The Manager National Insurance Co. Ltd., V/S Smt. Ibrahim Bee W/o. Syed Haji Inamdar - Consumer Court Case

Karnataka

Raichur

DCFR 36/06

Smt. Ibrahim Bee W/o. Syed Haji Inamdar - Complainant(s)

Versus

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

Keshava Rao

16 Aug 2006

ORDER

DIST. CONSUMER DISPUTES REDRESSAL FORUM
DIST. CONSUMER DISPUTES REDRESSAL FORUM,DC Office Compound, Sath Kacheri
consumer case(CC) No. DCFR 36/06

Smt. Ibrahim Bee W/o. Syed Haji Inamdar						...........Appellant(s)
Vs.
The Manager National Insurance Co. Ltd., The Divisional Manager, National Insurance Co. Ltd.,						...........Respondent(s)

BEFORE:

Complainant(s)/Appellant(s):

OppositeParty/Respondent(s):

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ORDER

This is a complaint filed U/s. 12 of Consumer Protection Act by the complainant Smt. Ibrahim Bee - against Manager National Insurance Company Ltd., Raichur and Divisional Manager National Insurance Company Chennai, herein after referred as Ops 1 & 2. The brief facts of the complaint are as under:- The complainant is the R.C Holder of Light Goods Vehicle bearing No. KA-36/2443 which was insured with the Opposite Parties under Policy No. 501602/31/03/6309236. The vehicle in-question met with an accident on 03-06-04 near Nagadinni village cross between Sirwar & Deodurga Road within the jurisdiction of this Forum and thereby sustained major damages and on account of which repairs were necessited and the complainant incurred repair charges, damages under various heads to the tune of Rs. 1,00,130/-. The complainant filed claim form with the OP.No-1 along with original bills by requesting to reimburse the said repair charges/damages. OP.No-2 denied its liability by stating that the permit of the vehicle in-question has been violated. The repudiation letter dt. 10-11-05 issued by OP.No-2 in untenable and not legally sustainable. So there is deficiency of service by the Ops. Hence for all these reasons the complainant has sought for direction to pay a sum of Rs. 1,00,130/- towards repair charges incurred by her with interest at 24% p.a. from the date of accident and also to pay a compensation of Rs. 20,000/- along with cost of litigation. 2. The Ops have filed counter/written version contending that the vehicle in-question is a goods vehicle but the complainant has violated the policy conditions and allowed 20-25 fare paid passengers in the vehicle at the time of accident. Out of 25 passengers about 20 passengers have injured. As the complainant has violated the policy-conditions the claim of the complainant has been rejected/repudiated. Even then the complainant has again approached this Forum with un-clean hands, suppressing the real facts. So the complainant is not entitled for any damages or compensation and hence there is no any deficiency of service on the part of this Ops and they have rightly issued repudiation letter, in time. Hence for all these reasons they have sought for dismissal of the complaint with exemplary cost. 3. During the course of enquiry the complainant has filed her sworn affidavit as evidence and has got marked [8] documents at Ex.P-1 to P-8. In rebuttal the Ops have filed sworn affidavit of OP.No-1 as their evidence and have got marked [5] documents at Ex.R-1 to R-5. 4. Heard the arguments of both sides and perused the records. The following points arise for our consideration and determination:- 1.Whether the complainant proves deficiency in service by the Opponents as alleged? 2.Whether the complainant is entitled for the reliefs sought for? 5. Our finding on the above points are as under:- 1.In the negative. 2. As per final order for the following REASONS POINT NO.1:- 6. There is no dispute that the complainant is the owner-R.C. Holder of the insured goods vehicle bearing No. KA-36/2443. It is also not in dispute that the said vehicle met with an accident on 03-06-04 on Sirwar Deodurga Road near Nagadadinni cross and one Syed Shalam was the driver of the said vehicle. There is no averments either in the complaint or in the affidavit-evidence of the complainant that at the time of accident the vehicle in-question was transporting goods along with labours/coolies in the said vehicle. The Respondents in the written-version and affidavit-evidence have specifically contended that the complainant has allowed 20-25 fare paid passengers in the lorry at the time of accident and about 20 passengers were injured and thus complainant has violated the policy condition and so the claim has been repudiated. In-support of their contention the Respondent Corporation has produced certified copy of FIR of Sirwar P.S. with police complaint of one Ningappa vide Ex.R-1 and Raichur Vani Newspaper dt. 05-06-04 regarding the accidental news flashed in the said paper vide Ex.R-4. 7. The learned counsel for the complainant vehemently argued that merely because the driver of the complainant-vehicle had allowed some passengers in the vehicle without the knowledge of owner-complainant cannot be said to be violation of policy conditions by the complainant especially when the accident had not occurred due to traveling of those persons in the vehicle. In support of his arguments the learned counsel has relied upon the decision of Honble Supreme Court reported in: AIR 1996 S.C. Page 2054 Head Note which reads as under:- Motor Vehicles Act (59 of 1988) S. 147 __ Liability of insurance company__ Head on collision__Damage caused to vehicle__ Claim by truckowner__ Alleged breach of carrying humans in a goods vehicle more than the number permitted in terms of insurance policy__ Is not so fundamental a breach so as to afford to the insurer to eschew liability altogether __ Exclusion term of insurance policy read down to serve main purpose of policy. 8. The facts in the referred judgement were that the driver of that vehicle had allowed three passengers excess to permitted-number and there was no dispute that the driver of the said vehicle was responsible for the accident as on-coming vehicle had collided head-on against the said vehicle, which resulted in the damages and so the Honble Supreme Court observed that merely by lifting a person or two or even three by the driver or the cleaner of the vehicle, without the knowledge of the owner cannot be said to be such a fundamental breach that the owner should in all events be denied indemnification of damages, though mis-use of the some what irregular, but not so fundamental in nature so as to put an end to the contract (vide para-7 of the said judgment). 9. Ex.R-1-FIR & Police complaint which is material in this case discloses that on 02-06-04 one Ningappa along with 18-19 persons [ his relatives ] had engaged the goods vehicle in-question to go to Satyampet village in Surpur Tq. of Gulbarga District to attend funeral of their relative late Padmavathi and on next day i.e, 03-06-04 in the after-noon while returning from Satyampet, the vehicle met with an accident due to rash and negligent driving by the driver Syed Shalam S/o. Abdul Kurdi. There is no dispute that this Shalam Kurdi was the driver of the vehicle. From a plain reading of the complaint of Ningappa it clearly shows that the goods vehicle in-question was engaged to go to Satyampet village in Surpur Tq. and accordingly about 20-25 persons/passengers travelled in the said vehicle on 02-06-04 and while returning journey on 03-06-04 the said vehicle met with an accident on Deodurga-Sirwar Road due to rash & negligent driving by said driver, resulting injuries to the inmates of the vehicle besides causing damages to the vehicle. If these factors are taken into account, then it clearly shows that about 20-25 paid fare passengers were allowed to travel in the said vehicle. These averments even do not attribute that the driver of the said vehicle while transporting the goods had allowed said passengers to travel without the knowledge of the owner-complainant in this case. This in-turn clearly shows violation of policy terms and conditions as contended by the Respondent. Therefore with due respect to the decision of the Honble Supreme Court, we hold that the principles laid down in the said decision are not applicable to the facts in hand. So we do not find any illegality in repudiation of the claim. Hence it cannot be said that there is deficiency in service by the Respondent in not settling the claim of the complainant. Therefore it follows that the complainant has failed to prove deficiency in service by the Respondent Corporation so point NO-1 is answered in the negative. POINT NO.2:- 9. In view of our discussion and finding on Point No-1 the complainant is not entitled for the reliefs sought for. Hence we pass the following order: ORDER The complaint of the complainant being devoid of merits is hereby dismissed. No order as to cost. (Dictated to the Stenographer, typed, corrected and then pronounced in the open Forum on 16-08-06) Sd/- Sri. N.H. Savalagi President Dist.Consumer Forum-Raichur. Sd/- Sri.Pampannagouda Member. Dist.Consumer Forum-Raichur. Sd/- Smt.Kavita Patil Member. Dist.Consumer Forum-Raichur.

This is a complaint filed U/s. 12 of Consumer Protection Act by the complainant Smt. Ibrahim Bee - against Manager National Insurance Company Ltd., Raichur and Divisional Manager National Insurance Company Chennai, herein after referred as Ops 1 & 2. The brief facts of the complaint are as under:- The complainant is the R.C Holder of Light Goods Vehicle bearing No. KA-36/2443 which was insured with the Opposite Parties under Policy No. 501602/31/03/6309236. The vehicle in-question met with an accident on 03-06-04 near Nagadinni village cross between Sirwar & Deodurga Road within the jurisdiction of this Forum and thereby sustained major damages and on account of which repairs were necessited and the complainant incurred repair charges, damages under various heads to the tune of Rs. 1,00,130/-. The complainant filed claim form with the OP.No-1 along with original bills by requesting to reimburse the said repair charges/damages. OP.No-2 denied its liability by stating that the permit of the vehicle in-question has been violated. The repudiation letter dt. 10-11-05 issued by OP.No-2 in untenable and not legally sustainable. So there is deficiency of service by the Ops. Hence for all these reasons the complainant has sought for direction to pay a sum of Rs. 1,00,130/- towards repair charges incurred by her with interest at 24% p.a. from the date of accident and also to pay a compensation of Rs. 20,000/- along with cost of litigation. 2. The Ops have filed counter/written version contending that the vehicle in-question is a goods vehicle but the complainant has violated the policy conditions and allowed 20-25 fare paid passengers in the vehicle at the time of accident. Out of 25 passengers about 20 passengers have injured. As the complainant has violated the policy-conditions the claim of the complainant has been rejected/repudiated. Even then the complainant has again approached this Forum with un-clean hands, suppressing the real facts. So the complainant is not entitled for any damages or compensation and hence there is no any deficiency of service on the part of this Ops and they have rightly issued repudiation letter, in time. Hence for all these reasons they have sought for dismissal of the complaint with exemplary cost. 3. During the course of enquiry the complainant has filed her sworn affidavit as evidence and has got marked [8] documents at Ex.P-1 to P-8. In rebuttal the Ops have filed sworn affidavit of OP.No-1 as their evidence and have got marked [5] documents at Ex.R-1 to R-5. 4. Heard the arguments of both sides and perused the records. The following points arise for our consideration and determination:- 1.Whether the complainant proves deficiency in service by the Opponents as alleged? 2.Whether the complainant is entitled for the reliefs sought for? 5. Our finding on the above points are as under:- 1.In the negative. 2. As per final order for the following REASONS POINT NO.1:- 6. There is no dispute that the complainant is the owner-R.C. Holder of the insured goods vehicle bearing No. KA-36/2443. It is also not in dispute that the said vehicle met with an accident on 03-06-04 on Sirwar Deodurga Road near Nagadadinni cross and one Syed Shalam was the driver of the said vehicle. There is no averments either in the complaint or in the affidavit-evidence of the complainant that at the time of accident the vehicle in-question was transporting goods along with labours/coolies in the said vehicle. The Respondents in the written-version and affidavit-evidence have specifically contended that the complainant has allowed 20-25 fare paid passengers in the lorry at the time of accident and about 20 passengers were injured and thus complainant has violated the policy condition and so the claim has been repudiated. In-support of their contention the Respondent Corporation has produced certified copy of FIR of Sirwar P.S. with police complaint of one Ningappa vide Ex.R-1 and Raichur Vani Newspaper dt. 05-06-04 regarding the accidental news flashed in the said paper vide Ex.R-4. 7. The learned counsel for the complainant vehemently argued that merely because the driver of the complainant-vehicle had allowed some passengers in the vehicle without the knowledge of owner-complainant cannot be said to be violation of policy conditions by the complainant especially when the accident had not occurred due to traveling of those persons in the vehicle. In support of his arguments the learned counsel has relied upon the decision of Honble Supreme Court reported in: AIR 1996 S.C. Page 2054 Head Note which reads as under:- Motor Vehicles Act (59 of 1988) S. 147 __ Liability of insurance company__ Head on collision__Damage caused to vehicle__ Claim by truckowner__ Alleged breach of carrying humans in a goods vehicle more than the number permitted in terms of insurance policy__ Is not so fundamental a breach so as to afford to the insurer to eschew liability altogether __ Exclusion term of insurance policy read down to serve main purpose of policy. 8. The facts in the referred judgement were that the driver of that vehicle had allowed three passengers excess to permitted-number and there was no dispute that the driver of the said vehicle was responsible for the accident as on-coming vehicle had collided head-on against the said vehicle, which resulted in the damages and so the Honble Supreme Court observed that merely by lifting a person or two or even three by the driver or the cleaner of the vehicle, without the knowledge of the owner cannot be said to be such a fundamental breach that the owner should in all events be denied indemnification of damages, though mis-use of the some what irregular, but not so fundamental in nature so as to put an end to the contract (vide para-7 of the said judgment). 9. Ex.R-1-FIR & Police complaint which is material in this case discloses that on 02-06-04 one Ningappa along with 18-19 persons [ his relatives ] had engaged the goods vehicle in-question to go to Satyampet village in Surpur Tq. of Gulbarga District to attend funeral of their relative late Padmavathi and on next day i.e, 03-06-04 in the after-noon while returning from Satyampet, the vehicle met with an accident due to rash and negligent driving by the driver Syed Shalam S/o. Abdul Kurdi. There is no dispute that this Shalam Kurdi was the driver of the vehicle. From a plain reading of the complaint of Ningappa it clearly shows that the goods vehicle in-question was engaged to go to Satyampet village in Surpur Tq. and accordingly about 20-25 persons/passengers travelled in the said vehicle on 02-06-04 and while returning journey on 03-06-04 the said vehicle met with an accident on Deodurga-Sirwar Road due to rash & negligent driving by said driver, resulting injuries to the inmates of the vehicle besides causing damages to the vehicle. If these factors are taken into account, then it clearly shows that about 20-25 paid fare passengers were allowed to travel in the said vehicle. These averments even do not attribute that the driver of the said vehicle while transporting the goods had allowed said passengers to travel without the knowledge of the owner-complainant in this case. This in-turn clearly shows violation of policy terms and conditions as contended by the Respondent. Therefore with due respect to the decision of the Honble Supreme Court, we hold that the principles laid down in the said decision are not applicable to the facts in hand. So we do not find any illegality in repudiation of the claim. Hence it cannot be said that there is deficiency in service by the Respondent in not settling the claim of the complainant. Therefore it follows that the complainant has failed to prove deficiency in service by the Respondent Corporation so point NO-1 is answered in the negative. POINT NO.2:- 9. In view of our discussion and finding on Point No-1 the complainant is not entitled for the reliefs sought for. Hence we pass the following order: ORDER The complaint of the complainant being devoid of merits is hereby dismissed. No order as to cost. (Dictated to the Stenographer, typed, corrected and then pronounced in the open Forum on 16-08-06) Sd/- Sri. N.H. Savalagi President Dist.Consumer Forum-Raichur. Sd/- Sri.Pampannagouda Member. Dist.Consumer Forum-Raichur. Sd/- Smt.Kavita Patil Member. Dist.Consumer Forum-Raichur.