National Consumer Disputes Redressal
Oriental Insurance Co. Ltd. vs Preman M.P. on 18 November, 2019
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI REVISION PETITION NO. 2369 OF 2017 (Against the Order dated 27/02/2017 in Appeal No. 225/2015 of the State Commission Kerala) 1. ORIENTAL INSURANCE CO. LTD. THE CHIEF MANAGER, ORIENTAL INSURANCE CO. LTD, HEAD OFFICE ORIENTAL HOUSE A-25/27 ASAF ALI ROAD, NEW DELHI-110002 ...........Petitioner(s) Versus 1. PREMAN M.P. S/O. UNNIPERAVAN, R/O. MALAYAMPARAMBATH HOUSE, ARIYALLUR, PARAPPANANGADI P.O., MALAPPURAM KERALA ...........Respondent(s)
BEFORE: HON'BLE MR. PREM NARAIN,PRESIDING MEMBER
For the Petitioner : Mr. Kishore Rawat , Advocate For the Respondent : Nemo (served)
Dated : 18 Nov 2019 ORDER
This revision petition has been filed by the petitioner Oriental Insurance Co. Ltd. against the order dated 27.2.2017 passed by the State Consumer Disputes Redressal Commission, Kerala, (in short 'the State Commission') in Appeal no.225 of 2015.
2. Brief facts of the case are that the respondent/complainant is the owner of the vehicle No.KL-55/D-9043 which was a goods vehicle and was insured by the petitioner. During the currency of the policy, the vehicle met with an accident and was damaged. A claim was lodged with the petitioner Insurance Company for Rs.2,77,160/- for repairs of the vehicle. The Insurance company appointed a surveyor who assessed the loss for rupees Rs.1,27,045/-. District Consumer Disputes Redressal Forum, Malappuram, (in short 'the District Forum') allowed the complaint and awarded the amount assessed by the surveyor. The Insurance Company preferred an appeal being No.225 of 2015 before the State Commission and the State Commission by its order dated 27.2.2017 allowed the appeal partly and the Insurance Company was directed to pay the claim on non-standard basis i.e. Rs.95,283/-.
3. Aggrieved with the order of the State Commission, the present revision petition has been filed by the insurance company.
4. Heard the learned counsel for the petitioner Insurance Company and examined record. The respondent/complainant did not appear inspite of service of notice.
5. The learned counsel for the petitioner Insurance Company stated that the vehicle was a goods carrier and had a seating capacity of only three persons whereas it was carrying 45 passengers on the day of accident. Hence, the condition of the policy has been violated. It is a breach of fundamental condition of the policy and, therefore, the claim has been rightly repudiated. It was stated that the State Commission has relied on the decision of the Hon'ble Supreme Court in Amalendu Sahoo Vs. Oriental Insurance Co. Ltd., II (2010) CPJ 9 (SC) where it has been observed that the claim can be allowed on non-standard basis in case of violation of certain conditions of the policy. The learned counsel stated that for small infringement of the policy conditions, the judgment may be applicable, however, it cannot be applied in cases where fundamental and intrinsic condition of the policy has been violated. In fact, it cannot be ruled out that the accident could have happened due to extra passengers being taken in the goods carrier. It is not only one offence that the vehicle was carrying more passengers than its capacity rather, another grave offence has been committed that the vehicle was carrying passengers being a goods vehicle. The goods vehicle is not meant for carrying passengers. Three passengers have died in the accident and many have been injured. Thus, the vehicle has violated the provisions of the Motor Vehicle Act, 1988 and therefore, has violated the terms and conditions of the policy and therefore, the claim was rightly repudiated by the Insurance Company. The learned counsel for the petitioner referred to the following judgments of this Commission in support of his arguments:-
(1) Oriental Insurance Co. Ltd. Vs. G. Velkumar, II (2014) CPJ 647 (NC). It has been held that:
"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."
(2) G.Siddesh Vs. ICICI Lombard General Insurance Co. Ltd., IV (2014) CPJ 635 (NC). It has been held that:-
"In the case in hand against the capacity of 1+4, there were 1+11 passengers in the vehicle which was clear cut violation of the terms and conditions of the policy and in such circumstances, petitioner was not entitled to any claim on non-standard basis and learned State Commission has not committed any error in affirming order of District Forum dismissing complaint."
(3) New India Assurance Co. Ltd. Vs. Ishwar Singh Rathore, II (2015) CPJ 28 (NC). It has been held that:-
"It is immaterial at whose instance persons were travelling in the vehicle but it is admitted fact that instead of capacity of 3 persons 34 / 36 persons were travelling in the vehicle at the time of accident which is clear cut violation of the terms and conditions of the policy. This Commission in RP No. 2984/2007, "Oriental Insurance Co. Ltd. versus Ashwani Kumar" dismissed claim as 54 persons were travelling in the truck at the time of accident. As there was gross violation of the terms and conditions of policy, learned District Forum committed error in allowing complaint and learned State Commission further committed error in dismissing appeal and revision petition is to be allowed."
6. I have given a thoughtful consideration to the arguments advanced by the learned counsel for the petitioner and examined the record. There is no dispute that the vehicle in question is a goods vehicle which is not supposed to carry passengers. There were 45 passengers in the vehicle at the time of accident whereas the passenger capacity of the vehicle was only three.
7. It is also seen that the following condition for limitation to use is mentioned in the policy:-
"Limitations as to Use The Policy covers use only under a permit within the meaning of the Motor Vehicle Act 1988 or such a carriage falling under sub-section 3 of Section 66 of the Motor Vehicles Act 1988.
Use only for carriage of goods within the meaning of the Motor Vehicles Act.The Policy does not cover: 1) Use for organised racing, pace-making, reliability trial or speed testing. (2) Use whilst drawing a trailer except the towing (other than for reward) of any one disabled mechanically propelled vehicle. (3) Use for carrying passengers in the vehicles; except employees (other than the driver) not exceeding the number permitted in the registration document and coming under the purview of Workmen's Compensation Act 1923."
8. From the above conditions, it is very much clear that the policy will not be applicable in case the vehicle is used for transporting the passengers. In the present case, the vehicle has been used for transporting the passengers and that too in a large number. Therefore, it is not a case of marginal infringement of a condition, rather it is a gross and flagrant violation of the condition of the policy. This is a clear-cut breach of fundamental condition of the policy and therefore, the claim under the policy cannot be accepted by the Insurance Company. The contract of insurance is a commercial contract like any other contract and its terms and conditions are binding on both the parties. The judgment of this Commission relied upon by the learned counsel for the petitioner in Oriental Insurance Co. Ltd. Vs. G. Velkumar, (supra), G.Siddesh Vs. ICICI Lombard General Insurance Co. Ltd. (supra) and New India Assurance Co. Ltd. Vs. Ishwar Singh Rathore (supra) are applicable in the present case and clearly the specific condition laid down in the policy has been violated and therefore, the claim under the policy is not payable. Violators of law cannot be shown leniency and therefore, the judgment of the Hon'ble Supreme Court in Amalendu Sahoo Vs. Oriental Insurance Co. Ltd. (supra) relied upon by the State Commission is not attracted in the present case as there is a breach of fundamental condition specifically given in the policy. One has to distinguish between breach of a condition which is intrinsic to the policy and breach of a peripheral condition which may not be intrinsic to the policy. Carrying passengers in large number in a goods carriage is definitely a breach of fundamental condition of the policy which is clearly stated in the policy.
9. On the basis of the above discussion, I find merit in the revision petition No.2369 of 2017 and the orders passed by the fora below are not sustainable in the eyes of law. Therefore, the orders of the fora below dated 29.11.2014 & 27.02.2017 are set aside and the complaint is also dismissed.
...................... PREM NARAIN PRESIDING MEMBER