State Consumer Disputes Redressal Commission
New India Assurance Co. Ltd, Branch ... vs B.Sankaraiahs/O.Venkatesh Kadapa ... on 9 November, 2009
FA BEFORE THE ADDITIONAL BENCH OF A.P STATE CONSUMER DISPUTES REDRESSAL COMMISSION AT HYDERABAD. FA.No.1472/2007 AGAINST C.C.No.104/2006 DISTRICT FORUM, KADAPA Between: New India Assurance Co. Ltd., Branch office, Kadapa, Represented by its Divisional Manager, Divisional Office, Nagarajupet, Kadapa Appellant/ Opp.party. And B.Sankaraiah S/o.Venkatesh, aged 39 years, Owner of Jeep AP 04 U 2665 R/o.H.No.43/80, Bosenagar, Rayachoty, Kadapa District. Respondent/ Complainant Counsel for the Appellant: Mr.Katta Laxmi Prasad Counsel for the Respondent:Mr.M.N.Narasimha Reddy. FA.No.1044/2009 AGAINST C.C.No.104/2006 DISTRICT FORUM, KADAPA Between: B.Sankaraiah S/o.Venkatesh, aged 40 years, R/o.H.No.43-80, Bosenagar, Rayachoty, Kadapa District. Appellant/ Complainant A N D The New India Assurance Co. Ltd., Represented by its Divisional Manager, Divisional Office, Nagarjunapet, Kadapa District. Respondent/ Opp.party. Counsel for the Appellant: M/s.M.N.Narasimha Reddy Counsel for the Respondent:-Mr.Katta Laxmi Prasad QUORUM: SMT.M.SHREESHA, MEMBER
& SRI K.SATYANAND, MEMBER MONDAY, THE NINTH DAY OF NOVEMBER, TWO THOUSAND NINE (Typed to the dictation of Sri K.Satyanand,Honble Member) *** These appeals are disposed of by a common order since both these appeals arise out of order in the same C.D. The appeal, F.A.No.1472/2007, is filed by the opposite party, insurance company, assailing the order of the District Forum imposing the liability corresponding to the reliefs prayed by the complainant. Not satisfied with the relief granted by the District Forum, the complainant filed appeal, F.A.No.1044/2009.
The facts that lead to filing these appeals are briefly as follows:
The complainant is the owner of jeep bearing No. AP 04 U 2665 insured with the opposite party for Rs.2,60,000/- as Luxury Tourist cab with permission to carry six persons including driver under policy No.611201/31/04/05178 valid for the period from 22-1-2005 to 21-1-2006. On 18-1-2006 the said jeep was engaged from Rayachoty to Bangalore for hire and met with an accident near CTM road, Bapuji park, Reddappa Naidu Colony, Madanapalli at 11.00 p.m. and was hit by a bus coming in the opposite direction causing total damage to the vehicle and injuries to the passengers and also resulting in death of two persons. The 2 town Police Station, Madanapalli registered a case in Cr.No.12/2006. The complainant submitted a claim to the opposite party along with relevant documents and claimed total damages of Rs.2,60,000/- and handed over the jeep to the opposite party company. But the complainant received a letter dt.30-8-2006 from the opposite party repudiating the claim on the ground that there were excess passengers in the jeep and the accident was on account of excess passengers. Hence the complainant filed the complaint claiming Rs.2,60,000/- towards damages with interest at 24% p.a. from 19-1-2006 till the date of payment and costs.
The opposite party filed counter admitting the ownership of the jeep and admitted the policy with validity period for Rs.2,60,000/- as sum assured and issued the policy covering own damages of Rs.2,50,000/-. It admitted the intimation given by the complainant about the accident on 19-1-2006. It submitted that they appointed a surveyor, namely, Y.Nizamuddin, to conduct spot survey and G.Venkataramaraju, as surveyor for final survey. The surveyor submitted his report and estimated the loss at Rs.1,45,500/-. The complainant also submitted the copy of FIR of Madanapalli and it was found that the complainant was carrying 13 persons including driver at the time of accident against permitted capacity of six persons including driver. It therefore submitted that there was no deficiency in service and the claim was rightly repudiated.
In support of his case, the complainant filed his own affidavit and relied upon documents Exs.A1 to A5. On the other hand the opposite party, insurance company relied upon documents marked as Exs.B1 to B4 On a consideration of the evidence adduced, the District Forum upheld the claim of the complainant and directed the opposite party to pay Rs.1,45,000/- together with costs of Rs.500/-.
Aggrieved by the said order, F.A.No.1472/2007, is filed by the opposite party and F.A.No.1044/2009 is filed by the complainant.
The appellant/opposite party in F.A.No.1472/2007 contended that the District Forum failed to consider the insurance coverage and the terms and conditions of the policy which govern the validity and limited liability. It contended that the claim is maintainable only if the vehicle is plied as per the terms and conditions of the policy and the District Forum failed to note that over carriage is violation of the terms and conditions The appellant/complainant in F.A.No.1044/2009 on the other hand contended that the reasoning given by the District Forum to restrict the claim is contrary to evidence on record and law and the District Forum ought not to have restricted the claim to Rs.1,45,000/-.
Heard both sides.
The points that arise for consideration in these appeals are:
1.
Whether the complainant could prove that the repudiation of his claim by the insurance company was unjustified and therefore guilty of deficiency in service?
2. If so, whether the relief granted by the District Forum is correct?
3. Whether there are any grounds to interfere with the order of the District Forum?
4. To what result?
It is obvious from the narration of facts that the insurance claim in question is for own damages occasioned by vehicle in question belonging to the claimant having met with an accident.
This case has to be therefore treated applying the law relevant to own damages covered by comprehensive policy, of late, called package policy, in contradistinction to Act Policy pure and simple which is also renamed as liability only policy designed by statute to protect the interests of unwary victims, third party to the insurance contract.
The facts in this case make it more than clear that it is a case of own damage to the vehicle that met with accident and it belonged to the complainant. The insurance company co-operated with the complainant by taking all the steps as appointing a surveyor in the process of adjudicating the claim of the complainant. After all that spade work, while taking the final decision on the claim, the ground that the insured violated the policy condition by allowing 13 inmates including the driver to travel in that commercial vehicle whereas the certificate of registration and the transport permit provided for carrying only 5+1 persons weighed with it and therefore repudiated the claim on that ground. It drew confirmation to the factum of such violation from the complainants own documents especially the FIR that referred to the signed information given by the informant who categorically mentioned therein specifically the number of persons travelling in the vehicle as 12 excluding the driver. A recent decision of the Honble Supreme Court reported in I (2008) CPJ 1 (SC) in NEW INDIA ASSURANCE CO. LTD., v. PRABHU LAL though rendered in connection with the breach of condition in relation to the aspect of the driver not having appropriate license nevertheless has the general effect of holding that the violation of the conditions of the policy would entail justifiable repudiation. But a case nearer to the facts of this case decided by the Honble Supreme Court, reported as II (1996) CPJ 18(SC) in B.V.NAGARAJU v. M/S.ORIENTAL INSURANCE CO. LTD., DIVISIONAL OFFICE HASSAN. came to be relied upon by the counsel for the complainant. It is however pertinent to point out that the said case relied upon an earlier case reported in AIR 1987 SUPREME COURT 1184 in SKANDIA INSURANCE CO. LTD., v. KOKILABEN CHANDRAVADAN AND OTHERS which dealt with a situation in which the third party risk fell for consideration. Be that as it may, the former decision which is later in point of time categorically observed that carrying excess passengers though irregular cannot be characterized as so fundamental in nature 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.
Thus, the ground taken by the insurance company hardly holds water to justify the repudiation in view of the above mentioned judgement of the Supreme Court which came to be relied upon in a number of decisions rendered by the National Commission of which I (2009) CPJ 299 (NC) appears to be of recent origin. Thus the repudiation turned out to be untenable. This circumstances marks the deficiency in service on the part of the insurance company. It is therefore in this view of the matter that the District Forum gave a finding of deficiency of service against the insurance company. There are no justifiable grounds to overturn the said finding of the District Forum.
Now we move to the claim of enhancement sought by the appellant/complainant. The District Forum awarded the compensation as quantified by the surveyor. The complainant/appellant did not show any circumstances to differ from such quantification and the material already available on record especially the documents filed by the complainant did not throw any light upon the actuals spent by him towards the repairs. Likewise there is also no independent evidence adduced by him assessing the extent of damage and the estimate of the cost of repair of such damage. Thus we do not see any grounds to enhance the quantum.
Now reverting to the appeal filed by the insurance company, it is all the more devoid of merits as its repudiation is already found to be incapable of being justified. In these circumstances the appeal of the insurance company cannot but also fail.
Thus in the result both the appeals fail and accordingly dismissed but without costs in the circumstances of the case. The opposite party is granted a time of six weeks after the receipt of this order to comply with the order of the District Forum.
Sd/-MEMBER.
Sd/-MEMBER.
JM Dt.09-11-2009