STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

U.T., CHANDIGARH

ICICI Lombard General Insurance Company Limited, Sector 8-C, Chandigarh through its Manager, (earlier Quite office No.10 Sector 40B, Chandigarh.)

……Appellant/OP-1

V E R S U S

1.       Sh. Raj Kumar Sharma, House No.300, Sector 12, Panchkula

…. Respondent/complainant

2.       Modern Automobiles, 4 MW, Industrial Area, Phase I, Chandigarh through its Manager.

… Respondent/OP-2

Appeal under Section 15 of the Consumer Protection Act, 1986.

BEFORE:     JUSTICE SHAM SUNDER, PRESIDENT.

                   MRS. NEENA SANDHU, MEMBER.

S.  JAGROOP  SINGH   MAHAL, MEMBER.

Argued by:  Sh. Sandeep Suri, Adv. for the appellant.

PER  JAGROOP  SINGH   MAHAL, MEMBER

                   This appeal has been filed OP-1 against the order dated 30.11.2011, passed by the learned District Consumer Disputes Redressal Forum-II, UT, Chandigarh (hereinafter referred to as the District Forum) whereby the complaint filed by the complainant/respondent No.1 was allowed and OP-1/appellant was directed to pay an amount of Rs.3,29,686.53 ps to the complainant, as assessed by the surveyor, within 45 days failing which it was to pay the said amount with interest @9% per annum from the date of order till actual payment. 

2.                    The brief facts of the case are that the complainant insured his Maruti Swift LDI car with OP No.1 effective from 23.10.2009 to 22.10.2010. The said car met with an accident on 20.6.2010 in which his son along with three other passengers died regarding which an F.I.R. was also lodged. The vehicle was totally damaged and was taken to OP No.2 for repairs. An estimate of Rs.8,36,615/- was prepared against an I.D.V of Rs.3,89,698/-.  Thereafter the complainant lodged his claim and submitted all the relevant papers to OP No.1,  but to his utter shock he received a letter of repudiation dated 30.7.2010 wherein it was mentioned that as the vehicle was carrying more than the registered seating capacity and the same was a violation of the policy, the claim could not be paid. It was alleged that there was no breach of policy condition as the vehicle was being used for personal use and the person driving the vehicle was having a valid and effective driving license. The vehicle had a valid registration certificate and insurance.  When the grievance of the complainant was not redressed, left with no alternative, a complaint under Section 12 of the Consumer Protection Act, 1986 (hereinafter referred to as the Act) was filed.

2.                      OP No.1/appellant in its reply submitted that as per the Certificate of Registration and Insurance, the vehicle had the seating capacity of 5 persons including the driver but at the time of accident, it was carrying 11 passengers. It was alleged that on account of the accident, four deaths took place and 8 different claim applications were filed claiming compensation for the same. It was stated that as there was gross violation of terms and conditions of the policy, hence the claim was rightly repudiated. All other allegations of the complaint were denied.

3.                      OP-2 in its written statement submitted that there was no specific allegation against it and it was only a repairer of the vehicle. It was further submitted that the vehicle was lying in the dealership awaiting disposal action. Pleading that there was no deficiency in service on its part, OP-2, prayed for dismissal of the complaint.

4.                      Parties led evidence in support of their contentions. 

5.                      After hearing the ld. Counsel for the parties and agent of OP-2 and on going through the evidence on record, the ld. District Forum allowed the complaint, as stated above.

6.                      Feeling aggrieved, the instant appeal has been filed by the appellant/OP-1

7.                      We have heard arguments of the learned Counsel for the appellant/OP-1, and have gone through the evidence on record of the case carefully, on the point as to whether the appeal should be admitted for regular hearing or not.

8.                      The ld. Counsel for the appellant/OP-1 has argued that there was violation of the conditions of the insurance policy in so far as the vehicle had seating capacity of 5 and as against it, 11 persons were travelling in the same and, therefore, the appellants were not liable to pay any compensation.   The ld. Counsel argued that in para 16, the ld. District Forum came to the conclusion that the Hon’ble National Commission allowed 75% of the claim on non standard basis which comes out to Rs.2,92,273/-, however, a compensation of Rs.3,29,666.53 was allowed on the ground that the surveyor has not disallowed the claim.  His contention is that in view of the contradictory stand taken in the order itself, the appeal is likely to succeed.

9.                      So far as the contention of the appellant that there were 11 persons travelling in the said vehicle, there is no reliable evidence to prove the same.  It is true that the OP has mentioned this fact in the preliminary objection No.1 of the reply, but it appears to have been copied from Annexure R-4 which is the report of Akashdeep Singh, Investigator in which in the column “Number of people injured” is mentioned that 4 persons died in this accident and other 7 persons received injuries.  Needless to mention that Akashdeep Singh, Investigator was not present at the time of the accident.  From where he gathered this information is not clear.  No eye witness to the accident has been produced by the OP.  Annexure C-3 is the FIR recorded by the police in respect of this accident in which there is no mention of the number of dead or injured persons.  The ld. Counsel for the appellant has further argued that 8 claim petitions have already been filed before the Motor Accident Claims Tribunal.  However, no copy of the claim petition was produced by the OP.  The contents of the FIR show that the accident took place between two cars, in each of which there were passengers.  If 8 claim petitions have been filed, it cannot be said that the same were filed only by the occupants of the car of the complainant and not by any inured or occupant of the car of the opposite side.  Since the filing of the claim petitions was in the knowledge of the OP/appellant, it was necessary for them to have produced copies of the claim petitions before the ld. District Forum.  If the said evidence has been withheld, it requires an adverse inference to be drawn against the appellant/OP that the said claim petitions did not relate only to the occupants of the car of the complainant.  In the absence of evidence and on the basis of mere assertion in preliminary objection No.1 of the reply, we cannot hold that there were 11 occupants in the car in question. 

10.                  Even otherwise, the mere overloading of passengers is not a sufficient ground to reject the claim of the complainant.  It was necessary for the appellant/OP to prove that overloading of the vehicle resulted in the accident.  There is, therefore, no nexus between the accident and the alleged overloading of the vehicle. 

11.                  Further the ld. District Forum has rightly dealt with this objection in para 11 of the impugned order to the effect that under the “Limitation to use” clause, the number of persons to travel in the said car, under insurance, has nowhere been mentioned and, therefore, even if more than 5 persons were travelling in the said car, it cannot be said to be a violation of the terms and conditions of the policy.  The contention of the ld. Counsel for the appellant, therefore, cannot be accepted as correct to assail the impugned order on any such ground.

12.                  The OP had appointed Er. Ajay K. Kanwar as the surveyor to assess the loss.  He submitted his report (Annexure   R-3) holding that the complainant is entitled to Rs.3,29,688.53. There is no reason why the report of the surveyor should not have been accepted by the ld. District Forum.  In fact, the ld. District Forum accepted the said report and on its basis allowed the complaint. 

13.                  In view of the above discussion we are of the opinion that the ground taken by the appellant/OP, as overloading of the car for repudiation of the claim cannot sustain.  The complaint was liable to be allowed and has been rightly allowed.  The impugned order, passed by the ld. District Forum, is perfectly legal and valid and there is no scope for interference.          We, therefore, do not find any merit in this appeal to admit it for regular hearing.  The same is accordingly dismissed in limine.  Parties are left to bear their own costs.

14.                  A sum of Rs.25,000/- was deposited by the appellant/OP-1  at the time of filing this appeal.  After the expiry of the period for filing the revision, the aforesaid amount of Rs.25,000/- alongwith interest, if any accrued thereon, shall be paid to the respondent No.1/complainant in partial satisfaction of his claim, if no stay order is received.

                   Copies of this order be sent to the parties free of charge.

Pronounced.

10.02.2012

[JUSTICE SHAM SUNDER]

PRESIDENT

[NEENA SANDHU]

MEMBER

[JAGROOP SINGH MAHAL]

MEMBER