State Consumer Disputes Redressal Commission
United India Insurance Co. Ltd., vs Smt. Maria Esperance Fernandes, on 16 April, 2009
THE STATE
CONSUMER DISPUTES REDRESSAL COMMISSION
PANAJI -
GOA
Present:
Smt.
Sandra Vaz e Correia .Presiding Member
Smt.
Caroline Collasso ...
Member
Appeal
No. 106/2007
United
India Insurance Co. Ltd.,
Mascarenhas
Building, 2nd Floor,
M.G.
Road, Panaji-Goa. ...Appellant
(Original
Opposite Party)
v/s
Smt.
Maria Esperance Fernandes,
w/o
Menino M.A. Fernandes,
R/o
H.No.745, St. Augustine,
Waddo,
St. Cruz,
Tiswadi-Goa.
... Respondent
(Original
Complainant)
For
the Appellant ...Shri E Afonso, Advocate
For
the Respondent .. Shri V. Shirodkar, Advocate and
Advocate
S. Mordekar present at the time of order.
Dated:
16-04-2009
ORDER
[Per Smt Sandra Vaz e Correia, Presiding Member]
1. The appellant is the United India Insurance Co. Ltd; they are aggrieved by the order dated 09-07-2007 passed by Consumer Disputes Redressal Forum (District Forum) North Goa in Complaint no. 210/2000 where under they were directed to pay a sum of Rs.2,50,000/- to the complainant (respondent herein) alongwith interest @ 12% p.a. from 22-06-1998 till full payment.
2. This is a long pending dispute between the parties. The complainant purchased a vehicle 'Tempo Trax' in the year 1996 initially used as a taxi but converted to a private vehicle after six months. The vehicle was insured with the opposite party for an amount of Rs.3,37,000/- for the period 16-07-1997 to 15-07-1998. The complainant's husband passed away on 26-02-1998; thereafter she engaged one Vijay Madhukar Naik to drive the vehicle as and when required. On 06-05-1998, she instructed the said driver to go to Belgaum with the vehicle to purchase spare parts for the Ambassador car belonging to her brother-in-law Bartolommeo Fernandes. The following day, she got a telephonic message that said Vijay while on his way to Belgaum was accosted by four persons who had hitched a ride in the vehicle and assaulted and tied with a nylon rope. The assailants decamped with the vehicle. Said Vijay's statement was recorded by the police on 07-05-1998 and a revised statement recorded on 31-08-1998.
3. The complainant raised a claim before the opposite party on 22-06-1998 alongwith RC book and keys of the vehicle. This was followed up with a reminder on 06-10-1999. However, the claim was repudiated by the opposite party by letter dated 04-01-2000 on the grounds that the vehicle was used for hire and as such violated the limitations of use. The complainant knocked the doors of the 'grievance cell' of the opposite party, but was informed that the repudiation could not be reconsidered. This, succinctly, is the genesis of the dispute.
4. The opposite party defended its repudiation of the claim on the ground that the vehicle was used for 'hire or reward' at the time of loss. They alleged that the driver Vijay Madhukar was engaged to use the vehicle for hire and placed strong reliance on the drivers statement to the police given on 07-05-1998. The driver had stated that he had taken the vehicle to the taxi-stand at Mandovi Hotel at which time four unknown persons engaged the vehicle to transport them to Mollem. The statement was altered 43 days later at the instance of the complainant.
5. The opposite party's defense however did not find favour with the District Forum who allowed the complaint with directions to pay the market value with interest.
6. Shri E Afonso assailed the impugned order and submitted that the District Forum had not appreciated the breach of policy condition and that acts of the servant bind the master. He further submitted that, at the most, the appellant's liability would be settlement of the claim on non-standard basis at 75% of the assessed loss of Rs.2,50,000/- and relied on National Insurance Co. Ltd. vs. Munni Lal Yadav 2001 (2) CPR 1 (NC). On the other hand, Shri Vasudev Shirodkar argued in support of the impugned order.
7. There is merit in the contention of the opposite party. Vijay Madhukar Naik's statement was recorded at the Collem Police Station at 8:30 pm on 07-05-1998. He stated that on 06-05-1998, he took the vehicle to the taxi stand at Mandovi Hotel at which time he was approached by four persons who desired to engage the vehicle to take them to Mollem; the quoted charges of Rs.700/- were accepted. It is clear from this statement that the vehicle was used for hire at the time. The complainant realized about two months later that her driver had given a wrong statement and approached the police to have it altered. Obviously, it must have dawned on the complainant that her driver's statement would be fatal to her claim that had been filed with the opposite party at the time. The complainant cannot wash her hands from the acts of her driver, she being liable for his acts in her capacity as owner of the vehicle. The circumstances in which the vehicle was claimed to have been sent to Belgaum to get spare parts for the complainant's brother-in-laws Ambassador car arouse our suspicion as well; there is not a word from the brother-in-law that he has an Ambassador car that required spares not available in Goa.
8. Be that as it may, the opposite party could not have repudiated the claim in toto in view of decision of the Hon'ble Apex Court in Skandia's case reported in 1987 (2) SCC 654. They ought to have treated it as a 'non-standard claim' and settle accordingly rather than outright repudiation. In fact, this position is admitted by the appellant themselves.
9. In the result, the impugned order stands partly modified. The complainants claim shall be settled on non-standard basis at 75% of the assessed loss of Rs.2,50,000/-. The rate of interest and date of computation thereof shall remain unchanged. In the circumstances, parties shall bear their own costs.
10. This appeal stands disposed accordingly.
Pronounced.
[Sandra Vaz e Correia] Member [Caroline Collasso] Member