State Consumer Disputes Redressal Commission
Dilip S/O. Pralhad Kadam vs 1. The Branch Manager, on 18 February, 2014
1
MAHARASHTRA STATE CONSUMER DISPUTE REDRESSAL
COMMISSION, MUMBAI, CIRCUIT BENCH
AT AURANGABAD
Date of filing : 17.12.2008
Date of Order: 18.02.2014
FIRST APPEAL NO. 1409 OF 2008
IN COMPLAINT CASE NO. 26 OF 2008
DISTRICT CONSUMER FORUM: BEED.
Dilip S/o. Pralhad Kadam
R/o. Canara Bank Colony,
Dhanora Road, Beed
Tq. & Dist. Beed. ... Appellant
//VERSUS//
1. The Branch Manager,
ICICI Lombard General Insurance Co.
Alaknanada, Second Floor, Aurangabad.
2. The Manager,
Mahindra & Mahindra Finance Services Ltd.
Laxmi Sankul, Near India Bank Jalna Road,
Beed, Tq. & Dist. Beed. ... Respondents
Coram : Shri.S.M. Shembole, Hon`ble Presiding Judicial Member.
Mrs. Uma Bora, Hon'ble Member.
Present: Adv. Shri. N. S. Kadam, for appellant.
Adv. Shri. R. H. Dahat for respondent No.1.
-:: O R A L J U D G M E N T::-
(Delivered on 18th February, 2014) Per Shri. S.M. Shembole, Hon`ble Presiding Judicial Member
1. This appeal is directed against the judgment and order dated 31.10.2008 passed by District Consumer Forum, Beed dismissing consumer complaint 2 No.26/2008 (for the sake of brevity the appellant is hereinafter referred as "complainant" and respondents as "opponents").
2. Brief facts giving rise to this appeal are that, complainant Dilip Kadam was the owner of Tata Indica car bearing registration No.MH.23-C-1201. It was purchased on 30.06.2006 by obtaining loan from opponent No.2. Mahindra & Mahindra Financial Services Limited. At the same time the vehicle was insured with opponent No.1 ICICI Lombard General Insurance Company. It was insured as a private car. However the vehicle was used as a passenger carrying vehicle by obtaining national permit.
3. On 31.03.2007 while the vehicle was going from Ahmednagar to Beed, it met with an accident and it was damaged. One of the passengers also died by sustaining injuries. Immediately after the accident information was given to the police as well as insurance company. On receiving information the police visited the spot and prepared panchanama.
4. The complainant submitted insurance claim with the opponent Insurance Company. On receiving the claim papers, the insurance company appointed its surveyor who inspected the vehicle and made assessment of damages at Rs.4,51,701/-. Despite receipt of surveyors report the insurance company did not settle the claim. However by letter dated 12.08.2007 informed the complainant repudiating his claim on the ground that he has committed the breach of terms and conditions of the policy by using the vehicle as passenger vehicle though it was insured with as a private car. Therefore alleging deficiency in service on the part of insurance company the complainant has filed consumer complaint claiming insurance amount Rs.3,78,000/- with interest. 3
5. The opponent no.1 insurance company by its written version resisted the claim contending inter-alia that it has rightly repudiated the claim as the complainant has committed breach of terms and conditions of the policy by using the vehicle as tourist taxi though it was insured as private car. It is further submitted that the driver who was driving the vehicle at the time of accident was not having valid driving license. It is contended that the driver was having light motor vehicle driving license, but not the license for driving the passenger carrying vehicle. It is submitted to dismiss the complaint.
6. Opponent No.2 Finance Company also by its separate written version resisted the complaint and submitted that though it has advanced loan to the complainant, it has nothing to do with the complainants claim for damages, it is submitted that respondent No.1 insurance company only is liable to pay the damages.
7. On hearing both sides and considering the evidence on record the District Consumer Forum dismissed the complaint holding that the complainant has committed fundamental breach of the terms and conditions of the policy by using the vehicle as passenger carrying vehicle though it was insured as private car.
8. Feeling aggrieved by that judgment and order, the complainant came to this Commission in appeal.
9. We heard learned counsel for both side and perused the written notes of arguments submitted by them. We also perused the copy of impugned judgment and order, copies of complaint, written version, copy of insurance policy and other documents.4
10. The undisputed facts are that though the vehicle was insured as private car, it was used as a passenger carrying vehicle obtaining national permit. No intimation in writing was given to the insurance company about obtaining national permit for using the vehicle as passenger carrying vehicle. It is also not disputed that, in the accident the vehicle was completely damaged and surveyor assessed the damages Rs.4,51,701/-. However the insurance coverage is at Rs.3,26,534/-. It is also not disputed that at the time of accident the policy was in force. The crux in this matter is as to whether the complainant has committed breach of the terms and conditions of the policy and if yes whether the complainant is entitled for the damages on non-standard basis.
11. It is submitted by Shri. Kadam, learned counsel for the appellant that though the complainant has committed breach of the terms and conditions of the policy by using the vehicle as passenger carrying vehicle, though it was insured as private car vehicle, the complainant is entitled for damages on non-standard basis. To which it is denied by Shri. Dahat, learned counsel for the opponent insurance company and submitted that when it is obvious on the record that the complainant has committed the fundamental breach of the terms and conditions of the policy by using the vehicle as passenger carrying vehicle, he is not entitled for insurance claim. He has also submitted that driver of the vehicle was also not having valid driving license and thus the complainant has committed the fundamental breach of the terms and condition of policy. It is submitted that the opponent insurance company has rightly repudiated the claim. He has also tried to support his contention by relying on the decision of Hon'ble Supreme Court in the case of New India Assurance Co. Ltd. Vs. Praboo Lal- 1 (2008) SC, and also decision of Hon'ble Supreme Court in the case of- Oriental Insurance Co. Vs. Ungad Kol and Ors, II (2009) SCC-313 (SC). Whereas Mr. Kadam, learned 5 counsel for the complainant submitted that though the complainant has committed breach of terms and conditions of the policy his entire claim cannot be repudiated. According to him the complainant is entitled for 75% of insurance amount on non-standard basis. He has supported his contention by relying on the recent decision of the Supreme Court in the case of - Amelendu Sahoo Vs. Oriental Insurance Co. - II (2010) CPJ - 9 (2) SC, in which it is held by the Hon'ble Apex Court that repudiation of claim in toto for violation of the terms and condition of the insurance policy is unjustified and it is directed to settle the claim on non-standard basis. It is also observed that on non-standard basis 75% claim is admissible. Further Mr. Kadam, learned counsel for the complainant supported his contention by relying on the decision of Hon'ble National Commission in the case of New India Assurance Co. Ltd. Vs. Smt. Malti Bhikhabhai Bhoya, 2013 (2) CPR - 462 (NC), in which it is held by Hon'ble National Commission that, if there is any breach of warranty or condition of policy including limitation has to use, complainant is entitled to get 75% of admissible claim on non-standard basis.
12. We have gone through all the decisions of Hon'ble Supreme Court and National Commission and we find that the authorities of Supreme Court in the case of Amalendu Sahoo, Supra and the decision of National Commission in the case of Smt. Malti Bhoya, Supra are perfectly applicable to the present case.
Hence we have no hesitation to accept the arguments advanced by Shri. Kadam, learned counsel for the complainant/appellant and hold that the complainant is entitled for 75% insurance claim on non-standard basis.
13. Moreover, in our view since the opponent insurance company has repudiated complainant's claim in toto, it has committed deficiency in service and hence complainant is entitled for compensation at Rs.5000/- and Rs.2000/- 6 more towards cost of the proceeding. But the District Consumer Forum without considering the legal aspects properly wrongly dismissed the complainant's claim in toto. Such erroneous finding cannot be sustained.
14. In the result, the appellant succeeds and appeal deserves to be allowed. Hence the following order.
O R D E R
1. The appeal is allowed and the impugned judgment and order dismissing the complaint is set aside.
2. The consumer complaint is partly allowed and opponent no.1 insurance company is directed to settle the complainant's insurance claim on non-standard basis and pay to the complainant 75% amount of the insurance with interest at the rate of 9 % per annum from the date of filing of the complaint till the realization of entire amount.
3. The opponent insurance company is also directed to pay to the complainant compensation Rs.5000/- and Rs.2000/- more towards cost of the proceeding.
4. Complaint against opponent no.2 finance company stands dismissed.
(Mrs. Uma S. Bora) (S. M.Shembole)
Member Presiding Judicial Member
Kalyankar