State Consumer Disputes Redressal Commission
United India Insurance Co.Ltd. vs Rajendra Agrahari on 3 February, 2016
CHHATTISGARH STATE
CONSUMER DISPUTES REDRESSAL COMMISSION
PANDRI, RAIPUR (C.G.)
Appeal No.FA/2015/95
Instituted on : 26.03.2015
United India Insurance Company Limited,
Bilaspur (C.G.). ... Appellant
Vs.
Rajendra Agrahari, S/o Shri Banwarilal Agrahari,
R/o : Village : Matiyari, Post Janji,
Tehsil and District Bilaspur (C.G.) .... Respondent
PRESENT: -
HON'BLE JUSTICE SHRI R.S. SHARMA, PRESIDENT
HON'BLE MISS HEENA THAKKAR, MEMBER
HON'BLE SHRI D.K. PODDAR, MEMBER
HON'BLE SHRI NARENDRA GUPTA, MEMBER
COUNSEL FOR THE PARTIES :-
Shri M.L. Agrawal, for appellant.
Shri Ramayan Singh Rajput, for respondent.
ORDER
Dated : 03 /02/2016 PER: - HON'BLE JUSTICE SHRI R.S. SHARMA, PRESIDENT This appeal is directed against the order dated 29.01.2015, passed by the District Consumer Disputes Redressal Forum, Bilaspur (C.G). (henceforth "District Forum" for short), in Complaint Case No.CC/175/2013. By the impugned order, learned District Forum, has allowed the complaint of the respondent (complainant) and directed the appellant (O.P.) as under :-
(a) To pay within a period of one month from the date of order a sum of Rs.2,46,,250/- (Two Lakhs Forty Six Thousand Two Hundred and Fifty Only) to the respondent (complainant), // 2 // which was deducted on the basis of overloading and if the appellant (O.P.) fails to pay the same within stipulated time, then it will pay interest @ 9% p.a. till reaslisation on the above amount.
(b) To pay a sum of Rs.1,00,000/- (Rupees One Lakh Only) to the respondent (complainant) towards compensation.
(c) To pay a sum of Rs.2,000/- (Rupees Two Thousand Only) to the respondent (complainant) towards cost of litigation.
2. Briefly stated, the facts of the case are that the respondent (complainant) is registered owner of vehicle Highwa bearing registration No.C.G.10-C-3869. The said vehicle was insured with the appellant (O.P.) for the period from 17.09.2012 to 16.09.2013 under comprehensive insurance policy No.191600/31/12/01/00004560. The Insured Declared Value (IDV) of the vehicle was Rs.12,00,000/-. On 11.03.2013 the respondent (complainant) loaded Muroom and gone to unload the same at Urtum Lagra and at the time of turning the vehicle, the vehicle was turtled due to which the vehicle caught fire. The intimation was immediately given to Police Control Room and the fire was extinguished by Fire Brigade. Thus the intimation regarding damages to the vehicle in question was lawfully given to the appellant (O.P.) and the present market value of the vehicle was mentioned Rs.25,00,000/-. After giving intimation regarding damages to the vehicle bearing registration No.C.G.10-C-3869 the same was parked in // 3 // Shivam Motors Pvt. Ltd. and in the quotation given by Shivam Motors Pvt. Ltd., the amount is mentioned as Rs.36,49,469/- because the vehicle was completely burnt. On 05.09.2013, as per instruction given by the appellant (O.P), the respondent (complainant) gave intimation regarding cancellation of the registration to the office of the appellant (O.P.). The appellant (O.P.) appointed Shri Dausage, Surveyor to inspect the vehicle, who assessed the entire loss and submitted report to make payment as per Insured Declared Value of the vehicle and subsequently, the appellant (O.P.) informed the respondent (complainant) that scrap value was assessed to the tune of Rs.2,00,000/- and the same is being deducted in response to which the respondent (complainant) decided that the above vehicle would be parked till today at Shivam Motors Pvt. Ltd. and the appellant (O.P.) ordered that after deducting a sum of Rs.2,00,000/- from the Insured Declared Value of the vehicle i.e. Rs.12,00,000/-, a sum of Rs.10,00,000/- would be paid to the respondent (complainant). On 12.09.2013, a sum of Rs.7,37,250/- was transferred in the account No.80245726152/10316140265 of the respondent (complainant). Thus, the appellant (O.P.) illegally paid lesser amount to the tune of Rs.2,62,750/- and committed deficiency in service. After occurrence of the incident, the respondent (complainant) continuously tried for obtaining compensation under the insurance policy and in this regard also gave intimation on 11.03.2013. The appellant (O.P.) illegally deducted a sum of Rs.4,70,000/- and partly // 4 // allowed the claim application. The appellant (O.P.) is liable to accept the report of the Surveyor, who was appointed by the appellant (O.P.). Hence, the respondent (complainant) filed consumer complaint before the District Forum and prayed for granting relief as mentioned in the relief clause of the complaint.
3. The appellant (O.P.) filed its written statement and denied the allegations made by the respondent (complainant) against the appellant (O.P.) in the complaint. The appellant (O.P.) averred that after getting intimation from the respondent (complainant) regarding the incident, the appellant (O.P.) immediately conducted spot and final survey of the damaged vehicle through Surveyor. The Surveyor held discussion with the respondent (complainant) and assessed Insured Declared Value to the tune of Rs.12,00,000/- on the basis of total loss and on the basis of consent given by the respondent (complainant_, the value of salvage was assessed Rs.2,15,000/-. The vehicle in question was carrying more quantity of Muroom than the prescribed limit and was overloaded at the time of accident, therefore, a sum of Rs.2,46,250/- (i.e. 25% of Rs.9,85,000/-) due to overloading and Rs.1,500/- towards policy excess were deducted and thereafter a sum of Rs.7,37,250/- was deposited by the appellant (O.P.) in the bank account of the respondent (complainant). The loading capacity of the vehicle is question is 16450 Kg (GVW 25000 - ULW 8550 = RLD 16450 Kg. as per permit), but in the vehicle in question 20000 Kg Muroon was // 5 // loaded due to which the gross weight of the vehicle is 28550. As per terms and conditions of the policy the vehicle was insured for gross weight GVW 25000 Kg. Thus, the respondent (complainant) violated the terms and conditions of the insurance policy for which the respondent (complainant) himself is responsible and he is not entitled to get any compensation from the appellant (O.P.). No liability has been accrued on appellant (O.P.) for payment of compensation, but even then the appellant (O.P.) paid a sum of Rs.7,37,250/- to the respondent (complainant) as full and final payment after deducting 25% due to overloading. The respondent (complainant) is not entitled to get any other amount. Thus, the appellant (O.P.) did not commit any deficiency in service. In case of violation of terms and conditions of the insurance policy, the insured is not entitled to get benefit under the policy and is not entitled to get compensation. The appellant (O.P.) did not illegally deducted a sum of Rs.4,70,000/- from the amount of compensation and did not partly allowed the claim and paid the incomplete amount.
4. After having considered the material placed before it by the parties, learned District Forum has allowed the complaint and directed the appellant (O.P.) to pay compensation to the respondent (complainant) as mentioned in para 1 of this order.
5. The respondent (complainant) has filed documents. The documents are photocopies of Certificate of Registration, Certificate of // 6 // Insurance Goods Carrying (Other Than 3 - WH) - Public Carriers - Package Policy issued by the United India Insurance Company Limited, Certificate of Fitness, pass book of the respondent (complainant) in respect of bank account No.10316140265, good vehicle permit, Khatma Prativedan (Final Report) dated 07.06.2013, letter dated 11.03.2013 sent by the respondent (complainant) to the Incharge, Police Station, Sarkanda, Bilaspur (C.G.), letter dated 05.09.2013 sent by R.T.O. Bilaspur to the respondent (complainant), Estimate / Quotation dated 15.03.2013 given by Shivan Motors (P.) Ltd., Abhivahan Pass.
6. The appellant (O.P.) has also filed documents. Document NA Annexure 1 is letter dated 11.03.2013 sent by the respondent (complainant) to Incharge, Police Station, Sarkanda, Bilaspur (C.G.), NA Annexure 2 is Motor Claim Form, NA Annexure 3 is Motor (Spot) Survey Report dated 08.04.2013 of Shri Ajit Kumar Jaiswal, Surveyors and Loss Assessor, NA Annexure 4 is Quotation dated 22.04.2013 of Ialid Mahmood Denting Works, NA Annexure 5 is letter dated 10.06.2013 sent by the respondent (complainant) to the Divisional Manager, United India Insurance Company Limited, Bilaspur (C.G.), NA Annexure 6 is Motor Survey Report Wreak Value dated 25.05.2013 given by Shri Chita Ranjay Patro, Surveyor and Loss Assessor, NA Annexure 7 is Investigation Report dated 14.05.2013 of Shri Vivek Kumar Vishwakarma, Insurance Investigator, NA Annexure 8 is statement of the respondent (complainant), NA Annexure 9 is // 7 // statement of Rakesh Kumar Bareth, NA Annexure 10 is Abhivahan Pass, NA Annexure 11 is Vehicle Particulars, NA Annexure 12 is Good vehicle permit, NA Annexure 13 is Registration for NEFT/RTGS payments, NA Annexure 14 is email sent by Bharat Dash to Reji Rjoommen regarding Claim No.1916003113C050054001 Insured Mr. Rajendra Agrahari, Vehicle No.C.G.10-C-3869 Tata LPK 2518 Date of Accident 11.03.2013, NA Annexure 15 is Khatma Prativedan (Final Report), NA Annexure 16 is Certificate of Insurance Goods Carrying (Other Than 3 - WH) - Public Carriers - Package Policy issued by the United India Insurance Company Limited.
7. Shri M.L. Agrawal, learned counsel appearing for the appellant (O.P.) has argued that the impugned order passed by the District Forum, is erroneous and contrary to law and is liable to be set aside. The respondent (complainant) has violated the terms and conditions of the insurance policy and at the time of the accident, the vehicle was overloaded. The Surveyor discussed with the respondent (complainant) and assessed Insured Declared Value (IDV) of the vehicle to the tune of Rs.12,00,000/- on the basis of total loss and the respondent (complainant) consented that he will take the salvage at the cost of Rs.2,15,000/-. Therefore Rs.2,15,000/- was deducted from Insured Declared Value Rs.12,00,000/- and the total loss comes to the tune of Rs.9,85,000/- and as the vehicle was overloaded at the time of accident, therefore the respondent (complainant) is only entitled to get // 8 // compensation on non-standard basis i.e. 75% of loss assessed Rs.9,85,000/- and after deducting 25% of Rs.9,85,000/- i.e. Rs.2,46,250/- towards overloading , a sum of Rs.7,37,250/- was payable to the respondent (complainant). The appellant (O.P.) has rightly deducted 25% of the assessed loss on the ground of overloading of the vehicle. The respondent (complainant) has received a sum of Rs.7,37,250/- in full and final satisfaction, therefore, the impugned order passed by the District Forum, is erroneous and is liable to be set aside. He placed reliance on Amrita Devi & Ors. Vs. Bajaj Allianz General Insurance Co., through Its Branch Manager, 2014(4) CPR 113 (NC), Revision Petition No.2942 of 2007 - The Oriental Insurance Company Limited, Divisional Office, Madurai Vs. G. Velkumar, decided by Hon'ble National Commission on 30.04.2014.
8. Shri Ramayan Singh Rajput, learned counsel appearing for the respondent (complainant) has supported the impugned order passed by the learned District Forum and has submitted that the impugned order passed by the District Forum, is just and proper and does not suffer from any infirmity or illegality, hence does not call for any interference by this Commission. He further argued that the Surveyor assessed the loss to the tune of Rs.12,00,000/- and the respondent (complainant) consented that he will keep the salvage at Rs.2,15,000/-, therefore, the respondent (complainant) is entitled to get compensation to the tune of Rs.9,85,000/- and instead of Rs.9,85,000/-
// 9 // the appellant (O.P.) only deposited a sum of Rs.7,37,250/- in his bank account. The appellant (O.P.) has wrongly deducted 25% of Rs.9,85,000/- i.e. Rs.2,46,250/- without obtaining consent of the respondent (complainant). The vehicle was not overloaded at the time of incident and the appellant (O.P.) has wrongly deducted the amount, therefore, the respondent (complainant) is entitled to get remaining amount i.e. Rs.2,46,250/- from the appellant (O.P.) and the District Forum has rightly awarded amount of Rs.2,46,250/- which was deducted on the basis of overloading and Rs.100,000/- towards compensation and Rs.2,000/- towards cost of litigation. The impugned order passed by the District Forum, is just and proper and does not call for any interference by this Commission. The appeal filed by the appellant (O.P.) is liable to be dismissed.
9. We have heard the learned counsel for the parties and have also perused the record of the District Forum.
10. It is not disputed that the respondent (complainant) Rajendra Agrahari is registered own of vehicle Highwa bearing registration No.C.G.10-C-3869 and the same was insured with the appellant (O.P.) for the period from 17.09.2012 to 16.09.2013. The Insured Declared Value of the vehicle was Rs.12,00,000/-. It is also not disputed that the vehicle in question met with accident and due to accident, the vehicle caught fire and the vehicle was completely damaged. The appellant // 10 // (O.P.) appointed Shri Ajit Kumar Jaswal as Surveyor, who inspected the vehicle and gave his Surveyor Report dated 08.04.2013 (NA- Annexure - 3) in which the Surveyor has specifically mentioned that the vehicle bearing registration No.C.G.10-C-3869 was completely damaged. NA-Annexure-6 is Motor Survey Report of Engineer Shri Chita Ranjan Patro, dated 25.05.2013 in which he assessed the salvage value to the tune of Rs.2,00,000/-. NA-Annexure-7 is Investigation Report of Shri Vivek Kumar Vishwakarma, Insurance Investigator, dated 14.05.2013. On the basis of above reports, it appears that vehicle in question was completely burnt and damaged.
11. The appellant (O.P.) deducted the amount of Rs.2,46,250/- which is 25% of Rs.9,85,000/-, due to overloading in the vehicle in question at the time of accident.
12 Now, we shall examine whether the appellant (O.P.) is right in deducting the amount of Rs.2,46,250/- due to overloading in vehicle at the time of accident ?
13. The respondent (complainant) filed document i.e. Certificate of Registration of vehicle bearing registration No.C.G.10/C-3869 in which Unladen Weight (U.L.W.). is mentioned 6050 Kgs and Gross Weight (G.V.W.) is mentioned 25,000 Kgs. As per Goods Vehicle Permit, the loading capacity of the vehicle in question is 16450 Kg, Gross Weight is 25000 Kg and Unladen Weight is 8550 Kg. At the time of accident, // 11 // near about 20000 Kg Muroom was loaded in the vehicle in question, due to which the Gross Weight of the vehicle in question became 28550 Kg. As per Certificate of Insurance, the Gross Weight (G.V.W.) is 25000 Kg. It appears that at the time of accident, about 3550 Kg Muroom was loaded in excess in the vehicle in question, which is prima facie violation of the terms and conditions of the insurance policy. The main ground for deducting 25% of Rs.9,85,000/- is that at the time of accident the loading capacity of the vehicle was 16450 Kgs while it was loaded 20000 Kg of Muroom. The gross weight of the vehicle is 25000 Kg and the weight of the Muroom which was loaded in the vehicle was loaded is 20000 Kg, which is more than prescribed limit of the loading capacity.
14. 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 of overloading of a vehicle, beyond licensed carrying capacity, claim preferred by Insured should be paid @ 75% of admissible claim."
15. 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."
// 12 //
16. On the basis of above citations, the respondent (complainant) is entitled to get compensation on non-standard basis i.e. 75% of Rs.9,85,000/-, therefore, the appellant (O.P.) has rightly deducted a sum of Rs.2,46,250/- i.e. 25% of Rs.9,85,000/- towards overloading and paid a sum of Rs.7,37,250/- to the respondent (complainant). The respondent is not entitled to get a sum of Rs.2,46,250/-, Rs.1,00,000/- towards compensation and Rs.2,000/- towards cost of litigation.
17. Therefore, the impugned order passed by the District Forum, suffers from infirmity, irregularity and illegality and is liable to be set aside.
18. Hence, we allow the appeal filed by the appellant (O.P.) and set aside the impugned order dated 29.01.2015, passed by the District Forum. Consequently, the complaint filed by the respondent (complainant) also stands dismissed. No order as to the cost of this appeal.
(Justice R.S. Sharma) (Ms. Heena Thakkar) (D.K. Poddar) (Narendra Gupta) President Member Member Member /02/2016 /02/2016 /02/2016 /02/2016