BEFORE A.P.STATE CONSUMER DISPUTES REDRESSAL COMMISSION: AT HYDERABAD
F.A.No. 133 OF 2012 AGAINST C.C.NO.251 OF 2010 DISTRICT CONSUMER FORUM-II VIJAYAWADA KRISHNA DISTRICT
Between
ICICI Lombard General Insurance Co., Ltd.,
Rep: by its Authorized Signatory,
Upstairs, Anjaneya Gold Home,
M.G. Road, Vijayawada.
Appellant/opposite party
A N D
R.R. Chicken Pvt., Ltd.,
Rep: by P.V. Ramana, S/o Butchaiah Chowdary,
Door No.40-7-3, Near Jammichettu Centre,
Moghalrajpuram, Vijayawada.
Respondent/complainant
Counsel for the Appellants M/s N.Mohan Krishna
Counsel for the Respondent M/s V.Gourisankara Rao
QUORUM:
SRI R.LAKSHMINARSIMHA RAO, HON’BLE MEMBER
&
SRI THOTA ASHOK KUMAR, HON’BLE MEMBER
MONDAY THE TWENTY FIFTH DAY OF MARCH
TWO THOUSAND THIRTEEN
Oral Order ( As per R.Lakshminarsimha Rao, Member)
***
1. The opposite party is the appellant.
2. The concise averments of the complaint are that the respondent insured his lorry baring No. AP 16 TW 4245 with the appellant vide policy No.3003/52463017/02/000 for the period from 08-09-2009 to 07-09-2010. On 19-06-2010 the lorry loaded with broiler chicken at Eluru and was proceeding towards Suryapeta of Nalgonda district and when the lorry reached near new Petrol Bunk after crossing Nayakanigudem checkpost, Khammam District an oil tanker bearing No. AP 05 TT 1249 came in a rash and negligent manner at high speed violating the provisions of M.V. Act, and Rules and on seeing the tank the driver of the complainant’s vehicle applied sudden brakes yet the vehicle collided with the tanker and there was huge damage to the vehicle. The driver, cleaner and three other workers died and immediately the same was intimated to the Kusumanchi police who registered FIR crime No.72/2010 under Section 304-A of IPC against the driver of the oil tanker bearing No. AP 16 TU 4245.
3. The respondent intimated the accident to the appellant and submitted the claim. On 13.08.2010 the appellant addressed a letter to the respondent stating that the respondent informed the loss to the appellant on 19.06.2010 and it was received by the appellant on 29-07-2010 with a delay of 40 days and therefore the claim was closed. The respondent addressed a letter to the appellant explaining the reasons to which the appellant gave reply dated 4.10.2010 stating that the vehicle was carrying more members than permitted and thereby the respondent committed breach of terms of the policy and repudiated the claim. The accident was occurred because of negligence of the third party and it was clearly noted in FIR and in the inquest report.
4. The appellant resisted the case contending that at the time of accident the insured vehicle was carrying persons more than the seating capacity of 3 and thereby the respondent driver violated the terms and conditions of the policy. Therefore appellant repudiated the claim. There was delay in giving notice to the company which is also a ground for repudiation. The claim of the respondent is highly excessive. There was no deficiency in service on the part of the appellant. The respondent has to approach under the provisions of Motor Vehicles Act, the proper Forum and not the Consumer Forum for the redressal. Since the complainant is not a consumer within the purview of C.P. Act, the respondent is not entitled to any of the reliefs claimed.
5. On behalf of the respondent P.V. Ramana filed his affidavit and got marked Exs.A1 to A13. On behalf of the opposite party D. Raja Sekhar filed an affidavit and got marked Ex.B1. During the pendency of the appeal the appellant filed a petition FAIA No.462 of 2013 to receive the Surveyor Report and the same was allowed and the Surveyor Report is marked as Ex.B2.
6. The District Forum allowed the complaint directing the appellant/opposite party to pay `5,80,000/- with interest and costs of `2,000/-.
7. Feeling aggrieved by the order of the District Forum, the opposite party filed the appeal contending that the claim intimation was given 40 days after the accident and that the respondent had committed fundamental breach of the terms of the insurance policy by allowing unauthorized persons to travel in the lorry.
8. The points for consideration are:
1. Whether the persons travelling in the vehicle are permitted to be carried in the lorry and the accident occurred due to their sitting in the cabin of the lorry?
2. To what relief?
9. POINT NO.1 The vehicle belonging to the respondent and its insurance coverage under the insurance policy as also the vehicle meeting with an accident on 19.6.2010 at Nayakanigudem Check Post, Khammam are not disputed. The respondent claimed for the repairs of an amount of `8,57,960/-. It is contended on behalf of the appellant insurance company that the seating capacity of the Insured Vehicle is only three i.e., driver, cleaner and owner of the goods and no other persons can be permitted to sit along with them in the lorry. It is also contended by the learned counsel that the claim intimation was given 40 days after the accident and thereby the appellant was denied the right to conduct investigation assessing the damage to the insured vehicle.
10. The Apex Court has relaxed the stringent effect of the terms of the insurance policy in a case where the breach of the terms committed by the insured is not fatal nor fundamental so as deprive the insured of the amount assured under the insurance policy. The Hon’ble Supreme Court in “Amalendu Sahoo Vs. Oriental Insurance Company Ltd”., reported in II (2010) CPJ 9 (SC) approving the decision of the National Commission in “New India Assurance Company Ltd., Vs. Narayan Prasad Appaprasad Pathak” reported in II (2006) CPJ 144 (NC) opined that in cases where breach of conditions including the limitation as to the use directed the same to be settled on non-standard basis. For benefit of appreciation paragraphs 14 and 15 of the judgment are reproduced hereunder:
14. In that case also the question was, whether the insurance company can repudiate the claims in a case where the vehicle carrying passengers and the driver did not have a proper driving license and met with an accident. While granting claim on non-standard basis the National Commission set out in its judgment the guidelines issued by the insurance company about settling all such non-standard claims. The said guidelines are set out below:-
S.No. | Description | Percentage of settlement |
(i) | Under declaration of licensed Carrying capacity | Deduct 3 years difference in premium from the amount of claim or deduct 25% of claim amount whichever is higher. |
(ii) | Overloading of vehicles beyond licensed carrying capacity | Pay claims not exceeding 75% of admissible claim. |
(iii) | Any other breach of warranty/condition of policy including limitation as to use. | Pay up to 75% of admissible claim. |
15. From a perusal of the aforesaid guidelines it is clear that one of the cases where 75% claim of the admissible claim was settled was where condition of policy including limitation as to use was breached.
16. In the instant case the entire stand of the insurance company is that claimant has used the vehicle for hire and in the course of that there has been an accident. Following the aforesaid guidelines, this Court is of the opinion that the insurance company cannot repudiate the claim in toto.
11. In the light of the aforementioned decision the appellant insurance company has to settle the claim of the respondent on non-standard basis. The surveyor has assessed the damage caused to the insured vehicle at `1,06,678/-. As per the decision of the Hon’ble Supreme Court, 75% of admissible claim has to be awarded. Three fourth of `1,06,678/- is `80,008.50/- to which the respondent is entitled to. Accordingly, the appeal deserves to be allowed reducing the amount from `5,80,000/- to `80,008.50/-. The respondent company lodged claim after a delay of 40 days. The appellant requested the respondent on 13.8.2010 explain the cause for delay in filing the claim application. There was no response from the respondent. The appellant requested the respondent to inform it of the reason for the delay within seven days and even after stipulated seven days, the respondent failed to give response to the notice of the appellants. As such for being negligent, the respondent came to seek for interest on the amount.
12. In the result the appeal is allowed. The order of the District Forum is modified. The opposite party /insurance company directed to pay `80,008.50/- together with costs of `2,000/-. Time for compliance four weeks. The parties shall bear their own costs in the appeal.
MEMBER
MEMBER
Dt.25.03.2013
కెఎంకె*
