Haryana

StateCommission

A/522/2014

NIC - Complainant(s)

Versus

Sandeep Singh - Opp.Party(s)

Nitin Gupta

22 Mar 2016

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION HARYANA, PANCHKULA

                                                 

                                                         First Appeal No.522 of 2014

Date of Institution: 18.06.2014

                                                               Date of Decision: 22.03.2016

 

National Insurance Co. Ltd., through its Branch Manager, S.C.F. No.1-2 Rani Talab, Jind (Haryana).

Now represented through the authorized signatory of National Insurance Company Ltd, Regional office-II, SCO NO.337-340, Sector 35-B, Chandigarh.   

…..Appellant

Versus

 

Sandeep Singh S/o Nafe Singh r/o H.No.230, Hans Enclave, Gurgaon (Haryana).

                                      …..Respondent

 

CORAM:             Mr. R.K.Bishnoi, Judicial Member.

                             Mrs. Urvashi Agnihotri, Member.                                                                                                                                        

Present:               Shri Nitin Gupta, Advocate for appellant.

                             Shri A.K.Kansal, Advocate for respondent.

 

                                                   O R D E R

R.K.BISHNOI, JUDICIAL MEMBER:-

          National Insurance Company Limited (in short Insurance Company)-opposite party has preferred this appeal against the order dated May 12^th, 2014 passed by District Consumer Disputes Redressal Forum, Jind (for short District Forum).  

2.      It was alleged by complainant that he was registered owner of Santro car bearing registration No.HR 26-AP-1761  and same was got insured  for Rs.2,30,000/- with the appellant/opposite party (O.P.) for the period 06.07.2010 to 01.12.2010.  His vehicle met with an accident on 22.07.2010 and was totally damaged. He lodged claim with O.P. and submitted all the necessary documents to settle claim, but, O.P. rejected claim on the ground that at the time of accident six persons and two children were traveling in the car, whereas sitting capacity of the vehicle was five persons as per Registration Certificate (R.C).

3.      O.P. filed written statement alleging that at the time of accident nine persons were travelling in the vehicle, whereas sitting capacity of the vehicle was five persons. Complainant can not ask for compensation as he violated terms and conditions of insurance policy.  Surveyor assessed loss to the tune of Rs.1,60,500/-.  He is not entitled for any compensation from it.

4.      After evaluating evidence of the parties, District Forum directed the opposite party vide order dated 12.05.2014 to pay Rs.1,60,500/-. 

5.      Feeling aggrieved therefrom, appellant/O.P. has filed this appeal.

6.      Arguments heard. File perused.

7.      Learned counsel for the appellant has vehemently argued that at the time of accident  eight persons were travelling in the car in question  against the sanctioned capacity of five including driver.  In this way insured violated the terms and conditions of insurance policy and was not entitled for the full claim as ordered by the District Forum.  The insured can claim compensation on non-standard basis i.e. 75% as opined by Hon’ble National Commission in revision petition No.4488 of 2010 titled as Oriental Insurance Company Limited Vs.Sh.Gulab Singh decided on 08.07.2015 and in revision petition No.3689 of 2013 titled as K.T.Maruthi Vs. Branch Manager, Reliance General Insurance Co. Ltd. decided on 17.07.2015 .

8.      This argument is devoid of any force.  From the perusal of copy of FIR Ex.C-3 it is clear that accident took place due to rash and negligent driving of Pick-up-Dalla. The driver of that vehicle hit the car of the insured.  In this way insured was not at fault. If other person has caused accident, it does not mean that there is breach of condition as opined by Hon’ble Supreme Court in  Lakhmi Chand Vs. Reliance General Insurance 2016 (1) CLT 225 (case law cited by the complainant counsel).  The relevant paras of the said judgement are reproduced as under:-

“18.   It becomes very clear from a perusal of the  above mentioned case law of this Court that the insurance company, in order to avoid liability must not only establish the defence claimed in the proceeding concerned, but also establish breach on the part of the owner/insured of the vehicle for which the burden of proof would rest with the insurance company. In the instant case, the respondent-company has not produced any evidence on record to prove that the accident occurred on account of the overloading of passengers in the goods carrying vehicle. Further, s has been held in the case of B.V.Nagaraju (supra) that for the insurer to avoid his liability, the breach of the policy must be so fundamental in nature that it brings the contract to an end.  In the instant case, it is undisputed that the accident was infact caused on account of the rash and negligent driving of the offending vehicle by its driver, against whom a criminal case vide FIR NO.66 of 2010 was registered for the offences referred to supra under the provisions of the IPC.

19.    These facts have not been taken into consideration  by either the State Commission or National Commission while exercising their jurisdiction and setting aside the order of the District Forum.  Therefore, the judgment and order of the National Commission dated 26.04.2013 passed in the Revision Petition No.2032 of 2012 is liable to be set aside, as the said findings recorded in the judgment are eeroneous in law. Accordingly, we allow these appeals and restore the judgment and order of district Forum. Further, we award a sum of Rs.25,000/- towards the cost of the litigation as the respondent-company has unnecessarily litigated the matter up to this court despite the clear pronouncement of law laid down by this court on the question with regard to the violation of terms and conditions of the policy and burden of proof is on the insurer to prove the fact of such alleged breach of terms and conditions by the insured.  Since we have restored the judgement and order of District forum, we direct the respondent-company to pay the amount awarded by the District Forum with interest and the cost which we have awarded in these proceedings within six weeks from the date of the receipt of the copy of this judgment.”

9.      As per surveyor report, one of the passengers Abhishek, was eight years old, Shivam was five years old, Dev was four years old, Dipanshu was eight months old.  It shows that out of these passengers four were minors and one was infant. It shows negative attitude of insurance company to find out lame excuse how claim of an insured can be rejected.  The appellant cannot derive any benefit from the cited case laws because it is not mentioned therein that even if driver of another vehicle was at fault even then the insured is not entitled for full compensation.   The learned District forum has granted the compensation as assessed by the surveyor. There is no reason to deviate from the same.  Impugned order dated 12.05.2014 is well reasoned based on law and facts and cannot be disturbed.  Resultantly appeal fails and the same is hereby dismissed.

10.    The statutory amount of Rs.25,000/-  deposited at the time of filing the appeal be refunded to the appellant against proper receipt and identification in accordance with rules.

 

March 22nd, 2016

Mrs.Urvashi Agnihotri, Member, Addl.Bench

R.K.Bishnoi, Judicial Member Addl.Bench

 

S.K.