National Consumer Disputes Redressal
Oriental Insurance Co. Ltd. vs Shiv Pujan Kushwaha on 10 July, 2018
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI REVISION PETITION NO. 1616 OF 2018 (Against the Order dated 08/11/2017 in Appeal No. 544/2017 of the State Commission Chhattisgarh) 1. ORIENTAL INSURANCE CO. LTD. THROUGH MANAGER, LEGAL DEPARTMENT ORIENTAL INSURANCE CO. LTD. HEAD OFFICE 88, JANPATH FIRST FLOOR, NEW DELHI-110001 ...........Petitioner(s) Versus 1. SHIV PUJAN KUSHWAHA S/O. RAM PRATAP KUSHWAHA, R/O. VILLAGE AND POST SONGARA, TEHSIL PRATAPPUR, DISTRICT-SURAJPUR CHHATTISGARH ...........Respondent(s)
BEFORE: HON'BLE MR. JUSTICE V.K. JAIN,PRESIDING MEMBER
For the Petitioner : Mr. K.K. Bhat, Advocate For the Respondent :
Dated : 10 Jul 2018 ORDER JUSTICE V.K.JAIN, PRESIDING MEMBER (ORAL)
The complainant/respondent owned a vehicle which he had got insured with the petitioner for the period from 15.04.2014 to 14.04.2015. The said vehicle having with an accident while returning from Ramanujganj allegedly alongwith the equipments of D.J. Sound Service, had got damaged and a claim was lodged with the insurer for re-imbursement of the loss suffered by the complainant. The claim was however, rejected vide letter dated 12.04.2015 on the ground that a goods vehicle had with an accident while carrying passengers, thereby committing breach of the terms and conditions of the insurance policy. Being aggrieved from the rejection of the claim, the complainant approached the concerned District Forum by way of a Consumer Complaint. The complaint was resisted by the petitioner primarily on the ground on which the claim had been repudiated.
2. The District Forum having dismissed the complaint, the complainant approached the concerned State Commission by way of an appeal. Vide impugned order dated 08.11.2017, the State Commission allowed the appeal relying upon several decisions including the decision of this Commission in Oriental Insurance Company Limited Vs. Laxmegowda 2017 (4) CPR 129 (NC). Being aggrieved, the petitioner insurer is before this Commission.
3. The contention of the learned counsel for the petitioner is that the vehicle in question was a Bolero Pick-up goods carriage vehicle and was meant only for carrying goods. Only two passengers including the driver were allowed to travel in the vehicle.
4. In Laxmegowda (supra), this Commission held as under:
"14. The Hon'ble National Commission has held in the case of Oriental Insurance Company Limited Vs. Laxmegowda 2017 (4) CPR 129 (NC) that:-
"6. The main issue that merits consideration in the matter is whether the insurance company is liable to pay the claim to the insured in terms of the policy in question, keeping in view the fact that 14 passengers were found travelling in a goods-carrying commercial vehicle at the time of the accident. As stated by the petitioner, a contract of insurance is a contract of good faith and the insurer should not be liable to pay any amount, if there had been a breach of the terms and conditions of the policy. However, the matter has been considered in detail by the Hon'ble Apex Court in "Lakshmi Chand Vs. Reliance General Insurance Co." (supra) and it has been brought out that the insurer was liable to pay the claim, unless there was a fundamental breach of the terms and conditions of the policy in question. The Hon'ble Apex Court while pronouncing their judgement in this case, relied upon an earlier judgement passed by them in "B.V. Nagaraj Vs. The Oriental Insurance Co. Ltd." [(1996) 4 SCC 467]. In the case, "Lakshmi Chand Vs. Reliance General Insurance Co." (supra), the District Forum had allowed compensation to the complainant on 'non standard' basis and directed the insurance company to settle the same up to 75% of the amount spent for affecting repairs to the damaged vehicle. The said order of the District Forum was set aside in appeal before the State Commission. The order of the State Commission was upheld by the National Commission as well, but in appeal before the Hon'ble Apex Court, the order of the District Forum was restored. It is evident, therefore, that relying upon this order, the complainant is entitled to get the claim on 'non standard' basis only."
5. The State Commission, while allowing the appeal filed by the complainant, also relied upon the following extracts from the decision of this Commission in Lakhmi Chand Vs. Reliance General Insurance, II (2016) CPJ 3 (SC):
"15. In Lakshmi Chand Vs. Reliance General Insurance, II (2016) CPJ 3 (SC), the Hon'ble Supreme Court has held that:-
"Accident was caused on account of rash and negligent driving of offending vehicle. FIR under Section 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 contact to an end. Violation of policy conditions not established.
Repudiation not justified."
6. The learned counsel for the petitioner relies upon the decision of a single Member Bench of this Commission dated 28.11.2011 in S.G. Shivamurtheppa Vs. Reliance General Insurance Co. Ltd. RP/3176/2011. In the decision relied upon by the learned counsel for the petitioner, repudiation of claim was upheld on finding that not more than 12 persons including driver could have been carried in the vehicle which was instead carrying 16 persons. The aforesaid decision, in my view, is contrary to the decision of the Hon'ble Supreme Court in B.V. Nagaraj (supra) which finds no reference in the aforesaid judgment. Therefore, no reliance upon the aforesaid decision can be placed.
7. For the reasons stated hereinabove, I find no ground to interfere with the order passed by the State Commission which has directed re-imbursement of the claim only on non-standard basis. The revision petition is consequently dismissed with no order as to costs.
......................J V.K. JAIN PRESIDING MEMBER