JUDGEMENT<br /> <br /> This is a complaint filed U/s. 12 of Consumer Protection Act by the complainant Mohd. Rafiq against Respondent The Branch Manager, Oriental Insurance Company ltd., Branch Office, Raichur. The brief facts of the complaint are as under:-<br /> <br /> Complainant is the registered owner of the lorry bearing Registration No.AP-02/T-6996. The driver was one Abdul Majid S/o. Abdul Saleem, R/o. Kowtal village, Tq. Manvi, Dist. Raichur. On 18-07-05 at about 9-00 AM while the lorry was coming to Raichur with Paddy load from Toranadinni village it met with an accident on Raichur-Lingasugur Road near Sirwar. The lorry turned turtled and the Hamalies and the owners of the paddy who were in the said lorry sustained injuries. The owners of the paddy boarded the lorry at Kowtal. Due to the said accident the lorry was widely damaged. A complaint was lodged at Sirwar PS to this effect in Crime No. 85/05 and FIR was issued. The accident was reported to the Respondent with a request to arrange for survey and to assess the damage to the lorry of the complainant. The survey was conducted and necessary information were taken by the surveyor who submitted his report to the Respondent. After receiving the Survey Report the Respondent directed the complainant to proceed with the necessary repairs and to submit the bills along-with labour charges for settling the claim. Accordingly the complainant got the vehicle repaired and submitted in all (11) bills for a sum of Rs. 99,571/- with fond hope that the Respondent would reimburse the claim of the complainant.<br /> <br /> But surprisingly, Respondents have issued a letter dt. 30-12-05 stating that the claim is not payable since more persons were being carried in the vehicle. The accident is having no nexus with the person in the vehicle. The complainant had handed over the vehicle to his authorized driver and he had no knowledge nor he had given any instructions to carry the owners of the goods in the lorry. More-over the lorry was insured comprehensively in-order to meet 3rd party and own damage to the vehicle. The damage to the vehicle is to be met by the Respondent Repudiating to settle the claim is illegal and against the very principles of going for Insurance. Hence there is deficiency of service and also un-fair trade practice.<br /> <br /> The complainant has issued Legal Notice through his counsel on 15-04-06 for settlement of his claim. The Respondent replied to the said notice through their letter dt. 03-05-06 stating there is violation of policy condition and so the claim is repudiated. Hence for all these reasons the complainant has prayed for awarding Rs. 99,571/- towards repair charges, Rs. 50,000/- towards loss of earnings, Rs. 20,000/- mental shock and agony, Rs. 30,000/- towards compensation totaling to Rs. 1,99,571/- and has further sought for awarding interest from the date of accident till realization along- with cost of litigation.<br /> <br /> 2. The Respondent Divisional Manager Oriental Insurance Company Ltd., has filed written statement contending that this Respondent is not aware who is the driver of the said insured vehicle. It is false to claim that the owners of the paddy boarded the lorry at Kowtal and Hamalies & owners of the paddy sustained injuries when the lorry turtled. As a matter of fact none of the owners of paddy were traveling in the said lorry as per the police complaint one Mallappa, Haji, Venkatesh, Giriyappa, Thimmanna and Thimmanna S/o. Yallappa were traveling in the said lorry and further when the lorry stopped at Kowtal Bus-stand one Pasha, Yamunappa, Saleem have boarded the lorry as passengers. So in all (11) persons were traveling in the said lorry which is against the terms and conditions of the policy. As per the RC Book only three persons should travel in the lorry including the driver. So there is a violation of the conditions of the policy. As all the (11) persons were sitting in the cabin according to the complaint, which was congest for the driver to drive the vehicle properly as such the proximate cause for the alleged accident is (11) persons sitting in the cabin which caused the alleged accident. It is completely false to claim that due to the said accident the lorry was widely damaged and the Respondent after receiving the survey report directed the complainant to proceed with the necessary repairs and submit the bills along-with labour charges for settling the claim. At no stage this Respondent has instructed to get the vehicle repaired. The fact that (11) persons were traveling in the lorry sitting in the cabin is a valid cause for repudiating the claim.<br /> <br /> It is false to claim that the accident is not having nexus with the persons in the vehicle only. Because of carrying as many as (11) persons in the cabin the driver could not drive or control the vehicle which resulted in the accident. Further the complainant has not handed over the vehicle to the driver who was authorized to drive the vehicle. Because the alleged driver Abdul Majid was not having valid driving licence to drive the lorry. Subsequently Usman Pasha was introduced as the driver of the vehicle. Further it is in-correct to say that the complainant had no knowledge nor given any instructions to carry the goods in the lorry. In the present case as the lorry was driven by a driver who is not having a driving licence and who has carried authorisedly (11) persons that itself is sufficient to repudiate the claim. So there is no deficiency of service by the Respondents without admitting the claim. This Respondent submits that the actual damage to the vehicle is assessed at Rs. 49,500/- only as per the independent surveyor’s report which itself is a maximum amount payable under the policy if at all this Forum comes to the conclusion that this Respondent is liable to pay the damages. Hence for all these reasons the Respondents has prayed for dismissal of the complaint.<br /> <br /> 3. During the course of enquiry the complainant Mohd. Rafiq has filed his sworn-affidavit by way of chief-examination and got marked as many as (14) documents at Ex.P-1 to P-14. The Respondent in-rebuttal has filed sworn-affidavit of its manager and has got one document at Ex.R-1.<br /> <br /> 4. Heard the arguments of both sides and perused the records. The following points arise for our consideration and determination:-<br /> 1. Whether the complainant proves deficiency of service by <br /> the Respondent Insurance Company, as alleged.?<br /> <br /> 2. Whether the complainant is entitled for the reliefs sought <br /> for?<br /> <br /> 5. Our finding on the above points are as under:-<br /> <br /> 1. In the affirmative. 2. As per final order for the following.<br /> <br /> REASONS<br /> POINT NO.1:-<br /> <br /> 6. There is no dispute that the complainant is the owner of the lorry bearing Registration No.AP-02/T-6996 and it was insured with Respondent NO-1 Company and the said lorry met with an accident on Raichur- Lingasugur near Sirwar on 18-07-05 at about 9-00 AM during the insurance period of the vehicle. The case of the complainant is that due to accident the Hamalies and the owners of the paddy who were in the lorry sustained injuries and the lorry completely damaged. The accident was reported to the Respondent Insurance Company with a request to arrange for survey to assess the damage and accordingly survey was conducted and a report was submitted to the Respondent. After receiving survey report the Respondent directed complainant to proceed with necessary repairs and to submit bills along-with labour charges for settling the claim. Accordingly the complainant got repaired vehicle and submitted in all (11) bills for the incurred expenditure of Rs. 99,571/- for reimbursement. But the Respondent surprisingly issued a letter dt. 30-12-05 stating that the claim is not payable on the ground that more persons were being carried in the vehicle and violation of policy terms and conditions. This repudiation is illegal and against the very principles of insurance. So complainant issued Legal Notice to Respondent on 15-04-06 to which Respondent replied vide letter dt. 03-05-06 stating repudiation of claim for violation of policy condition.<br /> <br /> 7. The Respondent Insurance Company has contended that as per the police complaint and charge sheet in all (11) person were traveling in the cabin of the said lorry and none of them are the owners of the paddy but they are un-authorised passengers traveling in the cabin which is proximate cause for the lorry accident and the driver Abdul Majid was not having any driving licence to drive the lorry. Hence the claim of the complainant was rightly repudiated for violation of policy terms and conditions.<br /> <br /> 8. The complainant has produced as many as (14) documents. Out of which repudiation letter dt. 30-12-05 is at Ex.P-14 and another repudiation letter dt. 03-05-06 is at Ex.P-8. These two repudiation letters are one and the same but the second repudiation letter dt. 03-05-06 also shows the earlier Repudiation letter dt 30-12-05. Hence let us see the second Repudiation letter dt. 03-05-06 at Ex.P-8 which interalia reads thus:<br /> On receipt of claim intimation, we have arranged for spot survey by Mr. M.Janardhan Reddy, an independent surveyor on 18-07-05 and on receipt of estimate and claim form, we have also arranged for final survey on 21-07-05.<br /> On receipt of charge sheet, we came to know that 11 persons (including driver and cleaner) were traveling at the material time of accident. Where as the registered carrying capacity of the above cited goods carrying commercial vehicle is, three in all.<br /> <br /> As your client has violated the policy condition, accordingly we have repudiated the own damage claim vide our letter dated 30-12-05. Further there is no deficiency or negligence in our service or involvement of unfair trade practice. Based on the above facts our company is not liable to make any payment.<br /> Sd.-<br /> Branch Manager<br /> <br /> 9. From a perusal it goes to show that the Respondent Insurance Company has repudiated the claim on the ground that (11) persons including driver & cleaner were traveling in the lorry where as the registered carrying capacity of the vehicle is Three in all so there is violation of policy conditions. The complainant has filed Xerox copy of FIR at Ex.P-1 with the police complaint of one Mallappa. It shows that on 18-07-05 at about 6-00 AM one lorry bearing Registration No.AP-02/T-6996 belonging to Rafiq (complainant) came to Kowtal from Raichur. The lorry driver Abdul Majid told this Malappa and others namely: Hazi, Venkatesh, Timanna and another Timanna S/o. Yellappa that paddy is to be loaded at Toranadinni village and asked them to come. Accordingly all of them boarded the lorry driven by Abdul Majid. The cleaner Abdul Wajid was also present in the lorry. After loading the paddy they left Toranadinni at about 7-30 AM and came to Kowtal Bus-stand where some persons viz., Pasha, Yamunappa, Saleem of Kowtal village boarded the lorry and sat in the cabin along with them. When the lorry was proceeding near Sirwar at about 9-00 AM. the driver Abdul Majid drove rashly & negligently and turned turtled and caused accident. They all fell-down and sustained simple and grievous injuries.<br /> <br /> 10. From a plain reading of this police complaint at Ex.P-1 it manifest that five labours along with three passengers traveled in the said lorry apart from the lorry driver & cleaner and totally (10) persons traveled and not (11) persons as contended by the Respondent. So the contention of the complainant that the persons traveled in the lorry were the owners of paddy load cannot be accepted. As per survey report at Ex.R-1 produced by the Respondent Company the lorry in this case is Heavy-Goods-Vehicle. Rule 100 of Karnataka Motors Vehicle Rules permit certain category of persons to travel in the goods-vehicle. In case of Light Goods Vehicle the permitted capacity of passengers will be 2 + 1 including driver. In case of Heavy Goods Vehicle like present one, the permitted capacity is 5 + 1 including driver. So to say the permitted capacity is (6) persons including driver. As seen from Ex.P-1 it clearly shows that (10) persons including driver & cleaner traveled in the lorry which is a clear violation as against the permitted number. So we are not in agreement with the learned counsel for the complainant and the decision of Hon’ble High Court reported in ILR 2006 KAR Page 947 is not only applicable and is not helpful to the complainant since according to the said decision, the persons traveled in the lorry as owners of the goods, were within the permitted number of seating capacity (vide last portion of the Head Note in the said decision). But in the instant case the number of persons traveled even as owners of the paddy is not within the permitted number of seating capacity. <br /> <br /> 11. The learned counsel for the complainant secondly argued that despite a violation of policy, the claim of the complainant need to be settled on non-standard basis. In-support of his arguments the learned counsel has relied upon decision of Hon’ble National Commission reported in CTJ 2006 Page 221 (CP) (NCDRC) Head Note reads thus:<br /> “Insurance__Deficiency in service__Consumer Protection Act, 1986__Section 2(1)(g)__Section 2(1)(o)__ Complainant’s truck damaged in a road accident__claim repudiated by the appellant on the ground that the truck at that point of time carried twelve unauthorized persons in violation of the policy__Complaint allowed by the State Commission directing the appellant to pay the loss purportedly agreed between the surveyor and the complainant to the tune of Rs. 1,60,000/- with 18% interest plus cost__Appeal__As per the finding returned by the State Commission the truck carried nine passengers__Depsite a violation of the policy, the claim need to have been settled on non-standard basis__Considering that the complainant agreed to the amount of Rs. 1,60,000/- the impugned order of the State Commission regarding the awarded amount upheld__However, the rate of interest reduced from 18% per annum to 12% per annum”. <br /> <br /> 12. Bearing in-mind the principles laid down in the above said ruling of the Hon’ble National Commission we hold that the principles laid-down in the said ruling are aptly applicable to our case at hand since in the present case there is violation of policy conditions for having allowed to travel (10) persons including the driver & cleaner as against permitted number so the claim of the complainant needs to be settled on Non-Standard basis. But in para-4 of the complaint it is averred among other things that the complainant reported the lorry accident to the Respondent with request to arrange for survey to assess the damages caused to the lorry and accordingly survey was conducted by (Independent) Surveyor and necessary information were taken by the surveyor and Survey Report was submitted to the Respondent. The Respondent Company has filed the Survey Report at Ex.R-1. A close reading of this Survey Report it shows the assessment of loss is made at Rs. 1,37,850/- and the actual Assessed loss is at Rs. 49,500/- and during survey (6) photographs have been taken at the spot and (21) photographs of damaged vehicle were taken. So it shows that the survey was done on the request of the complainant as stated in para-4 of the complaint. So we do not find any reason to discard this Survey Report showing the assessed loss at Rs. 49,500/-. So we feel it justified to hold that the complainant is entitled the assessed loss of Rs. 49,500/- as per the dictum laid-down in the above said decision of the Hon’ble National Commission at Para-5. In this view of the matter we hold that the complainant has proved deficiency of service by the Respondent. Hence Point NO-1 is answered in the affirmative.<br /> <br /> POINT NO.2:-<br /> <br /> 13. The complainant has claimed a total compensation of Rs. 1,99,571/- out of which Rs. 99,571/- towards loss, Rs. 50,000/- towards loss of earning, Rs. 20,000/- towards mental shock & agony and Rs. 30,000/- towards compensation totaling to Rs. 1,99,571/- as detailed in Para-9 of his complaint with cost and interest. In view of our finding on Point No-1 holding entitlement of Rs. 49,500/- towards assessed loss of the lorry. So the complainant is entitled this amount. In so far as Rs. 1,00,000/- towards compensation under three different heads as detailed in Para-9 of the complaint is concerned, in-view of our discussion and having regard to the facts & circumstances of the case, we feel it just and proper to allow a global compensation of Rs. 25,000/- including cost of litigation. In this view of the matter we pass the following order:<br /> ORDER<br /> The complaint of the complainant is allowed in part.<br /> <br /> The Respondent Insurance Company shall pay Rs. 49,500/- to the complainant towards assessed loss of the damaged insured-vehicle along with Rs. 25,000/- towards global compensation including cost.<br /> <br /> The Respondent Company shall comply this order within (6) weeks from the date of receipt of copy of this order.<br /> <br /> (Dictated to the Stenographer, typed, corrected and then pronounced in the open Forum on 21-12-06)<br /> <br /> Sd/-<br /> Sri. N.H. Savalagi,<br /> President,<br /> District Forum-Raichur.<br /> <br /> Sd/-<br /> Sri. Pampannagouda, <br /> Member<br /> District Forum-Raichur.<br /> <br /> <br /> On leave. <br /> Smt.Kavita Patil, <br /> Member. <br /> District Forum-Raichur<br /> <br />