Punjab

Nawanshahr

CC/98/2016

The Onkar Bus Service Ltd - Complainant(s)

Versus

National Insurance Co. Ltd - Opp.Party(s)

Ravinder Parmar

09 Apr 2018

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM

SHAHEED BHAGAT SINGH NAGAR

Consumer Complaint No.         :      98 of 2016

Date of Institution                             :      20.10.2016

Date of Decision:                    :       09.04.2018

The Onkar Bus Service Limited, having its registered office at 771, Mota Singh Nagar Market, Jalandhar City – 144001 through its Managing Director Sh.Anand Mohan Sharda.

                                                                             …Complainant

Versus

1. National Insurance Company Limited having its registered office at 3, Middleton Street, Post Box No.9229, Kolkata – 700071.
2. National Insurance Company Limited, Divisional Office, II, 20, GT Road, Panesar Complex, Jalandhar – 144001 through its Senior Divisional Manager.
3. National Insurance Company Limited, Chandigarh Road, Nawanshahr, District Shaheed Bhagat Singh Nagar through its Branch Manager.

          …Opposite Parties

                             Complaint under the Provisions of Consumer Protection Act, 1986

QUORUM:

SH.A.P.S. RAJPURT, PRESIDENT

S.KANWALJEET SINGH, MEMBER

 

ARGUED BY:

For complainant                      :         Sh.Ravinder Parmar, Advocate

For OPs                                   :         Sh.D.B. Bhalla, Advocate

 

ORDER

A.P.S. RAJPUT, PRESIDENT

 

        Complainant filed present complaint under Section 12 of Consumer Protection Act, 1986, by alleging that the Onkar Bus Service Ltd is a private limited company and vide its resolution dated 19.09.2016 has authorized Sh.Anand Mohan Sharda, Managing Director of said company to file & pursue case/complaint against OPs for claim regarding loss/damage of bus bearing No.PB-08-CP-5695.  Therefore, the present complaint filed.  The bus bearing No.PB08-CP-5695 was fully insured with OP having total IDV of Rs.17,95,000/- and complainant paid premium amounting to Rs.56,471/- and complainant were issued policy bearing No.404300/31/14/6300000912 which was valid from 26.06.2014 to 19.06.2015.  The said bus while going from Nawanshahr to Jalandhar unfortunately met with an accident on 12.06.2015 at about 9:00 AM in the area of Village Behram on Nawanshahr – Phagwara Road (about 200/300 meters before the earlier Toll Plaza) at the curve road, as the said bus went out of control & it overturned and hit the road side tree.  A FIR No.56 dated 12.06.2015 PS Behram was also registered.  In the said accident, said bus was extensively damaged and the OP No.2 was immediately informed regarding the same on the same date i.e. 12.06.2015.  Complainant submitted claim and all other relevant documents to OP-2 and thereafter, representative of OP i.e. Arun Kumar & Co. (Surveyors & Loss Assessors) visited the workshop of complainant at Hoshiarpur Road, Jalandhar and assured the Managing Director of complainant company that the OP will pay all the due claim of loss/damage of said bus.  Complainant has got repaired/overhauled the bus and paid a sum of Rs.8,00,000/-.  Thereafter, complainant approached to OP-2 for release of payment of the claim but they kept on delaying and ultimately OP-2 vide letter bearing No.107/Jal/16 dated 07.09.2016 closed the claim file stating “Violation of Policy Conditions.  The competent authority RCC has repudiated the said claim file considering the facts that the vehicle was overhauled as 73 passengers were on board at the time of accident”. When infact this allegation of overcrowding is wrong and vehemently denied as the said bus, started from Behram besides the driver, conductor and a Checker/representative of The Onkar Bus Service Ltd. Jalandhar there were  only 42 (forty two) remaining passengers.  It is pertinent to mention here that as per record maintained by Adda Incharge, Nawanshahr  29 passengers had boarded bus from Nawanshahr. Out of said 29 one passenger was for Khatkarkalan, 8 passengers were for Banga, 1 passenger for Mehli, 2 passengers were for Phagwara, 4 passengers were for Rama Mandi and 13 passengers were for Jalandhar.  Further, it is averred that many third party claim petitions have been filed before the MACT, SBS Nagar in which the OP also took the same defence of overcrowding to wriggle out of the claims but the same has since not be accepted by MACT while also appreciating various citations of Supreme Court of India & High Courts to counter the said defence and OP is directed to pay the bill of the third party claim petitions.  Due to this reason, the complainant has suffered financially and undergone unnecessary harassment. Lastly it has been prayed that OPs be directed to pay to the complainant an amount of Rs.8,00,000/- being claim of loss/damage of bus in question alongwith interest 12% per annum from date of loss i.e. 12.06.2015 till payment and also claimed for Rs.2,00,000/- as litigation expenses.

2.       Upon notice, OPs appeared through counsel and filed written version stating therein that complaint is legally & factually not maintainable as complainant has breached the fundamental terms and conditions of the Insurance Policy and law of the land, as the vehicle in question was overloaded having 73 passengers on board at the time of accident when infact the permissible limit of passengers according to the contract of Insurance is 52 passengers (excluding driver). According to the investigation carried out by the police officials at the time of accident & challan presented by them in the court the bus was having 73 passengers (besides driver, conductor & one Checking staff) on board and the accident took place due to the fast, rash and negligent driving on part of the driver and this overloading of passengers by the complainant has been main contributing cause of the serious accident.  It is elementary scientific fact that the momentum of a moving object is the product of its mass and velocity.  In other words, for a motor vehicle travelling at a given speed, the momentum would be twice if the total weight of the motor vehicle was increased two times and it is momentum which determines the severity of the effects of impact.  In this case, the bus in question was grossly overloaded correspondingly higher momentum of the bus which could not be controlled and led to the impact that caused extreme damage, including deaths of about 16 passengers. Thus the overloading of the vehicle had a direct impact on the steering control & overloading being one of the fundamental factor causing the accident.  Thus the insurer has rightly repudiated the claim for own damages of the vehicle in question. Thus the breach of terms and conditions of the Insurance Policy & law are fundamental and it brings the contract of Insurance to an end therefore the replying insurance company is not liable and has thus rightly repudiated.  Complainant has no locus standi to put in alleged controversy.  The relief sought in the present complaint is in violation of the terms and conditions contained in the policy.  Terms and conditions are the base of the insurance contract and have paramount importance in the eyes of law and as such both the parties can neither go nor claim beyond the terms and conditions of the contract.  Complainant in no way is consumer of the OPs.  On merits, insurance policy is admitted.  The alleged accident , submission of claim form & other documents and visit of Arun Kumar & Co. (Surveyor & Loss Assessors) is admitted. The liability of OPs totally denied.  Further, the loss of complainant as assessed by the Surveyor & Loss Assessors Arun Kumar & co. is Rs.5,40,029/- and to which also the complainant are not entitled there being fundamental breach of the terms & conditions of insurance policy & law as said.  It is also admitted that Ops have repudiated the claim of complainant vide letter dated 07.09.2016.  The investigation carried by police officials and challan presented by them in court states that at the time of said accident there were 73 passengers on board.  No deficiency of consumer service or negligence is attributable to the OP.  All other averments made in the complaint are categorically denied.  Lastly prayed that the complaint of the complainant is liable to be dismissed.

4.       In order to prove their case, complainant tendered in evidence  photocopies of documents Ex.C-1 to Ex.C-9, further tendered affidavit of Anand Mohan Sharda Ex.CW1/A, Ex.C-10 to Ex.C-14 and  closed the evidence. OPs have tendered into evidence affidavit of Param Pal Singh, Senior Branch Manager, National Insurance Company Ltd, Nawanshahr Ex.OPA alongwith documents i.e. certified copy of Challan Ex.OP-1, certified copy of insurance policy Ex.OP-2, copy of terms and conditions Ex.OP-3, copy of repudiation letter alongwith its receipts Ex.OP-4, copy of surveyor and loss assessor report Ex.OP-5, copy of judgment dated 01.06.2016 Ex.OP-6 and close the evidence.

5.       It has been vehemently contended by counsel for the OPs, that his preliminarily objection, as regard to maintainability of the present complaint be adjudicated upon before deciding the complaint on merits. He further contented that in view of provisions of Section 2(1)d the same is reproduced below;

Section 2(1)(d)  "consumer" means any person who—

(i)    buys any goods for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any user of such goods other than the person who buys such goods for consideration paid or promised or partly paid or partly promised, or under any system of deferred payment when such use is made with the approval of such person, but does not include a person who obtains such goods for resale or for any commercial purpose; or

(ii)     hires or avails of any services for a consideration which has been paid or promised or partly paid and partly prom­ised, or under any system of deferred payment and includes any beneficiary of such services other than the person who 'hires or avails of the services for consideration paid or promised, or partly paid and partly promised, or under any system of deferred payment, when such services are availed of with the approval of the first mentioned person but does not include a person who avails of such services for any commercial purposes;

Explanation.— For the purposes of this clause, “commercial purpose” does not include use by a person of goods bought and used by him and services availed by him exclusively for the purposes of earning his livelihood by means of self-employment; 

6.       Learned counsel pleaded that the complainant does not come under the preview of consumer as the Company of the complainant is a limited Company which works for gain. He argued that the said bus was not being driven by the complainant/MD but the same was driven by a driver and complainant Company is having more than one bus. He further argued that the present complaint deserves to be dismissed as complainant Company is not a consumer.

On the other hand, learned counsel objected to the submissions made by the learned counsel for the complainant. He contended that the point of non-maintainability/jurisdiction cannot be adjudicated at the time of final argument .Learned counsel stated that complainant is a consumer of the OPs as, it had been paying a sum of Rs.56,471/-  as   premium  to the OPs. Learned counsel further argued that the present complaint deserves to be decided on merits.  Learned counsel for OPs has referred to citations of Hon’ble National Commission titled as “National Insurance Company Ltd. V/s Usha Devi” bearing Revision Petition No.2636 of 2010, in which it was held “The rash and negligent acts of the driver of the mini bus is detailed in the charge sheet.  It cannot be overlooked that excessive overloading by nearly 100% was one of the contributing causes of the serious accident.”

7.       We have heard the learned counsel for the parties and gone through the pleadings, evidence led by the parties, written submissions as well as oral submissions, we find force in the submissions made by  the learned Counsel for the OPs. Complainant has no where stated in his entire pleadings that he was caring on his transport business exclusively for the purposes of earning his livelihood by means of self-employment. In our opinion in view of the provision of Section 2(1)d of the Act, complainant does not fall within the definition of Consumer. Moreover the complainant has also failed to place on record any cogent material, in order to establish that he is a consumer in view of Section 2(1)d of the Act.

8.       As regard to contention raised by learned counsel for the complainant, that non-maintainability/jurisdiction cannot be adjudicated at the time of final arguments. The Hon’ble Apex court in case titled as,

Dr.Jagmittar Sain Bhagat V/s Director, Health Services, Hry & ors, 2013(4)CCC 087(SC) has observed as under;

“Point of jurisdiction can be raised at any stage of the proceedings, Doctrine of waver does not apply.”

Thus in view of the aforestated decision of Apex Court, the point of jurisdiction or maintainability of the complaint can be adjudicated upon at any stage of the proceedings.

9. In case titled as Mahindra & Mahindra Ltd V/s Shri.Sai Industries, IV(2016)CPJ 67(NC).The Hon’ble National Commission had observed;

“Partnership Firm, question of partner earning his livelihood by means of self-employment does not arise.”

10.     In case titled as M/S Sikka Papers Ltd V/s National Insurance Company, III(2009)CPJ 90(SC).It was observed by Hon’ble Apex court as under;

“Company cannot claim damages for mental harassment as it is a natural person.”

          Further, the judgment cited by counsel for OPs is not applicable to the facts and circumstances of the present case.

11.     Accordingly, in view of aforesaid discussion and the decisions of  Hon’ble Supreme Court and Hon’ble National Commission. We find that the present complaint is not maintainable as the Company/complainant was doing the transport business for commercial purpose, therefore we don’t find, it appropriate to go into the merits of the case. Hence the present complaint stands dismissed. Parties to bear their own cost.

12.     Copies of the order be sent to the parties, as permissible, under the rules.

Dated:  09.04.2018

 

  

(Kanwaljeet Singh)       (A.P.S. Rajput)

Member                         President