DISTRICT CONSUMER DISPUTES REDRESSAL FORUM (CENTRAL)

MAHARANA PARTAP BUS TERMINAL: 5^th  FLOOR.

KASHMERE GATE DELHI.

No. DF / Central/ 2015

Ashok Kumar

R/o T-1665 Thana Road,

Najafgarh, New Delhi-110043

                                                                                         ..........Complainant

Versus

National Insurance Company Ltd

General Claims Hub, 2E/25,

Jhandewalan Extension,

New Delhi-110055             ..........Respondent/OP

BEFORE

SH. RAKESH KAPOOR, PRESIDENT

NUPUR CHANDNA, MEMBER

V. K. DABAS, MEMBER

ORDER

Per Sh. RakeshKapoor, President

The complainant is the registered owner of a bus bearing registration number DL 1PB 8942. He had obtained a policy of insurance from the OP in respect of the aforesaid vehicle w.e.f.  14.10.2011 to 13.10.2012.   It is alleged by the complainant that on 10.1.2012 he had left the bus with M/s R.K. Bus Body Village Rajpur Khurd for necessary repairs and paint work.  It

Page 1. Order CC 292/13

 is alleged that the bus was stolen from the said place on the night intervening 13^th and 14^th of January 2012 . The complainant had lodged a claim in respect of the theft of the vehicle on the ground that fitness / permit of the bus had expired on the date of loss.  The complainant has alleged deficiency in service on the part of the OP and has approached this forum with the present complaint.  The OP has filed a reply and has justified its action of repudiation of the claim lodged by the complainant.   It has claimed that the complaint has no merits and is liable to be dismissed.  It has also stated that it has appointed a surveyor namely Sh Laxman Das Arora and the complainant has agreed to settle his claim on Rs. 658125/-  on substandard basis. It has however prayed that the complaint be dismissed.

We have heard arguments advanced at the bar and have perused the record.

      The sole question for our consideration is as to whether the OPs were justified in repudiating the claim lodged by the complainant on the plea that the vehicle in question did not have the fitness certificate/valid permit on the date of theft. On a consideration of the facts, we are of the considered opinion that the answer to the above question has to be in the negative.    In a number of cases courts have held that claims cannot be repudiated where the insured has not contributed in the damage /loss caused to the insured vehicle. In the case of Jitendra Kumar V/s Oriental Insuance Company Ltd & Anr (2003) 6 SCC 420. The Hon’ble Supreme court held:-

The question then is: can the Insurance Company repudiate a claim made by the owner of the vehicle which is duly insured

Page 2. Order CC 292/13

with the Company, solely on the ground that the driver of the vehicle who had nothing to do with the accident did not hold a valid licence? The answer to this question, in our opinion, should be in the negative. Section 149 of the Motor Vehicles Act, 1988 on which reliance was placed by the State Commission, in our opinion, does not come to the aid of the Insurance Company in repudiating a claim where the driver of the vehicle had not contributed in any manner to the accident.

In National Insurance Company Ltd V/s SWaran Singh’s & Others (2004) 3 SCC 297 . The Hon’ble Supreme Court held as under:

“if on facts, it is found that the accident was caused solely because of some other unforeseen or intervening causes like mechanical failures and similar other causes having no nexus with the driver not  possessing requisite type of licence, the insurer will not be allowed to avoid its liability merely for technical breach of conditions concerning driving licence.”

In United india Insurance Company V/s Surjit Singh Asai reported as III (1999) CPJ 79 NC. It was held as under:

 It is nobody's case that the bridge collapsed because of excess weight carried by the bus. The cause of the accident is not attributable to excess passengers carried by the bus. Under these circumstances, we are of the view that the Insurance Company was not right in repudiating the claim of the insured merely because the bus was carrying excess passengers when the cause of the accident was totally unrelated to carrying of excess passengers. For example, if the bus was struck by lightning and destroyed could the Insurance Company refuse to pay on the ground of over-loading. Surely not, the Insurance Company could not refuse to pay on the ground of over-loading when it did not have any connection at all with collapsing of the bridge." ;

Page 3. Order CC 292/13

In B. V. Nagaraju V/s M/s Oriental Insurance Company ltd. II (1996) CPJ 18 (SC) . The Hon’ble Supreme Court held:

The National Commission went for the strict construction of the exclusion clause. The reasoning that the extra passengers being carried in the goods vehicle could not have contributed, in any manner, to the occurring of the accident, was barely noticed and rejected sans any plausible account; even when the claim confining the damage to the vehicle only was limited in nature. We, thus, are of the view that in accord with the Skandia's case, the aforesaid exclusion term of the insurance policy must be read down so as to serve the main purpose of the policy that is indemnify the damage caused to the vehicle, which we hereby do.

In B. M. RajashekarAiah V/s Oriental Insurance Co. Ltd. The National Commission held as under:-

 In our view, the impugned order passed by the State Commission is on the face of it erroneous and is contrary to the decisions rendered by this Commission as well as by the Apex Court. Instead of referring to various other judgments, we straightaway refer to the decision rendered by the Apex Court in B.V. Nagaraju v. Oriental Insurance Co. Ltd. I (1997) ACC123 (SC) II , wherein after referring to earlier decision in Skandia Insurance Co. Ltd. v. Kokilaben Chandravadan I (1987) ACC 413 (SC) : 1987 ACJ 411 SC, the Court held thus:The National Commission went for the strict construction of the exclusion clause. The reasoning that the extra passengers being carried in the goods vehicle could not have contributed in any manner, to the occurring of the accident, was barely noticed and rejected sans any plausible account, even when the claim confirming the damage to the vehicle only was limited in nature. We, thus, are of the view that in accord with the Skandia's case, the aforesaid exclusion term of the insurance policy must be read down so as to serve the main purpose of the policy, that is, to indemnify the damage caused to the vehicle, which we hereby do.

Page 4. Order CC 292/13

On the strength of the aforesaid judgments we hold that the OP was not justified in repudiating the claim lodged by the complainant.

In the result , we hold that the OP was deficient in rendering service to the complainant . We, therefore, direct the OPs as under:-

1. Pay to the complainant a sum of Rs. 7,89,750/-(after making deduction of 10 % on account of depreciation)  along with interest @ 10 % p.a. from the date of institution of this complaint i.e. 27-11-2013 till payment.

2. Pay to the complainant a sum of Rs. 25,000/- as compensation for pain and agony suffered by him.
3. Pay to the complainant a sum of Rs. 5,000/- as cost of litigation.

    The OP shall pay this amount within a period of 30 days from the date of this order failing which they shall be liable to pay interest on the entire awarded amount @ 10% per annum.  IF the OP fail to comply with this order, the complainant may approach this Forum for execution of the order under Section 25/27 of the Consumer Protection Act.

    Copy of the order be made available to the parties as per rule.  File be consigned to record room.

    Announced in open sitting of the Forum on.....................

(NUPUR CHANDNA)(DR V K DABAS)   (RAKESH KAPOOR)

     MEMBER           MEMBER           PRESIDENT