1. The brief history of the case of the complainant is that he is the owner of Ashok Leyland Tipper bearing No. OD-10A-8286 with financial assistance of Magma Fincrop Ltd. (OP.2) and at the behest of OP.2, the complainant has got insured his vehicle with Magma HDI GIC Ltd. (OP.1) vide Policy No.P0014400002/4103/321917 valid from 28.01.2014 to 27.01.2015. It is submitted that on 18.10.2014 while the insured vehicle was coming from mines to the Utkal Alumina factory with Bauxite, another vehicle bearing No.OD-07D-3545 without any load coming from opposite side, dashed the tipper negligently at the front side causing severe damage to the vehicle of the complainant. It is further submitted that the fact of accident was intimated to the local PS as well as the Ops and as per their advice; the vehicle was shifted to the garage at Kholliguda, J. K. Road, Rayagada for repair. The repairer estimated the cost of repair at Rs.2, 09,500/- but due to non settlement of claim, the complainant paid the cost of repair from his own pocket and the Ops instead of settling the claim, on 29.11.2014 repudiated the claim for violation of policy terms and conditions as the vehicle was carrying some extra load at the time of accident. The complainant submitted that the accident was caused due to rash and negligent driving of the offending vehicle but not for any excessive load. Thus alleging deficiency in service on the part of the Ops, he filed this case praying the Forum to direct the Ops to pay Rs.2, 09,500/- with interest @ 18% p.a. from 18.10.2014 towards cost of repair and to pay Rs.2.00 lacs towards compensation besides Rs.10, 000/- towards costs to the complainant.
2. The OP.1 filed counter denying the allegations of the complainant but admitted about the accident of the vehicle on 18.10.2014 being loaded with bauxite and proceeding towards the factory site. It is contended that on being informed, the OP deputed surveyor who assessed the loss at Rs.81, 000/- but during process of claim the OP noticed from the chalan that the vehicle was loaded 26.17 tons which was over the load by 10 tons at the time of accident. It is further contended that since the complainant violated the policy terms which attracts exclusion clause, the OP intimated the fact to the complainant calling comments on the same within 15 days and as the complainant did not reply, the OP has rightly repudiated the claim of the complainant. The OP also challenged the territorial jurisdiction of this Forum as the vehicle met with accident in the district of Rayagada. Thus denying any deficiency in service on its part, the OP prayed to dismiss the case of the complainant.
3. The OP.2 also filed counter denying the allegations of the complainant and contended that the complainant does not fall within the definition of “consumer” as the relationship between the complainant and the OP is that of borrower and lender and as such no consumer dispute arises. It is also contended that the vehicle of the complainant was financed by the OP.2 and the OP being the financier is not liable to pay any compensation and if Forum directs the OP.1 to pay any amount, the said amount should be paid to the OP.2 towards recovery and realization of loan dues. Thus denying any fault on its part, the OP also prayed to dismiss the case of the complainant.
4. The complainant and OP.1 has filed certain documents along with affidavits in support of their cases. Heard from the parties through their respective A/Rs and perused the materials available on record.
5. In this case the vehicle bearing NBo.OD-10A 8286 insured with the OP.1 vide Policy No.P0014400002/4103/321917 valid from 28.1.2014 to 27.1.2015 and accident to the insured vehicle on 18.10.2014 are all admitted facts. It is also an admitted fact that the complainant has availed finance for the vehicle from OP.2. While so, the OP.1 challenged the jurisdiction of this Forum to entertain this case as the accident took place in the district of Rayagada and the OP.1 has no branch office at Jeypore.
6. The complainant stated that he availed finance from OP.2 at Jeypore and at the behest of OP.2 the vehicle was insured with OP.1. Incidentally the OP.1 (insurer) is Magma HDI GIC Ltd and the OP.2 (financier) is Magma Fincrop Ltd. and hence both the establishments are of Magma group. The complainant stated that at the behest of OP.2 at the time of finance, he insured the vehicle with OP.1. Naturally it happens when the financier and insurer are of same group. The OP.2 in his reply did not prefer to reply to the said allegation of the complainant. From the above facts it can be concluded that the insurance initiated from the office of OP.2 at Jeypore. Moreover, the vehicle has been registered under RTO, Koraput. Thus part of cause of action arose at Jeypore within the territorial jurisdiction of this Forum and hence this case is maintainable in this Forum.
7. The case of the complainant is that as per advice of Ops repair was conducted and he furnished repairing bills dt.08.11.2014 worth Rs.2, 09,500/- of M/s. Sri Sai Baba Engineering and Body Building Auto Motor Works, Rayagada but on 29.11.2014 the OP.1 repudiated the claim stating that the subject vehicle was over loaded with 10.670 tons of Bauxite from its passing weight as per R.C. Book. The OP.1 also stated in his counter at para-6 that the Insurance Co. intimated the facts to the complainant and asked for comments on the same within 15 days from the date of letter dt.28.11.2014 for taking further action in respect of the claim but as the complainant did not reply, they repudiated the claim. It is seen that the OP.1 vide his letter dt.29.11.2014 has repudiated the claim. Both the letters are available on record filed by the complainant. The OP.1 on the one hand gives 15 days time to the complainant to air his comments on the matter of overloading through his letter dt.28.11.2014 but on the other hand OP.1 forgetting the spirit of his letter dt.28.11.14, hurriedly repudiated the claim on 29.11.2014. This action shows the eagerness of the OP.1 to repudiate the claim without giving any opportunity of being heard from the complainant and by doing so, the OP.1 in our opinion, adopted unfair trade practice.
8. It was ascertained from the letter dt.29.11.2014 that the OP.1 has repudiated the claim of the complainant due to overload of the vehicle at the time of accident as per report of his surveyor. The Surveyor stated that the alleged vehicle was carrying 26.170 tons of bauxite which was overload by 10 tons at the time of accident as per load chalan. Perused the R. C. Book and load chalan from which it was revealed that unladen weight of the vehicle is 9.500 tons whereas the registered laden weight is 25.00 tons. As ascertained from the chalan dt.18.10.2014, the total weight mentioned is 26.170 tons. The chalan does not disclose that the weight of laden bauxite is alone 26.170 tons. In absence of any specific evidence it cannot be said that the weight of bauxite was 26.170 tons. The laden weight capacity of the vehicle is 25.00 tons and it can be possible to load 1.00 ton more but not 10.00 tons in a vehicle as reported by the Surveyor. Therefore, we come to the conclusion that the laden weight of the vehicle at the relevant time was 26.17 tons which was 1.00 ton more than the laden weight but not 10.00 tons as per report of the surveyor.
9. OP No.1 took plea that the complainant had violated the terms and a condition of the policy as the vehicle was over loaded at the time of accident. Now it is to be seen whether the factum of carrying 1.00 ton more bauxite than the permitted capacity in the vehicle by the insured amounts a fundamental breach of terms and conditions of the policy so as to allow the insurer to eschew its liability towards the damage caused to the vehicle. On plain reading of R. C. Book it was ascertained that the laden weight of the vehicle is 25.00 tons. If 25.00 tons of load in the vehicle are assumed not to have increased risk from the point of view of Insurance Co. on occurring of an accident, how could this 1.00 ton extra to be said to have contributed to the causing of it is the pose, keeping apart the load it was carrying. Further in this case, the driver of the vehicle was not responsible for the accident. Merely by lifting 1.00 ton more bauxite without the knowledge of the owner, it cannot be said to be such a fundamental breach that the owner should, in all events, be denied indemnification by putting an end to the contract. However, the OP.1 is not producing any evidence on record to prove that the accident occurred on account of over loading of goods in the vehicle except the plea of violation of policy conditions.
10. It is the further case of the complainant that the vehicle met with an accident on 18.10.2014 on account of rash and negligent driving of the offending vehicle bearing No.OD-07D-3545 coming from the opposite side. In this regard, an FIR No.72 dt.19.10.2014 was registered with the Doraguda PS, Rayagada for the offending vehicle punishable u/s.279, 337 & 34 IPC. The complainant has also incurred Rs.2, 09,500/- for the repair of the vehicle and also informed the insurance company about the accident and damage cause to the vehicle. The OP.1 also appointed Surveyor who assessed the loss at Rs.81, 000/- whereas the complainant had preferred a claim of Rs.2, 09,500/- with supporting bills. The detailed report of the Surveyor cannot be ignored and it has considerable evidential value unless it is discredited by producing evidence to the contrary. Therefore, we accept the report of Surveyor and the amount assessed by the Surveyor after deducting policy excess and depreciation is Rs.81, 000/- as net liability of the insurer.
11. On the basis of pleadings of the parties and materials on record we come to the conclusion that if the total laden weight of 25.00 tons as per R. C. Book did not have a bearing on the cause of accident, then the mere factum of 1.00 ton extra load would not disentitle the insured-claimant from claiming compensation under the policy towards the repair charges of the vehicle. Accordingly we direct the OP.1 to settle the claim of the complainant as per settled principle of law on non standard basis up to 75% of the amount spent for effecting repair to the damaged vehicle after taking into consideration the assessment of the Surveyor and the net liability of the OP comes to Rs.60, 250/-.
12. In this case, we found no correctness of the grounds of repudiation adopted by the insurer and thus hold that the repudiation has been made without proper application of mind. Further the OP.1 without giving reasonable opportunity has hurriedly repudiated the claim on 29.11.2014 forgetting the contents of his letter dt.28.11.2014 and thus adopted unfair trade practice in the entire episode for which the complainant is suffering till date. As such the complainant is to be suitably compensated by the OP.1. Considering the sufferings of the complainant we feel a sum of Rs.20, 000/- towards compensation and Rs.5000/- towards costs in favour of the complainant will meet the ends of justice.
13. In this case the OP.2 being the financier and formal party to this case has no liability as it is a case of insurance matter. The OP.2 is not entitled to get the awarded sum to be paid by the OP.1 as it failed to adduce any evidence regarding pending EMIs or overdue charges against the vehicle of the complainant in order to consider its submissions.
14. Hence ordered that the complaint petition is allowed in part and the OP.1 is directed to pay Rs.60, 250/- with interest @ 12% p.a. from the date of repudiation i.e. 29.11.2014 towards repair charges of the vehicle and to pay Rs.20, 000/- towards compensation besides Rs.5000/- towards cost of this litigation to the complainant within 30 days from the date of communication of this order.
(to dict.)
