State Consumer Disputes Redressal Commission
Divisional Manager, National ... vs Roshni Devi on 2 May, 2014
STATE CONSUMER DISPUTES REDRESSAL COMMISSION UTTARAKHAND
DEHRADUN
FIRST APPEAL NO. 211 / 2011
Divisional Manager, National Insurance Company Limited
Rajpur Road, Dehradun through Manager
National Insurance Company Limited, Regional Office
Dehradun
......Appellant
Versus
Smt. Roshni Devi
R/o Village and P.O. Nail
District Tehri Garhwal
......Respondent
Sh. M.N. Mishra, Learned Counsel for the Appellant
Sh. H.L. Khanna, Authorised Agent of Respondent
Coram: Hon'ble Mr. Justice B.C. Kandpal, President
Mr. C.C. Pant, Member
Dated: 02/05/2014
ORDER
(Per: Justice B.C. Kandpal, President):
This appeal, under Section 15 of the Consumer Protection Act, 1986, is directed against the order dated 19.09.2011 passed by the District Forum, Dehradun in consumer complaint No. 73 of 2010, whereby the District Forum has allowed the consumer complaint and directed the appellant to pay sum of Rs. 10,23,000/- to the respondent together with interest @9% p.a. from the date of filing of the consumer complaint till payment; Rs. 10,000/- towards mental agony and Rs. 5,500/- towards litigation expenses.
2. Briefly stated, the facts of the case as mentioned in the consumer complaint, are that the complainant was the registered owner of JCB machine bearing registration No. HR-55-F-0916, which 2 was insured with the appellant - National Insurance Company Limited for the period from 06.02.2009 to 05.02.2010 at an IDV of Rs. 14,00,000/-. During the validity of insurance policy, the said vehicle met with an accident on 19.07.2009 and got completely damaged. The FIR of the accident was lodged with the police and intimation was also given to the insurance company. The complainant lodged the claim with the insurance company for indemnification of loss, but the insurance company did not settle the claim. Thus, alleging deficiency in service on the part of the insurance company, the complainant filed a consumer complaint before the District Forum, Dehradun.
3. The insurance company filed written statement before the District Forum and pleaded that on receipt of intimation of accident of the insured vehicle, the insurance company had appointed Sh. Rajeev Kumar Gupta, surveyor and loss assessor for spot surveyor and S.K. Handa and Company, surveyors, loss assessors, investigators and valuers were appointed as final surveyor in the matter; that on the basis of the survey report, the complainant was offered settlement of claim at Rs. 10,73,000/- on net of salvage basis, which she accepted and the matter was sent to the Head Office for approval of the claim; that in the meanwhile, it was found that as per the registration certificate of the vehicle, the seating capacity was only one, whereas at the time of the accident, two persons were seating in the vehicle; that on non-standard basis, the claim of the complainant was settled at Rs. 7,23,000/- by deducting 25% amount; that the complainant was asked to execute the discharge voucher for settlement of claim at sum of Rs. 7,23,000/-, but she did not execute the same and that there is no deficiency in service on their part.
34. The District Forum, on an appreciation of the material on record, allowed the consumer complaint vide impugned order dated 19.09.2011 in the above manner. Aggrieved by the said order, the insurance company has filed this appeal.
5. We have heard the learned counsel for the appellant -insurance company and authorised agent of respondent - complainant and have also perused the record.
6. The insurance company has taken the stand that in view of the fact that the seating capacity of the insured vehicle was only one and since at the time of the accident, two persons were seating in the vehicle and hence the claim of the complainant was to be settled on non-standard basis after making 25% deduction and the insurance company was ready to settle the claim at sum of Rs. 7,23,000/- and asked the complainant to execute the discharge voucher for the said amount, but the complainant did not submit the discharge voucher and hence her claim could not be settled.
7. The insurance policy in question (Paper Nos. 61 to 63) shows that the insurance company has charged premium of Rs. 50/- from the insured for insurance of 2 employees under the Workmen Compensation Act. The cause of accident in the present case, as has been mentioned by Sh. Rajeev Kumar Gupta in his spot survey report dated 27.07.2009 (Paper Nos. 27 to 29), is that after completing the work on Judashu-Hadkai Motor Road, the vehicle was coming back and in the way, suddenly, the road edge got broken due to which the machine got disbalanced and overturned in the valley and got damaged. He has further stated that this is the main cause of machine's accident. Thus, the seating of one more person, if any, was in no way connected with the cause of the accident and the cause of 4 the accident can not be attributed to seating of one more person in the machine / vehicle.
8. It is also important to mention here that the spot surveyor in the remarks of his report has stated that as per registration certificate, the seating capacity of the machine is 2+1, which in his view, should be 1. The said fact is also fortified by the registration certificate of the vehicle (Paper No. 4kha/8 of the original record), wherein column No. 13, the seating capacity has been mentioned as 2+1. Thus, there was no breach of the terms and conditions of the registration certificate on the part of the complainant if 2 persons were seating in the machine at the time of the accident.
9. So far as the deduction of 25% on non-standard basis is concerned, since the registration certificate of the machine prescribed the seating capacity as 2+1 and also in view of the fact that the cause of the accident was not the overloading of the machine and hence there was no justification on the part of the insurance company to make deduction of 25% on account of overloading of the machine and to settle the claim at 75% of the assessed loss. Learned counsel for the appellant - insurance company has cited a decision of the Hon'ble Apex Court in the case of Amalendu Sahoo Vs. Oriental Insurance Company Limited; II (2010) CPJ 9 (SC). In the said case, the vehicle was insured for personal use, whereas it was being used on hire. It was held by the Hon'ble Apex Court that the claim is to be settled on non-standard basis. There is no such position in the present case. Even otherwise, the seating of one extra person, if any, in the vehicle had no role to play in the accident of the vehicle and also in view of the registration certificate of the vehicle, the seating of one more person in the machine, can not be termed as fundamental breach of the terms and conditions of the insurance policy on the part of the 5 insured. Learned counsel for the appellant also cited another decision of the Hon'ble Apex Court given in the case of National Insurance Co. Ltd. Vs. Laxmi Narain Dhut; III (2007) CPJ 13 (SC), wherein it has been held that there is conceptual difference between third party and own damage cases and the said difference should be kept in view. In the said case, it was held that where the original driving licence was fake, the renewal can not cure inherent fatality. In the case in hand, as is stated above, the registration certificate of the machine prescribed the seating capacity as 2+1 and the cause of the accident was not the overloading of the machine and hence the insurance company was liable to indemnify the loss occasioned to the insured on account of the accident of the insured property and the insurance company has certainly made deficiency in service by not settling the claim of the complainant - insured.
10. Learned authorised agent of respondent cited a decision of the Hon'ble National Commission in the case of New India Assurance Company Limited Vs. Kotlu Brahamana, Ex-Servicemen's Transport Cooperative Society Limited; I (2012) CPJ 262 (NC). In the said case, no evidence was produced by the insurance company to prove that accident was directly attributable to carrying of excess passengers in bus and it was held that the complainant was entitled to whole amount of admissible claim. It was further held that if overloading is not prime cause of accident, the insurance company can not repudiate the claim.
11. Thus, in view of above discussion, it is clear that the insurance company has certainly made deficiency in service by not settling the claim of the complainant even after taking the consent from her and the view to that effect taken by the District Forum, is perfectly justified and can not be faulted with.
612. So far as the quantum is concerned, as is stated above, the surveyor has assessed the loss at Rs. 10,73,000/- on net of salvage basis and the complainant had also given consent for the same, but the District Forum has awarded compensation of Rs. 10,23,000/- and there is no appeal of the complainant for enhancement of the award amount and hence the complainant is entitled to compensation of Rs. 10,23,000/-. So far as the interest awarded by the District Forum @9% p.a. is concerned, we are of the view that the same is on the higher side and in our considered opinion, the same need to be reduced to 7% p.a. Since the complainant has been awarded interest, there is no question of separate compensation for mental agony and hence the award of Rs. 10,000/- passed by the District Forum towards mental agony, is liable to be set aside. The District Forum has also awarded sum of Rs. 5,500/- towards litigation expenses, which in our considered opinion, need to be reduced to Rs. 5,000/-. This way, the appeal succeeds partly and is to be allowed accordingly and the order impugned passed by the District Forum is to be modified as such.
13. For the reasons aforesaid, appeal is partly allowed. Order impugned dated 19.09.2011 passed by the District Forum is modified and the appellant - insurance company is directed to pay sum of Rs. 10,23,000/- to the respondent - complainant together with interest @7% p.a. from the date of filing of the consumer complaint till payment and Rs. 5,000/- towards litigation expenses. The cost of the appeal is made easy.
(C.C. PANT) (JUSTICE B.C. KANDPAL) K