Brief fact of the case is that the complainant petitioner is an owner-cum-driver of a vehicle vide Regn. No. 15A-7725. The said vehicle was insured by the Bajaj Allianz General Insurance Co. Ltd , the Opposite party herein and the complainant deposited Rs.14903/- to the oP. The policy no. is OG-13-2417-1803-00001524 and validity period was from 11.1.2013 to 10.1.2014. The complainant further states that his vehicle was met with an accident on 13.3.2013 in the Durgapur Highway at Amira Gobindapur under P.S. Dadpur, Dist. Hooghly . After accident the complainant lodged a complaint before the Dadpur Police station and Dadpur P.S. started a case vide no.38/2013 dated 16.3.2013 U/s 279/337/330 IPC .The complainant thereafter informed the fact of the accident to the O.P. within the stipulated time and claim form with estimated damage of Rs.1,21,723/- was submitted to the office of the OP along with other original and relevant documents. The Opposite party after obtaining the claim intimation and other documents registered the said claim vide no.OC-13-2401-1803-00002726 and one Surveyor was appointed by the oP to investigate the said damaged vehicle and the complainant repaired the vehicle by spending of Rs.1,21,723/- and re-inspection was also done by the OP. But , on 11.7.2013 the OP issued one repudiation letter in favour of the petitioner stating that due to violation of Section 123/124 of M.V. Act 1988 and carrying more than two persons in the said vehicle at the material time of the accident. Finding , no other alternative the petitioner filed the present complaint before this forum for redress as prayed for in his petition of complaint.
The OP Bajaj Allianz entered appearance through their ld. Advocate in the said case by filing Written version and denying all material allegations submitted by the complainant stating inter alia that the case is not maintainable in its present form. The Op also has stated that this Forum has no jurisdiction to adjudicate this complaint case. The OP has also stated that the vehicle of the petitioner was being plied in violation of terms and conditions of the Insurance company and also violation of Section 123/184 of M.V.Act 1988 . So the OP prays for dismissal of the complaint.
To prove the case complainant filed documents and Rulings as per firisti. The OP also filed documents as well as Rulings to prove their case.
Upon the complaint, Written version and documents filed by both the parties the following issues are framed .
ISSUES
Whether the complainant is a consumer ?
Whether there is any deficiency in service on the part of OP ?
Whether the petitioner is entitled to get relief as prayed for ?
DECISION WITH REASONS :
Point no. 1
It is needless to mention rather it is an admitted fact that the complainant insured his vehicle with the OP/Insurance company on payment of requisite premium of Rs.14903/- demanded by the Op . So the petitioner/complainant is a consumer under the OP/Insurance company under Section 2(1)(d) of the C.P.Act, 1986.
The point no.1 is thus answered in favour of the complainant/petitioner.
Point no.2 and 3
Both the points are taken up together for the sake of convenience and brevity of discussion.
Admittedly, the concerned vehicle met with an accident on 13.3.2013 and a police case was instituted vide case no.38/13 dated 16.3.2013 U/s 279/337/333 IPC at Dadpur P.S. It is also admitted that when the accident took place the Insurance policy was valid and in force. The policy shows that the IDV of the vehicle was 1,95,790/- . It was manufacturing year of the vehicle is 2010. The vehicle is a light goods carrier by TATA make. Total sum insured was Rs.1,95,790/- . From the documents filed by Opposite party it is clear that after the accident the vehicle was inspected by surveyor of the Insurance company. The complainant got his vehicle repaired from Tech-N-Mech a garage affiliated by TATA Motors. The said garage issued receipt in respect of amount received by them . The complainant claimed that he spent Rs.1,21,723/- towards repairing . He also produced documents in this respect. It is also case of the complainant that the Car was in garage for three months and he had to suffer a loss of Rs.10,000/- per month.
The Insurance company repudiated the claim of the complainant only on the ground that the vehicle was two seated one and a goods carrier which at the time of accident was carrying five persons and thereby violated the condition of Insurance policy including the violation of Section 123/184 of Motor Vehicles Act, 1988.
During argument ld.Advocate for the Opposite party , particularly stress on the violation of terms and conditions of the policy and violation of the provisions of the Motor Vehicles Act. It was argued that the complainant is not at all entitled to any compensation for violation of the breach of contract between him and the OP.
Ld. Advocate for the complainant argued that it is admitted fact that accident took place and Opposite party also sent their Surveyor to assess the loss or damage. It was also not denied by the Opposite party that the vehicle was repaired at Mech-N-Tech garage which is affiliated by Tata Motors, the maker of the concerned vehicle.
The Opposite party refused the claim only on the ground that the complainant breached the terms and conditions of the policy . In their Written version they stated that in the policy three persons including driver were allowed to board in the goods carrier but violating that terms at the time of accident the driver was carrying 5 persons in the said vehicle. Admittedly, the vehicle met with an accident and a Criminal case was registered U/s 279, 337, 330 I.P.C. against the driver of the vehicle vide case no.38 of 2013 dated 16.3.2013 at Dadpur P.S. The materials on record also speaks that the complainant gave intimation of the accident to the Insurance company and the latter appointed Surveyor to look into the matter. The vehicle was repaired and Tech-N-Mech which is affiliated by Tata Motors . The complainant had to bear Rs.1,21,723/- for repairing of the same . In the circumstances, the main point for consideration whether the complainant should be allowed the expenses for repairing from the Opposite party. Ld. Advocate rightly referred the case reported in 2016(2) C.P.R. 821 (NC) wherein the Hon’ble National Commission allowed the claim of the complainant relying on the Judgement passed by Hon’ble Supreme Court of India, in Civil Appeal no.49-50 of 2016 decided on 7.1.2016 , Laxmi Chand –Vs- Reliance General Insurance, by a Bench headed by the Hon’ble Chief Justice of India. The Hon’ble Apex court also relied upon their earlier judgement passed in B.V.Nagaraju –Vs- Oriental Insurance Co. Ltd. in which it was held as under : -
“ It is plain from the terms of the Insurance policy that the insured vehicle was entitled to carry 6 workmen, excluding the driver. If those 6 workmen when travelling in the vehicle, are assumed not to have increased any risk from the point of view of the Insurance company on occurring of an accident, how could those added persons be said to have contributed to the causing of it is the poser, keeping apart the load it was not carrying. Here it is nobody’s case that the driver of the insured vehicle was responsible for the accident. Merely by lifting a persons or two, or even three, by the driver or the cleaner of the vehicle, without the knowledge of owner cannot be said to be such a fundamental breach that the owner should, in all event be denied indemnification. The misuse of the vehicle was somewhat irregular though, but not so fundamental in nature so as to put an end to the contract, unless some factors existed which, by themselves had gone to contribute to the causing of accident”
The Hon’ble Apex court observed in Laxmi Chand –Vs- General Insurance as follows :
“It becomes very clear from the perusal of the above mentioned case law of this court that the Insurance company if ordered to avoid liability must not only establish the defence claimed in the proceeding concerned , but also established breach on the part of the owner /insured of the vehicle for which the burden of proof would rest with the Insurance company. In the instant case, the respondent/company has not produced any evidence on record to prove that the accident occurred on account of overloading of passengers in the goods carrying vehicle. Further as has been held in the case of B.V.Nagaraju that for the insurer to avoid his liability , the Breach of the policy must be so fundamental in nature that it brings the contract to an end. In the instant case it is undisputed that the accident was in fact caused on account of rash and negligent driving of the offending vehicle by its driver , against whom a Criminal case was registered for the offence referred to Supra under the provisions of the I.P.C. These facts have not been taken into consideration by either the State Commission or National Commission while exercising their jurisdiction and setting aside the order of the District Forum. Therefore, the judgment and order of the National Commission dated 26.4.2013 passed in the Revision Petition no. 2032 of 2012 is liable to be set aside , as the said findings recorded in the judgement are erroneous in law”
In our instant case the facts and circumstances are also the same with the cases of the Hon’ble Apex court referred above. Relying upon the observations of the cases referred above we are of the opinion that the OP /Insurance company , by refusing to bear the expenses of repairment of the vehicle caused negligence and deficiency in service. As such, the complainant is entitled to get relief against the Opposite party . Accordingly,
ORDERED
That that the complainant has succeeded to prove his case and he is entitled to get relief in part.
The instant case be and the same is allowed on contest in part. The OP Insurance company is directed to pay Rs.1,21,723/- (one lakh twenty one thousand seven hundred twenty three) to the complainant along with a litigation cost of Rs.10,000/- and the OP is also directed to pay to the complainant an amount of Rs.15,000/- for harassment and mental agony of the petitioner. The OP is directed to comply with the order within 30 days from the date of delivery of this judgement, in default the OP shall be liable to bear interest on the whole decreetal amount at the rate of 8% p.a. till full realization of the decreetal amount.
The complainant is at liberty to file Execution case as per law , if the OP fails to comply with the order mentioned above.
Let a copy of this order be handed over to the parties free of cost. (29.7.16.)
