State Consumer Disputes Redressal Commission
The New India Assurance Co. Ltd., vs Dyneshwar Namdeorao Surve on 13 December, 2012
STATE CONSUMER DISPUTES REDRESSAL COMMISSION, MAHARASHTRA
STATE CONSUMER DISPUTES REDRESSAL COMMISSION, MAHARASHTRA
CIRCUIT BENCH AT NAGPUR
5 TH FLOOR, ADMINISTRATIVE BUILDING NO. 1
CIVIL LINES, NAGPUR-440 001
First Appeal No. A/1814/2001
(Arisen out of Order Dated 23/10/2001 in Case No. CC/518/2000 of
District Forum, Akola)
The New India Assurance Co. Ltd.,
Akola
Divisional Office Through
Divisional Manager, Old Cotton Market,
3rd Floor, Akola District
Central Co-op. Bank
Bldg., Akola, Tah. & Distt. Akola. ...........Appellant(s)
Versus
Dyneshwar Namdeorao Surve
R/o. Shivaji Nagar, Karanja (Lad),
Tah. Karanja, Distt. Washim. ...........Respondent(s)
BEFORE:
Hon'ble Mr.S.M. Shembole PRESIDING
MEMBER
HON'BLE SMT.JAYSHREE YENGAL MEMBER
PRESENT:
Adv. Mr. C.B. Pande
......for the Appellant
None
......for the Respondent
ORDER
(Delivered on 13/12/2012) PER SHRI S.M.SHEMBOLE, HON'BLE PRESIDING MEMBER.
This appeal is directed against the judgment and order dated 23/10/2001 passed by the District Consumer Forum, Akola in Consumer Complaint No.CC/00/518 partly allowing the complaint, directing the appellant/opponent-insurance company to pay amount of Rs.33,375/- with interest at the rate of 18% towards damages and Rs. 2500/- more towards compensation and cost of proceeding.
(For the sake of brevity Appellant is hereinafter called as "the Opponent Insurance Company" and Respondent as "the Complainant").
Brief facts giving rise to this appeal are that,
1. Complainant/Respondent- Dnyaneshwar is the owner of the Matador bearing registration No. MH-30/B-7176 was insured with opponent/appellant-insurance company which was private vehicle having permitted to carry 12 persons in addition to driver. On 20/11/1999 the same vehicle was going to Akola from Washim carrying some persons. When it reached near Bhaucha Dhaba on the way there was due to heavy traffic the road was blocked therefore, driver- Mr. Sunil Kamble parked the vehicle by side of the road. In the meanwhile the S.T. Bus came from the back side and dashed the stationed matador of the complainant, due to which matador was damaged. According to the complainant immediately after the accident his driver- Sunil Kamble informed the Police Station, Borgaon and on the basis of his information FIR was issued to the S.T. Bus Driver. At the same time when the complainant received the information he gave information about the same to the insurance company and claimed damages, as the insurance policy was in enforce.
2. On receipt of the information, the opponent-insurance company appointed its surveyor named Shrikant Pimpale and investigator Mr. K.S. Pohekar. Accordingly, surveyor visited the spot, inspected the vehicle and made assessment at Rs. 33,580/-. At the same time investigator made investigation and reported that at the time of incident 18 fare paid passengers were being carried by the matador. On the basis of investigation report the opponent-insurance company repudiated the claim on the ground that the vehicle owner committed breach of the policy condition and therefore not entitled to any indemnity. Accordingly, by letter dated 25/08/2000 informed the complainant. Therefore, the complainant lodged the consumer complaint claiming damages Rs.64,855/- and Rs.20,000/- more towards compensation causing mental and physical harassment and Rs. 5000/- more towards cost of proceeding.
3. By written version the opponent-insurance resisted the complaint contending inter alia that it has legally repudiated the claim as the complainant has committed breach of insurance policy condition by carrying fare paid passengers that too beyond permitted capacity, etc. It is submitted to dismiss the complaint.
4. On hearing Ld. Counsel for both the sides and considering the evidence on record the District Consumer Forum partly allowed the complaint as mentioned above, holding that at the time of incident there were no fare paid passengers travailing by the vehicle but there were only 5 persons of that to relatives of the complainant were travelling and therefore, the complainant has not committed breach of any condition of the policy. The District Consumer Forum also held that as per the survey report the complainant is entitled to get damages at Rs.33,375/- and accordingly partly allowed the complaint. The District Consumer Forum has also awarded compensation Rs.2000/- and Rs.500/- towards cost of the proceeding.
5. Feeling aggrieved by the same impugned judgment and order the opponent-insurance company has preferred this appeal.
6. We heard Mr. C.B. Pande, Ld. Counsel for the appellant/ opponent-insurance company, perused the written notes of argument submitted by him and also perused the copy of impugned judgment and order, copy of complaint, written version, affidavits of the surveyor, investigator and matador driver and statement of witnesses, etc.
7. However, we have had no opportunity to hear the complainant as he remained absent and appeal to proceed exparte against him.
8. Almost all the facts are not disputed except as to whether the complainant committed breach of terms and conditions of the policy as averred by the opponent-insurance company or not ?
9. Mr. C.B. Pande, Ld. Counsel for the appellant/opponent-insurance company submitted that though the vehicle, in question, was having private vehicle permit and not for carrying fare paid passengers, at the time of incident 18 fare paid passengers were being travelled by the vehicle and thereby complainant has committed breach of the condition of the insurance policy, etc. He has tried to support his argument relying on the copy of the report of investigator and statement of Driver-Sunil Kamble. On perusal of the copy of investigation report submitted by Mr. K.S. Pohekar it reflects that 18 passengers in addition to the driver were being travelling by the matador though undisputedly its capacity is 12 + 1 only. It also fortifies the statement of the driver-Mr. Sunil kamble which was recorded by the investigator-Mr. K.S.Pohekar. But we find little force in the submission of Mr. C.B. Pande, because on perusal of copy of impugned judgment and order it reflects that the District Consumer Forum has negativated investigation report as well as statement of the driver-Mr.Sunil Kamble recorded by the investigator-Mr. K. S. Pohekar. It also negativated the statement of witnesses - Mr. Prakash Rajgude, Shakirali and Sachin Surve, recoded by said investigator- Mr. K.S. Pohekar wherein it is indicated that these witnesses were travelling by the same vehicle but without any fare. There is no statements of any passenger who were travelling by the same vehicle indicating that they were travelling as fare paid passengers as alleged by the opponent-insurance company. There is no reciable evidence to show that there were 18 passengers travelling by the said vehicle at the time of incident as alleged by the opponent- insurance company. The investigation report does not reflect the name of all 18 passengers. Further, though the Ld. Counsel for the appellant/opponent-insurance company has relied on the statement of driver-Mr. Sunil Kamble, said driver-Mr. Sunil Kamble denied his statement and gave affidavit dated 5/07/2001 stating on oath that at the time of incident he was not carrying fare paid passengers but he was carrying his owner and 5-6 others who were relatives of the owner. He also stated on oath that investigator of the opponent-insurance company obtained his signature under threats, etc. Moreover, undisputedly, the F.I.R., which was lodged with Police Station against the S.T. driver, is not having any recital about carrying any fare paid passengers by the matador in dispute. If really 18 passengers were travelling by the matador, the S.T. driver also would have informed the concerned police, when, undisputedly, the police immediately visited the spot of incident. Therefore, this F.I.R. is being first hand information; the District Consumer Forum has rightly relied on it and held that there were no fare paid passengers in the matador.
10. We have given anxious thoughts to the arguments advanced by Mr. C.B. Pande, Ld, counsel for the appellant/opponent-insurance company and also perused the Xerox copy of the following authorities submitted by Ld. Counsel for the appellant/opponent-insurance company:-
i.
Joginder Singh Vs. Oriental Insurance Company Ltd. & Ors, 2009 NCJ 31 (NC).
ii.
S.G. Shivamurtheppa Vs. Reliance General Insurance Co. Ltd., RP No. 3176/2011, Karnataka State Consumer Disputes Redressal Commission, Bangalore.
iii.
National Insurance Company Ltd. Vs. Meena Aggarwal, 2009 ALL SCR 1608.
11. We have gone through those authorities but in view of above discussion and finding the appellant/opponent- insurance company failed to establish that the complainant was carrying fare paid passengers and that too beyond permitted number of passengers. Therefore, the above authorities can not be applicable to the present case. Hence, arguments advanced by Mr. C.B. Pande, Ld. Counsel for the appellant/ opponent-insurance company can not be sustained.
12. For the foregoing reasons the District Consumer Forum has rightly passed the impugned judgment and order and partly allowed the complaint. We find no glaring infirmity or illegality in the impugned order. Hence, no interference is warranted.
13. In the result, the appellant fails and appeal deserves to be dismissed.
Hence, the following order.
ORDER
1. Appeal is dismissed.
2. No order as to cost.
Dated:-
13/12/2012.
[ Hon'ble Mr.S.M. Shembole] PRESIDING MEMBER [ HON'BLE SMT.JAYSHREE YENGAL] MEMBER ay