State Consumer Disputes Redressal Commission
The Oriental Insurance Co.Ltd Through ... vs Hem Sagar Patel on 8 September, 2015
CHHATTISGARH STATE
CONSUMER DISPUTES REDRESSAL COMMISSION
PANDRI, RAIPUR (C.G.)
Appeal No.FA/14/804
Instituted on : 24.12.2014
The Oriental Insurance Company Limited,
Through : Branch Manager,
Near Ambedkar Chowk, Manendragarh Road,
Ambikapur, District Surguja (C.G.)
Through : Divisional Manager,
Divisional Office No.1, Jail Road,
Post and District Raipur (C.G.) ... Appellant
Vs.
Hem Sagar Patel, S/o Shri Sakharam Patel,
R/o : Post Lailunga, District Raigarh (C.G.) .... Respondent
PRESENT: -
HON'BLE JUSTICE SHRI R.S. SHARMA, PRESIDENT
HON'BLE MISS HEENA THAKKAR, MEMBER
HON'BLE SHRI D.K. PODDAR, MEMBER
COUNSEL FOR THE PARTIES :-
Shri P.K. Paul, for appellant.
Shri R.K. Bhawnani, for respondent.
ORDER
Dated : 08/09/2015 PER: - HON'BLE JUSTICE SHRI R.S. SHARMA, PRESIDENT This appeal is directed against the order dated 30.10.2014, passed by the District Consumer Disputes Redressal Forum, Raigarh (C.G.)(henceforth "District Forum" for short), in Complaint Case No.72/2014. By the impugned order, learned District Forum, has allowed the complaint filed by respondent (complainant) and directed the appellant (O.P.) to pay within a period of one month from the date // 2 // of order a sum of Rs.3,75,000/- along with interest @ 9% p.a. from the date of filing of order till realisisation. The appellant (O.P.) has further been directed to pay a sum of Rs.10,000/- towards compensation for mental agony and Rs.2,000/- as cost of litigation to the respondent (complainant).
2. Briefly stated the facts of the case are that the respondent (complainant) is registered owner of Bolero vehicle bearing registration No.C.G.13-C-9237 and the said vehicle was insured with the appellant (O.P.) for the period from 24.10.2012 to 23.10.2013 and it's policy no. was 192402/31/2013/7597. On 30.06.2013, the trailer bearing registration No.C.G.04-JB-4616 dashed the vehicle in question near village Ulda, Police Station Kharsiya, District Raigarh (C.G.). Due to accident, the vehicle of the respondent (complainant) was badly damaged and the respondent (complainant) suffered loss to the tune of Rs.9,58,639/- and the vehicle was taken to Ambikapur for repairing in which near about Rs.20,000/- was spent by the respondent (complainant) and a sum of Rs.25,000/- was deposited in the show room. The matter was reported to Police Station Kharsiya, where offence under Section 279, 337 and 304A IPC was registered against the driver of the trailer bearing registration No.C.G.04-JB-4616. The respondent (complainant) submitted his claim before the appellant (O.P.) and his claim was repudiated by gthe appellant (O.P.) on the // 3 // ground that the vehicle in question was carrying passengers more than the prescribed limit and thus the respondent (complainant) violated terms and conditions of the insurance policy. The repudiation of the claim of the respondent (complainant) by the appellant (O.P.) is erroneous and the respondent (complainant) is entitled to get compensation from the appellant (O.P.). Hence, the respondent (complainant) filed consumer complaint before the District Forum and prayed for granting reliefs, as mentioned in the complaint.
3. The appellant (O.P.) filed its written statement and averred that at the time of incident, the respondent (complainant) was carrying more than prescribed passengers in the vehicle in question. The sitting capacity of the vehicle was 9 whereas near about 14 persons were sitting in the vehicle at the time of accident. Due to accident, Gopal Kanwar, Shanti Bai, Ganga Bai, Rajmati, Rajni Kanwar, Janki Bai and Prem Singh were died on spot and Basant Kumar, Dilkumari, Sajni, Anju Kanwar, Jamuna Kanwar and Chotu Kanwar sustained injuries. At the time of accident, the respondent (complainant) / owner was carrying more passengers than the prescribed limit and the vehicle in question was being used for carrying baratis, therefore, the respondent (complainant) violated terms and conditions of the insurance policy as well as provisions of the Motor Vehicles Act, 1988, hence the appellant (O.P.) has rightly repudiated the claim of the respondent // 4 // (complainant) and the respondent (complainant), is not entitled to get any compensation from the appellant (O.P.), and the complaint is liable to be dismissed.
4. Learned District Forum after having considered the material placed before it by the parties allowed the complaint and directed the appellant (O.P.) to pay compensation to the respondent (complainant), as mentioned in para 1 of this judgment.
5. The respondent (complainant) has filed documents. Document No.1 is letter dated 31.03.2014 sent by the appellant (O.P.) to the respondent (complainant), letter dated 26.03.2014 sent by the appellant (O.P.) to the respondent (complainant), Motor Insurance Certificate Cum Policy Schedule Private Car Package Policy - Zone B issued by the Oriental Insurance Company Limited in favour of the respondent (complainant), First Information Report (Under Section 154 Cr.P.C.), Inquest, application for post mortem, post mortem report, Merg Intimation, document No.2 is bill dated 13.08.2013 issued by Surya Crane Service to the respondent (complainant), document No.3 is bill dated 13.08.2013 issued by Agrawal Transport, Pathalgaon, District Jashpur (C.G., document No.4 is bill dated 13.08.2013 issued by Shivnarayan Patel to the respondent (complainant), document No.5 is receipt dated 18.08.2013 issued by Star Automobiles, Ambikapur, // 5 // District Surguja (C.G.) to the respondent (complainant), document No.6 is service quotation.
6. The appellant (O.P.) has also filed document. Document No.1 is photocopy of certificate of registration of vehicle bearing registration No.C.G.13-C-9237, document No.2 is vehicles particulars given by Registering Authority, (D.T.O.) Raigarh (C.G.), document No.3 is copy of First Information Report (Under Section 154 Cr. P.C.).
7. Shri P.K. Paul, learned counsel appearing for the appellant (O.P.) has argued that the impugned order passed by the learned District Forum, is contrary to law and is liable to be set aside. He further argued that vehicle in question was carrying more passengers than the prescribed limit and the vehicle was being used by the respondent (complainant) for carrying baratis and sitting capacity of the vehicle was 9 whereas near about 14 persons were setting in the vehicle at the time of accident and near about 7 persons were died and 6 persons sustained injuries. It appears that the respondent (complainant) was plying the vehicle violating the terms and conditions of the insurance policy, therefore, the appellant (O.P.) has rightly repudiated the claim of the respondent (complainant), and the impugned order passed by the learned District Forum, is liable to be set aside. He placed reliance on orders of Hon'ble National Commission in S.G. Shivamurtheppa v. Reliance General Insurance // 6 // Co. Ltd. I (2012) CPJ 175 (NC), Iffco Tokio General Insurance Co. Ltd. vs. Gaurav Bhargava, II (2015) CPJ 196 (NC), order of this Commission in Appeal No.FA/14/395 - The Oriental Insurance Company Limited Through : Divisional Manager, Bilaspur vs. Manoj Kumar Jaiswal, order dated 27.02.2015.
8. Shri R.K. Bhawnani, learned counsel appearing for the respondent (complainant) has supported the impugned order passed by the learned District Forum and has argued that the impugned order is just and proper and does not suffer from any infirmity and illegality and does not call for any interference by this Commission and the respondent (complainant) is not entitled to get any compensation on non-standard basis from the appellant (O.P.). He placed reliance on orders of Hon'ble National Commission in Oriental Insurance Company vs. Girbar Singh Nandwanshi & Anr. 2015 (2) CPR 299; Oriental Insurance Company Limited & Anr. vs. Rajak; Kesarben vs. United India Insurance Company Limited, 2001 CCJ 595; order of Hon'ble Supreme Court in Amalendu Sahoo vs. Oriental Insurance Company Limited (2010) 1 Supreme Court Cases 536.
9. We have heard learned counsel for the parties and have also perused the record of the District Forum.
10. The respondent (complainant) has filed copy of the insurance policy. From the bare perusal of the insurance policy, it appears that // 7 // vehicle in question was insured with the appellant (O.P.) for the period from 24.10.2012 to 23.10.2013 and the incident took place on 30.06.2013. It appears that at the time of accident, the vehicle in question was insured with the appellant (O.P.). In the Certificate of Registration, the seating capacity of the vehicle is mentioned as 9 persons.
11. In the instant case, both the parties have filed copy of First Information Report. In the First Information Report, it is mentioned that due to accident, Gopal Kanwar, Shanti Bai, Ganga Bai, Rajmati, Rajni Kanwar, Janki Bai and Prem Singh were died on spot and Basant Kumar, Dilkumari, Sajni, Anju Kanwar, Jamuna Kanwar and Chotu Kanwar sustained injuries. It appears that at the time of accident, 13 persons were sitting in the vehicle in question whereas the sitting capacity of the vehicle was only 9 and 4 more persons in excess were sitting in vehicle, therefore, it is established that at the time of accident, the vehicle was overloaded.
12. In S.G. Shivamurtheppa v. Reliance General Insurance Co. Ltd. (Supra), it has been observed by Hon'ble National Commission that "the sitting capacity of the vehicle was not exceeding 12 and at time of accident, vehicle was instead carrying 16 persons, therefore, there was explicit and admitted violation of one of the condition of insurance policy, the Insurance Company has rightly repudiated the insurance claim of the complainant."
// 8 //
13. In Iffco Tokio General Insurance Co. Ltd. vs. Gaurav Bhargava (Supra), the Insurance Company repudiated the claim on two counts :
(i) that passengers in excess of the sitting capacity were being carried i.e. against the sanctioned sitting capacity of 9 + 1, there were total 11 persons, and (ii) second that vehicle was being plied as Taxi on hire.
The National Commission held the repudiation justified.
14. In Oriental Insurance Company vs. Girbar Singh Nandwanshi & Anr. (Supra), Hon'ble National Commission has observed that "the claim repudiated on ground of overloading, in a case of overloading claim has to be processed on non-standard basis. In case of overloading of a vehicle, beyond licensed carrying capacity, claim preferred by Insured should be paid @ 75% of admissible claim."
15. In Oriental Insurance Company Limited & Anr. vs. Rajak (Supra), Hon'ble National Commission has observed that "In case of overloading of vehicle beyond licence carrying capacity claim is admissible upto 75% on non-standard basis."
16. In Appeal No.FA/14/395 - The Oriental Insurance Company Limited Through : Divisional Manager, Bilaspur vs. Manoj Kumar Jaiswal, order dated 27.02.2015 (Supra), this Commission held that the sitting capacity of the vehicle was 3 + 1 whereas at the time of accident // 9 // 6 persons were sitting in the vehicle and this Commission further held that breach is fundamental breach of the terms & conditions of the insurance policy.
17. In the instant case both the parties have filed copy of the First Information Report. In the said First Information Report, it is mentioned thus :-
"................xksiky flag vius 'kknh dk ckjkr ySywxka ls xzke xrok Fkkuk ckjkr cqysjks dz- CG-13C/9237 esa x;k FkkA 'kknh ds Ik'pkr~ nqYgu tequk ckbZ dks mDr cqysjks esa cSBk dj lkFk esa ckyd izse flag nqYgk xksiky ,oa 'kkafr ckbZ] xaxk ckbZ] jtuh ckbZ jktefr] tkudh ckbZ o vU; clar dqekj] fny dqekjh] ltuh] vUtw daoj ds lkFk okil >ju ySywaxk tk jgs Fks fd xzke mYnk ds ikl djhc 10-30 cts jkf= dks lkeus ls Vsªyj dz- CG04JB/4616 dk pkyd rst xfr ,oa ykijokgh iwoZd okgu pykrs gq, cqysjks dz- CG13C/9237 dks Bksdj ekjdj ,DlhMsUV dj fn;k ftlls cqysjks esa cSBs xksiky daoj 'kkafr ckbZ] xaxk ckbZ] jktefr] jtuh daoj] tkudh ckbZ] isze flag dh ekSdk eas gh ekSr gks x;h rFkk clar dqekj] fny dqekjh] ltuh] vUtw] daoj] tequk daoj] NksVw daoj dks pksV vk;k gS ,oa cqysjks okgu iwjh rjg ls {kfrxzLr gks x;k gSA ".
18. In the First Information Report, it is mentioned that at the time of accident near about 13 persons were sitting and vehicle in question was carrying baratis and due to accident 7 persons were died and 6 persons were injured in the said accident. The vehicle in question was // 10 // carrying baratis and 13 baratis were sitting in the vehicle at the time of incident, whereas in the Certificate of Registration and Insurance Policy, the sitting capacity of the vehicle is mention as 9. It appears that the sitting capacity of the vehicle was only 9 against which 13 persons were sitting in the vehicle as baratis at the time of accident.
19. In New India Assurance Company Limited vs. Konda Srinivasa Rao, 2013 (2) CPR 564 (NC); Hon'ble National Commission has observed that "number of persons travelling in vehicle at the time of accident, was more than permissible number, the Insurance Company repudiated the claim on the ground of overloading, Hon'ble National Commission held that the complainant is entitled to get compensation on non-standard basis."
20. Initially in Appeal No.FA/14/395 - The Oriental Insurance Company Limited Through : Divisional Manager, Bilaspur vs. Manoj Kumar Jaiswal, order dated 27.02.2015 (Supra), this Commission held that "if the number of passengers sitting in the vehicle is more than permitted number, then it is fundamental breach of terms and conditions of the insurance policy."
21. On the basis of judgments rendered by Hon'ble National Commission in the casse of Oriental Insurance Company vs. Girbar Singh Nandwanshi & Anr. (Supra), New India Assurance Company // 11 // Limited vs. Konda Srinivasa Rao and Bherajram vs. United India Insurance Company Ltd. I (2015) CPJ 33 (NC) and other judgments relied by the respondent (complainant), the respondent (complainant) is entitled to get compensation from the appellant (O.P.) on non- standard basis i.e. 75% of the Insured Declared Value (IDV) of the vehicle.
22. On the basis of above judgments, we find that the judgments relied by the appellant (O.P.), will not help the appellant (O.P.).
23. In the instant case the Insured Declared Value of the vehicle is Rs.5,00,000/- and the learned District Forum has awarded 75% of the Insured Declared Value of the vehicle to the respondent (complainant) and the finding of the District Forum, is just and proper and does not suffer from any infirmity or illegality and does not call for any interference by this Commission.
24. Hence, the appeal filed by the appellant (O.P.) 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) (D.K. Poddar)
President Member Member
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