Haryana

Bhiwani

CC/65/2020

The Zamidara - Complainant(s)

Versus

NIC - Opp.Party(s)

Sanajay Sheoran

16 Feb 2024

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSASL COMMISSION, BHIWANI.

                                                                Complaint Case No. : 65 of 2020

                                                                Date of Institution    : 10.07.2020

                                                                Date of decision:      : 16.02.2024

 

The Zamidara Cooperative Transport Society Ltd., VPO Jhinjhar, Tehsil and District Charkhi Dadri through its President Shri Rajiv.

                                                            ...Complainant. 

 

                                                    Versus.

National Insurance Company Ltd., Ghanta Ghar Chowk near State Bank of India, Bhiwani through its Branch Manager.

...Opposite party.

 

COMPLAINT U/S 12 OF CONSUMER PROTECTION ACT, 1986.

Before: -       Mrs. Saroj Bala Bohra, Presiding Member.

                    Ms. Shashi Kiran Panwar, Member.

Present:        Sh. Sanjay Sheoran, Advocate for the complainant.

Sh. R.K. Verma, Advocate for OP.

 

                                                  ORDER

 

SAROJ BALA BOHRA, PRESIDING MEMBER

1.                 Brief facts of the case are that complainant is a registered Transport Society and Sh. Rajiv being its President is competent to file complaint/claim etc. on its behalf as per resolution placed on file (hereinafter referred to as complainant society).  It is averred that the complainant society is having a Bus bearing registration No.HR61A-3146, make Ashoka Leyland, Mfg. year 2010 for plying as passenger carrying vehicle and was being plied by Sh. Rajiv for earning his livelihood and the said vehicle was insured with the OP insurance company for a period from 26.03.2018 to 25.03.2019. The insured declared value of the vehicle was Rs.7,50,000/-.  It has stated that on 18.01.2019, the bus was being driven by Pritam and when he reached near College Mor, Kalanaur, the bus met with an accident with Dumper (truck) bearing regn. No. HR-46D-3423. FIR No.0024 dated 18.01.2019 under Sections 279,283,304A & 337 IPC was lodged at P.S. Kalanaur and OP was also informed qua this accident. The bus got damaged badly.  At the time of accident, as per voucher, there were 40 passengers in the bus. OP deputed Sh.
Ramesh Kumar Jain as Surveyor who inspected the vehicle and thereafter  the bus was got repaired from Super Coach Bus Body, Gohana Road, Rohtak by paying Rs.2,97,000/-. After that, claim was submitted with OP annexing all relevant documents. However, the claim was repudiated by the OP vide letter dated 17.10.2019 on ground that at the time of accident, 80 passengers were travelling in the bus despite having capacity of 52 passengers. Hence, the present complaint has been preferred by complainant alleging deficiency in service on the part of OP resulting into mental agony, financial loss and physical harassment to the complainant thereby seeking directions against the OP to pay Rs.2,97,000/- as cost of repairs alongwith interest @18% per annum from the date of surveyor’s report till its payment. Further to pay Rs.1.00 lac as compensation for harassment besides Rs.22,000/- towards litigation expenses. Any other relief to which this Commission deems fit, has also been sought.

2.                 Upon notice, OP appeared through counsel and tendered reply to complaint taking preliminary objections qua maintainability, locus standi, territorial jurisdiction and concealment of true facts. On merits, it is admitted that the bus was insured with it w.e.f. 26.03.2018 to 25.03.2019. The bus was being used for commercial purpose under the provisions of the Society Act. It is denied that the bus was being run for livelihood of complainant. It is submitted that as per newspaper cutting and report of investigator, there were about 80 passengers travelling in the bus at the time of accident which is violation of terms and conditions of insurance policy. It is denied that complainant incurred Rs.2,97,000/- on repairs of the bus. It is admitted that Sh. Ramesh Kumar Jain, surveyor & loss assessor has assessed loss to the tune of Rs.1,35,000/-.  However, Sh. Bhupender Singh, Independent Investigator was also appointed to carry out the investigation with regard to use of bus and mode of accident who submitted his report dated 30.09.2019 alongwith newspaper cuttings, whereby it came out that in fog the bus was carrying 80 passengers and struck against a Dumper. Thus the claim of complainant was repudiated vide letter dated 17.10.2019.  As such, the OP has denied any deficiency in service on its part and prayed for dismissal of the complaint with costs.

3.                 In evidence of complainant, affidavit of complainant Annexure CW1/A alongwith documents Annexure C-1 to Annexure C-13 have been tendered and closed the evidence.

4.                 On the other side, learned counsel for OP has tendered affidavit of Sh. Sachin Kumar, authorized signatory as Ex. RW1/A alongwith documents Annexure R-1 to Annexure R-5 and closed the evidence.

5.                 We have heard learned counsels for the parties and perused the record carefully.

6.                 Perusal of repudiation letter (Annexure R-5) reveals that the claim of complainant has been repudiated by OP insurance company on ground that ‘there were nearby 80 passengers travel in the said bus at the time of accident. Instead of carrying capacity of 52 passengers. Since, it was overloaded near 54% which is more than permissible limit hence it violates the policy terms & conditions. There are no liability under the terms & conditions of the policy’. The OP in support of his case has placed reliance on investigation report conducted by Sh. Bhpender Singh, Advocate (Annexure R-4).

7.                 On the contrary, complainant side has denied the repudiation letter being illegal one.  Learned counsel for complainant has argued that there were 40 passengers in the bus at the time of accident and to this effect Passenger Booking Voucher dated 18.01.2019 (Annexure C-8) has been placed on record. Complainant has also placed on record a reply made by him to a letter dated 09.07.2019 of OP insurance company (Annexure C-11), wherein also stated that the passengers in the bus on the day of occurrence were within its carrying capacity.  Complainant to prove that he has spent Rs.2,97,000/- on repairs of the bus has placed on record bill/invoice (Annexure C-9).   

8.                 After hearing learned counsels for the parties and going through the record, we have observed that on the day of accident, the vehicle was under insurance cover with OP and driver of the bus in question was having a valid and effective driving license to the drive the said bus.  The cause for repudiation of the present claim of complainant is that at the time of accident the bus was carrying about 80 passengers which was beyond the capacity of the bus and thus OP company was not liable to pay claim to the complainant. Perusal of Passenger Booking Voucher dated 18.01.2019 (Annexure C-8) and reply (Annexure C-11) reveal that there were about 40 passengers in the bus at the time of accident and this was the stand of complainant from very beginning of the accident. FIR (Annexure C-7) qua the accident is a very relevant document which was lodged on statement of a passenger at the time of accident Mr. Satbir S/o Mahabir who has nowhere stated in his statement to the police that the bus was overloaded as alleged whereas he and his nephew were sitting in the bus, nor he has shown any fault of the bus driver.  The report of Sh. Bupender Singh, Advocate (Annexure R-4) also speaks that as per verbal statements of passenger, eye witness and newspaper dated 19.01.2019 ‘Rohtak Bhaskar, the bus was overloaded but no affidavit or statements of such passengers/eye witness have been placed on record. Accordingly, the repudiation of claim by OP insurance company on such ground is not sustainable and the act & conduct of OP amounts to gross negligence and deficiency in service which has caused monetary loss as well as mental and physical harassment to the complainant. As per resolution (Annexure C-1), Sh. Rajiv being President of the society is authorized to deal with the bus in question qua its legal affairs & superdari etc. 9.                 We have gone through the surveyor’s report (Annexure C-13) which is detailed one and has recommended Rs.1,35,500/- to the complainant but we are not satisfied with this report to the extent that it has disallowed Rs.36,000/- towards painting charges which in our view should be allowed to the complainant as it has been incurred by complainant and has also been shown in the repair bill/invoice (Annexure C-9).  As such, the complainant is entitled to a sum of Rs.1,71,500/- from the OP.  The complaint is allowed to this extent and OP is directed to comply with the following directions within 40 days from the communication of this order:-

(i)       To pay a sum of Rs.1,71,500/- (Rs. One lac seventy one thousand five hundred) to the complainant alongwith simple interest @ 9% per annum from the date of institution of complaint till its realization

(ii)      To pay a sum of Rs.25,000/- (Rs. Twenty five thousand) on account of harassment  caused to the complainant.

(iii)     Also to pay a sum of Rs.11,000/- (Rs. Eleven thousand) towards litigation expenses.

                    In case of default, all the awarded amounts shall further attract simple interest @ 12% per annum for the period of default.

                    If this order is not complied with, then the complainant shall be entitled to the execution petition under section 71 of Consumer Protection Act, 2019 and in that eventuality, the opposite party may also be liable for prosecution under Section 72 of the said Act which envisages punishment of imprisonment, which may extend to three years or fine upto rupees one lac or with both.  Copies of this order be sent to the parties concerned, free of costs.  File be consigned to the record room after due compliance. 

Announced.

Dated:16.02.2024.