Tamil Nadu

StateCommission

A/184/2017

The branch manager National insurance Co ltd - Complainant(s)

Versus

M.Viswanathan - Opp.Party(s)

15 May 2023

ORDER

IN THE STATE CONSUMER DISPUTES REDRESSAL COMMISSION, CHENNAI

 

                     BEFORE :      Hon’ble Mr. Justice R. SUBBIAH                              PRESIDENT

                                             Thiru R  VENKATESAPERUMAL                                MEMBER

                        

F.A.NO.184/2017

(Against order in CC.NO.45/2015 on the file of the DCDRC, Salem)

 

DATED THIS THE 15^th DAY OF MAY 2023

 

The Branch Manager                                           M/s. Nageswaran & Narichania

M/s. National Insurance Co. Ltd.,                                       Counsel for

Sankari                                                                  Appellant /Opposite party

 

                                                         Vs.

M.Viswanathan

S/o. Muthuswami

1/35-B, Palvai Street                                                M/s. S. Kalyanaraman

Sandaipettai, Sankari Town                                              Counsel for

Sankari – 637 301, Salem District                            Respondent / Complainant

 

          The Respondent as complainant filed a complaint before the District Commission against the opposite party praying for certain direction. The District Commission had allowed the complaint. Against the said order, this appeal is preferred by the opposite party praying to set aside the order of the District Commission dt.30.9.2016 in CC.No.45/2015.

 

          This appeal coming before us for hearing finally on 23.2.2023, upon hearing the arguments of the counsel appearing on bothsides and on perusing the documents, lower court records, and the order passed by the District Commission, this commission made the following order:

 

ORDER

 

JUSTICE R. SUBBIAH,  PRESIDENT   

1.        This appeal has been filed by the Opposite party as against the order dt.30.9.2016 passed by the District Commission, Salem, in CC.No.45/2015, in allowing the complaint. 

 

2.       For the sake of convenience parties are referred as per ranking before the District Commission.

3.       The brief facts of the complaint before the District Commission are as follows:

           The complainant is the owner of a Mini Lorry bearing Regn. No.TN/52/B/5563.  On 20.9.2013, when the complainant was travelling alongwith the labourers, on the Sangagiri-Edappadi main road, at Melammalvalasu,  the said lorry capsized, and as a result of which the lorry was damaged heavily.  The said vehicle was covered with a Comprehensive Policy.  As per the RC, there was an insurance coverage for five persons including the driver.  In respect of the above accident, a case was registered before the Sangagiri Police in Crime No.499/2013 under Sec.279 and 337 of IPC.  The complainant had spent Rs.230330/- towards the spare parts, and repair charges.  On intimation to the opposite party, a surveyor also had inspected the vehicle and submitted his report to the opposite party.  Initially the opposite party agreed to pay a sum of Rs.160000/- towards the claim amount.  But all of a sudden, the opposite party turn around and replied vide their letter dt.28.4.2014, that the claim of the complainant had been closed.  Therefore, the complainant had caused legal notice on 2.8.2014, for which a reply was received from the opposite party in 5.8.2014.  Inspite of the best efforts taken by the complainant, the opposite party had not come forward to settle the claim of the complainant.  Therefore, the complainant filed the present complaint before the District Commission, praying for a direction to the opposite party to pay a sum of Rs.1,60,000/- towards the claim amount, alongwith interest @18% p.a., from the date of accident, and also to pay a sum of Rs.20000/- towards compensation alongwith cost of Rs.20000/-.   

4.       The case of the complainant was resisted by the opposite party as follows:

          The complainant is the owner of the mini lorry, bearing Regn.No.52 B5563, and the same is insured with the opposite party from 1.3.2013 to 28.2.2014.  The complainant’s lorry sustained damages due to an accident which occurred on 20.9.2013 at Velammal Valasu on Sankari Edappadi road.  The said vehicle was having package policy which covers own damages also.  As per RC of the complainant’s lorry, the seating capacity is only for two persons, including driver, whereas, five persons (including driver) travelled in the cabin of the lorry at the time of accident.   The opposite party deny that they agreed to settle the claim by paying Rs.160000/-.  As per letter dt.28.4.2014, the opposite party informed the complainant that they are closing the claim on account of violation of the policy condition.   This complaint is false and vexatious one.  Therefore, there is no deficiency in service on their part.   Thus prayed for dismissal of the complaint.

 

5.       In order to prove their claim, proof affidavits were filed by the parties alongwith documents which are marked as Ex.A1 to A6 on the side of the complainant, and Ex.B1 to B3 on the side of the opposite party. 

 

6.       The District Commission after analysing the evidence, has come to the conclusion that the claim cannot be repudiated on the sole reason that four persons had travelled in the cabin of the lorry at the time of accident.  It is not the stand of the opposite party that the accident had occurred only due the travelling of 4 persons,  apart from driver in the cabin, which is more than the permitted seating capacity.  Moreover, the workmen, who had travelled in the lorry had workman insurance coverage as per the WC Insurance.  Therefore, the insurance company is liable to pay the amount, and thus directed the opposite party to pay a sum of Rs.160000/-, towards insurance amount alongwith interest @7.5% p.a., alongwith compensation of Rs.2000/- and cost of Rs.1000/-.  Aggrieved over the order impugned, the present appeal is filed by the opposite party as appellant herein. 

 

7.       We have heard the learned counsel on bothsides, perused the documents and the order impugned.

 

8.       It is the submission of the learned counsel for the appellant that as per the certificate issued by the transport authorities, it is clear that only two persons including the driver can travel in the cabin of the insured vehicle.  But at the time of accident more than the permitted seating capacity, workmen had travelled in the vehicle. This statement is proved by way of FIR.  This is a clear violation of the policy condition. Though a coverage was given to the workman as per the Workmen’s Compensation Act, the same has no nexus with the claim made under the Commercial Vehicle Package policy.  Therefore, according to the counsel for the opposite party, the reasons assigned by the District Commission, that since the workmen had Workmen Insurance coverage, the insurance company is liable to pay the compensation, cannot be accepted.  Similarly the other reason assigned by the District Commission, that the travelling of workmen more than the permitted seating capacity in the cabin of the lorry is not the cause for the accident and as much the insurance company is liable to pay compensation, is not legally sustainable.          

 

9.       But according to the complainant, merely based on the contents of FIR, it cannot be said that 5 persons had travelled in the cabin of the lorry.  There must be an independent evidence to show that indeed all of them travelled in the cabin at the time of accident. 

          It is the further contention of the complainant that the District Commission has come to the conclusion that the insurance company has failed to establish that he overturn of the vehicle, was due to the overload of persons in the cabin of the lorry, and as much the repudiation of the claim cannot be accepted.  Thus the counsel for the complainant submitted that such a well considered finding need not be interfered with. 

           That apart the counsel for the complainant has also submitted that the District Commission by analysing the policy, had come to the conclusion that at the time of accident, there was a coverage of insurance for three workmen apart from the driver.  Therefore, the refusal of the claim of Insurance Company cannot be accepted.  Thus the counsel for the complainant submitted that it is not as though the complaint was allowed by the District Commission, without assigning any valid reason.  Thus he sought for dismissal of the appeal by confirming the order of the District Commission. 

         

10.     But we are not inclined to accept the submission of the counsel for the complainant for the following reasons:

           The seating capacity in the cabin of the lorry is only two as per the Registration Certificate.  Whereas, at the time of accident, totally 5 persons including driver had travelled in the cabin which is evident from the FIR marked as Ex.A4.  Therefore, there is a breach of statutory obligation, which amount to violation of policy condition.  Though it is the contention of the complainant that the FIR cannot be taken into consideration to arrive at a finding that at the time of accident, totally 5 person had travelled in the cabin of the lorry, it should be borne in the mind that the FIR is the document, which came into existence at the earliest point of time or at the first stage.  Therefore, the information contained thereon could be considered as a report given by the person, who had seen the incident personally at the earliest point of time or by the person who had been affected personally.  Moreover, in the instant case the First information Report was registered, based on the statement given by one Tmt. Selvi, who had travelled in the lorry at the time of accident.  Therefore, the contents of the FIR cannot be brushed aside easily for the benefit of one party.  When the statement contained in the FIR is clear that four persons travelled in the cabin of the lorry, apart from the driver, then it has to be considered that the complainant had violated the policy condition by overloading the vehicle beyond the permitted limit.   When there is a statutory violation, the denial of the opposite party in settling the claim, cannot be found fault with.  But the District Commission, without looking into the policy condition properly, had allowed the complaint, which in our opinion is not correct.  The other reason assigned by the District Commission that the opposite party has failed to establish the overturn of the vehicle is due to overload of persons in the cabin of the lorry also not holds good.  What we have to see in this kind of case is that as to whether there is a violation of policy condition or not.  There is no legal obligation on the part of the insurance company to establish that the overturn of the vehicle is due to overload of persons in the cabin of the lorry. 

 

          Similarly, the submission made by the complainant that at the time of accident, there was a coverage for three workman, apart from driver, and therefore, the Insurance company is bound to pay the claim amount is not correct for the reason that though a coverage was given to the workman as per the Workman compensation Policy, the name as no nexus with the claim made under the Commercial Vehicle Policy, for the damage of the vehicle. 

 

          Therefore, we are of the opinion, when there is a statutory violation, the denial of the opposite party in settling the claim, cannot be found fault with.  But the District Commission, without looking in to the policy condition, had allowed the complaint, which is in our opinion not correct.  Hence the appeal deserves to be allowed.

 

 

12.     In the result, the appeal is allowed, by setting aside the order of the District Commission, Salem, in CC.No.45/2015 dt.30.9.2016, and the complaint is dismissed.  There is no order as to cost throughout.

          Registry is directed to discharge the mandatory deposit, alongwith accrued interest in favour of the appellant. 

 

 

 

  R  VENKATESAPERUMAL                                         R. SUBBIAH

                      MEMBER                                                     PRESIDENT