State Consumer Disputes Redressal Commission
Smt.Mohan Bai vs New India Assurance Co. & Ors. on 19 November, 2009
APPEAL NO: 305/2009 Smt.Mohan Bai w/o Bhairulal Behind Police Station, Bari Sadari, Distt. Chittorgarh. Complainant-appellant Vs. 1. The New India Assurance Co.Ltd. Through Br.Manager,11 Floor, New Centre 17/A, Kuprej Road, Mumbai. 2. The New India Assurance Co.Ltd. Through Br.Manager, Meera Market, Meera Hall, Chittorgarh. Opposite parties-respondents 19.11.09 Before: Mr.Justice Sunil Kumar Garg-President Mrs.Vimla Sethia-Member
Mr.Bhanwarlal Aheer counsel for the appellant Mr.U.K.Pradhan counsel for the respondents 2 BY THE STATE COMMISSION This appeal has been filed by the complainant appellant against order dated 16.1.09 passed by the District Forum,Chittorgarh in complaint no. 234/08 by which the complaint of the complainant appellant was dismissed.
2. It arises in the following circumstances-
That the complainant appellant had filed a complaint against the respondents before the District Forum,Chittorgarh on 7.7.08 inter alia stating that his bus bearing registration no. RJ 09 P 1481 was got insured with the respondents Insurance Co. for the period 15.5.06 to 14.5.07 for a sum of Rs.2,97,500/- as IDV and the policy no. was 121000/31/06/01/00001835. It was further stated in the complaint that on 15.8.06 when the bus in question was coming from Badi Sadri to Jogania Mata near village Bichhore and since at that time due to heavy rain the water level in the nalah was very high and since the water was flowing over the bridge, and when the driver of the bus tried to reverse the bus the same had fallen in the river and in that accident five persons had died and the vehicle in question was also damaged. It was further stated in the complaint that a report of that incident was lodged with the Police Station, Parsoli bearing FIR no. 104/2006 on 15.8.06 by one Rameshwarlal and upon that FIR a challan was filed against the driver of the bus Lal Singh 3 for committing offence under section 304 IPC.It was further stated in the complaint that Addl.District & Sessions Judge, Fast Track, Chittorgarh in case no. 01/2007 ( 69/2006 ) through judgment dated 1.2.07 had convicted the driver of the bus Lal Singh for committing offence under section 304 A IPC in place of 304 part II IPC . It was further stated in the complaint that at the time of accident the driver of the bus was having a valid and effective licence and thus claim was lodged with the respondents Insurance Company but the claim of the complainant appellant was not settled by the respondents. It was further stated in the complaint that in that accident the complainant had suffered a loss to the tune of Rs. 1 lac for the damage of the vehicle and thus for claiming that amount, the present complaint was filed.
A reply was filed by the respondents before the District Forum, Chittorgarh on 18.9.08 and the case of the respondents was that since at the time of accident though the capacity of passengers were allowed to be seated in the bus was 47 persons but in that place 70-80 persons were being carried in that bus by the driver of the bus and further looking to the fact that the water level of the river was very high and even then he had passed the bus through that bridge and since because of the more passengers seated in the bus, the driver had lost the balance as a result of which the bus had fallen in the river and thus the accident had taken place because 4 of the rash and negligent driving of the driver of the bus and further taking the more passengers than permitted, the driver had violated the terms and conditions of the policy and thus claim was not payable. It was further stated in the reply that no doubt the surveyor Mr.D.D.Mantri in his report dated 27.8.06 had assessed the loss to the tune of Rs.53,838.80 but since there was violation of the terms and conditions of the policy and since there was rash and negligent driving by the driver of the bus, therefore, claim was not payable and it was prayed that complaint be dismissed.
After hearing the parties, the District Forum,Chittorgarh through impugned order dated 16.1.09 had dismissed the complaint of the complainant appellant inter alia holding that-
(i) That since the capacity for carrying the passengers was 40-50 persons but at the time of accident there were 60-70 persons were found sitting in the bus and therefore, there was violation of the terms and conditions of the permit.
(ii) That since there were 60-70 persons were being carried in the bus against the capacity of 40-50 persons, therefore, because of the violation of the terms and conditions of the policy, claim was not payable.5
(iii) That the respondents were justified in not settling the claim of the complainant appellant.
Aggrieved from the said order dated 16.1.09 passed by the District Forum, Chittorgarh, this appeal has been filed by the complainant appellant.
3. In this appeal the main contention of the learned counsel for the appellant is that no doubt at the most it may be found that at the time of accident more persons were sitting in the bus then permitted but the cause of the accident could not be related to the persons sitting in the bus as the bus had fallen in the river because of the high level of the water and thus the respondents were not justified in not settling the claim of the complainant appellant and the District Forum had committed serious error and illegality in dismissing the complaint of the complainant appellant . Hence the impugned order could not be sustained and liable to be quashed and set aside and this appeal deserves to be allowed.
4. On the other hand, the learned counsel appearing for the respondents has supported the impugned order of the District Forum.
5. We have heard the learned counsel for the appellants as well as for the respondents and gone through the entire materials available on record.
66. There is no dispute on the point that bus no. RJ 09 P 1481 of the complainant appellant was got insured with the respondents Insurance Co. for the period 15.5.06 to 14.5.07 for a sum of Rs.2,97,500/- as IDV and the policy no. was 121000/31/06/01/00001835.
7. There is no dispute on the point that on 15.8.06 when the bus in question was coming from Badi Sadri to Jogania Mata near village Bichhore and since at that time the water level in the nalah was very high and when the driver of the bus tried to reverse the bus the same had fallen in the river and in that accident five persons had died .
8. There is no dispute on the point that a report of that incident was lodged with the Police Station, Parsoli bearing FIR no. 104/2006 on 15.8.06 by one Rameshwarlal and upon that FIR a challan was filed against the driver of the bus Lal Singh for committing offence under section 304 IPC.
9. There is no dispute on the point that Addl.District & Sessions Judge, Fast Track, Chittorgarh in case no. 01/2007 ( 69/2006 ) through judgment dated 1.2.07 had convicted the driver of the bus Lal Singh for committing offence under section 304 A IPC in place of 304 part II IPC .
10. There is no dispute on the point that there was violation of the terms and conditions of the policy on the part of the driver of the bus on point that he was carrying more persons 7 then permitted or more than the capacity of the bus.
11. Thus, in the facts and circumstances just narrated above, the question for consideration is whether the findings recorded by the District Forum by which complaint of the complainant appellant was dismissed could be sustained or not and whether the repudiation of the claim of the complainant appellant by the respondents was justified or not.
12. In our considered opinion, looking to the fact that immediate cause of the accident was not the passengers sitting in the bus but the immediate cause of the accident was heavy flow of the water in the river by which the driver of the bus could not maintain the balance and thereafter the bus had fallen in the river and was damaged but the fact that there was violation of the terms and conditions of the policy on the point that the driver was carrying more persons then permitted is well established and in such a case, repudiation of the claim in toto could not be justified as in fact there is breach of terms and conditions of the policy but not so fundamental in nature as to put the whole contract to an end and thus, this Commission is of the view that the claim of the complainant appellant should have been treated as sub-standard and the same is being treated as sub -standard and thus the findings recorded by the District Forum by which complaint was dismissed could not be sustained as they suffer from basic infirmity, illegality and perversity. Hence, the impugned order is liable to be quashed and set aside and this appeal deserves to be allowed.
8On point of compensation
13. It may be stated here that since in this case the surveyor Mr.D.D.Mantri had assessed the loss to the tune of Rs.53,838.80, therefore, the complainant appellant is entitled to get 75% of that amount which comes to Rs.40,379/-and thus, the appellant complainant is entitled to get a sum of Rs.40,379/- alongwith interest @ 9% p.a. from the date of filing of the complaint and further a sum of Rs. 3000/- as costs.
Accordingly, this appeal filed by the appellant complainant is allowed and the impugned order dated 16.1.09 passed by the District Forum,Chittorgarh is quashed and set aside and the complaint of the complainant appellant stands allowed in the manner that the respondents are directed to pay to the complainant appellant a sum of Rs. 40,379/- alongwith interest @ 9% p.a. from the date of filing of the complaint till the payment is made and respondents are further directed to pay a sum of Rs.3000/- as amount of costs to the complainant appellant.
(Vimla
Sethia) (Justice Sunil Kumar Garg)
Member President APPEAL
NO: 305/2009
Smt.Mohan
Bai w/o Bhairulal
Behind
Police Station,
Bari
Sadari, Distt. Chittorgarh.
Complainant-appellant
Vs.
1. The
New India Assurance Co.Ltd.
Through
Br.Manager,11 Floor,
New
Centre 17/A, Kuprej Road,
Mumbai.
2. The
New India Assurance Co.Ltd.
Through
Br.Manager,
Meera
Market, Meera Hall,
Chittorgarh.
Opposite
parties-respondents
19.11.09
Before:
Mr.Justice
Sunil Kumar Garg-President
Mrs.Vimla
Sethia-Member
Mr.Bhanwarlal
Aheer counsel for the appellant
Mr.U.K.Pradhan
counsel for the respondents
2
BY
THE STATE COMMISSION
This
appeal has been filed by the complainant appellant against order dated 16.1.09 passed by the District Forum,Chittorgarh in complaint no. 234/08 by which the complaint of the complainant appellant was dismissed.
2. It arises in the following circumstances-
That the complainant appellant had filed a complaint against the respondents before the District Forum,Chittorgarh on 7.7.08 inter alia stating that his bus bearing registration no. RJ 09 P 1481 was got insured with the respondents Insurance Co. for the period 15.5.06 to 14.5.07 for a sum of Rs.2,97,500/- as IDV and the policy no. was 121000/31/06/01/00001835. It was further stated in the complaint that on 15.8.06 when the bus in question was coming from Badi Sadri to Jogania Mata near village Bichhore and since at that time due to heavy rain the water level in the nalah was very high and since the water was flowing over the bridge, and when the driver of the bus tried to reverse the bus the same had fallen in the river and in that accident five persons had died and the vehicle in question was also damaged. It was further stated in the complaint that a report of that incident was lodged with the Police Station, Parsoli bearing FIR no. 104/2006 on 15.8.06 by one Rameshwarlal and upon that FIR a challan was filed against the driver of the bus Lal Singh 3 for committing offence under section 304 IPC.It was further stated in the complaint that Addl.District & Sessions Judge, Fast Track, Chittorgarh in case no. 01/2007 ( 69/2006 ) through judgment dated 1.2.07 had convicted the driver of the bus Lal Singh for committing offence under section 304 A IPC in place of 304 part II IPC . It was further stated in the complaint that at the time of accident the driver of the bus was having a valid and effective licence and thus claim was lodged with the respondents Insurance Company but the claim of the complainant appellant was not settled by the respondents. It was further stated in the complaint that in that accident the complainant had suffered a loss to the tune of Rs. 1 lac for the damage of the vehicle and thus for claiming that amount, the present complaint was filed.
A reply was filed by the respondents before the District Forum, Chittorgarh on 18.9.08 and the case of the respondents was that since at the time of accident though the capacity of passengers were allowed to be seated in the bus was 47 persons but in that place 70-80 persons were being carried in that bus by the driver of the bus and further looking to the fact that the water level of the river was very high and even then he had passed the bus through that bridge and since because of the more passengers seated in the bus, the driver had lost the balance as a result of which the bus had fallen in the river and thus the accident had taken place because 4 of the rash and negligent driving of the driver of the bus and further taking the more passengers than permitted, the driver had violated the terms and conditions of the policy and thus claim was not payable. It was further stated in the reply that no doubt the surveyor Mr.D.D.Mantri in his report dated 27.8.06 had assessed the loss to the tune of Rs.53,838.80 but since there was violation of the terms and conditions of the policy and since there was rash and negligent driving by the driver of the bus, therefore, claim was not payable and it was prayed that complaint be dismissed.
After hearing the parties, the District Forum,Chittorgarh through impugned order dated 16.1.09 had dismissed the complaint of the complainant appellant inter alia holding that-
(i) That since the capacity for carrying the passengers was 40-50 persons but at the time of accident there were 60-70 persons were found sitting in the bus and therefore, there was violation of the terms and conditions of the permit.
(ii) That since there were 60-70 persons were being carried in the bus against the capacity of 40-50 persons, therefore, because of the violation of the terms and conditions of the policy, claim was not payable.5
(iii) That the respondents were justified in not settling the claim of the complainant appellant.
Aggrieved from the said order dated 16.1.09 passed by the District Forum, Chittorgarh, this appeal has been filed by the complainant appellant.
3. In this appeal the main contention of the learned counsel for the appellant is that no doubt at the most it may be found that at the time of accident more persons were sitting in the bus then permitted but the cause of the accident could not be related to the persons sitting in the bus as the bus had fallen in the river because of the high level of the water and thus the respondents were not justified in not settling the claim of the complainant appellant and the District Forum had committed serious error and illegality in dismissing the complaint of the complainant appellant . Hence the impugned order could not be sustained and liable to be quashed and set aside and this appeal deserves to be allowed.
4. On the other hand, the learned counsel appearing for the respondents has supported the impugned order of the District Forum.
5. We have heard the learned counsel for the appellants as well as for the respondents and gone through the entire materials available on record.
66. There is no dispute on the point that bus no. RJ 09 P 1481 of the complainant appellant was got insured with the respondents Insurance Co. for the period 15.5.06 to 14.5.07 for a sum of Rs.2,97,500/- as IDV and the policy no. was 121000/31/06/01/00001835.
7. There is no dispute on the point that on 15.8.06 when the bus in question was coming from Badi Sadri to Jogania Mata near village Bichhore and since at that time the water level in the nalah was very high and when the driver of the bus tried to reverse the bus the same had fallen in the river and in that accident five persons had died .
8. There is no dispute on the point that a report of that incident was lodged with the Police Station, Parsoli bearing FIR no. 104/2006 on 15.8.06 by one Rameshwarlal and upon that FIR a challan was filed against the driver of the bus Lal Singh for committing offence under section 304 IPC.
9. There is no dispute on the point that Addl.District & Sessions Judge, Fast Track, Chittorgarh in case no. 01/2007 ( 69/2006 ) through judgment dated 1.2.07 had convicted the driver of the bus Lal Singh for committing offence under section 304 A IPC in place of 304 part II IPC .
10. There is no dispute on the point that there was violation of the terms and conditions of the policy on the part of the driver of the bus on point that he was carrying more persons 7 then permitted or more than the capacity of the bus.
11. Thus, in the facts and circumstances just narrated above, the question for consideration is whether the findings recorded by the District Forum by which complaint of the complainant appellant was dismissed could be sustained or not and whether the repudiation of the claim of the complainant appellant by the respondents was justified or not.
12. In our considered opinion, looking to the fact that immediate cause of the accident was not the passengers sitting in the bus but the immediate cause of the accident was heavy flow of the water in the river by which the driver of the bus could not maintain the balance and thereafter the bus had fallen in the river and was damaged but the fact that there was violation of the terms and conditions of the policy on the point that the driver was carrying more persons then permitted is well established and in such a case, repudiation of the claim in toto could not be justified as in fact there is breach of terms and conditions of the policy but not so fundamental in nature as to put the whole contract to an end and thus, this Commission is of the view that the claim of the complainant appellant should have been treated as sub-standard and the same is being treated as sub -standard and thus the findings recorded by the District Forum by which complaint was dismissed could not be sustained as they suffer from basic infirmity, illegality and perversity. Hence, the impugned order is liable to be quashed and set aside and this appeal deserves to be allowed.
8On point of compensation
13. It may be stated here that since in this case the surveyor Mr.D.D.Mantri had assessed the loss to the tune of Rs.53,838.80, therefore, the complainant appellant is entitled to get 75% of that amount which comes to Rs.40,379/-and thus, the appellant complainant is entitled to get a sum of Rs.40,379/- alongwith interest @ 9% p.a. from the date of filing of the complaint and further a sum of Rs. 3000/- as costs.
Accordingly, this appeal filed by the appellant complainant is allowed and the impugned order dated 16.1.09 passed by the District Forum,Chittorgarh is quashed and set aside and the complaint of the complainant appellant stands allowed in the manner that the respondents are directed to pay to the complainant appellant a sum of Rs. 40,379/- alongwith interest @ 9% p.a. from the date of filing of the complaint till the payment is made and respondents are further directed to pay a sum of Rs.3000/- as amount of costs to the complainant appellant.
(Vimla
Sethia) (Justice Sunil Kumar Garg)
Member President APPEAL
NO: 305/2009
Smt.Mohan
Bai w/o Bhairulal
Behind
Police Station,
Bari
Sadari, Distt. Chittorgarh.
Complainant-appellant
Vs.
1. The
New India Assurance Co.Ltd.
Through
Br.Manager,11 Floor,
New
Centre 17/A, Kuprej Road,
Mumbai.
2. The
New India Assurance Co.Ltd.
Through
Br.Manager,
Meera
Market, Meera Hall,
Chittorgarh.
Opposite
parties-respondents
19.11.09
Before:
Mr.Justice
Sunil Kumar Garg-President
Mrs.Vimla
Sethia-Member
Mr.Bhanwarlal
Aheer counsel for the appellant
Mr.U.K.Pradhan
counsel for the respondents
2
BY
THE STATE COMMISSION
This
appeal has been filed by the complainant appellant against order dated 16.1.09 passed by the District Forum,Chittorgarh in complaint no. 234/08 by which the complaint of the complainant appellant was dismissed.
2. It arises in the following circumstances-
That the complainant appellant had filed a complaint against the respondents before the District Forum,Chittorgarh on 7.7.08 inter alia stating that his bus bearing registration no. RJ 09 P 1481 was got insured with the respondents Insurance Co. for the period 15.5.06 to 14.5.07 for a sum of Rs.2,97,500/- as IDV and the policy no. was 121000/31/06/01/00001835. It was further stated in the complaint that on 15.8.06 when the bus in question was coming from Badi Sadri to Jogania Mata near village Bichhore and since at that time due to heavy rain the water level in the nalah was very high and since the water was flowing over the bridge, and when the driver of the bus tried to reverse the bus the same had fallen in the river and in that accident five persons had died and the vehicle in question was also damaged. It was further stated in the complaint that a report of that incident was lodged with the Police Station, Parsoli bearing FIR no. 104/2006 on 15.8.06 by one Rameshwarlal and upon that FIR a challan was filed against the driver of the bus Lal Singh 3 for committing offence under section 304 IPC.It was further stated in the complaint that Addl.District & Sessions Judge, Fast Track, Chittorgarh in case no. 01/2007 ( 69/2006 ) through judgment dated 1.2.07 had convicted the driver of the bus Lal Singh for committing offence under section 304 A IPC in place of 304 part II IPC . It was further stated in the complaint that at the time of accident the driver of the bus was having a valid and effective licence and thus claim was lodged with the respondents Insurance Company but the claim of the complainant appellant was not settled by the respondents. It was further stated in the complaint that in that accident the complainant had suffered a loss to the tune of Rs. 1 lac for the damage of the vehicle and thus for claiming that amount, the present complaint was filed.
A reply was filed by the respondents before the District Forum, Chittorgarh on 18.9.08 and the case of the respondents was that since at the time of accident though the capacity of passengers were allowed to be seated in the bus was 47 persons but in that place 70-80 persons were being carried in that bus by the driver of the bus and further looking to the fact that the water level of the river was very high and even then he had passed the bus through that bridge and since because of the more passengers seated in the bus, the driver had lost the balance as a result of which the bus had fallen in the river and thus the accident had taken place because 4 of the rash and negligent driving of the driver of the bus and further taking the more passengers than permitted, the driver had violated the terms and conditions of the policy and thus claim was not payable. It was further stated in the reply that no doubt the surveyor Mr.D.D.Mantri in his report dated 27.8.06 had assessed the loss to the tune of Rs.53,838.80 but since there was violation of the terms and conditions of the policy and since there was rash and negligent driving by the driver of the bus, therefore, claim was not payable and it was prayed that complaint be dismissed.
After hearing the parties, the District Forum,Chittorgarh through impugned order dated 16.1.09 had dismissed the complaint of the complainant appellant inter alia holding that-
(i) That since the capacity for carrying the passengers was 40-50 persons but at the time of accident there were 60-70 persons were found sitting in the bus and therefore, there was violation of the terms and conditions of the permit.
(ii) That since there were 60-70 persons were being carried in the bus against the capacity of 40-50 persons, therefore, because of the violation of the terms and conditions of the policy, claim was not payable.5
(iii) That the respondents were justified in not settling the claim of the complainant appellant.
Aggrieved from the said order dated 16.1.09 passed by the District Forum, Chittorgarh, this appeal has been filed by the complainant appellant.
3. In this appeal the main contention of the learned counsel for the appellant is that no doubt at the most it may be found that at the time of accident more persons were sitting in the bus then permitted but the cause of the accident could not be related to the persons sitting in the bus as the bus had fallen in the river because of the high level of the water and thus the respondents were not justified in not settling the claim of the complainant appellant and the District Forum had committed serious error and illegality in dismissing the complaint of the complainant appellant . Hence the impugned order could not be sustained and liable to be quashed and set aside and this appeal deserves to be allowed.
4. On the other hand, the learned counsel appearing for the respondents has supported the impugned order of the District Forum.
5. We have heard the learned counsel for the appellants as well as for the respondents and gone through the entire materials available on record.
66. There is no dispute on the point that bus no. RJ 09 P 1481 of the complainant appellant was got insured with the respondents Insurance Co. for the period 15.5.06 to 14.5.07 for a sum of Rs.2,97,500/- as IDV and the policy no. was 121000/31/06/01/00001835.
7. There is no dispute on the point that on 15.8.06 when the bus in question was coming from Badi Sadri to Jogania Mata near village Bichhore and since at that time the water level in the nalah was very high and when the driver of the bus tried to reverse the bus the same had fallen in the river and in that accident five persons had died .
8. There is no dispute on the point that a report of that incident was lodged with the Police Station, Parsoli bearing FIR no. 104/2006 on 15.8.06 by one Rameshwarlal and upon that FIR a challan was filed against the driver of the bus Lal Singh for committing offence under section 304 IPC.
9. There is no dispute on the point that Addl.District & Sessions Judge, Fast Track, Chittorgarh in case no. 01/2007 ( 69/2006 ) through judgment dated 1.2.07 had convicted the driver of the bus Lal Singh for committing offence under section 304 A IPC in place of 304 part II IPC .
10. There is no dispute on the point that there was violation of the terms and conditions of the policy on the part of the driver of the bus on point that he was carrying more persons 7 then permitted or more than the capacity of the bus.
11. Thus, in the facts and circumstances just narrated above, the question for consideration is whether the findings recorded by the District Forum by which complaint of the complainant appellant was dismissed could be sustained or not and whether the repudiation of the claim of the complainant appellant by the respondents was justified or not.
12. In our considered opinion, looking to the fact that immediate cause of the accident was not the passengers sitting in the bus but the immediate cause of the accident was heavy flow of the water in the river by which the driver of the bus could not maintain the balance and thereafter the bus had fallen in the river and was damaged but the fact that there was violation of the terms and conditions of the policy on the point that the driver was carrying more persons then permitted is well established and in such a case, repudiation of the claim in toto could not be justified as in fact there is breach of terms and conditions of the policy but not so fundamental in nature as to put the whole contract to an end and thus, this Commission is of the view that the claim of the complainant appellant should have been treated as sub-standard and the same is being treated as sub -standard and thus the findings recorded by the District Forum by which complaint was dismissed could not be sustained as they suffer from basic infirmity, illegality and perversity. Hence, the impugned order is liable to be quashed and set aside and this appeal deserves to be allowed.
8On point of compensation
13. It may be stated here that since in this case the surveyor Mr.D.D.Mantri had assessed the loss to the tune of Rs.53,838.80, therefore, the complainant appellant is entitled to get 75% of that amount which comes to Rs.40,379/-and thus, the appellant complainant is entitled to get a sum of Rs.40,379/- alongwith interest @ 9% p.a. from the date of filing of the complaint and further a sum of Rs. 3000/- as costs.
Accordingly, this appeal filed by the appellant complainant is allowed and the impugned order dated 16.1.09 passed by the District Forum,Chittorgarh is quashed and set aside and the complaint of the complainant appellant stands allowed in the manner that the respondents are directed to pay to the complainant appellant a sum of Rs. 40,379/- alongwith interest @ 9% p.a. from the date of filing of the complaint till the payment is made and respondents are further directed to pay a sum of Rs.3000/- as amount of costs to the complainant appellant.
(Vimla
Sethia) (Justice Sunil Kumar Garg)
Member President APPEAL
NO: 305/2009
Smt.Mohan
Bai w/o Bhairulal
Behind
Police Station,
Bari
Sadari, Distt. Chittorgarh.
Complainant-appellant
Vs.
1. The
New India Assurance Co.Ltd.
Through
Br.Manager,11 Floor,
New
Centre 17/A, Kuprej Road,
Mumbai.
2. The
New India Assurance Co.Ltd.
Through
Br.Manager,
Meera
Market, Meera Hall,
Chittorgarh.
Opposite
parties-respondents
19.11.09
Before:
Mr.Justice
Sunil Kumar Garg-President
Mrs.Vimla
Sethia-Member
Mr.Bhanwarlal
Aheer counsel for the appellant
Mr.U.K.Pradhan
counsel for the respondents
2
BY
THE STATE COMMISSION
This
appeal has been filed by the complainant appellant against order dated 16.1.09 passed by the District Forum,Chittorgarh in complaint no. 234/08 by which the complaint of the complainant appellant was dismissed.
2. It arises in the following circumstances-
That the complainant appellant had filed a complaint against the respondents before the District Forum,Chittorgarh on 7.7.08 inter alia stating that his bus bearing registration no. RJ 09 P 1481 was got insured with the respondents Insurance Co. for the period 15.5.06 to 14.5.07 for a sum of Rs.2,97,500/- as IDV and the policy no. was 121000/31/06/01/00001835. It was further stated in the complaint that on 15.8.06 when the bus in question was coming from Badi Sadri to Jogania Mata near village Bichhore and since at that time due to heavy rain the water level in the nalah was very high and since the water was flowing over the bridge, and when the driver of the bus tried to reverse the bus the same had fallen in the river and in that accident five persons had died and the vehicle in question was also damaged. It was further stated in the complaint that a report of that incident was lodged with the Police Station, Parsoli bearing FIR no. 104/2006 on 15.8.06 by one Rameshwarlal and upon that FIR a challan was filed against the driver of the bus Lal Singh 3 for committing offence under section 304 IPC.It was further stated in the complaint that Addl.District & Sessions Judge, Fast Track, Chittorgarh in case no. 01/2007 ( 69/2006 ) through judgment dated 1.2.07 had convicted the driver of the bus Lal Singh for committing offence under section 304 A IPC in place of 304 part II IPC . It was further stated in the complaint that at the time of accident the driver of the bus was having a valid and effective licence and thus claim was lodged with the respondents Insurance Company but the claim of the complainant appellant was not settled by the respondents. It was further stated in the complaint that in that accident the complainant had suffered a loss to the tune of Rs. 1 lac for the damage of the vehicle and thus for claiming that amount, the present complaint was filed.
A reply was filed by the respondents before the District Forum, Chittorgarh on 18.9.08 and the case of the respondents was that since at the time of accident though the capacity of passengers were allowed to be seated in the bus was 47 persons but in that place 70-80 persons were being carried in that bus by the driver of the bus and further looking to the fact that the water level of the river was very high and even then he had passed the bus through that bridge and since because of the more passengers seated in the bus, the driver had lost the balance as a result of which the bus had fallen in the river and thus the accident had taken place because 4 of the rash and negligent driving of the driver of the bus and further taking the more passengers than permitted, the driver had violated the terms and conditions of the policy and thus claim was not payable. It was further stated in the reply that no doubt the surveyor Mr.D.D.Mantri in his report dated 27.8.06 had assessed the loss to the tune of Rs.53,838.80 but since there was violation of the terms and conditions of the policy and since there was rash and negligent driving by the driver of the bus, therefore, claim was not payable and it was prayed that complaint be dismissed.
After hearing the parties, the District Forum,Chittorgarh through impugned order dated 16.1.09 had dismissed the complaint of the complainant appellant inter alia holding that-
(i) That since the capacity for carrying the passengers was 40-50 persons but at the time of accident there were 60-70 persons were found sitting in the bus and therefore, there was violation of the terms and conditions of the permit.
(ii) That since there were 60-70 persons were being carried in the bus against the capacity of 40-50 persons, therefore, because of the violation of the terms and conditions of the policy, claim was not payable.5
(iii) That the respondents were justified in not settling the claim of the complainant appellant.
Aggrieved from the said order dated 16.1.09 passed by the District Forum, Chittorgarh, this appeal has been filed by the complainant appellant.
3. In this appeal the main contention of the learned counsel for the appellant is that no doubt at the most it may be found that at the time of accident more persons were sitting in the bus then permitted but the cause of the accident could not be related to the persons sitting in the bus as the bus had fallen in the river because of the high level of the water and thus the respondents were not justified in not settling the claim of the complainant appellant and the District Forum had committed serious error and illegality in dismissing the complaint of the complainant appellant . Hence the impugned order could not be sustained and liable to be quashed and set aside and this appeal deserves to be allowed.
4. On the other hand, the learned counsel appearing for the respondents has supported the impugned order of the District Forum.
5. We have heard the learned counsel for the appellants as well as for the respondents and gone through the entire materials available on record.
66. There is no dispute on the point that bus no. RJ 09 P 1481 of the complainant appellant was got insured with the respondents Insurance Co. for the period 15.5.06 to 14.5.07 for a sum of Rs.2,97,500/- as IDV and the policy no. was 121000/31/06/01/00001835.
7. There is no dispute on the point that on 15.8.06 when the bus in question was coming from Badi Sadri to Jogania Mata near village Bichhore and since at that time the water level in the nalah was very high and when the driver of the bus tried to reverse the bus the same had fallen in the river and in that accident five persons had died .
8. There is no dispute on the point that a report of that incident was lodged with the Police Station, Parsoli bearing FIR no. 104/2006 on 15.8.06 by one Rameshwarlal and upon that FIR a challan was filed against the driver of the bus Lal Singh for committing offence under section 304 IPC.
9. There is no dispute on the point that Addl.District & Sessions Judge, Fast Track, Chittorgarh in case no. 01/2007 ( 69/2006 ) through judgment dated 1.2.07 had convicted the driver of the bus Lal Singh for committing offence under section 304 A IPC in place of 304 part II IPC .
10. There is no dispute on the point that there was violation of the terms and conditions of the policy on the part of the driver of the bus on point that he was carrying more persons 7 then permitted or more than the capacity of the bus.
11. Thus, in the facts and circumstances just narrated above, the question for consideration is whether the findings recorded by the District Forum by which complaint of the complainant appellant was dismissed could be sustained or not and whether the repudiation of the claim of the complainant appellant by the respondents was justified or not.
12. In our considered opinion, looking to the fact that immediate cause of the accident was not the passengers sitting in the bus but the immediate cause of the accident was heavy flow of the water in the river by which the driver of the bus could not maintain the balance and thereafter the bus had fallen in the river and was damaged but the fact that there was violation of the terms and conditions of the policy on the point that the driver was carrying more persons then permitted is well established and in such a case, repudiation of the claim in toto could not be justified as in fact there is breach of terms and conditions of the policy but not so fundamental in nature as to put the whole contract to an end and thus, this Commission is of the view that the claim of the complainant appellant should have been treated as sub-standard and the same is being treated as sub -standard and thus the findings recorded by the District Forum by which complaint was dismissed could not be sustained as they suffer from basic infirmity, illegality and perversity. Hence, the impugned order is liable to be quashed and set aside and this appeal deserves to be allowed.
8On point of compensation
13. It may be stated here that since in this case the surveyor Mr.D.D.Mantri had assessed the loss to the tune of Rs.53,838.80, therefore, the complainant appellant is entitled to get 75% of that amount which comes to Rs.40,379/-and thus, the appellant complainant is entitled to get a sum of Rs.40,379/- alongwith interest @ 9% p.a. from the date of filing of the complaint and further a sum of Rs. 3000/- as costs.
Accordingly, this appeal filed by the appellant complainant is allowed and the impugned order dated 16.1.09 passed by the District Forum,Chittorgarh is quashed and set aside and the complaint of the complainant appellant stands allowed in the manner that the respondents are directed to pay to the complainant appellant a sum of Rs. 40,379/- alongwith interest @ 9% p.a. from the date of filing of the complaint till the payment is made and respondents are further directed to pay a sum of Rs.3000/- as amount of costs to the complainant appellant.
(Vimla
Sethia) (Justice Sunil Kumar Garg)
Member President APPEAL
NO: 305/2009
Smt.Mohan
Bai w/o Bhairulal
Behind
Police Station,
Bari
Sadari, Distt. Chittorgarh.
Complainant-appellant
Vs.
1. The
New India Assurance Co.Ltd.
Through
Br.Manager,11 Floor,
New
Centre 17/A, Kuprej Road,
Mumbai.
2. The
New India Assurance Co.Ltd.
Through
Br.Manager,
Meera
Market, Meera Hall,
Chittorgarh.
Opposite
parties-respondents
19.11.09
Before:
Mr.Justice
Sunil Kumar Garg-President
Mrs.Vimla
Sethia-Member
Mr.Bhanwarlal
Aheer counsel for the appellant
Mr.U.K.Pradhan
counsel for the respondents
2
BY
THE STATE COMMISSION
This
appeal has been filed by the complainant appellant against order dated 16.1.09 passed by the District Forum,Chittorgarh in complaint no. 234/08 by which the complaint of the complainant appellant was dismissed.
2. It arises in the following circumstances-
That the complainant appellant had filed a complaint against the respondents before the District Forum,Chittorgarh on 7.7.08 inter alia stating that his bus bearing registration no. RJ 09 P 1481 was got insured with the respondents Insurance Co. for the period 15.5.06 to 14.5.07 for a sum of Rs.2,97,500/- as IDV and the policy no. was 121000/31/06/01/00001835. It was further stated in the complaint that on 15.8.06 when the bus in question was coming from Badi Sadri to Jogania Mata near village Bichhore and since at that time due to heavy rain the water level in the nalah was very high and since the water was flowing over the bridge, and when the driver of the bus tried to reverse the bus the same had fallen in the river and in that accident five persons had died and the vehicle in question was also damaged. It was further stated in the complaint that a report of that incident was lodged with the Police Station, Parsoli bearing FIR no. 104/2006 on 15.8.06 by one Rameshwarlal and upon that FIR a challan was filed against the driver of the bus Lal Singh 3 for committing offence under section 304 IPC.It was further stated in the complaint that Addl.District & Sessions Judge, Fast Track, Chittorgarh in case no. 01/2007 ( 69/2006 ) through judgment dated 1.2.07 had convicted the driver of the bus Lal Singh for committing offence under section 304 A IPC in place of 304 part II IPC . It was further stated in the complaint that at the time of accident the driver of the bus was having a valid and effective licence and thus claim was lodged with the respondents Insurance Company but the claim of the complainant appellant was not settled by the respondents. It was further stated in the complaint that in that accident the complainant had suffered a loss to the tune of Rs. 1 lac for the damage of the vehicle and thus for claiming that amount, the present complaint was filed.
A reply was filed by the respondents before the District Forum, Chittorgarh on 18.9.08 and the case of the respondents was that since at the time of accident though the capacity of passengers were allowed to be seated in the bus was 47 persons but in that place 70-80 persons were being carried in that bus by the driver of the bus and further looking to the fact that the water level of the river was very high and even then he had passed the bus through that bridge and since because of the more passengers seated in the bus, the driver had lost the balance as a result of which the bus had fallen in the river and thus the accident had taken place because 4 of the rash and negligent driving of the driver of the bus and further taking the more passengers than permitted, the driver had violated the terms and conditions of the policy and thus claim was not payable. It was further stated in the reply that no doubt the surveyor Mr.D.D.Mantri in his report dated 27.8.06 had assessed the loss to the tune of Rs.53,838.80 but since there was violation of the terms and conditions of the policy and since there was rash and negligent driving by the driver of the bus, therefore, claim was not payable and it was prayed that complaint be dismissed.
After hearing the parties, the District Forum,Chittorgarh through impugned order dated 16.1.09 had dismissed the complaint of the complainant appellant inter alia holding that-
(i) That since the capacity for carrying the passengers was 40-50 persons but at the time of accident there were 60-70 persons were found sitting in the bus and therefore, there was violation of the terms and conditions of the permit.
(ii) That since there were 60-70 persons were being carried in the bus against the capacity of 40-50 persons, therefore, because of the violation of the terms and conditions of the policy, claim was not payable.5
(iii) That the respondents were justified in not settling the claim of the complainant appellant.
Aggrieved from the said order dated 16.1.09 passed by the District Forum, Chittorgarh, this appeal has been filed by the complainant appellant.
3. In this appeal the main contention of the learned counsel for the appellant is that no doubt at the most it may be found that at the time of accident more persons were sitting in the bus then permitted but the cause of the accident could not be related to the persons sitting in the bus as the bus had fallen in the river because of the high level of the water and thus the respondents were not justified in not settling the claim of the complainant appellant and the District Forum had committed serious error and illegality in dismissing the complaint of the complainant appellant . Hence the impugned order could not be sustained and liable to be quashed and set aside and this appeal deserves to be allowed.
4. On the other hand, the learned counsel appearing for the respondents has supported the impugned order of the District Forum.
5. We have heard the learned counsel for the appellants as well as for the respondents and gone through the entire materials available on record.
66. There is no dispute on the point that bus no. RJ 09 P 1481 of the complainant appellant was got insured with the respondents Insurance Co. for the period 15.5.06 to 14.5.07 for a sum of Rs.2,97,500/- as IDV and the policy no. was 121000/31/06/01/00001835.
7. There is no dispute on the point that on 15.8.06 when the bus in question was coming from Badi Sadri to Jogania Mata near village Bichhore and since at that time the water level in the nalah was very high and when the driver of the bus tried to reverse the bus the same had fallen in the river and in that accident five persons had died .
8. There is no dispute on the point that a report of that incident was lodged with the Police Station, Parsoli bearing FIR no. 104/2006 on 15.8.06 by one Rameshwarlal and upon that FIR a challan was filed against the driver of the bus Lal Singh for committing offence under section 304 IPC.
9. There is no dispute on the point that Addl.District & Sessions Judge, Fast Track, Chittorgarh in case no. 01/2007 ( 69/2006 ) through judgment dated 1.2.07 had convicted the driver of the bus Lal Singh for committing offence under section 304 A IPC in place of 304 part II IPC .
10. There is no dispute on the point that there was violation of the terms and conditions of the policy on the part of the driver of the bus on point that he was carrying more persons 7 then permitted or more than the capacity of the bus.
11. Thus, in the facts and circumstances just narrated above, the question for consideration is whether the findings recorded by the District Forum by which complaint of the complainant appellant was dismissed could be sustained or not and whether the repudiation of the claim of the complainant appellant by the respondents was justified or not.
12. In our considered opinion, looking to the fact that immediate cause of the accident was not the passengers sitting in the bus but the immediate cause of the accident was heavy flow of the water in the river by which the driver of the bus could not maintain the balance and thereafter the bus had fallen in the river and was damaged but the fact that there was violation of the terms and conditions of the policy on the point that the driver was carrying more persons then permitted is well established and in such a case, repudiation of the claim in toto could not be justified as in fact there is breach of terms and conditions of the policy but not so fundamental in nature as to put the whole contract to an end and thus, this Commission is of the view that the claim of the complainant appellant should have been treated as sub-standard and the same is being treated as sub -standard and thus the findings recorded by the District Forum by which complaint was dismissed could not be sustained as they suffer from basic infirmity, illegality and perversity. Hence, the impugned order is liable to be quashed and set aside and this appeal deserves to be allowed.
8On point of compensation
13. It may be stated here that since in this case the surveyor Mr.D.D.Mantri had assessed the loss to the tune of Rs.53,838.80, therefore, the complainant appellant is entitled to get 75% of that amount which comes to Rs.40,379/-and thus, the appellant complainant is entitled to get a sum of Rs.40,379/- alongwith interest @ 9% p.a. from the date of filing of the complaint and further a sum of Rs. 3000/- as costs.
Accordingly, this appeal filed by the appellant complainant is allowed and the impugned order dated 16.1.09 passed by the District Forum,Chittorgarh is quashed and set aside and the complaint of the complainant appellant stands allowed in the manner that the respondents are directed to pay to the complainant appellant a sum of Rs. 40,379/- alongwith interest @ 9% p.a. from the date of filing of the complaint till the payment is made and respondents are further directed to pay a sum of Rs.3000/- as amount of costs to the complainant appellant.
(Vimla Sethia) (Justice Sunil Kumar Garg) Member President