State Consumer Disputes Redressal Commission
Smt.Shahin Shekh vs Manager Cholamandalam General ... on 25 September, 2018
CHHATTISGARH STATE
CONSUMER DISPUTES REDRESSAL COMMISSION,
PANDRI, RAIPUR (C.G).
Appeal No.FA/2018/668
Instituted on : 01.08.2018
Smt. Shahin Sheikh, W/o Mohammad Rashid,
Aged about 47 years,
R/o : Quarter No.136, Kelabadi, Durg,
Police Station Durg, Tehsil & District Durg (C.G.) ... Appellant (complainant)
Vs.
Manager, Chola Mandalam General Insurance Co. Ltd.
2nd Floor, Simran Tower, Opposite L.I.C. Office,
Pandri,
Raipur (C.G.) ... Respondent (O.P.)
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 Prashant Sinha, Advocate for the appellant (complainant)
Shri Ravi Mishra, Advocate for the respondent (O.P.).
ORDER
DATED : 25/SEPTEMBER/2018 PER :- HON'BLE SHRI JUSTICE R.S. SHARMA, PRESIDENT.
This appeal is directed against the order dated 13th June, 2018, passed by District Consumer Disputes Redressal Forum, Durg (C.G.) (henceforth "District Forum") in Complaint Case No.C.C./2017/446. By the impugned order, learned District Forum, has dismissed the complaint of the complainant. 2 Briefly stated the facts of the complaint of the complainant are that, the complainant is registered owner of the vehicle Bus bearing registration No.C.G.07-C-4065. The above vehicle was insured with the O.P. under insurance policy No.3373/00385420/00/02 for the period from 19.03.2015 to 18.03.2016. On 24.02.2016, the vehicle bearing registration No.C.G.-07-C-4065 // 2 // was going through Arjunda Balod way, then near Village Parna, the steering of the Bus was failed and main belt of the vehicle was broken, due to which the bus became uncontrolled and dashed with a tree and was damaged. In the accident, the passengers who were sitting in the vehicle, sustained injuries. The First Information Report regarding the accident was lodged against the driver of the vehicle bearing registration No.C.G.07-C-4065. The Crime No. registered was 69/2016. The complainant gave intimation regarding the incident to the O.P. The Surveyor inspected the vehicle bearing registration No.C.G.07-C-4065, prepared the Survey Report and submitted the same before the Insurance Company. The complainant submitted all relevant documents before the O.P. After the incident, the vehicle bearing registration No.C.G.-07- C-4065 was got repaired by the complainant and she incurred a sum of Rs.2,65,800/- in repairing of the vehicle. The O.P. vide letter dated 12.05.2016, repudiated the claim of the complainant. Despite obtaining premium from the complainant in respect of the vehicle in question, the O.P. did not pay the claim amount to the complainant, which comes in the category of deficiency in service and unfair trade practice. Hence the complainant has filed the instant consumer complaint before the District Forum and prayed for granting reliefs, as mentioned in the prayer clause of the complaint.
3. The O.P. filed its written statement and averred that the vehicle bus bearing registration No.C.G.07-C-4065 in the name of Shahin Sheikh was insured with the O.P. for the period from 19.03.2015 to 18.03.2016 under terms and conditions of Package Passenger Carrying Insurance Policy. The Policy No. is 3373/00385420/000/02. On being intimation received regarding the incident, // 3 // the Insurance Company appointed Surveyor, who conducted survey, who assessed the net liability 0 (Zero) and recommended for repudiation of claim of the complainant. The O.P. (Insurance Company) got investigated the matter from Shri Ashok Chawla, Investigator, who concluded that at the time of incident, in the vehicle more passengers than the sitting capacity as mentioned in the R.C. Book, were sitting and the permit of the vehicle was not valid, which is violation of the terms and conditions of the insurance policy. Therefore, the claim of the complainant is to be treated as No Claim. The sitting capacity of the vehicle in question including driver was 33 but according to the documents of the criminal case, 58 passengers were sitting in the vehicle, due to which the driver had lost his control over the vehicle and incident had occurred. As at the time of incident more passengers than the sitting capacity of the vehicle were sitting, which is violation of terms and conditions of the insurance policy. According to the Registration Certificate of the vehicle bus bearing registration No.C.G.07-C-4065, the sitting capacity was 33 including driver, but at the time of incident in the vehicle more passengers than the capacity were sitting which is violation of Condition 3(a) of General Exception of the insurance policy. The O.P. did not commit any deficiency in service or unfair trade practice by repudiating the claim of the complainant. The complainant is not entitled to get any compensation and interest from the O.P. The complaint is liable to be dismissed.
4. The complainant has filed documents. Annexure A-1 is final report, Annexure A-2 is Crime Details Form, Annexure A-3 is Form No.2 Crime Details Form, Annexure A-4 is Form No.4 Property Seizure Memo, Annexure A-5 is // 4 // Form No.4 Property Seizure Memo, Annexure A-6 is Inspection Report dated 26.02.2016 issued by Shakil Motor Works, Annexure A-7 is letter dated 12.05.2016 sent by O.P. to the complainant, Annexure A-8 is Motor Policy Schedule Cum Certificate of Insurance, Annexure A-9 is Bill dated 15.05.2016 issued by Ganpati Glass Centre, Durg, Annexure A-10 is Bill issued by Khan Bus Body Works, Durg (C.G.), Annexure A-11 is Cash / Credit Memo dated 19.05.2016 issued by SBP Automobiles, Durg (C.G.), Annexure A-12 is driving licence of Goverdhan Sahu, Annexure A-13 is copy of award dated 08.04.2017 passed by National Lok Adalat, Bench No.1, Balod District Balod (C.G.) in Claim Case No.22/2016 - Anil Kumar Yadav & Ors. VS. Goverdhan Sahu & Others
5. The O.P. (Insurance Company) has filed documents. Annexure NA-1 is copy of First Information Report, Annexure NA-2(1) list of injured persons, AnnexureNA-3 (1) is statement of Smt. Phuleshwari Bai Yadav, Annexure 4(1) is statement of Naradram, Annexure NA-5 is news paper cutting, Annexure NA-6 is investigation report of Ashok Chawla, Investigator, Annexure 7 is Motor Survey Assessment Report, Annexure NA-8 is special permit for the contracted vehicle, Annexure NA-9 is R.C. Particulars obtained from E Sewa,, Annexure NA-10 is letter dated 12.05.2016 sent by the O.P. to the complainant, Annexure NA-11 is insurance policy, Annexure A-12 is policy wordings of Motor Package (Other Than Motor Trade) Policy,
6. Learned District Forum, after having considered the material placed before it by the parties, has dismissed the complaint of the complainant.
// 5 //
7. In the instant case, the appellant (complainant) has filed an application under Order 41 Rule 27 CPC for taking additional evidence on record at appellate stage, along with Annexure A-10 which is copy of Award dated 10.02.2018 passed in National Lok Adalat Bench No.08, Durg, Court of 8th Additional Motor Accident Claims Tribunal, Durg in Motor Accident Claim Case No.60/2018 - Rameshwari Vs. Goverdhan Sahu and Others, Annexure A- 11 which is copy of award dated 10.02.2018 passed in National Lok Adalat Bench No.08, Durg, Court of 8th Additional Motor Accident Claims Tribunal, Durg (C.G.) in Motor Accident Claim Case No.61/2018 - Smt. Anjani Bai Vs. Goverdhan Sahu and Others, Annexure A-12, which is copy of award dated 10.02.2018 passed in National Lok Adalat Bench No.08, Durg, Court of 8th Additional Motor Accident Claims Tribunal, Durg in Motor Accident Claim Case No.43/2018 - Ku. Lomesh Minor Through Vali and Gaurdian Father Kishore Kumar Vs. Goverdhan and Others, Annexure A-13 is cop of award dated 10.02.2018 passed in National Lok Adalat Bench No.08, Durg, Court of 8th Additional Motor Accident Claims Tribunal, Durg in Motor Accident Claims Tribunal No.46/2018 - Tejeshwari Dishmukh Vs. Goverdhan Sahu & Others, Annexure A-14 is copy of award dated 08.04.2017 passed by National Lok Adalat, Bench No.1, Balod District Balod (C.G.) in Claim Case No.22/2016 - Anil Kumar Yadav & Others. VS. Goverdhan Sahu & Others
8. We have heard the counsel for both the parties on the application filed by the appellant (complainant) under Order 41 Rule 27 CPC.
// 6 //
9. The appellant (complainant) has sought permission to file the above documents at the appellate stage as additional evidence.
10. The appellant (complainant) has already filed copy of award dated 08.04.2017 passed by National Lok Adalat, Bench No.1, Balod District Balod (C.G.) in Claim Case No.22/2016 - Anil Kumar Yadav & Ors. VS. Goverdhan Sahu & Others. In the instant appeal also the appellant (complainant) wishes to file Annexure A-10 which is copy of Award dated 10.02.2018 passed in National Lok Adalat Bench No.08, Durg, Court of 8th Additional Motor Accident Claims Tribunal, Durg in Motor Accident Claim Case No.60/2018 - Rameshwari Vs. Goverdhan Sahu and Others, Annexure A-11 which is copy of award dated 10.02.2018 passed in National Lok Adalat Bench No.08, Durg, Court of 8th Additional Motor Accident Claims Tribunal, Durg (C.G.) in Motor Accident Claim Case No.61/2018 - Smt. Anjani Bai Vs. Goverdhan Sahu and Others, Annexure A-12, which is copy of award dated 10.02.2018 passed in National Lok Adalat Bench No.08, Durg, Court of 8th Additional Motor Accident Claims Tribunal, Durg in Motor Accident Claim Case No.43/2018 - Ku. Lomesh Minor Through Vali and Gaurdian Father Kishore Kumar Vs. Goverdhan and Others, Annexure A-13 is cop of award dated 10.02.2018 passed in National Lok Adalat Bench No.08, Durg, Court of 8th Additional Motor Accident Claims Tribunal, Durg in Motor Accident Claims Tribunal No.46/2018 - Tejeshwari Dishmukh Vs. Goverdhan Sahu & Others. Looking to the facts and circumstances of the case, it appears that the above documents are essential for proper adjudication of the case, therefore, we allow the application filed by the appellant // 7 // (complainant) under Order 41 Rule 27 CPC and take the above documents on record as additional evidence at the appellate stage.
11. Shri Prashant Sinha, learned counsel appearing for the appellant (complainant) has argued that the appellant (complainant) is registered owner of vehicle Bus bearing registration No.C.G.07-C-4065, which was insured with the respondent (O.P.) for the period from 19.03.2015 to 18.03.2016. On 24.02.2016, the vehicle in question met with an accident. The matter was reported to the concerned Police Station and intimation regarding the accident was given to the O.P. In concerned Police Station, Crime No.69/2016 was registered against the driver of the vehicle in question. The complainant incurred expenditure of Rs.2,65,800/- in repairing of the vehicle and submitted the claim before the O.P, but the O.P. did not settle the claim of the complainant. The learned District Forum has also dismissed the complaint of the complainant on the ground that the sitting capacity of the vehicle in question is 33 against which 58 persons were sitting in the vehicle in question at the time of accident and the vehicle in question was overloaded. The impugned order passed by the District Forum is erroneous and is liable to be set aside. He further argued that the O.P. did not appoint Surveyor and the O.P. did not file Survey Report of the Surveyors, therefore, the bills submitted by the complainant, are reliable. The persons who injured in the accident filed claim cases before Motor Accident Claim Tribunal, Balod and Durg (C.G.). The above cases have been settled in National Lok Adalat Bench No.1, Balod District Balod (C.G.) vide order dated 08.04.2017 and National Lok Adalat Bench No.08, Durg, Court of 8th Additional Motor Accident Claims Tribunal, Durg vide order dated 10.02.2018 // 8 // and have awarded compensation to the applicant on the basis of compromise. It appears that the O.P. Cholamandalam General Insurance Co. Ltd. had admitted the occurrence of accident and paid compensation to the injured persons, therefore, the complainant is also entitled to get the amount incurred by her in repairing of the vehicle in question. If any breach of terms and conditions of the insurance policy is found, even then the complainant is entitled to get compensation on non-standard basis. Shri Prashant Sinha has placed reliance on M/s United India Insurance Limited Vs. Surjeet Singh Asaay, 2000 CPC 102 (NC). The appeal filed by the appellant (complainant) be allowed and impugned order passed by the District Forum, may be set aside.
12. Shri Ravi Mishra, learned counsel appearing for the respondent (O.P.) has argued that the impugned order passed by the District Forum, is just an proper and does not suffer from any infirmity, irregularity or illegality, hence does not call for any interference by this Commission. On being intimation received from the appellant (complainant) regarding the accident, the respondent (O.P.) appointed Surveyor, who gave his report and assessed net liability as Nil. The respondent (O.P.) also appointed Shri Ashok Chawla as Investigator, who during investigation found that 58 passengers were sitting in the Bus, whereas the sitting capacity of the Bus is 33. It appears that the driver of the Bus was carrying near about 25 more passengers, which is fundamental breach of terms and conditions of the insurance policy. The sitting capacity of the vehicle in question was 33 against which 58 passengers were carrying by the driver at the time of accident, which is fundamental breach of the terms and conditions of the insurance policy. In the Motor Accident Claim Cases, the // 9 // learned Motor Accident Claim Tribunal, passed the orders on the basis of third party claim, whereas the complainant has filed the instant complaint for damages to the vehicle, which comes within purview of own damage. The complainant had breached the terms and conditions of the insurance policy, therefore the District Forum has rightly dismissed the complaint of the complainant. The appeal filed by the complainant may be dismissed.
13. We have heard learned counsel appearing for both the parties and have also perused the record of the District Forum, as well as the impugned order passed by the District Forum.
14. It is admitted fact that the appellant (complainant) is registered owner of vehicle bus bearing registration No.C.G.07-C-4065, which was insured with the respondent (O.P.) for the period from 19.03.2015 to 18.03.2016. The appellant (O.P.) has filed document Annexure NA-6(2) to 6(8), which is Investigation Report of Shri Ashok Chawla, Investigator, who specifically mentioned that at the time of accident, 58 passengers were sitting in the vehicle, whereas the sitting capacity of the vehicle in question is 33. Looking to the First Information Report and Final Report, it also appears that the vehicle in question was overloaded. Looking to the documents filed, it appears that the sitting capacity of the vehicle in question is 33 against which 58 passengers were sitting in the vehicle in question.
15. Now we shall examine whether on the basis of above ground, the claim of the complainant, is liable to be rejected and the O.P. has rightly repudiated the claim of the complainant ?
// 10 //
16. In National Insurance Co. Ltd. Vs. Sanjeev Kumar I (2018) CPJ 169 (NC); Hon'ble National Commission, has observed thus :-
"Although surveyor report is not final word when it comes to assessment of claim, departure from same should be accompanied by valid reasons- Fora below failed to provide any cogent reason for making departure from surveyor report and merely directed petitioner to settle claim on basis of bills furnished by respondent, which is not justified- As per surveyor's report, net assessed loss is Rs. 95,445, whereas value of total bills amounts to Rs. 1,78,000- As per surveyor's report, there were some 20-22 persons sitting in loaded body of insured goods vehicle at time of accident- This amounts to violation of policy condition- Claim can be settled of non-standard basis- Petitioner is directed to settle claim on basis of 75% of admissible claim i.e. 75 % of Rs. 95,445 i.e. Rs. 71,584 along with interest @ 8% p.a."
17. 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."
18. 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 // 11 // 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."
19. 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.
20. In Oriental Insurance Company vs. Girbar Sinh Nandwanshi & Anr. 2015 (3) CPR 299 (NC), 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 of overloading of a vehicle, beyond licensed carrying capacity, claim preferred by Insured should be paid @ 75% of admissible claim."
21. 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."
22 In First Appeal No.FA/2017/544 - Shivpujan Kushwaha Vs. The Oriental Insurance Company Limited Through Branch Office, this Commission, vide order dated 08.11.2017 has observed that " Only on the basis that in the vehicle 12 passengers were sitting, it is not proper to repudiate the // 12 // claim of the complainant, but the complainant is entitled to get compensation on Non Standard Basis."
23. The appellant (complainant) sent intimation regarding the accident to the respondent (O.P.), but the respondent (O.P.) did not file Survey Report of the Surveyor. The appellant (complainant) has specifically pleaded that she got the vehicle in question repaired and incurred expenditure of Rs.2,65,800/-, but the above amount has not been paid by the respondent (O.P.).
24. The respondent (O.P.) pleaded that when the intimation regarding the accident was received by the respondent (O.P.) from the appellant (complainant), the O.P. appointed Surveyor, who assessed net liability as Nil. Abhishek Tiwari, Surveyor gave his report, but his report is not a detailed report. In internal page of Survey Report, the Surveyor assessed Net Claim Payable = Net liability + Daily Cash Allowance (Any) as Rs.91,241/- and payment in favour of complainant is mentioned as 0 (Zero). The reason for the same has not been mentioned by the Surveyor, therefore, the Surveyor's Report, is not acceptable.
25. It is established that the driver of the vehicle in question was carrying more passenger as against the sitting capacity of the vehicle, but it is not established that the accident was occurred due to overloading, therefore, the complainant is entitled to get compensation from the respondent (O.P.) on non- standard basis i.e. 75% of Rs.2,65,800/-, which comes to Rs.1,99,350/- (Rupees One Lakh Ninety Nine Thousand Three Hundred and Fifty). According to the Investigation Report of the Investigator and from other documents, it is // 13 // established that the driver of the vehicle in question, was carrying passengers more than the sitting capacity, which comes within breach of the terms and conditions of the insurance policy, but it is not a fundamental breach, therefore, the complainant is entitled to get compensation on non-standard basis. The complainant is not entitled to get any compensation towards mental agony, interest and other compensation from the O.P. The prayer made by the complainant in prayer clause (B), (C) and (D) are rejected. The appellant (complainant) is only entitled to get compensation of Rs.1,99,350/- (Rupees One Lakh Ninety Nine Thousand Three Hundred and Fifty) from the respondent (O.P.) on non-standard basis and Rs.5,000/- (Rupees Five Thousand) towards cost of litigation of this appeal.
26. Therefore, the appeal filed by the appellant (complainant), is allowed and the impugned order dated 13.06.2018, passed by the District Forum, is set aside. It is directed that :-
(i) The respondent (O.P.) will pay a sum of Rs.1,99,350/- (Rupees One Lakh Ninety Nine Thousand Three Hundred and Fifty) to the appellant (complainant) within 30 days from the date of this order.
(ii) The respondent (O.P.) will pay a sum of Rs.5,000/- (Rupees Five Thousand) towards cost of litigation of this appeal, to the appellant (complainant).
(Justice R.S. Sharma) (D.K. Poddar) (Narendra Gupta)
President Member Member
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