Orissa

Cuttak

CC/82/2015

Anamnabi Khan - Complainant(s)

Versus

The Branch Manager,National Insurance co ltd - Opp.Party(s)

R K Pattanaik

29 Apr 2017

ORDER

IN THE COURT OF THE DIST. CONSUMER DISPUTES REDRESSAL FORUM,CUTTACK.

C.C No.82/2015

 

Anamnabi Khan,

At:Samantarapur,PO/P.S:Kisan Nagar,

Dist:Cuttack,Odisha,

Represented through its Wife

Ajmeri Begum, The Power of Attorney Holder.                      … Complainant.

 

Vrs.

1.        Branch Manager,

The National Insurance Company Ltd.,

Cuttack Branch Office,A.P:Market Complex,

Link Road,Cuitack-10,Odisha.

2.        The Branch Manager,

The National Insurance Company Ltd.,

Jagatsinghpur Branch,

Charchika Bazar,

At/PO/Dist:Jagatsinghpur.                                                            … Opp. Parties.

 

Present:               Sri Dhruba Charan Barik,President.

Sri Bichitrananda Tripathy, Member.

Smt. Sarmistha Nath, Member (W).

 

Date of filing:    10.08.2015

Date of Order:  29.04.2017

 

For the complainant:    Sri R.K.Pattnaik,Advocate & Associates.

For the O.Ps.              :   Sri B.N.Udgata,Adv. & Assoiciates.

 

Smt. Sarmistha Nath,Member(W).

 

                The complainant has filed this case against O.Ps alleging there is deficiency in service and unfair trade practice with a prayer to grant appropriate relief to him in the interest of justice.

1. Case of the complainant in brief is that he has purchased a TATA MAGIC PASSENGER car with the financial assistance of TATA MOTOR FINANCE.  The cost of the vehicle is Rs.3,50,000/- and the said vehicle bears Regd. No.OR-05AP-6092.
2. That the complainant took an insurance policy on payment of premium of Rs.16,952/- under “passenger car package policy” and bearing policy No.16310431136365000175, the said policy commences from 20.04.13 to 19.04.2014 and the sum assured under the policy is Rs2,45,000/- and covers the risk of the entire vehicle.  Annexure-1.
3. While the said policy in force the vehicle of the complainant met with an accident on 19.09.2013 at midnight nearby Fakirpada under the jurisdiction of Kandarpur police station in the district of Cuttack.  Due to accident the vehicle was completely damaged and two persons died of such accident.  The complainant lodged FIR on19.03.2013 in Kandapur police station.  The police registered the case as Kandarpur P.S Case No.7012013 dt.19.09.2013 B U/S 279,337,338,304(a) of I.P.C(Annexure-2) . The fact of the accident was intimated to the O.P No.1 and 2, the insurance company.  The police as well as insurer the insurance company deputed their spot surveyor for assessment of the loss and after assessment of loss on the advice of the O.P the vehicle was repaired by authorized garage which is authorized dealer of TATA MOTORS LTD.) The said repairer workshop has given an estimate for repair amounting to Rs.1,45,000/-) (Anexure-3).  The surveyor of the O.P made a detailed assessment of the loss but the copy of the survey report has not been supplied to the complainant and the O.P by letter dt.7.7.2015 indicated that the claim of the complainant is not tenable on the ground that at relevant time of accident the vehicle has breached the policy condition by carrying passengers more than permissible limit.  So, the O.Ps have repudiated his claim(Annexure-4).  The complainant ‘s further plea is that the O.Ps did not send the repudiation letter to the complainant and only after the lawyer’s notice issued by the complainant the O.Ps communicated with him about  the decision of repudiation on 7.7.15 which is almost one year and 9 months after the accident.  The complainant prayed for declaring the repudiation of the claim by the O.Ps as a deficiency in service and unfair trade practice and for a direction to the O.Ps to pay claim amount as per estimate submitted by the repairer and also to pay the interest on the claim amount @ 9% per annum from the date of claim.
4. The O.ps entered appearance through their advocate and filed their written version.  In their written version O.Ps have taken the stand that the complaint is not maintainable on the ground of jurisdiction and the further case of the O.Ps is that the vehicle in question has been permitted by the R.T.A to carry passengers up to 8 including the driver where as the vehicle was carrying 13 passengers at the time of accident which violates the policy condition of over loading and breach of Section-88(11) of Motor Vehicles Act,1988.  Apart from the above, the further case of O.Ps is that the O.Ps vide letter dt.8.6.15 addressed to the complainant requesting to make comments on the fact that the vehicle at the time of alleged accident was carrying passengers more than the permissible limit but the said letter was returned with endorsement that the complainant has left India and when the O.Ps did not get response from the complainant  they sent another letter on 25.06.15 repudiating the claim of the complainant  on the ground that the vehicle in question was carrying passengers more than its permissible limit pat the time of alleged accident.
5.  We have heard the advocates of the parties at length, went through the documents and papers filed by the parties as well as decision cited by them. The O.Ps have not produced any document regarding the overloading of the vehicle at the time of accident except releasing on the report of daily newspaper.  Besides that when the letter addressed to the complainant returned with the endorsement  of remark that the complainant has left India, the O.Ps have not taken any step to serve the notice on the complainant.
6. It is  seen from the terms of insurance policy that the insured  vehicle was entitled  to take 7 passengers excluding the driver, if more passenger were carried in the vehicle which has met with an accident, those added passengers cannot be  said to have contributed to the cause of accident.    As per decision taken by Hon’ble Supreme Court in case No.647 (1996) 4 i.e. B.V Nagaraja Vrs. Oriental Insurance Co. Ltd. wherein it was decided that carrying of excess passengers could not have contributed in any manner to the occurring of the accident was barely noticed and rejected sans any plausible account; even when the claim confining the damage to the vehicle only was limited in nature.  So the plea that the vehicle was carrying more than permissible passengers can not be a ground for the insurance company to repudiate to the contract.
7. In view of the above, the O.Ps are found deficient in rendering service as per the terms of contract and unfair trade practice.

                                                                               ORDER

The O.Ps are directed to pay the claim amount as per the  calculation of loss as made by the surveyor vide his  letter dt.25.11.2014 amounting to Rs.71,500/- along with 9% interest from the date of claim till payment.  The O.Ps will also pay a further sum of Rs.5000/- towards cost of litigation.  The above payments shall be made to the O.Ps within a period of 45 days from the date of receipt of this order, failing which the complainant is at liberty to take shelter of this Hon’ble Forum as per C.P.Act.1986.

Typed to dictation, corrected and pronounced by the Hon’ble Member in the Open Court on this the 29^th    day of April,2017  under the seal and signature of this Forum.

 

  ( Smt. Sarmistha Nath )

                         Member (W)                                                                                                                                                                                                                                                                                                                                                                 (Sri D.C.Barik)

                                                                                                               President.

                                                                                                           (Sri B.N.Tripathy )

                                                                                                                 Member