BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, DISTRICT KANGRA AT DHARAMSHALA (HP)
Consumer Complaint No 201/2010
Date of presentation: 22.6.2010
Date of decision: 27.7.2011
Smt. Mangala Devi wife of late Sh. Harnam Singh, resident of village Karthi, PO Nandrol, District Kangra, HP
Complainant
Versus
National Insurance Company through its Branch Manager Kotwali Bazar Dharamshala
Opposite Party
Complaint under section 12 of the Consumer Protection Act, 1986
President: Sh. L.R. Sharma
Members: Smt. Suman Sharma, and Sh. Sumesh Raj
For the complainant: Sh. Dheeraj Lagwal, Advocate
For O.P: Sh. Neeraj Bhatnagar, advocate
ORDER
The brief facts as alleged in the complaint are that the complainant is the owner of vehicle Maruti Alto Standard bearing registration No.HP-40A-3645, which met with an accident on 1.5.2009, during the subsistence of the Insurance Policy, which was valid with effect from 15.11.2008 till 14.11.2009. It has further been submitted that after completing the codal formalities, the complainant has submitted her claim before the opposite party, but it has repudiated her claim on flimsy ground and without applying its mind which amounts to deficiency in service. Hence, the present complaint, seeking directions to pay the insured amount of the vehicle to the complainant alongwith interest @ 12% per annum. The complainant has further claimed compensation to the tune of Rs.30,000/- for having suffered mental agony, harassment etc, besides litigation charges to the tune of Rs.10,000/- from the opposite party.
2. The opposite party has contested the present complaint by filing its reply, wherein number of preliminary objections have been taken including that the complainant has violated the terms and conditions of the insurance Policy. In the detailed reply, it has been submitted that the claim made by the complainant was dully processed, verified and assessed by the opposite party. The final surveyor has assessed the loss to the vehicle to the tune of Rs.1,53,300/- on net of salvage basis subject to terms and conditions of the Insurance Policy. Since, the vehicle was being plied beyond its sitting capacity, which causes the alleged accident, thus there is violations of terms and conditions of the Insurance Police. It has further been submitted that the vehicle was overloaded and was carrying 7 passengers and driver at the time of accident, which is the violation of terms and conditions of the Insurance Policy, as the sitting capacity of the vehicle is 5 including driver, as such, the answering opposite party is not liable to pay any claim to the complainant and the complaint deserves to be dismissed.
3 No rejoinder has been filed by the complainant in this case. Both the parties adduced their evidence by way of affidavits and annexures. We have heard the learned counsel for the parties and we have also carefully gone through the case file, facts and evidence on the record.
4. As per perusal of the record on the file, and submissions made by the parties, as to what emerges out is that the vehicle being under insurance with the opposite party and the accident having taken place during the currency of the insurance, remains un-disputed. The fact that information was provided to the opposite party qua the accident and the opposite party appointed spot as well as final surveyors to assess the loss also remains un-disputed.
5. The plea of the opposite party to repudiate the claim is that the when the accident took place, it was being plied in violation of the terms and conditions of the Insurance Police. As per the Policy, on five persons including the driver could have travelled in the vehicle, but infact the number of persons travelling in the vehicle was 8, and thus, the terms and conditions of the Insurance Policy have been violated. The claim, thereby has been rejected by the opposite party vide letter annexure C-2 intimating that as the vehicle was overloaded, it amounts to violation of terms and conditions of the Policy. The claim falls within the category of “No Claim, and thereby it was repudiated.
6. The perusal of the record goes to show that only four major persons were travelling in the vehicle at the time of the accident, and in addition to that, only four children were there. This is made out from the perusal of the copy of the F.I.R. Annexure C-4 and from copy of intimation letter sent by the complainant to the Divisional Manager, National Insurance Company, branch Palampur Annexure OP-4, whereby it has been reported that four passengers out of them, one was lady, who died on the spot were travelling in the vehicle. In addition to that, there were four children, who were taken to the Hospital and out of them three died in the hospital. The allegation was that the accident had occurred due to rash and negligent driving by the driver at the time of accident. Thus, only four persons who were major were travelling in the offending vehicle at the time of accident. We have also perused the report of the Surveyor Annexure OP-1, wherein it has been pointed out that there were eight occupants in the car at the time of the accident, whereas the seating capacity of the vehicle was five. It has not been stated by the Surveyor as to if the F.I.R. was wrong. In case the F.I.R. was correct, the contents of which remains un-disputed as per the affidavit Ex.OPW-1 filed on behalf of the opposite party that only four major persons were there and remaining were children. It ought to have been made clear by the opposite party that all the eight persons are major and only in that case conclusion could have been that the persons travelling were more than the permitted limit. Similar is the report of Annexure OP2. In this report also it has been pointed out that the seating capacity of the vehicle was five whereas eight persons were travelling in the vehicle at the time of accident. It is clear from the record of the file that only four major persons were travelling in the offending vehicle at the time of accident and in addition to that only four children were there. The children cannot be considered to be the persons for the purpose of capacity of persons to be carried in the vehicle at the time of accident. There is no evidence on the file to suggest that the carrying of the children was the cause of the accident. Since the cause of the accident is stated to be the rash and negligent driving by the driver who was holding a valid and effective driving license at that time. Hence it is made out that the cause of the accident was the rash and negligent driving of the vehicle by the driver and it is not made out that there is violation of terms and conditions of the insurance policy. Thereby in view of the aforesaid facts it cannot be said that the terms and conditions of the insurance policy have been violated to such an extent that it made lead to repudiation of the claim made by the owner of the vehicle. The violation even if was the violation of the Motor Vehicle Act Rules which in no way affect the liability of the opposite party. Thereby we are of the considered opinion that the opposite party has wrongly denied the genuine claim of the complainant which amounts to deficiency in service and the complainant is entitled for the compensation from the opposite party.
7. So far as the quantum of compensation is concerned in that respect it is the admitted case of the opposite party that after receipt of the intimation the claim of the complainant was duly processed verified, and assessed by the final surveyor vide his report Annexure OP2, the surveyor had assessed the loss at Rs. 1,53,300/- on net of salvage basis. On the other hand there is no evidence from the side of the complainant that the report of the surveyor is not correct and cannot be relied upon.
8. Thereby while relying upon the report of Surveyor Annexure OP2 the complainant is held entitled for the amount of Rs. 1,53,300/- as assessed by the surveyor of the opposite party. The complainant is also held entitled for compensation on this amount from the date of assessment of this loss i.e. from 6.12.2009 till its actual payment. The complainant is also held entitled for compensation for having suffered mental tension, harassment etc. besides litigation charges to the tune of Rs. 10,000/- from the opposite party. The complaint is accordingly partly allowed. The opposite party is directed to comply with the order of the Forum within 30 days from the date of receipt of the copy of orders which be sent to the parties free of costs and the file after due completion be consigned to the record-room.
Announced. 27.07.2011 L.R. Sharma
President
Suman Sharma Sumesh Dogra
Member Member
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| , | HONABLE MR. L.R. SHARMA, PRESIDENT | , |
