National Consumer Disputes Redressal
Amrita Devi & Ors. vs Bajaj Allianz General Insurance Co. on 9 October, 2014
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI REVISION PETITION NO. 4435 OF 2012 (Against the order dated 6.7.2012 in F.Appeal No. 14/2011 of H.P. State Commission, Shimla) 1. Amrita Devi W/o Late Sh. Santosh Kumar R/o Village Gagwana P.O. Chuku, Tehsil Padhar District Mandi, (H.P). 2. Shivam (minor) D/o Late Sh. Santosh Kumar 3. Akshaya Kumar S/o Late Sh. Santosh Kumar (petitioners No. 2 & 3 (minor) through their mother Smt. Amrita Devi, natural guardian and next friend R/o Village Gagwana P.O. Chuku, Tehsil Padhar District Mandi, (H.P.). Petitioners Versus Bajaj Allianz General Insurance Co. through its Branch Manager Branch Mandi District Mandi (H.P.). Respondent BEFORE : HONBLE MR. JUSTICE K.S. CHAUDHARI, PRESIDING MEMBER For the Petitioner : Shri Lalit Kumar Sharma, Advocate. For the Respondent : Shri Rahul Vardhan, Advocate. -2- Pronounced on 9th October, 2014 ORDER
PER JUSTICE K.S. CHAUDHARI, PRESIDING MEMBER This Revision Petition has been filed by the Petitioner against order dated 6.7.2012 passed by Learned State Commission in First Appeal No. 14/2011- Amrita Devi & Ors. VS. Bajaj Allianz General Insurance; by which while dismissing appeal, order of the District Forum dismissing complaint was upheld.
Brief facts of the case are that Complainant-Petitioners husband- Santosh Kumar was owner of tempo trax jeep No. HP-01M-0396 which was insured with Opposite Party-Respondent. Jeep had capacity to carry 9 passengers and a driver. On 15.10.2008, jeep met with an accident and driver of the vehicle and 9 other persons in the vehicle died. Complainant submitted claim to Opposite Party which was repudiated by Opposite Party on the ground that at the time of accident, 27 persons were sitting in the vehicle. Alleging deficiency on the part of Opposite Party, Complainant filed complaint before District Forum. Opposite Party resisted complaint and submitted that there was breach of terms of Policy as 27 persons were sitting in the vehicle against capacity of 9 persons and prayed for dismissal of complaint. Learned District Forum after hearing both the parties, dismissed complaint. Appeal filed by Complainant was dismissed by Learned State Commission by impugned order against which this Revision Petition has been filed.
-3-Heard Learned Counsel for the parties finally at admission stage and perused record.
Learned Counsel for Petitioner submitted that Learned District Forum dismissed complaint erroneously presuming that 27 persons were travelling in the vehicle and Learned State Commission further committed error in dismissing appeal on this ground. It was, further, submitted that atleast compensation should have been awarded on non-standard basis, hence, Revision Petition be allowed and impugned order be set aside and compensation may be awarded. On the other hand, Learned Counsel for Respondent submitted that order passed by Learned State Commission is in accordance with Law, hence, Revision Petition be dismissed.
Perusal of record clearly reveals that in FIR lodged by Revti Devi, one of the passengers in the vehicle, has clearly mentioned in FIR that 25-30 persons were travelling in the vehicle at the time of accident. Not only this, Complainant herself submitted claim form in which she admitted that 27 persons were in the vehicle at the time of accident. Learned District Forum and Learned State Commission has not committed any error in dismissing complaint and appeal, on the basis of admission of Complainant herself that 27 persons were travelling in the vehicle at the time of accident.
Learned Counsel for Petitioner submitted that only 10 persons were travelling in the vehicle at the time of accident as per MACT court order, hence, 27 persons in the vehicle cannot be presumed. This argument is devoid of force because Complainant has not examined Revti Devi before District Forum and Fora below proceeded on the basis of admission made by Complainant herself which is the best evidence against her.
-4-Learned Counsel for Petitioner submitted that even if it is presumed that there were more passengers in the vehicle than permitted, there was no nexus between the over-loading and accident. In support of his contention, he has placed reliance on judgment of Honble Apex Court in B.V. Nagaraju VS. Oriental Insurance Co. Ltd- II (1996) CPJ 28 (SC). In the aforesaid case, 9 persons were travelling in goods vehicle against permissible limit of 6 persons and Honble Apex Court on the basis of judgment in Skandia Insurance Company Ltd. VS. Kokilaben Chandravadan & Ors, allowed complaint. Facts of the aforesaid case are not applicable to the case in hand because in the present case, there were 27 persons in the vehicle against permissible limit of 9 persons and in such circumstances, driver of the vehicle could not have control over the vehicle and there was direct nexus between the over-loading of vehicle and accident whereas in the aforesaid case, there were only 9 passengers against permissible limit of 6 passengers. He has also placed reliance on judgment of Honble Apex Court in Amalendu Sahoo VS. Oriental Insurance Co. Ltd.- II (2010) CPJ 9 (SC); in which claim was allowed on non-standard basis as vehicle was used for hire though insured for personal use. Facts of aforesaid case are not applicable to the present case because in the case in hand, there was three times over-loading in the vehicle which resulted into accident and in such circumstances, compensation on non-standard basis cannot be allowed. He has also placed reliance on judgment of this Commission in New India Assurance Company Ltd. VS. Konda Srinivasa Rao- III (2013) CPJ 649 (NC); in which 25 persons were travelling in the bus against permissible limit of 20 persons meaning thereby only 25% extra passengers were sitting in -5- the vehicle whereas in the case in hand, against 9 persons 27 persons were travelling in the vehicle.
In such circumstances, the aforesaid judgment does not help to the Petitioner and Petitioner is not entitled to get compensation on non-standard basis also.
I do not find any illegality, irregularity or jurisdictional error in the impugned order and Revision Petition is liable to be dismissed.
Consequently, Revision Petition filed by the Petitioner is dismissed at admission stage with no order as to costs.
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( K.S. CHAUDHARI, J. ) PRESIDING MEMBER Mk/court4/