National Consumer Disputes Redressal
The C.S.C. Headthe Iffco Tokio Genl. ... vs Shri Gaurav Bhargava on 28 October, 2015
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI REVISION PETITION NO. 4290 OF 2010 (From the order dated 30.07.2010 in Appeal No. 2796/2008 of the Madhya Pradesh State Consumer Disputes Redressal Commission, Bhopal) THE C.S.C. HEAD THE IFFCO TOKIO GENL. INSURANCE COMPANY LTD. E-5/18, AREA SHOPPING COMPLEX NEAR BSNL OFFICE, BITTAN MARKET BHOPAL (M.P.) Petitioner Versus SHRI GAURAV BHARGAVA S/O SHRI N.D. BHARGAVA R/O 334, B-SECTOR SARVA DHARMA COLONY KOLAR ROAD, BHOPAL (M.P.) ... Respondent BEFORE HON'BLE MR.JUSTICE AJIT BHARIHOKE, PRESIDING MEMBER HON'BLE MRS. REKHA GUPTA, MEMBER For the Petitioner : Mr. S.M.Tripathi, Advocate For the Respondent : Nemo Pronounced on : 28th January, 2015 ORDER
REKHA GUPTA Revision Petition No. 4290 of 2010 has been filed by the petitioner/opposite party against the order dated 30.7.2010, passed by Madhya Pradesh State Consumer Disputes Redressal Commission, Bhopal (short, State Commission) in First Appeal No.2796/2008.
2. Brief facts of the case as per respondent/complainant are that he had purchased Toyota Qualis four wheeler vehicle No.M.P. 04 HB 1211 for his personal use after obtaining the vehicle loan from ICICI Bank, Bhopal. The comprehensive insurance of the said vehicle was taken by the respondent from petitioner/insurance company whose policy No. is 35409359 and its validity period is 27.5.2006 to 26.5.2007. While getting the said vehicle insured by respondent the valuation of said vehicle was made at Rs.3,95,000/-
3. Shri Alok Chaudhary was the childhood friend of the respondent and there was family relation between both. The parents of Shri Alok Chaudhary and his maternal uncle Shri Mohan Singh Thakur had to go to Mathura Brindaban with 5-6 members of his family for some necessary work, therefore, Shri Aok Chaudhary obtained the said vehicle of the respondent for the journey of his parents and maternal uncle on the basis of personal acquaintance which he took to Mathura Brindaban with his parents and maternal uncle and his family. The respondent had sent his vehicle driver Shri Ashok Bhimraj also.
4. The parents and maternal uncle Shri Mohan Singh Thakur of friend of respondent Shri Alok Chowdhary with family were journeying on 2.6.2006 in Guna in the said vehicle of the respondent when on A.B.Road, the driver of a Truck No. HR 38 C 4386 driving it rashly and negligently dashed with force against the said vehicle of the respondent by which the vehicle driver of the respondent died and the vehicle was badly damaged. After the accident the first information report of the accident was immediately lodged by Shri Mohan Singh in concerned Police Station, Cantt.Distt., Guna (M.P.). Intimation was also immediately given by the respondent to the petitioner-insurance company in writing and the respondent complied with all the formalities of the petitioner and asked insurance claim amount from the petitioner in lawful manner.
6. After giving intimation of the accident to the petitioner by the respondent, the petitioner got the spot survey done of the above vehicle of the respondent and final survey was done through Shri Brijesh Srivastava, surveyor. Shri Brijesh Srivastava had assessed the total loss of the above vehicle of the respondent. When the petitioner did not settle the insurance claim of the respondent even after about 5 months, since the date of the accident, nor the insurance amount for Rs.3,95,000/- was paid to the respondent, then under compulsion the respondent got a legal notice dated 3.11.2006 issued to the petitioner/insurance company through its counsel and demanded the amount of Rs.3,95,000/- as claim amount.
7. Even after receiving the legal notice of the respondent, the insurance company neither properly replied to the said legal notice nor paid the claim amount of Rs.3,95,000/- to the respondent, by which the respondent had been continuously suffering mental and financial loss. A letter dated 15.12.2008 was received by the respondent from the petitioner insurance company by which it was known that the petitioner had repudiated the insurance claim of the respondent illegally and based on illegal facts. Therefore, it was humbly prayed by the respondent/complainant that :-
The opposite party/insurance company be directed to pay to the complainant the value of the accidences vehicle Rs.3,95,000/-.
On the amount of Rs.3,95,000/-, the opposite party be directed to pay to the complainant the interest @ 24% p.a. from 2.6.2006 upto the date of actual payment.
The opposite party- insurance company be directed to pay to the complainant Rs.10,000/- towards mental agony.
The opposite party insurance company be directed to pay to the complainant Rs.5,000/- towards expenses.
8. Petitioner/opposite party in their reply before the District Consumer Disputes Redressal Forum, Bhopal (short, District Forum) stated that ;
The complainants vehicle was insured under the Private car Policy and at the time of the alleged accident it was being plied as a Taxi which is a fundamental breach of the policy condition moreover there was another breach as the vehicle was overloaded at the time of alleged accident. Hence, the claim of the complainant was repudiated on legal and justifiable grounds, thus, no deficiency in service committed by the insurance company.
9. District Forum vide order dated 7.10.2008 while dismissing the complaint, observed that :-
When the maternal uncle of the complainants childhood friend Shri Alok Choudhary lodged the report of occurrence in P.S.Cantt. Guna, then he clearly stated that this vehicle no. M.P. 04 HB 1211 was the vehicle taken on hire. In this circumstances, it is clear from the first information report Exh.C-5 that the vehicle No.M.P. 04 HB 1211 was given by the complainant to Shri Alok Chaudhary on hire. Therefore, the complainant has used his vehicle as a Taxi. Although, the complainant has, by filing the affidavit of Shri Mohan Singh Thakur, tried to clarify that in the first information report he had got written to be taken on hire due to mental tension, but this does not appear to be credible. But the possibility is great that the complainant has got the above affidavit produced only for taking insurance claim. Because the complainant did not get any such affidavit produced that Shri Mohan Singh Thakur was the maternal uncle of Shri Alok Chaudhary and the complainant has not produced any such proof that Shri Alok Chaudhary is childhood friend.
As has been stated above that from the report got written by Shri Mohan Singh Thakur in P.S.Cantt. Guna, it is clear that the vehicle being taken on hire is stated by Shri Mohan Singh Thakur when the complainant had got the insurance of the vehicle for his own personal use. Thus, the vehicle being taken on hire is stated by Shri Mohan Singh Thakur when the complainant had got the insurance of the vehicle for his own personal use. Thus, the vehicle No.M.P.04 HB 1211 was used as a Taxi by the complainant which is a clear violation of the insurance policy.
In the case of Santosh Vs.National Insurance Co.Ltd. II 2006 CPJ 171 NC and United India Insurance Co.Ltd. VS. Sangeeta Sinha II, 2008 CPJ 271, it is clearly stated by the National Commission and State Commission, Chattisgarh that the insurance company is not liable in case of violation of the Motor Vehicles Act and for the use of the vehicle as a Taxi, it is necessary to have a permit and the number of passengers in excess of stated number is violation of insurance conditions. According to the survey report there were total 11 passengers including the driver and 11 persons were medically examined in Guna on 2.6.2007. In this condition, the number of the persons cannot be denied. In the report got written by Shri Mohan Singh Thakur 11 passengers were stated to be sitting.
The survey report states that registration certificate permits 9+1 persons to sit. In this way, there were more persons sitting in the vehicle than the number permitted which is violation of conditions of insurance. In this condition, the opposite party has committed no deficiency in service in rejecting the claim of the complainant.
Therefore, the complaint filed by the complainant is dismissed. Both the parties shall bear their own costs.
10. Aggrieved by the order of the District Forum, respondent filed an appeal before the State Commission. The State Commission in its impugned order dated 30.7.2010, partly allowed the appeal and gave the following order :-
The insurance company repudiated the claim on two counts ; (i) that the passengers in excess of the sitting capacity were being carried, i.e. against the sanctioned sitting capacity of 9+1 there were total 11 persons and (ii) that the vehicle was being plied as taxi on hire.
Learned counsel for the appellant has referred to a decision of Maharashtra State Commission in National Insurance Co.Ltd. Vs. Sardar Lachman Singh, III (2007) CPJ 306, in support of her contention that affidavit should have been filed by the opposite party of the persons travelling as passengers in order to repudiate the claim. We find that the said onerous route was hardly necessary. In the FIR, it is mentioned that the vehicle was being plied on hire. Dihati Nalashi lodged by one of the occupants of the vehicle also supports the contention of the Insurance Company that the vehicle was being used for hire and there is no reason to discard the same. We, therefore, hold that the vehicle was being plied as taxi though, it was registered for private use. However, we find that for violation of condition of policy, the insurance company cannot be completely exonerated. The total IDV of the vehicle minus excess clause comes to Rs.3,94,000/- out of which if the salvage value, as elicited by the surveyor, is reduced it comes to Rs.3,94,000 Rs.1,30,000 = Rs.2,64,000/-. Since, the amount is to be paid only on non-standard basis, i.e. 75% of Rs.2,64,000/- it comes to Rs.1,98,000/-.
We, therefore, direct the insurance company to pay Rs.1,98,000/- to the insured. The amount shall carry interest @ 6% p.a. from 15.12.2006, the date on which the claim was repudiated.
11. Hence, the revision petition.
12. We have heard counsel for the petitioner and carefully gone through the record.
13. Learned counsel for the petitioner argued that the District Forum had correctly dismissed the complaint on the ground of violation of policy and argued that the order of the State Commission deserves to be set aside :-
Because there is violation of policy schedule under Limitation as to use clause which states The policy covers use of the vehicle for any purpose other than (a) Hire or Reward..
Because the Important notice appended to the insurance policy schedule clearly states that : the insured is not indemnified if the vehicle is used or driven otherwise than in accordance with this schedule.
Because the General Exceptions to the policy state the company shall not be liable under this policy in respect of any accident loss or damage and/or liability caused sustained or incurred whilst the vehicle herein is (a) being used otherwise than in accordance with the Limitation as to use.
Because the cover note issued to the complainant also clearly states, For private purpose only excluding use for Hire or Reward. The complainant has committed violation of the terms of the insurance policy and the cover note.
14. He also drew our attention to the judgment of the Apex Court in the case of United India Insurance Co.Ltd. Vs. Manubhai Dharmasinhbhai Gajera and Ors., 2008 CTJ 794 (SC), in which it has been held that :-
51. We, however, do not mean to say that even in the field of contract qua contract, the State is not free to negotiate its terms ; what we mean to say is that its action cannot be arbitrary. Role of both are different. A private player, as the law stands now, may not be bound to comply with the constitutional requirements of the equality clause the appellants are.
53. There exists a distinction between a private player in the field and a public sector insurance company. Whereas, a private player in the field is only bound by the statutory regulations operating in the field, the public sector insurance companies are also bound by the directions issued by the General Insurance Corporation as also the Central Government. They cannot be ignored. The said directions are not said to be in derogation of the statutory provisions.
Their validity is not under challenge.
15. He further argued that the order of the Honble Supreme Court in case of National Insurance Co.Ltd. Vs. Nitin Khandelwal reported in 2008 (7) Scale 351 and National Insurance Co.Ltd. Vs. Meena Aggarwal, IV (2009) CPJ 25 (SC), only applies to the Public Sector Insurance Companies which were earlier subsidiaries of the General insurance company. They are bound by their guidelines and not private Insurance Companies such as Iffco Tokio General Insurance Co. Ltd. The State commission had correctly come to the conclusion, ongoing through the facts of the case, that was violation of the terms of the conditions of the insurance policy. They hence should not have ordered that petitioner a private insurance company to pay a sum of Rs.1,98,000/- along with 6% interest on non-standard basis.
16. We have given our thoughtful consideration of the case. We are of the view that, admittedly, the respondent had violated the terms and conditions of the insurance policy and both the fora below have also come to the same conclusion. While the District Forum dismissed the complaint, the State Commission, on the other hand, allowed the appeal and ordered the insurance company for payment of the claim on non-standard basis. We agree with the learned counsel for the petitioner that the Apex Court judgment on payment of non-standard basis is not applicable to the present case.
17. Hence, we allow the revision petition and set aside the order of the State Commission and dismiss the complaint.
....
(REKHA GUPTA) MEMBER ....
(AJIT BHARIHOKE, J.) PRESIDING MEMBER Sonia/