Haryana

StateCommission

A/410/2016

FUTURE GENERALI INDIA INSURANCE CO. - Complainant(s)

Versus

AHAAR FEEDS - Opp.Party(s)

VISHAL AGGARWAL

24 Jan 2017

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION HARYANA, PANCHKULA

                                                 

First Appeal No  :      410 of 2016

Date of Institution:      11.05.2016

Date of Decision :       24.01.2017

 

Future Generali India Insurance Company Limited, having its Registered Office at 3^rd Floor, Kailash Building, Kasturba Gandhi Marg, New Delhi-110001 through its Legal Executive Abhilash.

 

                                      Appellant-Opposite Party

Versus

 

M/s Ahaar Feeds Building No.3289, Urban Estate, Block-C, Jind through its Partner Sh. Ashok Kumar.

                                      Respondent-Complainant

 

CORAM:             Hon’ble Mr. Justice Nawab Singh, President.

                             Shri B.M. Bedi, Judicial Member.

                             Shri Diwan Singh Chauhan, Member                                                                                                                                         

Argued by:          Shri Vishal Aggarwal, Advocate for appellant.

                             Shri Abhimanyu Batra, Advocate for respondent.

 

                                                   O R D E R

 

B.M. BEDI, JUDICIAL MEMBER

 

          Future Generali India Insurance Company Limited  (for short ‘the Insurance Company’)-Opposite Party is in appeal against the order dated March 29^th, 2016 passed by District Consumer Disputes Redressal Forum, Rohtak (for short ‘the District Forum’).

2.                M/s Ahaar Feeds-Complainant (respondent herein) deals in the business of Poultry eggs and purchased Insurance Policy known as ‘Marine Cargo Open Policy-Inland’ (Exhibit C-1) from M/s Future Generali India Insurance Company-Opposite Party/appellant from 24^th May, 2014 to 23^rd May, 2015. The Sum Insured was Rs.2,00,00,000/-. The consignments dispatched from time to time were covered under the said policy and the premium was to be deducted for each consignment proportionally as per value of consignment.

3.                On 15^th July, 2014 the complainant hired truck bearing registration No.MH-15CK-4121 for transportation of eggs from Hisar to M/s Hamid Eggs, Basti (U.P.) and dispatched the eggs vide GR No.1483 dated 15^th July, 2014. The value of the eggs was Rs.5,50,560/- approximately. As the truck reached near Village Dasia on 21^st July, 2014, a Nilgai (Blue Bull) suddenly came in front of the truck and in the process as the driver tried to avert the accident, the truck turned turtle causing damage to the eggs worth Rs.4,97,310/-. The complainant lodged claim with the Insurance Company. However, the Insurance Company repudiated the claim vide letter dated 11^th August, 2014 (Exhibit C-7). It was stated in Exhibit C-7 that the truck was overloaded at the time of accident and therefore the Insurance Company was not liable to pay any amount to the complainant on account of violation of the terms and conditions of the policy. Hence, complaint under Section 12 of the Consumer Protection Act, 1986 was filed before the District Forum.

4.                The Opposite Party-Insurance Company contested the complaint by filing written version. It was stated that as per Registration Certificate, the gross weight of the vehicle was 11900 Kgs and Unladen Weight was 4790 Kgs. Thus Load Carrying Capacity of the vehicle was 7110 Kgs, whereas the total weight of captioned consignment as per LR was 12702 Kgs. Therefore, it being violation of the policy, the Insurance Company was not liable to pay any compensation to the complainant.

5.                After evaluating the pleadings and evidence of the parties, the District Forum allowed complaint directing the Insurance Company as under:-

“………..it is directed that opposite party shall pay the claim amount as assessed by the surveyor i.e. Rs.491804/- (Rupees four lac ninety one thousand eight hundred four only) along with interest @ 9% p.a. from the date of filing the present complaint i.e. 17.10.2014 till its realization and shall also pay a sum of Rs.3000/- (Rupees three thousand only) as litigation expenses to the complainant maximum within one month from the date of decision failing which the awarded amount shall carry further interest @ 12% p.a. from the date of decision. Complaint is allowed accordingly.”

6.                Counsel for the parties have been heard. File perused.

7.                The goods receipt is on the file as Exhibit C/2 showing the weight of consignment as 12701 Kgs. The insurance policy has been placed on the file as Exhibit R-1.  Because of the nature of goods mentioned in the policy being “eggs” a specific condition was put in the policy that “weight of cargo should not exceed registered carrying capacity of carrying vehicle”.

8.                The registration number of the vehicle is mentioned in receipt as No.MH-15CK-4121. The Registration Certificate of the vehicle is on the file as Exhibit C-6 showing Gross Vehicle Weight as 11900 Kgs and Unladen Weight 4790 Kgs. Thus, the registered carrying capacity of the vehicle was 7110 Kgs. This fact has also been clarified by the complainant in Gmail Exhibit C-7. Thus, certainly the consignment was overweight by 78% (approximately) which was gross violation of terms of the policy.

9.                In Delhi Assam Roadways Corporation Limited Versus United India Insurance Company Limited, IV (2013) CPJ 334 (NC), Hon’ble National Commission held as under:-

5. Mr. Mridul, Advocate, learned Counsel for the petitioner has contended that the impugned orders of the Fora below are based on incorrect appreciation of evidence. Expanding on the argument, learned Counsel contended that Fora below have failed to appreciate that as per the manufacturing company ‘Volvo’, the load carrying capacity of the truck in question was 70 matric tones whereas at the time of accident, the truck was carrying a load only 68,670. Thus, there was reason to conclude any causal link between the load on the truck and the accident. We are not convinced with the aforesaid submission. Learned Counsel for the petitioner has failed to show us cogent evidence which may establish that the load carrying capacity of the truck was 70 matric tons. On perusal of the order of the District Forum, which has been affirmed by the State Commission, it would be seen that District Forum has come to the conclusion about the overloading of the truck on the basis of the registration certificate of the vehicle. On perusal of the registration certificate, we find that unladen weight of the truck was 10300 kgs and its laden weight was 49000 kgms meaning thereby that load carrying capacity of the truck as per the registration certificate was 38700 kgs. Admittedly at the time of accident, the vehicle in question was carrying a load of 68,670 kgs which is over load of 80% in excess of the capacity. One cannot over-look the fact that overloading of a vehicle beyond certain limit does have an impact on the control of the driver on the vehicle. For example, when the brakes are applied to a moving vehicle, the braking distance would be directly proportionate to the laden weight of the vehicle. Otherwise also, the increase of load on a vehicle also have an impact on the steering control. In the instant case, admittedly, at the time of accident, the truck was overloaded in excess by 80% of its weight carrying capacity which in our view had a nexus with the accident. Therefore, the Fora below were right in concluding that the opposite party was justified in repudiating the claim. The petitioner in support of its contention has relied upon the judgment of the Supreme Court in the matter of Amalendu Sahoo v. Oriental Insurance Company Limited, II (2010) CPJ 9 (SC)=II (2010) SLT 672=2010 (2) RCR (Civ.) 635, as also the judgment of this Commission in the matter of New India Assurance Company Limited v. Narayan Prasad Appaprasad Pathak, II (2006) CPJ 144 (NC). We have gone through the aforesaid judgments. In our view the aforesaid judgments are of no avail to the petitioner because the said judgments are based upon entirely different facts. In the case of Amalendu Sahoo (supra), the issue before the Supreme Court was whether the Insurance Company was justified in repudiating the claim on the ground that a private vehicle was given on hire and as per the policy terms, such use was not appropriate. Similarly in the case of New India Assurance Company Limited v. Narayan Prasad Appaprasad Pathak, the question before the National Commission 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 licence and met with an accident, whereas in the instant case, the respondent/opposite party has repudiated the claim on the ground of excessive over-loading which in our view has a direct causal link with the accident resulting in damage to the vehicle. As such, we are of the view that the State Commission has rightly dismissed the claim on the ground of violation of terms of the policy.”

10.              The instant case is fully covered by Delhi Assam Roadways Corporation Limited’s case (Supra).

11.              In view of the facts of the case and the legal position enunciated above, the appeal is allowed, the impugned order is set aside and the complaint is dismissed.

12.              The statutory amount of Rs.25,000/- deposited at the time of filing the appeal and Rs.5,51,709/- deposited on 24^th August, 2016 as per order of this Commission, be refunded to the appellant against proper receipt and identification in accordance with rules, after the expiry of period of appeal/revision, if any.

 

Announced 24.01.2017

Diwan Singh Chauhan Member

B.M. Bedi Judicial Member

Nawab Singh President

CL