State Consumer Disputes Redressal Commission
1. Bajaj Allianz General Insurance ... vs V.Soma Sekar S/O V.Ayyann, Kurnool on 7 June, 2013
BEFORE THE CIRCUIT BENCH OF A.P STATE CONSUMER DISPUTES REDRESSAL COMMISSION: AT TIRUPATHI FA.NO.534 OF 2012 AGAINST C.C.NO.119 OF 2011 DISTRICT FORUM, KURNOOL Between: 1. Bajaj Allianz General Insurance Company Ltd., Rep. by its Branch Manager, S.V Complex, R.S.Road, Kurnool-518 001. 2. Bajaj Allianz General Insurance Company Ltd., Rep.by its Deputy Manager, 4A, Sreeman Rama Towers, 5th floor, opp. To Kala Mandir, Dilsukh Nagar, Hyderabad-500 060. .. Appellants/Opp. Parties And V.Soma Sekar S/o V.Ayyanna, R/o H.No.2-91, Ulindakonda village-518 218, Kallur Mandal, Kurnool District. .. Respondent/Complainant Counsel for the appellants : Mr. N. Mohan Krishna Counsel for the Respondent : Mr. M.L. Srinivasa Reddy CORAM: SMT. M.SHREESHA, HONBLE INCHARGE PRESIDENT AND SRI T.ASHOK KUMAR, HONBLE MEMBER
FRIDAY, THE SEVENTH DAY OF JUNE, TWO THOUSAND THIRTEEN Oral Order: (Per Sri T.Ashok Kumar, Honble Member).
1. This is an appeal preferred by the opposite parties against the orders passed by the District Consumer Forum, Kurnool in CC.No.119/2011 dated 19.6.2012.
For convenience sake, the parties as arrayed in the complaint are referred to as under:
2. The brief facts as set out in the complaint are that the complainant was the owner of TATA Magic vehicle bearing No.AP21 TV 0501 and he insured it with the opposite parties during the relevant time. On 7.4.2010 at 3.15 P.M when the said vehicle was going on the left side of the road a lorry bearing No.AP37 X 3438 driven by its driver in rash and negligent manner dashed against the vehicle of the complainant near Tikkatata Swami Temple on N.H.7 road and as a result of it the vehicle of the complainant was completely damaged. The complainant submitted the claim form to the opposite parties and a surveyor was also appointed to assess the loss. Ops did not pay the claimed amount and it was repudiated on untenable grounds. Since the claim was repudiated by the opposite parties, the complainant got issued a legal notice and filed the complaint seeking for a direction to the opposite parties to pay a sum of Rs.2,60,000/- towards damages caused to the vehicle with interest at 12% p.a, to award compensation of Rs.5,000/- for causing mental agony and for costs of Rs.2,000/-.
3. The second opposite party filed his version which was adopted by the first opposite party wherein they admitted about the issuance of policy bearing No.OG-10-1806-1812-00000888 which was valid from 20.11.2009 to 19.11.2010.
On intimation about the accident the opposite parties appointed an independent surveyor who assessed the loss at Rs.1,36,700/-. The seating capacity of the complainants vehicle is six but at the time of accident 13 persons were travelling in the said vehicle. Since the owner of the vehicle violated the terms and conditions of the policy the opposite parties rightly repudiated the claim of the complainant and thus prayed for dismissal of the complaint.
4. The complainant filed his evidence affidavit reiterating the facts stated in his complaint and Ex. A-1 to A-7 were marked on his behalf. On behalf of the opposite parties 1 and 2 the evidence affidavit of second opposite party filed and Exs.B-1 to B-5 were marked.
5. Having heard the counsel on both sides and considering the evidence on record, the District Forum partly allowed the complaint and directed the opposite parties to pay a sum of Rs.1,36,700/- to the complainant with interest at 9% p.a from the date of repudiation of claim i.e 19.5.2010 till the date of payment along with costs of Rs.500/-.
6. Aggrieved by the said order, the opposite parties filed this appeal on several grounds and mainly contended that the District Forum failed to see that the seating capacity of insured vehicle was six in all but at the time of accident it was carrying 13 persons which ultimately contributed to the accident as a result of loss of control and also violated the terms and conditions of the policy and the M.V.Rules and hence the Ops have rightly repudiated the claim of the complainant. It is also contended that the Insurance policy has been insured subject to the conditions of Chapter X and XI of MV Act and Sec.149 (2)(a) under Chapter XI of M.V.Act specifically provides that the insurer will be exonerated from liability if the insured vehicle is being used in violation of the permit conditions where the vehicle is a transport vehicle and that in the present case the permit of insured vehicle allows to carry only six passengers and not more than that whereas at the time of accident there were 13 people travelling in the vehicle and hence the appellants have rightly repudiated the claim of the complainant and thus prayed to allow the appeal and set aside the orders passed by the District Forum.
7. Both sides filed their written arguments reiterating their respective contentions in detail.
8. Now the point for consideration is whether the order of the District Forum is sustainable ?
9. There is no dispute that the complainant was the owner of TATA Magic motor vehicle bearing No. AP 21 TV 0501 and that it was insured with the opposite parties vide policy bearing NO. OG-10-1806-1812-00000888 and that it was in force from 20.11.2009 to 19.11.2010.
The contention of the complainant is that his vehicle aforesaid was damaged in the accident dated 7.4.2010 at 3.15 PM near Tikkatata swamy temple on NH 7 road. He filed Ex. A1 copy of FIR in Cr. 40./2010 in Veldurthy PS and Ex. A2 copy of charge sheet in CC 268/2010 on the file of the Judl . First class Magistrate, Dhone in Kurnool district. The said documents support the case of the complainant regarding the accident to the effect that on the said date and time due to rash and negligent driving of the lorry bearing No. AP 37 X 3438 accident occurred resulting death of some persons who were travelling in the said vehicle of the complainant. The fact remains that 13 persons were travelling in the insured vehicle though its permissible capacity was only six persons. It is true that there is no mention in the charge sheet that the driver of the insured vehicle contributed for the accident but possibility of some inconvenience to the driver while driving the vehicle with such over load cannot be over ruled carrying over load passengers it is violation of terms and conditions of Ex. B-1 policy. In the circumstances of the case it is not that the said violation is not a fundamental one and as such basing on the decision in a case between Amalendu Sahu vs Oriental Insurance Co.Ltd. decided on 25 March, 2010 in CIVIL APPEAL NO.2703 OF 2010 rendered by the Honble Supreme Court of India, 3/4th of the claim is allowable and Insurance company cannot repudiate the claim in toto. Hence , the contention of the opposite party insurance company basing on provisions of MV Act and rules referred to in the grounds of appeal could not be appreciated in its favour to hold that the repudiation was justified. The insurance company appointed a surveyor in the instant case after receiving the information regarding the accident and damage caused to the insured vehicle and the said independent surveyor assessed the loss at Rs.1,36,700/-. There is no dispute about it by the opposite parties. Even though the said surveyor observed that owner of the vehicle violated terms and conditions of the policy as the seating capacity of the insured vehicle was six in all and during relevant time of the accident 13 persons were traveling in it. It is not helpful for the Ops justifying repudiation of the claim in total. However, in view of the said Apex Courts Judgment, awarding Rs.1,36,700/- is not sustainable and the appeal is liable to be allowed modifying the order of the District Forum directing the Ops `1 and 2 jointly to pay 3/4th of the said amount which comes to Rs.1,02,525.00 with interest @ 9% PA from the date of repudiation i.e. 19.05.2010 till payment, so also, costs of Rs.1000/- throughout.
10. In the result, the appeal is allowed in part and order of the District Forum is modified directing the opposite parties 1 and 2 jointly and severally to pay Rs.1,02,525/- with interest @ 9% PA from the date of repudiation, i.e., 19.05.2010 till payment and costs of Rs.1000/- throughout within 30 days from the date of the receipt of the order.
I/c PRESIDENT MEMBER Dated : 07.06.2013.