National Consumer Disputes Redressal
Oriental Insurance Co. Ltd. vs G. Velkumar on 30 April, 2014
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI REVISION PETITION NO. 2942 OF 2007 (From the order dated 04.06.2007 in First Appeal No. 545/2004 of State Consumer Disputes Redressal Commission, Chennai) The Oriental Insurance Co. Ltd., Divisional Office, K.J.R. Complex, North Veli Street, Madurai Also at Oriental House, Asaf Ali Road, New Delhi. ... Petitioner/OP versus G. Velkumar 41, Main Road, Melur 625108. Respondent/Complainant
BEFORE HONBLE DR. B.C. GUPTA, PRESIDING MEMBER APPEARED AT THE TIME OF ARGUMENTS For the Petitioner Mr. P. K. Seth, Advocate For the Respondent Mr. V. Adhimoolam, Advocate PRONOUNCED ON : 30th APRIL 2014 O R D E R PER DR. B.C. GUPTA, PRESIDING MEMBER This revision petition has been filed under section 21(b) of the Consumer Protection Act, 1986 against the impugned order dated 04.06.2007, passed by the Tamilnadu State Consumer Disputes Redressal Commission (for short the State Commission) in A.P. No. 545/2004, The Oriental Insurance Company versus G. Velkumar vide which, while dismissing appeal, the order dated 05.10.2004, passed by the District Consumer Disputes Redressal Forum, Madurai in consumer complaint C.O.P. No. 250/2002 allowing the said complaint, was upheld.
2. Brief facts of the case are that the complainant/respondent is the owner of a Tata-407 vehicle, bearing registration no. TN 59-6096, insured with the petitioner/OP for the period 06.05.2001 to 05.05.2002.
The said vehicle was badly damaged in an accident on 04.04.2002. An intimation regarding the alleged loss was given to the petitioner/OP, who deputed a surveyor to assess the loss. The complainant got his vehicle repaired by incurring an expenditure of `_86,820/- and then submitted the necessary claim with the petitioner/OP, but the claim was repudiated by the insurance company on the premise that although it was a goods-carriage vehicle, a large number of passengers were being carried in it, resulting in breach of the policy conditions. The complainant then filed the consumer complaint in question, seeking directions to the OP to pay the repair charges of `_86,820/-, `_1,00,000/- as compensation for mental agony and `_1,000/- towards loss of income and `_2,000/- towards cost of litigation. The petitioner/OP contested the complaint and stated in the written statement that the vehicle was registered and insured as a goods-carrying vehicle and it was holding a permit to carry goods only. It was stated that the vehicle was carrying 40 unauthorised persons in gross violation of the permit condition as well as the terms and conditions of the policy. However, the District Forum, vide their order dated 05.10.2004, allowed the complaint and directed the insurance company to pay a sum of `_29,883/- towards repair charges with interest @9% p.a. from the date of repudiation of the claim, together with a sum of `_5,000/- as compensation for mental agony and `_1,000/- as cost of litigation. An appeal filed against this order was dismissed by the State Commission vide impugned order dated 04.06.2007. It is against this order that the present petition has been made.
3. At the time of arguments before me, the learned counsel for the petitioner/OP Insurance Company stated that the facts of the case made it very clear, and rather, it is admitted that it was a goods-carrying vehicle, but at the time of the accident, it was carrying 40 passengers and it thus, violated the terms and conditions of the policy as well as of the permit issued to him. The District Forum and the State Commission had taken an erroneous view in allowing the complaint and hence, their orders should be set aside. It has been stated in the order of the District Forum that as per the FIR with the Police, the vehicle was carrying about 40 persons at the time of accident. Learned counsel has drawn attention to the order passed by this Commission in Oriental Insurance Company versus Pabindra Narayan Uzir [reported in IV (2006) CPJ 396 (NC)], saying that in this case, 60 persons were being carried in the insured vehicle against a ceiling of 6. The carrying of such a large number of passengers was tried to be justified on the pretext that passengers forcibly travelled in that vehicle. However, it was held by this Commission that there was no deficiency in service on the part of the Insurance Company in repudiating the claim and it should be ensured that the life and limb of persons travelling in the vehicle and passers-by on the road are not endangered. In this order, the case B.V. Nagaraju versus Oriental Insurance Company Limited [as reported in AIR (1996) SC 1644] has also been discussed. The State Commission have also placed reliance on this case, while passing the impugned order. However, the National Commission clearly held in that case that just three additional persons were being carried and they were owners of the goods allotted. The accident occurred due to head-on collision of the insured vehicle with a coming vehicle. The facts of the present case are similar to the case, Oriental Insurance Company versus Pabindra Narayan Uzir (supra). The learned counsel stated that it was a case of fundamental breach of policy conditions and hence, the petition should be allowed.
4. On the other hand, the learned counsel for the respondent stated that the complainant had demanded compensation for damage to the vehicle only. The vehicle was damaged due to the action of the driver and not because of the number of persons travelling in the vehicle. The orders passed by the State Commission and District Forum were, therefore, in accordance with law and should be upheld.
5. I have examined the entire material on record and given a thoughtful consideration to the arguments advanced before me. The admitted facts of the case are that the vehicle in question was registered and insured as a goods-carrying vehicle. It was, therefore, prohibited from carrying any persons in the vehicle.
The very fact that about 40 persons were travelling in the vehicle indicates that there has been a breach of conditions of the policy as well as of the permit issued by the Transport Department. I fail to agree with the contention of the State Commission that accident occurred due to the negligence of the driver and not due to over-loading. It is simply a question of prudent thinking and common-sense that when such a large number of persons are travelling in the vehicle, its balance and movement on the road shall definitely get affected. It has been stated that the driver, on seeing a sharp curve, suddenly applied brakes as a result of which, the vehicle rolled and capsized on left side. It will not be out of place to presume that had there been no persons in the vehicle or a small number of passengers, say two to three only, the vehicle may not have capsized due to the action of the driver. I have no reason to agree with the findings recorded by the State Commission that there was no fundamental breach of the conditions of the policy.
The carrying of such a large number of persons in the vehicle does amount to a fundamental breach of the conditions of the policy and hence, the order passed by the State Commission, confirming the order of the District Forum is clearly perverse in the eyes of law.
6. The order passed by this Commission in Oriental Insurance Company versus Pabindra Narayan Uzir (supra) adequately supports this view that there has been a breach of the terms of the policy. In the said case, 60 persons were travelling in an insured vehicle against the ceiling of 6. Thirty two persons had died in the accident in this case. In the B.V. Nagaraju versus Oriental Insurance Company Limited (supra), just three additional persons were being carried and they were owners of the goods loaded.
7. Following the order passed by this Commission in Oriental Insurance Company versus Pabindra Narayan Uzir (supra), the present revision petition is allowed and the orders passed by the State Commission and the District Forum are set aside. The consumer complaint in question, is ordered to be dismissed, with no order as to costs.
Sd/-
(DR. B.C. GUPTA) PRESIDING MEMBER RS/