Jammu & Kashmir High Court
Mubark Ali vs The Senior Manager Oic on 17 October, 2018
Equivalent citations: AIRONLINE 2018 J AND K 305
Author: Sanjeev Kumar
Bench: Sanjeev Kumar
Case no. 11
HIGH COURT OF JAMMU AND KASHMIR
AT JAMMU
CFA No. 41/2014
Date of order: 17.10.2018
Mubarak Ali vs The Senior Manager, OIC and anr
Coram:
Hon'ble Mr Justice Sanjeev Kumar, Judge.
Appearance:
For the appellant(s) : Mr. F..Natnoo Advocate
For the Respondent(s) : Mr. Baldev Singh Advocate
i) Whether approved for reporting in Yes Law journals etc.: ii) Whether approved for publication in press: Yes/No 1 This Civil First Appeal is directed against the judgment and decree dated
29.03.2014 passed in File No.07/ Civil titled 'Mubarak Ali V /S Senior Manager, Oriental Insurance Company and Anr'.
2 Briefly stated, the facts relevant for the disposal of this appal are that the appellant (plaintiff in the suit) filed a suit for recovery of Rs. 6,15,190/- along with interest and rent of Rs. 60,000./- paid for storage of vehicle/ salvage at Jammu. It was claimed that the vehicle bearing registration No.JK06- 602 owned by the appellant, which was insured with the respondent under policy cover No.085597 dated 11.07.2002 met with an accident at Pul Doda during the subsistence of the aforesaid insurance policy. It was further claimed that the said vehicle was totally damaged and FIR No. 178/2002 was also registered with the concerned Police Station.
3 The respondents appeared in the suit and filed the written statement. The accident and the damage occurred to the vehicle of the appellant was not disputed. However, it was pleaded by the respondents that the vehicle had suffered total Page 1 of 4 damage of Rs.3.00 lacs and not Rs. 6,15,190/- as claimed by the appellant. The insurance policy qua the aforesaid vehicle for the period of accident was, however, not disputed. The suit was, however, contested by the respondents on the plea that the vehicle was overloaded beyond the licence carrying capacity and, therefore, was being driven in breach of the terms and conditions of the policy. It is on that ground the respondents pleaded avoidance of their liability. The suit was tried by the Court of Additional District Judge Doda (hereinafter referred to as the 'trial Court') and the same was dismissed vide judgment and decree dated 29.03.2014 on the solitary ground that in view of breach of the terms and conditions of the insurance policy, the appellant was not entitled to claim any damage on account of loss occurred to the vehicle in the motor accident . 4 The appellant is in appeal before this Court and assails the judgment and decree of the trial Court on the ground that in view of the legal position settled by the Hon'ble Supreme Court in the case of Amalendu Sahoo vs Oriental Insurance Co. Ltd, 2010 ACJ 1250, the appellant cannot be non-suited on the ground that there had been breach of terms and conditions of the insurance policy. Relying upon the judgment (supra), learned counsel for the appellant states that the standard formula taken note of by the Supreme Court provides for payment of claim to the extent of 75% of the admissible claim. To the legal position aforesaid enunciated by the Hon'ble Supreme Court in the aforesaid case, learned counsel for the respondents fairly concedes. He, however, submits that the appellant would only be entitled to 75% of the actual loss assessed by the surveyor of the company i.e Rs.3.00 lacs. Learned counsel for the appellant, however, submits that apart from the claim as admissible in terms of the judgment rendered in the case of Amalendu Sahoo (supra), the appellant is also entitled to salvage of the vehicle as also the rent.
5 Having heard learned counsel for the parties and perused the record, I am of the view that the judgment and decree passed by the trial Court deserves to be set aside in view of the legal position settled by the Hon'ble Supreme Court in the case of Amalendu Sahoo (supra). It would be pertinent to refer to para No.14 of the aforesaid judgment which, for facility of reference, is reproduced hereunder:
Page 2 of 414. In this connection reference may be made to a decision of National Commission in the case of New India Assurance Company Limited v. Narayan Prasad Appaprasad Pathak reported in (2006) CPJ 144 (NC). In that case also the question was, whether the insurance company can repudiate the claims in a case where the vehicle carrying passengers and the driver did not have a proper driving licence and met with an accident. While granting claim on non-standard basis the National Commission set out in its judgment the guidelines issued by the insurance company about settling all such non-standard claims. The said guidelines are set out below:-
Sr. Description Percentage of
No. settlement
(i) Under declaration Deduct 3 years'
of licensed difference in
carrying capacity premium from the
amount of claim
or deduct 25% of
claim amount,
whichever is
higher.
(ii) Overloading of Pay claims not
vehicles beyond exceeding 75% of
licensed carrying admissible claim.
capacity
iii) Any other breach Pay upto 75% of
of warranty/ admissible claim.
condition of
policy including
limitation as to
use"
6 Accordingly the appellant cannot be non-suited on the plea that there had
been breach of the terms and conditions of the insurance policy pertaining to overloading of the vehicle and, therefore, the appellant is not entitled to reimbursement of any damage caused to the vehicle. Going by the guidelines issued by the National Commission for settling such non-standard claims as approved by the Hon'ble Supreme Court in Amalendu Sahoo's case (supra), the appellant is held entitled to 75% of the admissible claim i.e 75% of Rs.3.00 lacs.
However, his claim for salvage and rent etc, is rejected for the reason that there is no sufficient evidence on record. Accordingly, this appeal is allowed and the judgment and decree impugned is set aside. The appellant is held entitled to 75% Page 3 of 4 of the admissible claim i.e Rs.3.00 lacs which would work out to Rs. 2,25,000/- The aforesaid amount shall be paid by the insurance company to the appellant within a period of eight weeks from today. In case of any further delay, the amount payable to the appellant shall attract interest @ 9% per annum. 7 Disposed of as above.
(Sanjeev Kumar) Judge Jammu 17.10.2018 Sanjeev Page 4 of 4