State Consumer Disputes Redressal Commission
Oriental Insurance Company Limited vs Vinod Kumar Bansal on 1 February, 2011
STATE CONSUMER DISPUTES REDRESSAL COMMISSION, PUNJAB,
S.C.O. NO. 3009-10, SECTOR 22-D, CHANDIGARH.
First Appeal No.1332 of 2009
Date of institution : 18.9.2009
Date of decision : 01.2.2011
Oriental Insurance Company Limited, SCO No.109-110, Surendra Building,
Sector 17-D, Chandigarh through Deputy Manager, OIC.
.......Appellant
Versus
Vinod Kumar Bansal son of Shri Banarsi Dass, resident of Village Bela, Tehsil
Chamkaur Sahib, District Ropar.
......Respondent
First Appeal against the order dated 27.7.2009 of
the District Consumer Disputes Redressal Forum,
Ropar.
Before :-
Hon'ble Mr. Justice S.N. Aggarwal President.
Mrs. Amarpreet Sharma, Member.
Mr. B.S. Sekhon, Member.
Present :-
For the appellants : Ms. Harsimrat Rai, Advocate.
Ms. Veena Ashwani Talwar, Advocate.
For the respondent : Shri Sukhwinder Singh, Advocate. JUSTICE S.N. AGGARWAL, PRESIDENT:
The respondent was the owner of Mahindra Pick-up Jeep bearing registration certificate No.PB-12-H-5966. It was insured with the appellants for the period from 1.9.2006 to 31.8.2007. On 24.5.2006 this vehicle was coming from Ropar side towards Chamkaur Sahib side. It met with an accident for which FIR was got registered in PS-Chamkaur Sahib, District Ropar on 24.5.2006. The matter was reported to the appellants also. They had appointed the surveyor. The vehicle was got repaired by spending an amount of Rs.1,70,409/- but the appellants had repudiated the insurance claim. Hence the complaint. Compensation, interest and costs were also paid.First Appeal No.1332 of 2009. 2
2. The appellants failed to appear in the learned District Forum. They were proceeded against ex parte.
3. The respondent filed his affidavit as Ex.C-1. He also proved documents Ex.C-2 to Ex.C-6.
4. Learned District Forum accepted the complaint ex parte with costs of Rs.1,000/- vide impugned order dated 27.7.2009. The appellants were directed to make the payment of Rs.1,42,429.87P with interest at the rate of 9% per annum with effect from 4.8.2006.
5. Hence the appeal.
6. The submission of the learned counsel for the appellants was that the sitting capacity of Mahindra Pick-Up jeep was three including the driver but it was overloaded and was having six passengers other than the driver. Therefore the respondent had violated the terms and conditions of the insurance policy and was not entitled to any insurance claim. Hence it was prayed that the appeal be accepted and the impugned judgment dated 27.7.2009 be set aside.
7. On the other hand, the submission of the learned counsel for the respondent was that there was no merit in the present appeal.
8. Record has been perused. Submissions have been considered.
9. The admitted facts are that the respondent was the owner of Mahindra Pick- Up jeep bearing registration certificate No.PB-12-H-5966. It was insured with the appellants for the period from 1.9.2006 to 31.8.2007 for an amount of Rs.3,65,232/-. The insurance policy has also been proved by the respondent as Ex.C-4.
10. It is also proved that the vehicle had met with an accident on 24.5.2006 at about 9.00 P.M. on Ropar-Bela road for which the matter was reported to the police and FIR No.41 dated 24.5.2006 was registered in PS-Chamkaur Sahib for offences punishable under Section 279/337/427 IPC.
11. It has also been proved by the appellants that the sitting capacity of the vehicle was three including the driver. This is proved from the registration First Appeal No.1332 of 2009. 3 certificate of the vehicle which has been proved by the respondent himself as Ex.C-5. It is specifically mentioned in the registration certificate that the sitting capacity of the vehicle was three (including the driver). It is also proved by the appellants by placing on file (along with the appeal) the report of the investigator dated 18.9.2006 as Annexure A-2 that at the time of accident the vehicle was having six persons besides the driver.
12. In this accident three persons, namely, (i) Gurmeet Singh s/o Daya Ram (Mistri by profession), (ii) Gurmeet Singh son of Dharam Singh (Labourer), (iii) Manoj Kumar son of Inderjit Yadav (Labourer) had died and the other three persons, namely, (i) Raj Kishore Bhagat son of Kailash Bhagat (Labourer), (ii) Binder Dass son of Bondli Dass (Labourer) and Narinder Singh son of Gian Singh had suffered injuries. Therefore there is no doubt that the driver of the vehicle had given lift to six other persons and at the time of accident the vehicle was having seven persons which amounted to violation of the breach of the terms and conditions of the insurance policy.
13. In this context, reference can be made to the judgment of the Hon'ble Supreme Court reported as "National Insurance Company Ltd., v. Nitin Khandelwal, IV (2008) CPJ 1 (SC)" in which it was held by the Hon'ble Supreme Court that if there was no nexus between the cause of claim with the breach of the terms and conditions of the policy, then the insured is entitled to insurance claim to the extent of 75% on Non-Standard basis. It was held by the Hon'ble Supreme Court as under : -
"13. In the instant case, the State Commission allowed the claim only on non-standard basis, which has been upheld by the National Commission. On consideration of the totality of the facts and circumstances in the case, the law seems to be well settled that in case of theft of vehicle, nature of use of First Appeal No.1332 of 2009. 4 the vehicle cannot be looked into and the Insurance Company cannot repudiate the claim on that basis.
14. In the facts and circumstances of the case, the real question is whether, according to the contract between the respondent and the appellant, the respondent is required to be indemnified by the appellant. On the basis of the settled legal position, the view taken by the State Commission cannot be faulted and the National Commission has correctly upheld the said order of the State Commission."
14. This judgment was followed in the subsequent judgment of the Hon'ble Supreme Court reported as "Amalendu Sahoo v. Oriental Insurance Co. Ltd., II (2010) CPJ 9 (SC)" in which the law laid down by the Hon'ble Supreme Court in Nitin Khandelwal's case (supra) was reiterated. It was held by the Hon'ble Supreme as under : -
"14. In this connection reference may be made to a decision of National Commissiion in the case of New India Assurance Company Limited v. Narayan Prasad Appaprasad Pathak, reported in II (2006) CPJ 144 (NC). In that case also the question was whether the insurance company can repudiate the claims in a case where the vehicle carrying passengers and the driver did not have a proper driving licence and met with an accident. While granting claim on non-standard basis the National Commission set out in its judgment the guidelines issued by the insurance company about settling all such non-standard claims. The said guidelines are set out below : -First Appeal No.1332 of 2009. 5
Sr. Description Percentage of
No. settlement
(i) Under declaration of Deduct 3 years'
licensed carrying difference in
capacity premium from the
amount of claim or
deduct 25% of claim
amount, whichever
is higher.
(ii) Overloading of Pay claims not
vehicles beyond exceeding 75% of
licensed carrying admissible claim.
capacity
(iii) Any other breach of Pay upto 75% of
warranty/condition of admissible claim.
policy including
limitation as to use
15. From a perusal of the aforesaid guidelines, it is clear that one of the cases where 75% claim of the admissible claim was settled was where condition of policy including limitation as to use was breached.
15. In the present case, the only objection of the appellants was that it was carrying more passengers than its sitting capacity. This breach of the terms and conditions of the insurance policy is only the sideline violation not the basic cause of claim. Therefore the respondent is entitled to 75% of the amount claimed on non-standard basis.
16. In the present case, the respondent had pleaded that he had spent an amount of Rs.1,70,409/- on getting the vehicle repaired. He has proved the survey report dated 4.8.2006 given by Er. G.S. Riar (appointed by the appellants) as Ex.C-2 according to which the loss amount was calculated as Rs.1,42,429.87P rounded to Rs.1,42,430/- which was awarded by the learned District in the impugned judgment dated 27.7.2009. The appellants have also placed on the file the same report dated 4.8.2006 given by Er. G.S. Riar as Annexure A-4. Therefore the loss assessed by the surveyor of the appellants is to the tune of Rs.1,42,430/-. First Appeal No.1332 of 2009. 6
17. Since the respondent is entitled to 75% of the insured claim on non- standard basis, therefore, the entitlement of the respondent is to the tune of 75% of Rs.1,42,430/- i.e. Rs.1,06,822.50P rounded to Rs.1,06,825/-.
18. The rate of interest at the rate of 9% per annum awarded by the learned District Forum is upheld.
19. Costs of Rs.1,000/- awarded by the learned District Forum are also upheld.
20. The appellants had deposited an amount of Rs.25,000/- with this Commission at the time of filing of the appeal on 18.9.2009 . This amount of Rs.25,000/- with interest accrued thereon, if any, be remitted by the registry to the respondent by way of a crossed cheque/demand draft after the expiry of 45 days under intimation to the learned District Forum and to the appellants.
21. The interest on the amount of Rs.25,000/- shall stop running with effect from the date the appellants had deposited the same in this Commission. Interest on this amount of Rs.25,000/- shall be what has accrued on this amount when it remained deposited by this Commission in the Bank.
22. Remaining amount shall be paid by the appellants to the respondent.
23. The arguments in this case were heard on 20.1.2011 and the order was reserved. Now, the order be communicated to the parties.
24. The appeal could not be decided within the statutory period due to heavy pendency of court cases.
(JUSTICE S.N. AGGARWAL)
PRESIDENT
(MRS. AMARPREET SHARMA)
MEMBER
February 01 , 2011 (BALDEV SINGH SEKHON)
Bansal MEMBER
First Appeal No.1332 of 2009. 7