State Consumer Disputes Redressal Commission
The New India Assurance Company ... vs Meenakshi Jarial, Aged 27 Years, W/O ... on 5 February, 2013
PUNJAB STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
DAKSHIN MARG, SECTOR 37-A, CHANDIGARH
First Appeal No. 53 of 2008
Date of institution: 18.01.2008
Date of decision : 05.02.2013
1. The New India Assurance Company Limited, Ludhiana.
2. The New India Assurance Company Limited, Hoshiarpur
Both through Sh. Surinder Kumar, Manager of The New India
Assurance Company Limited, Regional Office, S.C.O. No. 36-37,
Sector 17-A, Chandigarh duly constituted attorney.
.....Appellants/O.Ps
Versus
Meenakshi Jarial, aged 27 years, W/o Swaranjit Singh, R/o 89-L, Model
Town, Hoshiarpur.
.....Respondent/Complainant
First Appeal against the order dated 06.12.2007
passed by the District Consumer Disputes
Redressal Forum, Hoshiarpur.
Before:-
Sardar Jagroop Singh Mahal,
Presiding Judicial Member
Sh. Piare Lal Garg, Member Sh. Vinod Kumar Gupta, Member Present:-
For the appellants : Sh. R.K. Bashamboo, Advocate
For the respondent : Sh. Munish Goel, Advocate
JAGROOP SINGH MAHAL, PRESIDING JUDICIAL MEMBER
This is OP's appeal under Section 15 of the Consumer Protection Act, 1986 (hereinafter referred to as the Act) against the order dated 06.12.2007 passed by the learned District Consumer Disputes Redressal Forum, Hoshiarpur (in short the District Forum) vide which the complaint was allowed and the OP was directed to pay to the complainant Rs. 1,83,118/- along with interest @ 9% p.a. and also Rs.1000/- as cost of litigation.
2. The facts of the case in brief are that the complainant insured Tata Truck with the O.P/appellant for the period from 31.05.2006 to First Appeal No.53 of 2008 2 30.05.2007. His contention is that the dealer has given him 2005 model instead of 2006 model due to which a dispute arose and she therefore could not get permanent registration number promptly. The vehicle was however registered in her name on 22.02.2007 but in the meantime it met with an accident on 14.01.2007 and was damaged. An intimation was given to the O.P/appellant who appointed the surveyor and thereafter the truck tipper was got repaired on which the complainant spent a sum of Rs. 2,39,870/-. The complainant lodged a claim with the O.P/appellant but they did not pay the amount of damages due to which she filed the present complaint for a direction to the O.P/appellant to pay Rs. 2,39,870/- as damages, Rs. 50,000/- as compensation for harassment, mental tension, financial hardship etc and Rs. 1100 as litigation expenses alongwith interest @ 18% p.a. It was alleged by the complainant that the accident took place at Village Mansar in the jurisdiction of the police station, Mukerian, District Hoshiarpur, the O.P/appellant has a branch office at Hoshiarpur and therefore the District Forum Hoshiarpur has the jurisdiction to try the case.
3. The complaint was opposed by the O.P/appellant alleging that District Forum, Hoshiarpur has no territorial jurisdiction to try the complaint which was bad for non joinder of parties. It was admitted that the vehicle was insured with them but on the date of accident, it had no valid route permit, fitness certificate and registration certificate and was being plied in contravention of the provisions of the Motor Vehicles Act and therefore they are not liable to pay any compensation.
4. Both the parties were given opportunity to adduce evidence in support of their contentions.
5. After hearing the arguments of the learned counsel for the parties and perusing the record, the learned District Forum vide impugned First Appeal No.53 of 2008 3 order dated 06.12.2007 allowed the complaint in terms stated above. The OP has challenged the same through the present appeal.
6. We have heard the arguments of the learned counsel for the parties and have perused the record including the written arguments submitted by the learned counsel for the appellant.
7. The learned counsel referred to the case "National Insurance Co. Ltd Vs. Challa Bharathamma and others" in which an autorikshaw met with an accident which was being plied without obtaining a permit. It was held by Hon'ble Supreme Court of India that the insurance company is not liable to pay damages. However the insurance company was directed to deposit the amount and recover the same from insured by initiating the proceedings before the executing court without filing a separate suit. In the present case however the vehicle was having a goods carriage permit Mark C-4 and this authority is not applicable in the present case.
8. Learned counsel for the appellant has also referred to the case Aeroflot Soviet Airlines Vs. United India Insurance Co. Ltd. IV (2006) CPJ 62 (NC) in which case a vehicle had no fitness certificate on the date it was set on fire. It was alleged to be a case of violation of condition of policy and insurer was not liable to compensate. Learned District Forum considered the insurance policy Ex. R-1 and was of the view that there was no such condition imposed by the O.P. in the insurance policy and it cannot be said if there was any violation of the same. This authority is therefore not applicable and the amount of compensation could not be denied on its basis. In this respect, we may also refer to the case "G. Kothainachiar Vs. United India Insurance Company Ltd IV (2007) CPJ 347 in which also the vehicle was not having fitness certificate when it met with an accident. Hon'ble National Commission held that the insurance company cannot repudiate the First Appeal No.53 of 2008 4 claim because there was no breach of terms and conditions of the policy. In that case the complainant was also awarded compensation for mental agony and costs. A similar view was taken in case "National Insurance Company Ltd. Vs. Maya Gandhi (Mrs.) I (2007) CPJ 189 (NC). In this manner when it is not proved that absence of fitness certificate was violation of the terms and conditions of the policy, the O.P/appellant was not justified in repudiating the claim.
9. Learned counsel for the appellant has cited the case of Rajesh Sharda Vs. New India Assurance Co. Ltd & Ors I (2013) CPJ 12 (NC). In that case the vehicle was stolen, FIR was delayed by 4 days and the insurance company was informed after about 20 days. The complainant did not produce copy of the registered letter regarding the vehicle. It was under
those circumstances held that the repudiation was justified. It is not so in the present case. There is no plea taken by the O.P/appellant if the intimation about the accident was given to them late. No such ground has been taken by the O.P/appellant in their letter of repudiation Mark C-17. Such a ground therefore cannot be taken up in appeal as the same is beyond pleadings.
10. As regards the contention that the vehicle was not registered on the date of accident, the O.P/appellant cannot repudiate the claim on this ground. We may in this respect refer to HDFC CHUBB GENERAL INSURANCE CO. LTD Vs. ILA GUPTA & ORS" 2007 STPL(CL)395 NC in which case it was held that the O.P/appellant knew that the car being insured by them did not have permanent registration number when the policy was issued. It was held that they should have cancelled the policy in order to make the respondent to take another policy or revalidate the same according to the policy conditions if the vehicle was not got registered promptly. Since the O.P/appellant did not take any such action, it does not First Appeal No.53 of 2008 5 lie in their mouth to subsequently allege that they are not liable to pay compensation.
11. In this respect, we may also refer to "IFFCO TOKIO General Ins. Co. Ltd. Vs. Pratima Jha" R.P. No. 171 of 2012 decided by the Hon'ble National Commission on 27.04.2012 and "Oriental Insurance Co. Ltd. Vs. Swami Devi Dayal Hi Tech Education Academy" R.P. No. 497 of 2012 decided on 14.02.2012 in which also a similar view was taken.
12. The learned counsel for the appellant has argued that the surveyor has assessed the loss of a sum of Rs. 1,83,118/- subject to deposit of salvage amounting to Rs. 10,000/- and their liability if any was only to the extent of Rs. 1,73,118/-. Since the insurance company was liable to pay the amount after deducting the necessary depreciation and other deductions as per the policy and also that the report of the surveyor has not been challenged by the complainant, we are of the opinion that the full amount of Rs. 1,73,118/- cannot be claimed by the complainant. The Hon'ble Supreme Court of India in Civil Appeal No. 2703 of 2010 "Amalendu Sahoo Vs. Oriental Insurance Co. Ltd." decided on 25.03.2010 considered this question in Paras No. 12 to 15 of its judgment. It was held that in case of breach of warranty/condition of policy including limitation as to use, the insurance company would be liable to pay up to 75% of the admissible claim which in the present case comes out to Rs. 1,29,838/- to the which the complainant is entitled.
13 In view of the above discussion, the impugned order passed by the learned District Forum requires to be modified. We are therefore of the opinion that the O.Ps/appellants are liable to pay Rs. 1,29,838/-. With this modification the appeal is accordingly dismissed.
14. Parties are left to bear their own costs.
First Appeal No.53 of 2008 6
15. The appellants had deposited an amount of Rs.25,000/- with this Commission at the time of filing of the appeal on 18.01.2008. This amount of Rs. 25,000/- with interest, if any, accrued thereon be remitted by the registry to the respondent/complainant by way of a crossed cheque/demand draft after the expiry of 45 days.
Copies of the orders be supplied to the parties free of costs.
(JAGROOP SINGH MAHAL) PRESIDING JUDICIAL MEMBER (PIARE LAL GARG) MEMBER (VINOD KUMAR GUPTA) MEMBER February 5, 2013.
RK