Kerala

StateCommission

A/14/179

M/S ORIENTAL INSURANCE COMPANY LTD - Complainant(s)

Versus

ASHARAF - Opp.Party(s)

VARKALA B RAVIKUMAR

20 Jun 2016

ORDER

KERALA STATE CONSUMER DISPUTES REDRESSAL

COMMISSION, VAZHUTHACAUD, THIRUVANANTHAPURAM

 

 APPEAL NO.179/2014

ORDER DATED  20/6/2016

  (Appeal filed against the order in C.C No.33/2011 dt  30/11/2013. on the file of CDRF, Thiruvananthapuram)

PRESENT:

SMT. A. RADHA                                      :         MEMBER

SHRI. K. CHANDRADAS NADAR           :        JUDICIAL MEMBER

SHRI. V.V. JOSE                                      :        MEMBER

APPELLANTS:

1.  M/s. Oriental Insurance Company Ltd.,

Divisional Office, Bazar, Thodupuzha,

Idukki – Rep: by its Divisional Manager,

Do 1, Thiruvananthapuram.

 

2.  The Oriental Insurance Co. Ltd.,

 Divisional Office No.1, Thiruvananthapuram.

 

3. The Oriental Insurance Co. Ltd.,

Registered Office, Oriental House,

PB No.7037, A-25/27, Asaf Ali Road,

New Delhi-110 002 – Rep: by its

Divisional Manager, Do 1, Thiruvananthapuram.

(By Adv:   B. Ravikumar )                    

                        Vs

RESPONDENT:

            Ashraf.A.Nizam Manzil, Thadatharikathu

Puthen Veedu, Kallara, Thiruvananthapuram.

(By Adv: N. Satheesh Kumar )  

JUDGMENT

SMT. A. RADHA  :  MEMBER

          This appeal is preferred by the opposite parties against the order passed in C.C.No.33/2011 on the file of CDRF, Thiruvananthapuram.

          2.  The complainant purchased a Mahindra Bolero Van on 01/01/2010 on payment of Rs.4,76,700/-  which was insured with the 1^st opposite party for the period from 01/01/2010 to 31/12/2010 and paid premium of Rs.13,272/-.  The vehicle met with an accident and totally damaged.  In order to repair the vehicle an estimate of Rs.5,35,740/- was calculated by the service engineers of M/s. T.V.S and intimated to the 1^st opposite party.   On 28/12/2010 the opposite party repudiated the claim of the complainant stating that there is violation of policy condition.  The complainant who is indulged in sale of fish was unable to repair the vehicle due to the injury sustained in the accident and vehicle was lying idle in a damage condition.  The complainant purchased the vehicle by availing a loan.  The delay in settling the claim the complainant caused financial burden and the repudiation of the claim on flimsy grounds is deficiency in service on the part of opposite parties.  The complaint is filed for an amount of Rs.4,52,865/- covered under the policy and also compensation of Rs.35,000/- for the deficiency in service along with cost of proceedings.

          3.  The opposite parties filed version admitting the policy and disputed the claim on the ground of violation of policy condition.               The vehicle is permitted to carry 2 persons as per the RC book whereas while driving the vehicle there had 4 persons including the driver.  As the vehicle is a lorry, a goods carriage, no passenger can be carried in the vehicle.  The policy does not cover the use for carrying passengers in the vehicle except owner of goods or employees not exceeding the number permitted in the registration documents.  It is contended that the lorry is in a repairable condition and estimate was prepared to carry out the repair by the surveyor.  Due to the violation of policy condition by overloading the vehicle the complainant is not entitled for any amount from the opposite parties.

          4.  The complainant was examined as PW1 and Exbts. P1 to P5 were marked and on the part of opposite parties DW1 was examined and Exbts. B1 to B3 were marked.  Commission report was marked as C1.  On the basis of evidence and documents the Forum Below directed the opposite party to pay the insured amount on standard basis.

          5.  The counsel for the appellant vehemently argued that the violation of condition of the policy will dis-entitle the complainant for any insurance amount.  The breach of the condition of policy is the condition highlighted in the repudiation.  It is an admitted fact that the vehicle was having                4 passengers including the driver whereas the vehicle is not a passenger vehicle.  It is specifically mentioned in the policy that the owner or the employee of the owner is allowed to accompany in the goods vehicle.        In the deposition the complainant admitted that there had 4 people at the time of accident of the vehicle.  The over loading of passengers in the cabin resulted in the restriction of movements of the driver from applying break in time resulting the accident of the vehicle and the rash and negligent driving of the complainant caused the accident.  The vehicle was used without valid permit and thereby violated in the policy condition.  The vehicle is in a repairable condition and estimate was prepared by the surveyor and the total estimated expense for the repair of the vehicle was only Rs.2,41,332/-.  The respondent informed the accident only after a lapse of 70 days.  The respondent is bound to inform the accident to the opposite parties which was not done in this case is also violation of condition.  The repudiation is on valid grounds and it does not amount to deficiency in service on the part of appellant.

          6. The arguments put forth by the appellant is objected.  It is submitted that the vehicle involved in the accident is having valid insurance policy at the time of accident.  It is not in dispute that the accident took place not during the subsistence of the policy and thus there is valid policy on the date of accident.  The surveyor of the TVS calculated the repairing charges due to the accident for Rs.5,35,740/- which is more than the insured value.  The vehicle totally damaged and not in a repairable condition and respondents requested for considering it on total loss basis which was completely denied and repudiated the claim on the flimsy grounds of violation of policy condition.  As per the FIR the accident happened due to a hit on a lorry.  The driver is  having valid driving license.  The complainant relied on the decision of United India Insurance Company Vs. Gyansingh reported in CTJ 2006 221 (CP)NC wherein it is held that in a case of violation condition of the policy, as to the nature of use of the vehicle, the claim ought to be settled on non-standard basis.  The National Commission In the case of National Insurance Company Ltd. Vs. Nitin Khandelwal  reported in 2008 (VII)SCALE 351 wherein it is observed by the Hon’ble Supreme Court that the Insurance Company is liable to indemnify even if there is a breach of condition of policy the company ought to settle the claim on non-standard basis and allowed 75% of the claim of the complainant.  The Apex Court in Amalendusahu Vs. Oriental Insurance Company Ltd. observed  that the Insurance Company cannot repudiate the claim in Toto.  In the instant case mere violation of carrying passengers in a lorry is the reason for repudiating the claim and does not exempt the Insurance Company from the liability to pay the claim amount.

          7.  We have heard both the counsels in detail.  Admittedly there is a valid policy at the time of accident to the vehicle of the complainant.  The only ground raised by the appellant is with regard to the violation of the condition of policy.  We would like to point out that nothing is brought out in evidence to show that the number of passengers resulted in the accident of the vehicle.  We find that the violation of terms and conditions will not exempt the Insurance Company from indemnifying the claim of the respondent.  It is not the sole reason of over loading which resulted in the accident to the vehicle.  If at all any condition is violated, the appellant is liable to  pay the Insurance claim on non-standard basis by relying on the Apex Court’s decision.  It is clear that 75% of the claim of the admissible claim is allowed by the Forum Below and we have no hesitation to uphold the order passed by the Forum Below.

          In the result, appeal is dismissed and no order as to cost.

          The order is to comply within 30 days on receipt of the copy of this order.

The office is directed to send a copy of this order to the Forum Below along with LCR.

 

A. RADHA                :              MEMBER

 

 

 K. CHANDRADAS NADAR   : JUDICIAL MEMBER

 

V.V. JOSE          :        MEMBER

 

Sa.

 

 

 

 

 

 

 

    

KERALA STATE CONSUMER

        DISPUTES REDRESSAL

COMMISSION, SISUVIHAR LANE,

VAZHUTHACAUD   

                           THIRUVANANTHAPURAM.

 

 

 

 

 

APPEAL NO.179/2014

ORDER DATED  20/6/2016

 

                                                                                                                                                                                        

 

 

 

Sa.