State Consumer Disputes Redressal Commission
New India Insurance Co. Ltd. vs Harvinder Singh on 18 July, 2012
IN THE STATE COMMISSION : DELHI (Constituted under Section 9 of the Consumer Protection Act, 1986) Date of Decision : 18.7.2012 First Appeal - 291/2010 (Arising out of the order. dated 5.3.2010 passed by the District Forum(Central), Maharana Pratap Bus Terminal, Kashmere Gate, Delhi in complaint case No. 544/2008) New India Insurance Co. Ltd., Jeevan Bharti Building, 124, Connaught Circus, New Delhi 110 001/ ....Appellant VS Shri Harvinder Singh, 6/1, Prem Nagar, Maini Najafgarh, Near Tilak Nagar, New Delhi-110 018 ..Respondent CORAM Justice Barkat Ali Zaidi, President V.K.Gupta, Member
1. Whether reporters of local newspaper be allowed to see the judgment?
2. To be referred to the reporter or not?
V.K.GUPTA, MEMBER
1. This appeal by the OP is directed against the order dated 5.3.2010 of the CDRF Central, Maharana Pratap Bus Terminal, Kashmere Gate, Delhi whereby the complaint of the respondent was allowed and the appellant was directed to pay Rs.6,33,221/- with interest @ 9% p.a. and also Rs.20,000/- as compensation and Rs.5,000/- as litigation charges.
2. Brief facts are that the complainant/respondent is the owner of the vehicle No.DL-1P-C-7676 a TATA bus which was used by the complainant for playing the tourist routs for the purpose of his living. The said vehicle was insured with the OP/Appellant for a sum of Rs.10,94,721/- for the period from 20.11.2006 to 19.1.2007 and it was covered against the comprehensive risk including the risk of the accident. Unfortunately, on 20.6.2007 the vehicle was carrying tourists around Dharmshala in Himachal Pradesh and it fell into a khud file endorsing of difficult turn near Dharamshala.
In consequence thereof, several persons died/sustained injuries in the accident and the Bus was also extensively damaged. The Bus was brought to Delhi and complainant/respondent obtained a repair estimate from D.V. Motors, authorized agent of TATA Motor vehicles. The complainant also informed about the accident on the next date of accident of bus to OP/appellant. The OP/appellant appointed surveyor to survey the vehicle on the spot, who valued the salvage of Rs.4,00,000/- and recommended the claim for sum of Rs.6,94,721/- after deducting the salvage. The concurrence of the complainant/respondent was obtained and the salvage was handed over to the buyer nominated by the Surveyor of the OP/Appellant. The claim was not settled in spite of service of the legal notice.
3. The OP/appellant has field the written statement and denied the allegation. So far as the Insurance of the vehicle in question is concerned, it is admitted by the OP/appellant that it was insured which was valid from 20.11.2006 to 19.01.2007 and the terms and conditions were signed by the complainant/respondent. The appellant appointed the surveyor namely Shri S.P. Mangala for the assessment of the loss who submitted the report after examining the vehicle. It is further contended that as per certificate of registration and the permit, the vehicle had a permitted capacity of 30 passengers; however, at the time of the accident about 37 passengers were traveling. It was also found by the surveyor that at the time of accident 37 persons were sitting in the vehicle. On the ground of the overloading of the passengers coupled with rash driving, the vehicle could not be controlled by the driver as a result of which the accident took place. Obviously, the vehicle was being run against the terms and conditions of the policy; therefore, the complainant/respondent is not entitled to claim any relief.
Further, complainant did not give correct information in the claim form. There cannot be said any deficiency of service on the part of the OP/appellant.
4. The District Forum vide order dated 5.3.2010 has allowed the complaint and directed the appellant/OP to pay a sum of Rs.6,33,221/- with interest @ 9% p.a. from the date of the report of the Surveyor till the realization of the amount.
In addition to this, the appellant/OP was also directed to pay Rs.20,000/- as compensation and Rs.5,000/- as litigation charges.
5. We have heard the Ld. Counsels for both the parties and perused the material on record.
6. So far as the insurance policy is concerned, there is no dispute about it. The Counsel for the appellant vehemently submitted that at the time of the accident the vehicle was carrying 37 passengers against the permit which was for 30 persons. According to the complainant as per permit of the bus the capacity of the bus was 29+2 i.e. 31. In this case the appellant has filed the Surveyor report dated 2.6.2007 appointed by the appellant/OP wherein it is clearly mentioned that 11 persons were killed and 26 were injured and they were referred to PGI Chandigarh. It is, therefore, clear that the bus was carrying 37 passengers instead of 31 as allowed in the registration certificate.
It may be mentioned here that the complainant/respondent has not filed any document to show that the bus was carrying only 31 passengers at the time of accident. There is also a police report which confirms the version of the appellant/OP that there were 37 passengers in the bus. It is very vehemently argued by the Counsel for the appellant that the vehicle was carrying on 6 more persons beyond the permitted limit therefore, it violated the terms and conditions of the policy and consequently the accident took place on account of that reason.
7. The Ld. Counsel for the appellant/Op placed a reliance on National Insurance Co. vs Suresh Banu I(2007) CPJ 23(NC) wherein it was held that Under the Motor Vehicle Act, 1988, if a vehicle is used to carry passengers more than the permitted capacity, it is an offence.
May be that the authorities empowered to implement such law may not be taking any action; but, that law cannot be ignored while passing an order for getting compensation on the ground of damage to the vehicle due to accident. If the law is ignored, it encourages its violation.
8. Honble Supreme Court in B.V.Nagaraju vs. Oriental Insurance Co. II(1996) CPJ 18(SC) has held that in such cases it has to be seen as to whether the extra person in the bus could have contributed in the occurrence of the accident or nor. It was further held that the claim cannot be rejected merely on the construction of the exclusion clause.
9. In another case, Honble Sureme Court in National Insurance Co. vs Nitin Khandalwal in Civil Appeal No.3409/2008 has held that if the private vehicle had been used as taxi and the vehicle was insured for personal use and therefore, there was violation of the terms and conditions of the insurance. The repudiation was reversed by holding that in case of theft of the vehicle nature of the use of the vehicle cannot be looked into and therefore, there was no violation of the terms and conditions of the insurance policy. In case of United India insurance Co. Ltd. vs. Surjit Singh III (1999) CPJ Page 79 (NC) it has been held that it has to be seen whether the accident took place on account of the excess passengers. In another case reported as V.M. Rajashekaralah vs Oriental Insurance Co. Ltd. I (2007) CPJ 329 (NC) it was held by the Honble National Commission which was with regard to the repudiation of the claim on the ground of having violation of terms of the policy by carrying unauthorized passengers in lorry at relevant time. It was further held that carrying of 4-5 persons more than the capacity cannot be said to be cause of the accident, and therefore, repudiation by the Insurance Co. was unjustified.
10. The Ld. Counsel for the appellant has invited our attention towards the inquiry report dated 2.6.2007 of the Engineer where in it has been held that the Driver was negligent resulting loss of the human lives and the injuries. It may be stated that this report was not produced before the District Forum, therefore, the District Forum has no opportunity to consider it. It may further be added as to what was the reason, as to why it was not filed before the District Forum and what prevented the appellant to file this report. It was further argued by the Counsel for the Appellant that the Surveyor vide report dated 10.12.2007, has specifically found that in case of over loading, it would increase the momentum of the bus and thus while taking a turn at the hills sharp cuts would make the bus accident prone. The report of the surveyor with regard to the accident is only is opinion and there is no judicial finding to hold that carrying on 6 extra persons cause the accident. The OP/appellant has not filed any evidence to show that the accident occurred on account of the fact that there were six more passengers beyond the prescribed one in the vehicle at the time of the accident. Further it is specifically stated by the complainant that it was a difficult sharp turn and driver could not negotiate and the bus fell into the Khad and the accident took place. We may further be stated that there was nothing on the material on record to show that the Driver was negligent or rash in driving the bus and causing accident.
11. Under these circumstances, we are in complete agreement with the finding of the District Forum with regard to the amount of the policy i.e. Rs.6,33,221/-. The District Forum has also awarded interest @ 9% p.a. from the report of the Surveyor i.e. 10.12.2007 till the realization of the amount. We do not find any reason to interfere in this order.
12. However apart from the award of interest @ 9% p.a. the Forum awarded compensation of Rs.20,000/- and the litigation charges of Rs.5,000/-. We may state here that the District Forum has awarded interest @ 9% p.a. of the amount of policy, under these circumstances compensation and litigation charges cannot be awarded.
13. The appeal is partly allowed to the extent that sum awarded by the District Forum and the interest thereon is confirmed but the amount of Rs.20,000/- as compensation and Rs.5,000/- as litigation charges are hereby set aside. With this modification, the appeal is decided accordingly.
14. FDR, if any, deposited by the appellant be released in his favour after completing due formalities.
15. Copy of this order be provided to the parties free of cost and file be consigned to record room.
(Justice Barkat Ali Zaidi) President (V.K. Gupta) Member(Judicial) Arya