State Consumer Disputes Redressal Commission
Oic vs Nachhattar Singh on 10 January, 2011
STATE CONSUMER DISPUTES REDRESSAL COMMISSION, PUNJAB,
SCO NOS.3009-12, SECTOR 22-D, CHANDIGARH.
First Appeal No.1595 of 2005
Date of institution: 15.12.2005
Date of decision : 10.01.2011
Oriental Insurance Co. Ltd., SCO No.109-111, Sector 17-A, Chandigarh through
its Regional Manager.
.....Appellants
Versus
Nachattar Singh Bhullar s/o Sh.Bhag Singh r/o village Dhapali, Teh. Phul, District
Bathinda
2nd address :
Jarnail Singh s/o Sh.Nachhattar Singh Bhullar r/o House No.1404, Phase 3B2,
SAS Nagar, Mohali, Distt. Ropar, GP of Nachhattar Singh.
.....Respondent
First Appeal against the order dated 31.10.2005
passed by the District Consumer Disputes
Redressal Forum, Bathinda.
Before:-
Hon'ble Mr.Justice S.N.Aggarwal, President
Mrs.Amarpreet Sharma, Member
Mr.Baldev Singh Sekhon, Member Present:-
For the appellant : Ms.Harsimrat Rai, Advocate for Ms.V.A.Talwar, Advocate For the respondents : None JUSTICE S.N.AGGARWAL, PRESIDENT The controversy to be resolved in this appeal is whether the insurance company is liable to pay the insurance claim when the truck which was overloaded met with an accident.
2. The facts of the case are that Nachhattar Singh Bhullar respondent through his attorney Jarnail Singh filed a complaint against the appellants. It was pleaded that truck No.PB03J9088 owned by the respondent was insured with the appellants for the period from 19.3.2003 to 18.3.2004 for an amount of Rs.8 lakhs.
3. It was further pleaded that on 20.9.2003, truck No.PB03J9088 was being driven by Jarnail Singh in the area of village Shiv, District Barmer First Appeal No.1595 of 2005 2 (Rajasthan). The vehicle in front of truck No.PB03J9088 caught fire and the flames of that fire also reached the truck of the respondent by which the insured truck was reduced to ashes. There was no fault of the driver in driving truck No.PB03-J-9088. The matter was reported to the police and FIR No.109 dated 20.9.2003 was registered in Police Station Shiv, District Barmer.
4. It was further pleaded that the information was given to the appellants. The appellants had appointed Shri Pradeep Kashyap as Surveyor. The respondent had made the payment of Rs.3150/- to the Surveyor. Truck No.Pb03-J- 9088 was found to be totally damaged and burnt. The survey was conducted by the Surveyor on 24.9.2003. The appellants remained mum upto 18.3.2004 when the respondent received letter from the appellants calling the respondent in their office. The attorney of the respondent visited the office of the appellants but the claim was not settled.
5. It was further pleaded that the respondent filed a complaint against the appellants. Then the appellants had brought the letter of repudiation dated 25.7.2004 to the knowledge of the respondent. That complaint was withdrawn by the respondent and the present complaint was filed. The truck was totally damaged. Hence, the complaint for insurance amount of Rs.8 lakhs plus Rs.3,60,000/- as financial loss suffered by the respondent. Compensation, interest and costs were also prayed.
6. The appellants filed the written reply. It was admitted that truck No.PB03-J-9088 owned by the respondent was insured with the appellants but it was pleaded that the trolla/truck bearing RC No.PB03-J-9088 was overloaded. It was carrying sulphur from Kandla to Barnala vide GR No.702 dated 18.9.2003 Grows Weight 52830 kg. (-) Tare Weight 10390 kg. = net weight 42440 kg. of sulphur from M/s Punjab Gujarat Roadways. The carrying capacity of the truck trolla was only 15880 kg.. Since this truck was carrying about 3 times load than the standard load, therefore, Jarnail Singh driver of the truck trolla could not control the above mentioned vehicle and caused the above said accident. It was First Appeal No.1595 of 2005 3 admitted that the information about this accident was given to the Divisional Office, Jodhpur by the respondent. Accordingly, Shri Pradeep Kashyap was deputed to conduct the spot survey. He submitted his report dated 29.10.2003. The final survey was conducted by Shri Suresh Kumar Rathi, Surveyor/Loss Assessor. He submitted his report on 29.2.2004 and pointed out that the above said trolla was carrying sulphur from Kandla to Barnala and was loaded with 42440 kg. of sulphur through M/s Punjab Gujarat Roadways against the carrying capacity of the trolla being 15880 kg.
7. It was further pleaded that Suresh Kumar Rathi, Surveyor and Loss Assessor had written number of letters and reminders to the respondent to convey the true position regarding the overloading. The surveyor vide his letter dated 22.1.2004 sent through Vayusewa Courier had also asked the respondent about the overloading of the truck but no report/reply was received from the respondent.
8. It was admitted that the respondent had earlier also filed a complaint and the appellants had filed reply to it. The repudiation of the claim was brought to the notice of the respondent after thorough investigation and it was duly communicated to the respondent. That complaint was got dismissed as withdrawn on 28.12.2004 by the respondent as there was no merit in it.
9. It was further pleaded that after the report of the Surveyor, it was found that the trolla was carrying sulphur from Kandla to Barnala vide GR No.702 dated 18.9.2003 (GW 52830 Kg. (-) Tare weight 10390 kg. = 42440 kg. of sulphur) against the sanctioned load of 15880 kg. Since the truck was overloaded, therefore, the respondent had violated the condition of the insurance policy. The claim has been rightly repudiated by the appellants. The respondent had made the fraudulent claim with a motive of grabbing the money. It was denied if there was any deficiency in service on the part of the appellants. Dismissal of the complaint was prayed.
10. The respondent filed the affidavit of Jarnail Singh attorney as Ex.C1. The respondent also proved documents Ex.C2 to Ex.C8. On the other hand, the First Appeal No.1595 of 2005 4 appellants filed the affidavit J.S.Madhok, Senior Divisional Manager as Ex.R1 and the affidavit of Prabhat Bhardwaj, Executive Insurance as Ex.R2. The appellants also proved documents Ex.R3 to Ex.R16.
11. The learned District Forum accepted the complaint vide impugned order dated 31.10.2005 with costs of Rs.1500/-. The appellants were directed to make the payment of Rs.8,01,650/- to the respondent with interest @ 9% p.a. and in case, the salvage of the truck was deposited with the appellants, then the appellants were liable to pay an amount of Rs.7,01,650/-.
12. Hence, the appeal.
13. The submission of the learned counsel for the appellants was that it was specifically laid down in the insurance policy that if the damage was caused by overloading of the truck, then the appellants were not liable to pay the insurance claim. This truck was loaded with 42,440 kg. of sulphur against the carrying capacity of 15880 kg. of weight. Hence, it was prayed that the appeal be accepted and the impugned judgment dated 31.10.2005 be set aside.
14. Record has been perused. Submissions have been considered.
15. The version of the respondent was that the insured truck bearing No.PB03-J-9088 was being driven by Jarnail Singh (who was son and attorney of the respondent) on 20.9.2003 in the area of Police Station, Shiv in District Barmer, Rajasthan. One vehicle was proceeding in front of this truck. The front vehicle caught fire by which the flames of the fire also reached the insured vehicle and it also caught fire.
16. However, this version is proved to be totally false from the contents of the FIR which has been proved by the respondent himself as Ex.C5. This FIR was registered on the statement of a Head Constable of the army. As per this FIR, the army truck No.02E01654QL was proceeding and from the opposite direction, truck No.RJ31G4704 was coming. Behind truck No.RJ31G4704, another truck bearing No.PB03-J-9088 (insured vehicle) was coming. The military truck gave the red signal when he saw that the opposite truck was going to cause the accident. First Appeal No.1595 of 2005 5 However, the truck coming from the opposite side bearing registration No.RJ31G4704 passed through but the driver of truck No.PB03-J-9088 who was driving it rashly and negligently, struck the truck against the military truck which caused fire and in that fire incident, not only the insured vehicle was burnt but Naib Subedar could not get out of the military truck and was burnt alive. The Head Constable of the military truck, however, escaped and he reported the matter to the police.
17. The contents of the FIR, therefore, clearly falsify the version of the respondent. It rather proves that the insured vehicle bearing registration No.PB03- J-9088 was being driven by its driver Jarnail Singh rashly and negligently and he was responsible for causing this accident.
18. The appellants have also proved that the unlaiden weight of the insured vehicle was 10,390 kg. and the gross weight of the truck at the time of the accident was 52,830 kg. It means, therefore, that the insured vehicle had loaded 42,440 kg. of sulphur but the truck at the maximum could have loaded 15,880 kg. of weight. The respondent has proved a copy of the letter (Ex.R8) written by Suresh Kumar Rathi, Surveyor/Loss Assessor of the appellants to the respondent asking for his comments as to why he was loading 42,440 kg. of sulphur against the carrying capacity of 15880 kg.
19. The appellants have also proved motor survey report dated 29.2.2004 given by Suresh Kumar Rathi, Surveyor/Loss Assessor to the extent that the laiden weight of the insured vehicle (PB03-J-9088) should have been 25000 kg. and the carrying capacity of the truck was only 15880 kg. whereas the insured vehicle was carrying 42440 kg. of sulphur from Kandla to Barnala when on the way the accident had taken place. The conclusion given by the Surveyor in his report dated 29.2.2004 Ex.R11 was as under : -
"CONCLUSION :
The GR No.702 dt.18.09.2003 of M/s Punjab Gujrat Roadways, Shop No.7, Plot No.92, Sector-9C, First Appeal No.1595 of 2005 6 National Highway-8, Gandhidham (Kutch) from Kandla to Barnala is evident that the vehicle was carrying 42440 kgs. Sulphur against his carrying capacity of 15880 kgs. mean to say that the vehicle was carrying just three time of the carrying capacity due to which the insured's vehicle driver could not save the accident from Military vehicle and fire cum accident took place. The same was informed to the insured & insurer vide courier letter dt.22.01.2004. The insured has not submitted any reply till date but the photocopy of GR No.748 dt.18.09.2003 weighting 14750 kgs. has been submitted which is self evident that against the same bill No.16983 dt.10.09.2003 the vehicle was carrying 52380 kgs. The insured tendency is to submit a fake GR of net weight of 14780 kgs instead of 42440 kgs. The photocopy of the GR weighting 42440 kgs. was obtained through DO Jodhpur against which there is transit claim.
During the accident the Military Vehicle with Artirally and driver of the Military vehicle burnt alive. It is quite evident that the insured has overruled the MV Act, traffic norms and insurance policy norms by overloading.
As per India Motor Tariff Section-1 at S.No.2 the Company shall not be liable to make any payment in respect of damage caused by overloading. Now in these circumstances undersigned would like to say that the extent of penalty on the insured against overloading is discretion of the insurer.First Appeal No.1595 of 2005 7
Submitted for your kind consideration."
20. The terms and conditions of the insurance policy have been proved by the appellants as Ex.R4 in which it is specifically laid down that the insurance company shall not be liable for the following reasons : -
"2. The Company shall not be liable to make any payment in respect of : -
(a) consequential loss, depreciation, wear and tear, mechanical or electrical breakdown, failure or breakages nor for damage caused by overloading or strain of the insured vehicle nor for loss of or damage to accessories by burglary, housebreaking or theft unless such insured vehicle is stolen at the same time.
(b) X X X
(c) X X X"
21. In the present case, it appears that Jarnail Singh who was driving the truck at the time of the accident could not handle the truck because it was heavily loaded and, therefore, he had struck the truck with the military truck and the insured vehicle burnt because of overloading. Therefore, the case of the respondent clearly fell in the exclusionary clause.
22. In this context, the learned counsel for the appellants made reference to the judgment of the Hon'ble Supreme Court reported as "Suraj Mal Ram Niwas Oil Mills v. United India Insurance Company Limited and another, (2010) 10 Supreme Court Cases 567" in which it was held by the Hon'ble Supreme Court that the insurance policy is a contract between the insured and the insurer and the wording of an insurance contract must be given paramount First Appeal No.1595 of 2005 8 importance and interpreted as expressed without any addition, deletion or substitution.
23. In the present case, there is a specific exclusion clause if the damage is caused by overloading and it is clearly proved in this case that Jarnail Singh driver was not in a position to control the truck because it was heavily loaded virtually with thrice weight of the carrying capacity of the truck.
24. The version of the respondent was that the terms and conditions Ex.R4 were never communicated to the respondent nor these were explained to him. These terms and conditions are not signed by the insured and, therefore, the insurance claim should not be repudiated with the aid of the terms and conditions of the insurance policy which were never intimated to the insured.
25. This version has been considered.
26. We find no merit in it.
27. The respondent himself has proved a copy of the insurance policy as Ex.C3, according to which, the respondent had taken the insurance policy where the registration number of the truck is not mentioned but the chassis number and the engine number are mentioned (Engine No.KMH193871 and chassis No.KMA035227). The engine number and the chassis number are the same which are given in the registration certificate of the insured vehicle bearing RC No.PB03-J-9088. It is specifically stamped in the insurance policy Ex.C3 that a copy of the terms and conditions was attached. Therefore, it means that the terms and conditions of the insurance policy were given by the appellants to the respondent along with the insurance policy.
28. In this context, therefore, the respondent cannot avoid the application of exclusionary clause on the plea that the terms and conditions of the insurance policy were never communicated to him.
29. In this insurance policy, it is specifically stated that the gross (laiden weight) of the truck is to be 25000 kg. whereas it is clearly proved that the insured vehicle was carrying 42,440 kg. of sulphur and the gross weight of the truck was First Appeal No.1595 of 2005 9 52830 kg.. Since the truck was overloaded, therefore, the driver of the truck could not control the truck and caused the accident. Since the truck was overloaded and the accident/damage was caused, therefore, it amounted to violation of the terms and conditions of the insurance policy. Therefore, the insurance company was not liable to pay the insurance claim.
30. Keeping in view the discussions held above, this appeal is accepted and the impugned judgment dated 31.10.2005 is set aside.
31. The appellants had deposited an amount of Rs.25,000/- with this Commission at the time of filing of the appeal on 15.12.2005. This amount of Rs.25,000/- with interest accrued thereon, if any, be refunded by the registry to the appellants by way of a crossed cheque/demand draft after the expiry of 45 days.
32. The arguments in this appeal were heard on 5.1.2011 and the order was reserved. Now the order be communicated to the parties.
33. The appeal could not be decided within the statutory period due to heavy pendency of Court cases.
(JUSTICE S.N.AGGARWAL) PRESIDENT (AMARPREET SHARMA) MEMBER (BALDEV SINGH SEKHON) MEMBER January 10, 2011.
Paritosh