State Consumer Disputes Redressal Commission
Managing Director, National Ins.Co. & ... vs Babulal Suthar on 18 November, 2009
APPEAL NO: 1708/2005 1. Managing Director, National Insurance Co.Ltd., Head office- 3 Middletem Street, Kolkatta. 2. Managing Director, National Insurance Co. Ltd., Regional office- 10 Narain Singh Road, Jaipur. At present Jeevan Nidhi, IInd floor, Bhawani Singh Road, Jaipur. 3. Managing Director, National Insurance Co. Ltd., Divisional Office- Panch shakti circle, Sadulganj, Bikaner. Opposite parties-appellants Vs. Babulal Suthar s/o Mohan Lal Suthar, Gurudwara Road, Megha Market, Tilak Nagar, Bikaner. Complainant-respondent 18.11.09 Before: Mr.Justice Sunil Kumar Garg-President Mrs.Vimla Sethia-Member
Mr.Sanjeev Arora counsel for the appellants Mr.Manish Mathur counsel for the respondent 2 BY THE STATE COMMISSION This appeal has been filed by the appellants Insurance Co. against order dated 17.9.05 passed by the District Forum, Bikaner in complaint no. 103/2005 by the complaint of the complainant respondent was allowed against the appellants in the manner that the appellants were directed to pay a sum of Rs.60,960/- alongwith interest @ 9% p.a. w.e.f. 8.4.05 and further to pay a sum of Rs.500/- as costs of litigation.
2. It arises in the following circumstances-
That the complainant respondent had filed a complaint before the District Forum , Bikaner on 5.4.05 inter alia stating that his jeep bearing no. RJ 07 G 3802 was got insured with the appellants Insurance Co. for the period 20.5.03 to 19.5.04 and the policy was taken under the Goods Carrying Commercial Vehicle ( open ) policy and package bearing no. 371100/31/03/630 1000 for a sum of Rs. 1,80,000/- as IDV. It was further stated in the complaint that the said jeep had met with an accident on 26.1.04 near Jaitaran byepass Highway. It was further stated in the complaint that since on 26.1.04 there was republic day, therefore, some persons were allowed on humanitarian ground to be seated in the jeep and no consideration was taken from them. It was further stated in the complaint that a sum of Rs. 1,46,040/- were spent in repair of the jeep and for that a claim was preferred by the complainant before the office 3 of the appellants but that claim was repudiated by the appellants through letter dated 6.9.04 on the ground that since the vehicle was meant for carrying goods and not the passengers and since 5-6 persons were seated in the jeep at the time of accident and therefore, the claim was not payable to the complainant and further the claim was finally repudiated by the appellants through letter dated 30.9.04 (Ex. D-5) in the following manner-
" Repudiated due to violation of policy conditions, limitation as to use as stated in our repudiation letter dated 6.9.04."
Thereafter the present complaint was filed by the complainant.
A reply was filed by the appellants before the District Forum, Bikaner on 9.5.05 and they have taken the same pleas which were taken by them in the repudiation letters dated 30.9.04 and 6.9.04. Apart from that it was stated in the reply that since at the time of accident five or six persons were seated in the jeep, therefore, the fact that the same was being used for commercial purpose is well established . It was further stated in the reply that no doubt the surveyor appointed by the appellants Mr.Laxmi Narayan Vyas in his report dated 29.3.04 had assessed the loss to the tune of Rs.69,703.95 but on ground of violation of policy conditions and limitation, the claim was rightly 4 repudiated by the appellants and it was prayed that complaint be dismissed.
After hearing the parties, the District Forum, Bikaner through impugned order dated 17.9.05 had allowed the complaint of the complainant respondent as stated above inter alia holding that since the vehicle in question was goods carrying vehicle and from the record, the fact that some persons were seated in the jeep at the time of accident and some of them had received injuries is well established but the passengers who are allowed to be seated in the jeep were not responsible for the accident or had not contributed to the accident, therefore, the ground on which claim was repudiated by the appellants were not found justified and the amount assessed by the surveyor was ordered to be paid by the appellants to the complainant respondent.
Aggrieved from the said order dated 17.9.05 passed by the District Forum, Bikaner, this appeal has been filed by the appellants Insurance Company.
3. In this appeal the main contention of the learned counsel for the appellants is that since the complainant respondent had admitted in his complaint that because of the republic day some persons were allowed to be seated in the jeep, therefore, it could be inferred that they were allowed to be seated in the jeep after taking some consideration from them and thus it could be said that the jeep in question was used for 5 commercial purpose and therefore, claim of the complainant was rightly repudiated by the appellants and the District Forum had committed serious error and illegality in allowing the complaint of the complainant respondent . Hence, the impugned order could not be sustained and liable to be quashed and set aside and this appeal be allowed.
4. On the other hand the learned counsel for the respondent has supported the impugned order passed by the District Forum, Jhunjhunu.
5. We have heard the learned counsel appearing for the appellants as well as for the respondent and gone through the entire materials available on record.
6. There is no dispute on the point that the vehicle was got insured with the appellants Insurance Co. for the period 20.5.03 to 19.5.04 and the policy was taken under the Goods Carrying Commercial Vehicle ( open ) policy and package bearing no. 371100/31/03/630 1000 for a sum of Rs. 1,80,000/- as IDV.
7. There is no dispute on the point that the said jeep had met with an accident on 26.1.04 near Jaitaran byepass Highway.
8. There is no dispute on the point that the claim of the complainant respondent was repudiated by the appellants 6 through letters dated 30.9.04 and 6.9.04 on the grounds mentioned therein.
9. Today, a copy of the chargesheet had been filed by the appellnts which reveals that the accident had taken place between the jeep of the complainant and bus no.RJ 19 P 8200 and report was lodged with the Police Station Jaitaran, Pali by one Sampatraj and on that report police registered FIR bearing no. 22/04 under section 279, 336 and 337 IPC and the police after investigation had submitted a challan against the driver of the jeep Babulal for committing offence under section 279 IPC while a charge sheet was also filed against the driver of the bus Kailash for committing offence under section 279, 337 and 338 IPC.. Thus, contributory negligence of both the drivers were found by the police while filing the charge sheet.
10. Thus, in the facts and circumstances just narrated above, the question for consideration is whether the repudiation of claim of the complainant respondent by the appellants was justified or not or whether the findings of the District Forum by which complaint of complainant respondent was allowed could be sustained or not.
11. In our considered opinion, since the driver of the complainant had allowed some persons to be seated in the jeep , therefore, it could not be said that they were allowed to be seated in the jeep after taking fare from them as on record there is nothing on record to prove that fact and in absence of 7 that evidence, the fact that the jeep in question was being used for commercial purpose could not be found established. This is one aspect of the matter.
12. So far as the findings of the chargesheet are concerned.it may be stated here that the accident had taken place between the two vehicles i.e. jeep of the complainant and bus and challan had been filed by the police against both the drivers and thus it could easily be held that the driver of the jeep was not alone responsible for that accident .
13. Further , in this case, the persons sitting in the jeep could not be held responsible in any manner as the cause of accident was totally unrelated to carrying the five or six passengers in the jeep. Therefore, merely carrying some gracious passengers would not defeat the claim of the complainant untill and unless such persons concerned have increased the risk of accident.
14. Thus, merely by taking some passengers in a vehicle and when the vehicle in question was unloaded as per the statement of the learned counsel for the parties and further the cause of the accident was totally unrelated to the carrying of passengers in the jeep and looking to the fact that the vehicle in question at the time of accident was not being used for commercial purpose, it could not be said that any breach of terms and condition of the policy had taken place in this case and thus the appellants were not justified in repudiating the claim of the complainant respondent.
8On point of compensation
15. So far as the amount of compensation is concerned, the District Forum had awarded the amount of compensation on the basis of the report of the surveyor Laxminarayn Vyas dated 29.3.04 appointed by the appellants in which he had come to the conclusion that no doubt the loss was to the tune of Rs.69,703.95 but after minusing the value of salvage and excess clause, the District Forum had come to the conclusion that the net loss was to the tune of Rs.60,960/- and the same had been ordered to be paid by the appellants to the complainant respondent and thus we see no reason to interfere on point of compensation.
16. For the reasons stated above, the appellants were not justified in repudiating the claim of the complainant respondent and the appellants had repudiated the claim of the complainant respondent without any basis and on wrong assumption and in an arbitrary manner and repudiation of claim amounted to deficiency in service on the part of the appellants and the District Forum has rightly held so. The findings of the District Forum by which complaint of the complainant was allowed are based on correct appreciation of entire materials and evidence available on record and they do not suffer from any basic infirmity or illegality or perversity.
9Hence, no interference is called for with the same and this appeal deserves to be dismissed.
Accordingly, this appeal filed by the appellants is dismissed.
Member President APPEAL NO: 1708/2005 1. Managing
Director, National Insurance Co.Ltd., Head office- 3 Middletem Street, Kolkatta.
2. Managing Director, National Insurance Co. Ltd., Regional office- 10 Narain Singh Road, Jaipur.
At present Jeevan Nidhi, IInd floor, Bhawani Singh Road, Jaipur.
3. Managing Director, National Insurance Co. Ltd., Divisional Office- Panch shakti circle, Sadulganj, Bikaner.
Opposite parties-appellants Vs. Babulal Suthar s/o Mohan Lal Suthar, Gurudwara Road, Megha Market, Tilak Nagar, Bikaner.
Complainant-respondent 18.11.09 Before:
Mr.Justice Sunil Kumar Garg-President Mrs.Vimla Sethia-Member Mr.Sanjeev Arora counsel for the appellants Mr.Manish Mathur counsel for the respondent 2 BY THE STATE COMMISSION This appeal has been filed by the appellants Insurance Co. against order dated 17.9.05 passed by the District Forum, Bikaner in complaint no. 103/2005 by the complaint of the complainant respondent was allowed against the appellants in the manner that the appellants were directed to pay a sum of Rs.60,960/- alongwith interest @ 9% p.a. w.e.f. 8.4.05 and further to pay a sum of Rs.500/- as costs of litigation.
2. It arises in the following circumstances-
That the complainant respondent had filed a complaint before the District Forum , Bikaner on 5.4.05 inter alia stating that his jeep bearing no. RJ 07 G 3802 was got insured with the appellants Insurance Co. for the period 20.5.03 to 19.5.04 and the policy was taken under the Goods Carrying Commercial Vehicle ( open ) policy and package bearing no. 371100/31/03/630 1000 for a sum of Rs. 1,80,000/- as IDV. It was further stated in the complaint that the said jeep had met with an accident on 26.1.04 near Jaitaran byepass Highway. It was further stated in the complaint that since on 26.1.04 there was republic day, therefore, some persons were allowed on humanitarian ground to be seated in the jeep and no consideration was taken from them. It was further stated in the complaint that a sum of Rs. 1,46,040/- were spent in repair of the jeep and for that a claim was preferred by the complainant before the office 3 of the appellants but that claim was repudiated by the appellants through letter dated 6.9.04 on the ground that since the vehicle was meant for carrying goods and not the passengers and since 5-6 persons were seated in the jeep at the time of accident and therefore, the claim was not payable to the complainant and further the claim was finally repudiated by the appellants through letter dated 30.9.04 (Ex. D-5) in the following manner-
" Repudiated due to violation of policy conditions, limitation as to use as stated in our repudiation letter dated 6.9.04."
Thereafter the present complaint was filed by the complainant.
A reply was filed by the appellants before the District Forum, Bikaner on 9.5.05 and they have taken the same pleas which were taken by them in the repudiation letters dated 30.9.04 and 6.9.04. Apart from that it was stated in the reply that since at the time of accident five or six persons were seated in the jeep, therefore, the fact that the same was being used for commercial purpose is well established . It was further stated in the reply that no doubt the surveyor appointed by the appellants Mr.Laxmi Narayan Vyas in his report dated 29.3.04 had assessed the loss to the tune of Rs.69,703.95 but on ground of violation of policy conditions and limitation, the claim was rightly 4 repudiated by the appellants and it was prayed that complaint be dismissed.
After hearing the parties, the District Forum, Bikaner through impugned order dated 17.9.05 had allowed the complaint of the complainant respondent as stated above inter alia holding that since the vehicle in question was goods carrying vehicle and from the record, the fact that some persons were seated in the jeep at the time of accident and some of them had received injuries is well established but the passengers who are allowed to be seated in the jeep were not responsible for the accident or had not contributed to the accident, therefore, the ground on which claim was repudiated by the appellants were not found justified and the amount assessed by the surveyor was ordered to be paid by the appellants to the complainant respondent.
Aggrieved from the said order dated 17.9.05 passed by the District Forum, Bikaner, this appeal has been filed by the appellants Insurance Company.
3. In this appeal the main contention of the learned counsel for the appellants is that since the complainant respondent had admitted in his complaint that because of the republic day some persons were allowed to be seated in the jeep, therefore, it could be inferred that they were allowed to be seated in the jeep after taking some consideration from them and thus it could be said that the jeep in question was used for 5 commercial purpose and therefore, claim of the complainant was rightly repudiated by the appellants and the District Forum had committed serious error and illegality in allowing the complaint of the complainant respondent . Hence, the impugned order could not be sustained and liable to be quashed and set aside and this appeal be allowed.
4. On the other hand the learned counsel for the respondent has supported the impugned order passed by the District Forum, Jhunjhunu.
5. We have heard the learned counsel appearing for the appellants as well as for the respondent and gone through the entire materials available on record.
6. There is no dispute on the point that the vehicle was got insured with the appellants Insurance Co. for the period 20.5.03 to 19.5.04 and the policy was taken under the Goods Carrying Commercial Vehicle ( open ) policy and package bearing no. 371100/31/03/630 1000 for a sum of Rs. 1,80,000/- as IDV.
7. There is no dispute on the point that the said jeep had met with an accident on 26.1.04 near Jaitaran byepass Highway.
8. There is no dispute on the point that the claim of the complainant respondent was repudiated by the appellants 6 through letters dated 30.9.04 and 6.9.04 on the grounds mentioned therein.
9. Today, a copy of the chargesheet had been filed by the appellnts which reveals that the accident had taken place between the jeep of the complainant and bus no.RJ 19 P 8200 and report was lodged with the Police Station Jaitaran, Pali by one Sampatraj and on that report police registered FIR bearing no. 22/04 under section 279, 336 and 337 IPC and the police after investigation had submitted a challan against the driver of the jeep Babulal for committing offence under section 279 IPC while a charge sheet was also filed against the driver of the bus Kailash for committing offence under section 279, 337 and 338 IPC.. Thus, contributory negligence of both the drivers were found by the police while filing the charge sheet.
10. Thus, in the facts and circumstances just narrated above, the question for consideration is whether the repudiation of claim of the complainant respondent by the appellants was justified or not or whether the findings of the District Forum by which complaint of complainant respondent was allowed could be sustained or not.
11. In our considered opinion, since the driver of the complainant had allowed some persons to be seated in the jeep , therefore, it could not be said that they were allowed to be seated in the jeep after taking fare from them as on record there is nothing on record to prove that fact and in absence of 7 that evidence, the fact that the jeep in question was being used for commercial purpose could not be found established. This is one aspect of the matter.
12. So far as the findings of the chargesheet are concerned.it may be stated here that the accident had taken place between the two vehicles i.e. jeep of the complainant and bus and challan had been filed by the police against both the drivers and thus it could easily be held that the driver of the jeep was not alone responsible for that accident .
13. Further , in this case, the persons sitting in the jeep could not be held responsible in any manner as the cause of accident was totally unrelated to carrying the five or six passengers in the jeep. Therefore, merely carrying some gracious passengers would not defeat the claim of the complainant untill and unless such persons concerned have increased the risk of accident.
14. Thus, merely by taking some passengers in a vehicle and when the vehicle in question was unloaded as per the statement of the learned counsel for the parties and further the cause of the accident was totally unrelated to the carrying of passengers in the jeep and looking to the fact that the vehicle in question at the time of accident was not being used for commercial purpose, it could not be said that any breach of terms and condition of the policy had taken place in this case and thus the appellants were not justified in repudiating the claim of the complainant respondent.
8On point of compensation
15. So far as the amount of compensation is concerned, the District Forum had awarded the amount of compensation on the basis of the report of the surveyor Laxminarayn Vyas dated 29.3.04 appointed by the appellants in which he had come to the conclusion that no doubt the loss was to the tune of Rs.69,703.95 but after minusing the value of salvage and excess clause, the District Forum had come to the conclusion that the net loss was to the tune of Rs.60,960/- and the same had been ordered to be paid by the appellants to the complainant respondent and thus we see no reason to interfere on point of compensation.
16. For the reasons stated above, the appellants were not justified in repudiating the claim of the complainant respondent and the appellants had repudiated the claim of the complainant respondent without any basis and on wrong assumption and in an arbitrary manner and repudiation of claim amounted to deficiency in service on the part of the appellants and the District Forum has rightly held so. The findings of the District Forum by which complaint of the complainant was allowed are based on correct appreciation of entire materials and evidence available on record and they do not suffer from any basic infirmity or illegality or perversity.
9Hence, no interference is called for with the same and this appeal deserves to be dismissed.
Accordingly, this appeal filed by the appellants is dismissed.
Member President APPEAL NO: 1708/2005 1. Managing
Director, National Insurance Co.Ltd., Head office- 3 Middletem Street, Kolkatta.
2. Managing Director, National Insurance Co. Ltd., Regional office- 10 Narain Singh Road, Jaipur.
At present Jeevan Nidhi, IInd floor, Bhawani Singh Road, Jaipur.
3. Managing Director, National Insurance Co. Ltd., Divisional Office- Panch shakti circle, Sadulganj, Bikaner.
Opposite parties-appellants Vs. Babulal Suthar s/o Mohan Lal Suthar, Gurudwara Road, Megha Market, Tilak Nagar, Bikaner.
Complainant-respondent 18.11.09 Before:
Mr.Justice Sunil Kumar Garg-President Mrs.Vimla Sethia-Member Mr.Sanjeev Arora counsel for the appellants Mr.Manish Mathur counsel for the respondent 2 BY THE STATE COMMISSION This appeal has been filed by the appellants Insurance Co. against order dated 17.9.05 passed by the District Forum, Bikaner in complaint no. 103/2005 by the complaint of the complainant respondent was allowed against the appellants in the manner that the appellants were directed to pay a sum of Rs.60,960/- alongwith interest @ 9% p.a. w.e.f. 8.4.05 and further to pay a sum of Rs.500/- as costs of litigation.
2. It arises in the following circumstances-
That the complainant respondent had filed a complaint before the District Forum , Bikaner on 5.4.05 inter alia stating that his jeep bearing no. RJ 07 G 3802 was got insured with the appellants Insurance Co. for the period 20.5.03 to 19.5.04 and the policy was taken under the Goods Carrying Commercial Vehicle ( open ) policy and package bearing no. 371100/31/03/630 1000 for a sum of Rs. 1,80,000/- as IDV. It was further stated in the complaint that the said jeep had met with an accident on 26.1.04 near Jaitaran byepass Highway. It was further stated in the complaint that since on 26.1.04 there was republic day, therefore, some persons were allowed on humanitarian ground to be seated in the jeep and no consideration was taken from them. It was further stated in the complaint that a sum of Rs. 1,46,040/- were spent in repair of the jeep and for that a claim was preferred by the complainant before the office 3 of the appellants but that claim was repudiated by the appellants through letter dated 6.9.04 on the ground that since the vehicle was meant for carrying goods and not the passengers and since 5-6 persons were seated in the jeep at the time of accident and therefore, the claim was not payable to the complainant and further the claim was finally repudiated by the appellants through letter dated 30.9.04 (Ex. D-5) in the following manner-
" Repudiated due to violation of policy conditions, limitation as to use as stated in our repudiation letter dated 6.9.04."
Thereafter the present complaint was filed by the complainant.
A reply was filed by the appellants before the District Forum, Bikaner on 9.5.05 and they have taken the same pleas which were taken by them in the repudiation letters dated 30.9.04 and 6.9.04. Apart from that it was stated in the reply that since at the time of accident five or six persons were seated in the jeep, therefore, the fact that the same was being used for commercial purpose is well established . It was further stated in the reply that no doubt the surveyor appointed by the appellants Mr.Laxmi Narayan Vyas in his report dated 29.3.04 had assessed the loss to the tune of Rs.69,703.95 but on ground of violation of policy conditions and limitation, the claim was rightly 4 repudiated by the appellants and it was prayed that complaint be dismissed.
After hearing the parties, the District Forum, Bikaner through impugned order dated 17.9.05 had allowed the complaint of the complainant respondent as stated above inter alia holding that since the vehicle in question was goods carrying vehicle and from the record, the fact that some persons were seated in the jeep at the time of accident and some of them had received injuries is well established but the passengers who are allowed to be seated in the jeep were not responsible for the accident or had not contributed to the accident, therefore, the ground on which claim was repudiated by the appellants were not found justified and the amount assessed by the surveyor was ordered to be paid by the appellants to the complainant respondent.
Aggrieved from the said order dated 17.9.05 passed by the District Forum, Bikaner, this appeal has been filed by the appellants Insurance Company.
3. In this appeal the main contention of the learned counsel for the appellants is that since the complainant respondent had admitted in his complaint that because of the republic day some persons were allowed to be seated in the jeep, therefore, it could be inferred that they were allowed to be seated in the jeep after taking some consideration from them and thus it could be said that the jeep in question was used for 5 commercial purpose and therefore, claim of the complainant was rightly repudiated by the appellants and the District Forum had committed serious error and illegality in allowing the complaint of the complainant respondent . Hence, the impugned order could not be sustained and liable to be quashed and set aside and this appeal be allowed.
4. On the other hand the learned counsel for the respondent has supported the impugned order passed by the District Forum, Jhunjhunu.
5. We have heard the learned counsel appearing for the appellants as well as for the respondent and gone through the entire materials available on record.
6. There is no dispute on the point that the vehicle was got insured with the appellants Insurance Co. for the period 20.5.03 to 19.5.04 and the policy was taken under the Goods Carrying Commercial Vehicle ( open ) policy and package bearing no. 371100/31/03/630 1000 for a sum of Rs. 1,80,000/- as IDV.
7. There is no dispute on the point that the said jeep had met with an accident on 26.1.04 near Jaitaran byepass Highway.
8. There is no dispute on the point that the claim of the complainant respondent was repudiated by the appellants 6 through letters dated 30.9.04 and 6.9.04 on the grounds mentioned therein.
9. Today, a copy of the chargesheet had been filed by the appellnts which reveals that the accident had taken place between the jeep of the complainant and bus no.RJ 19 P 8200 and report was lodged with the Police Station Jaitaran, Pali by one Sampatraj and on that report police registered FIR bearing no. 22/04 under section 279, 336 and 337 IPC and the police after investigation had submitted a challan against the driver of the jeep Babulal for committing offence under section 279 IPC while a charge sheet was also filed against the driver of the bus Kailash for committing offence under section 279, 337 and 338 IPC.. Thus, contributory negligence of both the drivers were found by the police while filing the charge sheet.
10. Thus, in the facts and circumstances just narrated above, the question for consideration is whether the repudiation of claim of the complainant respondent by the appellants was justified or not or whether the findings of the District Forum by which complaint of complainant respondent was allowed could be sustained or not.
11. In our considered opinion, since the driver of the complainant had allowed some persons to be seated in the jeep , therefore, it could not be said that they were allowed to be seated in the jeep after taking fare from them as on record there is nothing on record to prove that fact and in absence of 7 that evidence, the fact that the jeep in question was being used for commercial purpose could not be found established. This is one aspect of the matter.
12. So far as the findings of the chargesheet are concerned.it may be stated here that the accident had taken place between the two vehicles i.e. jeep of the complainant and bus and challan had been filed by the police against both the drivers and thus it could easily be held that the driver of the jeep was not alone responsible for that accident .
13. Further , in this case, the persons sitting in the jeep could not be held responsible in any manner as the cause of accident was totally unrelated to carrying the five or six passengers in the jeep. Therefore, merely carrying some gracious passengers would not defeat the claim of the complainant untill and unless such persons concerned have increased the risk of accident.
14. Thus, merely by taking some passengers in a vehicle and when the vehicle in question was unloaded as per the statement of the learned counsel for the parties and further the cause of the accident was totally unrelated to the carrying of passengers in the jeep and looking to the fact that the vehicle in question at the time of accident was not being used for commercial purpose, it could not be said that any breach of terms and condition of the policy had taken place in this case and thus the appellants were not justified in repudiating the claim of the complainant respondent.
8On point of compensation
15. So far as the amount of compensation is concerned, the District Forum had awarded the amount of compensation on the basis of the report of the surveyor Laxminarayn Vyas dated 29.3.04 appointed by the appellants in which he had come to the conclusion that no doubt the loss was to the tune of Rs.69,703.95 but after minusing the value of salvage and excess clause, the District Forum had come to the conclusion that the net loss was to the tune of Rs.60,960/- and the same had been ordered to be paid by the appellants to the complainant respondent and thus we see no reason to interfere on point of compensation.
16. For the reasons stated above, the appellants were not justified in repudiating the claim of the complainant respondent and the appellants had repudiated the claim of the complainant respondent without any basis and on wrong assumption and in an arbitrary manner and repudiation of claim amounted to deficiency in service on the part of the appellants and the District Forum has rightly held so. The findings of the District Forum by which complaint of the complainant was allowed are based on correct appreciation of entire materials and evidence available on record and they do not suffer from any basic infirmity or illegality or perversity.
9Hence, no interference is called for with the same and this appeal deserves to be dismissed.
Accordingly, this appeal filed by the appellants is dismissed.
Member President APPEAL NO: 1708/2005 1. Managing
Director, National Insurance Co.Ltd., Head office- 3 Middletem Street, Kolkatta.
2. Managing Director, National Insurance Co. Ltd., Regional office- 10 Narain Singh Road, Jaipur.
At present Jeevan Nidhi, IInd floor, Bhawani Singh Road, Jaipur.
3. Managing Director, National Insurance Co. Ltd., Divisional Office- Panch shakti circle, Sadulganj, Bikaner.
Opposite parties-appellants Vs. Babulal Suthar s/o Mohan Lal Suthar, Gurudwara Road, Megha Market, Tilak Nagar, Bikaner.
Complainant-respondent 18.11.09 Before:
Mr.Justice Sunil Kumar Garg-President Mrs.Vimla Sethia-Member Mr.Sanjeev Arora counsel for the appellants Mr.Manish Mathur counsel for the respondent 2 BY THE STATE COMMISSION This appeal has been filed by the appellants Insurance Co. against order dated 17.9.05 passed by the District Forum, Bikaner in complaint no. 103/2005 by the complaint of the complainant respondent was allowed against the appellants in the manner that the appellants were directed to pay a sum of Rs.60,960/- alongwith interest @ 9% p.a. w.e.f. 8.4.05 and further to pay a sum of Rs.500/- as costs of litigation.
2. It arises in the following circumstances-
That the complainant respondent had filed a complaint before the District Forum , Bikaner on 5.4.05 inter alia stating that his jeep bearing no. RJ 07 G 3802 was got insured with the appellants Insurance Co. for the period 20.5.03 to 19.5.04 and the policy was taken under the Goods Carrying Commercial Vehicle ( open ) policy and package bearing no. 371100/31/03/630 1000 for a sum of Rs. 1,80,000/- as IDV. It was further stated in the complaint that the said jeep had met with an accident on 26.1.04 near Jaitaran byepass Highway. It was further stated in the complaint that since on 26.1.04 there was republic day, therefore, some persons were allowed on humanitarian ground to be seated in the jeep and no consideration was taken from them. It was further stated in the complaint that a sum of Rs. 1,46,040/- were spent in repair of the jeep and for that a claim was preferred by the complainant before the office 3 of the appellants but that claim was repudiated by the appellants through letter dated 6.9.04 on the ground that since the vehicle was meant for carrying goods and not the passengers and since 5-6 persons were seated in the jeep at the time of accident and therefore, the claim was not payable to the complainant and further the claim was finally repudiated by the appellants through letter dated 30.9.04 (Ex. D-5) in the following manner-
" Repudiated due to violation of policy conditions, limitation as to use as stated in our repudiation letter dated 6.9.04."
Thereafter the present complaint was filed by the complainant.
A reply was filed by the appellants before the District Forum, Bikaner on 9.5.05 and they have taken the same pleas which were taken by them in the repudiation letters dated 30.9.04 and 6.9.04. Apart from that it was stated in the reply that since at the time of accident five or six persons were seated in the jeep, therefore, the fact that the same was being used for commercial purpose is well established . It was further stated in the reply that no doubt the surveyor appointed by the appellants Mr.Laxmi Narayan Vyas in his report dated 29.3.04 had assessed the loss to the tune of Rs.69,703.95 but on ground of violation of policy conditions and limitation, the claim was rightly 4 repudiated by the appellants and it was prayed that complaint be dismissed.
After hearing the parties, the District Forum, Bikaner through impugned order dated 17.9.05 had allowed the complaint of the complainant respondent as stated above inter alia holding that since the vehicle in question was goods carrying vehicle and from the record, the fact that some persons were seated in the jeep at the time of accident and some of them had received injuries is well established but the passengers who are allowed to be seated in the jeep were not responsible for the accident or had not contributed to the accident, therefore, the ground on which claim was repudiated by the appellants were not found justified and the amount assessed by the surveyor was ordered to be paid by the appellants to the complainant respondent.
Aggrieved from the said order dated 17.9.05 passed by the District Forum, Bikaner, this appeal has been filed by the appellants Insurance Company.
3. In this appeal the main contention of the learned counsel for the appellants is that since the complainant respondent had admitted in his complaint that because of the republic day some persons were allowed to be seated in the jeep, therefore, it could be inferred that they were allowed to be seated in the jeep after taking some consideration from them and thus it could be said that the jeep in question was used for 5 commercial purpose and therefore, claim of the complainant was rightly repudiated by the appellants and the District Forum had committed serious error and illegality in allowing the complaint of the complainant respondent . Hence, the impugned order could not be sustained and liable to be quashed and set aside and this appeal be allowed.
4. On the other hand the learned counsel for the respondent has supported the impugned order passed by the District Forum, Jhunjhunu.
5. We have heard the learned counsel appearing for the appellants as well as for the respondent and gone through the entire materials available on record.
6. There is no dispute on the point that the vehicle was got insured with the appellants Insurance Co. for the period 20.5.03 to 19.5.04 and the policy was taken under the Goods Carrying Commercial Vehicle ( open ) policy and package bearing no. 371100/31/03/630 1000 for a sum of Rs. 1,80,000/- as IDV.
7. There is no dispute on the point that the said jeep had met with an accident on 26.1.04 near Jaitaran byepass Highway.
8. There is no dispute on the point that the claim of the complainant respondent was repudiated by the appellants 6 through letters dated 30.9.04 and 6.9.04 on the grounds mentioned therein.
9. Today, a copy of the chargesheet had been filed by the appellnts which reveals that the accident had taken place between the jeep of the complainant and bus no.RJ 19 P 8200 and report was lodged with the Police Station Jaitaran, Pali by one Sampatraj and on that report police registered FIR bearing no. 22/04 under section 279, 336 and 337 IPC and the police after investigation had submitted a challan against the driver of the jeep Babulal for committing offence under section 279 IPC while a charge sheet was also filed against the driver of the bus Kailash for committing offence under section 279, 337 and 338 IPC.. Thus, contributory negligence of both the drivers were found by the police while filing the charge sheet.
10. Thus, in the facts and circumstances just narrated above, the question for consideration is whether the repudiation of claim of the complainant respondent by the appellants was justified or not or whether the findings of the District Forum by which complaint of complainant respondent was allowed could be sustained or not.
11. In our considered opinion, since the driver of the complainant had allowed some persons to be seated in the jeep , therefore, it could not be said that they were allowed to be seated in the jeep after taking fare from them as on record there is nothing on record to prove that fact and in absence of 7 that evidence, the fact that the jeep in question was being used for commercial purpose could not be found established. This is one aspect of the matter.
12. So far as the findings of the chargesheet are concerned.it may be stated here that the accident had taken place between the two vehicles i.e. jeep of the complainant and bus and challan had been filed by the police against both the drivers and thus it could easily be held that the driver of the jeep was not alone responsible for that accident .
13. Further , in this case, the persons sitting in the jeep could not be held responsible in any manner as the cause of accident was totally unrelated to carrying the five or six passengers in the jeep. Therefore, merely carrying some gracious passengers would not defeat the claim of the complainant untill and unless such persons concerned have increased the risk of accident.
14. Thus, merely by taking some passengers in a vehicle and when the vehicle in question was unloaded as per the statement of the learned counsel for the parties and further the cause of the accident was totally unrelated to the carrying of passengers in the jeep and looking to the fact that the vehicle in question at the time of accident was not being used for commercial purpose, it could not be said that any breach of terms and condition of the policy had taken place in this case and thus the appellants were not justified in repudiating the claim of the complainant respondent.
8On point of compensation
15. So far as the amount of compensation is concerned, the District Forum had awarded the amount of compensation on the basis of the report of the surveyor Laxminarayn Vyas dated 29.3.04 appointed by the appellants in which he had come to the conclusion that no doubt the loss was to the tune of Rs.69,703.95 but after minusing the value of salvage and excess clause, the District Forum had come to the conclusion that the net loss was to the tune of Rs.60,960/- and the same had been ordered to be paid by the appellants to the complainant respondent and thus we see no reason to interfere on point of compensation.
16. For the reasons stated above, the appellants were not justified in repudiating the claim of the complainant respondent and the appellants had repudiated the claim of the complainant respondent without any basis and on wrong assumption and in an arbitrary manner and repudiation of claim amounted to deficiency in service on the part of the appellants and the District Forum has rightly held so. The findings of the District Forum by which complaint of the complainant was allowed are based on correct appreciation of entire materials and evidence available on record and they do not suffer from any basic infirmity or illegality or perversity.
9Hence, no interference is called for with the same and this appeal deserves to be dismissed.
Accordingly, this appeal filed by the appellants is dismissed.
Member President APPEAL NO: 1708/2005 1. Managing
Director, National Insurance Co.Ltd., Head office- 3 Middletem Street, Kolkatta.
2. Managing Director, National Insurance Co. Ltd., Regional office- 10 Narain Singh Road, Jaipur.
At present Jeevan Nidhi, IInd floor, Bhawani Singh Road, Jaipur.
3. Managing Director, National Insurance Co. Ltd., Divisional Office- Panch shakti circle, Sadulganj, Bikaner.
Opposite parties-appellants Vs. Babulal Suthar s/o Mohan Lal Suthar, Gurudwara Road, Megha Market, Tilak Nagar, Bikaner.
Complainant-respondent 18.11.09 Before:
Mr.Justice Sunil Kumar Garg-President Mrs.Vimla Sethia-Member Mr.Sanjeev Arora counsel for the appellants Mr.Manish Mathur counsel for the respondent 2 BY THE STATE COMMISSION This appeal has been filed by the appellants Insurance Co. against order dated 17.9.05 passed by the District Forum, Bikaner in complaint no. 103/2005 by the complaint of the complainant respondent was allowed against the appellants in the manner that the appellants were directed to pay a sum of Rs.60,960/- alongwith interest @ 9% p.a. w.e.f. 8.4.05 and further to pay a sum of Rs.500/- as costs of litigation.
2. It arises in the following circumstances-
That the complainant respondent had filed a complaint before the District Forum , Bikaner on 5.4.05 inter alia stating that his jeep bearing no. RJ 07 G 3802 was got insured with the appellants Insurance Co. for the period 20.5.03 to 19.5.04 and the policy was taken under the Goods Carrying Commercial Vehicle ( open ) policy and package bearing no. 371100/31/03/630 1000 for a sum of Rs. 1,80,000/- as IDV. It was further stated in the complaint that the said jeep had met with an accident on 26.1.04 near Jaitaran byepass Highway. It was further stated in the complaint that since on 26.1.04 there was republic day, therefore, some persons were allowed on humanitarian ground to be seated in the jeep and no consideration was taken from them. It was further stated in the complaint that a sum of Rs. 1,46,040/- were spent in repair of the jeep and for that a claim was preferred by the complainant before the office 3 of the appellants but that claim was repudiated by the appellants through letter dated 6.9.04 on the ground that since the vehicle was meant for carrying goods and not the passengers and since 5-6 persons were seated in the jeep at the time of accident and therefore, the claim was not payable to the complainant and further the claim was finally repudiated by the appellants through letter dated 30.9.04 (Ex. D-5) in the following manner-
" Repudiated due to violation of policy conditions, limitation as to use as stated in our repudiation letter dated 6.9.04."
Thereafter the present complaint was filed by the complainant.
A reply was filed by the appellants before the District Forum, Bikaner on 9.5.05 and they have taken the same pleas which were taken by them in the repudiation letters dated 30.9.04 and 6.9.04. Apart from that it was stated in the reply that since at the time of accident five or six persons were seated in the jeep, therefore, the fact that the same was being used for commercial purpose is well established . It was further stated in the reply that no doubt the surveyor appointed by the appellants Mr.Laxmi Narayan Vyas in his report dated 29.3.04 had assessed the loss to the tune of Rs.69,703.95 but on ground of violation of policy conditions and limitation, the claim was rightly 4 repudiated by the appellants and it was prayed that complaint be dismissed.
After hearing the parties, the District Forum, Bikaner through impugned order dated 17.9.05 had allowed the complaint of the complainant respondent as stated above inter alia holding that since the vehicle in question was goods carrying vehicle and from the record, the fact that some persons were seated in the jeep at the time of accident and some of them had received injuries is well established but the passengers who are allowed to be seated in the jeep were not responsible for the accident or had not contributed to the accident, therefore, the ground on which claim was repudiated by the appellants were not found justified and the amount assessed by the surveyor was ordered to be paid by the appellants to the complainant respondent.
Aggrieved from the said order dated 17.9.05 passed by the District Forum, Bikaner, this appeal has been filed by the appellants Insurance Company.
3. In this appeal the main contention of the learned counsel for the appellants is that since the complainant respondent had admitted in his complaint that because of the republic day some persons were allowed to be seated in the jeep, therefore, it could be inferred that they were allowed to be seated in the jeep after taking some consideration from them and thus it could be said that the jeep in question was used for 5 commercial purpose and therefore, claim of the complainant was rightly repudiated by the appellants and the District Forum had committed serious error and illegality in allowing the complaint of the complainant respondent . Hence, the impugned order could not be sustained and liable to be quashed and set aside and this appeal be allowed.
4. On the other hand the learned counsel for the respondent has supported the impugned order passed by the District Forum, Jhunjhunu.
5. We have heard the learned counsel appearing for the appellants as well as for the respondent and gone through the entire materials available on record.
6. There is no dispute on the point that the vehicle was got insured with the appellants Insurance Co. for the period 20.5.03 to 19.5.04 and the policy was taken under the Goods Carrying Commercial Vehicle ( open ) policy and package bearing no. 371100/31/03/630 1000 for a sum of Rs. 1,80,000/- as IDV.
7. There is no dispute on the point that the said jeep had met with an accident on 26.1.04 near Jaitaran byepass Highway.
8. There is no dispute on the point that the claim of the complainant respondent was repudiated by the appellants 6 through letters dated 30.9.04 and 6.9.04 on the grounds mentioned therein.
9. Today, a copy of the chargesheet had been filed by the appellnts which reveals that the accident had taken place between the jeep of the complainant and bus no.RJ 19 P 8200 and report was lodged with the Police Station Jaitaran, Pali by one Sampatraj and on that report police registered FIR bearing no. 22/04 under section 279, 336 and 337 IPC and the police after investigation had submitted a challan against the driver of the jeep Babulal for committing offence under section 279 IPC while a charge sheet was also filed against the driver of the bus Kailash for committing offence under section 279, 337 and 338 IPC.. Thus, contributory negligence of both the drivers were found by the police while filing the charge sheet.
10. Thus, in the facts and circumstances just narrated above, the question for consideration is whether the repudiation of claim of the complainant respondent by the appellants was justified or not or whether the findings of the District Forum by which complaint of complainant respondent was allowed could be sustained or not.
11. In our considered opinion, since the driver of the complainant had allowed some persons to be seated in the jeep , therefore, it could not be said that they were allowed to be seated in the jeep after taking fare from them as on record there is nothing on record to prove that fact and in absence of 7 that evidence, the fact that the jeep in question was being used for commercial purpose could not be found established. This is one aspect of the matter.
12. So far as the findings of the chargesheet are concerned.it may be stated here that the accident had taken place between the two vehicles i.e. jeep of the complainant and bus and challan had been filed by the police against both the drivers and thus it could easily be held that the driver of the jeep was not alone responsible for that accident .
13. Further , in this case, the persons sitting in the jeep could not be held responsible in any manner as the cause of accident was totally unrelated to carrying the five or six passengers in the jeep. Therefore, merely carrying some gracious passengers would not defeat the claim of the complainant untill and unless such persons concerned have increased the risk of accident.
14. Thus, merely by taking some passengers in a vehicle and when the vehicle in question was unloaded as per the statement of the learned counsel for the parties and further the cause of the accident was totally unrelated to the carrying of passengers in the jeep and looking to the fact that the vehicle in question at the time of accident was not being used for commercial purpose, it could not be said that any breach of terms and condition of the policy had taken place in this case and thus the appellants were not justified in repudiating the claim of the complainant respondent.
8On point of compensation
15. So far as the amount of compensation is concerned, the District Forum had awarded the amount of compensation on the basis of the report of the surveyor Laxminarayn Vyas dated 29.3.04 appointed by the appellants in which he had come to the conclusion that no doubt the loss was to the tune of Rs.69,703.95 but after minusing the value of salvage and excess clause, the District Forum had come to the conclusion that the net loss was to the tune of Rs.60,960/- and the same had been ordered to be paid by the appellants to the complainant respondent and thus we see no reason to interfere on point of compensation.
16. For the reasons stated above, the appellants were not justified in repudiating the claim of the complainant respondent and the appellants had repudiated the claim of the complainant respondent without any basis and on wrong assumption and in an arbitrary manner and repudiation of claim amounted to deficiency in service on the part of the appellants and the District Forum has rightly held so. The findings of the District Forum by which complaint of the complainant was allowed are based on correct appreciation of entire materials and evidence available on record and they do not suffer from any basic infirmity or illegality or perversity.
9Hence, no interference is called for with the same and this appeal deserves to be dismissed.
Accordingly, this appeal filed by the appellants is dismissed.
Member President APPEAL NO: 1708/2005 1. Managing
Director, National Insurance Co.Ltd., Head office- 3 Middletem Street, Kolkatta.
2. Managing Director, National Insurance Co. Ltd., Regional office- 10 Narain Singh Road, Jaipur.
At present Jeevan Nidhi, IInd floor, Bhawani Singh Road, Jaipur.
3. Managing Director, National Insurance Co. Ltd., Divisional Office- Panch shakti circle, Sadulganj, Bikaner.
Opposite parties-appellants Vs. Babulal Suthar s/o Mohan Lal Suthar, Gurudwara Road, Megha Market, Tilak Nagar, Bikaner.
Complainant-respondent 18.11.09 Before:
Mr.Justice Sunil Kumar Garg-President Mrs.Vimla Sethia-Member Mr.Sanjeev Arora counsel for the appellants Mr.Manish Mathur counsel for the respondent 2 BY THE STATE COMMISSION This appeal has been filed by the appellants Insurance Co. against order dated 17.9.05 passed by the District Forum, Bikaner in complaint no. 103/2005 by the complaint of the complainant respondent was allowed against the appellants in the manner that the appellants were directed to pay a sum of Rs.60,960/- alongwith interest @ 9% p.a. w.e.f. 8.4.05 and further to pay a sum of Rs.500/- as costs of litigation.
2. It arises in the following circumstances-
That the complainant respondent had filed a complaint before the District Forum , Bikaner on 5.4.05 inter alia stating that his jeep bearing no. RJ 07 G 3802 was got insured with the appellants Insurance Co. for the period 20.5.03 to 19.5.04 and the policy was taken under the Goods Carrying Commercial Vehicle ( open ) policy and package bearing no. 371100/31/03/630 1000 for a sum of Rs. 1,80,000/- as IDV. It was further stated in the complaint that the said jeep had met with an accident on 26.1.04 near Jaitaran byepass Highway. It was further stated in the complaint that since on 26.1.04 there was republic day, therefore, some persons were allowed on humanitarian ground to be seated in the jeep and no consideration was taken from them. It was further stated in the complaint that a sum of Rs. 1,46,040/- were spent in repair of the jeep and for that a claim was preferred by the complainant before the office 3 of the appellants but that claim was repudiated by the appellants through letter dated 6.9.04 on the ground that since the vehicle was meant for carrying goods and not the passengers and since 5-6 persons were seated in the jeep at the time of accident and therefore, the claim was not payable to the complainant and further the claim was finally repudiated by the appellants through letter dated 30.9.04 (Ex. D-5) in the following manner-
" Repudiated due to violation of policy conditions, limitation as to use as stated in our repudiation letter dated 6.9.04."
Thereafter the present complaint was filed by the complainant.
A reply was filed by the appellants before the District Forum, Bikaner on 9.5.05 and they have taken the same pleas which were taken by them in the repudiation letters dated 30.9.04 and 6.9.04. Apart from that it was stated in the reply that since at the time of accident five or six persons were seated in the jeep, therefore, the fact that the same was being used for commercial purpose is well established . It was further stated in the reply that no doubt the surveyor appointed by the appellants Mr.Laxmi Narayan Vyas in his report dated 29.3.04 had assessed the loss to the tune of Rs.69,703.95 but on ground of violation of policy conditions and limitation, the claim was rightly 4 repudiated by the appellants and it was prayed that complaint be dismissed.
After hearing the parties, the District Forum, Bikaner through impugned order dated 17.9.05 had allowed the complaint of the complainant respondent as stated above inter alia holding that since the vehicle in question was goods carrying vehicle and from the record, the fact that some persons were seated in the jeep at the time of accident and some of them had received injuries is well established but the passengers who are allowed to be seated in the jeep were not responsible for the accident or had not contributed to the accident, therefore, the ground on which claim was repudiated by the appellants were not found justified and the amount assessed by the surveyor was ordered to be paid by the appellants to the complainant respondent.
Aggrieved from the said order dated 17.9.05 passed by the District Forum, Bikaner, this appeal has been filed by the appellants Insurance Company.
3. In this appeal the main contention of the learned counsel for the appellants is that since the complainant respondent had admitted in his complaint that because of the republic day some persons were allowed to be seated in the jeep, therefore, it could be inferred that they were allowed to be seated in the jeep after taking some consideration from them and thus it could be said that the jeep in question was used for 5 commercial purpose and therefore, claim of the complainant was rightly repudiated by the appellants and the District Forum had committed serious error and illegality in allowing the complaint of the complainant respondent . Hence, the impugned order could not be sustained and liable to be quashed and set aside and this appeal be allowed.
4. On the other hand the learned counsel for the respondent has supported the impugned order passed by the District Forum, Jhunjhunu.
5. We have heard the learned counsel appearing for the appellants as well as for the respondent and gone through the entire materials available on record.
6. There is no dispute on the point that the vehicle was got insured with the appellants Insurance Co. for the period 20.5.03 to 19.5.04 and the policy was taken under the Goods Carrying Commercial Vehicle ( open ) policy and package bearing no. 371100/31/03/630 1000 for a sum of Rs. 1,80,000/- as IDV.
7. There is no dispute on the point that the said jeep had met with an accident on 26.1.04 near Jaitaran byepass Highway.
8. There is no dispute on the point that the claim of the complainant respondent was repudiated by the appellants 6 through letters dated 30.9.04 and 6.9.04 on the grounds mentioned therein.
9. Today, a copy of the chargesheet had been filed by the appellnts which reveals that the accident had taken place between the jeep of the complainant and bus no.RJ 19 P 8200 and report was lodged with the Police Station Jaitaran, Pali by one Sampatraj and on that report police registered FIR bearing no. 22/04 under section 279, 336 and 337 IPC and the police after investigation had submitted a challan against the driver of the jeep Babulal for committing offence under section 279 IPC while a charge sheet was also filed against the driver of the bus Kailash for committing offence under section 279, 337 and 338 IPC.. Thus, contributory negligence of both the drivers were found by the police while filing the charge sheet.
10. Thus, in the facts and circumstances just narrated above, the question for consideration is whether the repudiation of claim of the complainant respondent by the appellants was justified or not or whether the findings of the District Forum by which complaint of complainant respondent was allowed could be sustained or not.
11. In our considered opinion, since the driver of the complainant had allowed some persons to be seated in the jeep , therefore, it could not be said that they were allowed to be seated in the jeep after taking fare from them as on record there is nothing on record to prove that fact and in absence of 7 that evidence, the fact that the jeep in question was being used for commercial purpose could not be found established. This is one aspect of the matter.
12. So far as the findings of the chargesheet are concerned.it may be stated here that the accident had taken place between the two vehicles i.e. jeep of the complainant and bus and challan had been filed by the police against both the drivers and thus it could easily be held that the driver of the jeep was not alone responsible for that accident .
13. Further , in this case, the persons sitting in the jeep could not be held responsible in any manner as the cause of accident was totally unrelated to carrying the five or six passengers in the jeep. Therefore, merely carrying some gracious passengers would not defeat the claim of the complainant untill and unless such persons concerned have increased the risk of accident.
14. Thus, merely by taking some passengers in a vehicle and when the vehicle in question was unloaded as per the statement of the learned counsel for the parties and further the cause of the accident was totally unrelated to the carrying of passengers in the jeep and looking to the fact that the vehicle in question at the time of accident was not being used for commercial purpose, it could not be said that any breach of terms and condition of the policy had taken place in this case and thus the appellants were not justified in repudiating the claim of the complainant respondent.
8On point of compensation
15. So far as the amount of compensation is concerned, the District Forum had awarded the amount of compensation on the basis of the report of the surveyor Laxminarayn Vyas dated 29.3.04 appointed by the appellants in which he had come to the conclusion that no doubt the loss was to the tune of Rs.69,703.95 but after minusing the value of salvage and excess clause, the District Forum had come to the conclusion that the net loss was to the tune of Rs.60,960/- and the same had been ordered to be paid by the appellants to the complainant respondent and thus we see no reason to interfere on point of compensation.
16. For the reasons stated above, the appellants were not justified in repudiating the claim of the complainant respondent and the appellants had repudiated the claim of the complainant respondent without any basis and on wrong assumption and in an arbitrary manner and repudiation of claim amounted to deficiency in service on the part of the appellants and the District Forum has rightly held so. The findings of the District Forum by which complaint of the complainant was allowed are based on correct appreciation of entire materials and evidence available on record and they do not suffer from any basic infirmity or illegality or perversity.
9Hence, no interference is called for with the same and this appeal deserves to be dismissed.
Accordingly, this appeal filed by the appellants is dismissed.
Member President APPEAL NO: 1708/2005 1. Managing
Director, National Insurance Co.Ltd., Head office- 3 Middletem Street, Kolkatta.
2. Managing Director, National Insurance Co. Ltd., Regional office- 10 Narain Singh Road, Jaipur.
At present Jeevan Nidhi, IInd floor, Bhawani Singh Road, Jaipur.
3. Managing Director, National Insurance Co. Ltd., Divisional Office- Panch shakti circle, Sadulganj, Bikaner.
Opposite parties-appellants Vs. Babulal Suthar s/o Mohan Lal Suthar, Gurudwara Road, Megha Market, Tilak Nagar, Bikaner.
Complainant-respondent 18.11.09 Before:
Mr.Justice Sunil Kumar Garg-President Mrs.Vimla Sethia-Member Mr.Sanjeev Arora counsel for the appellants Mr.Manish Mathur counsel for the respondent 2 BY THE STATE COMMISSION This appeal has been filed by the appellants Insurance Co. against order dated 17.9.05 passed by the District Forum, Bikaner in complaint no. 103/2005 by the complaint of the complainant respondent was allowed against the appellants in the manner that the appellants were directed to pay a sum of Rs.60,960/- alongwith interest @ 9% p.a. w.e.f. 8.4.05 and further to pay a sum of Rs.500/- as costs of litigation.
2. It arises in the following circumstances-
That the complainant respondent had filed a complaint before the District Forum , Bikaner on 5.4.05 inter alia stating that his jeep bearing no. RJ 07 G 3802 was got insured with the appellants Insurance Co. for the period 20.5.03 to 19.5.04 and the policy was taken under the Goods Carrying Commercial Vehicle ( open ) policy and package bearing no. 371100/31/03/630 1000 for a sum of Rs. 1,80,000/- as IDV. It was further stated in the complaint that the said jeep had met with an accident on 26.1.04 near Jaitaran byepass Highway. It was further stated in the complaint that since on 26.1.04 there was republic day, therefore, some persons were allowed on humanitarian ground to be seated in the jeep and no consideration was taken from them. It was further stated in the complaint that a sum of Rs. 1,46,040/- were spent in repair of the jeep and for that a claim was preferred by the complainant before the office 3 of the appellants but that claim was repudiated by the appellants through letter dated 6.9.04 on the ground that since the vehicle was meant for carrying goods and not the passengers and since 5-6 persons were seated in the jeep at the time of accident and therefore, the claim was not payable to the complainant and further the claim was finally repudiated by the appellants through letter dated 30.9.04 (Ex. D-5) in the following manner-
" Repudiated due to violation of policy conditions, limitation as to use as stated in our repudiation letter dated 6.9.04."
Thereafter the present complaint was filed by the complainant.
A reply was filed by the appellants before the District Forum, Bikaner on 9.5.05 and they have taken the same pleas which were taken by them in the repudiation letters dated 30.9.04 and 6.9.04. Apart from that it was stated in the reply that since at the time of accident five or six persons were seated in the jeep, therefore, the fact that the same was being used for commercial purpose is well established . It was further stated in the reply that no doubt the surveyor appointed by the appellants Mr.Laxmi Narayan Vyas in his report dated 29.3.04 had assessed the loss to the tune of Rs.69,703.95 but on ground of violation of policy conditions and limitation, the claim was rightly 4 repudiated by the appellants and it was prayed that complaint be dismissed.
After hearing the parties, the District Forum, Bikaner through impugned order dated 17.9.05 had allowed the complaint of the complainant respondent as stated above inter alia holding that since the vehicle in question was goods carrying vehicle and from the record, the fact that some persons were seated in the jeep at the time of accident and some of them had received injuries is well established but the passengers who are allowed to be seated in the jeep were not responsible for the accident or had not contributed to the accident, therefore, the ground on which claim was repudiated by the appellants were not found justified and the amount assessed by the surveyor was ordered to be paid by the appellants to the complainant respondent.
Aggrieved from the said order dated 17.9.05 passed by the District Forum, Bikaner, this appeal has been filed by the appellants Insurance Company.
3. In this appeal the main contention of the learned counsel for the appellants is that since the complainant respondent had admitted in his complaint that because of the republic day some persons were allowed to be seated in the jeep, therefore, it could be inferred that they were allowed to be seated in the jeep after taking some consideration from them and thus it could be said that the jeep in question was used for 5 commercial purpose and therefore, claim of the complainant was rightly repudiated by the appellants and the District Forum had committed serious error and illegality in allowing the complaint of the complainant respondent . Hence, the impugned order could not be sustained and liable to be quashed and set aside and this appeal be allowed.
4. On the other hand the learned counsel for the respondent has supported the impugned order passed by the District Forum, Jhunjhunu.
5. We have heard the learned counsel appearing for the appellants as well as for the respondent and gone through the entire materials available on record.
6. There is no dispute on the point that the vehicle was got insured with the appellants Insurance Co. for the period 20.5.03 to 19.5.04 and the policy was taken under the Goods Carrying Commercial Vehicle ( open ) policy and package bearing no. 371100/31/03/630 1000 for a sum of Rs. 1,80,000/- as IDV.
7. There is no dispute on the point that the said jeep had met with an accident on 26.1.04 near Jaitaran byepass Highway.
8. There is no dispute on the point that the claim of the complainant respondent was repudiated by the appellants 6 through letters dated 30.9.04 and 6.9.04 on the grounds mentioned therein.
9. Today, a copy of the chargesheet had been filed by the appellnts which reveals that the accident had taken place between the jeep of the complainant and bus no.RJ 19 P 8200 and report was lodged with the Police Station Jaitaran, Pali by one Sampatraj and on that report police registered FIR bearing no. 22/04 under section 279, 336 and 337 IPC and the police after investigation had submitted a challan against the driver of the jeep Babulal for committing offence under section 279 IPC while a charge sheet was also filed against the driver of the bus Kailash for committing offence under section 279, 337 and 338 IPC.. Thus, contributory negligence of both the drivers were found by the police while filing the charge sheet.
10. Thus, in the facts and circumstances just narrated above, the question for consideration is whether the repudiation of claim of the complainant respondent by the appellants was justified or not or whether the findings of the District Forum by which complaint of complainant respondent was allowed could be sustained or not.
11. In our considered opinion, since the driver of the complainant had allowed some persons to be seated in the jeep , therefore, it could not be said that they were allowed to be seated in the jeep after taking fare from them as on record there is nothing on record to prove that fact and in absence of 7 that evidence, the fact that the jeep in question was being used for commercial purpose could not be found established. This is one aspect of the matter.
12. So far as the findings of the chargesheet are concerned.it may be stated here that the accident had taken place between the two vehicles i.e. jeep of the complainant and bus and challan had been filed by the police against both the drivers and thus it could easily be held that the driver of the jeep was not alone responsible for that accident .
13. Further , in this case, the persons sitting in the jeep could not be held responsible in any manner as the cause of accident was totally unrelated to carrying the five or six passengers in the jeep. Therefore, merely carrying some gracious passengers would not defeat the claim of the complainant untill and unless such persons concerned have increased the risk of accident.
14. Thus, merely by taking some passengers in a vehicle and when the vehicle in question was unloaded as per the statement of the learned counsel for the parties and further the cause of the accident was totally unrelated to the carrying of passengers in the jeep and looking to the fact that the vehicle in question at the time of accident was not being used for commercial purpose, it could not be said that any breach of terms and condition of the policy had taken place in this case and thus the appellants were not justified in repudiating the claim of the complainant respondent.
8On point of compensation
15. So far as the amount of compensation is concerned, the District Forum had awarded the amount of compensation on the basis of the report of the surveyor Laxminarayn Vyas dated 29.3.04 appointed by the appellants in which he had come to the conclusion that no doubt the loss was to the tune of Rs.69,703.95 but after minusing the value of salvage and excess clause, the District Forum had come to the conclusion that the net loss was to the tune of Rs.60,960/- and the same had been ordered to be paid by the appellants to the complainant respondent and thus we see no reason to interfere on point of compensation.
16. For the reasons stated above, the appellants were not justified in repudiating the claim of the complainant respondent and the appellants had repudiated the claim of the complainant respondent without any basis and on wrong assumption and in an arbitrary manner and repudiation of claim amounted to deficiency in service on the part of the appellants and the District Forum has rightly held so. The findings of the District Forum by which complaint of the complainant was allowed are based on correct appreciation of entire materials and evidence available on record and they do not suffer from any basic infirmity or illegality or perversity.
9Hence, no interference is called for with the same and this appeal deserves to be dismissed.
Accordingly, this appeal filed by the appellants is dismissed.
Member President