State Consumer Disputes Redressal Commission
Nissarahmed S/O Babasab Dafedar, vs The Shriram General Insurance Co. Ltd., on 17 August, 2023
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Appeal No.2666/2017
Date of filing:23.12.2017
Date of Disposal:17.08.2023
BEFORE THE KARNATAKA STATE CONSUMR DISPUTES REDRESSAL
COMMISSION, BENGALURU (PRINCIPAL BENCH)
DATED: 17th Day of August 2023
PRESENT
Mr. K B SANGANNANAVAR: JUDICIAL MEMBER
Mrs.M.DIVYASHREE : LADY MEMBER
APPEAL NO. 2666/2017
Mr.Nissarahmed,
S/o Babasab Dafedar,
Major,
Occ: Business,
R/a Lamani Chawl,
Old Dandeli,
Dandeli (North Canara). ........ Appellant
(By Mr.Shivaprabhu S.Hiremath, Adv.)
-Versus-
The Shriram General Insurance Co. Ltd.,
E-8, EPIP, RIICO,
Sitapur, Jaipur,
Rajasthan State,
Pin-302022. ........ Respondent
(By Mr.B.C.Shivannegowda, Adv.)
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Appeal No.2666/2017
ORDER
BY Mr. K. B. SANGANNANAVAR: Pri. Dist. & Session Judge (R)- JUDICIAL MEMBER:
1. This is an appeal filed by complainant in CC/473/2014 on the file of District Consumer Disputes Redressal Forum, Belagavi aggrieved by the order dated 26.09.2017. (The parties in this appeal will be referred herein after as their rank assigned to them by the Forum below)
2. The Commission examined grounds of appeal, impugned order, appeal papers and heard learned counsels for the parties to the appeal.
3. The brief facts of the case of the complainant before the Forum below is stated as follows:
He is a registered owner of the vehicle bearing registration No.KA-25-9199 and the said vehicle was engaged in transportation of goods from one State to another State was duly insured with OP for the period from 30.08.2013 to 29.08.2014. During the insured period on 07.10.2013, vehicle was moving on NH4 via Hirebagewadi Ghat near Belagavi, driven by driver Mr.Saddamhussain Dafedar of Dandeli and while the said vehicle was moving towards Hubballi passing through the said Ghat at 3 Appeal No.2666/2017 about 15:00 hours, due to loss of control over the vehicle, it was fell into left side of the ditch and as a result, vehicle was damaged and its front shape including engine, chassis, suspension system, gear box, bonnet front wind screen and head lights etc., were extensively damaged, which was intimated to OP and the OP requested complainant to shift the damaged vehicle to the nearest garage so that surveyor could visit and inspect the vehicle. However, OP repudiated the claim of the complainant by letter dated 22.11.2013 on the ground that driver of the said truck was not holding a valid DL at the time of accident as such the DL extract procured from RTO, Belgaum was sent to OP company on 10.12.2013 but OP failed to adhere to the terms and conditions of the policy to reimburse the claim put forth by the insured. The repudiation of the claim on the part of OP is nothing but rendering deficiency of service. The Complainant has spent Rs.1,97,634/-
for purchase of spare parts and repair charges, garage charges of M/s Simnan Steel Traders, Hubli, Vinayak Motors, Belgaum and garage owner by name Sonali Motor Body Builders and New Star Motor Body Builder at Alanawar at Halyal Taluk of Dharwad District.
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4. The OP contested the complaint admitting issuance of the policy in favour of the complainant contended truck was insured under Goods Carrying Commercial Vehicle Package Policy and the truck was strictly and legal meant for carrying goods only and not the unauthorized passengers and at the time of accident a minor boy was travelling as gratuitous passenger in the said truck. The said boy was not a loader in the said truck.
5. In view of rival contentions of parties to the complaint Forum below held an enquiry, thereby dismissed the complaint on 26.09.2017 with no order as to cost. It is this order being assailed in this appeal contending that Forum below failed to consider the claim with regard to damages cause to the vehicle for which complainant has paid due premium towards OD claim. Further contended carrying any person in the vehicle does not amounts to violation of the policy, since Rule 100 of M.V. Rules permits carrying in all 06 persons in heavy goods vehicle and in the instance case, the driver, cleaner, and the other person, were moving in the said truck on the date of accident is not at all termed as fundamental violation of terms of policy.
6. Learned counsel for complainant submits that the Forum below failed to appreciate difference between OD claim and Third Party 5 Appeal No.2666/2017 claim has some considerable force in view of the fact that we have to decide only on the OD claim and on the claim of the Third Party.
7. It is not in dispute that KA-25-9199 is a registered as goods vehicle and it was insured with OP under policy No.10000/31/14/C/030809 for the period from 30.08.2013 to 29.08.2014. It is also not in dispute that the said vehicle was met with an accident on 07.10.2013 at about 15:00 hours during the period of the policy while going towards Hubballi, as it was fell on the left side of the ditch situate by the side of road resulting thereby vehicle was extensively damaged. It is not in dispute that the said vehicle was driven by Mr.Saddamhussain Dafedar of Dandeli, who possessed a valid DL to drive the insured vehicle. It is found from the enquiry that complainant has spent a total sum of Rs.1,97,634/- towards purchase of spare parts and to get the vehicle road worthy.
8. According to insurer, insured violated conditions of the policy, since at the time of accident, he was carrying a gratuitous passenger, who was a minor and the Forum below heavily come on the complainant, holding that insured was carrying 03 persons along with a minor boy in the said truck at the time of accident. Learned counsel for OP submits as complainant/insured allowed 6 Appeal No.2666/2017 unauthorized passengers in the truck at the time of accident and would submit that they were not employees of the complainant, as such is a fundamental violation of the policy terms and the Forum below is right in dismissing the complaint. However, on the contrary, learned counsel for complainant/appellant submits that Hon'ble Apex Court in Civil Appeal no.21552/2017 in the case between Manjeet Singh v. National Insurance Company Limited and another held in para-05 held -
"........we are of the considered opinion, that the District Forum had not properly appreciated the scope and ambit of the policy. The violation of the condition should be such a fundamental breach so that the claimant cannot claim any amount whatsoever. As far as the violation in carrying passengers is concerned, this has consistently been held no to be a fundamental breach and, in this behalf, we may make reference to the judgments of this Court in the case of National Insurance Co. Ltd. v. Swaran Singh, (2004) 3 SCC 297, National Insurance Co. Ltd. v. Nitin Khamndelwal, (2008) 11 SCC 259, Lakhmi Chand v. Reliance General Insurance (2016) 3 SCC 100 and B.V.Nagaraju v. Oriental Insurance Co. Ltd., (1996) 4 SCC 647."7 Appeal No.2666/2017
In para-07 held -
"........ His driver gave a lift to some passengers. Carrying such passengers may be a breach of the policy, but it cannot be said to be such a fundamental breach as to bring the insurance policy to an end and to terminate the insurance policy. The driver, on a cold wintery night, gave lift to some persons standing on the road. It was a humanitarian gesture. It cannot be said to be such a breach that it nullifies the policy. No doubt, these passengers turned against the driver and stole the truck, but this, the driver could not have foreseen. In the cases cited above, such claims where there is breach of policy, have been treated to be non- standard claims and have been directed to be settled at 75%."
Further in Lakhmi Chand v. Reliance General Insurance cited supra in para-12 and 13 held -
"12. The National Commission upheld the order of dismissal of the complaint of the appellant passed by the State Commission. The National Commission, however, did not consider the judgment of this Court in B.V. Nagaraju v. Oriental Insurance Co. Ltd. In that case, the insurance company had taken the defence that the vehicle in question was carrying more passengers that the permitted capacity in terms of the policy at the time of the accident. The said plea of the insurance 8 Appeal No.2666/2017 company was rejected. This Court held that the mere fatum of carrying more passengers than the permitted searing capacity in the goods-carrying vehicle by the insured does not amount to a fundamental breach of the terms and conditions of the policy so as to allow the insurer to eschew its liability towards the damage caused to the vehicle.
"13. This Court in the said case has held as under: (B.V. Nagaraju case, SCC pp.647g - 648a) It is plain from the terms of the insurance policy that the insured vehicle was entitled to carry six workmen, excluding the driver. If those six workmen when travelling 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 pose, 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."9 Appeal No.2666/2017
Further in the end of para-15 held -
"........Whether such a burden had been
discharged, would depend upon the facts and
circumstances of each case. Even when the insurer is able to prove breach on the part of the insured concerning a policy condition, the insurer would not be allowed to avoid its liability towards the insured unless the said breach of condition is so fundamental as to be found to have contributed to the cause of the accident."
9. In view of the above cited decisions and the ratio laid down, in our view, on facts of the case in this appeal as insurer failed to discharge burden of proof that accident in question was occurred due to carrying of 03 persons of whom one was a minor boy. Learned counsel for the complainant/appellant rightly submits that the policy allowed insured for carrying 06 persons to which premium was paid and the case raised before the forum below was under OD claim and not for the injuries caused to the inmates and when the facts established was not carrying the passengers in excess of 6 at the time of accident and when it is shown insurer failed to establish that accident in question was occurred only due to carrying passengers in the said truck denial of the claim amounts to rendering deficiency of service of the part of insurer. In other words, breach as to carrying three passengers of whom 10 Appeal No.2666/2017 one was a minor boy was not shown to be the causa-causan for occurrence of the accident and to find support such view it would be appropriate to refer para-14 of the judgment cited supra. Para- 14 held -
"14. Further, in National Insurance Co. Ltd v Swaran Singh a three-Judge Bench of this Court has held as under: (SCC pp. 325 & 330-31, paras 49, 52 and 69) "49. Such a breach on the part of the insured must be established by the insurer to show that not only the insured used or caused or permitted to be used the vehicle in breach of the Act but also that the damage he suffered flowed from the breach."
10. In view of the above ratio, in our view, Forum below committed grave error in accepting the defense case of the OP insured. The Forum below has also failed to appreciate facts and law in right perception in the light of the ratios laid down by the Hon'ble Apex Court, as such; impugned order does call for an interference.
11. Accordingly, we proceed to allow the appeal. Consequently set aside the impugned order dated 26.09.2017 passed in CC/473/2014 on the file of District Consumer Disputes Redressal Forum, Belagavi and as a result allowed the complaint in part and 11 Appeal No.2666/2017 directed OP/insurer to pay 75% of Rs.1,97,634/- along with interest @ 06% p.a. from the date of repudiation till realization and do pay Rs.25,000/- as compensation for rendering deficiency of service and Rs.10,000/- as litigation cost within 45 days failing which the amount shall carry interest @ 09% p.a. from the date of non-compliance till realization.
12. Send a copy of this Order to the District Commission and parties to the appeal.
Lady Member Judicial Member *GGH*