National Consumer Disputes Redressal
New India Assurance Co. Ltd. vs Ishwar Singh Rathore on 15 January, 2015
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI REVISION PETITION NO. 4197 OF 2008 (From the order dated 12.08.2008 in Appeal No. 449/2007 of H.P. State Consumer Disputes Redressal Commission) New India Assurance Co. Ltd. Through its duly Constituted Attorney, Manager, Regional Office I, Jeevan Bharti, Tower II, Level 5, 124, Connaught Circus, New Delhi 110001. ... Petitioner/Opposite Party Versus Ishwar Singh Rathore s/o Sh. Surat Singh Village Jarawa, P.O. Bharanoo, Tehsil Chopal, District Shimla Himachal Pradesh Respondents/Complainant BEFORE HONBLE MR. JUSTICE K.S. CHAUDHARI, PRESIDING MEMBER For the Petitioner Mr. Abhishek Kumar, Advocate For the Respondents Shri Sameer Shrivastava, Adv. Shri Kuldeep Singh, Adv. PRONOUNCED ON : 15th JANUARY 2015 O R D E R
PER JUSTICE K.S. CHAUDHARI, PRESIDING MEMBER This revision petition has been filed by the petitioner against the impugned order dated 12.08.2008 passed by the Himachal Pradesh State Consumer Disputes Redressal Commission (for short the State Commission) in Appeal No. 449/2007, The New India Assurance Co. Ltd. versus Ishwar Singh Rathore by which while dismissing the appeal, order of District Forum allowing the complaint was upheld.
2. Brief facts of the case are that complainant/respondent was registered owner of Tata Truck bearing registration No. HP-08-0755, which was insured with opposite party / petitioner for a period of one year from 28.05.2003 to 27.05.2004. The truck was hired by HPPWD for purposes of transportation and carriage of material.
On 21.05.2004 truck met with an accident and fell into nallah on account of which vehicle was damaged totally and persons including driver and conductor died on the spot. An FIR was lodged. Complainant spent a sum of ₹ 3,82,619/- on repairs. As claim was not allowed by opposite party, alleging deficiency in service on the part of the Opposite Party, complainant filed a complaint with the District Forum. Opposite Party resisted the complaint and submitted that 36 persons were travelling in the truck at the time of accident, which was in violation of the terms and conditions of the policy and prayed for dismissal of complaint. Learned District Forum after hearing both the parties allowed complaint and directed Opposite Party to pay a sum of ₹3,50,000/- with interest @ 9% p.a. and further allowed ₹ 3500/- as litigation cost.
Appeal filed by opposite party was dismissed by State Commission vide impugned order against which this revision petition has been filed.
3. Heard learned counsel for both the parties and perused the record.
4. Learned counsel for petitioner submitted that in spite of clear violation of terms and conditions of policy, learned District Forum committed error in allowing complaint and learned State Commission further committed error in dismissing appeal, hence revision petition be allowed and impugned order be set aside.
5. On the other hand, learned counsel for respondent submitted that on account of concurrent finding and as order passed by State Commission is in accordance with law, revision petition be dismissed.
6. It is admitted case of the parties that complainants vehicle was truck with capacity of 1 + 2 including driver and it was insured with opposite party at the time of accident. Admittedly, it was a goods vehicle but at the time of accident 34 / 36 persons were travelling in the vehicle and on account of accident 29 persons died and 5 persons sustained injuries. Thus, there was clear violation of the terms and conditions of policy. As per policy and registration certificate of the vehicle only 3 persons were allowed to sit in the vehicle whereas at the time of accident 34 / 36 persons were travelling in the vehicle.
7. Learned District Forum allowed complaint on the basis of insurance coverage given by opposite party and learned State Commission upheld on the ground that at the time of accident vehicle was attached with HPPWD and opposite party could not prove at whose instance the persons were travelling in the vehicle. It is immaterial at whose instance persons were travelling in the vehicle but it is admitted fact that instead of capacity of 3 persons 34 / 36 persons were travelling in the vehicle at the time of accident which is clear cut violation of the terms and conditions of the policy. This Commission in RP No. 2984/2007, Oriental Insurance Co. Ltd. versus Ashwani Kumar dismissed claim as 54 persons were travelling in the truck at the time of accident. As there was gross violation of the terms and conditions of policy, learned District Forum committed error in allowing complaint and learned State Commission further committed error in dismissing appeal and revision petition is to be allowed.
8. Learned counsel for respondent placed reliance on judgment of this Commission in RP No. 3012 / 2005, SBI versus Ch. Gopalaiah in which it was held that this Commission while exercising revisional jurisdiction can interfere with the order of State Commission only if it has exercised jurisdiction not vested in it by law or has failed to exercise jurisdiction so vested, or has acted in the exercise of its jurisdiction illegally or with material irregularity.
9. I agree with the proposition of law laid down in aforesaid judgment but in the case in hand, District Forum allowed complaint against the settled principles of law and State Commission further committed error in dismissing appeal without any cogent reason and acted in the exercise of its jurisdiction illegally or with material irregularity and in such circumstances, impugned order is liable to set aside.
10. Consequently, revision petition by the petitioner is allowed and impugned order dated 12.08.2008 in The New India Assurance Company Ltd. versus Sh. Ishwar Singh Rathore and order of District Forum dated 14.08.2007 in complaint No. 31/2007 Ishwar Singh Rathore vs. The New India Assurance Co. Ltd. is set aside and complaint stands dismissed with no order as to costs.
Sd/-
(K.S. CHAUDHARI J.) PRESIDING MEMBER RS/