State Consumer Disputes Redressal Commission
Smt. Manju Gehlot vs National Ins. Co. Ltd.. on 14 September, 2009
Appeal No.1828/08 Smt.Manju Devi Gehlot V. National Insurance Co.Ltd. Before Mr.Justice Sunil Kumar Garg-President Mrs.Vimla Sethiya-Member
Shri Raj Kumar Tongawat,counsel for the appellant Shri Sanjeev Arora,counsel for the respondent Date of Judgement: 14.9.09 BY THE STATE COMMISSION:
This appeal has been filed by the complainant appellant against the majority order dated 2.9.08 passed by the President and one Member of the District Forum,Sikar in complaint no.64/08,by which the complaint of the complainant appellant was dismissed,while the other Member,Smt.Indra Choudhary had allowed the complaint and ordered that out of Rs.2,47,000/-,after deducting 25% of the amount,the rest amount be paid to the complainant appellant by the respondent insurance company with interest @ 12% p.a It arises in the following circumstances:
That the complainant appellant had filed a complaint against the respondent insurance company before the District Forum,Sikar on 19.2.2008 interalia stating that his Tata Victa bearing registration no.RJ.23.UA0054 was got insured by the complainant appellant with the respondent insurance company for the period 21.10.2004 to 20.10.2005 for a sum of 2 Rs.4,76,584/-.
It was further stated in the complaint that one Mohd.Liyakat Ali who had intimacy with the complainant appellant had taken his vehicle to attend a marriage in Maharasthra and that vehicle was coming on 29.11.04 from Amrawati to Sikar and that vehicle had met with an accident with a truck bearing no.RJ.02G.5213, as a result of which the vehicle of the complainant appellant was damaged and the vehicle at the time of accident was being driven by Munna Lal and on the parcha bayan of Liyakat Ali, a report was lodged with the police station,Jahajpur,District Bhilwara bearing FIR no.444/04 on 29.11.04 and thereafter the police had submitted challan. It was further stated in the complaint that the information of that incident was also given to the office of the respondent insurance company and in getting the repair of that vehicle a sum of Rs.3,03,0723,11,971/- were spent, but the claim was repudiated by the respondent insurance company through letter dated 21.12.05 on the following grounds:
that the vehicle in question though insured as a private vehicle was being used for commercial purposes.
that at the time of accident 18 persons including the driver were seated though the capacity of the vehicle to carry passengers was only upto 10.
that the permit of temporary registration was valid only from 30.10.04 to 28.11.04 though the accident had taken place on 29.11.04,thus on the date of accident the vehicle in question was not having any permit.
Thereafter the present complaint was filed.
A reply was filed by the respondent insurance company before the District Forum,Sikar on 12.6.08 and they have taken 3 the same pleas which were taken in the repudiation letter dated 21.12.05 and it was further stated in the reply that it was wrong to say that the complainant appellant had spent a sum of Rs.3,11,971/- in getting the repair of the vehicle and it was further replied that since the vehicle in question was being used against the terms and conditions of the policy and against the provisions of the M.V.Act and in that accident, 6 persons who were sitting in the vehicle of the complainant appellant had died and some of them were injured and from the report of Shri A.K.Gujral,surveyor dated 12.12.05 the fact that the vehicle in question was being used for commercial purposes is established. It was further replied that since the vehicle in question was being used for commercial purposes and the driver Munnalal was not having a licence to drive a commercial vehicle,therefore,from that point of view also, the complaint be dismissed as looking to the fact that in that accident,challan was filed against the driver of the vehicle of the complainant appellant not only against the offences of IPC but also against various offences of M.V.Act and thus the claim was rightly repudiated and it was prayed that the complaint be dismissed.
The District Forum after hearing both the parties, the President and one Member Shri Ashok Kumar by the majority order dated 2.9.08 had dismissed the complaint while one Member,Smt.Indra Choudhary through a separate order had allowed the complaint and had assessed the loss to the tune of Rs.2,47,000/- and ordered that after deducting 25% from the above amount rest amount be paid.
Aggrieved from that order,this appeal has been filed by the complainant appellant.4
In this appeal,the majority order has been challanged and the main contention of the learned counsel for the complainant appellant is that even for the sake of argument the vehicle in question was being used for commercial purposes at the time of accident,therefore,the claim should have been treated as sub standard and dismissing the complaint in toto was not justified and thus the findings of the majority order be quashed and set aside and appeal be allowed.
On the other hand,the learned counsel for the respondent insurance company has supported the impugned order.
We have heard the learned counsel for the parties and perused the record.
In this case,there is no dispute on the point that on file there is a report of Shri A.K.Gujral,investigator dated 12.12.05 who had cearly stated that at the time of accident,the vehicle was being used for commercial purposes and there is also no dispute on the point that out of the persons sitting in the vehicle 6 persons had died on the spot and some were injured and the capacity of the vehicle in question for allowing the passengers to be seated was 10, though at the time of accident including the driver, 18 persons were sitting,thus in this case the fact that the vehicle in question was being used for commercial purposes is well established and further the fact that the vehicle in question was being used against the terms and conditions of the policy and further against the provisions of the MV Act, as persons more than permitted were allowed to be seated in the vehicle.
There is one more aspect in this case is that this is not only a case where the accident had taken place due to the fault of the 5 offending vehicle, but as per the chargesheet filed by the police,it is also very much clear that the challan has been filed against the driver of the vehicle of the complainant appellant for committing offences u/s 279,337,338 & 304 A IPC and further for following offences namely 134/187, 123/177,184,39/192 MV Act. This also goes to show that the vehicle in question was being used against the terms and conditions of the policy as well as against the provisions of the MV Act.
Further on the date of accident,the permit of the vehicle was not in force.
In this case,there is more more aspect that has to be considered.
There is no dispute on the point that the vehicle in question was being used for commercial purposes though the vehicle in question was a private vehicle and in that accident,the driver of the vehicle of the complainant appellant was found guilty by the police and challan has been submitted against him for various offences of IPC and against the provisions of MV Act and in that accident 6 persons had died and taking into consideration the gravity of situation also the complainant appellant is not entitled to get any sympathy as because of the negligence of the driver of the complainant appellant, the accident had taken place in which 6 persons were died and many injured though his licence was only to drive LMV and at the time of accident he was driving a Light Commercial Vehicle.
For reasons,looking to the fact that the licence of the driver of the vehicle in question was not a proper one and looking to the fact that the challan had been filed against the 6 driver of the vehicle of the complainant appellant by the police and looking to the fact that the challan had been filed against some offences of IPC and also against some provisions of MV Act and looking to the fact that 6 persons had died because of the negligence of the driver of the complainant appellant and looking to the fact that the vehicle in question was being used for commercial purposes against the terms and conditions of the policy and looking to the fact that the permit of the vehicle in question had expired one day before the date of accident,therefore,if a cummulative effect is taken into consideration to the facts and circumstances of the case just narrated above,the present case would be case of gross violation of the terms and conditions of the policy as well as the provisions of the MV Act.
When this being the position,the claim of the complainant appellant could not be treated as sub standard and the same was rightly repudiated by the respondent insurance company and was also rightly dismissed by the District Forum and thus the findings of the District Forum in the majority order dated 2.9.08 are liable to be confirmed one as they are based on correct appreciation of evidence on record and they do not suffer from any basic infirmity,illegality or perversity and this appeal deserves to be dismissed.
For reasons as stated above,this appeal filed by the complainant appellant is dismissed.
Member President