Orissa

Cuttak

CC/15/2018

Dillip Kumar Sahoo - Complainant(s)

Versus

Branch Manager,ICICI Lombard General Insurance Co. - Opp.Party(s)

R K Pattanaik

26 Sep 2019

ORDER

IN THE COURT OF THE DIST. CONSUMER DISPUTES REDRESSAL FORUM,CUTTACK.

C.C No.15/2018

Dullip Kumar Sahoo,

At:Kamarpada,PO:Jashapada,

Cuttack.                                                                                      .… Complainant.

 

Vrs.

.                                                                       

1.        Branch Manager,

ICICI Lombard General Insurance Co.,

Cuttack Branch Office,Shree Kailash Plaza,

Link Road,Madhupatna.Cuttack.

 

2.        Authorized Signatory,

ICICI Lombard General Insurance Co,

ICICI Lombard House,414,Veer Savarkar Marg,

Near Siddhi Vinayak Temple,

Prabhadevi,Mumbai-400025.

 

3.       Branch Manager,

Bank of India,

Kandarpur Branch,At/PO:Kandarpur,

Dist:Cuttack.… Opp. Parties.

 

 

Present:               Sri Dhruba Charan Barik,President.

                 Smt. Sarmistha Nath, Member (W).

 

Date of filing:    31.01.2018

Date of Order:  26.09.2019

 

For the complainant  :           Sri R.K.Pattnaik,Adv. & Associates.

For the O.P.No.1 & 2 :          Sri R.Pati,Adv. & Associates.

For the O.P No.3:                              None.

 

Smt. Sarmistha Nath,Member(W).

 

                The complainant has filed this complaint before this Forum against the O.Ps for Redressal of his grievances U/S-12 of the Consumer Protection Act,1986(Act in short) in terms of his prayer made in the complaint  petition with regard to deficiency in service provided and unfair trade practice adopted by the  O.Ps.

1. The case of the complainant is that he purchased a Bolero Pick Up Van of Mahindra & Mahindra make with the financial assistance of Bank of India,Kandarpur Branch.  The cost of the said Bolero in question is Rs.6,45,305/- and the said vehicle bears Regd. No.OR-05-AAS-4339.  The complainant availed the service of the O.P taking an insurance policy under ‘Goods Carrying vehicle package policy” on payment of consideration.  The O.P after accepting the premium and due verification of the vehicle has accepted the risk and has given a policy in the name of the complainant bearing policy no.3003/13481595/00/000 and the said policy commences from 28.4.17 mid night to 27.4.18 and the sum assured under the policy is Rs.6,13,040/-  covering the risk of the entire vehicle.  The insurance company has also taken premium of Rs.27,973/-.  The policy Bond and the premium payment receipt are annexed as Annexure-1.

The said vehicle loaded with custard apple (Ata) and coming from Bhanja Nagar met with an accident on 1.8.2017 at about 12.30 in the mid night while dashing against a Sal tree near village Buduli.Due to said accident the driver as well as the helper of the vehicle sustained bodily injury and they were shifted to Sub-Divisional hospital for treatment.Due to accident, the vehicle of the complainant suffered from extensive damage.FIR was lodged with the Bhanja Nagar Police station, in the district of Ganjam.Due to such accident, the front portion of the vehicle was completely damaged and the occupant of the said vehicle was injured and two persons died of such accident.After the accident, the complainant brought the fact of accident to the notice of the local police i.e. the Bhanjanagar police and a case was registered bearing P.S Case No.224/2017 dt.1.8.17 U/S-279,337,338,304(a) of I.P.C.

Further the fact of accident was also intimated to the O.P.1 & 2 on the same date.The insurance company after receiving intimation deputed their spot surveyor for assessment of the loss and after assessment of the loss and on the advice of the O.P, the vehicle was taken to the authorized repairer, M/s. Aditya Motors at Bamphakud,Phulnakhara,Cuttack for its repairing and final assessment.The aforesaid Garage is authorized dealer of Mahindra & Mahindra vehicle where the vehicle was put to repair.In the said workshop the repairer has given an estimate for repair amounting to Rs.6,89,323/-.Repairing estimate made by the Garage M/s. Aditya Motors is annexed as Annexure-3.

The surveyor of the O.P has also made a detailed assessment of the loss sustained by the complainant due to accident but the copy of the survey report has not been supplied by the O.P till filing of the case.The O.P has violated the I.R.D.A Regulation of Policy Holder Protection Interest (Regulations 2002).After assessment of the loss by the surveyor, the complainant eagerly waited for the outcome of the claim in respect of his vehicle but the O.P remained silent over the matter for a considerable time and issuedletter dt.29.11.17to the complainant indicating that on close scrutiny of the paper submitted by the complainant vis-à-vis the terms and conditions of the policy, the claim is not tenable on the ground that at the relevant pointof accident the subject vehicle has committed breach of policy conditions by carrying passengers more than the permissible limit, so the O.Ps have repudiated the claim of the complainant.The repudiation letter dt.29.11.17 is annexed as Aannexure-4.The O.P took almost 7 months time to repudiate the claim of the complainant though the complainant has almost complied with all the necessary formalities.

The complainant further averred that the O.P arbitrarily repudiated the claim on the ground that the vehicle is being carrying passengers more than the permissible limit is without any basis and when the same has not contributed to the accident.Further the repudiation is oppose to the very terms and conditions of the policy in as much as the O.P. while repudiating the claim has lost sight of the fact that the cause of loss is due to accident which does not have any nexus with the carrying of passenger more than the permissible limit nor the excess carrying of passenger has contributed to the accident.

The complainant has not committed any breach of policy conditions and the vehicle in question is having fitness certificate as well as the driver is having a valid driving license as the material point of accident.The O.P should not have repudiated the claim on the ground that the vehicle in question is carrying passenger more than the permissible limit.In this respect law is fairly well settled that the breach of policy conditions must be a fundamental breach which should either contribute to the accident or it is instrumental to the accident.So carrying passenger more than permissible limit cannot be a fundamental breach so as to repudiate the liability under the policy contract.

The complainant has prayed before this Forum to direct the O.Ps to pay Rs.6,89,323/- with interest @ 9% per annum from the date of repudiation till payment towards accidental loss as indicated in the claim form, Rs.50,000/- as compensation for mental agony and harassment andRs.20,000/- towards cost of litigation,in total Rs.7,59,323/-.

2. O.Ps 1 & 2 have submitted their written version and stated that   the complaint petition as laid down is neither maintainable in facts nor in law.  The claim was repudiated after due application of mind and after taking all the relevant factors into consideration, hence the complaint petition is not maintainable.  The O.P admits to have issued a Goods Carrying Package Policy bearing No.3003/130481595/00/000 in favour of one Dillip Kumar Sahoo covering the risk of his new Bolero Pick-Up Van bearing Engine No.TBHID 53249 and Chassis No.MAIZN2TBKHID37049 corresponding to registration bearing No.OD-05-AA-4339 which was valid from 28..4.17 to mid night of 27.4.18, subject to certain terms and conditions of the insurance policy.  Copy of the insurance policy and policy conditions are annexed as Annexure-A/1 & A/2 respectively.  The aforesaid vehicle was registered as a Goods vehicle and the seating capacity of the vehicle as per registration certificate is 2, as such except driver and helper nobody is permitted to travel in the said vehicle and no passenger is/are permitted to be carried in the vehicle.  Copy of registration certificate is filed and marked as Annexure-B.
3. The above noted policy covering the risk of the Bolero Pick-Up Van, the O.P had undertaken to indemnify the legal liability if any which will arise out of the use of the insured vehicle in a public place as well as to reimburse the loss if any suffered by the insured on account of the damage caused to the said vehicle if it will meet with any accident on account of the loss of the vehicle during the policy period and further in the said policy the O.Ps had undertaken to pay Rs.6,13,040/- as insured declared value of the vehicle.  During the subsistence of the insurance policy the insured vehicle met with an accident on 31.7.17 at about 8.00 P.M.  It is informed that the vehicle dashed against a tree resulting damage of the vehicle and death of occupant to the vehicle.  The FIR was lodged before Bhanjanagar police station by one Dadhibamana Nayak alleging that on the date of accident his two sons and another person named as Rajesh Kumar Nayak were traveling in the said vehicle at the material time of the accident.  As such 3 persons were travelling in the said vehicle against permitted seating capacity of two.   Copy of FIR is filed here as Annexure-C.  On receipt of the intimation of accident, the O.Ps engaged Er. Ashok Kumar Das, independent surveyor and loss assessor for detailed survey of the damaged vehicle and for assessment of the loss, who after completion of survey submitted his report assessing net liability to the extent of Rs.2,70,000/-.  Copy of the survey report dt.22.11.17 is annexed as Annexure-D.

After receipt of the survey report and other relevant materials on 22.11.2017, when it is confirmed that the insured vehicle was carrying excess passenger against the permitted seating capacity, the insurance company vide letter dt.29.11.17 promptly repudiated the claim of the complainant, hence there is no deficiency in service on the part of the insurer company as the carrying of passengers in a goods vehicle is itself is a violation of terms and conditions of the policy as per the contract of policy as well as it violates the rules framed under the M.V.Act. Copy of repudiation letter dt.29.11.17 is filed and marked as Annexure-E.

4. We have heard the advocates of the parties at length, perused the pleadings of the parties and went through the papers and documents filed by the parties as well as decisions cited by them.  Admittedly the complainant insured his vehicle for sum assured is Rs.6,13,040/-, the vehicle in question met with an accident and the vehicle was damaged.  The counsel for the complainant submitted that the persons travelling in the vehicle against prescribed seating capacity as per registration certificate cannot be said to have contributed to the cause of accident so the vehicle was carrying more than permissible passengers cannot be a ground for the insurance company to repudiate the claim.

On the other hand the counsel for the O.P contended that since the vehicle was registered as goods vehicle and the seating capacity as per registration certificate is two as such except the driver and helper nobody is permitted to travel and no passenger is permitted to be carried in the vehicle.But at the time of accident three persons were travelling in the said vehicle against prescribed seating capacity of two, hence the insurer repudiated the complainant’s claim.

5. After hearing arguments placed by both the parties, we are of the opinion that if three persons were travelling in the said vehicle against prescribed seating capacity of two, those added persons cannot be said to have contributed to the cause of accident.  As per decision of the Hon’ble Apex Court in case of B.V.Nagaraju Vrs. Oriental Insurance Co. Ltd wherein it was held that three persons travelling against prescribed seating capacity could not have contributed to the occurring of accident.  It cannot be said to be such fundamental breach so as to afford ground to the insurer to repudiate the claim.
6. In view of the above, the O.Ps are found deficient in rendering service as per the terms of contract and unfair trade practice.

ORDER

O.Ps are directed to pay the claim amount as per the calculation of loss as made by the surveyor amounting to Rs.2,70,000/- (Rupees  two lakhs and seventy thousand only).  The O.Ps will also pay a further sum of Rs.50,000/-(fifty thousand) as compensation for mental agony and harassment  and  Rs.5000/-(five thousand) towards cost of litigation to the complainant within a period of 45 days from the date of receipt of copy of this order.

Typed to dictation, corrected and pronounced by the Hon’ble Member in the Open Court on this the 26^th day of September,2019  under the seal and signature of this Forum.

 

  ( Smt. Sarmistha Nath )

                    Member (W)                                                                                                                                                                                                                                                                                                                                                                (Sri D.C.Barik)

                         President