Haryana

Ambala

CC/108/2011

MAKHAN SINGH - Complainant(s)

Versus

OIC - Opp.Party(s)

D.S DANIPUR

16 Dec 2016

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, AMBALA.

 

          Complaint Case No.    : 108 of 2011

Date of Institution       : 04.04.2011

            Date of Decision         : 16.12.2016

 

 

Makhan Singh S/o Shri Pritam Singh R/o VPO Ganeshpur, Tehsil Naraingarh, District Ambala.

                                                                                               

……Complainant.

 

Versus

 

Oriental Insurance Company Ltd. Opposite Hindu Girls Collegest, Ist Floor, Court

Road, Jagadhri, District Yamunanagar, through its Branch Manager.

 

                                                                                    ……Opposite Party.

 

Complaint Under Section 12 of the Consumer Protection Act

 

 

BEFORE:       SH. D.N. ARORA,  PRESIDENT.

                        SH. PUSHPENDER KUMAR, MEMBER.

                       

Present:          Sh. D.S. Danipur, Adv.  for complainant.

                        Sh. R.K.Jindal, Adv. for Op.

 

ORDER.

 

                        In nutshell, brief facts of the complaint are that vehicle  Mohindra Max bearing regn. No.HR37AT-8344 owned by complainant was insured with the OP for the period from 12.03.2009 to 12.03.2010.  The vehicle met with an accident on 29.10.2009 and FIR No.155 dated 29.10.2009 under Section 279,337,338 IPC was registered at P.S. Mullana.  It has been submitted that  the vehicle got badly damaged and it was got repaired from Nath Motors, Yamunanagar and spent a sum of Rs.68,794/-  and submitted claim with the Op insurance company but they  vide their letter dated 12.11.2010 repudiated the same. So, complainant got served a legal notice dated 30.11.2010 upon the OP calling upon to make the payment to the complainant  but of no avail.  Hence, the present complaint seeking relief as per prayer clause.

2.                     Upon notice, Op appeared through counsel raising preliminary objections qua maintainability of complaint and the complaint has been filed in violation of terms & conditions of the insurance policy. On merits, it has been submitted that the vehicle in question was being plied in contravention of terms & conditions of insurance policy as such a false and frivolous FIR was registered in the matter.  It has been denied that the complainant got repaired the vehicle in question from Nath Motors, Yamunanagar and has spent a sum  of Rs.68794/- as alleged in this complaint.  However, the loss assessed by surveyor to the tune of Rs. Rs.37647/- is also not payable to the complainant since the  vehicle in question  was passed   by the Motor Vehicles Authority only to carry passengers 9+1, as such, the vehicle was being plied in contravention of terms & conditions of the policy and they have rightly repudiated claim of complainant. Hence, a prayer for dismissal of complaint with costs has been made. 

3.                     To prove his version, counsel for complainant tendered of complainant as Annexure CX alongwith documents as Annexures C-1 to C-11 and closed the evidence on 10.01.2012.  On the other hand, counsel for OP tendered affidavits as Annexures RX &  RY alongwith documents as Annexures R-1 to R-4 and closed the evidence on 27.09.2012.

4.                     We have heard learned counsel for the parties and gone through the case file very carefully. Case of the complainant is that the vehicle bearing registration No.HR-37AT-8344 owned by complainant met with an accident on 29.10.2009 and the vehicle got damaged and caused loss to the tune of Rs.68794/- but despite making all the formalities OP insurance company has wrongly repudiated the claim of complainant on the ground that it was being plied in violation of terms and conditions of insurance policy. Counsel for complainant to strengthen his case has placed reliance on case law rendered by Hon’ble Supreme Court of India in case Lakhmi Chand Vs. Reliance General Insurance  2016 (1) RCR (Civil)-795  and case law delivered by Hon’ble Chhatisgarh State Consumer Disputes Redressal Commission, Raipur in case titled Oriental Insurance Co. Ltd. Vs. Manorama Mishra and another 2005(1) CLT-407.

                        On other hand, arguments of the counsel for OP is that the vehicle in question was being plied in contravention of  the Motor Vehicle Act as well as terms & conditions of insurance policy as it was carrying more passengers than of its seating capacity 9+1.  As such, the Op insurance company has rightly repudiated the claim of complainant. Counsel for Op has placed reliance on case law delivered by Hon’ble  Supreme Court of India in case titled as Eastern Coalfields Ltd. & Ors. Vs. Kalyan Banerjee 2008(3) CCC-459 and case laws rendered by Hon’ble High Court of Punjab & Haryana in FAO No.3338/2012 (O&M) titled as Parveen Kumar Vs. Suman Rani & others  decided on 09.04.2014 and  has  also placed on record some other case laws.  

5.                     The complainant has placed on record copy of FIR (Annexure C-1) to  prove the factum of accident occurred on 29.10.2009. He has also placed on record copy of registration certificate of the vehicle as Annexure C-2 and has also placed on record copy of DL in the name of  Satpal Singh as Annexure C-7. The vehicle got damaged and loss caused to it to the tune of Rs.66294/- has been shown through Annexures C-8 to C-11.  On the other hand, Op has placed on record report of loss assessor to the tune of Rs.37647/- (Annexure R-2) and letter dated 12.11.2010 issued by OP insurance company whereby claim of complainant has been repudiated on the ground that ‘As per R.C., the seating capacity of the vehicle is 9+1 whereas as per FIR 13 passengers were travelling in the vehicle. As such, the vehicle was overloaded which ultimately became the cause of accident. As per policy terms & conditions, the policy covers use only under a permit within the meaning of the Motor Vehicle Act, 1988. Counsel for OP to strengthen his case has placed reliance on case laws rendered by Hon’ble High Court of Punjab & Haryana in FAO No.3338/2012 (O&M) titled as Parveen Kumar Vs. Suman Rani & others  decided on 09.04.2014 wherein it has been held that that “As per the Insurance Policy, EX.R1, the seating capacity of the offending vehicle, Tata Spacio/Sumo is 8+1. However, as per the survey report, Ex. R4, more than 9 persons were sitting therein at the time of the accident.  Furthermore, the vehicle  was only for private use but at the time of the accident, it was  carrying the passengers of a marriage party having been hired by Smt. Purni Devi on account of the marriage of her son. The appellant-owner did not appear in the witness box to rebut the same. In the circumstances, the court has no hesitation to hold that the offending vehicle was being plied in violation of the terms & conditions of the insurance policy at the time of the accident, and therefore, the respondent-Insurance Company has rightly been absolved of its liability. The case law cited by the learned counsel is distinguishable on facts. Consequently the appeals preferred by the appellant owner, are hereby dismissed”.

6.                     The Op insurance company has repudiated the claim of complainant on the ground that the vehicle was being plied for in contravention of terms & conditions of insurance policy  as, as per FIR 13 passengers were travelling in the vehicle because of which vehicle was overloaded became cause of the accident. Perusal of Registration Certificate of Vehicle in question (Annexure R-1) reveals that seating capacity in the vehicle was for 9+1 passengers whereas it was carrying more than that of its capacity which itself is violation of Motor Vehicles Act  as well as  violation of terms & conditions of the  insurance policy.  The case laws submitted by counsel for the OP Parveen Kumar Vs. Suman Rani & others  (supra) is fully applicable to the facts and circumstances of the present case.  On the other hand,   facts of the case laws submitted by counsel for complainant are different from the facts of the case in hand, as such, the citation are not helpful to the complainant.                                   In view of the above discussion, we are of the view that the vehicle was being driven in contravention of the Motor Vehicles Act and terms & conditions of the insurance policy. As such, the Op insurance company has rightly repudiated the claim of complainant. Accordingly, the complaint is dismissed with no order as to costs.  Copies of the order be sent to the parties concerned, free of costs, as per rules.  File after due compliance be consigned to record room.

                                                                                                         Sd/-

ANNOUNCED ON:    16.12.2016.                                           (D.N. ARORA)

                                 PRESIDENT    

           

                                                                                                     Sd/-

(PUSHPENDER KUMAR)

                                                                                                            MEMBER