Raipur (C.G.) ... Opposite Party
PRESENT: -
HON'BLE SHRI JUSTICE R.S. SHARMA, PRESIDENT
HON'BLE SHRI D.K. PODDAR, MEMBER
HON'BLE SHRI NARENDRA GUPTA, MEMBER
COUNSEL FOR THE PARTIES:
Shri Pradeep Upadhyay, Advocate for the complainant.
Shri Shekhar Amin, Advocate for the opposite party.
ORDER
Dated : 10/October/2017 PER :- HON'BLE SHRI JUSTICE R.S. SHARMA, PRESIDENT. The complainant filed this consumer complaint under Section 17 of the Consumer Protection Act, 1986 against the O.P. seeking following reliefs :-
(A) The opposite party be directed to pay a sum of Rs.12,93,414/- (Rupee Twelve Lakhs Ninety Three Thousand Four Hundred and Fourteen) which was incurred by the complainant in repairing of the vehicle.
(B) The O.P. be directed to pay a sum of Rs.8,00,000/- (Rupees Eight Lakhs) towards loss of profit.
// 2 // (C) The O.P. be directed to pay a sum of Rs.2,00,000/- (Rupees Two Lakhs) to the complainant towards compensation for mental agony.
(D) To direct the O.P. to pay a sum of Rs.20,000/- (Rupees Twenty Thousand) towards cost of litigation.
(E) To direct the O.P. to pay interest @ 10% p.a. on the above amount from the date of accident till date of realisation.
2. Briefly stated the facts of the complaint of the complainant are that the complainant is doing transport business in the name and style Sai Travels. The complainant obtained insurance policy from the O.P. for his vehicle Mini Bus bearing registration No. C.G.04-E-1767. The complainant also obtained permit and the said vehicle was being operated from Raipur to Padampur (Orissa). On 25.11.2013, at about 1.30 P.M., the wheels of the bus came into pit, due to which the main Kamani Patta had broken and the bus dashed with a tree and was turtle. At the time of accident, the complainant was having permit of vehicle and driver of the vehicle in question was having valid and effective driving licence. Due to turtle of the vehicle, near about 13 passengers along with conductor had died and 4-5 passengers had sustained injuries and they were taken to Government Hospital, Mahasamund for treatment. The Collector, Mahasamund gave a sum of Rs.1,00,000/- each to family members of the deceased persons and Rs.10,000/- each to the injured persons towards compensation. The vehicle was completely damaged in the accident. The complainant // 3 // obtained the vehicle on Supurdnama which took 6 month's time. Thereafter, the complainant obtained estimate of Rs.12,93,414/-, which was submitted by the complainant before the O.P. along with claim form. Rajkumar Sharma, was appointed by the O.P. as Surveyor. The complainant informed the Surveyor that his financial condition is not good, therefore he requested that 75%iof the estimated amount be given to him for repairing work, but the O.P. did not consider on the above request of the complainant, therefore, after taking loan from outside, the complainant got repaired his vehicle, which took time of near about 1 years. The complainant suffered loss to the tune of Rs.8,00,00/-. The O.P. repudiated the claim of the complainant on false ground that 13 persons had died, 22 persons had sustained injuries and 35 persons were sitting in the vehicle at the time of accident, where sitting capacity of the vehicle is only 31 including driver. The ground taken by the O.P. for repudiating claim of the complainant is erroneous. The complainant suffered incurred a sum of Rs.12,93,414/- in repairing of the vehicle. The complainant suffered mental agony. Hence the complainant filed instant complaint and prayed for granting reliefs as prayed by him in the relief clause of the complaint.
3. The O.P. filed its written statement and averred that the vehicle in question was being driven by driver rashly and negligently and at the time of accident, near about 35 passengers were travelling in the vehicle in question. In the accident 13 persons along with conductor were died and 22 persons were injured. The accident took place on // 4 // 25.11.2013 whereas the complainant intimated the O.P. regarding the accident on 02.09.2014 i.e. after lapse of 10 months. The chargesheet as filed before Judicial Magistrate, Second Class, Mahasamund. From perusal of charge sheet, it appears that 13 persons were died and 22 persons were injured in the accident. It appears that the vehicle was overloaded. The intimation regarding the accident was given by the complainant belatedly. Rajkumar Sharma, Surveyor assessed the loss to the tune of Rs.4,38,164/-. If any liability, is established against the O.P., then the O.P. is only liable to pay Rs.4,38,164/- to the complainant. The O.P. has rightly repudiated the claim of the complainant and by doing so, it did not commit any deficiency in services.
4. The complainant has filed documents. Annexure 1 is Certificate of Registration of vehicle bearing registration No.C.G.04-E- 1767, Annexure 2 is Certificate of Fitness, Annexure 3 is Policy Schedule Cum Certificate of Insurance - Commercial Vehicle Package Policy, Annexure 4 is Temporary Permit, Annexure 5 is driving licence of driver, Annexure 6 is Motor Claim Form, Annexure 7 is time table of running of bus, Annexure 8 is Memorandum dated 26.06.2014, Annexure 9 is letter dated 10.01.2015 sent by Rajkumar Sharma, Surveyor to the Divisional Manager, The New India Assurance Co. Ltd., Divisional Office No.1, Raipur (C.G.), Annexure 10 is letter dated 25.07.2016 sent by the complainant to the Divisional Manager, Divisional Office, The New India Assurance Co. Ltd. Raipur (C.G.), // 5 // Annexure 11 is letter dated 20.09.2016 sent by the complainant to the Divisional Manager, The New India Assurance Co. Ltd., Raipur (C.G.), Annexure 12 are Estimate of Accidental Vehicle No.C.G.04-E-1767 dated 29.08.2014 and bills etc., Annexure 13 is letter dated 19.12.2016 sent by Sr. Divisional Manager, The New India Assurance Co. Ltd. Divisional Office No.1, Raipur to the complainant, Annexure 14 is letter dated 27.02.2017 sent by Tehsildar and Public Information Officer, Mahasamund, Annexure 14A is letter dated 03.02.207 sent by Deputy Collector, Mahasamund to Tahsildar and Public Information Officer, Mahasamund, Annexure 14B is letter dated 28.11.2013 sent by Under Secretary Chief Minister, Raipur, Annexure 15 is Pollution Under Control Certificate, Annexure 16 is Interstate Bus Permit issued by The Transport Commissioner Cum Chairman State Transport Authority, Odisha.
5. The O.P. has also filed documents. The documents are Motor (Final) Surveyor Report dated 19.06.2016 of Rajkumar Sharma, Surveyor, Policy Schedule Cum Certificate of Insurance, copy of challan etc.
6. Shri Pradeep Upadhyay, learned counsel appearing for the complainant has argued that the complainant is registered owner of vehicle bearing registration No.C.G.04-E-1767, which was insured with the O.. The complainant was having permit, fitness of the vehicle in question and the driver of the vehicle was having valid and effective driving licence. On 25.11.2013, at about 1.30 P.M., the wheels of the // 6 // vehicle came into pit due to which the main Kamani Patta had broken and bus dashed with a tree and was turtle. Due to turtle of the vehicle 13 passengers along with conductor had died and 4-5 passengers sustained injuries. The intimation regarding the accident was given to the O.P. The vehicle was seized by the Police and the vehicle was obtained in Supurdginama. The Court proceedings took 6 months time and after obtaining the vehicle on Supurdginama, the complainant obtained estimate of repairing of Rs.12,93,414/-. Due to want of money, the complainant was not able to got repair the vehicle, therefore, he requested the O.P. to give 75% of the insured amount in advance, but the O.P. did not consider the above request of the complainant. The repairing of the vehicle took one year time. The complainant suffered financial loss of Rs.8,00,000/-. The complainant submitted claim before the O.P., but the O.P. repudiated the claim of the complainant on false ground. The O.P. falsely pleaded that 35 passengers were sitting in the bus at the time of accident, whereas only 18 passengers were travelling in the bus at the time of accident, therefore, the repudiation of claim of the complainant by the O.P. is erroneous. The complainant is entitled to get compensation from the O.P., as prayed by the complainant in the complaint.
7. Shri Shekhar Amin, learned counsel appearing for the O.P. has argued that at the time of accident, the vehicle in question was carrying 35 passengers as against 30. The seating capacity of the vehicle is 30. The vehicle was overloaded and due to overloading, // 7 // the vehicle was turtle and accident took place due to negligently and rashly driving of the vehicle by the driver of the vehicle in question. Due to accident, 13 persons had died and 22 persons had sustained injuries. It appears that the complainant violated the terms and conditions of the insurance policy. If this Commission reaches to the conclusion that the complainant is entitled to get compensation from the O.P., then the complainant is only entitled to get Rs.4,38,164/- as assessed by the Surveyor towards loss suffered by complainant, therefore, the complaint is liable to be dismissed.
8. We have heard learned counsel appearing for both the parties and have also perused the documents filed the parties in the complaint case.
9. It is admitted fact that the complainant Jeet Singh Bagga is registered owner of bus bearing registration No.C.G.04-E-1767 and the same was insured with the O.P. for the period from 28.06.2013 to 28.06.2014. The seating capacity including driver is 31. It is also admitted fact that at the time of accident, the complainant was having permit and fitness of the vehicle in question. The complainant also filed driving licence of the driver of the vehicle in question.
10. According to the complainant, on 25.11.2013, the vehicle in question came into pit due to the main Kamani Patta had broker and the bus dashed with a tree and was turtle. In the accident 13 persons had died and 4-5 persons were injured. The complainant did not filed copy of First Information Report and Seizure Memo. Document // 8 // Annexure 14 is a letter dated 27.02.2017 issued by Tahsildar & Public Information Officer, Mahasamund, District Mahasamund (C.G.) in which it is mentioned that information along with list of 13 persons who had died and 4 persons who had injured in the accident happened on 25.11.2013, has been received from Deputy Collector, Mahasamund and the same is sent to the complainant. In document Annexure 14B it is mentioned that :-
**vkids lanfHkZr i= }kjk lwfpr fd;k x;k gS fd egkleqan ftys esa fnukad&25-11-2013 dks gqbZ lM+d nq?kZVuk esa layXu lwph vuqlkj 13 O;fDr;ksa dh e`R;q gks xbZ gS rFkk 04 O;fDr xaHkhj :Ik ls ?kk;r gSaA 02- mijksDr lM+d nq?kZVuk esa e``r gq, izR;sd O;fDr ds ifjokjtuksa dks :- 1]00]000@&¼,d yk[k½ rFkk xaHkhj :Ik ls ?kk;y izR;sd O;fDr dks :- 10]000@&¼nl gtkj½ dh vkfFkZd lgk;rk jkf'k eq[;ea=h lgk;rk dks"k Lohd`r dh xbZ gSA Lohd`r jkf'k ds Hkqxrku gsrq Hkkjrh; LVsV cSad] ea=ky; ifjlj] jk;iqj dk /kukns'k dzekad&723289 fnukad&28-11-13 jkf'k&6]70]000@&¼N% yk[k lRrj gtkj½ ,oa /kukns'k dekad&723290 fnukad&28-11- 2013 jkf'k&6]70]000@&¼N% yk[k lRrj gtkj½ dqy jkf'k :-
13]40]000@&¼rsjg yk[k pkyhl gtkj½ ek= layXu iszf"kr gSA 03- mijksDr Lohd``r jkf'k e`rd ds oS/k okfj'kksa ,oa ?kk;yksa dks ns; gksxhA 04- d``Ik;k /kukns'k izkfIr dh vfHkLohd`fr HkstsaA lkFk gh lgk;rk jkf'k dk Hkqxrku djkdj ikorh bl dk;kZy; dks miyC/k djkus dk d"V djsaA** // 9 //
11. On the basis of above documents, the complainant pleaded that at the time of accident only 17 persons were travelling in the vehicle.
12. Both the parties have filed Motor (Final) Survey Report dated 19.06.2016 of Raj Kumar Sharma, Surveyor and Loss Assessor. Raj Kumar Sharma, specifically mentioned in his report that 13 passengers died in this accident and 23 were injured as per spot Surveyor's report observation. The O.P. filed copy of charge sheet in which name of deceased and injured persons, were mentioned. According to the charge sheet 13 persons had died and 22 persons had sustained injuries.
13. Looking to the charge sheet filed by Police Station, Patewa, District Mahasamund (C.G.) before concerned Magistrate, prima facie it is established that in the accident dated 25.11.2013, 13 passengers had died and 22 passengers had sustained injuries. It shows that at the time of accident near about 35 persons were travelling the vehicle in question. According to the Certificate of Registration, Permit and Insurance Policy, the seating capacity of the vehicle is 31 including driver.
14. The complainant filed Annexure 8, which is memo issued by Chief Judicial Magistrate, Masamund to Police Station, Patewa. On the basis of above Memo, the vehicle bearing registration No.C.G.04-E- 1767 was given to the complainant on Supurdginama on 26.06.2014 The vehicle was seized by Police and complainant himself took more than six months time to obtain the vehicle in question on Supurdginama, // 10 // therefore, the O.P. cannot be held liable for delay occurred in getting the vehicle repaired.
15. So far overloading is concerned :-
16. In DARCL Logistics Ltd. s. ICICI Lombard GIC Ltd. & Others, II (2016) CPJ 620 (NC), Hon'ble National Commission has observed thus :-
"Sanctioned carrying capacity of vehicle was 49 MT whereas load was 242 MT at time of accident - Such abnormal overloading will be cause of an accident and violates provisions of insurance policy - It will be encouraging those, who believe in overloading vehicle and care not even a fig for serious accidents - State Commission had taken correct view and had not granted any amount."
17. But, in Lakhmi Chand Vs. Reliance General Insurance , II (2016) CPJ 3 (SC), Hon'ble Supreme Court has observed that "Accident was caused on account of rash and negligent driving of offending vehicle. FIR under Sections 337, 338, 304A and 427 of IPC registered against driver of vehicle. Insurance Company not produced any evidence on record to prove that accident occurred on account of overloading of passengers in goods carrying vehicle. For the insurer to avoid liability, breach of policy must be so fundamental in nature that it brings contract to an end. Violation of policy conditions not established. Repudiation not justified."
18. In Oriental Insurance Company vs. Girbar Sinh Nandwanshi & Anr. 2015 (3) CPR 299, Hon'ble National Commission has observed that "the claim repudiated on ground of overloading, in a case of overloading claim has to be processed on non-standard basis. In case // 11 // of overloading of a vehicle, beyond licensed carrying capacity, claim preferred by Insured should be paid @ 75% of admissible claim." 19 In Oriental Insurance Company Limited & Anr. vs. Rajak 2015 (3) CPR 375 (NC) Hon'ble National Commission has observed that "In case of overloading of vehicle beyond licence carrying capacity claim is admissible upto 75% on non-standard basis."
20. In Ganjpal Patre Vs. Oriental Insurance Company Limited, IV (2016) CPJ 231 (NC), Hon'ble National Commission has observed that "
In the case of overloading, the claim can be allowed on non-standard basis." The judgment cited by the appellant (O.P.) is not applicable in the facts of the instant case.
21. The complainant pleaded that he incurred expenditure of Rs.12,93,414/- in repairing of the vehicle in question and he suffered financial loss of Rs.8,00,000/- because advance amount was not provided by the O.P. to him. The above contention of the complainant is not acceptable. The O.P. appointed Raj Kumar Sharma, as Surveyor. Raj Kumar Sharma, assessed loss and gave details for assessing the loss. He assessed the loss to the of Rs.4,38,164/-.
22. In the instant case, the sitting capacity of the vehicle was 31 whereas at the time of accident 35 passengers were travelling in the vehicle in question. It appears that only 4 persons were travelling in excess in the vehicle. The Surveyor assessed loss to the tune of 4,38,164/-. The report of the Surveyor is a reliable document, therefore, // 12 // the Surveyor's report is genuine and dependable. The Report of the Surveyor can be given due weightage and it cannot be discarded lightly.
23. In Devendra Malhotra Vs. United India Insurance Co. Ltd. & Anr. 2016 (3) CLT 525 (NC), Hon'ble National Commission, has observed thus :-
"Consumer Protection Act, 1986, Sections 2 (1) (g), 19 & 21 (a) (ii)- Insurance claim Surveyor report Held It is a established legal proposition that the report made by the surveyor, who is a professional in his field, cannot disbelieved, unless there are cogent and convincing reasons to do so."
24. In Oriental Insurance Co. Ltd. Vs. Pavan Enterprises & Anr. I (2016) CPJ 503 (NC), Hon'ble National Commission has observed thus :-
"12. I see no reason to discard the report of the Surveyor. He appears to be a guideless witness. No motive was ever attributed to him. There must be some reasonable ground or doubt to reject his report. The report of the Surveyor carries infinite significance as was held in Roshan Lal Oil Mills Ltd. & Ors., 2014 (SLT Soft) 1 = 2014 (CPJ Soft) 1 = (2000) 10 Supreme Court Cases 19 and in D.N. Badoni v. Oriental Insurance Co. Ltd., I (2012) C.P.J. 272 (NC)."
25. In New India Assurance Co. Ltd., vs. Pave Infrastructures Pvt. Ltd., 2015 (3) CPR 577 (NC), Hon'ble National Commission has observed that "Loss of assessment by approved Surveyor can be discarded only on cogent reasons".
// 13 //
26. In Garg Acrylics Ltd., Through Sh. Anish Bansal G.M. (G.M.) Authorised Representative vs. United India Insurance Co. Ltd., 2015 (1) CPR 273 (NC), Hon'ble National Commission has observed thus :-
"11.................. This is settled Law that the report of the surveyor is to be given much more weightage than any other piece of evidence. See the Law laid down in United India Insurance Co. Ltd. & Others Versus Roshan Lal Oil Mills Ltd. & Ors. (2000) 10 Supreme Court Cases 19 & in D.N. Badoni Vs. Oriental Insurance Co. Ltd. I (2012) C.P.J. 272 (NC)".
27. In The Oriental Insurance Co. Ltd., Through its Regional Manager vs. Ishwar Singh, 2015 (1) CPR 157 (NC), Hon'ble National Commission has observed thus :-
"17. Counsel for the petitioner has also drawn our attention to the Apex Court Judgment in the case Sri Venkateswara Syndicate vs. Oriental Insurance Company Ltd., and Another, (2009) 8 Supreme Court Cases 507 wherein the Apex Court has held as under :-
"There is no disputing the fact that the surveyor/surveyors are appointed by the insurance company under the provisions of the Insurance Act and their reports are to be given due importance and one should have sufficient grounds not to agree with the assessment made by them".
28. Looking to the facts and circumstances of the case, the complainant is only entitled for Rs.4,38,164/- and he is not entitled for Rs.8,00,000/- towards financial loss suffered by him because he himself caused delay in obtaining the vehicle on Supurdginama and // 14 // getting the vehicle repaired. The complainant has not been able to prove that he incurred a sum of Rs.12,93,414/- in repairing of the vehicle. The complainant is only entitled for Rs.4,38,164/-.
29. Therefore, the complaint of the complainant is partly allowed and it is directed that :-
(i) The O.P. will pay a sum of Rs.4,38,164/- (Rupees Four Lakhs Thirty Eight Thousand One Hundred Sixty Four) within 45 days from the date of this order, to the complainant.
(ii) The O.P. will pay interest @ 9% p.a. on the above amount to the complainant from the date of filing of the complaint i.e. 09.05.2017 till realisation.
(iii) The O.P. will also pay a sum of Rs.10,000/- (Rupees Ten Thousand) towards cost of litigation to the complainant.
(Justice R.S. Sharma) (D.K. Poddar) (Narendra Gupta) President Member Member 10/10/2017 10/10/2017 10 /10/2017