(Delivered on 13/06/2016)

PER SHRI B.A. SHAIKH, HON’BLE PRESIDING MEMBER.

1.         This  appeal is filed by the original opposite party (for short O.P.)  against the order dated 29/06/2006 passed by the District Forum, Gondia    in consumer complaint No. 30/2005, by which the complaint has been partly allowed.

2.         The facts in brief  giving rise  to the present  appeal are as under,

            The  original complainant /respondent herein  is the owner of  Tempo Trax  jeep  on the date of accident.  The said vehicle was  insured  with O.P.  from 21/03/2001 to 20/03/2002 . The  said vehicle met with an accident  on 18/02/2002 and  therefore,  it was damaged. Its intimation  is given to the O.P. by the complainant.  The surveyor appointed by the O.P. conducted the  survey and submitted report. The complainant alleged that  he incurred  expenses of Rs. 56,050/- for repairing  of that vehicle  but  O.P. repudiated  his claim illegally. Therefore, he filed  consumer complaint  before the Forum claiming  Rs. 56,050/- towards  expenses incurred  by him for repairing  of the vehicle, Rs. 10,000/- as compensation  for mental and physical  harassment and cost of Rs. 2000/- i.e. total Rs. 68,050/- with interest at the rate of 18% p.a.

3.         The O.P. resisted that complaint by filing its   reply before the Forum. It is the case of the O.P. in brief is that   about 15 passengers were travelling  by the said jeep and it was over loaded  and therefore accident  took place. The surveyor appointed  by  it  conducted  the survey. The complainant  did not submit the documents  demanded by him. Therefore, the case of the complainant  was closed  in the year 2003.  The complaint  was filed in the year 2005  and  hence, it is barred  by limitation.  It is  breach  of  policy condition  as 15 passengers  were carried  in the vehicle  at the time of accident. As per survey report  the loss  assessed is at Rs. 7,560/-. Therefore, it  was submitted by the O.P. that  the complaint is   liable to be dismissed.

4.         The Forum below after hearing  both the parties and considering  evidence brought on record  partly allowed the complaint  by passing impugned order. The Forum granted compensation  on non standard basis  after  deducting  Rs. 20,000/-  from Rs. 56,050/-. The Forum directed the O.P./ appellant to pay to the complainant /respondent herein  Rs. 36,050/- with interest at the rate of 9% p.a.  from 01/10/2002 to till its  realization by him and   O.P./appellant to pay compensation of Rs. 2,000/- towards physical and mental  harassment and cost of complaint.

5.         Feeling aggrieved by that order the original O.P.  has filed this appeal.  The appeal is proceeded exparte  against the respondent as he failed to appear despite  service  of notice  to him by paper publication.  The appellant’s  advocate filed  written notes of argument  and submitted that  same may be treated  as her  oral argument.  We  have also perused  the papers placed  before us  by the appellant.  The learned advocate of  the appellant  in her  written notes of argument  made a submission   on the lines of the aforesaid  defence taken  by the O.P. in  reply filed  before the Forum and submitted that  the Forum failed to  consider  the facts brought on record and  considered that  there is no fundamental  breach  of policy condition  as  15 passengers  were carried in jeep.  Whereas   permit  for carrying  passengers was for 9 person + 1 driver. She submitted that  the survey’s report  is not considered  by the Forum.  She therefore  requested that  the impugned order may be set aside.

6.         We find that  it is not proved that the  vehicle was   used for commercial purpose.  Moreover as per well settled law the Forum has rightly  granted the compensation  on non standard basis  when there is no fundamental  breach of  any of the term and condition of the  policy. There is no evidence to show that the accident took place due   to over loading of the jeep. Therefore, we hold that repudiation of the claim is illegal.

7.         So far  as question of  limitation  is concerned it is seen that as per  complainant,  the claim was repudiated  on 10/12/2004. The complaint was filed  on 18/05/2005. Copy of the repudiation  letter  is not filed  on record by the  complainant /respondent. However, we  find that  the complaint is not barred by limitation.

8.         So far as  the  report of  surveyor  is concerned   we find that  though  bills  submitted to him were  for total expenditure of Rs. 56,050/- but surveyor  has  made various  deduction  for  amount of those bills. He has  not given reason  about  deduction  made on those amounts.  The appellant has not  filed those bills   and survey report  along with  appeal memo which were filed before  the Forum for our perusal.  However, we find that  there is no reason  to disbelieve  those bills. The Forum  has  rightly deducted  Rs. 20,000/- out of  amount of those bills and rightly granted the   insurance claim  on  non standard basis. We find no merit  in this appeal and therefore it deserves to be dismissed.

ORDER

i.          Appeal is dismissed,

ii.          No order as to cost in appeal.

iii.         Copy of order be furnished to both the parties, free of cost.