State Consumer Disputes Redressal Commission
Donald Kulbhushan Bara vs B.M. Dava Vibhag National Insurance ... on 26 April, 2017
CHHATTISGARH STATE
CONSUMER DISPUTES REDRESSAL COMMISSION,
PANDRI, RAIPUR (C.G).
Appeal No.FA/2016/777
Instituted on : 28.01.2017
Donald Kulbhushan Bara, S/o Balter Bara,
Aged 32 years,
Address : 539, Katul Board, Harinagar,
Durg, Tehsil and District Durg (C.G.). ... Appellant/Complainant
Vs.
Branch Manager Claim Department,
National Insurance Company Limited,
Branch Office - 02, Second Floor, Dubey Complex,
G.E. Road, Near New Bastant Talkies, Power House,
Bhilai, Tehsil and District Durg (C.G.) .... Respondent/Opposite Party
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 Daneshwar Prasad Dubey, Advocate for the appellant (complainant).
Shri P.K. Paul, Advocate for the respondent (O.P.).
ORDER
DATED : 26/04/2017 PER :- HON'BLE SHRI JUSTICE R.S. SHARMA, PRESIDENT.
This appeal is directed against the order dated 24.10.2016, passed by District Consumer Disputes Redressal Forum, Durg (C.G.) (henceforth "District Forum") in Complaint Case No.CC/2015/779. By the impugned order, the learned District Forum, has dismissed the complaint of the complainant.
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2. Briefly stated the facts of the complaint of the complainant are that the complainant is registered owner of vehicle Tavera bearing registration No.C.G.07-LN-7771, which was insured with the O.P. for the period from 16.08.2012 to 15.08.2013. The Insured Declared Value of the vehicle was Rs.4,50,000/-. A sum of Rs.12,475/- was paid towards premium. The vehicle was taken by Manish Thakur, who was family friend of the complainant, for treatment of his father and on 24.09.2012 he was returning to Durg from Jagdalpur, when the vehicle reached near National Highway Road No.30 Village Jaitpuri, Police Station, Kondagaon, all of sudden cow and ox came in the road and the driver of the vehicle tried to save the cow and ox, therefore, the vehicle dashed with a mango tree, and the vehicle was badly damaged. Intimation regarding the accident was given by the complainant to concerned Police Station and O.P. immediately. The O.P. appointed A.K. Raizada as Surveyor. The vehicle was brought to the Garage of repairer situated at Durg by truck of Jawahar Goods Transport. The complainant deposited Rs.19,000/- to the transporter. Gurunanak Denting & Painting Works, Durg gave estimate of Rs.7,72,670/- to the complainant. The complainant sent the estimate to the O.P. The complainant incurred Rs.6,87,370/- for parts and Rs.85,300/- towards repairing charges totaling Rs.7,72,670/-. The complainant submitted claim before the O.P. but the O.P. did not settle the claim of the complainant. The Surveyor assessed the loss to the tune of Rs.4,50,000/-. The complainant sent letter to the O.P. but the O.P. did not give response thereto. The O.P. pressurissed the complainant to keep the salvage with him at the // 3 // cost of Rs.1,60,000/- and when the complainant will take the salvage, then only Insurance Company will pay the remaining amount to the complainant. The complainant expressed his inability to keep the salvage. The O.P. did not settle the claim of the complainant. Hence, the complainant filed instant complaint before the District Forum and prayed for granting reliefs, as mentioned in the compliant.
3. The O.P. filed its written statement and averred that the vehicle bearing registration No.C.G.07-LN-771 was insured with the O.P. The O.P. sent a letter to the complainant in which it is mentioned that the vehicle was being used otherwise than its limitations as to use under the policy terms and conditions. It is evident from the certified copy of the statements of the applicant Usha Bai in M.AC.T Case No.66/2013, at A.M.A.C.T., Durg that above vehicle was being used for hire or reward which is a clear breach of the Private Car Policy. The policy was issued for private car, but the vehicle was being used for hire or reward, which is clear breach of terms and conditions of the policy. A.K. Raizada was appointed by the O.P. as Surveyor, who assessed the loss to the tune of Rs.2,88,000/-. The O.P. sent letter to the complainant on 26.04.2013, 20.05.2013 and 13.09.2013. The claim of the complainant was repudiated by the O.P. according to the terms and conditions of the policy because he violated the terms and conditions of the policy. The complainant filed a complaint regarding his claim before Permanent Lok Adalat, Durg and the O.P. filed Writ Petition (227) No.879 of 2014 before // 4 // Hon'ble High Court of Chhattisgarh, Bilaspur against the order of Permanent Lok Adalat. Vide order dated 03.11.2015, Hon'ble High Court had allowed the writ petition and set aside the order passed by Public Utility Permanent Lok Adalat, Durg. The claim case of the complainant was settled by the High Court. The complaint is liable to be dismissed. The complaint is not maintainable before the District Forum, because vide order dated 03.11.2015 passed by Hon'ble High Court, his claim has been settled.
4. The complainant has filed documents. Annexure A-1 is insurance policy, Annexure A-2 is Certificate of Registration, Annexure A-3 is driving licence of Narendra Kumar, Annexure A-4 is First Information Report, Annexure A-5 is bill dated 18.02.2013 issued by Jawahar Goods Transport, Annexure A-6 is estimate of Gurunanak Denting and Painting Works dated 24.10.2012, Annexure A-7 is terms and conditions of Private Car Package Policy, Annexure A-8 is letter dated 26.04.2013 sent by the O.P. to the complainant, Annexure A-9 is letter dated 26.04.2013 sent by the O.P. to the complainant, Annexure A-10 is letter dated 20.05.2013 sent by the O.P. to the complainant, Annexure A-11 is letter dated 13.09.2013 sent by the O.P. to the complainant, Annexure A-12 is letter dated 27.02.2013 sent by the complainant to Senior Divisional Manager, D.O., National Insurance Co. Ltd., Annexure A-13 is letter dated 27.05.2013 sent by the complainant to Branch Manager, National Insurance Co. Ltd., Bhilai (C.G.), Annexure A-14 is affidavit of the complainant, Annexure A-15 is letter dated 10.05.2013 sent by // 5 // the complainant to Branch Manager, National Insurance Company Ltd., Bhilai (C.G.), Annexure A-16 is letter dated 13.09.2013 sent by the complainant to the Branch Manager, National Insurance Company Limited, Bhilai (C.G.), Annexure A-17 is letter dated 28.10.2013 sent by the O.P. to the complainant, Annexure A-18 is letter dated 30.03.2013 sent by Shri Ajay Nigam, Insurance Claim Investigator, Annexure A-19 is Order dated 3.11.2015 of High Court of Chhattisgarh, Bilaspur in Writ Petition (227) No.879 of 2014.
5. The O.P. has also filed documents. Annexure NA No.1 is order dated 03.11.2015 of High Court of Chhattisgarh, Bilaspur in Writ Petition (227) No.879 of 2014, Annexure NA No.2 is letter dated 28.10.2013 sent by the O.P. to the complainant, Annexure NA No.3 is affidavit of Usha in the case of Smt. Usha Bai and others Vs. Donal Kulbhushan & Others before 5th Motor Accident Claim Tribunal, Annexure NA No.4 is policy schedule, Annexure NA No.5 is Motor Claim Form, Annexure NA No.6 is Motor Spot /Final Survey Report dated 02.07.2013 of Nanda and Nanda Associates, Surveyor, Valuer and Loss Assessor, Annexure NA No.7 is Motor Spot Survey Report dated 21.11.2012 of Er. A.K. Raizada.
6. Learned District Forum after having considered the material placed before it by both the parties, has dismissed the complaint by the impugned order.
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7. Shri Daneshwar Prasad Dubey, learned counsel appearing for the appellant (complainant) has argued that the appellant (complainant) is registered owner of vehicle Tavera bearing registration No.C.G.07-LN-7771, which was insured with the O.P. for the period from 16.08.2012 to 15.08.2013. On 24.09.2012 the family friend of the appellant (complainant) had taken the vehicle in question and wehnt to Jagdalpur and when he was returning to Durg from Jagdalpur , the vehicle reached National Highway Road No.30 near Village Jaitpuri, Police Station Kondagaon, all of a sudden cow and ox came in the road and the driver of the vehicle tried to save the cow and ox, therefore, the vehicle dashed with a mango tree, and the vehicle was badly damaged. The Intimation regarding the accident was given by the O.P. immediately. The Surveyor was appointed by the O.P., who assessed the loss, but the O.P. repudiated he claim of complainant on the ground that the vehicle was given on hire or reward, which is violation of terms and conditions of the insruance policy and learned District Forum has dismissed the complaint of the complaint on the above ground. The complainant was not using the vehicle in violation of terms and conditions of the insurance policy. The vehicle was not given on hire or reward, but it was being used by the family friend of the appellant (complainant) and the vehicle was taken by his friends for going to Jagdalpur for treatment of his father, therefore, the appellant (complainant) has not violated any terms and conditions of the insurance policy. The appellant (complainant) is entitled to get compensation from the respondent (O.P.). Even if the vehicle in question was carrying some // 7 // passengers, even then the appellant (complainant) is entitled to get compensation on non-standard basis. The impugned order passed by the District Forum, is erroneous and is liable to be set aside. The appeal be allowed.
8. Shri P.K. Paul, learned counsel appearing for the respondent (O.P.) has argued that it is evident from the certified copy of the statements of the applicant Usha Bai in M.AC.T Case No.66/2013, at A.M.A.C.T., Durg that above vehicle was being used for hire or reward which is a clear breach of the Private Car Policy. The policy was obtained for private car, but the vehicle was being used as taxi. A.K. Raizada was appointed by the respondent (O.P.) as Surveyor, who assessed the loss to the tune of Rs.2,88,000/-. The claim of the appellant (complainant) was declared as "no claim" by the respondent (O.P.) according to the terms and conditions of the policy. The respondent (O.P.) did not commit any deficiency in service. The impugned order passed by the District Forum, is just and proper and does not call for any interference by this Commission. He placed reliance on Dr. Tarunjit Dutta Roy Vs. The Branch Manager, The New India Assurance Company Limited, 2013 NCJ 418 (NC); Oriental Insurance Company Limited Vs. Shyam Sunder, II (2014) CPJ 567 (NC); National Insurance Company Limited Vs. Meena Agrawal, 2009 ACJ 666 (SC); T.N. Das Vs. Oriental Insurance Company Limited & Ors. IV (2012) CPJ 438 (NC); Regional Manager Oriental Insurance Company Limited &Another Vs. Pramod Kumar Nahak, 2013 (1) C.G.L.J. 1 (CCC) decided by this Commission on 21.05.2012.
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9. 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.
10. In the instant case, the policy was issued for private car package. In the insurance policy, the limitation as to use is mentioned, which runs thus :-
"Limitation as to use :
The Policy covers use of the Vehicle for any purpose other than
a) Hire or Reward
b) Carriage of Goods (other than samples of personal luggage),
c) Organized racing.
d) Pace making,
e) Speed Testing and Reliability Trials.
f) Use in connection with Motor Trade"
11. Annexure A-4 is copy of First Information Report. The First Information Report was lodged by the appellant (complainant) himself in Police Station Kondagaon. In the First Information Report, it is mentioned that on 24.09.2012 he was in his shop and received telephonic information that his vehicle Tavera bearing registration No.C.G.07-LN7771 was returning from Jagdalpur to Durg after taking treatment and when the vehicle reached near Village Jaitpuri, the vehicle dashed with a mango tree, at that time the vehicle was being driven by Narendra Kumar Sahu and he was driving the vehicle // 9 // rashly and negligently. In the vehicle at that time Nand Kumar, Manish Thakur were sitting in the vehicle and they sustained injuries.
12. The respondent (O.P.) has filed statement of Smt. Usha Bai recorded in the Court of 5th Additional Motor Accident Claims Tribunal, Durg in which she stated that deceased Nand Kumar Thakur was her husband. On 24.09.2012 at about 7.00 P.M. her husband Nand Kumar Thakur, Pappu, Manish were returning from Jagdalpur to Durg and near Village Jaitpuri the vehicle met with an accident. Her husband and her son Manish sustained grievous injuries and her husband succumbed due to injuries sustained by him. In cross-examination Smt. Usha Bai specifically stated that Non Applicant No.1 (complainant of the instant complaint) is having more than one vehicle and he is using the vehicles as Taxi. The Non Applicant No.1 is resident of her mohalla (Ward), therefore, she knows regarding his vehicles. The Non-applicant was using two Tavera vehicles as taxi.
13. A.K. Raizada, who was appointed as Surveyor and Loss Assessor by the respondent (O.P.) has specifically mentioned in his report that "at the time of accident three passengers were sitting in the vehicle." It shows that the vehicle was given on hire or reward to Manish Thakur. The vehicle was insured under Private Car Package as against which it was being used as Taxi for hire or reward. It appears that at the time of accident, the vehicle in question was being used as tax for hire or reward and three passengers were sitting in the vehicle at the time of accident. Looking to the above cited // 10 // judgments, it appears that the terms and conditions of the policy were violated by the appellant (complainant), therefore, the respondent (O.P.) has rightly declared the claim of the appellant (complainant) as "No claim.
14. In the case of S.G. Shivamurtheppa vs Reliance General Insurance Company Limited I (2012) CPJ 175 (NC), Hon'ble National Commission has observed that "Motor vehicle was registered for carriage of passengers not exceeding to 12 - At time of accident, vehicle was instead carrying 16 persons
- There was explicit and admitted violation of condition of insurance policy and so, claim rightly repudiated by Insurance Company. "
15. In National Insurance Co. Ltd. Vs. Meena Agrawal (Supra), Hon'ble Supreme Court has observed thus :-
"Motor Insurance - Damage to vehicle - Repudiation of claim - Van was damaged in accident and insured claimed damages - Claim was rejected by insurance company on the ground that driver was not possessing a valid driving licence and the van, a private vehicle insured for personal use, was being used as a taxi for hire - Owner filed complaint before District Forum under Consumer Protection Act which was rejected - State Commission declared the claim as "non-standard", held that there was no fundamental breach of terms of policy and directed the insurance company to pay Rs.90,000
- National Commission held that even though vehicle was being used as a commercial vehicle and driver had no valid licence, there was no fundamental breach of terms of policy and dismissed the revision filed by insurance company. Whether insurance company was justified in repudiating the claim
- Held : yes."
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16. In T.N. Das Vs. Oriental Insurance Company Limited (Supra), Hon'ble National Commission has observed thus :-
"2. ........ the said vehicle was used for hire or reward at the relevant time and owner of the vehicle had parted away with the possession of the vehicle without intimating the Insurance Company and hence the Insurance Company was not liable to pay any amount by way of compensation to the petitioner / complainant on account of damages to the insured vehicle in the road accident. After hearing the parties and considering the documents placed before it, the District Forum agreed with the defence taken by the Insurance Company that the insured vehicle was taken on hire or reward by the Government and dismissed the complaint by the impugned order. As stated above, the State Commission vide its impugned order also upheld the order of the District Forum and dismissed the appeal of the petitioner.
17. In Neelmani Sahu Vs. I.C.I.C.I. Lombard General Insurance, 2014 (3) CLT 551, this Commission has observed thus :-
"11. In M.A. (C) No.842 / 2011 State of Chhattisgarh and another vs. Digamber Sahu and others, vide order dated 29th June, 2012, Division Bench of High Court of Chhattisgarh has held that :-
"10. So far as wrongly fastening of liability upon the appellants is concerned it is not in dispute that at the relevant point of time, the offending Vehicle was requisitioned by the Collector/Returning Officer under Section 160 of the Act, 1951 for the purpose of Lok Sabha election of the year 2009. In such a state of affairs, although driver/respondent No. 1 Digambar Sahu was an employee of the owner/respondent No.2 Prashant Sahu, but as the vehicle was compulsorily requisitioned under the Statute by the Collector/Returning Officer for election purposes, therefore, there was no control of the owner/respondent No.2 over the offending vehicle and the same was entirely under the control of the appellants. As such, respondents No.2 & 3 i.e. owner // 12 // and insurance company are not liable for payment of compensation, jointly and severally, alongwith driver/respondent No.1 in view of the law laid down by the Hon'ble Supreme Court in the case of National Insurance Co. Ltd. Vs. Deepa Devi and other, AIR 2008 SC 73. In view of the above, the objection raised by the appellants/State in this regard is also not tenable and is, therefore, rejected."
18. In Shakeel Ahmed Vs. National Insurance Company Limited, 2015 (2) CPR 568 (NC), Hon'ble National Commission has observed thus :-
"5. The learned counsel for the complainant / petitioner relies upon the decision of the Hon'ble Supreme Court in B.V. Nagaraju vs. Oriental Insurance Company Ltd. (1996) 4 SCC 647, the learned counsel for the respondent relies upon the subsequent decision of the Hon'ble Apex Court in National Insurance Company Limited Vs. Savitri Devi & Others (2013) 11 SCC 554. A perusal of the decision of the Hon'ble Apex Court in B.V. Nagaraju (supra) would show that at the time the vehicle met with an accident, it was carrying not only 9 persons including the driver of the vehicle but also the goods belonging to the persons who were travelling in the vehicle. The fact that the vehicle was carrying only the goods and the owners of those goods clearly shows that primarily it was being used as a goods carrying vehicle and not as a passenger vehicle. The learned counsel for the petitioner draws my attention to para 7 of the decision whether the Hon'ble Apex Court interalia observed that the workmen who were 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 and therefore, they could not have contributed to the causing of the accident. It was also noticed by the Hon'ble Apex Court that it was not the case of anybody that the driver was responsible for the accident. In Savitri Devi (supra) it was found that a barat was being carried in the vehicle which had been registered as a goods vehicle. Allowing the appeal filed by the Insurance Company, the Hon'ble Apex Court interalia noted that the // 13 // Insurance Company would not know unless the accident takes place as to what purpose the vehicle in question was being used. It was further observed that the terms and conditions of the policy were clear and categorical and created a specific bar on carrying the passenger except the employees othe than the persons not exceeding 6 in number. It would thus be seen that in Savitri Devi (supra), only passengers were found travelling in the vehicle at the time it met with an accident, whereas in B.V. Nagaraju (supra), goods were also found loaded in the vehicle and the passengers travelling in the said vehicles were none other than the owners of those goods. Therefore, in Savitri Devi (supra), the complainant was being used predominantly for carrying passengers at the time it met with an accident whereas it was being used primarily for carrying goods in B.V. Nagaraju (supra) when it met with the accident."
19. In National Insurance Company Limited Vs. Savitri Devi and Others, (2013) 11 SCC 554, Hon'ble Supreme Court has observed thus :-
"8. After having gone through the award of the Claims Tribunal and the judgment and order National Insurance Co. Ltd. V. Savitri Devi, FAO No.143 of 2000, decided on 28-7-2005 (HP), passed by the learned Single Judge of the High Court, we are not able to understand as to how it has been found that the appellant Insurance Company can still be held liable to pay the amount of compensation as there has been a categorical finding by both the courts recording that the vehicle in question was insured only as "goods carrying vehicle". The custom of carrying barat in the village on the said truck will not be sufficient to hold the appellant Insurance Company liable to pay the amount of compensation. Admittedly, the appellant Insurance Company would not know unless the accident takes place as to for what purpose the vehicle in question was being used. The terms and conditions of the insurance policy are very clear and categorical and it creates a specific bar on carrying of any passengers, except the employees other than the driver, not exceeding six // 14 // (6) in number, who should also come under the purview of the Workmen's Compensation Act.
9. The specific case of the claimants was that the barat was being taken in the said open truck on 12-11-1996 when the accident had taken place. Thus, according to us, it clearly violates the terms and conditions of the policy."
20. In the instant case also, the vehicle was being used as taxi whereas the vehicle was insured as private car, therefore, the respondent (O.P.) has rightly declared the claim of the appellant (complainant) as "No Claim". On the basis of above cited judgments, the impugned order of the District Forum, does not suffer from any jurisdictional error, illegality or irregularity and does not call any interference by this Commission.
21. In view of above discussions, the appeal filed by the appellant (complainant) being devoid of any merits, deserves to be and is hereby dismissed. No order as to the cost of this appeal.
(Justice R.S. Sharma) (D.K. Poddar) (Narendra Gupta)
President Member Member
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