BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, SIRSA.
Consumer Complaint no. 262 of 2012
Date of Institution : 24.12.2012
Date of Decision : 21.9.2015
Krishan Kumar, aged about 30 years son of Sh.Atma Ram, r/o Rania Gate, near Khalsa High School, Sirsa, tehsil and District Sirsa.
….Complainant.
Versus.
The Oriental Insurance Company Ltd., through its Branch Manager,Opp. Janta Bhawan Sirsa, District Sirsa.
...…Opposite party.
Complaint under Section 12 of the Consumer Protection Act,1986.
Before: SMT.GURPREET KAUR GILL ………PRESIDING MEMBER.
SHRI RAJIV MEHTA ……MEMBER.
Present: Sh.B.L.Narula, Advocate for the complainant.
Sh.K.L.Gagneja, Advocate for the opposite party.
ORDER
Brief facts of the complaint are that the complainant is a registered owner of Bolero Jeep No.HR-1-Q/3546, duly insured with respondent i.e. insurance company vide package insurance policy no. 261503/31/2009/4260 valid upto 11.2.2010 comprehensively. On 15.12.2009, the said vehicle met with an accident and turned turtled near Bus Stand of village Salamkhera GT road. The said vehicle was damaged badly. FIR bearing no.118 dt. 17.12.2009 in this regard under Sections 279/337 IPC was registered on the statement of Kashmiri Lal son of Ronaki Ram, r/o Rampura Basti, Lalgarh. The complainant-claimant immediately informed to the respondent, who got conducted the survey. The surveyor assessed loss of about Rs.50,000/-. Complainant submitted his claim alongwith all the required documents to the respondent. But, claim of respondent was repudiated on false grounds regarding which letter dt.23.12.2010 has been received a week earlier. MACT claim petition regarding this accident has also been decided vide award dt. 15.2.2011 passed by Sh.Basheshar Singh, MACT, Sirsa dt. 15.2.2011 by holding that the insurance company is liable to pay the compensation to the petitioner. The insurance company has also deposited the amount of award with interest upto date. The complainant approached and requested the respondent to pay the said amount of Rs.50,000/- to him as per his claim and surveyor report, but in vain. The complainant stated that this is deficiency in the service and respondent has committed unfair trade practice. Hence, this complaint has been filed, for a direction to the respondent to pay loss amount of Rs.50,000/-, alongwith interest, besides damages for harassment, mental tension, humiliation etc. and litigation expenses.
2. Opposite party i.e. respondent put in appearance and filed its reply. It is admitted in the reply that the surveyor was appointed to assess the loss. The complainant has submitted the estimated bill, but the same were on much higher side as compared to the loss assessed by the surveyor Sh.Anil Kumar Sehgal. The said vehicle was carrying 9-10 passengers against the seating capacity of 5 at the time of accident. It is also submitted that the vehicle was being plied for hire and reward purposes and from speedometer reading, it is shown that vehicle in question had covered more than 73000 kilometers between 12.2.2009 to 8.4.2010 and more than 40000 kilometres from 8.4.2010 to 25.8.2010. A private vehicle can not cover this much distance during the said period when the insured is not involved in any touring business or profession. Thus, the complainant is not legally entitled to claim any loss occurred to the vehicle from the respondent.
3. Both the parties have led their evidence in the form of affidavits and documents. The complainant has tendered in evidence Ex.C1-his affidavit; Ex.C2-repudiation letter; Ex.C3-registration certificate; Ex.C4-driving licence; Ex.C5-copy of award dt.15.2.2011 in MACT case; Ex.C6-copy of written statement of insurance company in MACT; Ex.C7-copy of FIR No.118 dt.17.12.2009; Ex.C8-coy of Report u/s 173 Cr.P.C.; Ex.C9-package policy whereas the respondent has tendered Ex.R1-affidavit of S.K. Malhotra, Branch Manager; Ex.R2-policy schedule; Ex.R3/Ex.C8 and Ex.R4/ Ex.C7.
4. We have gone through the record of the case carefully and have heard learned counsel for both the parties.
5. We have examined the pleadings and documents of the parties very carefully. There is no dispute between the parties that the vehicle of the complainant was insured with respondent-insurance company and the insurance was valid from 12.2.2009 to 11.2.2010 . There is also no dispute between the parties that the vehicle of the complainant had turned turtle and damaged on 15.12.2009 while going from Dabwali to Sirsa and Sh. Raj Kumar @ Raju was driving the vehicle and as a result thereof the vehicle of the complainant was badly damaged. Ex.R2 is the copy of insurance policy . Ex.R4 is the copy of FIR No. 118 dated 17.12.09 recorded at police station Odhan (Sirsa) with respect to the incident in question. There is also no dispute between the parties that the complainant had informed the respondent –company about the accident in question and as a result thereof the respondent deputed Sh. Anil Kumar Sehgal surveyor and loss assessor for getting the spot verification and submit loss assess report. It is also admitted that complainant lodged his claim with the respondent to seek the compensation for his damaged vehicle. However, the claim of the complainant was repudiated by the respondent-company vide letter dated 23.12.2010 Ex.C2 on the ground that complainant has violated the terms and conditions of the insurance policy as at the time of accident nine or ten passengers were sitting in the vehicle, whereas sitting capacity of the vehicle as per registration certificate is only five.
6. Now the only question for determination by this Forum is as to whether the respondent-company rightly and legally repudiated the claim of the complainant. Learned counsel for the respondents argued that at the time of accident the vehicle was carrying nine or ten passengers but this vehicle in question is permitted only for five passengers. The respondent relied upon the case laws Jahid Khan Versus Oriental Insurance Co. Ltd. IV (2012) CPJ 62 (NC), S.G.Shivamurtheppa Versus Reliance General Insurance Co. Ltd. I (2012) CPJ 175 (NC) and S.R.Murlidharan Versus New India Assurance Co. Ltd. III (2012) CPJ 318 (NC) of Hon’ble National Consumer Disputes Redressal Commission to prove their case.
7. We have gone through the case laws relied upon by the respondent and given our considered thought to the submissions of the learned counsel for the respondent-company. The facts of the case laws relied upon by the respondent do not apply in the present facts of the complaint.
8. There is no evidence on the file that any fair was paid by the passengers to the complainant. The respondent has not produced any evidence that the said vehicle was being run as hire and reward except the bald statement mentioned in the reply. Moreover, in the present case the vehicle of the complainant had not met with an accident and rather the same had turned turtle. There was thus no proximity of the travelling of excessive passengers with the incident in question. The learned counsel of complainant relied upon the case laws B.V.Nagaraju Vs. OIC Ltd., II(1996) CPJ,28 (SC); NIC Ltd. Vs. Reena Devi & Ors., II(2013) ACC-354(SC) and NIAC Ltd. Vs. Konda Srinivasa Rao III (2013) CPJ-649.
9. In the case law National Insurance Co. Ltd. Versus Mool Chand Singh Rathore, 2002 (2) CLT 304, the facts were that 20 persons were travelling in the goods vehicle besides the driver but there was no evidence to prove that the accident had occurred on account of excess passengers. It was also not proved that those persons who were in the vehicle had paid any charges. The compensation awarded by the Hon’ble State Commission in the said case was upheld by the Hon’ble National Commission.
10. In another case New India Assurance Co. Ltd. Versus C.L.Modi, 2003 (1) CLT 522 the facts were that the bus was carrying 110 passengers more than its seating capacity of 52, in breach of the conditions of the policy. However, it was not established in that case also that the alleged excess passengers were the cause of accident. The insurance company was held deficient in service and it was held by the Hon’ble Madhya Pradesh, State Consumer Commission that the District Forum rightly decreed the claim of the complainant.
11. In another case New India Assurance Co. Ltd. Versus Laxman Singh, 2001 (2) CLT 30 the facts were that the 17 passengers were in the truck instead of six passengers at the time of accident. However, no evidence on record to show that the presence of 17 passengers was responsible for the cause of accident. It was held by the Hon’ble Uttar Pradesh, State Consumer Commission that there was deficiency in service on the part of the insurance company in repudiating the claim and accordingly order of the District Forum allowing the claim was upheld.
12. In another case Oriental Insurance Co. Ltd. Versus Manorama Mishra and another, 2005 (1) CLT 407 the facts were that the Jeep was being used as a Taxi and was carrying passengers in excess of the permitted capacity in breach of terms and conditions of the policy. In the said case also it was not proved that the accident had taken place on account of the breach of the terms and conditions of the policy and hence the repudiation of the claim made by the insurance company was not upheld.
13. In another case Lalit Mohan Rai Versus India Assurance Co. Ltd. , 2004 (2) CLT 587 the facts were that two extra passengers were sitting in the Marshall Jeep at the time of accident. The insurance company repudiated the claim of the claimant. However, it was found that the sitting of extra person had no nexus with the accident. It was held by the Hon’ble Uttaranchal State Consumer Commission that the claimant was entitled to the compensation on total loss basis as reported by the surveyor.
14. The case law produced by the respondent do not support their case. The facts of this case are on different footings. There is no evidence on the file that the such vehicle was plied being a taxi and there is no accurate data of the passengers. FIR lodged on the statement of Kashmiri Lal who has stated that five or seven passengers were already seated in the vehicle. There is no evidence on the file that the passengers paid any fair to the owner of the vehicle. Complainant submitted the document Ex.C5 award of learned MACT, the learned MACT also discarded the plea of excess passengers. Insurance company has not preferred any appeal in that award. In this case respondent has not examined surveyor as a witness, who had assessed the loss.
15. Complainant has sought Rs. 50,000/- as a compensation in his complaint but in the affidavit of Sh. S.K.Malhotra, Branch Manager Ex. R1 admits the claim to the extent of Rs. 24450/-, without producing the report of surveyor. Complainant failed to submit any bill cash memos of the vehicle to prove loss of Rs.50,000/-. Branch Manager is the responsible person of the respondent and we cannot discard their reply/written statement because he has tendered a affidavit in this regard. In view of the admission of the RW1 Sh.S.K.Malhotra, Branch Manager to the effect that surveyor had assessed Rs.24450/- loss to the vehicle in question, as this fact remained un rebutted as complainant did not adduce any evidence.
16. For the reasons and findings recorded above, we partly accept the complaint of the complainant with costs of Rs.2000/-; set aside the repudiation letter dt. 23.12.2010 Ex.C2 and award a sum of Rs.24450/- to the complainant in lieu of compensation for the loss and damage to his vehicle with interest @ 9% per annum from the date of repudiation dt.23.12.2010, till actual payment. Compliance of this order be made within a period of one month. A copy of this order be supplied to the parties free of cost. File be consigned to record room after due compliance.
Announced in open Forum. Presiding Member,
Dated: 21.9.2015. Member. District Consumer Disputes
Redressal Forum, Sirsa.
The complainant immediately informed the respondent registering this accident. The survey was also conducted and surveyor assessed the loss of above said vehicle for about Rs. 50,000/-.
The respondent has repudiated the claim of the complainant vide letter dated 23.12.2010 on the ground which was received by the complainant about one week back. The complainant has not violated any terms and conditions of the policy. The claim petition Shakuntala Devi Versus Raj Kumar has been awarded by the Civil Court dated 15.2.2011. The complainant approached and requested the respondent to pay the above said amount of Rs. 50,000/- as per his claim and surveyor report.
The respondent comes under the ____ of deficiency in service as well as unfair trade practice, the complainant also suffered financial loss and also suffered serious harassment, humiliation and mental tensions.
Krishan Kumar. Vs. The Oriental Insurance Company
Present: Sh.B.L.Narula, Advocate for the complainant.
Sh.K.L.Gagneja, Advocate for the opposite party.
Arguments heard. For order to come up on 21.9.15.
Presiding Member,
Member D.C.D.R.F,Sirsa.
16.9.2015
Present: Sh.B.L.Narula, Advocate for the complainant.
Sh.K.L.Gagneja, Advocate for the opposite party.
Order announced. Vide separate order of even date, complaint has been allowed. File be consigned to record room after due compliance.
Announced in open Forum. Presiding Member,
Dated:21.9.2015. Member. District Consumer Disputes
Redressal Forum, Sirsa.
