Before the District Consumer Disputes Redressal Forum, Rohtak.
Complaint No. : 656.
Instituted on : 01.12.2011.
Decided on : 10.06.2015.
Mohinder Kumar son of Sh. Jawahar Lal resident of H.No.247 Ward No.2, Fatehabad, Teh. and Distt. Fatehabad.
………..Complainant.
Vs.
National Insurance Company Ltd. through its Divisional Branch Office-II, Narain Complex, IInd Floor Opposite Palika Bazar, Rohtak through its Divisional Manager.
……….Opposite party.
COMPLAINT U/S 12 OF CONSUMER PROTECTION ACT,1986.
BEFORE: SH.JOGINDER KUMAR JAKHAR, PRESIDENT.
MS. KOMAL KHANNA, MEMBER.
Present: Sh.K.L.Khera, Advocate for the complainant.
Sh.Anil Sharma, Advocate for the opposite party.
ORDER
SH. JOGINDER KUMAR JAKHAR, PRESIDENT :
1. The present complaint has been filed by the complainant with the averments that he had purchased a TATA Sumo and got insured the same with the opposite party vide cover note no.33519 dated 2.6.1998 valid upto 1.6.1999. It is averred that on 20.09.1998, the complainant with some farmers and driver took the vehicle to some holy place in obligation without any hire and reward and unfortunately on 21.09.1998, a truck bearing no.RJ-07-GO-585 came from the opposite party side in a very high speed rashly and negligently struck into the TATA Sumo of the complainant and the vehicle was damaged badly. It is averred that the FIR no.75 dated 21.09.98 was lodged and the information about the accident was given to the opposite party on the same day telephonically or a special messenger. The claim form was also submitted at that time but any heed was not paid by the opposite party. It is averred that on repeated requests by the complainant, opposite party appointed a surveyor for spot survey and also appointed another surveyor who assessed the total loss of the vehicle vide his report dated 24.10.1998 but despite his repeated requests and notices through Advocate, opposite party has not paid/settled the claim of the complainant. It is averred that in response of the letter dated 25.11.1998 of the opposite party, the complainant sent his consent for settlement of claim in a sum of Rs.349000/- but the opposite party vide its letter dated 15.02.1999 had repudiated the claim on the ground that there were thirteen passengers who were traveling in the vehicle. It is averred that the act of opposite party of repudiating the claim is illegal and against the natural justice. As such it is averred that opposite party may please be directed to pay the claim amount of Rs.348340/- alongwith interest, compensation and litigation expenses.
2. On notice opposite party appeared and filed its written reply submitting therein that the vehicle no.HR-22B-2858 was insured by the answering opposite party as a private vehicle for personal use only and not to carrying the passenger on fare and reward basis. The complainant has violated the terms and conditions of the insurance policy as he was using the vehicle as taxi, therefore, answering opposite party is not liable to pay any claim amount to the complainant. It is averred that the repudiation of the claim by the answering opposite party is legal and as per terms and conditions of the policy. It is averred that the complainant is not entitled for any claim from the answering opposite party and the dismissal of complaint has been sought.
3. Both the parties led evidence in support of their case.
4. Ld. Counsel for the complainant in his evidence tendered affidavit Ex.CW1/A, documents Ex.C1 to Ex.C12 and has closed his evidence. On the other hand, ld. Counsel for the opposite party in his evidence tendered affidavit Ex.R1, documents Ex.R2 to Ex.R5 and has closed his evidence.
5. We have heard learned counsel for the parties and have gone through material aspects of the case very carefully.
6. In the present case insurance and accident of the vehicle is not disputed. It is also not disputed that the opposite party appointed the surveyor who as per his report Ex.R4 has assessed the loss on total loss basis amounting to Rs.349000/-. Opposite party vide its letter Ex.C12 dated 25.11.1998 has sought the consent letter for settlement of claim but the same was repudiated by the opposite party vide letter Ex.R3 on the ground that at the time of accident 13 persons were traveling in the vehicle whereas the vehicle is registered for nine persons only.
7. After going through the file and hearing the parties it is observed that surveyor has assessed the claim on total loss basis but the claim of complainant has only been repudiated on the ground that at the time of accident the 13 passengers were traveling in the vehicle whereas the seating capacity of vehicle as per R.C. is 9 which is violation of terms and conditions of the policy. In this regard it is observed that as per FIR Ex.C3 the accident was caused due to the rash and negligent driving of driver of truck No.RJ07-G0585. Hence there is no nexus between the carrying of passengers and accident of vehicle. In this regard reliance has been placed upon the law cited in 2013(3)CLT 573 titled as The Oriental Insurance Co. Ltd. Vs. Ishrar Ali whereby Hon’ble Uttarakhand State Commission, Dehradun has held that: “Overloading of vehicle at the time of accident-Held-Though there is a breach of the terms of the insurance policy, but this breach is not fundamental in nature-The cause of accident was not overloading, but it was due to head on collision of a truck-Insurance company liable”, as per III(2006) CPJ 254 titled Oriental Insurance Co. Ltd. & Anr. Vs. Sohan Singh, whereby Hon’ble H.P.State Commission, Shimla has held that: “Gratuitous passenger-Liability denied since gratuitous passengers carried in vehicle-Carrying of such passengers, not sole, absolute and only cause of accident-Insurer liable., as per III(2010)CPJ 39 titled as United India Insurance Co. Ltd. Vs. Soma Dey & Ors. Hon’ble West Bengal Kolkata State Commission has held that: “No evidence produced by appellants regarding overloaded vehicle-Expert report states that accident due to tyre burst-Repudiation of claim not justified-Deficiency in service proved-Forum’s order upheld” and as per 2006(1) CPC 594 titled Oriental Ins. Co. Ltd. Vs. Bhagat Ram, Hon’ble National Commission, New Delhi has held that: “Claim relating to loss in accident of a truck was repudiated as it was carrying two unauthorized persons sitting in the vehicle as reported by the surveyor-Ground for repudiation of claim is unjustified-Insurer cannot escape its liability in view of various judgments rendered by Hon’ble Supreme court on this subject matter”. In view of the aforesaid law which are fully applicable on the facts and circumstances of the case it is observed that the repudiation of claim by the opposite party is illegal and unjustified and the complainant is entitled for the claim as assessed by the surveyor i.e. Rs.349000/-.
8. In view of the aforesaid findings and discussions, opposite party is directed to make payment of Rs.349000/-(Rupees three lac forty nine thousand only) alongwith interest @ 9% p.a. from the date of filing the present complaint i.e.01.12.2011 till its actual realization and shall also pay a sum of Rs.2500/-(Rupees two thousand five hundred only) as litigation expenses to the complainant maximum within one month from the date of decision failing which the awarded amount shall fetch interest @ 12% p.a. from the date of decision. Complaint is disposed of accordingly.
9. Copy of this order be supplied to both the parties free of costs.
10. File be consigned to the record room after due compliance.
Announced in open court:
10.06.2015.
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Joginder Kumar Jakhar, President
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Komal Khanna, Member.
