Orissa

Cuttak

CC/389/2023

Managing Director,Jitendra Kumar Lenka,M/s Gurumaharaj Engicon Pvt Ltd - Complainant(s)

Versus

Divisional Manager,National Insurance Company Limited - Opp.Party(s)

R K Pattanaik & associates

12 Jul 2024

ORDER

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

      C.C.No.389/2023

M/s. Gurumaharaj Engicon Pvt. Ltd.,

Represented through its Managing Director,

Jitendra Kumar Lenka,

Plot No.603,Bomikhal,Bhuaneswar,

                       Khurda,Odisha-753010.                                             ...Complainant

 

          Vrs.

 

1.        Divisional Manager,

National Insurance Company Ltd.,

Cuttack Division Office,

Opposite Howrah Motors,

Cantonment Road,Cuttack.

 

2.       Regional Manager,

National Insurance Company Ltd.,

Bhubaneswar Regional Office,

                  6^th Floor,IDCO Tower(West Block),

                  Janapath,Bhubaneswar-751022.                            ...Opp.Parties

1.  

 

Present:         Sri Debasish Nayak,President.

                      Sri Sibananda Mohanty,Member.

 

Date of filing:    01.12.2023

Date of Order:  12.07.2024

 

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

For the O.Ps               :            Mr. L.D.Dash,Adv. & Associates.

 

Sri Debasish Nayak,President

Case of the complainant as made out from the complaint petition in short is that he had obtained one Tata Signa Truck bearing Registration number OD-02BS-0842 by getting finance from Kotak Mahindra Bank Ltd.  He had also insured his truck with the O.Ps and had thereby obtained a Goods Carrying Package Policy bearing policy no.163000312210000528 which was effective from 2.6.2022 to 1.6.2023 and the IDV was of Rs.47,11,529/-.  On 9.6.2022 the said truck of the complainant had met with an accident while it was loaded with goods.  The accident took place since because a bull suddenly came across and approached at the front of the truck and while applying brake, the truck had capsized as a result of which the front cabin of the vehicle was severely damaged.  The same was immediately brought to the notice of the local police station and also to the notice of the O.Ps.  The O.Ps had deputed Surveyor in order to inspect the said vehicle.  The Surveyor on his part had inspected the truck, verified the documents and had suggested to carry the damaged truck to the authorised repairer for dismantling the same and to prepare the estimate.  Accordingly, the complainant had taken his truck to Trupti Automobiles, Cuttack and the repairing estimate was of Rs.19,90,135.51.  But, the O.Ps subsequently had not settled the claim of the complainant for which the total repairing amount of Rs.17,69,837/- was borne by the complainant.  The O.Ps had repudiated the claim of the complainant since because the vehicle in question was having no load challan.  The O.Ps opined that the load challan as submitted by the complainant is a fake one.  The Surveyor had mentioned that the truck was carrying 52960 Kgs of load whereas the truck was permitted to carry 31,360 Kgs of load.  Thus, it was over loaded for more than 45.44%.  But according to the complainant, he had never violated the terms and conditions of the insurance policy for which he has approached this Commission with his petition claiming a sum of Rs.16,69,837/- from the O.Ps towards the actual loss as sustained by him together with compensation for a sum of Rs.1,00,000/- towards his mental agony and harassment and further a sum of Rs.10,000/- towards cost of his litigation.  He has also prayed for interest on the claim amount @ 9% per annum from the date of claim till the total amount is quantified.  The complainant has further prayed for any other relief as deemed fit and proper.

Together with his complaint petition, the complainant has filed copies of several documents in order to prove his case.

2.       Both the O.Ps have contested this case and have filed their joint written version wherein they have urged that the case of the complainant is not maintainable which is liable to be rejected.  They admit about the Goods Carrying Package Policy bearing policy No. 163000312210000528 as obtained by the complainant in favour of his Truck bearing Registration number OD-02BS-0842 whose unladen weight is 16139 and the registered laden weight is 47500.  They also admit to have received the insurance claim from the complainant for which they had deputed a Surveyor Bipin Bihari Patra in order to inspect the damaged vehicle at the spot.  The said Surveyor could notice that the vehicle was loaded with 52950 Kgs of crusher dust as per the weighment slip bearing number 987 dated 9.6.2022 from M/s. Maa Mangala Stone Crusher.  The Surveyor had opined that while unloading the crusher dust, the hydraulic piston of the truck got broken due to such over-load for which the truck being unbalanced had capsized causing damage to it.  As per the terms and conditions of the policy, the permissible carrying load of the truck of the complainant should not have been over-loaded but it was carrying load of 52,950 Kgs.  Thus, it was estimated that the truck of the complainant on the relevant point of time was over-loaded by more than 45.54% which had violated the permit condition and Motor Vehicle Act,1988 for which the O.Ps had repudiated the claim as made by the complainant.  As such, the O.Ps through their written version have urged to dismiss the complaint petition with exemplary cost.

          Together with their written version, the O.Ps have annexed copies of several documents in order to prove their stand.

3.       Keeping in mind the averments as made in the complaint petition and the contents of the written version of the O.Ps, this Commission thinks it proper to settle the following issues in order to arrive at a proper conclusion here in this case.

i.          Whether the case of the complainant is maintainable?

ii.         Whether there was any deficiency in service on the part of the O.Ps ?

iii.        Whether the complainant is entitled to the reliefs as claimed by him?

Issue no.ii.

Out of the three issues, issue no.ii being the pertinent issue is taken up first to be considered here in this case.

After perusing the complaint petition, the written version, the written notes of submission as filed from both sides as well as the documents available in the case record, it is noticed that admittedly, the complainant of this case owns one TATA SIGNA Truck bearing Registration Number OD-02BS-0842 which he was using for commercial purposes.  It is not in dispute that the said truck of the complainant had met with an accident on 09.06.2022.  At that time the said vehicle of the complainant was carrying crusher dust of 52,960 kgs.  It is also admitted that the said truck in question belonging to the complainant was insured with O.Ps.  The case has been filed by the complainant when his claim for insurance was repudiated by the O.Ps.  In this context while scanning the evidence as available in the case record as well as copies of documents filed from either sides, it is noticed that as per Annexure-G the vehicle in question was carrying 52,960 Kgs of crusher dust on 09.06.2022 which is revealed from the copies of documents as filed.  As per copy of the Transport Department of Odisha regarding permit in respect of goods, it is noticed that the vehicle of the complainant bearing Registration Number OD-02BS-0842 was having unladen weight of 31,361 kgs but the complainant has admitted that his said vehicle at the relevant time was carrying crusher dust of 52,960 kgs in weight.  The guidelines relating to over-loading of the Goods Carrying vehicle it is noticed that if the vehicle carries over-load beyond 15% GVW (Gross Vehicle Weight) of the vehicle then the claim if made is to be repudiated. But the complainant has urged that though he was carrying crusher dust weighing 52,960 Kgs, the same was not over-loaded.  Such contention of the complainant is not supported by any scrap of document so as to substantiate the same in any manner.  Hence, relying upon the  decisions of the Hon’ble Apex Court in the case of Canara Bank Vs. M/s. United India Insurance Company Ltd. and Others in (Civil Appeal) No.1042 of 2020 @ SLP(Civil) No.20393 of 2018 wherein it is held that “It is settled law that terms of the policy shall govern the contract between the parties, they have to abide by the definition given therein and all those expressions appearing in the policy should be interpreted with reference to the terms of policy and not with reference to the definition given in other laws.  It is a matter of contract and in terms of the contract the relation of the parties shall abide and it is presumed that when the parties have entered into a contract of insurance with their eyes wide open, they cannot rely on the definition given in other enactment.”  Thus, considering the facts and circumstances of this case and keeping in mind the valuable decision of the Hon’ble Apex Court, this Commission notices that infact the vehicle of the complainant was over-loaded with crusher dust at the time of the incident which was beyond it’s capacity thereby exceeding 15% of GVW.  The insurance is a contract in between the insurer and the insured and the complainant had availed through the O.Ps Goods Carrying Package Policy in respect of his truck bearing Registration Number OD-02BS-0842 which was valid from 2.6.2022 to 1.6.2023.  The said policy undoubtedly specifies certain terms and conditions to be obeyed by either party to it.  Thus, when the complainant has executed the insurance policy in favour of his truck in question, he is to abide by the terms and conditions thereof as per the policy contract.  By carrying excess amount of crusher dust, he has definitely breached the specified guidelines and when it is noticed that the over-loading of the vehicle of the complainant was quite more than 45.44% of GVW which the O.Ps have rightly repudiated the insurance claim of the complainant.  Accordingly, this Commission finds no deficiency in service on the part of the O.Ps as alleged against them by the complainant here in this case.  Thus, this issue goes against the complainant of this case.

Issues no.i &  iii.

From the discussions as made above, the case of the complainant cannot be said to be maintainable and the complainant is thus not entitled to any relief as claimed by him.  Hence it is so ordered;

                                              ORDER

The Case is thus dismissed on contest against the O.Ps  and as regards to the facts and circumstances of the case without any cost.

Order pronounced in the open court on the 12^th day of July,2024 under the seal and signature of this Commission.         

                                                                                                                                                                                         

                                                                                  Sri Debasish Nayak

                                                                                              President

                                                                                        Sri Sibananda Mohanty

                                                                                                     Member