State Consumer Disputes Redressal Commission
The Oriental Insurance Co. vs Chajuram on 26 February, 2009
Appeal No.713/07 Tej Ram Mali V. ICICI Lombard General Insurance Co.Ltd. Before: Mr.Justice Sunil Kumar Garg-President Mrs.Vimla Sethiya-Member
Shri Amit Kumar Soni,counsel for the appellant Shri Jitendra Mitruka,counsel for the respondent Date of judgement: 26.2.2009 This appeal has been filed by the complainant appellant for enhancement of the amount against the order dated 13.3.07 passed by the District Forum,Udaipur in complaint no.157/2005,by which the complaint of the complainant appellant was allowed against the respondent insurance company in the manner that the respondent insurance company was directed to pay a sum of Rs.2,49,950/- to the complainant appellant.
It arises in the following circusmtances:
That the complainant appellant had filed a complaint against the respondent insurance company before the District Forum,Udaipur on
2.9.05 interalia stating that he has got his Toyata Qualis bearing no.RJ.1C.5431 insured with the respondent insurance company for the period 26.2.05 to 25.2.06 for a sum of Rs.4,50,000/-. It was further stated in the complaint that on 20.6.05 when the car was coming from Udaipur the same was collided with a tree as a result of which the car was 2 severally damaged and a report of the incident was lodged with the police station,Nathdhwara bearing FIR no.173/05. It was further stated in the complaint that in getting the repair of the vehicle, a sum of Rs.5,78,653/- were spent and information of the incident was also given to the office of the respondent insurance company,but the claim was repudiated by the respondent insurance company through letter dated 22.9.05 interalia stating that -
"As per our investigation report vehicle is using for taxi purpose,so we are unable to pay under the private car package policy."
Thereafter the present complaint was filed.
A reply was filed by the respondent insurance company before the District Forum,Udaipur on 19.1.06 and in the reply they have taken the same pleas which were taken in the repudiation letter dated 22.9.05 and it was prayed that the complaint be dismissed.
The District Forum after hearing both the parties,through the impugned order dated 13.3.07 had allowed the complaint interalia holding that at the time of accident,the vehicle in question was not being used for hire purposes and taking into consideration the loss as assessed by the surveyor,Shri Ramesh Chandra Sharma which was to the tune of Rs.2,49,950/- and that amount was ordered to be paid by the respondent insurance company to the complainant appellant.
Aggrieved from that order,this appeal has been filed by the complainant appellant.
In this appeal,the main contention of the learned counsel for the complainant appellant is that the loss assessed by the surveyor could not be said to be correct assessment of the loss as the surveyor had not taken into consideration all the aspects relating to the damage to the vehicle 3 and further since the complainant appellant had paid more amount to the workshop for the repair of the vehicle than the amount assessed by the surveyor,therefore,some more amount must have been paid to the complainant appellant and to that extent,the appeal be allowed.
On the other hand,the learned counsel for the respondent has supported the impugned order.
We have heard the learned counsel for the parties and perused the record.
In our considered opinion,in the present case a bare perusal of the report of the surveyor reveals that the same is based on correct evaluation of entire documents and papers available on record and the surveyor while assessing the loss had considered most of the aspects of the matter and further since the surveyor is an expert on assessing the loss,therefore,his report should be given due weightage. From that point of view also this Commission does not want to interfere with the findings recorded by the District Forum as they are based on correct appreciation of evidence on record and they do not suffer from any basic infirmity,illegality or perversity and this appeal deserves to be dismissed.
Since in this case the amount as assessed by the surveyor had been ordered to be paid by the District Forum and further if the complainant appellant feels that he is entitled to more amount,then there would be a quantum dispute and the the Hon'ble National Commission in the case of Champalal V. Oriental Insurance Company reported in III(2008) CPJ 93 (NC) has held that in case of quantum dispute,the District Forum could not go into the question of quantum dispute as it would involve a detailed investigation which could not be held in a summary proceedings under the provisions of the C.P.Act,1986.
4The Hon'ble National Commission has further observed that in such cases the complainant would be free to either approach the civil court or approach to IRDA under the provision of 64UM of Insurance Act,or to invoke the condition of the policy relating to reference to Arbitration in case of quantum dispute.
Taking into consideration the law laid down by the Hon'ble Supreme Court supra,this Commission is of the view that the complainant appellant would be free to approach the civil court for further compensation and the time spent before the District Forum as well as before this Commission shall be set of by the concerned authorities where the proceedings for further compensation would be taken up as per provisions of section 14 of the Limitation Act as laid down by the Hon'ble Supreme Court in the case of Laxmi Engineering Works V. PSG Industrial Institute reported in 1995(III)SCC 583.
For reasons as stated above, this appeal filed by the complainant appellant is dismissed.However liberty is given to the complainant appellant to approach the civil court for claiming more compensation and for that the time spent before the District Forum as well as before this Commission could be sought to be exempted u/s 14 of the Limitation Act.
Member President
Appeal No.1458/06
New
India Assurance Co.Ltd. V. Mahaveer Prasad Before:
Mr.Justice Sunil Kumar Garg-President Mrs.Vimla Sethiya-Member Smt.Manju Jain,counsel for the appellant Shri S.K.Taylor,counsel for the respondent Date of judgement: 26.2.2009 This appeal has been filed by the appellant insurance company against the order dated 27.6.06 passed by the District Forum,Ajmer in complaint no.10/2006,by which the complaint of the complainant respondent was allowed against the appellant insurance company in the manner that the appellant insurance company was directed to pay the amount on the basis of the bills submitted by the complainant respondent as report of the surveyor was not produced before the District Forum and it was further directed that the rate of interest would be charged from the date of filing of the claim @ 9% p.a. It arises in the following circumstances:
That the complainant respondent had filed a complaint against the appellant insurance company before the District Forum,Ajmer on 6.1.2006 interalia stating that his vehicle bearing no.RJ.01 T.1174 was got insured with the appellant insurance company for the period 29.5.04 to 28.5.05 for a sum of Rs.1,25,,000/- and that vehicle had met with an 2 accident on 17.3.05,when the vehicle in question was going from Fatehgarh to Boroda and while turning on a curve,all of a sudden,a Neel Gai came running infront of the vehicle and in saving that, the vehicle went down the road and was capsized. It was further stated in the complaint that a report of the incident was lodged with the police station,Sarwad,District Ajmer bearing FIR no.35/05 and information of the incident was also given by the complainant respondent to the office of the appellant insurance company,but that claim was repudiated by the appellant insurance company through letter dated 13.9.05 interalia stating on the ground that since the permit of the vehicle had expired just before the accident and since on the date of accident the vehicle was being plying on the road without permit, therefore,there was violation of the terms and conditions of the policy. Thereafter the present complaint was filed.
A reply was filed by the appellant before the District Forum,Ajmer on 31.3.06 and in the reply they have taken the same pleas which were taken in the repudiation letter dated 13.9.05 and it was prayed that the complaint be dismissed.
The District Forum after hearing both the parties, through the impugned order dated 27.6.06 had allowed the complaint of the complainant respondent as stated above, interalia holding that the grounds on which the claim was repudiated was not justified and further since no report of the surveyor was produced before the District Forum, the complaint was decreed on the basis of the bill to be submitted by the complainant respondent.
Aggrieved from that order,this appeal has been filed by the appellant insurance company.
In this appeal,the main contention of the learned counsel for the 3 appellant insurance company is that the impugned order could not be sustained as by plying the vehicle without permit,there was a violation of the terms of the policy and further that the interest awarded from the date of filing of the claim was also not proper one and thus,the findings recorded by the District Forum are erroneous one and be quashed and set aside and appeal be allowed.
On the other hand,the learned counsel for the complainant respondent has supported the impugned order.
We have heard the learned counsel for the parties and perused the record.
Note:
During the course of the arguments a survey report dated 25.4.2005 prepared by the surveyor Shri D.D.Mantri has been produced by the counsel for the appellant where the loss assessed by the surveyor was to the tune of Rs.28363.64.
On point of repudiation, it may be stated here that if at the time of accident,the vehicle was being plying without a valid permit, that could be a breach of the provisions of M.V.Act and not of the breach of the conditions of the policy,and,therefore,repudiation of the claim of the complainant respondent could not be said to be justified.
For reasons as stated above,so far as the findings recorded by the District Forum by which repudiation of the claim of the complainant respondent made by the appellant insurance company was not found justified, are liable to be confirmed one On point of compensation.4
Since now the survey report has been produced,therefore,the complainant respondent would be entitled to the amount as assessed by the surveyor and in the present case,the surveyor appointed by the appellant insurance company,Shri D.D.Mantri who had assessed the loss to the tune of Rs.28363.64,therefore,the complainnt respondent is entitled to that amount in place of the amount of producing the bills and to that extent,the impugned order deserves to be modified and further interest is to be awarded from the date of filing of the complaint and not from the date of filing of the claim.
For reasons as stated above,this appeal filed by the appellant insurance company is partly allowed in the manner that the appellant insurance company would pay a sum of Rs.28363.64 to the complainant respondent with interest @ 9% p.a from the date of filing of the complaint and to that extent,the impugned order dated 27.6.06 passed by the District Forum,Ajmer stands modified.
Member President
Appeal No.1460/08
The
Oriental Insurance Co.Ltd. V. Chajuram Before:
Mr.Justice Sunil Kumar Garg-President Mrs.Vimla Sethiya-Member Smt. Vimal Sharma,counsel for the appellant Shri Mahi Pal Choudhary,counsel for the respondent Date of judgement: 26.2.2009 This appeal has been filed by the appellant insurance company against the order dated 30.6.06 passed by the District Forum-II,Jaipur in complaint no.1122/2006,by which the complaint of the complainant respondent was allowed against the appellant insurance company in the manner that the appellant insurance company was directed to pay R.2,91,395/- within two months and further to pay interest @ 9% p.a wef 31.8.06 and Rs.3000/- as amount of cost.
It arises in the following circumstances:
That the complainant respondent had filed a complaint against the appellant insurance company before the District Forum-II,Jaipur on 3.11.2006 interalia stating that his jeep bearing no.RJ.14 TA.1591 was got insured with the appellant insurance company for the period 31.5.06 to 30.5.07 for a sum of Rs.4,24,000/- It was further stated in the complaint that on 17.6.06 when the vehicle in question was coming from Malpura to Jaipur,a truck bearing no.RJ.14 G.4187 had caused accident 2 with the jeep of the complainant respondent, as a result of which the jeep of the complainant respondent was damaged and the information of the incident was also given by the complainant respondent to the office of the appellant insurance company, where the surveyor was appointed and the surveyor in his report dated 22.7.06 had assessed the loss to the tune of Rs.2,91,395.30.But that claim was repudiated by the appellant insurance company through letter dated 31.8.06 interalia stating on the ground that though the vehicle in question was authorised to carry 10 passengers but at the time of accident since there were 18 passengers, therefore,there was a violation of the terms and conditions of the policy.
Thereafter the present complaint was filed.
A reply was filed by the appellant before the District Forum-II,Jaipur and in the reply they have taken the same pleas which were taken in the repudiation letter dated 31.8.06 and it was prayed that the complaint be dismissed.
The District Forum after hearing both the parties, through the impugned order dated 30.6.08 had allowed the complaint of the complainant respondent as stated above, interalia holding that the accident was not caused by the rash and negligent driving of the driver of the jeep of the complainant respondent but was caused by the driver of the truck bearing no.RJ.14 G.4187 and further that the case of the appellant insurance company that in the vehicle persons than permitted,were sitting in the jeep was not found acceptable,on the contrary since the cause of accident was not the passengers sitting in the jeep but the accident was caused by the driver of the truck,therefore,the amount as assessed by the surveyor was ordered to be paid by the appellant insurance company to the complainant respondent.
Aggrieved from that order,this appeal has been filed by the appellant insurance company.
3In this appeal,the main contention of the learned counsel for the appellant insurance company is that since at the time of accident persons than permitted were in the jeep and by that act the complainant respondent had violated the terms and conditions of the policy,therefore,the claim of the complainant respondent was rightly repudiated and thus,the findings recorded by the District Forum are erroneous one and be quashed and set aside and appeal be allowed.
On the other hand,the learned counsel for the complainant respondent has supported the impugned order.
We have heard the learned counsel for the parties and perused the record.
In our considered opinion,the findings recorded by the District Forum are liable to be confirmed one as in this case the fact that the cause of the accident was not the persons sitting in the jeep but the accident was caused by rash and negligent driving of the driver of the truck. Apart from that,merely carrying of uncertain or unauthorised persons in the vehicle at the time of accident would not defeat the claim of the insured unless such persons considered to have increased risk to cause accident. Since in the present case cause of accident was totally unrelated to the carrying of excess persons in the vehicle in question,therefore,it could not be said that by taking excess passengers in the vehicle in question a breach of the terms and conditions of the policy has taken place.
For reasons as stated above, so far as the findings recorded by the District Forum on point of accidentis concerned,they are liable to be confirmed one and further so far as the amount of compensation is concerned,the District Forum had awarded the amount on the basis of the report of the surveyor appointed by the appellant insurance company and we see no case for interference.
4On point of interest.
It may be stated here that the District Forum had awarded interest from the date of repudiation of the claim but in our considered opinion,it would be proper that interest is awarded from the date of filing of the complaint and to that extent the impugned order deserves to be modified.
For reasons as stated above,this appeal filed by the appellant insurance company is dismissed on merits. But however on point of interest it is ordered that the appellant insurance company would pay interest @ 9% p.a from the date of filing of the complaint and not from the date of repudiation of the claim and to that extent,the impugned order dated 30.6.08 passed by the District Forum-II,Jaipur stands modified.
Member President
Appeal No.839/03
Ram
Lal Choudhary V. United India Insurance Co.Ltd. & anr.
Before:
Mr.Justice Sunil Kumar Garg-President Mrs.Vimla Sethiya-Member Shri Abhishek Mishra,counsel for the appellant Shri Dinesh Sharma,counsel for the respondents Date of judgement: 26.2.2009 This appeal has been filed by the complainant appellant against the order dated 29.3.03 passed by the District Forum,Nagaur in complaint no.89/2002,by which the complaint of the complainant appellant was dismissed.
It arises in the following circusmtances:
That the complainant appellant had filed a complaint against the respondents insurance company before the District Forum,Nagaur on 10.6.02 interalia stating that he has got his bus bearing no.RJ.21P.1001 insured with the respondents insurance company for the period 9.8.2000 to 8.8.01 for a sum of Rs.8 lacs. It was further stated in the complaint that on 20.4.01 the said bus alongwith 3 jeeps after taking the members of the marriage party were going from Kachras to Nagaur and in the bus there were 47 persons sitting and 23 persons were sitting in the jeeps. It was further stated in the complaint that the tyre of one of the jeeps was got punctured as a result of which the bus and other jeeps stood there, but 2 suddenly since the road was totally damaged,therefore,the bus in question was capsized as a result of which 13 persons sitting in the bus had died and the bus in question was damaged,for that information was lodged with the police station,Role,District Nagaur bearing FIR no.19/01 .
It was further stated in the complaint that in getting the repair of the vehicle, a sum of Rs.3,35,739/- were spent and information of the incident was also given to the office of the respondents insurance company,but the claim was repudiated by the respondents insurance company through letter dated 14.3.02, interalia stating on the ground that at the time of accident since more persons than permitted were sitting in the bus and since there was a violation of the terms and conditions of the policy,therefore,the claim was not payable. Thereafter the present complaint was filed.
A reply was filed by the respondent insurance company before the District Forum,Nagaur on 19.1.06 and in the reply they have taken the same pleas which were taken in the repudiation letter dated 22.9.05 and it was prayed that the claim was rightly repudiated and complaint be dismissed.
The District Forum after hearing both the parties,through the impugned order dated 29.3.03 had dismissed the complaint interalia holding that at the time of accident,since in the bus 51 passengers were sitting against the terms and conditions of the policy,therefore,taking into consideration that the complainant appellant had violated the terms and conditions of the policy,and,therefore,claim was not payable.
Aggrieved from that order,this appeal has been filed by the complainant appellant.
In this appeal,the main contention of the learned counsel for the complainant appellant is that in this case , the cause of accident was not 3 the passengers who were being carried in the bus as the bus had not collided with any other vehicle,but the same was capsized and,therefore,there was no breach of the terms and conditions of the policy and the cause of accident was not the passengers sitting in the bus,hence findings recorded by the District Forum are erroneous one and be quashed and set aside and appeal be allowed.
On the other hand,the learned counsel for the respondent has supported the impugned order.
We have heard the learned counsel for the parties and perused the record.
In this case without referring into the question whether more persons than permitted were sitting in the bus or not,at the time of accident,but the fact is that the bus was damaged when the same was capsized meaning thereby, the bus had not collided with another vehicle.
Thus when this being the position, it could be said that if for the sake of argument,it is found that some more persons were sitting in the bus,that would not defeat the claim of the complainant appellant unless such persons considered to have increased the risk to cause the accident,for that the law laid down by the Hon'ble National Commission in United India Insurance Co.Ltd. V. Surjit Singh Asal (2000 CTJ 112 (CP) (NCDRC),where the Hon'ble National Commission has observed that the cause of the accident was not attributable to excess passengers carried by the bus. Under the circusmtances the insurance company was not right in repudiating the claim of the insured merely because the bus was carrying excess passengers when the cause of the accident was totally unrelated to the carrying of excess passengers.
In the present case,there is nothing on record to show that accident 4 had taken place because of carrying of excess passengers and when the cause of accident was totally unrelated to the carrying of excess passengers,therefore,merely because some excess passengers were found in the vehicle in question,the respondents insurance company could not exonerate itself from its liability.
For the reasons as stated above,this Commission is of the view that in the present case the complainant appellant had not violated the terms and conditions of the policy and thus, the repudiation of the claim of the complainant appellant by the respondents insurance company was not justified and it amounted to deficiency in service on the part of the respondents insurance company and in view of this,the findings recorded by the District Forum by which the complaint of the complainant appellant was dismissed, cannot be sustained.
The argument of the learned counsel for the respondents insurance company that the accident was caused because of the fact that leaf spring had broken due to weight of the passengers,could not be appreciated at all,as the leaf spring could be broken from so many causes.
On point of compensation:
During the course of the arguments the learned counsel for the respondents insurance company has placed before this Commission for the first time a survey report dated 22.5.01 prepared by Shri Vinod Kumar in which the loss assessed by the surveyor was to the tune of Rs.1,47,902/- and thus,in our considered opinion,this amount is to be paid to the complainant appellant alongwith interest @ 9% p.a from the date of filing of the complaint.
Accordingly,this appeal filed by the complainant appellant is allowed,impugned order dated 29.3.03 passed by the District 5 Forum,Nagaur is quashed and set aside and the complaint filed by the complainant appellant is allowed in the manner that the respondents insurance company would pay a sum of Rs.1,47,902/- with interest @ 9% p.a to the complainant appellant from the date of filing of the complaint till the payment is made alongwith cost of Rs.5000/-.
Member President