State Consumer Disputes Redressal Commission
Hiran Jay vs D.M. Cholamandalam Ms General ... on 7 October, 2017
CHHATTISGARH STATE
CONSUMER DISPUTES REDRESSAL COMMISSION,
PANDRI, RAIPUR (C.G).
Appeal No.FA/2017/547
Instituted on : 28.07.2017
Hiranjay, S/o Mahesh Ram Sahu, Caste Sahu,
R/o : Bodra, Police Station - Magarlod,
Tehsil - Kurud, District Dhamtari (C.G.) ... Appellant (Complainant)
Vs.
Divisional Manager,
Chola Mandalam M.S. General Insurance Co. Ltd.,
In front of Calltex Petrol Pump, Bastar Road,
Dhamtari, Tehsil & District Dhamtari (C.G.) ....Respondent (O.P.)
PPRESENT :
HON'BLE SHRI JUSTICE R.S. SHARMA, PRESIDENT
HON'BLE NARENDRA GUPTA, MEMBER
COUNSEL FOR THE PARTIES :
Shri C.S. Pandey, Advocate for the appellant (Complainant.
Shri Dipesh Kumar Thawait, Advocate for the respondent (O.P.)
ORDER
DATED : 7 /October/2017 PER :- HON'BLE SHRI JUSTICE R.S. SHARMA, PRESIDENT. This appeal is directed against the order dated 05th June, 2017, passed by District Consumer Disputes Redressal Forum, Dhamtari (C.G.) (henceforth "District Forum") in Complaint Case No.35/2016, whereby the complaint of the complainant, has been partly allowed and directed the O.P. that :-
(1) The O.P. will pay a sum of Rs.90,000/- (Rupees Ninety Thousand) to the complainant towards repairing expenses of the vehicle within two months.
(2) If the O.P. will not pay the above amount to the complainant, then the complainant is entitled to get simple interest @ 6% p.a. from the date of order till realisation.
// 2 // (3) The O.P. will pay a sum of Rs.500/- (Rupees Five Hundred) to the complainant.
2. Briefly stated the facts of the complaint of the complainant are that the complainant is registered owner of vehicle Bolero bearing registration No.C.G.04-HC-4271. The said vehicle was insured with the O.P. under Private Car Package Policy No.3362/00714428/000/03 for the period from 02.01.2015 to 01.01.2016. The Chassis No. of the vehicle is A.2 M 91022 and Engine No. is G.H. A.4 M 58492. On 23.11.2015 , the said vehicle met with an accident on 23.11.2015, intimation regarding the accident was given to the O.P. immediately. As per the instructions of the O.P. given orally and through mobile, the complainant brought the vehicle in question to Bhakku Motor Garage, Raipur. The Surveyor appointed by the O.P. conducted survey of the accidented vehicle and took photographs of the vehicle. On the instructions of the Surveyor and in his presence, the complainant got conducted the repairing of the vehicle. Before repairing of the vehicle, the Surveyor provided repairing estimate to the O.P. The Surveyor informed the O.P. regarding the condition of the vehicle. The Surveyor appointed by the O.P., for providing compensation, got signature of the complainant in blank paper which is in English. The Surveyor also obtained documents relating to repairing of the vehicle, bill of parts and all documents relating to the vehicle from the complainant. The complainant spent a sum of Rs.3,21,911/- in repairing of the vehicle. All bills regarding expenses incurred regarding repairing of the vehicle to // 3 // the tune of Rs.3,21,911/-. The O.P. is legally liable to pay the above amount to the complainant. The complainant demanded the above amount from the O.P. by sending legal notice and through mobile phone, but the O.P. inspite of receiving notice, did not pay the amount and also did not give any reply. The O.P. committed deficiency in service as by not paying the compensation The above act of the O.P. comes in the category of unfair trade practice under Consumer Protection Act, 1986. Hence the complainant has filed consumer complaint before the District Forum and prayed for granting reliefs as mentioned in the relief clause of the complaint.
3. The O.P. filed its written statement and averred that the insurance policy no.3362/00714428/000/03 was issued by the O.P. which was effective for the period from 02.01.2015 to 01.01.2016 and the vehicle was insured as per terms and conditions of the insurance policy, provisions of Motor Vehicles Act and India Motor Tarrif. In the insurance policy the sitting capacity of the vehicle is mentioned 10 including driver. The complainant sent intimation regarding the accident dated 23.11.2015. The vehicle in question was not taken to Bhakku Motor Garage as per instructions of the O.P. The Surveyor did not provide all documents of repairing estimate prior to the repairing of the vehicle to the O.P. The Surveyor had taken the documents. The complainant is making false averment that his signature was taken in blank paper. The complainant did not incur a sum of Rs.3,21,911/- in repairing of the vehicle. The Surveyor did not take the bill of // 4 // Rs.3,21,911/- or the complainant provided the bill to the Surveyor. The complainant is not entitled to get repairing charges of Rs.3,21,911/- or part thereof. The complainant has used the vehicle in question in violation of the terms and conditions of the insurance policy, therefore, the complainant is not entitled to get any compensation from the O.P. In the Survey Report, the amount to be paid to the complainant is mentioned Nil. The Investigator of the Insurance Company came to know from the statement of driver of the vehicle of the complainant Madhoram Vishwakarma that the vehicle bearing registration No.C.G.H.C.4271, as mentioned in the complaint, had been used for going to Village Rakhi in "Grih Pravesh Karyakram" and at the time of accident the driver Madhoram Vishwakarma was driving the vehicle and Tekram, Tejeswari Sahu, Omprakash Nirmalkar, Premium Bai Nirmalkar, Raveli Bai Sahu, Sumitra Sahu, Nandini Bai Sahu, Rajkumar Nirmalkar, Bhikham Sahu and Chandra Kumar Sahu were sitting in the vehicle, from which it is clear that at the time of accident the vehicle was being plied in violation of terms and conditions of the insurance policy. The O.P. sent intimation regarding repudiation of the claim to the complainant and thereafter the O.P. send reply to the notice on 29.06.2016 through advocate. Due to violation of terms and conditions of the insurance policy, the compensation has not been given to the complainant, which does not come in the category of deficiency in service and unfair trade practice. The complaint is liable to be dismissed.
// 5 //
4. The complainant has filed documents. Annexure 1 is First Information Report, Annexure 2 is Cash Invoice dated 18.02.2016 issued by Mahindra Auto Store, Annexure 3 is Cash / Credit Memo dated 18.02.2016 issued by Bhakku Motor Garage, Annexure 4 is bill dated 11.02.2016 issued by Auto Conditioning Solutions, Annexure 5 is Certificate of Registration of vehicle bearing registration No.C.G.04- HC-4271, Annexure 6 is details of vehicle bearing registration No.C.G.04-HC-4271, Annexure 7 is driving licence of Madhoram Vishwakarma, Annexure 8 is Aadhar Card of the complainant, Annexure 9 is Motor Policy Schedule Cum Certificate of Insurance, Annexure 10 are photographs, Annexure 11 is letter dated 25.01.2016 sent by the O.P. to the complainant, Annexure 12 is registered notice dated 08.3.2016 sent by Shri Basant Kumar Jain, Advocate on behalf of the complainant to the O.P., Annexure 13 is postal receipt.
5. The O.P. filed documents. Annexure D-1 is Motor Policy Schedule Cum Certificate of Insurance, Annexure D-2 is First Information Report, Annexure D-3 is letter dated 25.01.2016 sent by the O.P. to the complainant, Annexure -4 is reply dated 29.06.2016 sent by Shri Dipesh Kumar Thawait, Advocate to Shri Basant Kumar Jain, Advocate, Annexure D-5 is postal receipt, Annexure D-7 is acknowledgement, Annexure D--7 is report dated 05.01.2016 of National Claims Bureau Inc. The O.P. has also filed photographs of the accidented vehicle.
// 6 //
6. Learned District Forum after having considered the material placed before it by the parties has partly allowed the complaint.
7. The respondent (O.P.) also filed Appeal No.FA/2017/759 against the impugned order dated 05.06.2017. Vide order dated 18.09.2017, this Commission dismissed the appeal of the respondent (O.P.) holding that the appeal is barred by 62 days.
8. Shri C.S. Pandey, learned counsel appearing for the appellant (complainant) has argued that as per oral instructions given by the respondent (O.P.), the appellant (complainant) brought the vehicle in question to Bhakku Motor Garage, Raipur where the vehicle was got repaired. The appellant (complainant) incurred expenditure of Rs.3,21,911/- in repairing of the vehicle. The respondent (O.P.) did not file copy of Survey Report, therefore the invoice and bill filed by the appellant (complainant) are reliable and the same have not been rebutted by the respondent (O.P.), but learned District Forum has erroneously held that the appellant (complainant) is only entitled for Rs.90,000/-. The above finding of the District Forum, is illegal and contrary to law. He further argued that the respondent (O.P.) repudiated the claim of the appellant (complainant) on the ground that the vehicle in question was being driven in violation of terms and conditions of the insurance policy. According to the respondent (O.P.) the sitting capacity of the vehicle in question is 10 persons, but at the time of accident, 11 persons were sitting in the vehicle in question. The learned District Forum did not accept the plea of the respondent (O.P.), // 7 // but learned District Forum only awarded Rs.90,000/- to the appellant (complainant), therefore, the appellant (complainant) is entitled for the amount of Rs.3,21,911/- which was incurred by him in repairing of the vehicle in question.
9. Shri Dipesh Kumar Thawait, learned counsel for the respondent (O.P.) has argued that the respondent (O.P.) had also filed Appeal No.FA/2017/759 against the impugned order dated 05.06.2017 before this Commission. Vide order dated 18.09.2017, the appeal filed by the respondent (O.P.) was dismissed on the ground of delay. The appellant (complainant) violated terms and conditions of the insurance policy, therefore, the respondent (O.P.) rightly repudiated the claim of the appellant (complainant). The appellant (complainant) is not entitled to get any amount under the policy. The appeal filed by the appellant (complainant) is liable to be dismissed.
10. We have heard learned counsel appearing for both the parties and have also perused the record of the District Forum as well as the impugned order.
11. It is admitted that the appellant (complainant) is registered owner of vehicle Bolero bearing registration No.C.G.04-HC-4271 and the same was insured with the respondent (O.P.) for the period from 02.01.2015 to 01.01.2016.
12. According to the appellant (complainant), the vehicle in question met with an accident on 23.11.2015. The matter was reported to Police // 8 // Station, Rakhi where Offence No.131/2015 for offence under Section 279, 337 was registered against unknown person on the basis of Dehati Nalishi. Looking to the copy of First Information Report, it appears that the accident took place on 23.11.2015 and the vehicle was damaged. According to the appellant (complainant), the intimation regarding the accident was given by him to the respondent (O.P.) and the respondent (O.P.) appointed Surveyor.
13. In the instant case, the respondent (O.P.) did not file copy of Surveyor's Report, which is an important document for assessment of loss. For want of Survey Report, the respondent (O.P.) is unable to prove that how much loss was assessed by the Surveyor.
14. The appellant (complainant) has filed Cash Invoice dated 18.02.2016 issued by Mahindra Auto Stores (Annexure 2), Cash Credit Memo dated 18.02.2016 of Bhakku Motor Garage (Annexure 3) and bill dated 11.02.2016 of Auto Conditioning Solutions (Annexure 4). Looking to the above documents, it appears that the vehicle in question was got repaired by the appellant (complainant). According to the appellant (complainant) he incurred expenditure of Rs.3,21,911/- in repairing of the vehicle.
15. Now we shall examine where learned District Forum has rightly awarded Rs.90,000/- to the appellant (complainant) ?
16. The respondent (O.P.) has filed Annexure D-3 which is repudiation letter dated 25.01.2015. In the repudiation letter it is // 9 // mentioned that "At the material time of accident there were 11 persons travelling in the insured vehicle including driver, when the permitted seating capacity of the vehicle as per the registration certificate is only
10." Looking to the First Information Report and repudiation letter and document Annexure D-4, it appears that at the time of accident, 11 persons were sitting in the vehicle in question as against the prescribed capacity of 10 persons.
17. 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."
18. 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."
19. In Oriental Insurance Company vs. Girbar Sinh Nandwanshi & Anr. 2015 (3) CPR 299, Hon'ble National Commission has observed // 10 // 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."
20. 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."
21. 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.
22. It is established that at the time of accident 11 persons were travelling in the vehicle in question as against 10 persons. The accident was not occurred due to rashly and negligently driving the vehicle by the driver of vehicle in question and the First Information Report was lodged against unknown person, therefore on the ground of overloading, the claim of the appellant (complainant) cannot be denied in toto. The appellant (complainant) is entitle to get compensation on non-standard basis i.e. 75% of the amount of expenditure incurred by the appellant (complainant) in repairing of the vehicle. The appellant (complainant) filed documents. On the basis // 11 // of bills and invoice, it appears that the appellant (complainant) incurred expenditure of Rs.3,21,911/- in repairing of the vehicle in question, therefore, the appellant (complainant) is entitled to get 75% of Rs.3,21,911/- which comes out to Rs.2,41,433/- (Rupees Two Lakhs Forty One Thousand Four Hundred Thirty Three).
23. Therefore, the appellant (complainant) is entitled to get a sum of Rs.2,41,433/- from the respondent (O.P.). The learned District Forum awarded interest @ 6% p.a. and cost of Rs.500/-, which are just and proper and does not call for any interference of this Commission.
24. On the basis of above discussions, we partly allow the appeal filed by the appellant (complainant) and the impugned order passed by the District Forum, is modified and it is directed that the respondent (O.P.) will pay a sum of Rs.2,41,433/- (Rupees Two Lakhs Forty One Thousand Four Hundred Thirty Three) to the appellant (complainant) instead of Rs.90,000/- (Rupees Ninety Thousand). The respondent (O.P.) will also pay interest @ 6% p.a. on the above amount from the date of filing of the complaint i.e. 02.08.2016 till realisation. The cost of litigation awarded by the District Forum is confirmed. The respondent (O.P.) will also pay a sum of Rs.1,000/- (Rupees One Thousand) towards cost of litigation to the appellant (complainant).
(Justice R.S. Sharma) (Narendra Gupta)
President Member
07/10/2017 07/10/2017