Dt. 18.12.15

JAGANNATH BAG, MEMBER

          The present appeal is directed against the order, dated 27.03.2014 passed by the Ld. District Consumer Disputes Redressal Forum, Howrah, in Complaint Case No. HDF/140 of 2013 , whereby the complaint was allowed on contest against the OPs with cost.

          The complaint case , in brief, was as follows:

          The Complainant purchased a Mini Bus, bearing the Registration No. WB-11B-9393 under hire-purchase agreement with United Bank of India , Bagnan Branch, Howrah. The vehicle was insured by the OP Insurance Company. The insurance was valid from 24.02.12 to 23.02.13 . The vehicle met with an accident on 18.09.12 . The incident was reported to Uluberia Police Station and Uluberia PS Case No. 793/12 dated 18.09.12 started. Charge sheet was submitted under Sections 279/338/427 of IPC against the driver of the vehicle. The damage of the vehicle was estimated at Rs.1,05,000/-. The Complainant reported the matter to the OP Insurance Company with claim for recovery of the damage charges. A Surveyor and Loss Assessor was engaged and assessment of loss was made. The OP Insurance Company asked for certain clarifications which were furnished. Still no action was taken towards settlement of the claim . An Advocate’s letter was sent on 27.02.2013, whereby the OP was requested to settle the claim. The Complainant sustained serious mental and physical stress and agony for the harassment, as no settlement was  made. In such situation, the complaint was filed before the Ld. Forum below for direction upon the OPs to pay the insurance claim of Rs. 1,05,000/- and Rs. 3,00,000/- as compensation for mental and physical stress and agony.

         The complaint was contested by OP Nos. 1 and 2. In their W.V. filed before the Ld. Forum below, the OPs contended, inter alia, that the vehicle was purchased for commercial use and the  insurance was issued under commercial vehicle package policy . As such,  she was not to be treated as a consumer under the provisions of the Consumer Protection Act.  The cause of action as alleged did not arise within the local jurisdiction of the Trial Forum below, nor are offices of the OPs situated within the territorial  jurisdiction of the Ld. Forum below. There was violation of policy condition in so far as the Complainant altered the seating capacity of the bus from 29 to 32 without the consent of the Insurance Company. There was a violation policy condition in so far as  more than maximum number of passengers, i.e., 27 as endorsed on the Registration Certificate of the vehicle were travelling at the time of the alleged accident. As the Complainant violated the terms and conditions of the policy , the OP Insurance Company sent the letter of repudiation on 29.01.2013. There was no deficiency in service on the part of the OP Insurance Company.

          Ld. Forum below observed that the cause of action, i.e., the accident  took place at Shyampur under Uluberia P.S. which is within the territorial jurisdiction of the Trial Forum. The Surveyor appointed by the OPs assessed the loss. The vehicle of the Complainant got damaged and the OPs admitted the fact of accident. Accordingly, the complaint was allowed with direction upon the OPs to pay the sum of Rs.1,05,000/- in favour of the Complainant and to pay a compensation of Rs. 2000/- and litigation cost of Rs. 1,000/-.

          Being aggrieved by and dissatisfied with the order of the Ld. Forum below, the Appellant has come up before this Commission for direction to set aside the impugned order.

          The memorandum of appeal has been filed together with copies of the impugned order, the petition of complaint , the W.V. filed by OP Nos. 1 and 2 , the certificate -cum-policy schedule, the insurance claim form and other documents including the letter of the OP Insurance Company dated 29.01.2013 repudiating the insurance claim.

          Ld. Advocate appearing for the Appellant submitted the  Brief Notes of Argument together with copies of the judgment of the Hon’ble Supreme Court as reported in 2007 (4) TAC 24 (SC) , the order of Hon’ble National Consumer Disputes Redressal Commission as reported in 1 (2007) CPJ 23 (NC),  order of the Hon’ble National Consumer Disputes Redressal Commission as reported in 2 (2007) CPJ 97 (NC) and orders of the Hon’ble National Commission in Revision Petition No. 2316 of 2012, Revision Petition No. 762 of 2012 and Revision Petition No. 618 of 2014.

          Ld. Advocate of the Appellant submitted that the number of passengers was much beyond the total registered seating capacity of the vehicle as reported by the concerned police officer of Uluberia P.S. This was clearly an instance of over loading which is a violation of Section 123 of the Motor Vehicles Act. No cogent and reliable counter evidence could be brought on record by the Respondent on that point. Further, the driver of the vehicle did not have valid driving licence at the material time of the alleged accident.  The Surveyor appointed by the Appellant has assessed loss to a certain extent, but violation of policy condition cannot justify the payment of insurance claim. Accordingly, the impugned order deserves to be set aside.

          Ld. Advocate appearing for the Respondent/Complainant submitted that the accident having taken place, a charge sheet was filed against the driver of the said vehicle and the repairing cost of the damaged vehicle has been assessed to be Rs. 1,05,000/-.  The allegation of carrying of passengers beyond the seating capacity has not yet been proved as a criminal case against the driver is pending before the  Ld. ACJM, Uluberia,  for disposal.  Nothing could be proved about the alleged increase in the seating capacity of the vehicle. It was submitted further with reference to the judgment of the Hon’ble Supreme Court as reported in 2013 (3) TAC 407 (SC) that whether  the Bus in question was carrying more than the permitted capacity at relevant time needs to be proved.  Referring to the order of the Hon’ble Madhya Pradesh State Consumer Disputes Redressal Commission as reported in III (2000) CPJ 514 , it was argued that over loading, if any , was not the cause of accident. Further it was argued that there was nothing in the letter of repudiation dated 29.01.2013 to show that they relied in any manner on the report of the Surveyor as regards violation of the policy condition in increasing the seating capacity of the vehicle or allowing the over loading which was beyond the knowledge of the insured. The criminal case against the driver has not yet been disposed . Further, the police report which says that there was over loading of 40 passengers at the time of occurrence of the accident has also not been established with evidence of witnesses. Accordingly, the repudiation of insurance claim by the OP Insurance Company was arbitrary and hence unacceptable.  

          The point for consideration is whether the impugned order suffers from material irregularity or jurisdictional error .  

                                  Decision with Reasons :

          There is no dispute that the vehicle of the Complainant was insured by the OP Insurance Company and the insurance policy was valid till 23.02.2013. A charge sheet has been submitted under Sections 279/338 /427 IPC against the driver of the vehicle and a claim form was duly submitted before the Insurance Company . Admittedly, the Surveyor and Loss Assessor appointed by the Insurance Company assessed  the loss, but the OP Insurance Company without giving any weightage to the report of the Surveyor relied only upon the report of the Uluberia P.S saying inter alia that ‘there were more than 40 persons at the vehicle bearing No. WB11 B /9393. But exactly the  original count can not be given’.  Such statement by the Uluberia P.S. officer is simply hypothetical without any conclusive proof or evidence in support of the statement. Source of information about the statement has not been indicated in any manner. The ‘original count’ for passengers does not appear to have been made on the basis of information gathered from any authentic source(s) including the conductor/driver of the bus. In fact, the OP insurance company heavily relied upon the said unauthentic count of passengers without least consultation of the Surveyor’s report, though it is the settled principle of law that a Surveyor’s report is a an important  piece of evidence in the matter of settlement of insurance claim. It is also noted that the repudiation letter of the Insurance Company was completely silent about the validity issue of the licence of the driver. This ground was not cited as the cause of repudiation of the insurance claim.

       Going by the above discussion we are inclined  to hold that the Appellant / Insurance Company has repudiated the claim of the Respondent/Complainant without consideration of such materials as were necessary and important for the purpose of deciding the claim. We find no reason to interfere with the impugned order. The appeal, in the result, does not succeed . Hence,

                                                Ordered

That the appeal be and the same is dismissed. The impugned order is confirmed. The Appellant / OP Insurance Company shall pay the total sum as awarded by the Ld. Forum below within a period of 40 days from the date of this  order, failing which the entire amount of Rs.1,08,000/- including compensation and cost shall carry interest @ 10% p.a. from the date of this order till full realization. There shall be no separate order as to cost.