JUDGEMENT
( Passed this on 09th May, 2018)
Shri Shekhar P. Muley, President
01. This is a complaint of deficiency in service against an insurance company for rejecting the insurance claim of the complainant.
02. The complainant owns VOLVO Trailer having registration No.-MH-31-CQ-8683. It was insured with the Opposite Party, the insurance company, for I.D.V. Rs.-26,00,000/- under insurance policy, valid from 21/9/2010 to 20/9/2011. During subsistence of the policy the vehicle met with an accident on 11/5/2011 at Kalmeshwar, District -Nagpur. There was extensive damage to the vehicle. Police report was lodged immediately and the O.P. was also promptly intimated. A surveyor was deputed by the Insurance Company and spot inspection was done. On direction of the surveyor the vehicle was shifted to an authorized service station. Estimate of Rs.-18,11,231/- was given for repair expenses. After submitting all documents final survey was done. However, on 25/11/2011 the O.P. informed him by letter that the claim was repudiated because of overloading of the vehicle beyond permitted limit. To that, the complainant gave suitable reply and requested the O.P. to settle the claim, but to no avail. Hence this complaint to claim repair expenses Rs.-18,11,231/- with towing charges Rs.-12,000/-. besides compensation and cost.
03. The O.P. Insurance Company filed reply and admitted the policy cover of the vehicle for I.D.V. Rs.-26 lakh. It is also admitted that the vehicle met with an accident. Admittedly a surveyor was deputed and the vehicle was shifted to a garage. But it is denied that repair estimate of Rs.-18,11,231/- was given. It is also denied the complainant submitted all documents. After scrutiny of the load challan the claim was repudiated for overloading. Denying any deficiency in service, it is urged to dismiss the complaint.
04. Heard Ld counsels for both sides. Perused documents. Our findings for the reasons are as under.
FINDINGS AND REASONS
05. As per repudiation letter the claim was repudiated because at the time of loss the vehicle was overloaded, full load was 214% of actual registered / permitted load. Neither party has placed on record copy of the terms and conditions of the policy. Nevertheless, overloading beyond permitted load amounts to breach of policy. However, in the proposal of vehicle insurance, it is mentioned that overloading up to 25% of the mentioned capacity will be waived off. That means overloading up to 25% of the permitted load will not be considered as breach of policy condition. It is further mentioned that if load exceeds 25% the permitted load, 75% claim will be payable. The complainant has admitted that the vehicle was overloaded. So the point is whether the O.P. was correct in repudiating the entire claim on the ground of overloading and whether overloading amounts to breach of policy condition in this case.
06. Reliance is placed on some judgments by both the counsels. On behalf of the complainant, following four judgments are relied on.
- Amalendu Sahoo v/s Oriental Insurance Co. Civil Appeal No. 2703/10 decided on 25/3/2010 (SC)
- Oriental Insurance Co. v/s Girbar Sinh Nandwanshi Revision Pet No. 1174/11 decided on 3/6/2015 (NC)
- Lakhmi Chand v/s Reliance General Insurance CivilAppeal No. 49-50/16 decided on 7/1/2016 (SC)
- Bherajram Jat v/s United India Insurance Co. Revision Pet No. 2573/08 decided on 5/1/2015 (NC)
In all the above judgments repudiation of insurance claim was on the ground of overloading. But it was held that in case of overloading of vehicles beyond licensed carrying capacity, pay claims not exceeding 75% of admissible claim should be allowed. Hon´ble Supreme Court in Lakhmi Chand case while rejecting the plea of insurance company held that mere factum of carrying more passengers than the permitted capacity in the goods carrying vehicle does not amount to a fundamental breach of the terms and conditions of the policy so as to allow the insurer to eschew its liability towards the damage caused to the vehicle.
07. On the other hand, one judgment is relied upon by the counsel for the OP. In Darcl Logistics Ltd. v/s ICICI Lombard GIC Ltd Revision Pet No. 3960/13 decided on 2/11/2015 (NC) the vehicle was found overloaded when it met with an accident. Full load was 530% more than permitted load. Since the insurer repudiated the claim, a complaint was lodged, which was allowed on non standard basis. In appeal, the order was set aside against which revision was filed before the Hon´ble National Commission. Incidentally, in that case same O.P. was involved, who is before us. The National Commission upholding the judgment of State Commission held such abnormal overloading would be the cause of an accident. Such overloading violates the provisions of insurance policy.
08. Thus we have two contrary views on the issue of overloading. As observed by the Hon´ble Supreme Court, there must be fundamental breach of the terms and conditions of the policy to repudiate the claim. It is not that in every case of overloading fundamental breach of terms and condition of policy has to be inferred. There is no evidence to show the overloading was the cause of accident, nor such plea is taken by the O.P. That apart, there is nothing to show that if load is more than 25% of permitted load, no claim will be payable. We, therefore, follow the judgment in Lakhmi Chand case and hold that the repudiation of the claim in its entirety was not correct. The complainant is entitled to 75% of the repair expenses.
09. The complainant has claimed Rs.18,11,231/-. But this is only an estimate of expenses. There is no evidence that he has paid that much amount or any amount. No receipt/bills are filed on record. Therefore we cannot grant such relief blindly without there being evidence of payment by the complainant. The complainant shall first submit the claim with all payment receipts to the O.P. and then the O.P. Insurance Company shall conduct final survey and then pay 75% of the admissible amount on non standard basis to him. Since we find that outright rejection of the claim was not correct, we grant some compensation to the complainant. With this direction the complaint is allowed. Hence, the following order.
ORDER
(01) The complaint is partly allowed.
(02) The complainant shall submit fresh claim with payment receipts/bills of repairs to the O.P. Insurance Company within 30 days from today and thereafter the O.P. Insurance Company shall conduct final survey and then pay 75% of the admissible amount to the complainant.
(03) The O.P. Insurance Company shall pay compensation of Rs.-10,000/- (In words Rupees Ten Thousand only) for mental and physical harassment and litigation cost Rs-5000/- (In words Rupees Five Thousand only) to the complainant.
(04) The order shall be complied by the O.P. Insurance Company within 30 days from receipt of the copy of order.
(05) Copy of the judgment/order shall be given to both the parties, free of cost.
