- This is a petition filed by one Md. Muzzamil Ahmed (hereinafter referred to as the petitioner) against Cholamandalam Insurance Company Ltd. and 2 others (hereinafter referred to as the opposite parties) U/S 35 of the consumer Protection Act, 2019 praying for recovery of money, compensation and other reliefs.
- Fact and circumstances for filing of the aforesaid petition as narrated by the petitioner are as follows :-
The complainant is the registered owner of Traveler 26 non AC being Regd. No. AS-02-BC-9954 and the same was insured with opposite party No.1, namely Cholamandalam General Insurance Company Ltd. vide insurance policy No.3373/00576860/000/00 having all valid and required documents like registration card, driving license, Form – 22, Form – 22/A, Installation Certification of speed limiter device/governor, G.P.S Fitment Certificate, All India Tourist Permit, Authorization for Tourist Vehicle Permit from State Transport Authority (Assam) etc. Further submission of the petitioner is that the said vehicle met with an accident on last 24-01-2020 at Rangjuli, Goalpara where two persons died and other passengers got injured and the vehicle was also damaged completely and hence, after the accident, he informed the Branch Manager of Opposite Party No.1 regarding the said accident and also placed his claim petition before the opposite parties regarding damage of his vehicle but the opposite parties repudiated his claim on the ground that his vehicle had violated the terms and conditions of Insurance Policy by carrying more passengers beyond sitting capacity at the time of accident but the fact remains that there were sufficient documents to prove that the allegation regarding the sitting capacity violation was false. The petitioner submits that having no other alternative, he had served a pleader’s notice upon the opposite parties but did not receive any response from them to settle his claim and thus, the opposite parties with ill intention to deprive him from his legitimate claim regarding damage of his insured vehicle, repudiate his claim without having valid reason and thereby caused deficiency of service on their part. Hence this claim petition is before this Commission praying for the relief.
Opposite party Nos. 1, 2 and 3 filed their written version and contested the claim petition of the petitioner. By their written version, the opposite party Nos.1, 2 and 3 submitted that there is no cause of action for the complainant to file this complaint petition, the complaint petition is not maintainable under law and facts and liable to be dismissed, that the petition does not attract the provision under section 23 of the Consumer Protection Act, and there was no deficiency of services on the part of the opposite parties while repudiating the claim of the petitioner etc. The case of the opposite parties is that they appointed one Mr. Bankim Chandra Das as the investigator to investigate the matter of accident and during the investigation, it was established that the said vehicle of the complainant was plying on the road with excessive passengers beyond the sitting capacity and the said investigator also collected paper cutting of the news-paper relating to the accident which clearly shows that the vehicle of the complainant was plying on the road with more passengers beyond permitted sitting capacity during the relevant time. Their further submission is that as the policy holder of the insured vehicle had violated the policy conditions regarding the sitting capacity of the vehicle and thereby violated the terms of policy of the Insurance at the time of accident and hence, the opposite parties are not liable to pay the complainant any amount for damage of his vehicle. The opposite parties in support of their written version also relied on the judgments of Hon’ble Apex Court in United India Insurance Co. Ltd –Vs- Harchand Rai Chandan, Oriental Insurance Co. Ltd –Vs- Sony Cheriyan, M/s Suraj Mal Ram Niwas Oil Mills(P) Ltd –Vs- United India Insurance Co. Ltd & Anr, M/s Industrial Promotion & Investment Corporation of Orissa Ltd. –Vs- New India Assurance Company Ltd. & Anr.
The opposite parties submit that as the petitioner had violated the terms of Insurance Policy by carrying excessive passengers in his vehicle beyond permissible capacity at the time of accident, hence, they did not commit any deficiency of service while repudiating the claim of the petitioner and thus, prays for dismissal of the claim petition.
4. On basis of pleadings of both the contesting parties the following points have come out for discussion and decision:-
- Whether the complainant suffered mental and financial loss for the act of the opposite parties denying to extend the benefit of the insurance policy bearing No. 3373/00576860/000/00 which he duly insured for his damaged Traveler 26 non AC being Regd. No. AS-02-BC-9954 and whether such act on the opposite parties amounts to deficiency in service?
- Whether the complainant had violated the terms and condition of the Insurance Policy bearing No. No. 3373/00576860/000/00 by carrying passengers beyond sitting capacity at the relevant time?
- Whether the complainant is entitled for the relief as prayed for?
- The complainant filed evidence in affidavit of himself and one witness and also exhibited several documents in support of his claim. The opposite parties also examined one witness in support of their pleas. All witnesses were duly cross-examined by their opponents.
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7. Decision and reasons thereof:-
8. For the sake of brevity all the Points No. (i) , (ii) and (iii) are taken jointly for discussion and decision.:-
The claim of the claimant is that he duly insured his damaged vehicle with the opposite party No.1 vide policy No. 3373/00576860/000/00, and his said vehicle having met with an accident on last 24-01-2020 and damaged badly, he placed his claim petition before the opposite parties to get the benefit of his said Insurance Policy but the opposite parties without having any valid reasons repudiate his claim. In support of his claim, the complainant examined himself as P.W.1. In his evidence, he deposed to the effect that he being the registered owner of Traveler 26 non AC bearing Regd. No. AS-02-BC-9954, duly insured the same with Cholamandal General Insurance Company Ltd. vide insurance policy No.3373/00576860/000/00 having all valid and required documents like registration card, driving license, Form – 22, Form – 22/A, Installation Certification of speed limiter device/governor, G.P.S Fitment Certificate, All India Tourist Permit, Authorization for Tourist Vehicle Permit from State Transport Authority (Assam) etc. Further evidence of this P.W. is that on last 24-01-2020 his said vehicle met with an accident at Rangjuli, Goalpara where two persons died and other passengers got injured and the vehicle was also damaged badly and thereafter, he informed the Branch Manager of Opposite Party No.1 about the incident and placed his claim petition before the opposite parties to get the insurance benefit for his damaged vehicle but the opposite parties repudiated his claim on the ground that his vehicle had violated the terms of Insurance Policy by carrying more passengers beyond sitting capacity at the time of accident but the fact remains that there were sufficient documents to prove that the allegation regarding the sitting capacity violation was false. The P.W.1 further deposed that he, having no other alternative, he served pleader’s notice upon the opposite parties but they did not settle his claim and thereby denied to extend the benefit of his policy and such act, on the part of the opposite parties amounts to deficiency of service. The P.W.2- Habibur Rahman by his evidence deposed that he was the handymen of the damaged vehicle, he was present in the bus during the accident and there was no violation of sitting capacity of the damaged vehicle at the time of accident.
The opposite parties by filing their written statement submitted that as the petitioner had violated the policy conditions regarding the sitting capacity of the vehicle and thereby violated the terms of the Insurance Policy at the time of accident , so, they denied to extend the benefit of his policy for his insured vehicle and thus, there was no deficiency of service on their part while repudiating the claim of the petitioner. In support of their pleas, the opposite parties examined one Sabir Ahmed Choudhury as D.W.1. In his evidence in affidavit this D.W. deposed that after the claimant filed his claim petition, the opposite parties appointed one Mr. Bankim Chandra Das as investigator to investigate the matter of accident and during the investigation, it was established that the said vehicle of the complainant was plying on the road with excessive passengers beyond the sitting capacity. He also deposed that as per the terms of the insurance policy, the permitted sitting capacity of the bus of the complainant was 27 but at the time of accident, the bus was plying on the road with 31 passengers and thus, the policy holder of the insured vehicle himself had violated the policy conditions regarding the sitting capacity of the vehicle and thereby violated the terms of Policy of the Insurance at the time of accident and hence, the opposite parties not liable to pay the complainant any amount for damage of his vehicle. This D.W. also relied on the judgment of Hon’ble National Commission decided on 11/07/2017 in Oriental Insurance Co.-Vs- Rishi Jaiswal 7 Anr. And in another revision petition before the said Commission between Dubey Travels Vs Oriental Insurance Co. This D.W. also exhibited the Policy Copy for vehicle of the claimant vide Ext.A, The investigation report by investigator as Ext. C, the News Paper cut dated 24-01-2020 vide Ext.D.
Thus, from above evidence adduced by the parties and the materials in record, it reveals that the facts of accident on last 24-01-2020 and the vehicle having duly insured with the opposite party No.1 were not disputed. The opposite parties pleaded and adduced evidence that the petitioner had violated the policy condition in view of the fact that the damaged vehicle was driven on the road at the time of accident with 31 passengers which was beyond permissible sitting capacity of 27 passengers and hence, the repudiation of the claim of the petitioner by them does not amount to deficiency of service. The petitioner as P.W.1 exhibited the certified copy of the F.I.R. dated 01-03-2020 regarding the accident of his vehicle Vide Ext.3 and the same document was also exhibited by opposite parties as Ext.A. The said F.I.R was filed by one Idrish Ali before the Rangjuli Police Station and the same was registered by Rangjuli P.S. vide Ranjuly P.S. GDE No.409. In that F.I.R. it was mentioned that one Habibur Rahman died on the spot due to the accident and 30 others passengers got injured due to the accident. The document exhibited as Ext. 5 i.e. Registration certificate of the vehicle and Ext. 6 i.e. the policy document reveal that the sitting capacity of the vehicle including driver of the bus was 27. The tourist vehicle permit exhibited vide Ext-9 also reveals that the sitting capacity of the bus was 27.
The well settled legal position is that in a contract of insurance, there is a requirement of Uberrima fides i.e. good faith on the part of the assured. Hon’ble Supreme Court in the case of Vikram Greentech(1) Ltd. V/s New India Assurance Co. Ltd. reported in (2009)5 SCC 599, while dealing with the contract of insurance held as follows:-
“16. An insurance contact, is a species of commercial transaction and must be construed like any other contract to its own terms and by itself. In a contract of insurance, there is requirement of Uberrima fides i.e. good faith on the part of the assured. Except that, in other respects, there is no difference between a contract of insurance and any other contract.
17. The four essentials of a contract of insurance are(i) the definition of risk, (ii) the duration of the risk, (iii) the premium and (iv) the amount of insurance. Since upon issuance of the insurance policy, the insurer undertakes to indemnify the loss suffered by the insured on account of the risk covered by the insurance policy, its terms have to be strictly construed to determine the extent of liability of the insurer.
18. The endeavor of the court must always be to interpret the words in which the contract is expressed by the parties. The court while construing the terms of policy is not expected to venture into extra liberalism that may result in rewriting the contract of substituting the terms which were not intended by the parties. The insured can not claim more than what is covered by the insurance policy. (General Assurance Society Ltd. v. Chandmill Jain(1966)3 SCR 500, Oriental Insurance Co. Ltd. v. Sony Cheriyan AIR 1999 Sc 3252 and United India Assurance Co. Ltd. v. Harchand Rai Chandan Lal (2004)8 SCC 644)”.
From the aforesaid proposition of law, it is clear that the terms of Insurance Policy have to be strictly construed and there is no scope for the court while interpreting the terms of Insurance Policy to rewrite the contract of substituting the terms which were not intended by the parties. In the instant case it is seen that the as per terms of the Insurance Policy, the sitting capacity of the insured vehicle was 27 while the F.I.R. (Ext.1/ Ext.A) reveals that there were 31 passengers travelling in the bus at the time of accident. The complainant himself exhibited the said F.I.R. dated 01-03-2020 in connection with the case. He also adduced evidence in the case as P.W.1. From his cross examination it reveals that he was not present in the bus at the relevant time. Apart from him one Habibur Rahman was examined in the case as P.W.2 who claims himself to the Handyman of the Bus as well as one of the injured person, however he has not produced any document in this regard. He claimed that he filed Motor Accident claim case in connection with his injury but he has not produced any document in this regard. Further in his evidence, the P.W. claimed that there were sufficient eye witnesses regarding the fact that there were no violation of seating capacity condition of the bus during the time of accident but the petitioner failed to examine any such eye witness. Hence, evidence of P.W.2 cannot be accepted to hold that there were no excess passengers in the bus beyond the seating capacity during the time of accident. The P.W.1 also admitted in his cross examination that the fact of accident was published in the News Paper and it was published that 2 travellers died and other 31 were injured. Besides above all such facts the petitioner side is completely silent regarding the F.I.R. registered vide Rangjuli P.S.. GDE No.409 and has not submitted any documents like list of injured persons from police station, charge-sheet/final report regarding the said F.I.R. to establish the exact numbers of passengers travelling at the time of accident.
Thus from the above observation, this commission is of view that there was violation of Policy Condition regarding sitting capacity of the bus at the time of accident. More over this commission also observed that the petitioner side has not produced any documentary evidence, in the form of bill, voucher, money receipt etc. in respect of exact expenses incurred by him for repairing his damaged vehicle.
Thus, in view of above observation we do not find any cogent and plausible reason to allow the petition filed by the complainant. He cannot claim any insurance benefit under the policy for his damaged vehicle as there was a clear violation of policy condition regarding sitting capacity of his damaged bus at the relevant time. Hence, the petitioner is not entitled for any relief in this case as there was no deficiency of service on the part of the opposite party while repudiating the claim of the petitioner.
In result the points No.1 & 3 are answered in negative and the Point No.2 is answered in affirmative and all the points go against the petitioner.
O R D E R
8. In view of the above discussion, it is found that the petitioner has not succeeded to prove that there was a deficiency of service on the part of opposite parties.
Accordingly, the prayer made by the petitioner U/S 35 of the Consumer protection is dismissed on contest.
Inform all the parties concern.
Given under the hand and seal of this Commission, we signed and delivered this Judgment on this 28th Day of November 2023.
