Karnataka

Belgaum

CC/175/2015

Sri. Suresh Bhairappa Desai - Complainant(s)

Versus

The Divisional Manager, Oriental Insurance Co.Ltd, - Opp.Party(s)

B.C.Jangannavar

30 Nov 2016

ORDER

                 

ADDITIONAL  DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, BELAGAVI

C.C.No.175/2015

                       Date of filing: 19/03/2015

                                                                                                                                                                       Date of disposal:  30/11/2016

P R E S E N T :-

	(1)	Shri. A.G.Maldar, B.Com,LL.B. (Spl.) President.
	(2)	Smt.J.S. Kajagar, B.Sc. LLB. (Spl.)  Lady Member.

 

COMPLAINANT       -

Shri. Suresh S/o Bhairappa Desai, Age: 60 Years, Occ: Agriculture, R/o: Sambra Village, Tq: & Dist. Belgaum.                  (Rep. by Sri.B.C.Jangannavar, Adv.)

- V/S -

OPPOSITE PARTY   -

The Divisional Manager, Oriental Insurance Co. Ltd., Madiwale Arcade, Club Road, Belgaum.                   (Rep. by Sri.V.B. Malannavar, Adv.)

JUDGEMENT

By  Sri.A.G. Maldar, President.

 

1.         This is a Complaint filed by the complainant under Section 12 of the Consumer Protection Act, 1986 (herein after referred to as Act) against the Opposite Party (in short the “Op”) directed to pay Rs.1,72,671/- towards spare parts and labour charges of the tractor and trailer to the complainant & any other reliefs etc.,

 

2.         The facts of the case in brief are that;

 

            It is contended that, the complainant is the register owner of Tractor and Trailer bearing Reg.KA-22/T-4924/T-4925 and purchased the vehicle for his agricultural operations in order to earn his livelihood. The said vehicle in question is duly insured with the opponent vide certificate/policy No.472504/31/2013/424 valid from 13/05/2012 to mid night 12/05/2013.  

 

            On 27.11.2012, the complainant’s son and his relatives had been to Kittur and while returning to sambra, the said tractor and trailer was driven by driver in a moderate speed, the vehicle met with  accident i.e. near Hoolikatti Cross on N.H.-4 Highway, it was about 3-30 hours at that time, one truck bearing Reg.No.MH-17/AG-6735 which was moving from Dharwad side towards Belgaum i.e. behind the tractor and trailer with an excessive speed, in a rash and negligent manner, so as to endanger human life, without following the traffic rules, all of a sudden lost control over it, dashed to the complainant’s tractor and trailer thereby caused the accident. Due to the said impact, the tractor and trailer were damaged completely.

 

            It is contended that, after the said vehicle’s  accident, one Krishna Suresh Desai had lodged the complaint before the Kittur Police under P.S.Cr.No.312/2012 against the driver. The same is charge-sheeted against the driver of the truck by name Babusab Dharmanath Sunawani in C.C.No.406/2013, on the file of the Hon’ble J.M.F.c. Kittur. After the accident, the damaged tractor and trailer were brought with the help of toeing machine to Hegde Motors, Authorized dealers of Indorm Tractors, Belgaum for repairs. The said dealer has given an estimation of the damaged tractor and trailer.

 

            It is further contended that, the complainant has intimated the opponent Insurance Company regarding the accident  and damage caused both to the tractor and trailer alongwith submitted the claim form and other relevant documents before the opponent company with a request to settle his O.D. claim.

 

It is contended that, after submitted the claim form, the surveyor of the insurance company visited the garage and made survey of damaged vehicle subsequent, the repair works started and completed pursuant to which, the complainant submitted the original bills to the opponent for settlement of his O.D. claim at the time of accident. The driver of the tractor and trailer was holding valid D.L. and also the insurance policy was in force covering the date of accident. The said policy is Package Policy which covers O.D. also. The complainant is only claiming “own damage of tractor and trailer’ this being the fact, the opponent has repudiated O.D. claim of the complainant on 15.04.2013, the complainant left with no other efficacious remedy.. Therefore the complainant filed this complaint praying this Forum to award the compensation as prayed above.

           

3.         After receipt of said notice to the Opponent, the Op has appeared through his Counsel and resisted the claim of the complainant. The contents of para No.1 to 7 of the complaint is partly true and partly false. On perusal of complaint lodged by the own son of the complainant, it is clear that, four persons including the driver were travelling in the said tractor and trailer unit that, only driver of the tractor and trailer has been covered by the policy in question, because the seating capacity of the tractor is only one. However, through oversight and bonafide mistake in the policy, coverage of risk of 2 persons is shown to have been covered (1+1). The policy prohibits the carriage of persons for hire or reward and that it is mandated that tractor and trailer are to be used only for agricultural and forestry purposes.

 

            It is contended that, on account of personal affairs the three persons had been to Kittur and were returning by travelling unauthorizedly in the trailer at the time of accident. The complainant by violating the policy terms and conditions as to use, has disentitled himself from claiming “own damage. The opponent has rightly repudiated the claim made by the complainant.

 

            It is contended that, upon receipt of intimation of accident and damages to the insured vehicle, the opponent has deputed a surveyor on three occasions, the said surveyor/valuer has assessed the damage to the tune of Rs.60,656.99 ps and after deduction of salvage value i.e. Rs.3,000/- it would be Rs.57,656.99 rounded to Rs.57,600/-. The opponent without prejudice to the defense taken as above, hence the O.P. prayed to dismiss the complaint with compensatory costs of Rs.10,000/-.

 

4.         Both the parties have filed their affidavits in support of their case, the documents produced on behalf of the complainant as marked Ex.P-1 to Ex.P-7, for shake of our convenience we have marked P & R series. On behalf of Opponent also produced the documents same are marked as Ex.R-1 to Ex.R-4. The argument of complainant side taken as heard and opponent has argue the matter and filed his written arguments.

 

 

5.         Now, on the basis of these facts, the following points arise for our consideration:

 

1. Whether the complainant has proved that, there is negligence and deficiency in service on the part of the OP for not settling the claim of the Complainant?

 

2. What order?

 

 

 

 

6.         Our findings to the above points are as under:

 

1. In the Affirmative.
2. As per the final order for the following:

 

 

:: R E A S O N S ::

 

7.      POINT NO:1:-  We have perused the pleadings of the parties and the evidence and documents placed on record and the arguments advanced, it is evident that, there is no dispute in respect of the ownership of the vehicle and subsisting insurance policy and accident. Thereafter the complainant has intimated about the said accident to the OP insurance company and submitted estimate of repairs, and damaged in the said accident the vehicle has sustained total damages to the tune of Rs.1,72,671/-which is quite evident form the estimation submitted by the complainant.  Inspite of submission of all the relevant documents for settlement of the claim of the complainant, OP has refused to settle the same through their repudiation letter dated:15.04.2013  stating that, in the said Tractor and trailer, the passengers were carried which is against the terms and conditions of the policy and hence the OP repudiated the claim in toto.  As per policy, 1+1 persons were travelling in the said tractor, the sitting capacity of the vehicle as per policy condition is 1 + 1, the owner of the tractor was carrying more persons at the time of the accident which is against the terms and condition of policy, hence the OP is not liable to pay damage caused to the vehicle.   The complainant has violated the terms and conditions of the policy by carrying passengers in it, exceeding its capacity   Hence the OP is repudiated the claim of the complainant and there is no deficiency of service, hence the OP justified in repudiating the claim of the complainant through repudiation letter. The OP argued that, at the time of accident the said Tractor was carrying exceed passengers, though it is a Tractor and it is meant for agriculture goods and it was also carried passengers more than the permitted limit, which is also more than the permitted capacity.  Hence on these grounds, the claim of the complainant was repudiated on the basis of the records submitted by the complainant.   Further the Counsel for OP argued that, complainant is claiming damages to the tune of Rs.1,72,671/- falsely, but the OP without admitting the claim it is submitted that the loss assessed by the surveyor is to the tune of Rs.57,600/- after deducting salvage and taxes etc. By looking to the written version and argument advanced by the OP, it is clear that, there is a clear violation of the terms and condition of the policy and negligent act of the driver of the complainant’s by carrying the passengers more than the permitted capacity.

 

          By looking to the above contention of the Complainant and the OP’s contention pleaded in written version in respect of violation of terms and conditions of the policy, under such circumstance, in our considered  view that, mere carrying human in tractor  more than the number and terms could not have contributed to accident and that these excess passengers were in no-way concerned with the cause of the accident nor they have contributed to the risk in respect of the loss caused to the Tractor, hence complainant is entitled for compensation from the OP.  For that proposition of law, we would like to rely on a decision II (1996) CPJ 18 (SC), the said decision it is observed that, breach of carrying human in goods vehicle more than the number and terms could not have contributed to accident.  Hence the insurance company is liable to indemnify the damage caused to the vehicle and further observed that these excess passengers were in no-way concerned with the cause of the accident nor they have contributed to the risk in respect of the loss caused to the vehicle.  Further we would like to rely another decision of the Hon’ble Supreme Court reported in 2010 ACJ 1250 and in which it is observed that, under such circumstances, when the violation of the above clauses, the Forum can justify by compensating and settling a claim on non-standard basis to the extent of 75%. 

 

8.   Further we would like to refer to a decision of the Hon’ble National Commission, reported in II (2013) CPJ 483 (NC), in which it is held that, in case of violation of policy condition, the Insurance Company cannot repudiate the claim of the complainant in toto and also in recent decision of the Hon’ble National Commission, reported in IV (2015) CPJ 468 (NC), it is held that, the Insurer cannot be repudiated the claim of complainant in toto and the claim should be settled on non-standard basis. 

 

      In the instant case, the insurance company/OP has repudiated the claim of the complainant and contended that, on the date of accident, the said Tractor carries passengers more than the permitted capacity,   Therefore the driver is also a negligent for the said accident but, carrying passenger.  After careful going through the pleadings, documents and above discussed facts and circumstances, this Forum is of the opinion that the insurance company cannot totally repudiate the claim of the complainant, for the reasons that, the complainant has insured his Tractor and trailer with the OP insurance company by paying premium and on the date of accident the policy as per Ex.P-2 is in force, which is undisputed by the OP. However, the OP assessed the loss sustained to the said Tractor by appointing the surveyor to assess the actual loss caused to the complainant’s  and the surveyor assessed the loss to the tune of Rs.57,600/- after deducting salvage and taxes etc., and submitted the survey report, which is marked at Ex.R-3. The complainant has not disputed the report of the surveyor, the manner and method followed by the surveyor in assessing the loss including depreciation and deducting the salvage and tax etc. The Hon’ble Supreme Court and the Hon’ble National commission, hold that, claim can be awarded by applying non-standard basis. The report of the surveyor shall have to be accepted, therefore looking to the facts and circumstances of the case, consequently considering in the light of the law laid down by the Hon’ble Apex Court and Hon’ble National Commission mentioned above, we are of the considered opinion that there is deficiency in service on the part of the OP, in repudiating the claim of the complainant in toto.  Now in our considered opinion, we have no hesitation to hold that the insurance company is to be held liable to pay Rs.43,200/- i.e., 75% of Rs.57,600/-, which is just, proper and reasonable.  Hence we award a compensation of Rs.43,200/-together with interest @ 9% p.a from the date of complaint i.e.19.03.2015 till its realization and complainant also entitled to recover Rs.5,000/- towards mental agony and Rs.2,000/-towards costs of the proceedings. Accordingly, we answer Point No:1 in the Affirmative and proceed to pass the following:

 

O R D E R

 

For the reasons discussed above, the complaint filed by the complainant U/s.12 of the Consumer Protection Act, 1986 is hereby allowed, partly with costs.

 

           The OP shall pay a sum of Rs.43,200/-, together with interest @ 9% p.a from the date of complaint i.e.19.03.2015 till its realization. 

 

            The OP shall pay a sum of Rs.5,000/- towards mental agony and Rs.2,000/-towards costs of the proceedings.

 

            The OP is granted  8 weeks time for compliance of this order.

 

 

(Typed to our dictation then corrected, signed by us and then pronounced in the open Forum on this 30^th November -2016).

 

 

Sri A.G.Maldar, President

Smt. J.S. Kajagar,                Lady Member.

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