State Consumer Disputes Redressal Commission
The Oriental Insurance Co.Ltd. vs Bhupendra Singh Kanda on 16 February, 2017
CHHATTISGARH STATE
CONSUMER DISPUTES REDRESSAL COMMISSION,
PANDRI, RAIPUR (C.G).
Appeal No.FA/2016/700
Instituted on : 03.12.2016
The Oriental Insurance Company Limited,
Branch Office - Near Railway Station,
L.I.C. Office Building, Rajnandgaon,
Tehsil & District Rajnandgaon (C.G.)
Through : Senior Divisional Manager,
The Oriental Insurance Company Limited,
Address : Divisional Office, Durg, Parmanand Bhawan,
Near Rajendra Park Chowk, G.E. Road,
Durg, Tehsil and District Durg (C.G.) ... Appellant/O.P.
Vs.
Bhupendra Singh Kanda,
S/o Late Shri Gurcharan Singh Kanda,
Aged about 55 years, Profession : Transporting Business,
R/o : Mohalla - Stationpara, Ward No.10 ,
City, Tehsil & District Rajnandgaon (C.G.). ...Respondent/Complainant
PRESENT: -
HON'BLE JUSTICE SHRI R.S.SHARMA, PRESIDENT
HON'BLE SHRI D.K. PODDAR, MEMBER
HON'BLE SHRI NARENDRA GUPTA, MEMBER
COUNSEL FOR THE PARTIES: -
Shri L.K. Joshi, for the appellant.
Shri Pravin Mall, for the respondent..
ORDER
Dated : 16 /02/2017 PER :- HON'BLE SHRI JUSTICE R.S. SHARMA, PRESIDENT. This appeal is directed against the order dated 28.09.2016, passed by District Consumer Disputes Redressal Forum, Rajnandgaon (C.G.) (henceforth called "District Forum") in Complaint Case // 2 // No.26/2016. By the impugned order, the District Forum, has allowed the complaint of respondent (complainant) and directed that :-
01. The O.P. will pay Rs.17,00,000/- (Rupees Seventeen Lakhs) towards compensation to the complainant within a period of one month from the date of order along with interest @ 6% p.a. from the date of filing of the complaint i.e. 15.02.2016 till date of payment.
02. The O.P. will pay Rs.10,000/- (Rupees Ten Thousand) towards compensation for mental agony and Rs.2,000/-
(Rupee Two Thousand) towards cost of litigation to the complainant within period of one month.
2. Briefly stated, the facts of the complaint of the complainant are that the complainant is doing business of transporting and under the above business he is loading goods through the transporting agent and was carrying and bringing the goods to one place to another place or one city to another city or one State to another State. As per instructions of Baljinder Road Carrier, Baldev Bagh, Rajnandgaon (Transporting Agent) on 30.03.2014, the complainant handed over his truck bearing registration No.C.G.08-L-1629 to driver Lomesh Mandavi to go to District Korba where Prabhdas Kishordas Tobacco Product Private Limited will load 417 bags of Tendu leaves and the same was to be delivered at to branch of Prabhudas Kishordas Tobacco Products Pvt. Ltd. at Uppinangadi, Mangalore (Karnataka State). On 30.03.2014 itself 417 bags of Tendu leaves were loaded in truck bearing registration No.C.G.0-8-L-1629 and driver Lomesh // 3 // Mandavi was going to Uppinangadi, Mangalore (Karnataka State). On 01.04.2014 when the driver Lomesh Mandavi reached to Village Karanja, Bhilai, Police Out Post Jevra Sirsa, District Durg, at 11.00 A.M. the tendu leaves bags came into contact of electric wire, which was loose and hanging below and due to current spread in the wire, the tendu leaves bag caught fire. The Fire Brigade Department of the Steel Authority of India Ltd., Bhilai Steel Plant has been intimated regarding the same. Thereafter the fire brigade team tried their best to extinguish the fire, but the fire could not be control and the tendu leaves along with truck was fully burnt. The matter was reported to Police Out Post Jevra Sirsa, where report was lodged. The copy of the said report was sent to Sub Divisional Magistrate, Durg for necessary action. The vehicle bearing registration No.C.G.08-L-1629 was insured with the O.P.under Insurance Policy No.192502/31/2014/17831 for the period from 29.01.2014 to 28.01.2015. Thus, on the date of incident i.e. 01.04.2014, the vehicle bearing registration No.C.G.-08-L-1629 was insured with the O.P. Insurance Company. The complainant had immediately gave intimation regarding the incident to the O.P. (Insurance Company) and submitted claim form along with relevant documents of the above truck to the O.P. requesting to pay the claim amount Rs.20,00,000/-. The O.P. vide letter dated 31.07.2014 repudiated the Motor Claim, on the ground that there was violation of terms and conditions of the insurance policy as at the time of incident, // 4 // the height of the tendu leaves bags loaded in the vehicle was more than 4.75, as clarified in Rule 93 (4) (viii) of The Central Motor Vehicles Rules, 1989. On the date of incident i.e. 01.04.2014, the fitness certificate, national permit was valid and the complainant also paid the road tax of the vehicle to Additional R.T.O. Rajnandgaon for the period from February, 2014 to April, 2014 even then the O.P. repudiated the claim of the complainant and thus committed deficiency in service. Hence, the complainant has filed instant complaint before the District Forum and prayed for granting reliefs as mentioned in the complaint.
3. The O.P. filed its written statement and raised preliminary objections that the present complaint is wholly misconceived, groundless and unsustainable in law and is liable to be dismissed as such. The District Forum has no jurisdiction to entertain and adjudicate upon the dispute involved in the complaint in as much as, it is not a dispute and does not fall within the ambit of deficiency of service or even under unfair trade practice as mentioned in Consumer Protection Act, 1986. The present complaint is frivolous and vexatious and liable to be dismissed under Section 26 of the Act. The O.P. averred that the vehicle was over loaded with Beedi leaf bags more than the permitted weight and also more than the permitted height. As the complainant had used his vehicle in violation of provisions of // 5 // Motor Vehicles Act, the O.P. is not liable to pay for damages claimed, as such the complaint filed by the complainant is liable to be dismissed in toto. It was gross negligence on the part of the complainant to load the vehicle beyond the permitted height as mentioned under Section 93(4) (viii) of Motor Vehicles Act, 1989 (the O.P. wrongly mentioned Section 93(4) (viii) of the Motor Vehicles Act, 1989, but actually it is Rule 93 (4) (viii) of The Central Motor Vehicles Rules, 1989). The vehicle bearing registration No.C.G.08-L-1629 was insured under Commercial Vehicle Package Policy. The O.P. has provided the policy schedule attached with policy conditions which contains terms, exceptions subject to which the claims are settled. The O.P. had repudiated the claim of the complainant as the insured vehicle was used in violation of Rule 93 (4) (viii) of The Central Motor Vehicles Rules, 1989. The cause of loss mentioned by the complainant is load of Tendu Leaves loaded in the truck bearing registration No.C.G.08-L-1629 coming in contact with high power electric wire passing along with road. The vehicle was used in violation of Section
- I mentioned under Clause No.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, failures 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 // 6 // same time. The cause of fire accident is consequential to high power electric wire coming in contact with Tendu leaves loaded in the vehicle, but not due to any of the reasons mentioned under Clause 1 of Section 1 of policy conditions. The permit and fitness of the vehicle truck bearing registration no.C.G.08-L-1629 was valid. The driver of the vehicle bearing registration No.C.G.08-L-1629 was not holding a valid and effective driving licence at the time of incident. Therefore, there was violation of policy condition. The claim for damages could not be settled by the O.P. because the vehicle was used in violation of Rule 93 (4) (viii) of The Central Motor Vehicles Rules, 1989. The vehicle was over loaded with Tendu leaf bags and the alleged incident occurred due to negligence of driver of the vehicle. Had the vehicle been loaded within permitted height of 4.75 meters there was no chances of touching the high power electricity wire. Therefore, the vehicle was used in violation of Rule 93 (4) (viii) of The Central Motor Vehicles Rules, 1989, as such the claim could not be settled by the O.P. The O.P. had repudiated the claim of the complainant which clearly reveals that the vehicle bearing registration No.C.G.07-L-1629 was loaded with 417 bags of Tendu leaves which was above 4.75 meters height. The Insured Declared Value of the vehicle is Rs.20,00,000/-. Basing on the IRDA Regulations, 2000 Surveyor having technical knowledge and duly licenced with IRDA had been deputed and loss // 7 // was assessed The complaint filed by the complainant is barred by time. The complaint is liable to be dismissed with costs to the O.P.
4. The complainant has filed documents. Document No.1 is insurance policy of vehicle bearing registration No.C.G.-08-L-1629 in original, document No.2 is letter dated 09.04.2014 sent by office of Police Check Post - Jevra Sirsa to the S.D.M. Durg, in original, document No.3 is particulars of vehicle bearing registration No.C.G.08-L-1629, document No.4 is national permit of vehicle bearing registration No.C.G.08-l-1629, document No.5 is fitness certificate of vehicle bearing registration No.C.G.08-L-1629, document No.6 is receipt for payment of tax of vehicle bearing registration No.C.G.08-L- 1629, document No.7 is repudiation letter dated 31.07.2014 sent by the O.P. to the complainant, document No.8 is B. No.58 dated 30.03.2014 issued by Baljinder Road Carrier, Rajnandgaon, document No.9 is Declaration made by Prabhudas Kishordas Tobacco Product Pvt. Ltd., document No.10 is permit for transportation, document No.11 are Tendu Patta Sheets, document No.12 is letter dated 15.04.2014 sent by Fire Brigade Officer, Bhilai Steel Plant. The complainant has also filed discharge voucher issued by National Insurance Co. Ltd., Damage Cum Non Delivery Certificate dated07.04.2014 issued by Baljinder Road Carrier.
// 8 //
5. The O.P. has also filed documents which are letter dated 10.06.2014 sent by Shri Omprakash Joshi to Public Information Officer Cum Assistant Transport Commissioner, District Raipur, relevant portion of Motor Vehicles Rules, 1989, letter dated 10.06.2014 sent by Shri Omprakash Joshi to Public Information Officer, Assistant Engineer, Nankatti, Chhattisgarh State Power Distribution Centre, Nankatti, letter dated 27.06.2014 sent by Public Information Officer and Junior Engineer, C.G. State Power Distribution Co. Ltd. Nankatti to Shri Omprakash Joshi, the Gazette of India and Commercial Vehicles Package Policy.
6. After having considered the material placed before it by the parties, learned District Forum has allowed the complaint and directed the O.P. to pay the amounts, as mentioned in para 1 of this order.
7. In the instant appeal, the appellant (O.P.) has filed application under Order 41, Rule 27 of CPC and sought to file copies of Show Case Notice dated 07.11.2016 issued by District Forum to the appellant (O.P.), copy of application under Section 27 of the Consumer Protection Act, 1986 filed by the respondent (complainant) before the District Forum, Report dated 11.07.2014 submitted by Shri Omprakash Joshi, Investigator to the appellant (O.P.), news paper cutting, as evidence at appellate stage.
// 9 //
8. We have heard learned counsels for both the parties on the application filed by the appellant (O.P.) under Order 41 Rule 27 CPC.
9. The document filed by the appellant (O.P.) are copies of Show Case Notice dated 07.11.2016 issued by District Forum to the appellant (O.P.), copy of application under Section 27 of the Consumer Protection Act, 1986 filed by the respondent (complainant) before the District Forum, Report dated 11.07.2014 submitted by Shri Omprakash Joshi, Investigator to the appellant (O.P.), news paper cutting. The above document is essential for proper adjudication of the case. The appellant (O.P.) did not file the above document before the District Forum during pendency of the complaint and has filed the same at appellate stage, therefore, the application filed by the appellant (O.P.) under Order 41 Rule 27 CPC, is allowed subject to payment of cot of Rs.3,000/- and the documents are taken on record as additional evidence.
10. Shri L.K. Joshi, learned counsel appearing for the appellant (O.P.) has argued that the respondent (complainant) was using he vehicle in question in violation of Rule 93 (4) (viii) of The Central Motor Vehicles Rules, 1989. The respondent (complainant) overloaded the tundu leaves in the vehicle and due to over load, the tendu leaves, which was loaded in the vehicle came to contact of electric wire. According to Rule 93 (4) of The Central Motor Vehicles Rules, 1989 "the overall height of a construction equipment vehicle measured from the surface on which the vehicle rests shall not exceed 4.75 metres, // 10 // while in travel mode." Instead of height of 4.75 metres, the respondent (complainant) loaded the tendu leaves in the vehicle more than prescribed height. The respondent (complainant) had loaded bags having size 54" x 54" X 40 and due to overloading of the tendu leaves in the vehicle, the damages was caused, therefore, the respondent (complainant) himself was negligent and was using the vehicle against the provisions of Rule 93 (4) of The Central Motor Vehicles Act, 1989 and also violated terms and conditions of the insurance policy. Therefore, the respondent (complainant) is not entitled to get any compensation from the appellant (O.P.), but the learned District Forum has erroneously awarded compensation to the respondent (complainant) to the tune of Rs.17,00,000/- and also awarded Rs.10,000/- towards compensation for mental agony, but the appellant (O.P.) did not commit any deficiency in service, therefore, the respondent (complainant) is not entitled to get any amount towards compensation for mental agony. The impugned order passed by the District Forum, is erroneous and is liable to be set aside. The appeal may be allowed and the complaint of the respondent (complainant) be dismissed. He placed reliance on DARCL Logistics Ltd. Vs. ICICI Lombard GIC Ltd. and Others, II (2016) CPJ 620 (NC).
11. Shri Pravin Mall, learned counsel appearing for the respondent (complainant) has supported the impugned order passed by the District Forum and prayed for dismissal of the appeal.
// 11 //
12. We have heard learned counsel appearing for both the parties and have also perused the record of the District Forum as well as the impugned order.
13. The respondent (complainant) pleaded that on 30.03.2014, that 417 bags of tendu leaves were loaded in truck bearing registration No.C.G.08-L-1629 and the driver of the truck was going from Korba to Uppinangadi. On 01.04.2014, when the driver reached to near Village Karanja, Bhilai, Police Out Post Jera Sirsa, District Durg (C.G.) at about 11 A.M. the truck came to the contact of electric wire which was loose and hanging below and the tendu leaves caught fire due to which the bags of tendu leaves and truck was completely burnt and damaged. The Fire Brigade Department of the Steel Authority of India Ltd., Bhilai Steel Plant had been intimated regarding the incident and they tried their best to extinguish the fire, but the fire could not be control. The intimation regarding the incident was given to appellant (O.P.). The Insured Declared Value of the vehicle was Rs.20,00,000/-. In the incident, the truck and tendu leaves complete burnt.
14. On the contrary, the appellant (O.P.) pleaded the height of the bags of tendu leaves loaded in the truck was more than the prescribed limit, which is against the provisions of Rule 93 (4) (vii) of The Central Motor Vehicles Rules, 1989. The electric wire was not loose and was not hanging below. Due to overloading of the bags of tendu leaves, // 12 // the incident took place. The respondent (complainant) has violated the Rule 93 (4) of the Central Motor Vehicles Act, 1989 and terms and conditions of the insurance policy.
15. Before the District Forum, the appellant (O.P.) did not file report of the Investigator. At the appellate stage, the report of the Investigator has been filed by the appellant (O.P.). Looking to the Investigation Report of the Investigator, it appears that the tendu leaves was loaded in the truck more than 5.8 metre height. The Investigator opined in para 4 of his report that as per Rule 93 (4) of The Central Motor Vehicles Act, 1989 the height of vehicle when it is measured from the level on which the vehicle is standing should not be more than 4.75 metres. In sub rule 8 the overloading was cleared and in sub rule 4 it is provided that the goods cannot be loaded in the vehicle more than 4.75 metres higher. in the vehicle in question, tendu leaves was overloaded more than prescribed height and the same was transporting, which is violation of terms and conditions of the insurance policy.
16. Learned District Forum has held that the Insured Declared Value of the truck was Rs.20,00,000/- and policy was issued on 29.01.2014. The incident took place on 01.04.2014, therefore, the value of salvage was assessed to the tune of Rs.3,00,000/- and has awarded Rs.17,00,000/- to the respondent (complainant).
// 13 //
17. In DARCL Logistics Ltd. s. ICICI Lombard GIC Ltd. & Others (Supra), Hon'ble National Commission has observed thus :-
"Sanctioned carrying capacity of vehicle was 49 MT whereas load was 242 MT at time of accident - Such abnormal overloading will be cause of an accident and violates provisions of insurance policy - It will be encouraging those, who believe in overloading vehicle and care not even a fig for serious accidents - State Commission had taken correct view and had not granted any amount."
18. But, in Lakhmi Chand Vs. Reliance General Insurance , II (2016) CPJ 3 (SC), Hon'ble Supreme Court has observed that "Accident was caused on account of rash and negligent driving of offending vehicle. FIR under Sections 337, 338, 304A and 427 of IPC registered against driver of vehicle. Insurance Company not produced any evidence on record to prove that accident occurred on account of overloading of passengers in goods carrying vehicle. For the insurer to avoid liability, breach of policy must be so fundamental in nature that it brings contract to an end. Violation of policy conditions not established. Repudiation not justified."
19. In Oriental Insurance Company vs. Girbar Sinh Nandwanshi & Anr. 2015 (3) CPR 299, 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."
// 14 //
20. In Oriental Insurance Company Limited & Anr. vs. Rajak 2015 (3) CPR 375 (NC) 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."
21. In Ganjpal Patre Vs. Oriental Insurance Company Limited, IV (2016) CPJ 231 (NC), Hon'ble National Commission has observed that "
In the case of overloading, the claim can be allowed on non-standard basis." The judgment cited by the appellant (O.P.) is not applicable in the facts of the instant case.
22. Learned District Forum has observed that the total Insured Declared Value of the truck was Rs.20,00,000/- and assessed the salvage value of Rs.3,00,000/-, which was not disputed by the respondent (complainant), therefore, it is established that the respondent (complainant) overloaded the truck more than the prescribed height . Hence, the responsible (complainant) is entitled for 75% of Rs.17,00,000/- on non-standard basis, which comes to Rs.12,75,000/- (Rs. Twelve Lakhs & Seventy Five Thousand).
23. Learned District Forum has awarded a sum of Rs.10,000/- (Rupees Ten Thousand) towards compensation for mental agony to the respondent (complainant), which is erroneous. The respondent (complainant) himself overloaded the vehicle, therefore, he is not entitled to get any compensation towards mental agony.
// 15 //
24. So far as cost of litigation Rs.2,000/- awarded by the District Forum to the respondent (complainant), it is just and proper and does not call for any interference by this Commission.
25. Therefore, the appeal of the appellant (O.P.) is allowed and it is directed that :-
(i) The appellant (O.P.) will pay a sum of Rs.12,75,000/-
(Rupees Twelve Lakhs Seventy Five Thousand) within a period of one month to the respondent (complainant) along with interest @ 6% p.a. from the date of filing of the complaint i.e. 15.02.2016 till date of payment.
(ii) The direction of the District Forum regarding payment of Rs.10,000/- (Rs. Ten Thousand) towards compensation for mental agony is set aside.
(iii) The appellant (O.P.) will pay a sum Rs.2,000/- (Rupees Three Thousand) towards cost of litigation to the respondent (complainant).
(iv) No order as to the cost of this appeal.
(Justice R.S. Sharma) (D.K. Poddar) (Narendra Gupta)
President Member Member
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