Orissa

Jagatsinghapur

CC/120/2021

Mr.Chandrakanta Gochhayat - Complainant(s)

Versus

National Insurance company ltd. - Opp.Party(s)

Mr. M.C. Mohanty & Associates

21 Oct 2022

ORDER

                                                                                           JUDGMENT

 

            Complainant has filed this consumer complaint U/s.35 of C.P. Act, 2019 seeking following reliefs.

            Direct the opposite party No.1 to pay Rs.4,78,543/- only.

            The brief fact of the case is that the vehicle of the complainant insured with National Insurance Company Limited under motor goods carrying vehicle for the period 22.5.2020 to 21.5.2021. On 03.6.2020 while the vehicle was being loaded with 8 C.M. sand met with an accident. After that the complainant lodged a written report before the I.I.C., Jagatsinghpur Police Station and inform this matter to the opposite party No.1 for settlement of claim after completed all the formalities the owner repaired the vehicle by spending a sum of Rs.3,78,543/-. The complainant submitted his claim before the Insurance Ombudsman, Bhubaneswar (O.P. No.3) for getting his claim but the same was rejected by the Ombudsman vide his order dtd.22.02.2021.

            The opposite party No.1 & 2 have filed their written version stating that, the complainant, owner of the vehicle bearing No.OD-05-AH-7570, permitted the vehicle to carry goods over loaded measuring 14 C.M. of sand i.e. 22834 Kg. as per challan No.68 dtd.03.6.2020 in place of permissible limit of 13930 Kg. of sand i.e. 08.540 CM. of sand and due to over load and imbalance of the driver, the vehicle met with accident as such as per section 66 of the M.V. Act and general circular No.27/2018-2019, the claim of the complainant was repudiated by the insured company, so the opposite parties are not obliged to compensate the complainant.

            The main contention of opposite parties regarding over loading and matter being settled by the Ombudsman for which we had asked both the counsels to satisfy us on the issue. Counsel for complainant filed citation in the case of Lakhmi Chand Vs. Reliance General Insurance in the Civil Appeal Nos.49-50 of 2016 arising out of SLP (C) Nos.37535 of 2013 wherein Hon’ble Apex Court has held as under;

            The National Commission in the case of National Insurance Co. Ltd. v. Pravinbhai D. Prajapati (1), wherein it was held that if the number of persons travelling in the vehicle at the time of the accident did not have a bearing on the cause of accident, then the mere factum of the presence of more persons in the vehicle would not disentitle the insured claimant from claiming compensation under the policy towards the repair charges of the vehicle paid by the appellant.

            The counsel for the complainant further relied on the decision of Hon’ble State Commission of Kerala wherein hon’ble Commission has relied on the decision of Hon’ble National Commission, where it has been held as under.

            Point No.1 . The National Commission has held in Kamaleswari Prasad Singh Vs. National Insurance Company ltd. 1 (2005) CPJ 107 (NC) that the decision of the Ombudsman is not binding on the complainant and the decision of the Insurance Company to repudiate the claim is subject to adjudication by Fora constituted under the Consumer Protection Act. In the light of the principles laid down in the above decision the lower forum is perfectly justified in holding that complaint is maintainable.

            In view of the settled position of law cited above and taking into consideration the facts and circumstances of both sides, it is a fact that there was admittedly over loading to which counsel for complainant submitted that when accident occured the driver was asked to give challans and he gave all the challan of that day and thus artificial over loading has been shown. Facts remains that the vehicle was insured by paying the premium, accident occurred during currency of the policy and repudiating the claim simply on the ground of over loading in view of the recitation of Hon’ble Apex court in the case of Lakhmi Chand wherein excess passengers were there, wherein Hon’ble Apex Court has been pleased to allow the same. We have applied our mind judiciously, we held that on the same principle, the opposite parties are liable to settle the claims on its own merit without going to the technicality and raising the point of over loading. In view of the decision of Hon’ble National Commission cited above on the point of adjudication by this Commission after the same has been decided by the Ombudsman, it is clear that this Commission is empowered to adjudicate the matter after decision of Ombudsman.

            In view of the fact stated above, we direct the opposite party No.1 & 2 to consider the claim of the complainant on its own merit, without raising the point of over loading which is herby set aside. We therefore direct the opposite party No.1 & 2 to settle the claim on the basis of documents submitted earlier and if any fresh/further document is required then the complainant shall cooperate with the opposite party No.1 & 2 to settle the claim. With the aforesaid observation and direction the consumer complaint is disposed of without any cost.