State Consumer Disputes Redressal Commission
Murat Singh Sharo vs Oriental Insurance Co.Ltd. on 2 May, 2018
CHHATTISGARH STATE
CONSUMER DISPUTES REDRESSAL COMMISSION,
PANDRI, RAIPUR (C.G.)
Complaint Case No.CC/2018/03
Instituted on : 09.02.2018
Murat Singh Sharo, Aged 48 years,
S/o Shri Gajjan Singh,
House No.13, Sector 04, Udaya Society,
Tatibandh,
Raipur (C.G.) ... Complainant.
Vs.
The Oriental Insurance Company Limited,
Through : Divisional Manager,
Divisional Office No.1, First Floor,
Madina Manzil, Kutchery Chowk, Jail Road,
Raipur (C.G.) .... Opposite Party
PRESENT: -
HON'BLE SHRI JUSTICE R.S. SHARMA, PRESIDENT
HON'BLE SHRI D.K. PODDAR, MEMBER
HON'BLE SMT. RUCHI GOEL, MEMBER
COUNSEL FOR THE PARTIES:
Shri R.K. Bhawnani, Advocate for the complainant.
Shri Shishir Bhandarkar, Advocate for the O.P.
ORDER
Dated : 02/May/2018 PER :- HON'BLE SHRI JUSTICE R.S. SHARMA, PRESIDENT. The complainant has filed this consumer complaint under Section 17 of the Consumer Protection Act, 1986 against the O.P. seeking following reliefs :-
(a) The O.P. may be directed to pay the amount of Rs.23,00,000/-
(Rupees Twenty Three Lakhs) along with interest @ 18% p.a. to the complainant.
(b) To direct the O.P. to pay the amount of Rs.3,00,000/- (Rupees Three Lakhs) for deficiency in service and unfair trade practice.
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(c) To direct the O.P. to pay the amount of Rs.2,00,000/- (Rupees Two Lakhs) for mental harassment and compensation.
(d) The cost of the suit.
(e) Any other relief which this Commission deems fit and proper, may also be awarded.
2. Briefly stated the facts of the complaint of the complainant are that the complainant for his self employment and for the livelihood of his family has purchased the vehicle Truck bearing registration No.C.G.04-ZD-6551 which was financed by Uco Bank. The complainant has taken the insurance policy No.191100/31/2017/12152 for the period from 10.12.2016 to 09.12.2017 and the Insured Declared Value of the vehicle was Rs.23,00,000/- and premium amount of Rs.44,302/- was taken by the Insurance Company. On 14.01.2017, the vehicle of the complainant was carrying the Tendu Patta from Raipur to Dhuliyan (W.B.), when the vehicle reached near Junadih Main Road, Lakhanpur suddenly the electric line near road touched the tendu patta bags and the vehicle was burnt along with the material. The vehicle of the complainant was totally burnt and it was totally damaged and it was in the category of total loss. The intimation was given immediately to the Police Station, Lakhanpur and to the Insurance Company also. The complainant contacted with the Insurance Company and the Insurance Company provided the claim form. The complainant submitted all the documents which were demanded by the Insurance Company along with the claim form. The Insurance Company registered the claim as Claim // 3 // No.191100/31/2017/001003. The complainant contacted the Insurance Company several times and requested the Insurance Company to pay the claim amunt to the complainant because the vehicle of the complainant was financed by Uco Bank and the interest f the loan amount was increasing day to day but the Insurance Company was not settling the claim. The Insurance Company on 04.12.2017 wrote the letter and stated that the claim of the complainant is not tenable on following grounds :-
"According to the investigation report and legal opinion by Advocate, the subjected accidental vehicle was loaded with Tendu leaves bags along with 380 bags under TV No.2330 came in touch with low tension electric line and caught fire o f loaded complete Tendu leaves of vehicle resulting damages to the complete insured vehicle. Hence low tension electric line running by the side of the road was at the appropriate height, but the insured vehicle was overloaded in such a way that the Tendu leaves bags had extended beyond the lateral or vertical capacity of the vehicle which was gross negligence and violation of Rule 208 (2)(i)(iii) and (iv) of Motor Vehicles Rules."
The complainant was shocked by receiving the letter from the O.P. and wrote the letter to the Insurance Company on 07.12.2017 and requested them to pay the claim because the vehicle was not overloaded nor the complainant has violated any terms and conditions of the policy. The O.P. is unnecessarily not paying the genuine claim of the complainant. The said act of the O.P. comes under the category of deficiency in service. The complainant has not violated any terms and conditions of the insurance // 4 // policy. Even after that the O.P. is not paying the claim of the complainant which comes under the category of unfair trade practice. The Uco Bank has written the letter to the complainant regarding the payment of credit facility in term loan of Rs.22,00,000/-. The bank has stated in the letter that if the amount is not deposited within seven days, then legal action will be taken by the bank against the complainant. The complainant has submitted all the documents with the Insurance Company and after all it is proved that the complainant has suffered heavy losses. But the Insurance Company by taking the wrong grounds are not paying the claim of the complainant. The complainant suffered mental harassment.
3. The O.P. has filed its written statement and averred that the complainant has not purchased the vehicle truck bearing registration No.C.G.04-JD-6551 on finance for his self employment and livelihood of his family. The complainant is a transporter and had purchased the subject vehicle to induct it into his fleet of vehicles for commercial purpose, he therefore, cannot maintain the present complaint before this Commission. The complainant had taken an insurance policy bearing No.191100/31/2017/12152 for the period from 10.12.2016 to 09.12.2017 to cover the risk of subject vehicle, IDV of which was Rs.23,00,000/-, but the insurance of the vehicle was subject to certain terms and conditions of the policy observation of which condition was precedence to get any amount from the O.P. thereunder the policy. The vehicle of the complainant was not completely burnt and damated in an accident on 14.01.2017. The damage to the vehicle was not in category of total loss. The immediate intimation of the // 5 // alleged incident was not given to Police as well as to the O.P. The intimation was in fact given quite belatedly to the O.P. by the complainant, and as such has committed breach of one of the conditions of the policy. The fact is that vehicle in question was overloaded with tendu leaves bags in such a way that it was the sole cause of the alleged incidence. Whereas the complainant was under obligation to comply with the terms of the policy, wherein the carriage of the goods more than the vehicle's carrying capacity was one of the fundamental breach of the policy. The O.P., therefore, was not liable for paying any compensation, but despite that on intimation so received, the O.P. issued a claim form to the insured for being submitted duly filled by him along with all the necessary documents.The vehicle in question was not financed by Uco Bank and the interest of the loan amount was not increasing day by day. The Bank has not not written any letter to the complainant regarding credit facility in terms of loan of Rs.22,00,000/-. The Bank has not threatened the complainant for legal action if the over dues of loan amount is not paid by him.The O.P. is not at all concerned with the any loan transation between the complainant and the Bank. If at all there is any loan transaction between the complainant and the Bank, it has nothing to do with the contract of indemnity which exists between the complainant and the O.P. The O.P. by rejecting claim of the complainant has not committed any deficiency in service or unfair trade practice as the action taken by the O.P. was as per the terms of the policy which was binding upon the complainant also. The fact on the other hand is that on intimation being given about the incidence dated 14.01.2017 wherein at about 03:45 PM, the vehicle insured // 6 // bearing No.C.G.04-JD-6551 was said to have got damaged as it, while carrying 380 bags of Tendu Leaves under TV No.2330 came in touch with Low Tension (LT) Electric Line and caught fire resulting damage to tendu leaves bags and the vehicle itself, the Insurance Company got the vehicle spot surveyed by one P.K. Agrawal and final surveyed by Shri Pukhraj Jain, who vide his survey report dated 10.05.2017 assessed the loss to the tune of Rs.15,00,000/- on net of salvage loss basis. The Insurance Company further investigated the matter by Shri Anoop Mehta, who while submitting his investigation report dated 12.08.2017 has clearly observed and opined that the Low Tension Electric Line running by the side of the road was at the appropriate height but the vehicle in question was loaded in such a way that the Tendu Leaves Bags had extended beyond the lateral capacity of the vehicle which was utter violation of Rule 208 [2] (i)(ii)(iii) and (iv) of M.P. Motor Vehicles Rules. It is also worth mentioning that as per the photographs taken by the Investigator and the report of Junion Engineer, C.S.P.D.C.L, Lakhanpur dated 22.02.2017, the Low Tension Line was recently been repaired and was erected at appropriate height as per the standard protocol. The said report and the photographs in itself was the proof of the fact that the vehicle in questin was overloaded and had come in contact with the L.T. Line causing damage to it, in contravention of not only the provisions of Motor Vehicles Act, but also the fundamental terms of the policy. Therefore, the O.P. bonafidely and after due application of its mind has repudiated the claim vide its letter dated 04.12.2017 and by dong so it has not committed any deficiency in service so as to entitle the complainant // 7 // to get any compensation from the O.P. The question of any mental harassment from the decision of the O.P. to repudiate the claim does not arise. The complainant is not entitled to get any compensation from the O.P. as the complainant's claim was repudiated on the ground of fundamental breach of policy condition. The complaint be dismissed with cost.
4. The complainant has filed documents. Annexure A-1 is copy of insurance policy for the period from 10.12.2016 to 09.12.2017, Annexure A-2 is Certificate of Fitness from 24.12.2016 to 23.12.2017, Annexure A-3 is Registration Certificate details, Annexure A-4 is Online Payment Receipt dated 15.12.2016, Annexure A-5 is Emission Test Certificate dated 05.03.2017, Annexure A-6 is Form No.1, Annexure A-7 is Certificate of Registration dated 14.12.2013, Annexure A-8 is Copy of National Permitdated 21.12.2017, Annexure A-9 is Copy of national permit for the period from 22.12.2013 to 21.12.2018, Annexure A-10 is intimation to Police Station, Lakhanpur, Annexure A-11 is loss panchnama, Annexure 12 is Crime Detail Report, Annexure A-13 is repudiation letter of the insurance company dated 04.12.2017, Annexure A-14 is letter to Uco Bank to the complainant dated 08.12.2017, Annexure A-15 is letter of complainant to Insurance Co.
5. The O.P. has also filed documents. Annexure OP-1 is Motor Insurance Policy with terms and conditions, Annexure OP-2 is Intimation letter dated 18.01.2017, Annexure OP-03 is Survey Report of Pukhraj Jain dated 10.05.2017, Annexure OP-4 is Investigation Report of Anoop Mehta dated 12.08.2017, Annexure OP-5 is Report of Junior Engineer, C.S.P.D.C.L. dated 22.02.2017, Annexure P-6 is Claim Repudiation Letter dated // 8 // 04.12.2017, Article A is photocopy of photographs, Annexure OP-7 is Insured's consent letter, Annexure OP-8 is Settlement Letter dated 07.05.2017.
6. Shri R.K. Bhawnani, learned counsel appearing for the complainant has argued that the complainant is registered owner of vehicle truck bearing registration NO.C.G.04-ZD-6551, which was purchased with financial help of the UCO Bank. The complainant obtained insurance policy No.191100/31/2017/12152 from the O.P. which was effective for the period from 10.12.2016 to 09.12.2017. The Insured Declared Value of the vehicle was Rs.23,00,000/- and premium amount of Rs.44,302/- was paid by the complainant to the O.P. On 14.01.2017, the vehicle in question was carrying Tendu Leaves bags from Raipur to Dhuliyan (W.B.) and when the vehicle reached near Junadih Main Road, Lakhanpur, suddenly the vehicle came to the contact of electric line due to which bags of Tendu Leaves were burnt. The vehicle of the complainant also completely burnt. The intimation regarding the incident was given by the complainant to the concerned Police Station as well as to the O.P. The O.P. registered the claim as Claim No.191100/31/2017/001003, but the O.P. did not settle the claim of the complainant and vide letter dated 04.12.2017 repudiated the claim of the complainat on the ground that the complainant violated the terms and conditions of the insurance policy as well as Central Motor Vehicles Rules. The above act of the O.P. comes within purview of deficiency in service. The complainant is entitled to get reliefs, a mentioned in the relief clause of the complaint. The complaint be allowed.
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7. Shri Shishir Bhandarkar, learned counsel appearing for the O.P. has argued that the truck in question was overloaded and due to overloading of the bags of Tendu Leaves, the vehicle came to contact of electric line and Tendu Leaves and vehicle both were burnt due to negligent act of the driver of the vehicle. The complainant had overloaded the truck in violation of Rule 93 (4) (ii) of Central Motor Vehicles Rules, 1989. The vehicle was overloaed with Tendu Leaves bags. The alleged incident occurred due to negligent act of the driver of the vehicle. Had the vehicle been loaded within permitted height of 4.75 metres, there would be no chance of touching of bags Tendu Leaves with electric line. It shows that the vehicle was use in violation of Rule 93 (4)(ii) of the Central Motors Vehciles Rules, 1989, therefore, the complainant is not entitled to ghet any compensation even on not standard basis from the O.P. The O.P. had rightly repdudiated the claim of the complainant. The complaint is liable to be dismissed against the O.P. He placed reliance on New India Assurance Co. Ltd. Vs. Surinder Singh Khurana, I (2006) CPJ 43 (NC); National Insurance Company Ltd. & Anr. Vs. Suresh Babu & Anr., I (2007) CPJ 23 (NC); and New India Assurance Co. Ltd. Vs. Mohd. Rafiq, IV (2004) CPJ 606 decided by Chhattisgarh State Consumer Disputes Redressal Commission vide order dated 31.03.2004.
8. We have hearded the arguments of learned counsels appearing for both the parties and have also perused the documents filed by both the parties in the complaint case.
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9. It is admitted fact that the complainant is registered owner of vehicle truck bearing registration No.C.G.04-ZD-6551 and it was insured with the O.P. for the period from 10.12.2016 to 09.12.2017.
10. According to the complainant, on 14.01.2017, the vehicle in question was carrying Tendu Leaves bags from Raipur to Dhuliyan (W.B.). When the vehicle reached near Junadih Main Road, Lakhanpur, suddenly the Tendu Leaves Bags came to contact of the electric line and due to come into touch of electric line, the bags of Tendu Leaves were burnt and the vehicle was also burnt completely. The complainant has filed copy of First Information Report, which was registered by Police Station, Lakhanpur. In the First Information Report, it is mentioned that the incident took place on 14.01.2017 at about 3.00 A.M. near Village Lakhanpur. In the First Information Reprt, it is mentioned that in truck bearing registration No.C.G.04-ZD-6551 380 bags of Tendu Leaves were loaded. It is also mentioned in the First Information Report that the bags of Tendu Leaves came to contact of electric line and due to current, the Tendu Leaves bags and the truck were burnt. The Police prepared Nuksani Panchnama and Spot Map. Looking to the above documents, it appears that the First Information Report was lodged immediately by the complainant before the Police Station, Lakhanpur and intimation regarding the incident was also given by the complainant to the O.P..
11. The O.P. appointed Shri Pukhraj Jain as Surveyor and Loss Assessor. Final Survey Report dated 10.05.2017 of Shri Pukhraj Jain, Surveyor & Loss Assessor has been filed by the O.P. which is marked as Annexure OP-3. The // 11 // O.P. has also filed Investigation Report dated 12.08.2017 of Shri Anup Mehta, Investigator.
12. Shri R.K. Bhawnani, learned counsel appearing for the complainant has raised objection that Shri Anup Mehta, is not competent to investigate into the matter because he is a practising lawyer and therefore, he has no right to investigate in the matter. The above contention of the learned counsel for the complainant is not acceptable.
13. Looking to the Investigation Report of Shri Anup Mehta, it appears that the vehicle in question was overloaded.
14. In DARCL Logistics Ltd. s. ICICI Lombard GIC Ltd. & Others, II (2016) CPJ 620 (NC), Hon'ble National Commission has observed thus :-
"Sanctioned carrying capacity of vehicle was 49 MT whereas load was 242 MT at time of accident - Such abnormal overloading will be cause of an accident and violates provisions of insurance policy - It will be encouraging those, who believe in overloading vehicle and care not even a fig for serious accidents - State Commission had taken correct view and had not granted any amount."
15. But, in Lakhmi Chand Vs. Reliance General Insurance , II (2016) CPJ 3 (SC), Hon'ble Supreme Court has observed that "Accident was caused on account of rash and negligent driving of offending vehicle. FIR under Sections 337, 338, 304A and 427 of IPC registered against driver of vehicle. Insurance Company not produced any evidence on record to prove that accident occurred on account of overloading of passengers in goods carrying vehicle. For the insurer to avoid liability, breach of policy must be so fundamental in nature that it brings contract to an end. Violation of policy conditions not established. Repudiation not justified."
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16. In Oriental Insurance Company vs. Girbar Sinh Nandwanshi & Anr. 2015 (3) CPR 299, Hon'ble National Commission has observed that "the claim repudiated on ground of overloading, in a case of overloading claim has to be processed on non-standard basis. In case of overloading of a vehicle, beyond licensed carrying capacity, claim preferred by Insured should be paid @ 75% of admissible claim."
17. In Oriental Insurance Company Limited & Anr. vs. Rajak 2015 (3) CPR 375 (NC) Hon'ble National Commission has observed that "In case of overloading of vehicle beyond licence carrying capacity claim is admissible upto 75% on non-standard basis."
18. In Ganjpal Patre Vs. Oriental Insurance Company Limited, IV (2016) CPJ 231 (NC), Hon'ble National Commission has observed that " In the case of overloading, the claim can be allowed on non-standard basis." The judgment cited by the appellant (O.P.) is not applicable in the facts of the instant case.
19. The same view was taken by this Commisison in Appeal No.FA/2016/700 - The Oriental Insurance Company Limited Vs. Bhupendra Singh Kanda decided vide order dated 16.02.2017.
20. On the basis of above judgments, if the vehicle in question was overloaded, even then the complainant is entitled to get claim on non- standard basis.
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21. Now we shall examine whether the complainant is entitled to get Insured Declared Value of the vehicle i.e. Rs.23,00,000/-, from the O.P. ?
22. The O.P. has filed Survey Report of Shri Pukhraj Jain, Surveyor and Loss Assessor, who assessed the loss to the tune of Rs.15,00,000/-. The learned counsel for the O.P. has argued that if this Commission come to the conclusion that the complainant is entitled to get compensation on non- standard basis then it should be 75% of Rs.15,00,000, which comes to Rs.11,25,000/-.
22. We have perused the Investigation Report dated 12.08.2017 of Shri Anup Mehta. Shri Anup Mehta, in his Investigation Report has specifically mentioned that the vehicle is completely damaged due to burn. The Surveyor Shri Pukhraj Jain, in his Survey Report has also mentioned that the Insured Agreed IDV is Rs.17,00,000 Less Excess Rs.1,500/- total loss Rs.16,98,500/- and after deducting Salvage Value, the Net Loss is Rs.15,00,000/-. The Surveyor has also mentioned that the vehicle in question is three years old. When the insurance policy was issued in favour of the complainant, the vehicle was inspected by employee of the O.P. and after investigation the value of the truck was assessed Rs.23,00,000/- and premium was received by the O.P. on Insured Declared Value of the vehicle i.e. Rs.23,00,000/-. The Surveyor specifically mentionecd that on the total loss basis the assessment made is Rs.23,00,000/- and its 75% comes to Rs.17,25,000/-. Because the Insured Declared Value was fixed by the O.P. itself and it received the premium on Insured Declared Value Rs.23,00,000/-
// 14 // and the vehicle was completely burnt, therefore, the complainant is entitled to get compensation on non standard basis of Insured Declared Value i.e. Rs.23,00,000/- and its 75% comes to Rs.17,25,000/-.
23. Therefore, we partly allow the complaint of the complainant and it is directed that :-
(i) The O.P. will pay a sum of Rs.17,25,000/- (Rupees Seventeen Lakhs Twenty Five Thousand) to the complainant within 45 days from the date of this order.
(ii) If the O.P. fails to pay the above amount to the complainant within stipulated period, then the O.P. will be liable to pay interest @ 9% pa. on the above amount from the date of filing of the complaint i.e. 09.02.2018 till realization.
(iii) The O.P. will also pay a sum of Rs.10,000/- (Rupees Ten Thousand) towards cost of litigation, to the complainant.
(Justice R.S. Sharma) (D.K. Poddar) (Smt. Ruchi Goel) President Member Member 02 /05/2018 02/05/2018 02 /05/2018