Orissa

Jajapur

CC/71/2019

Jagannath Pallai. - Complainant(s)

Versus

Authorised Signatory the New India Assurance Co. Ltd. Bhadrak Branch. - Opp.Party(s)

Ramesh Chandra Ghadai.

29 Oct 2020

ORDER

                IN THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, JAJPUR.

                                                        Present:      1.Shri Jiban ballav Das , President

                                                                            2.Sri Pitabas Mohanty, Member,

                                                                            3.Miss Smita Ray, Lady Member.                      

                                       Dated the 29th day of October,2020.

                                                      C.C.Case No.71 of 2019

Jagannath Pallai  S/O Late Krushna ch.Pallai

At.  Padmeswarpur(Gopalpur) P.O. Debidwar

Dist.-Jajpur.                                                                            …… ……....Complainant .                                                                       .

                   (Versus)

1.Authorised signatory new India Assurance Co.Ltd, Bhadrak branch

At.Kacheri Road,Bhadrak, Dt. Bhadrak.

2.Authorised Signatory, New India Assurance Co.ltd, At.Naharapur

P.O/Dt.Jajpur.

3.Authorised Signatory,New India Assurance Co.Ltd, Regional Office

Alok Bharati Tower,Sahid Nagar,Bhubaneswar,Dt.Khurda.

                                                                                                                               ………..O.Ps.

For the Complainant:                           Sri  R.K. Ghadei , R.N.Dhal, Advocates.

For the Opp.Parties :                            Sri Ashok Ku.Das, Advocates.

                                                                                                     Date of order:   29. 10. 2020.

SHRI   JIBAN BALLAV DAS, PRESIDENT  .     

The petitioner has filed the present dispute against the O.ps alleging deficiency in service as well as unfair trade practice due to illegal repudiating of  Insurance claim as against the Auto bearing No.OD-04-A-1866 which was purchased by the petitioner to earn his lively hood by means of self employment and subsequently faced with an accident on 26.11.2017.

            The facts shortly as per complaint petition are that the petitioner being an unemployed youth in order to maintain his livelihood by means self employment purchased the above cited Auto for playing the same to maintain his livelihood and the said Auto was insured with O.P.no.1. After purchasing the vehicle the petitioner being a driver  himself was driving the vehicle for carrying passengers but due to ill luck the alleged Auto met with an accident near Sidheswar on 26.11.2017 due to sudden presence of a cow at the time the petitioner as a driver of the alleged Auto was playing the vehicle with 5 passengers ( 3 major + 2 minors) towards Sidheswar Temple and the petitioner lodged the Insurance claim before the O.P. After the accident one Nilay Mohanty submitted the F.I.R in the Rambag out post vide FIR No.318/ 2017 and the investigating officer after investigation submitted the charge sheet against the petitioner basing on which G.R Case No.1335/2017 U/S 279,337 and 338 of IPC is pending in the learned SDJM,Jajpur. The investgating officer after investigation has come to the finding that due to rash and negligence driving the alleged Auto met with accident at the time 5 passengers including 2 childerens. As against the above factual aspects in considering the Insurance claim of the petitioner against the alleged accident Auto the O.ps without considering the real aspects illegally repudiated the genuine Insurance claim of the petitioner on 23.08.2017  on the ground that “ at the time of accident the insured vehicle was carrying passengers beyond the licensed seating capacity and such ground of repudiation according to petitioner is illegal and not tenable in the eye of law.

            After receipt of the notice of  his dispute the O.Ps appeared through their learned advocate and subsequently filed the written version and additional  written version taking the stand that :

            After getting the information about the accident the O.Ps deputed surveyor to obtain the relevant documents and after getting the same the O.ps though initiated the process to settle the claim but during the process it came to the notice of the OPs that there is over loading of passengers in the vehicle which is against the term and condition of Insurance policy for which the claim of the petitioner was repudiated on 23.08.2018. In the additional written statement the O.Ps though have                           that as per jajpur P.S case No.318/2017 there were 6 major and 3 children’s including the driver inside the vehicle but the affidavit  of the petitioner which has been filed by O.Ps  indicating that there were 5 passengers and one driver, inside the vehicle  . In such situation the O.ps have repudiated the insurance claim on the ground “ over loading and suppressing material facts .

            On the date of  hearing we heard the argument from the learned advocate of both the parties as well as after perusal of the record in details it is observed that

            Admittedly the petitioner has purchased the above cited Auto to maintain his livelihood by means of self employment and the said Auto was insured with the O.Ps . It is stated by the petitioner that on 26.11.2017 while the petitioner as driver was playing his vehicle with 5 passengers met with an accident near Sidheswar Temple due to sudden arrival a cow for which the alleged Auto was damaged. There after not only F.I.R was lodged in the Rambag out post but so far the petitioner as insured lodged the Insurance claim .The investigating officer after investigation submitted the charge sheet in Ld. S.DJ.M, Jajpur bearing  G.R case No.1335/2017 . The Insurance company after getting information regarding accident of the alleged Auto though collected information / documents for settling the Insurance claim but subsequently it is learnt by the Insurance co. that at the time of accident the alleged Auto was carrying  passengers beyond licensed seating capacity which violates the term and condition of policy for which the claim of the petitioner was repudiated on 23.08.2018 by the Insurance company.

            As against the above plea from the side of the O.ps, it is stated by the petitioner that the ground of repudiation is illegal and not sustainable in the eye of law on the ground

a.The O.ps have repudiated the Insurance claim of the petitioner though on the ground that at the material time of accident the alleged vehicle was carrying beyond licensed seating capacity which violates the term and condition of policy but no where the Insurance co/ O.Ps have stated or filed the evidence by way of affidavit that such excess passengers contributes the accident of the alleged Auto for which the Insurance company is not justified to repudiate the Insurance claim of the petitioner in view of the observation of Hon’ble Supreme Court reported in 1996-(11)CPJ-28-S.C ( B.V Nagaraju Vrs Oriental Insurance  Co.Ltd) In support of this contention the petitioner also has relied the following citations.

1.         2013(3)CLT-573-Dehradun- Oriental Insurance Co.Ltd Vrs Ishrar Ali

            “Over loading of vehicle at the time of accident .Held) though there is breach of term of in natures. The cause of accident was not overloading but it was due to lead on collision of truck- Insurance company liable”.

2.         2018(4)CLT-543-Deheradun-Oriental Insurance Co.Vrs Sh Harminder Singh

            “Excess passengers travelling in the vehicle at the time of accident –Held- 3 excess passengers against the sanctioned strength is of no substance.

3.         2007(2)CLT-136-Simla- oriental Insurance Co.Vrs Ramesh Tandan

“ In absence of any evidence that the excess passengers contributes the accident the Insurance co liable to settle the claim “.

4.         1(1999) CPJ-709-Karnatak

            Sri sharfuddin Vrs R.M national Insurance Co.

“ Vehciel met with accident claim repudiated as 9 passengers were travelling in violaltion of policy – said event did not contribute to the accident –complaint is entitled for damages”.

            Out of the above citations we have come across with the observation of Hon’ble state commission reported in 2013(3) CLT-573, wherein the Hon’ble Commission has held that 2 minors within the age group of 15 to 18 shall be treated as one major person. Accordingly as per affidavit dt.17.07.2018 of the petitioner there were 5 passengers including two childrens for which the number of passengers shall be counted as 4 passengers excluding the driver/ petitioner.

            The above observation from our side clearly go to establish that the repudiation of Insurance claim of the petitioner by the O.Ps is not   justified for which the dispute is allowed against the O.ps.

            O R D E R

            The dispute is allowed  against the O.Ps . The O.Ps are directed to settle the Insurance claim of the petitioner within  one month after receipt of this order. Further the O.Ps  are directed to pay cost of Rs.5,000/- ( five thousand ) to the petitioner in case the order is not complied within the stipulated period the awarded amount will carry on interest @ 12% per annum till its realization . The petitioner is at liberty to take shelter as per law for realization of the amount.

                        This order is pronounced in the open Forum on this the 29th day of  October,2020. under my hand and seal of the commission.