State Consumer Disputes Redressal Commission
1.National Insurance Co. Ltd., vs Mr. D. Devender on 25 April, 2023
1
BEFORE THE TELANGANA STATE CONSUMER DISPUTES
REDRESSAL COMMISSION: HYDERABAD.
FA.NO.490/2019
AGAINST ORDERS IN CC.NO.134/2018 ON THE FILE OF
DISTRICT CONSUMER COMMISSION-II, HYDERABAD
Between:
1. National Insurance Company Ltd.,
Rep by its Branch Manager,
Sanathnagar Colony Branch,
6-3,144 & 144/1, 2nd floor,
J.K.Complex, Main Road,
Adj to H.P.Petrol Pump,
Balanagar, Hyderabad.
2. National Insurance Company Ltd.,
Claims Hub, Regional Office,
Rep by its Regional Manager,
H.No.5-8-568, 1st Floor,
Nampally Station Road,
Hyderabad-500001,
Telangana State.
.....Appellants/Opposite
parties
And
Mr.P.Devender,
S/o P.Venkaiah, aged about 51 years,
R/o.h.No.5-309, FWS Colony,
Balajinagar, Hyderabad-501301.
.....Respondent/Complainant
Counsel for the Appellants/Opposite parties :M/s.D.Rama Krishna
Reddy &
Mr.N.Parameswara Reddy
Counsel for the Respondent/Complainant : M/s K.Parandhama
Chari
QUORUM: HON'BLE SRI V.V.SESHUBABU, MEMBER
& HON'BLE SMT R.S. RAJESHREE, MEMBER TUESDAY, THE TWENTY FIFTH DAY OF APRIL TWO THOUSAND TWENTY THREE ******* (Per HON'BLE SMT R.S. RAJESHREE, Member-Non-Judicial) Order:
1. This appeal is filed under section 15 of Consumer Protection Act 1986 by the Opposite parties aggrieved by the order passed by 2 District Consumer Forum-II, Hyderabad vide orders dated 15.07.2019. Where in the District Forum as passed the following orders.
To pay an amount of Rs.9,17,799/- as per loss assessment sheet with interest @12% P.A w.e.f. 14.03.2018 i.e., from the date of repudiation of the claim of the complainant under Ex.B1, till its realization. To pay compensation of Rs.75,000/- for causing mental agony and trauma caused to the complainant for their deficient services and unfair trade practice. To pay Rs.25,000/- towards costs of the complaint. Rest of the claim of the complainant is dismissed.
2. For the sake of convenience the parties are arrayed as complainant and opposite party.
3. The case of the complainant is that, he is the owner of the swaraj Mazda motor cab transport vehicle vide registration number AP 29 V 7267 and he is running the same on contract carriage on the basis of heir purchase agreement and the said vehicle was insured with the opposite party named "motor passenger carrying vehicle package" policy number 55180 131161 000 3200 and the total Insured Declared Value (IDV) of the vehicle was Rs.12 lakhs and the policy was effective from 02/01/2017 to midnight of 1st January 2018 and the complainant had paid the total premium of Rs.29,221/- and that his wife was the nominee to the said policy and the details of the vehicle are as under.
3
Reg. Mark No. Engine Make Year of Type of Max
& Place of No. & Model & Manufacture body C.C Licensed
Registration Chassis Variant Carrying Premium
No. Capacity
Incl. Driver
& Cleaner
AP29V7267 SLT3LA1 SML 2011 Saloon 345 Rs.25,410
Ranga Reddy 59290M ISUZU 5 19
East BUWEL4 LTD.
XLA0165 Swaraj
725 Mazda
Bus &
Deluxe
4. The vehicle has been registered with the Telangana
Transport Department and a registration number was allotted and the name of the driver of the vehicle is N. Raju who has a valid driving licence vide number-23866, the complainant had also obtained fitness certificate by paying tax on 26/07/2017 and also got special permit number TS 108/14718/PTOV/207 from the government of Telangana with the seating capacity of 19 + 1 to ply in and around the places mentioned therein and the said vehicle is also having certificate of "Pollution Under Control" issued by the Transport Department. And on 10/9/2017 when the vehicle left to yedupayala with a capacity of 19 + 1 for a small function and after the function on the return journey to Hyderabad when the vehicle was moving near Nagaranpally village outskirts of kowdipally mandal, Medak district as it was a Culvert Road and as an RTC bus came from opposite side with dazzling lights due to which the driver took a sudden left as such lost control over the steering and went and hit roadside culvert wall and jumped into deep ditch from around 10 feet height at 9:30 PM on 10/9/2017, this accident had caused severe damage to the insured vehicle and nine passengers have met with multiple injuries and were shifted to government hospital in 108 ambulance for treatment, the driver 4 also sustained small injuries the accident was reported to police who had booked an FIR No.86 of 2017 and the complainant immediately called the opposite party and informed about the accident, who in turn had sent an surveyor to the spot for inspection of the accident and to assess the damage caused to the vehicle. The surveyor had conducted the survey and assessed the value of loss as 1700000/- lakhs and had also taken photographs of the same.
5. One Panjala Yeshwanth who had given a complaint to police was in confusion and tension due to which in his statement to the police he had stated that there were about 25 to 30 passengers in the bus, but whereas the bus was carrying only around 20 passengers. The opposite party had repudiated the claim on the ground that the bus was carrying more passengers than the permitted capacity based on the statement given by Panjala Yeshwanth. This act of repudiating the claim by the opposite party amounts to deficiency of service and though the surveyor had assessed the total loss as Rs.17,65,083/-, but however since the Insured Declared Value is only Rs.12 lakhs the complainant is restricting his claim to Rs.12 lakhs only. As the opposite party had repudiated the claim on false and baseless grounds, the present complaint is filed seeking insurance amount along with interest, compensation and cost.
6. The opposite party filed their written version while admitting the issuance of the insurance policy and its subsistence had opposed the complaint and stated that it is unaware with regard to that, the passengers were going for a function and 5 further simply denied all the facts of the case and further pleaded that in fact Panjala yashwanth had knowledge of the number of passengers travelling in the vehicle since he was one of the victim, hence the question of confusion and tension does not arise and that the charge sheet clearly states that 25-30 passengers were present in the vehicle at the time of accident, and that the vehicle was overloaded with 8 extra passengers than its capacity. And further pleaded that, the claim was repudiated on the following grounds.
a) It has been mentioned in the charge sheet that 25 to 30 members were present in the vehicle at the time of accident.
As per the two passengers lists submitted by the complainant, some names have been repeated. After deleting the repeated names the passengers travelling in the bus at the time of accident is 27.
b) It is further submitted that the carrying capacity of the above accident vehicle is 19 persons only, whereas at the time of accident, it was carrying 27 persons. The vehicle was overloaded by 8 passengers i.e. to the extent of 47%, as per policy conditions if overloading is more than 25% the claim has to be repudiated.
7. Before the District Forum, the complainant has filed his evidence affidavit and got marked Ex.A1 to A15. Evidence affidavit of opposite parties filed through N.Naresh Administrative Officer and got marked Ex.B1 to B3 on their behalf. After hearing both sides the District Forum passed the orders as stated in Para no 1. Aggrieved by the same the opposite parties preferred this appeal on the following grounds.
a) That the district forum had passed the order arbitrarily and contrary to law, weight of evidence in probabilities 6 of the case, the forum ought to have dismissed the complaint as the claim is contrary to policy conditions.
b) The forum below failed to see that the vehicle had obtained a permit for a seating capacity of 19 + 1 passengers but in violation of the same on the date of accident the vehicle was carrying 27 plus persons which was more than the capacity of the vehicle.
c) The district forum failed to see that there was no deficiency of service on the part of the opposite party and should have dismissed the complaint as not maintainable.
d) The district forum failed to notice that the apex court had allowed interest at the rate of fixed interest of nationalised banks was to be given, granting of 12% of interest by the district forum is unjustified.
e) The district forum failed to see that the insurance was taken for the vehicle but the forum had awarded compensation for mental agony to the tune of 75,000 which is arbitrary.
f) The district forum failed to see that the complainant had violated the terms of the policy by overloading the vehicle beyond its capacity and permit.
g) The district forum failed to consider that in Oriental Insurance Vs Rajak the court has held that in case of overloading of the vehicle beyond the licence and capacity the admissible claim would be up to 75% based on standard basis and that aspect our OD manual where the excess passengers are beyond 25% of the licence to capacity the claim can be repudiated.
h) The district forum failed to see that in case of BARCL logistic Vs ICICI Lombard and in oriental insurance Vs Pabindra Naryan Uzir (2006) CPJ 396 (NC) claim petition was dismissed for extraordinary overloading of passengers.
i) In Surajmal Ramnivas Oil Mills Ltd. Vs United India Insurance Company Ltd. The Hon'ble Supreme court 7 has held that a policy is a contract and has to be interpreted in its actual terms.
Based on the above grounds prayed that the Appeal be allowed by setting aside the order of the District forum.
Heard both sides and perused the records,
8. Now the points for determination are:-
1. Whether the impugned order as passed by the District Consumer Commission suffers from any error or irregularity or whether it is liable to be set aside, modified or interfered with in any manner?
2. To what, Relief?
9. Point Nos.1 and 2:-
issuance of the policy and subsistence of the policy is not in dispute, similarly the Insured Declared Value (IDV) is also not in dispute the only ground on which the opposite party had opposed the complaint and repudiated the claim is that the complainant had violated the terms of agreement by overloading the vehicle than the capacity of the vehicle, and for the same the opposite party had relied upon the Ex.A13 charge sheet. But, the surveyor report under exhibit A14 and scene of offence punchnama under exhibit A11, the number of passengers is mentioned as 19 and 16 to 17 respectively, but in the FIR and charge sheet the number of passengers is mentioned as 25 to 30, and that apart under exhibit B3 the opposite party had filed an additional list of passengers the evidentiary value of the said document has been clearly dealt by the district forum and a finding has been given that the exhibit B3 lacks admissibility. In view of such contrary statements the burden is on the opposite party to prove that there were 27 passengers 8 travelling. Even if it is presumed that there were 27 passengers in the bus at the time of accident, but the present policy is issued insuring the vehicle and the claim is for the same it is to be noted that the present claim is not for the passengers but for the damage caused to the vehicle, the policies issued insuring the vehicle are meant to make good the loss that the owner of the vehicle would incur in the event of any miss-happening.
10. The district forum has rightly pointed out that the charge sheet, panchnama and other documents based on which the opposite party had repudiated the claim are not supported by any affidavit of the person who had issued or stated that as such, the same do not have any evidentiary value hence cannot be admissible. And further held that the records of the criminal case cannot be treated as conclusive proof based on which the reputation can be made.
11. In a similar case the honourable Supreme Court has set aside the order of the NCDRC wherein the NCDRC has denied the compensation on the ground that the complainant had violated the terms of agreement by overloading the vehicle, the Hon'ble supreme court in Shree Annappa Vs The New India Assurance Company Limited order by Justice Sri Hemant Gupta and Justice V. Rama Subramanian had held that, "We find that there is a clear distinction between a third party claim on account of compensation payable to the passenger in the goods vehicle whereas the present case is a case of own damage, which is an independent action not dependent upon the number of passengers carried in goods vehicle. In view thereof, we find that the 9 order passed by the National Commission is not sustainable in law. The same is set aside and the order of the State Commission is restored. The appeal is, accordingly allowed".
12. In view of the above legal position and factual aspects we do not find any reason to intervene into the order of the district forum but however the interest of justice demands that the said order be modified.
In the result, the appeal is allowed in part by modifying the order of the District Forum as under:-
To pay an amount of Rs.9,17,799/- as per surveyor report with interest @6% p.a from the date of repudiation till its realization.
To pay compensation of Rs.25,000/- for causing
mental agony and trauma caused to the
complainant.
To pay Rs.10,000/- towards costs of the complaint.
Time for compliance is 30 days from the date of receipt of this order.
Dictated to steno; transcribed and typed by him; corrected and pronounced by us in the open court on this 25th day of APRIL 2023.
SD/- SD/-
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MEMBER (M-J) MEMBER (M-NJ)
Dt: 25.04.2023
PMK*