State Consumer Disputes Redressal Commission
Health Sunetuay vs Kritender Sharma on 22 November, 2021
FA NO./329/2013 NATIONAL INSURANCE CO. LTD. VS. GURUDEV SINGH D.O.D. : 22.11.2021
IN THE DELHI STATE CONSUMER DISPUTES REDRESSAL COMMISSION
Date of Institution: 25.02.2013
Date of hearing: 27.10.2021
Date of Decision: 22.11.2021
FIRST APPEAL NO.- 329/2013
IN THE MATTER OF
NATIONAL INSURANCE CO. LTD.,
DRO-II, 2E/9,
JHANDEWALAN EXTENSION,
New Delhi-110020
(Through: Mr. Pankaj Seth, Advocate)
...Appellant
VERSUS
SH. GURUDEV SINGH,
C/O NEW CAPITAL TRANSPORT CO.
BG-264, SANJAY GANDHI TRANSPORT NAGAR,
NEW DELHI-110042
(Through: Mr. R.K. Kohli, Advocate)
...Respondent
CORAM:
HON'BLE DR. JUSTICE SANGITA DHINGRA SEHGAL,
(PRESIDENT)
HON'BLE SH. ANIL SRIVASTAVA, (MEMBER)
Present: Shri Pankaj Seth, Counsel for Appellant.
None for Respondent.
PER: HON'BLE DR. JUSTICE SANGITA DHINGRA SEHGAL,
PRESIDENT
JUDGMENT
1. The Appellant has preferred the present appeal under Section 15 of the Consumer Protection Act, 1986 seeking setting aside of the order dated 30.10.2012 passed by the District Consumer Disputes ALLOWED PAGE 1 OF 6 FA NO./329/2013 NATIONAL INSURANCE CO. LTD. VS. GURUDEV SINGH D.O.D. : 22.11.2021 Redressal Forum III, Janakpuri, New Delhi in Complaint Case No. 225 of 2009 filed by Respondent against the Appellant. By the impugned order dated 30.10.2012, the District Forum allowed the complaint filed by the Respondent and ordered the Appellant to pay 75% of the admissible claim to the respondent alongwith interest @ 6% per annum from the date of institution of the complaint till realization of the awarded amount and also directed to pay Rs. 7,000/- as compensation to the Respondent.
2. The facts of the case necessary for adjudication for this appeal are:
"Briefly stated the case of the complainant is that he was owner of vehicle of DL-1G-a-6937 which he was using as transport vehicle with the help of driver and it was the only source of his livelihood. The vehicle was insured with respondent w.e.f. 19.12.05 to 18.12.06. On 17.12.06 while on its way from Sitapur to Sonepat at Tilhat District Shahajanpur, U.P., the vehicle collided with a tree. The driver alongwith some other persons died in the accident. The complainant filed a claim with the OP for loss/damage to the vehicle. The vehicle was insured for a sum of Rs.2,80,000/-. It was declared a case of total loss. Shri Mukesh Setia was appointed as surveyor who confirmed that the vehicle was of total loss and was not worthy of being repaired. The complainant provided all the information and documents required by the surveyor i.e. the FIR, the estimate, RC copy, the fitness, the permit and details of accident. Vide letter dated 22.9.08 his claim was formally rejected on the ground that 15 persons were travelling in the goods carrying vehicle when the accident occurred which was clear violation of policy term and condition and due to its shortcomings/non-compliance of the policy term the case did not fall within the purview of consideration for settlement. His comments were sought within the fortnight of the receipt of the letter and further he was informed that in case of non receipt of comments it was presumed that complainant had no comments to offer. Aggrieved by this letter complainant approached this forum and submitted that persons travelling in the vehicle were apparently connected with the material which was being ALLOWED PAGE 2 OF 6 FA NO./329/2013 NATIONAL INSURANCE CO. LTD. VS. GURUDEV SINGH D.O.D. : 22.11.2021 carried from Sitapur to Sonepat and those persons were carpenters and had to accompany the woods for the sake of safety and possession and they were not gratuitous passengers. Even otherwise it was nobody's case that the accident took place due to presence of those persons in the truck. There was no nexus between the accident and the persons travelling in the truck. The driver was not having any express or implied authority from the complainant to carry passengers for hire or reward and there was no evidence that any of the passenger was being carried for hire or reward. Hence, the rejection of claim was unjustified. The complainant prayed for value of the vehicle covered under the policy with interest @ 18% p.a. from the date of loss till its realization and also sought a compensation of Rs.50,000/"
3. The District Forum vide order dated 30.10.2012 has held as under:
"In the present case the entire stand of the insurance company is that claimant used the vehicle for hire and in the course of that there was an accident. Following the aforesaid guidelines, we are of the opinion that the insurance company was at fault in repudiating the claim in toto. Hence relying upon these guidelines we hold that respondent shall pay 75% of the admissible claim of the complainant. The claim was not settled on non-standard basis by the insurance company which it should have done and this clearly amounts to deficiency of service on the part of the insurance company. Hence we hereby order that 75% of the admissible amount be paid to the complainant alongwith interest @ 6% per annum from the date of filing of the complaint till realization of the awarded amount. Complainant is further awarded a sum of Rs.7,000/- as compensation for harrasment and inconvenience caused to him.
OP shall comply with the above mentioned order within 30 days of its receipt failing which proceedings u/s. 25/27 of Consumer Protection Act may be initiated against them."
4. The Appellant has challenged the aforesaid order on the ground that the district forum erred in appreciating the fact that the vehicle was being used as passenger vehicle and the permit did not allow the carriage of passengers in the goods vehicle. Therefore, there was ALLOWED PAGE 3 OF 6 FA NO./329/2013 NATIONAL INSURANCE CO. LTD. VS. GURUDEV SINGH D.O.D. : 22.11.2021 clear breach of the conditions of permit granted to the respondent. Pressing the aforesaid contention, the Appellant prayed that the order of the District Forum.
5. Notice was issued to the Respondent of the present appeal, who has also filed reply, stating that there exists no infirmity in the District Forum order, which is based on proper appreciation of facts and law.
6. We have heard the counsel for the Appellant and perused the material available on record.
7. The main question for consideration before us is whether the Appellant is justified in repudiating the total claim of the Respondent on the ground that the heavy goods vehicle was used to carry passengers which, as per the Appellant constitutes violation of the 'Use Term' in the insurance policy. To resolve this issue, we deem it appropriate to refer to Revision Petition No. 2369 of 2017 titled as Oriental Insurance Co. Ltd. Vs. Preman M.P. decided on 18.11.2019 wherein, the Hon'ble National Commission has held as under:
"7. It is also seen that the following condition for limitation to use is mentioned in the policy:-
" Limitations as to Use The Policy covers use only under a permit within the meaning of the Motor Vehicle Act 1988 or such a carriage falling under sub- section 3 of Section 66 of the Motor Vehicles Act 1988.
1. Use only for carriage of goods within the meaning of the Motor Vehicles Act. The Policy does not cover: 1) Use for organised racing, pace-making, reliability trial or speed testing. (2) Use whilst drawing a trailer except the towing (other than for reward) of any one disabled mechanically propelled vehicle. (3) Use for carrying passengers in the vehicles; except employees (other than the driver) not exceeding the number permitted in the registration document ALLOWED PAGE 4 OF 6 FA NO./329/2013 NATIONAL INSURANCE CO. LTD. VS. GURUDEV SINGH D.O.D. : 22.11.2021 and coming under the purview of Workmen's Compensation Act 1923."
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."
8. In the present case also, the Appellant has repudiated the claim of the Respondent on the ground that at the time of accident, the goods carrying vehicle was used by the Respondent for carrying 15 passengers which comes under the violation of the 'Limitation As To Use' clause of the policy.
ALLOWED PAGE 5 OF 6 FA NO./329/2013 NATIONAL INSURANCE CO. LTD. VS. GURUDEV SINGH D.O.D. : 22.11.2021
9. From the aforesaid dicta and the perusal of the record, it is clear that the owner of the vehicle was not plying with the fundamental terms and conditions of the insurance policy. Therefore, the insurance company has rightly repudiated the claim of the insured vehicle.
10. On the basis of settled law and aforesaid discussion, the order passed by the District forum cannot sustain and has to be set aside. Therefore, the appeal is allowed, the order dated 30.10.2012 passed by the District Forum is set aside, consequently, the complaint is dismissed.
11. FDR, if any, filed as statutorily required, be returned to the Appellant along with the interest accrued till date.
12. Application(s) pending, if any, stands disposed of in terms of the aforesaid judgment.
13. A copy of this judgment be provided to all the parties free of cost as mandated by the Consumer Protection Act, 1986. The judgment be uploaded forthwith on the website of the commission for the perusal of the parties.
14. File be consigned to record room along with a copy of this Judgment.
(DR. JUSTICE SANGITA DHINGRA SEHGAL) PRESIDENT (ANIL SRIVASTAVA) MEMBER Pronounced On:
22.11.2021 ALLOWED PAGE 6 OF 6