State Consumer Disputes Redressal Commission
Branch Manager, United India Insurance ... vs Rambaran Yadav on 18 September, 2024
Appeal Nos.: Branch Manager, United India Insurance Co. Ltd. Date of Pronouncement:
FA/24/74 Vs. 18/09/2024
Rambaran Yadav
AFR / NAFR
CHHATTISGARH STATE
CONSUMER DISPUTES REDRESSAL COMMISSION
PANDRI, RAIPUR
Date of Institution: 09/02/2024
Date of Final Hearing: 02/08/2024
Date of Pronouncement: 18/09/2024
APPEAL No.- FA/24/74
IN THE MATTER OF :
Branch Manager, United India Insurance Co. Ltd.,
Branch: Bramhroad, Ambikapur,
Dist. SURGUJA (C.G.) ... Opposite Party/Appellant
Through: Shri Abhishek Vinod Deshmukh, Advocate
Vs.
Rambaran Yadav, S/o. Shri Jadu Prasad Yadav,
R/o. Vill. Gumga (Yadav Para), P.O. Dandgaon, Tah. Udaipur,
Dist. SURGUJA (C.G.) ... Complainant / Respondent
Through: Shri Suryakant Sharma, Advocate.
CORAM: -
HON'BLE SHRI JUSTICE GAUTAM CHOURDIYA, PRESIDENT
HON'BLE SHRI PRAMOD KUMAR VARMA, MEMBER
PRESENT: -
Shri Abhishek Vinod Deshmukh, Advocate for the appellant.
Shri Suryakant Sharma, Advocate for respondent.
ORDER
PER: - JUSTICE GAUTAM CHOURDIYA, PRESIDENT This appeal is filed against order dated 20.12.2023 passed by District Consumer Disputes Redressal Commission, Surguja - Ambikapur (hereinafter called "District Commission" for short) in complaint case No.CC/2022/34 whereby the complaint of the respondent herein alleging deficiency in service against the opposite party / appellant herein insurance company was partly allowed with direction to the appellant insurance company to pay the complainant/ respondent within 45 days compensation for repairing of the insured vehicle Rs.1,28,250/- (One Lac Twenty Eight Thousand Two Hundred and Fifty) i.e. on non-standard basis 75% of the total repairing expenditure, deducting 10% depreciation. Compensation for financial loss and mental agony Rs.3,000/- (Three Thousand) and cost of litigation Rs.3,000/- (Three Thousand) were also Allowed Page 1 of 7 Appeal Nos.: Branch Manager, United India Insurance Co. Ltd. Date of Pronouncement:
FA/24/74 Vs. 18/09/2024
Rambaran Yadav
directed to be paid within 45 days. Feeling aggrieved the opposite party insurance company has preferred this appeal.
2. In nutshell the facts of the case are that the complainant/ respondent is the registered owner of pick-up vehicle bearing registration No.CG-15-AC-3635 which was insured by the opposite party / appellant. The said vehicle was dashed by a tractor and trolley on 05.02.2017 causing damages. In repairing of which total expenditure of Rs.1,90,000/- were incurred, for which insurance claim was sent by the complainant / respondent on 16.06.2020, which was repudiated on the ground that the claim was not as per the terms and conditions of the insurance. Then legal notice was sent on 13.08.2020, which was replied vide letter dated 22.08.2020. It was alleged that the claim was repudiated on the basis of unnecessary false grounds hence the complaint be allowed and the opposite party / appellant be directed to pay the complainant / respondent repairing expenses of the insured vehicle Rs.1,90,000/- (One Lac Ninety Thousand) and compensation against the financial loss suffered by the complainant/ respondent due to the insured vehicle had to remain parked in the garage for a long time @ Rs.20,000/- per month for 33 months total Rs.6,60,000/- (Six Lacs Sixty Thousand) along with compensation for financial and mental agony Rs.50,000/- (Fifty Thousand) and cost of litigation.
3. The opposite party / appellant insurance company except the specifically admitted facts denied all the adverse allegations leveled against them and averred that at the time of incident the insured vehicle was carrying 08-10 passengers as Barati and in head on collusion with a tractor some of them suffered injuries while 3-4 persons died. Thus, at the time of incident a goods carrying vehicle was being used as passenger Allowed Page 2 of 7 Appeal Nos.: Branch Manager, United India Insurance Co. Ltd. Date of Pronouncement:
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Rambaran Yadav
carrying vehicle which was a clear violation of registration and the policy conditions. Regarding the financial loss during the vehicle remained parked at garage is concerned, it was averred that the insured vehicle was seized by the police in connection with the incident under section 279, 337, 338 of IPC, crime number 17/17, hence the vehicle remained seized in the police station till 18.03.2019 for which complainant/respondent himself was responsible and the insurance company is not liable for financial loss claimed by him. It was further averred that as the vehicle was being used in violation of policy conditions hence the claim was repudiated on 16.06.2020, which was justified. It was prayed that the complaint be dismissed with cost. Regarding limitation it was averred that from the date of incident 05.02.2017 and the claim repudiation on 16.06.2020 the complaint was not filed within limitation, on this ground also it is not maintainable.
4. Learned District Commission in the impugned order condoned the delay being satisfied with the reasons assigned by the complainant/ respondent that due to Covid pandemic the complaint was belatedly filed. On the merits of the case learned District Commission observed that passengers were being carried in the vehicle beyond its sitting capacity and in spite of it being a goods carrying vehicle it was being used for carrying passengers in violation of terms and conditions of the insurance policy. But ultimately relying on the principle laid down by the Hon'ble Apex Court in Amlendu Sahoo Vs. Oriental Insurance Co. Ltd., (2010) CPJ 09 (SC) the insurance company was directed to pay compensation on non-standard basis. The complaint was partly allowed with the directions as aforesaid in paragraph No.1.
Allowed Page 3 of 7 Appeal Nos.: Branch Manager, United India Insurance Co. Ltd. Date of Pronouncement:
FA/24/74 Vs. 18/09/2024
Rambaran Yadav
5. Learned counsel for the appellant/ opposite party insurance company has reiterated the defence taken in the written version and the grounds of repudiation of claim and argued that learned District Commission has failed to appreciate the facts and circumstances of the case in its proper perspective. In this case admittedly a goods carrying vehicle was being used as passenger carrying vehicle in clear violation of policy conditions and when there is admitted breach of policy conditions, the insurer is not liable to make the payment to the insured. He has further argued that the judgement of Amlendu Sahoo (supra) is not applicable in the facts of the present case as in that case the allegation was that vehicle in question was used for hire and reward contrary to the terms and conditions of the policy, whereas in the facts of the present case a goods carrying vehicle was being used for carrying passengers (Barat). In support of his arguments he has placed reliance upon judgement of Hon'ble National Commission in Revision Petition No.2984 of 2007 between Oriental Insurance Co. Ltd. Vs. Ashwani Kumar, decided on 17.07.2012 and in Revision Petition No.4197 of 2008 between New India Assurance Co. Ltd. Vs. Ishwar Singh Rathore decided on 15.01.2015. He prayed that the impugned order being erroneous is liable to be set aside allowing this appeal and the complaint be dismissed.
6. Whereas learned counsel for the respondent has supported the impugned order. He relied upon order of this Commission passed in Appeal No.FA/15/159, dated 13.10.2015 between Raipur Power and Steel Limited Vs. The New India Assurance Co. Ltd and argued that learned District Commission has not committed any error in allowing the claim on non-standard basis.
7. Final arguments heard. Record as well as the impugned order and case laws perused.
Allowed Page 4 of 7 Appeal Nos.: Branch Manager, United India Insurance Co. Ltd. Date of Pronouncement:
FA/24/74 Vs. 18/09/2024
Rambaran Yadav
8. From the record it appears that the insured vehicle suffered damages in a head on collusion with a tractor. In the FIR the incident has been described as the driver of the tractor driving the tractor rashly and negligently dashed the insured vehicle in which some persons injured and some of them lost their life. The appellant / opposite party insurance company has brought on record copy of statement of one Jagdish Yadav recorded by the Police in which he has stated that on information he went to the site and saw that the pickup met with an accident due to collusion with a tractor. 10-12 persons were laying injured whereas Nauwa Harijan, Shankar Harijan, Ram Bhorosh Harijan, Gowardhan Harijan and Ravinidra Harijan were lying dead on the road. When he asked the injured persons they told that driver of the tractor No.CG-15-AE-3028 coming from opposite site driving the tractor rashly and negligently dashed the pickup.
9. However, apparently the vehicle was being used in violation of policy conditions and learned District Commission has arrived at a conclusion to allow the claim on non-standard basis following the principle laid down by the Hon'ble Apex Court in Amlendu Sahoo (supra)'s case. But learned counsel for the appellant / opposite party has cited the judgement of Hon'ble National Commission in Ashwani Kumar (supra) in which Hon'ble National Commission was of the view that in Amlendu Sahoo (supra)'s case insurance claim was repudiated by the insurance company on the ground that the insured vehicle in question was used for hire or reward which was contrary to the terms and conditions of the policy as the vehicle was registered as a private vehicle. In the facts of Ashwani Kumar (supra)'s case it was held that the violation was so flagrant and gross as a mini bus which was having capacity to carry 17 passengers + 1 driver and one conductor, but 35-36 passengers Allowed Page 5 of 7 Appeal Nos.: Branch Manager, United India Insurance Co. Ltd. Date of Pronouncement:
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Rambaran Yadav
were being carried in that vehicle in such situation it was observed that the insurer cannot be called upon to settle the claim even on non-standard basis and doing so would amount to according premium to the insured for flagrant violation not only of the terms and conditions of the policy, but of the penal offence committed by the complainant under the provisions of Motor Vehicle Act, 1988. The same principle was concurred in the Ishwar Singh Rathore (supra)'s case which was having similar facts as in the instant case. In that case a goods carrying truck was carrying 34/36 persons which met with accident in which 29 persons lost their life.
10. Hon'ble National Commission in its judgement in Oriental Insurance Co. Ltd. Vs Preman M.P., Revision Petition No. 2369 of 2017, dated 18.11.2019 in paragraph No.08 has held as under : -
"8. From the above conditions, it is very much clear that the policy will not be applicable in case the vehicle is used for transporting the passengers. In the present case, the vehicle has been used for transporting the passengers and that too in a large number. Therefore, it is not a case of marginal infringement of a condition, rather it is a gross and flagrant violation of the condition of the policy. This is a clear-cut breach of fundamental condition of the policy and therefore, the claim under the policy cannot be accepted by the Insurance Company. The contract of insurance is a commercial contract like any other contract and its terms and conditions are binding on both the parties. The judgment of this Commission relied upon by the learned counsel for the petitioner in Oriental Insurance Co. Ltd. Vs. G. Velkumar, (supra), G.Siddesh Vs. ICICI Lombard General Insurance Co. Ltd. (supra) and New India Assurance Co. Ltd. Vs. Ishwar Singh Rathore (supra) are applicable in the present case and clearly the specific condition laid down in the policy has been violated and therefore, the claim under the policy is not payable. Violators of law cannot be shown leniency and therefore, the judgment of the Hon'ble Supreme Court in Amalendu Sahoo Vs. Oriental Insurance Co. Ltd. (supra) relied upon by the State Commission is not attracted in the present case as there is a breach of fundamental condition specifically given in the policy. One has to distinguish between breach of a condition which is intrinsic to the policy and breach of a peripheral condition which may not be intrinsic to the policy. Carrying passengers in large number in a goods carriage is definitely a breach of fundamental condition of the policy which is clearly stated in the policy."
In the present case, the vehicle was being used for transporting passengers and that too in a large number, which cannot be termed as a marginal infringement of a condition, rather it is a gross and flagrant violation of the condition of the policy. This is a clear-cut breach of Allowed Page 6 of 7 Appeal Nos.: Branch Manager, United India Insurance Co. Ltd. Date of Pronouncement:
FA/24/74 Vs. 18/09/2024
Rambaran Yadav
fundamental condition of the policy and violators of law cannot be shown leniency and therefore, the judgment of the Hon'ble Supreme Court in Amalendu Sahoo (supra) relied upon by the learned District Commission is not attracted in the present case as there is a breach of fundamental condition specifically given in the policy. One has to distinguish between breach of a condition which is intrinsic to the policy and breach of a peripheral condition which may not be intrinsic to the policy. Carrying passengers in large number in a goods carriage is definitely a breach of fundamental condition of the policy which is clearly stated in the policy.
11. Therefore, we are of the considered view that the appellant / opposite party insurance company was justified in repudiating the claim on the basis of fundamental breach of policy conditions and learned District Commission has committed an error in considering the claim of the respondent / complainant on non-standard basis and in partly allowing the complaint accordingly, hence the impugned order is liable to be set aside.
12. With the foregoing discussion we are of the considered view that this appeal has substance to be allowed and is hereby allowed. The impugned order is set aside. The complaint of the respondent herein filed before the District Commission shall stand dismissed accordingly. No order as to cost of this appeal.
(Justice Gautam Chourdiya) (Pramod Kumar Varma)
President Member
/09/2024 /09/2024
Pronounced on: 18th September 2024
Allowed Page 7 of 7