State Consumer Disputes Redressal Commission
The Oriental Insurance Company Limited vs Kalyan Singh on 24 February, 2011
STATE CONSUMER DISPUTES REDRESSAL COMMISSION UTTARAKHAND
DEHRADUN
FIRST APPEAL NO. 48 / 2006
The Oriental Insurance Company Limited
Devi Road, Kotdwar, District Pauri Garhwal
through its Senior Divisional Manager
The Oriental Insurance Company Limited
47, Rajpur Road, Dehradun
......Appellant / Opposite Party
Versus
Sh. Kalyan Singh S/o Sh. Khushal Singh
R/o Village Balyuli, P.O. Shrikot, Ekeshwar
District Pauri Garhwal
......Respondent / Complainant
Sh. M.K. Kohli, Learned Counsel for the Appellant
Sh. S.K. Gupta, Learned Counsel for Respondent
Coram: Hon'ble Justice B.C. Kandpal, President
C.C. Pant, Member
Dated: 24/02/2011
ORDER
(Per: Justice B.C. Kandpal, President):
This is an appeal under Section 15 of the Consumer Protection Act, 1986 against the order dated 09.01.2006 passed by the District Forum, Pauri Garhwal, partly allowing consumer complaint No. 25 of 2004 and directing the opposite party to pay sum of Rs. 1,41,000/- to the complainant within a period of one month from the date of the order, failing which the complainant shall be entitled to interest @9% on the said amount from the date of filing of the complaint. The opposite party was also directed to pay litigation expenses of Rs. 2,000/- to the complainant.
2. The facts of the case, in brief, are that the complainant is the registered owner of bus No. UP-06-6253, which was insured with the 2 insurance company for sum of Rs. 6,50,000/- for the period from 31.08.2002 to 30.08.2003. It was stated that due to heavy rains and damage to the pushta situated on the roadside, the said vehicle met with an accident on 18.02.2003 and fell into a deep gorge and was badly damaged. The intimation was given to the insurance company. The claim of the complainant was repudiated on the ground that at the time of the accident, the bus was overloaded. Alleging deficiency in service on the part of the insurance company, the complainant filed the consumer complaint before the District Forum, Pauri Garhwal.
3. The insurance company filed written statement and pleaded that on receipt of the information regarding the accident, spot surveyor was appointed. On investigation, it was found that the vehicle had the carrying capacity of 43 persons, whereas at the time of the accident, the bus was carrying 80 passengers and the cause of the accident was overloading of the vehicle and on this ground, the claim of the complainant was repudiated.
4. The District Forum, on an appreciation of the facts of the case and the material on record, allowed the consumer complaint vide order dated 09.01.2006 in the above terms. Aggrieved by the said order, the insurance company has filed this appeal.
5. We have heard the learned counsel for the parties and perused the record. Learned counsel for the appellant has submitted before us that the claim was repudiated on the ground that at the time of the accident, the vehicle was being driven against the terms and conditions of the policy of insurance, as it was carrying the persons in excess of the permitted capacity. The learned counsel for the appellant - insurance company has cited the decision in the case of National Insurance Co. Ltd. Vs. Sh. Meharbaan Singh; 2007 UAD 3 568, decision dated 28.02.2008 of this Commission rendered in First Appeal No. 216 of 2006; Divisional Manager, The New India Assurance Co. Ltd. Vs. Smt. Himanti Devi and others and the decision of the Hon'ble National Commission given in the case of National Insurance Co. Ltd. and another Vs. Suresh Babu and another; I (2007) CPJ 23 (NC). Learned counsel for the appellant has invited our attention towards the policy (Paper No. 93), which indicates that the vehicle was insured for carrying only 43 persons including driver. Our attention has further been invited towards Form-I, which indicates that the seating capacity of the vehicle in question was 43 in all. Our attention has further been invited by the learned counsel for the appellant to the fact that as per the investigation report, which is available on record (Paper No. 67), 63 passengers were travelling in the vehicle at the time of the accident. Learned counsel for the appellant has, thus, put an emphasis that in any case, the bus in question, at the time of the accident, was overloaded and it is clear that the condition of the policy was violated as the overloading was beyond reasonable limits and hence directing the insurer to pay even non-standard claim would be unjustified on account of gross violation of the policy and legal provision by the insured.
6. Learned counsel for the complainant - respondent, on the other hand, has submitted that the District Forum has rightly awarded the claim by not accepting the investigator's report and by observing that the accident took place not on account of overloading of the vehicle, but on account of the reason that at the place of the accident, there was weak pushta and on account of the same, the bus fell down in a deep gorge. In order to substantiate the argument, the learned counsel for the respondent has submitted the decision in the case of New India Assurance Co. Ltd. Vs. Raj Kumar Chaudhary; III (2009) 4 CPJ 191 (NC), United India Insurance Co. Ltd. Vs. Gian Singh; II (2006) CPJ 83 (NC), Amalendu Sahoo Vs. Oriental Insurance Co. Ltd.; II (2010) CPJ 9 (SC) and New India Assurance Co. Ltd. Vs. Narayan Prasad Appaprasad Pathak; II (2006) CPJ 144 (NC).
7. We have deeply scrutinized the record.
8. It is a disputed question of fact as to whether the bus in question was carrying the excess number of passengers against the permitted capacity or not. The argument advanced by the learned counsel for the respondent - complainant is that Paper No. 93 indicates that the bus could carry the passengers upto the limit of 62 including driver and conductor, however, the insurance company - appellant says that the policy paper indicates that the policy covered only 43 passengers in the vehicle and the papers on record are clearly indicating that the bus in question was carrying excess number of passengers at the time of the accident. The Hon'ble Supreme Court in a recent decision given in the case of Amalendu Sahoo Vs. Oriental Insurance Co. Ltd.; II (2010) CPJ 9 (SC) (supra), has clearly observed that for granting the claim on non-standard basis, the National Commission in its judgment in the case of New India Assurance Co. Ltd. Vs. Narayan Prasad Appaprasad Pathak; II (2006) CPJ 144 (NC) (supra), has set out the guidelines and the said guidelines are set out below:
Sr. No. Description Percentage of settlement
(i) Under declaration of Deduct 3 years' difference in
licensed carrying premium from the amount of
capacity. claim or deduct 25% of claim
amount, whichever is higher.
(ii) Overloading of Pay claims not exceeding 75% of
vehicles beyond admissible claim.
licensed carrying
capacity.
5
(iii) Any other breach of Pay upto 75% of admissible
warranty / condition claim.
of policy including
limitation as to use.
9. The Hon'ble Court has, thus, observed that from the perusal of the aforesaid guidelines, it is clear that it was one of the cases where the admissible claim was to be settled even when condition of the policy including limitation as to the use of the vehicle, was breached.
10. In the instant case, the District Forum has relied upon the inspection report (Paper No. 86), which clearly indicates that the accident took place not because of overloading of the vehicle, but because of bad weather and the weak retaining wall. In the instant case, although the matter falls within the category of settling the claim on non-standard basis as per the guidelines, but the District Forum has granted only a sum of Rs. 1,41,000/- to the complainant on the basis of the bills submitted by him pertaining to the amount incurred in repair of the vehicle. The other charges claimed by the complainant have not been granted by the District Forum and we do not find any unfairness in the same. However, the interest @9% awarded by the District Forum appears to be on the higher side. As per the rate of interest prevalent these days, the same should be 7% p.a. instead of 9% p.a., as has been awarded by the District Forum. The insurance company has also been directed to pay a sum of Rs. 2,000/- towards litigation expenses, which can not be said to be unjustified.
11. For the reasons stated above, we are of the view that the judgment and order passed by the District Forum does not suffer with any sort of illegality or infirmity. However, we modify the impugned judgment passed by the District Forum with a direction that the amount of compensation (sum of Rs. 1,41,000/-) shall be paid by the appellant - insurance company to the complainant - respondent 6 together with interest @7% p.a. from the date of filing of the consumer complaint till the date of actual payment along with sum of Rs. 2,000/- awarded by the District Forum towards litigation expenses. The appeal is, thus, partly allowed in the above terms. Costs of the appeal made easy.
(C.C. PANT) (JUSTICE B.C. KANDPAL) K