BEFORE THE DIST. CONSUMERS DISPUTES REDRESSAL FORUM; DHARWAD.
DATE: 30th November 2015
PRESENT:
1) Shri B.H.Shreeharsha : President
2) Smt.M.Vijayalaxmi : Member
Complaint No.:222/2015
Complainant/s: M/s. Shubham Transport Represented by its Proprietor Jitenderkumar Agarwal. Having their office at No.5B, 2nd Floor, Eureka Tower, Traffic Island, Hubballi – 29.
(By Sri.G.B.Patil, Adv.)
v/s
Respondent/s: The Branch Manager, SBI General Insurance Co. Ltd., 2nd Floor, Kalburgi Hallmark, Pinto Road, Desai Cross, Deshapande Nagar, Hubballi – 29.
(By Sri.G.N.Raichur, Adv.)
O R D E R
By: Shri. B.H.Shreeharsha : President.
1. The complainant has filed this complaint claiming for a direction to the respondents to pay claim amount of Rs.8.50 lakhs under policy with interest @ 18%, to pay Rs.1 lakh as damages towards deficiency in service and mental agony, cost of the proceedings and to grant such other reliefs.
Brief facts of the case are as under:
2. The case of the complainant is that, complainant is owning fleet of trucks and running transport business and used to pay Rs.4 lakhs towards the premium of the insured vehicle to the respondent company. Accordingly the complainant is the owner of Eicher truck bearing No.KA 25 D 1816 & the same was insured with the respondent under policy 00000000001726325 covering the risk for the period 13.04.2014 to 12.04.2015 & had paid Rs.31,835/- towards the premium. During the tenure of the risk coverage the said vehicle on 21.04.2014 met with an accident at Kappalli near Sakaleshpur of Hasan district. In the said accident the vehicle completely damaged. The accident was registered before PSI Sakaleshpur on 22.04.2014. Though the complainant had spent Rs.12.50 lakhs towards the repair charges he lodged claim for Rs.9.50 lakhs. Respondent surveyed the damaged truck by a licensed surveyor on 25.04.2014 & 30.04.2014. Surprisingly the respondent refused to indemnify the claim on the sole ground that fitness certificate of the truck has been expired on the date of accident and intimated under vide letter dtd.09.06.2014 & 09.07.2014 by relying Sec.56 of M.V.Act 1988 and repudiated the claim. The repudiation is not proper and without application of mind no reason to repudiate the claim based on the fitness certificate. Hence, the complainant got issued legal notice to respondent on 05.02.2015 but, respondent deliberately & illegally not paid the claim and sent untenable reply. The non settlement of the claim amounts to deficiency in service. Hence, the complainant filed the instant complaint praying for the relief as sought.
3. In response to the notice issued from this Forum the respondent appeared and filed the written version in detail denying and disputing the complaint averments. Further the respondent taken contention that the very complaint is filed is false, frivolous, vexatious and prays for dismissal of the complaint on those grounds and also denied the deficiency in service by the respondent. Among such other admissions and denials the respondent admits the issuance of the policy, coverage of the risk to the date of accident subject to terms and conditions. While the respondent denied and disputes with regard to the quantum of damages to the vehicle in the accident, repair charges, amount claimed towards the repair charges. While the respondent averred immediately after lodging of the claim the respondent got appointed investigator and surveyor and got surveyed and assessed damages. The investigator recorded the statement, cause for accident and also with regard to the status of fitness certificate and violation of the terms and conditions by the complainant by allowing the passengers to travel in the goods vehicle. Further the respondent denied other complaint averments and puts the complainant to strict proof of the same. Further the respondent asserting the justification in repudiating the claim prays for dismissal of the complaint with cost.
4. On the said pleadings the following points have arisen for consideration:
- Whether complainant has proved that there was deficiency in service on the part of respondents ?
- Whether complainant is entitled to the relief as claimed ?
- To what relief the complainant is entitled ?
Both have admits sworn to evidence affidavit, relied on documents. Both have relied on citations and argued. Respondent also filed notes of argument. Heard. Perused the records.
Finding on points is as under.
- Affirmatively
- Accordingly
- As per order
Reasons
Points 1 and 2
5. On going through the pleadings & evidence coupled with documents of both the parties it is evident that there is no dispute with regard to the fact, that the vehicle in question is covered under the policy issued by the respondent to the date of accident and the vehicle met with the accident.
6. Now the question to be determined is, whether the complainant/ insured violated the terms and conditions and thereby the respondent justified in repudiating the claim, if so, for what relief the complainant is entitled.
7. Since the facts have been revealed in detail which requires no repetition.
8. Apart from undisputed facts only disputed fact is non possessing valid fitness certificate to the date of accident and allowing the passengers to travel in the goods vehicle whether amounts to violation of terms and conditions of the policy.
9. In support of contention the insurance company cannot raise objections regarding fitness certificate once they issued insurance policy and accepted the insurance premium the complainant relied on citation 2014 (2) CPR 158 NC – United India insurance co. vs. N.M.Mohd. Zakir. In view of the relied citation consideration of the fact non possessing fitness certificate to the date of incident is an obstacle to allow the claim cannot be accepted and hold, consideration of this as one of the fact for repudiation is not proper and cannot be accepted.
10. Another main contention of the respondent in justifying the repudiation is that the complainant allowed the passengers to travel in the goods vehicle violating the goods carriage permit. While the complainant dispute and denied this fact contending that he has not allowed passengers to travel contending that the inmates are the cleaners. At the same time the respondent argued, how could be possible for 4 number of cleaners and contended that they are all passengers by relying letter addressed to the respondent by the complainant Ex.R6, complaint by the complainant to the police Ex.R7 and police record Ex.R8 & argued they are not the cleaners and are the paid passengers. Further in support of this contention the respondent invited the attention of the Forum to the contents of Ex.R6 and R7. As per the recitals of these 2 Exhibits it further fortify that those persons are not cleaners and are passengers.
11. Under those circumstances it is evident that those persons are not cleaners and are passengers and also not labourers as mentioned in the FIR Ex.R8. Because Ex.R6 the letter is written by the complainant himself admitting those persons are the passengers. So, now it is to be decided whether those persons contributed for the accident. No evidence is available whether those persons traveling are passengers and were in cabin or in the body of the truck. That apart in the said accident driver and another person were died in the spot while some inmates are sustained fatal injuries. In the absence of evidence with regard to contribution of the passengers to the accident it is not proper to deny the claim in toto based on the owner has violated the terms and conditions of the policy by allowing the passengers to travel.
12. Further the complainant’s case is that in the said accident the insured truck got damaged to a tune of Rs.12.50 lakhs while the complainant lodged claim to the respondent claiming Rs.9.50 lakhs. None have produced policy copy. As per Ex.R4 survey report IDV value is Rs.13.13 lakhs. Surveyor report Ex.R4 assessed and fixed liability to an extent of Rs.3.90 lakhs. The complainant did not oppose the survey report nor adduced rebuttal evidence to the survey report except producing repair estimates & Xerox copy of the bills of spare parts replaced. Under those circumstances the licensed surveyor report submitted by the respondent prevails over the evidence led by the complainant. Either garage person or mechanic have not been examined by the complainant. Under those circumstances surveyor report unimpeached.
13. However taking into consideration of evidence adduced by both the parties and discussions made on the facts supra there is no occasion to hold the passengers who have been allowed to travel in the truck contributed to the said accident. Under those circumstances it is not proper to deny the claim or to hold repudiation made by the respondent is proper. Taking into circumstances of nature of accident instead of dismissing the complaint in total holding repudiation is proper it will cause injustice to the complainant. If in the event the complaint is allowed on non standard basis by allowing 75% of the liability it will not cause any injustice either to the parties. In this regard we rely 2011 (3) CPJ 330 NC New India Assurance Co. vs. Mohanbhai, wherein the relied citation their lordships have allowed the petition / claim of the complainant on non standard basis. Wherein the said case their lordships have taken consideration of the judgment National Insurance co. Vs. Suresh Babu & Anr-2007 (1) CPJ 23 NC. The citation relied by the complainant Civil Appeal No.463/2000 CDJ 2005 SC 637 M/s.Natwar Parikh Co. Ltd., Vs. State of Karnataka & others is not applicable to the case on hand. Accordingly the complainant is entitled for the benefits.
14. In view of the above discussions we have arrived and proceed to held issue.1 and 2 in affirmatively and accordingly.
15. Point.3: In view of the finding on points 1 and 2 proceeded to pass the following
O R D E R
Complaint is partly allowed. Respondent is directed to pay Rs.2,92,500/- with interest @9% P.A within 60 days from the date of receipt of copy of this order. Failing to comply the same, the said amount shall carry interest @9% P.A. from thereon till realization. Since the complaint has been allowed on non standard basis complainant is not entitled for additional compensation except cost of the proceedings. A sum of Rs.1,000/- is ordered towards cost of the proceedings. In the event the respondent fail to pay the amount within stipulated period the amount shall carry interest @10.5% P.A. from thereon till realization.
(Dictated to steno, transcribed by him and edited by us and pronounced in the open Forum on this day on 30th day of November 2015)
(Smt.M.Vijayalaxmi) (Sri.B.H.Shreeharsha)
Member President
Dist.Consumer Forum Dist.Consumer Forum
MSR
