National Consumer Disputes Redressal
New India Assurance Co. Ltd. vs Smt. Malti Bhikhabhai Bhoya on 16 April, 2013
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI REVISION PETITION NO. 3793 of 2007 (From the order dated 30.8.2007 in Appeal No. 1047 of 2006 ofGujarat State Consumer Disputes Redressal Commission, Ahmedabad) New India Assurance Co. Ltd. D.R.O. I Level IV, Tower II, Jeevan Bharti Connaught Circus, New Delhi 110 001, Through its Manager Petitioner/Opposite Party (OP) Versus Smt. Malti Bhikhabhai Bhoya R/o Bhensdhara, Taluka Dharampur District Valsad, Gujarat Respondent/Complainant BEFORE HONBLE MR. JUSTICE K.S. CHAUDHARI, PRESIDING MEMBER HONBLE DR. B.C. GUPTA, MEMBER For the Petitioner : Mr. R.B. Shami, Advocate For the Respondent : Mr. Sayid Marsook, Advocate PRONOUNCED ON 16th April, 2013 O R D E R
PER JUSTICE K.S. CHAUDHARI, PRESIDING MEMBER This revision petition has been filed by the Petitioner/OP against the impugned order dated 30.08.2007 passed by the Gujarat State Consumer Disputes Redressal Commission, Ahmedabad (in short, the State Commission) in Appeal No. 1047 of 2006 New india Assurance Co.
Ltd. Vs. Smt. Malti Bhikhabhai Bhoya by which, appeal was dismissed and order of District Forum allowing complaint was upheld.
2. Brief facts of the case are that Complainants husband deceased Bhikhabhai, after purchasing Tempo No. GJ-15X-4373, got it insured from OP/petitioner for a period of one year commencing from 26.11.1999 to 25.11.2000. On 18.6.2000, tempo met with an accident and owner of the tempo Bhikhabhai died on account of injuries. Intimation was given to the Insurance Company regarding accident. It was further alleged that Rs.6,21,792/- were spent on repairs. Claim form was submitted, but the OP repudiated the claim. Alleging deficiency on the part of OP, complainant/respondent filed complaint. OP/petitioner resisted claim and submitted that deceaseds tempo was a goods carrying vehicle, but at the time of accident, the husband of the complainant was transporting passengers and thus, violated terms and conditions of policy; so, not entitled to get any claim and prayed for dismissal of complaint. Learned District Forum after hearing both the parties allowed complaint partially and directed OP to pay a sum of Rs.2,60,000/- along with 9% p.a. interest from 20.4.2004 till payment and Rs.1500/- as compensation and cost of the proceedings. Appeal filed by the petitioner was dismissed by learned State Commission vide impugned order against which, this revision petition has been filed.
3. Heard learned Counsel for the parties and perused record.
4. Learned Counsel for the petitioner submitted that as insured vehicle was goods carrying vehicle and at the time of accident insured was transporting passengers, petitioner has not committed any deficiency in repudiating claim and learned State Commission has committed error in dismissing appeal and learned District Forum committed error in allowing complaint; hence, revision petition be allowed and complaint be dismissed. On the other hand, learned Counsel for the respondent submitted that order passed by learned State Commission is in accordance with law; hence, revision petition be dismissed.
5. It is admitted case of the parties that insured tempo was goods carrying vehicle and at the time of accident, six persons were in the vehicle, out of them four persons died and two were injured.
6. Learned Counsel for the petitioner submitted that there was clear- cut violation of terms & conditions of the policy, as the insured was carrying passengers instead of goods; hence, there was no deficiency in repudiating claim. Perusal of Insurance Policy reveals that it contains Clause limitations as to use, which runs as under:
Use only for carriage of goods within the meaning of the M.V. Act, 1988. The policy does not cover use for organised racing pace making reliability trail or speed testing. Use while drawing a trawler except the towing, (other than for reward) of any one disabled mechanically propelled vehicle. Use for carrying passengers in the vehicle except employees (other than the driver) not exceeding six in number coming under the purview of workmens Compensation Act, 1923.
7. Learned Counsel for the petitioner has drawn our attention to General Exceptions in respect of commercial vehicle package policy according to which, Insurance Company is not liable for any damage if the vehicle is being used otherwise than in accordance with the Limitations as to Use.
As per Insurance Policy, insured was entitled to carry six persons. Admittedly, there were not more than six persons in the vehicle at the time of accident.
No evidence has been adduced by the complainant to prove that persons in the tempo at the time of accident were employees of the insured. At the same time, no evidence has been adduced by OP/petitioner that persons travelling in the vehicle at the time of accident were passengers. In such circumstances, even if, it is presumed that six persons in the vehicle were not workers, certainly vehicle was not having more than number of persons authorized as employees. In such circumstances, petitioner was not entitled to repudiate the claim in toto, but complainant was entitled to get compensation on non-standard basis. Learned Counsel for the petitioner has placed reliance on I (2007) CPJ 23 (NC) National Insurance Co. Ltd. & Anr. Vs. Suresh Babu & Anr. in which for non-standard clams, it was observed as under:
Secondly, if there is a flagrant violation of the term of the policy, the Insurance Company cannot be directed to reimburse the Complainant even on the basis of non-standard claim adopted by the Insurance Companies. Relevant part of the said policy is as under:
Non Standard Claims:
Following types of claims shall be considered as non-standard and shall be settled as indicated below after recording the reasons.
Sr.No. Description Percentage of settlement i. Under declaration Deduct 3 years difference of licensed premium from the amount carrying of claim or deduct 25% of capacity claim amount, whichever is higher ii Overloading of Pay claims not exceeding vehicles beyond 75% of admissible claim.
licensed carrying capacity.
iii Any other breach Pay upto 75% of admissible of warranty/ claim.
condition of policy including limitation as to use.
For breach of warranties/conditions which do not involve any saving in premiums or any additional exposure of the Insurers, such claims be considered as Standard Claims e.g. Route Permit
8. Thus, it becomes clear that if there is any breach of warranty or condition of policy including limitation as to use, complainant is entitled to get 75% of the admissible claim on non-standard basis, but the Insurance Company is not entitled to repudiate the claim in toto.
9. Learned Counsel for the petitioner also placed reliance on IV (2012) CPJ 493 (NC) Naresh Kumar Vs. Reliance General Insurance Co. Ltd. & Anr. in which repudiation of claim was held justified as goods carrying vehicle was carrying 20 persons as passengers. This citation does not help the petitioner, as in the present case, only six persons were being carried in the vehicle, which were within permissible limit. He also placed reliance on II (2008) CPJ 171 (NC) Santosh Vs. National Insurance Co. Ltd. in which repudiation of claim was held proper, as goods carrying vehicle was carrying 50 persons at the time of accident. This citation also does not help the petitioner in the light of above said discussion.
10. Consequently, complainant is entitled to get 75% of the admissible claim, but learned District Forum has committed error in allowing Rs.2,60,000/-. In such circumstances, revision petition is to be allowed partly and petitioner is liable to pay only Rs.1,95,000/- being 75% of the amount awarded by District Forum.
11. Consequently, revision petition is allowed partly and impugned order dated 30.8.2007 passed by learned State Commission in Appeal No.1047 of 2006 - New india Assurance Co. Ltd. Vs. Smt. Malti Bhikhabhai Bhoya is set aside and order of District Forum dated 29.3.2006 in Complaint No. 9/2004 dated 20.2.2005 Smt. Maltiben Bhikhabhai Bhoya Vs. The New India Assurance Co. Ltd. is modified and amount of Rs.2,60,000/- payable by the petitioner to the respondent is substituted by Rs.1,95,000 and rest of the order is upheld.
No order as to costs.
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( K.S. CHAUDHARI, J) PRESIDING MEMBER ..Sd/-
( DR. B.C. GUPTA ) MEMBER k