BEFORE THE CIRCUIT BENCH OF A.P.STATE CONSUMER DISPUTES REDRESSAL AT VIJAWAYADAF.A.No.408 OF 2012 AGAINST C.C.NO.101 OF 2011 DISTRICT FORUM-II VIJAYAWADA AT KRISHNA DISTRICT
Between:
DV aged about 35 years, R/o D.No.3-165A, KG Road
Society, Regd. & Administrative Office
at Flat NO.1, 1st Floor, D.No.58-1-26, Appellant/complainant
1. Rep. by its Manager, D.No.40-1-140,
1st Floor, Near
2. rep. by its Managing Director, Dare House
II Floor, No.2, NSC Bose Road, Chennai-001
Respondents/opposite parties
Counsel for the Appellant M/
Counsel for the Respondent M/s
QUORUM: SRI R.LAKSHMINARASIMHA RAO, HON’BLE MEMBER
AND
SRI THOTA ASHOK KUMAR, HON’BLE MEMBER
TUESDAY THE NINETEENTH DAY OF MARCH
TWO THOUSAND THIRTEEN
Oral Order (As per Sri
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1. The unsuccessful complainant is the appellant.
2. The appellant insured his vehicle Scorpio with the respondent insurance company under comprehensive insurance policy Certificate No.3362/00475690/000/00 for period commencing from 06.04.2010 to 05.04.2011. The vehicle met with an accident on 22.10.2010 on PS registered a case in Crime No.129/10 u/s 304-A, 338, 337 of IPC. As a result the vehicle of the appellant was fully damaged. The appellant claimed a sum of
`7.50 lakhs 3. The appellants resisted the case contending that on receipt of intimation on 22.10.2010 from the appellant, the respondent appointed a licensed surveyor on 22.10.2010 for preliminary survey and another surveyor for final survey on 30.10.2010 for estimation of the accident vehicle. At the time of the accident, the appellant’s vehicle was carrying 17 persons including driver at the time of accident whereas the seating capacity of the vehicle was only nine including the driver. The vehicle was registered as a motor car for private purposes whereas at the time of accident the deceased and injured persons were travelling in the vehicle under hire. The vehicle was used for hire which is violation of the terms and conditions of the policy. As per the assessment of the surveyor the damage was assessed at `4,49,000/- on constructive total loss basis since the repair cost exceeds 75% of the IDV of vehicle being `7 lakhs. The appellant can claim only the amount mentioned in the surveyor’s report and not exceeding it. The respondent’s vehicle was carrying passengers at the time of accident which is in violation of the terms and conditions of the policy.
4. The appellant filed his affidavit and the documents, Exs.A1 to A12. On behalf of the respondent insurance its Senior Manager filed his affidavit and the documents Exs.B1 to B4.
5. The District dismissed the complaint on the premise that there is violation of terms and conditions of the insurance policy and MV Act by allowing excess persons to travel in the vehicle.
6. Aggrieved by the order of the District Forum, the complainant has filed the appeal contending that he gave the vehicle to one of his business partner and not for hire that the surveyor estimated the loss at `4,49,000/- and that as per the decision of the
7. The points for consideration are:
1. Whether the persons travelling in the vehicle are permitted to be carried in the vehicle and the accident occurred due to their sitting in the lorry.
2.
8. POINT NO.1 The appellant claimed for the repairs of an amount of Rs.7 lakhs. It is contended on behalf of the respondent insurance company that the seating capacity of the Insured Vehicle is only 9 i.e.,
9. The Apex Court has relaxed the stringent effect of the terms of the insurance policy in a case where the breach of the terms of the Insurance Company committed by the insured is not fatal nor fundamental so deprive the insured of the amount assured under the insurance policy. The opined that in cases where breach of conditions including the limitation as to the use directed the same to be settled on non-standard basis. For benefit of appreciation, we reproduce the same
14. In that case also the question was, whether the insurance company can repudiate the claims in a case where the vehicle carrying passengers and the driver did not have a proper driving license and met with an accident. The said guidelines are set out below:-
S.No. | Description | Percentage of settlement |
(Under declaration of licensed Carrying capacity | Deduct 3 years difference in premium from the amount of claim or deduct 25% of claim amount whichever is higher. |
(ii) | Overloading of vehicles beyond licensed carrying capacity | Pay claims not exceeding 75% of admissible claim. |
(iii) | Any other breach of warranty/condition of policy including limitation as to use. | Pay up to 75% of admissible claim. |
15. From a perusal of the aforesaid guidelines it is clear that one of the cases where 75% claim of the admissible claim was settled was where condition of policy including limitation as to use was breached.
16. In the instant case the entire stand of the insurance company is that claimant has used the vehicle for hire and in the course of that there has been an accident. Following the aforesaid guidelines, this Court is of the opinion that the insurance company cannot repudiate the claim in
10. In the light of the aforementioned decision the appellant insurance company has to settle the claim of the complainant on non-standard basis. The surveyor has assessed the damage caused to the insured vehicle `4,49,000/-. As per the decision of the Three fourth `4,49,000/- is `3,36,750/- to which the respondent is entitled to. Accordingly, the appeal deserves to be allowed reducing the amount `4,49,000/- to `3,36,750/-.
11. In the result the appeal is allowed setting aside the order of the District Forum. Consequently, the complaint is allowed directing the respondents’ insurance company to `3,36,750/- together with costs of `2,000/-. The parties shall bear their own costs in the appeal.
MEMBER
MEMBER
Dt.19.03.2013
కెఎంకె*
