State Consumer Disputes Redressal Commission
The Oriental Insurance Company Limited vs Bhagwati Prasad And Another on 26 May, 2014
STATE CONSUMER DISPUTES REDRESSAL COMMISSION UTTARAKHAND
DEHRADUN
FIRST APPEAL NO. 85 / 2012
The Oriental Insurance Company Limited
through its Divisional Manager
Divisional Office, Rajpur Road
Dehradun
......Appellant / Opposite Party No. 2
Versus
1. Sh. Bhagwati Prasad S/o Sh. Babu Ram
R/o Village Hudoli, Tehsil Purola
District Uttarkashi
......Respondent No. 1 / Complainant
2. Shri Ram Finance Company
through its Branch Manager
Shri Ram Finance Company
Meedo Plaza, Dehradun
......Respondent No. 2 / Opposite Party No. 1
Smt. Anjali Gusain, Learned Counsel for the Appellant
Sh. Shardul Negi, Learned Counsel for Respondent No. 1
None for Respondent No. 2
Coram: Hon'ble Mr. Justice B.C. Kandpal, President
Mr. C.C. Pant, Member
Dated: 26/05/2014
ORDER
(Per: Justice B.C. Kandpal, President):
This appeal, under Section 15 of the Consumer Protection Act, 1986, is directed against the order dated 25.11.2010 passed by the District Forum, Uttarkashi in consumer complaint No. 37 of 2007, whereby the District Forum has allowed the consumer complaint against the appellant - opposite party No. 2 and directed the appellant to pay the insured amount of Rs. 2,70,000/- to the respondent No. 1 - complainant together with interest @6% p.a. from the date of filing of 2 the consumer complaint till payment and Rs. 5,000/- towards litigation expenses.
2. Briefly stated, the facts of the case as mentioned in the consumer complaint, are that the complainant had got his vehicle bearing registration No. UA07-H-4660 (Pickup Van) insured with the appellant - The Oriental Insurance Company Limited for the period from 18.07.2005 to 17.07.2006 for sum of Rs. 2,70,000/-. During the validity of the insurance policy, the insured vehicle met with an accident on 17.04.2006 at Jarda Khud, when the same was going from Vikas Nagar to Purola and the vehicle fell in Yamuna river. The complainant lodged the claim with the insurance company, but the insurance company did not settle the claim of the complainant. Alleging deficiency in service on the part of the opposite parties, the complainant filed a consumer complaint before the District Forum, Uttarkashi.
3. The insurance company filed written statement before the District Forum and pleaded that on receipt of the intimation of the accident of the insured vehicle, it had appointed B.S. Bhardwaj and Company for investigation of the matter; that the investigator had submitted their report dated 16.06.2006 to the insurance company, wherein they have stated that at the time of the accident, four persons including driver were travelling in the vehicle against the permitted capacity of three persons; that at the time of the accident, the vehicle was overloaded; that the insurance company has written letters to the complainant on 17.04.2006, 11.08.2006 and 10.11.2006 for supplying certain information, which were not replied by the complainant; that the claim of the complainant was repudiated vide letter dated 28.12.2006 as "NO CLAIM" for not complying with various requirements of the insurance company and that there is no deficiency 3 in service on their part. The financier also filed written statement before the District Forum and pleaded that the liability to pay the claim amount, if any, is that of the insurance company.
4. The District Forum, on an appreciation of the material on record, allowed the consumer complaint against the insurance company vide impugned order dated 25.11.2010 in the above manner. Aggrieved by the said order, the insurance company has filed this appeal.
5. None appeared on behalf of respondent No. 2. We have heard the learned counsel for the appellant - insurance company and respondent No. 1 - complainant and have also perused the record.
6. From the perusal of the impugned order passed by the District Forum, it appears that none was present before the District Forum on behalf of the opposite parties (appellant and respondent No. 2 herein). However, there is no dispute with regard to the factum of accident of the insured vehicle during the validity of insurance policy.
7. The insurance company has taken the defence that at the time of the accident, the vehicle was overloaded and four persons including driver were travelling in the vehicle against the permitted capacity of three persons. In this connection, the insurance company has relied upon the report dated 16.06.2006 of B.S. Bhardwaj and Company, investigator (Paper Nos. 17 to 19) and also the news dated 19.04.2006 published in the newspaper "Dhwal News". From the perusal of the investigation report, it can not be said that overloading of the vehicle was, in any way, the cause of the accident and even if the vehicle was overloaded by one person at the time of the accident, the same can not be said to be such a fundamental breach of the policy conditions on 4 the part of the complainant to deprive him from his legitimate claim and merely carrying of one person in excess of the permitted capacity, it can not be said that the vehicle was overloaded. The investigator has clearly stated in the report that the insured vehicle loaded with iron bars and bricks along with three passengers was coming from Vikas Nagar to Purola and as soon as the driver turned on Jarda Khud bend, a vehicle with dazzling lights "ON" came from the opposite direction and in order to give pass to the said vehicle, the insured vehicle fell in a ditch rested in Yamuna river and got drowned in the river. Thus, it can not be said that carrying of one extra person in the vehicle was the cause of the accident and it can also not be said that at the time of the accident, the vehicle was overloaded.
8. The insurance company has repudiated the claim of the complainant as "NO CLAIM" for not complying with various requirements, but the insurance company has not filed any evidence to show that what were the requirements, which the complainant did not fulfill and what documents, if any, he has not supplied to the insurance company. Thus, there has certainly been deficiency in service on the part of the insurance company in repudiating the claim of the complainant and the District Forum was justified in allowing the consumer complaint.
9. So far as the quantum is concerned, the vehicle in question was insured for sum of Rs. 2,70,000/- for the period from 18.07.2005 to 17.07.2006 and it met with an accident on 17.04.2006, i.e., after about 9 months' of the insurance of the vehicle. Thus, the complainant had used the vehicle for a period of about 9 months' from the date of its insurance and there should be some depreciation on account of use of the vehicle for the said period. In our view, depreciation @10% p.a. should be proper and reasonable. This way, after deducting the 5 amount of Rs. 27,000/- (10% of Rs. 2,70,000/-) from the award amount of Rs. 2,70,000/-, the complainant is to be held entitled to sum of Rs. 2,43,000/-. The interest @6% p.a. and litigation expenses of Rs. 5,000/- awarded by the District Forum, are perfectly justified and can not be said to be on the higher side and need not interfered with. Thus, the appeal succeeds partly and is to be allowed accordingly.
10. In view of above, appeal is partly allowed. Order impugned dated 25.11.2010 passed by the District Forum is modified and the amount of compensation is reduced from Rs. 2,70,000/- to Rs. 2,43,000/-. Rest of the impugned order passed by the District Forum is hereby confirmed. Costs of the appeal made easy.
(C.C. PANT) (JUSTICE B.C. KANDPAL) K