National Consumer Disputes Redressal
New India Assurance Company Ltd. vs Gobbaka Eswara Rao & Anr. on 28 November, 2018
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI REVISION PETITION NO. 380 OF 2015 (Against the Order dated 01/12/2014 in Appeal No. 591/2013 of the State Commission Andhra Pradesh) 1. NEW INDIA ASSURANCE COMPANY LTD. THROUGH ITS DULY CONSTITUTED ATTORNEY MANAGER, NEW INDIA ASSURACE CO LTD., 3RD FLOOR,RG CITY CENTRE,LSC B-BLOCK,LAWRENCE ROAD, NEW DELHI-110035 ...........Petitioner(s) Versus 1. GOBBAKA ESWARA RAO & ANR. S/P MALLAYYA SWAMY, D.NO-20-8 BHAVNIPURAM STREET, NARSANNPETA TOWN,POST AND MANDAL, KOTABOMMALI, DISTRICT: SRIKAKULAM A.P 2. BRANCH MANAGER, STATE BANK OF INDIA KOTABOMMALI BRANCH, KOTABOMMALI DISTRICT : SRIKAKULAM A.P ...........Respondent(s)
BEFORE: HON'BLE MR. PREM NARAIN,PRESIDING MEMBER
For the Petitioner : : Mr. C.K. Gola, Advocate For the Respondent : For the Respondent No.1 : Mr. Hitendra Nath Rath, Advocate
For the Respondent No.2 : Nemo
Dated : 28 Nov 2018 ORDER
This revision petition has been filed by the petitioner, New India Assurance Company Ltd. against the order dated 1.12.2014 passed by the State Consumer Disputes Redressal Commission, Andhra Pradesh, Hyderabad (in short 'the State Commission') in FA No. 591/2013.
2. Brief facts of the case are that on 3.4.2010 the respondent no.1 /complainant purchased a Force Trax Tempo vehicle via hypothecation agreement with SBI bank and the same was registered with the RTA Srikakulam vide registration No.AP/30V/9020. On 7.4.2010 the said vehicle was insured with the petitioner for an amount of Rs.5,65,000/- under policy No.62030131100100000343 and the same was issued for the period from 7.4.2010 to 6.4.2011. On 20.8.2010 the vehicle met with an accident while returning from a pilgrimage carrying passengers when it was trying to avert collision with an oncoming lorry. Further FIR No.51/2010 was registered by the local police. On 28.9.2010, M/s. Mahalakshmi Motors, the repairers approached by insured, estimated the repair cost of the vehicle as Rs.4,95,092/- and issued a letter to the effect as well. The complainant/respondent no.1 also claimed to have incurred transportation charge of Rs.20,000/- for transporting the damaged vehicle from the site of accident to Vishakhapatnam where M/s. Mahalakshmi Motors are located and also claimed the actual repair costs as Rs.1,77,876/- alongwith salary of his driver amounting to Rs.45,000/- for three months of repair period. On 29.10.2010 the petitioner informed the insured/respondent no.1 as to the repudiation of their claim, vide letter bearing Ref. No.Motor OD/Claims Hub/801, and stating therein that the claim was repudiated considering the violation of the driver's clause of the policy, as the driver of the vehicle did not possess the requisite LMV (transport) licence. On 9.11.2011 the complainant issued a legal notice upon the petitioner demanding payment towards the full claimed amount. On 17.4.2012 the respondent no.1 instituted proceedings against the petitioner by filing a complaint before the District Forum, Srikakulam vide CC No.108/2012 claiming therein a sum of Rs.2,42,876/- towards repairing of the vehicle alongwith interest @ 18% p.a. from the date of accident of the vehicle till the date of payment, Rs.30,000/- as compensation for mental agony and Rs.20,000/- as costs towards litigation expenses. The District Forum vide its final order dated 30.1.2013 directed the petitioner to pay a sum of Rs.1,50,000/- to the complainant as indemnity and also directed the petitioner to pay interest @ 12% p.a. if the aforesaid amount was not paid within one month 15 days of the order. Cost of Rs.3,000/- was also awarded in favour of the complainant. Being aggrieved by the order of the District Forum, the petitioner approached the State Commission for relief and the State Commission vide its order dated 1.12.2014 held that the interest awarded by the District Forum @ 12% p.a. was excessive and the same was revised as 9% p.a.
3. Hence, the present revision petition.
4. Heard the learned counsel for the petitioner as well as learned counsel for respondent no.1. Learned counsel for the petitioner insurance company stated that the claim was repudiated on account of mainly two reasons. First, was that the vehicle was overloaded and 15 passengers were travelling instead of 12 allowed. Both the fora below have not considered this aspect at all. This is a clear violation of the terms and conditions of the policy and therefore, claim cannot be allowed. It was further argued by the learned counsel that the FIR itself mentions that the vehicle was overloaded with 15 passengers. In support of his argument, learned counsel referred to the decision of this Commission in New India Assurance Company Ltd. vs. Ishwar Singh Rathore, decided on 15.1.2015 wherein the revision petition filed by the insurance company was allowed against the order of the State Commission allowing the claim.
5. It was further argued that the driver did not have the endorsement for driving the maxi cab on his driving licence as he got this endorsement after the accident in 2011. Thus, on both grounds, the claim was rightly repudiated and both the fora below have ignored the legal position relating to these aspects.
6. On the other hand, learned counsel for respondent no.1/complainant stated that both the fora below have given concurrent findings and in this situation, the scope under the revision petition is quite limited as the facts cannot be reassessed by this Commission. It was argued by learned counsel for the respondent no.1 that endorsement for maxi cab is not required as per law and to support his contention, the learned counsel referred to the judgement of the Hon'ble Supreme Court in Mukund Dewangan Vs. Oriental Insurance Company Ltd., 2017 (7)SCALE, wherein it has been observed as under:
"40. In S. Iyyapan (supra), this Court has considered the decisions in Ashok Gangadhar (supra), ,Annappa Irappa Nesaria (supra) as well as Prabhu Lal (supra) and has laid down thus:
"18. In the instant case, admittedly the driver was holding a valid driving licence to drive light motor vehicle. There is no dispute that the motor vehicle in question, by which accident took place, was Mahindra Maxi Cab. Merely because the driver did not get any endorsement in the driving licence to drive Mahindra Maxi Cab, which is a light motor vehicle, the High Court has committed the grave error of law in holding that the insurer is not liable to pay compensation because the driver was not holding the licence to drive the commercial vehicle. The impugned judgment (Civil Misc. Appeal No.1016 of 2002, order dated 31.10.2008 (Mad)) is, therefore, liable to be set aside."
This Court has rightly held in S. Iyyapan (supra) that it was not necessary for the driver to get any endorsement in the driving licence to drive Mahindra Maxi Cab as he was authorized to drive a light motor "
7. I have given a thoughtful consideration to the arguments advanced by both the learned counsel for the parties and have examined the material on record.
8. Coming to the first question of overloading, it is seen that the judgment of National Commission relied upon by the learned counsel for the petitioner in the matter New India Assurance Company Ltd. vs. Ishwar Singh Rathore (supra) is in respect of goods vehicle (truck) where 34 passengers were travelling as against the allowed capacity of three passengers only. Two cases cannot be compared and the decision of the National Commission is not relevant for the present case. In the present case, the overloading is in respect of the passenger vehicle where 15 passengers are alleged to have been travelling instead of capacity of 12 passengers. The learned counsel for the complainant did not argue anything on the point of overloading during the arguments. It seems that the complainant does not have a proper defence for the allegation of overloading. Though the overloading is in respect of only three extra passengers, the condition of the policy has been violated. It is further seen that the case relied upon by the learned counsel for the complainant in Mukund Dewangan Vs. Oriental Insurance Company Ltd. (supra) is in respect of similar facts where the Hon'ble Supreme Court has clearly observed that complainant was not in error if the driver was not having endorsement for commercial light vehicle on his LMV driving licence.
9. From the above examination, it is clear that the condition of the policy has been violated in respect of the overloading of passengers. However, this is not a condition that is germane to the policy as the vehicle was carrying only three extra passengers and it was a passenger vehicle. In the light of the decision of Hon'ble Supreme Court in the matter of Amlendu Sahoo Vs. Oriental Insurance Company, (Civil Appeal No.2703/2010 decided on 25.3.2010, for such violation of condition of policy, the claim can be allowed on non-standard basis and therefore, the insurance claim is allowed at 75% of the claim amount awarded by the District Forum.
10. Based on the above discussion, the revision petition is partly allowed and the order of District Forum dated 30.1.2013 and consequently the order of State Commission dated 1.12. 2014 stand modified to the extent that the figure of Rs.1.50 lakhs in the order of the District Forum shall stand substituted by figure of Rs.1,12,500/- (Rupees One lakh twelve thousand five hundred only) . Apart from this modification, rest of the order of the State Commission is maintained.
...................... PREM NARAIN PRESIDING MEMBER