State Consumer Disputes Redressal Commission
Anil Shrivas vs Branch Manager on 3 May, 2014
CHHATTISGARH STATE
CONSUMER DISPUTES REDRESSAL COMMISSION
PANDRI, RAIPUR (C.G.)
Appeal No.FA/13/678
Instituted on : 24.12.2013
Anil Shrivas, S/o Shiv Prasad,
Caste - Shrivas, R/o : Quarter No.49,
Ward No.20, Sindhi Colony,
Champa, District Janjgir-Champa (C.G.) ... Appellant
Vs.
Branch Manager,
The Oriental Insurance Company Limited,
Divisional Office, Main Road, Geetanjali Bhawan,
Post Box No.17,
Korba, District Korba (C.G.) .... Respondent
PRESENT: -
HON'BLE JUSTICE SHRI R.S. SHARMA, PRESIDENT
HON'BLE MISS HEENA THAKKAR, MEMBER
COUNSEL FOR THE PARTIES :-
Smt. Jyoti Goswami, for appellant. Shri Raj Awasthi, for respondent.
O R A L ORDER Dated : 03/05/2014 PER: - HON'BLE JUSTICE SHRI R.S. SHARMA, PRESIDENT This appeal is directed against order dated 25.11.2013, passed by District Consumer Disputes Redressal Forum, Janjgir - Champa (C.G.) (henceforth District Forum") in Complaint Case No.22/2012. By the impugned order, learned District Forum, has dismissed the complaint of the appellant (complainant).
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2. Briefly stated, the facts of the case of the complaint filed before the District Forum are : that the appellant (complainant) is registered owner of the Xylo car bearing registration No.P.B. 29-B-2021 and the vehicle was insured with the respondents (O.P.). On 25.08.2011, the health of the house owner of the appellant (complainant) was not well, therefore, he had taken the vehicle to Apollo Hospital, and while returning from the Hospital, near Samrat Dhaba, the vehicle met with accident resulting which mudguard, bonnet and front part of the vehicle was damaged. The intimation regarding the incident was given by the driver of the vehicle to Police Station, Janjgir. The Police Station, Janjgir registered an offence under Section 304(A) of IPC. The appellant (complainant) requested the respondent (complainant) under the conditions of the insurance policy for repairing of the damaged parts of the vehicle , but the Insurance Company, has repudiated the claim of the appellant (complainant) on the ground that at the time of incident, more than the prescribed persons were sitting in the vehicle. The appellant (complainant) pleaded that he had incurred a sum of Rs.2,00,974/- in repairing of the vehicle, but as he was not having the amount, therefore, the vehicle is standing in the Mahindra Auto Agency, Korba due to which he is not able to earn income and to pay the installments. Therefore, the appellant (complainant) filed consumer complaint before the District Forum, // 3 // seeking direction to the respondent (O.P.) to pay compensation of Rs.2,45,974/-.
3. The respondent (O.P.) filed its written statement before the District Forum and admitted the fact that the vehicle in question was insured with it, but the respondent (O.P.) resisted the complaint on the ground that the vehicle was being used by the appellant (complainant) as taxi and at the time of incident which is contrary to the conditions of the policy and 11 persons were sitting. The respondent (O.P.) further pleaded that the driver of the vehicle was not having licence to drive taxi. The claim of the appellant (complainant) was repudiated on the aforesaid ground and the Insurance Company denied to pay any amount and prayed to dismiss the complaint.
4. Learned District Forum, after having considered the material placed before it by the parties, dismissed the complaint.
5. Smt. Jyoti Goswami, learned counsel appearing for the appearing argued that the impugned order passed by the District Forum, is contrary to law and is liable to be set aside. The District Forum has ignored this fact that the vehicle in question was insured with the respondent (O.P.) as per terms and condition, therefore, the respondent (O.P.) is responsible to pay the expenses incurred by the // 4 // appellant (complainant) on repairing of vehicle in question and the District Forum has committed a grave error in not accepting this fact. She further argued that the appellant (complainant) did not violate terms and conditions of the insurance policy and learned District Forum has erroneously held that the appellant (complainant) violated the terms and conditions of the insurance policy and the vehicle in question was used as taxi. Only 7 persons were setting in the vehicle in question at the time of accident, therefore, the appellant (complainant) did not violate terms and conditions of the insurance policy and the respondent (O.P.) (Insurance Company) has wrongly repudiated the claim of the appellant (complainant) hence the impugned order passed by the District Forum is unsustainable and is liable to be set aside.
6. Shri Raj Awasthi, learned counsel for the respondent (O.P.), has supported the impugned order. He argued that the vehicle was being used by the appellant (complainant) as taxi and at the time of incident, which is contrary to the conditions of the policy and 11 persons were sitting. He further argued that the driver of the vehicle was not having licence to drive taxi. He placed reliance on National Insurance Company Limited vs. Meena Agrawal, 2009 (III) D.M.P.111 (SC),
7. We have heard learned counsel for the parties and have also perused the record of the District Forum.
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8. The appellant (complainant) filed documents i.e. Motor Insurance Certificate Cum Policy Schedule Private Car Package Policy
- Zone B & Policy Schedule, receipt dated 30.09.2010 issued by The Oriental Insurance Company Ltd., Tax Invoices issued by Auto Centre (Authorized Dealer Mahindra & Mahindra Limited), Korba (C.G.), Form No.23, letter dated 08.02.2012 sent by the Oriental Insurance Company Limited, Divisional Office, Korba (C.G.) to Anil Shrivas, appellant (complainant).
9. The respondent (O.P.) (Insurance Company) also filed documents. Document Annexure - NA-1 is Investigation Report dated 09.01.2012 of Shri K. Shivaraman, Investigator - G.I.C.), letter dated 26.08.2011 sent by Sukhdev Prasad Dewangan to Police Station, Janjgir, to lodge report, Form No.6, Form No.23, vehicle information, letter dated 27.08.2011 sent by the insured to the Oriental Insurance Company Limited, Korba (C.G.), Motor Insurance Certificate Cum Policy Schedule Private Car Package Policy - Zone B & Policy Schedule, letter sent by the appellant (complainant) to the Branch Manager, Oriental Insurance Company Limited, Korba (C.G.), Final Report under Section 173 Cr. P.C., First Information Report under Section 154 Cr. P.C., Inquest report, Property Seizure Memo, Arrest/Court Surrender Memo, Supurdnama gyapan dted 05.12.2011.
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10. Both the parties have filed copy of the insurance policy. In the insurance policy, the sitting capacity of the vehicle is mentioned (including driver) is mentioned as 7 + 1 and the nature of the policy is Private Car Package Policy. It appears that the vehicle in question was insured as a private vehicle. According to the appellant (complainant), the vehicle in question met with an accident near Samrat Dhaba. The respondent (O.P.) filed copy of written complaint made by driver Sukhdev Prasad Dewangan before Police Station, Janjgir. In the said written report, the driver Sukhdev Prasad Dewangan merely mentioned that the vehicle in question dash against a babool tree. In the written report, the driver Sukhdev Prasad did not mention regarding the accident and injuries sustained by deceased Ghansiram Dewangan. Ghasi Ram Dewangan was taken to Apollo Hospital, where he died and Appolo Hospital, sent intimation to the Police STtaion, Sarkanda where merg intimation was recorded and spot map was prepared. Inquest on dead body of the deceased was also prepared and the dead body was also sent to hospital for post mortem examination. These facts were suppressed by the driver of the vehicle in question.
11. In spot map, it is mentioned that deceased Ghasi Ram Dewangan sustained injuries due to accident. One Mahendra Kumar // 7 // Dewangan was examined before the District Forum. The respondent (O.P.) (Insurance Company appointed Shri K. Shivaraman, as Investigator, who reached to the spot, inspected the vehicle and gave his report, which is document Annexure NA-1. According to the Investigator, the vehicle in question was used as taxi and 10 + 1 persons were setting in the vehicle in question and policy was issued for sitting capacity of 7 = 1 (including driver).
12. Looking to the Investigator's report, it is apparent that the vehicle in question was used as taxi and 11 persons were setting in the vehicle at the time of accident, which is violation of terms and conditions of the insurance policy.
13. In the case of National Insurance Company Limited vs. Meena Agrawal (Supra), Hon'ble Supreme Court observed that - Consumer Protection Act, 1986 - Section 23 - Liability of insurance company - Damage to vehicle in a vehicular accident - Claim for cost of repairs of vehicle - Alleged breach of conditions of insurance policy
- Driver allegedly not possessing valid driving licence - Vehicle insured for personal use but being used as taxi. - Hence use of vehicle against conditions of insurance policy - District Consumer Forum rejected the claim for damages - On appeal being preferred State Commission allowed the claim partly on ground that though vehicle was used as a taxi there was no fundamental breach of conditions of // 8 // insurance policy - Revision filed by insurance company dismissed by National Commission - Held, owner of vehicle is under obligation to verify that driver of vehicle has a valid driving licence - Claim for damage to vehicle in question - No reasons assigned by State Commission and the National Commission to conclude that there was no fundamental breach of policy conditions - When vehicle insured for personal use being used for commercial purpose - Orders of State Commission and National Commission not sustainable - Impugned order set aside."
14. In the case of New India Assurance Co. Ltd. vs. B. Satyajit Reddy & Anr. I (2011) CPJ 132 (NC), Hon'ble National Commission observed that "Consumer Protection Act, 1986 - Sections 2(1)(g), 21(b)
- Motor Vehicles Act, 1988 - Section 3(1) - Insurance - Breach of policy conditions - Accident claim - Injuries to occupants - Driving licence validity - Claim repudiated - Forum dismissed compliant - State Commission allowed appeal - Hence revision - Contention of respondent No.2 was that vehicle was not being used as transport vehicle but for personal purpose - Not accepted - Vehicle continued to be registered as a transport vehicle for which a specific authorized licence was a statutory necessity - Act in driving a taxi was illegal and such driving was in contravention of terms of policy conditions - Repudiation justified.
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15. In the case of S.G. Shivamurtheppa vs Reliance General Insurance Company Limited I (2012) CPJ 175 (NC), Hon'ble National Commission has observed that "Consumer Protection Act, 1986 - Sections 2(1)(g), 21(b) - Insurance - Carrying of - Excessive passengers
- Breach of policy conditions - Vehicle met with accident - Claim repudiated - Complaint partly allowed - Appeal allowed and order of District Forum set aside - Hence, revision petition - Motor vehicle was registered for carriage of passengers not exceeding to 12 - At time of accident, vehicle was instead carrying 16 persons - There was explicit and admitted violation of condition of insurance policy and so, claim rightly repudiated by Insurance Company - Impugned order of State Commission valid."
16. It appears that the vehicle in question was used as taxi instead of private car and insurance policy was issued as Private Car Package Policy, but the appellant (complainant) gave the vehicle in question on hire and 11 persons were sitting in the vehicle instead of 7 + 1 (including driver). Prima facie, it appears that the terms and conditions of the policy were violated by the appellant (complainant), therefore, the respondent (O.P.) (Insurance Company) has rightly repudiated the claim of the appellant (complainant). The impugned order of the District Forum, does not suffer from any jurisdictional error, illegality or irregularity and does not call any interference by this Commission.
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17. In view of above discussion, the appeal filed by the appellant (complainant) being devoid of any merits, deserves to be and is hereby dismissed. No order as to the cost of this appeal.
(Justice R.S.Sharma) (Ms.Heena Thakkar)
President Member
/05/2014 /05/2014