State Consumer Disputes Redressal Commission
Sh. Sunil Kumar. vs Divisional Manager National Insurance ... on 28 March, 2024
H. P. ST AT E CONSUMER D ISPUTES REDRESS AL
CO MMISSION SHIML A.
First Appeal No. : 310/2019
Date of Presentation :19.09.2019
Order Reserved on :18.03.2024
Date of Order :28.03.2024
_____
Sunil Kumar son of Sh. Mangat Ram, R/o Village & Post
Office Bhambla, Tehsil Baldwara, District Mandi, H.P.
...... Appellant/Opposite Party.
Versus
Divisional Manager, National Insurance Company Ltd., Moti
Bazar, Mandi Town, H.P.
...Respondent/complainant.
Coram
Hon'ble Justice Inder Singh Mehta, President
Hon'ble Mr.R.K. Verma, Member
Whether approved for reporting?1 Yes.
For the Appellant: None.
For the Respondent: Mr.Bhupinder Pathania, Advocate.
1Whether reporters of the local papers may be allowed to see the order?
Sunil Kumar Versus Divisional Manager, National Insurance Company Ltd.
(F.A. No.310/2019)
Justice Inder Singh Mehta, President
ORDER
Instant appeal is arising out of the order dated 03.08.2019 passed by Learned District Consumer Forum, Mandi, District Mandi, H.P. in Consumer Complaint No.163/2018 titled Sunil Kumar Versus Divisional Manager, National Insurance Company Ltd.
Brief facts of Case:
2. Brief facts of the case are that complainant is the registered owner of vehicle No.HP-65-2787 (heavy goods vehicle/truck) which was insured with the opposite party/Insurance company and risk was covered from 20.05.2017 to 19.05.2018. IDV (Insured Declared Value) of the truck was Rs.6,99,750/-. On 13.12.2017, at place Ladraur, Tehsil Bhoranj, due to bad weather and fog, the truck of the complainant bearing No.HP-65-2787 and jeep bearing No.HP28A-1905 coming from the opposite side skidded on the road and both the vehicles were damaged in 2 Sunil Kumar Versus Divisional Manager, National Insurance Company Ltd.
(F.A. No.310/2019) this accident. Rapat No.5, dated 13.12.2017 was entered in Police Station, Bhoranj. Intimation regarding the accident was given to the opposite party/insurance company. A Surveyor appointed by the opposite party/insurance company who inspected the truck and assessed the loss to the tune of Rs.92,454/-. The vehicle was taken to Govindgarh (Punjab) for its repair and Rs.1,75,670/- were incurred to get the vehicle repaired. Necessary bills/documents were supplied to the opposite party/insurance company to pay the claimed amount. The claim of the complainant was repudiated by the opposite party/insurance company vide letter dated 23.02.2018 on the ground that the vehicle/truck was overloaded at the time of incident. Bajri (grit) weighing 9 metric ton (M.T.), which was permissible under the law, was loaded in the truck when the accident took place. The opposite party/insurance company indulged in unfair trade practice and was deficient in rendering the service. Hence, the present complaint. 3 Sunil Kumar Versus Divisional Manager, National Insurance Company Ltd.
(F.A. No.310/2019)
3. The opposite party/insurance company filed reply and did not deny that vehicle in question was insured with the opposite party/insurance company and the said vehicle met with an accident during the period of insurance policy. At the time of occurrence, 350 C.F.T. grit/bajri was loaded in the truck. Average weight of one C.F.T. grit/bajri is 37 kilograms. Total load in the truck was 12950 kilograms. Registered laden weight of truck is 16200 kilograms and un- laden weight is 7400 kilograms. The vehicle was passed to carry load of 8800 kilograms. After receiving intimation regarding the incident, a surveyor was appointed who assessed the loss to the tune of Rs.92,454/- on repair basis subject to the terms and conditions of insurance policy. Since the truck was overloaded and was being plied in violation of the policy conditions, the claim was rightly rejected. There was no deficiency in service or unfair trade practice on behalf of the opposite party/insurance company. A prayer for dismissal of complaint was made 4 Sunil Kumar Versus Divisional Manager, National Insurance Company Ltd.
(F.A. No.310/2019)
4. A rejoinder denying the contents of the reply and reiterating those of the complaint was filed.
5. Thereafter, the parties adduced evidence in support of their respective pleadings.
6. After hearing learned counsel parties, learned District Commission dismissed the complaint of the complainant.
7. Feeling aggrieved by the order of learned District Commission, the appellant/complainant preferred the instant appeal before this Commission.
8. We have heard learned counsel for the respondent/insurance company and have also gone through the record carefully.
9. Learned counsel of the respondent/insurance company has submitted that the vehicle in question met with an accident on 13.12.2017. He further submitted that at the time of accident, the vehicle in question was carrying Bajri (grit). The registered laden weight of the truck was 16200 kgs 5 Sunil Kumar Versus Divisional Manager, National Insurance Company Ltd.
(F.A. No.310/2019) and un-laden weight was 7400 kgs and the vehicle was passed to carry load of 8800 kgs. He further submitted that at the time of accident, the truck was carrying weight of 12950 kgs and as such there was overloading more than 20% of the permissible limit as per circular of IRDA. He further submitted that the claim of the appellant/complainant that the truck was carrying weight of 9 metric tons is contrary to the record. He further submitted that as per Annexure OP-2, the truck was loaded on 12.12.2017 and accident had taken placed on 13.12.2017. He further submitted that the impugned order does not require any interference and prays that appeal of the appellant/complainant be dismissed.
10. No arguments on behalf of the appellant/complainant were advanced. FINDINGS
11. The admitted fact which emerges on record is that complainant is the registered owner of vehicle/truck No.HP- 65-2787 which was insured with the opposite party/Insurance 6 Sunil Kumar Versus Divisional Manager, National Insurance Company Ltd.
(F.A. No.310/2019) company vide insurance policy No.421900/31/17/6300000821 w.e.f. 20.05.2017 to 19.05.2018.
12. It is further an admitted fact which emerges on record that during the existence of the insurance policy, the insured truck met with an accident on 13.12.2017 with a jeep bearing No.HP28A-1905 coming from the opposite side.
13. On receiving intimation regarding accident, opposite party/insurance company appointed surveyor, who assessed the loss to the tune of Rs.92,454/- on repair basis.
14. The insurance company denied the cause of accident as bad weather, rather, alleged that overloading of bajari/grit in the truck in question was cause of accident which is violation of terms and conditions of the policy in question. As such, the insurance company has repudiated the claim of the complainant.
15. The complainant has specifically stated in para 2 of his complaint that due to inclement weather and fog, truck bearing No. HP-65-2787 skidded on the road and jeep 7 Sunil Kumar Versus Divisional Manager, National Insurance Company Ltd.
(F.A. No.310/2019) bearing No.HP28A-1905 coming from the opposite side also skidded. Both the vehicles were damaged in that process. In this regard, G.D.No.005 dated 13.12.2017 was also registered in Police Station, Bhoranj.
16. The contention of the learned counsel for opposite party/insurance company that the vehicle met with an accident while carrying bajari/grit of 12950 kgs and the vehicle was overloaded more than 20% of the permissible limit as per circular of IRDA, does not seems to be correct on the following grounds:-
i.) There is no eye witness of the accident examined by the opposite party/insurance company who could say that at the time of accident the vehicle in question was overloaded with bajari/grit.
ii.) Shri.Darshan Singh DM of opposite
party/insurance company who has filed his
affidavit is not the eye witness of the accident and 8 Sunil Kumar Versus Divisional Manager, National Insurance Company Ltd.
(F.A. No.310/2019) has got no personal knowledge about the cause of accident.
iii).The averment made by the witness Darshan Singh DM of opposite party/insurance company that the vehicle was overloaded with Bajari/grit and accident has caused due to overloading is contrary to the contents of the rapat GD No.5, wherein the cause of accident is mentioned as bad weather and not the overloading of Grit/Bajari.
iv). Had the aforesaid version of the insurance company was correct, the insurance company could have filed the affidavit of owner/Manager of the Parvati Stone crusher who have allegedly loaded the aforesaid quantity of Bajri/Grit in the vehicle in question on 12.12.2017.
v.) Annexure OP-2, the alleged challan/billty placed on record by the Insurance company does bear the signatures of driver. Per contra the complainant has specifically stated in para-5 of his complaint that the truck was loaded with Bajari/grit weighing 9 MT, which was permissible as per supplementary transit pass/Form-X. 9 Sunil Kumar Versus Divisional Manager, National Insurance Company Ltd.
(F.A. No.310/2019)
17. In view of the above stated facts, the version/allegation of the opposite party/insurance company that the vehicle in question met with an accident due to overloading of Bajri/grit is nothing but after thought version created by the respondent/insurance company to somehow escape from its liability.
18. Thus, the respondent/insurance company has failed to prove the onus lies upon them that at the time of accident the vehicle of the complainant was carrying Bajri/Grit of 350 ft. beyond the carrying capacity of the vehicle. Therefore, the insurance company/respondent is liable to indemnify the complainant for the loss/damage to the vehicle.
19. In the instant case, the surveyor Er.Parveen Kumar Goel has assessed the loss to the tune of Rs.92,454/- on repair basis, whereas the complainant has claimed repair charges of vehicle to the tune of Rs.1,75,670/- on repair of his vehicle.
10 Sunil Kumar Versus Divisional Manager, National Insurance Company Ltd.
(F.A. No.310/2019)
20. The complainant has not filed the affidavit of the repairer of the vehicle who could explain that the complainant has spent Rs.1,75,670/- on repair of his vehicle. In the absence of affidavit of the repairer, the complainant is only entitled to the amount of Rs.92,454/- as assessed by the Surveyor.
21. Consequently, appeal of the appellant/ complainant is partly allowed and the order passed by the District Commission below is set aside.
22. The respondent/insurance company is directed to pay an amount of Rs.92,454/-(Ninety two thousand four hundred fifty four) alongwith interest at the rate of 9% per annum to complainant from the date of the filing of the complaint till realization of aforesaid amount.
23. The respondent/Insurance company is further directed to pay a sum of Rs.15,000/- (fifteen thousand) as 11 Sunil Kumar Versus Divisional Manager, National Insurance Company Ltd.
(F.A. No.310/2019) compensation on account of mental harassment alongwith litigation expenses of Rs.5,000/- (five thousand).
24. The respondent/Insurance company is directed to comply the aforesaid order within 45 days from the date of passing of the order.
25. Certified copy of order be sent to the parties and their counsel(s) strictly as per rules. Certified copy of order be sent to learned District Commission for information and file of State Commission be consigned to record room after due completion. Appeal is disposed of. Pending application(s), if any, also disposed of.
Justice Inder Singh Mehta President R.K.Verma Member Veena 12