State Consumer Disputes Redressal Commission
Mr. Vasant Vithalrao Jawale,Dist. ... vs Branch Manager,National Insurance Co. ... on 16 April, 2010
STATE CONSUMER DISPUTE REDRESSAL COMMISSION, STATE CONSUMER DISPUTE REDRESSAL COMMISSION, MUMBAI, CIRCUIT BENCH AT AURANGABAD. Date of filing : 12.04.2005 Date of Order: 16.04.2010 FIRST APPEAL NO. 738 OF 2005 IN COMPLAINT CASE NO. 263 OF 2004 DISTRICT CONSUMER FORUM: AHMEDNAGAR. Mr. Vasant Vithalrao Jawale R/o. Mittal Palace, Shriram Colony, Yeola, Tal. Yeola, Dist. Nashik. Appellant -VERSUS- Branch Manager, National Insurance Co. Ltd., Opp. Kanya Vidya Mandir, A/o. Tal. Kopargaon, Dist. Ahmednagr. Respondent Coram : Shri.S.G.Deshmukh, Hon`ble Judicial Member.
Mrs. Uma S.Bora, Hon`ble Member.
Present: Adv. Shri. Amol Gandhi, for appellant.
Adv. Shri. S. V. Kulkarni, for respondent :: ORAL ORDER ::
Per Shri S.G.Deshmukh, Hon`ble Presiding Judicial Member
1. The present appeal is filed by the original complainant against the judgment and order dated 04.03.2005 in complaint case No.263/2004 passed by District Consumer Forum, Ahmednagar.
2. The appellant/complainants case before the Forum is that, his Tempo Trax bearing No. MH-15-AS-916 had been insured with the respondent for the period 20.02.2003 to 19.02.2004. It is contended that, the vehicle met with an accident on 17.04.2003 and was damaged. The complainant reported the matter to the appellant. It is contended that, the claim was repudiated on the ground that, the vehicle was used for carrying passengers on hire, and thus the complainant approached the Forum.
3.
The respondent appeared before the Forum and resisted the claim. It is contended that, the vehicle in question is used for carrying fair paying passengers, thus they have rightly repudiated the claim.
4. Forum below after going through the papers and hearing the parties dismissed the complaint on the ground that, the capacity of vehicle was 9 plus 1 whereas 20 to 23 passengers were carried in the vehicle that too on hire basis.
5. Being aggrieved by the said judgment and order complainant came in appeal.
6. Notices were issued to the appellant as well as the respondent. Learned counsel Shri. Amol Gandhi appeared for the appellant whereas Shri. S. V. Kulkarni, appeared for respondent. We heard both counsels at sufficient length. Learned counsel Shri. Gandhi submitted that, there is no evidence to show that, the complainant had carried passengers in the vehicle on hire basis. He further submitted that, carrying the passengers in the vehicle is not the cause for accident. The learned counsel submitted that, carrying passengers more than capacity is not a fundamental breach so as to afford to the insurer to eschew liability. The learned counsel in that respect relied on the B.V. Nagaraju Vs. Oriental Insurance Co. Ltd. Divisional Officer, Hassan, reported in 1996 (4) SCC 647. The Honble Apex Court has observed that, breach of carrying humans in a goods vehicle more than the number permitted in terms of insurance policy- Is not so fundamental a breach so as to afford to the insurer to eschew liability altogetherExclusion terms of insurance policy read down to serve main purpose of policy. According to him Forum did not consider this aspect and erred in dismissing the complaint. He submitted that, the surveyor was appointed who assessed the loss to the tune of Rs. 1,44,158/-. According to him Forum ought to have allowed the complaint.
On the other hand, learned counsel Shri. S. V. Kulkarni submitted that, the vehicle in question was found carrying 20 to 23 passengers that too on hire basis. Forum has rightly considered this aspect and rightly dismissed the complaint.
7. We perused the papers. There is no dispute that, the policy in question was in existence at the time of accident in question. It appears from the papers that at the time of accident about 20 to 23 passengers had been carried by the complainant in the vehicle. It also appears that, the passengers were carried on hire basis. It is not the case of the respondent that, the accident took palace as the driver carried the passengers more than capacity in the vehicle. There is no nexus between passengers carried in the vehicle and the accident in question. The Forum did not consider this aspect. The breach of carrying passengers in vehicle more than number permitted can not be fundamental breach so as to afford to the insurer to eschew liability. We have mentioned that, there is nothing to show that, the passengers carrying more than capacity was the cause for the accident. Forum erred in dismissing the complaint.
8. It has also come on record that, the surveyor was appointed by the respondent Company. Surveyor assessed the loss to the tune of Rs. 1,44,158/-. We have mentioned that there is a breach of terms and condition as the vehicle in question was allowed to carry 9 plus 1 passengers, whereas at the time of accident the vehicle was found carrying about 20 to 23 passengers. The claim is required to be settled on non-standard basis i.e. 75 % of assessed damages which comes to the tune of Rs. 1,08,118/-. Accordingly we allow the appeal and we pass following order.
* O R D E R *
1. Appeal is allowed.
2. The judgment and order passed by the Forum is hereby quashed and set aside. The Respondent is directed to pay Rs. 1,08,118/- with the interest @ 9% p.a. from 04.11.2003.
3. Appellant is to pay Rs.2,000/- towards the cost.
4. Copies of the order be furnished to the parties.
(Mrs. Uma S. Bora) (S. G. Deshmukh) Member Presiding Judicial Member Kalyankar