BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM RAICHUR.
COMPLAINT NO. (DCFR) CC. 69/11.
THIS THE 16th DAY OF JANUARY 2012.
P R E S E N T
1. Sri. Pampapathi B.sc.B.Lib. LLB PRESIDENT.
2. Sri. Gururaj, B.com.LLB. (Spl) MEMBER.
3. Smt. Pratibha Rani Hiremath,M.A. (Sanskrit) MEMBER.
*****
COMPLAINANT :- Ahmed S/o. Khadar Sab, Age: 31 years, Occ:
Business, R/o. Vijayanagar Colony, Sirwar, Tq. Manvi, Dist: Raichur.
//VERSUS//
OPPOSITE PARTY :- The Manager, Reliance General Insurance
Company Ltd., No. 28, East Wing, 5th floor, Cenetenary Building, Bangalore.
CLAIM :- For to direct opposite to pay an amount of Rs.
1,55,000/- with regard to damage to his Jeep bearing No. KA-23/M-6432 and other reliefs as noted in his complaint.
Date of institution :- 23-09-11.
Notice served :- 17-10-11.
Date of disposal :- 16-01-12.
Complainant represented by Sri. Rajshekar, Advocate.
Opposite represented by Sri. A.S. Malipatil, Advocate.
This case coming for final disposal before us, the Forum on considering the entire material and evidence placed on record by the parties passed the following.
JUDGEMENT
By Sri. Pampapathi President:-
This is a complaint filed by complainant Ahmed against Reliance General Insurance Company Ltd., under section 12 of Consumer Protection Act for to direct the opposite to pay an amount of Rs. 1,55,000/- with regard to damage to his Jeep bearing No. KA-23/M-6432 and other reliefs as noted in his complaint.
2. The brief facts of the complainant’s case are that, he is the owner of Jeep bearing No. KA-23/M-6432 insured with opposite insurance company, met with an accident on 23-05-10 at 8:00 am near Chukki Sugappa’s Land on Manvi Sirwar main road while insurance police was inforce. After accident, he intimated the opposite and thereafter filed claim petition with all necessary records, but opposite not settled his claim inspite of repeated requests on one or the other grounds. Hence this complaint is filed by him, for the reliefs as noted in the complaint.
3. Opposite Insurance Company appeared in this case through advocate, filed its written version by admitting the ownership of the complainant of the vehicle bearing No. KA-23/M-6432 and insured with its Insurance Company. It also admits the accident on the said date, time and place while insurance policy was inforce. It is submitted by the insurance company that, the complainant was carrying 19 passengers as an unauthorized passengers against to the seating capacity of 11+1, it is breach of one conditions of the policy. It is a private vehicle, it was plying on hire basis, hence the complainant is not entitled for any of the reliefs as noted in his complaint, there is no deficiency in its service and thereby it prayed for to dismiss the complaint among other grounds.
4. In-view of the facts and circumstances stated above. Now the points that arise for our consideration and determination are that:
1. Whether the complainant proves that, he being owner of the jeep bearing No. KA-23/M-6432 insured with opposite insurance company, met with an accident on 23-05-10 at 8:00 am on Manvi Sirwar Main Road near Chukki Sugappa’s land, the vehicle badly damaged in the accident, he got repaired the vehicle and thereafter he filed claim petition, but opposite repudiated his claim with untenable grounds and thereby opposite shown its negligence in settling his claim and thereby it found guilty under deficiency in its services.?
2. Whether complainant is entitled for the relief’s as prayed in his complaint.?
3. What order?
5. Our findings on the above points are as under:-
(1) In the affirmative
(2) As discussed in the body of this judgement and as noted in the final order.
(3) In-view of the findings on Point Nos. 1 & 2, we proceed
to pass the final order for the following :
REASONS
POINT NO.1 :-
6. To prove the facts involved in these two points, affidavit-evidence of the complainant was filed, who is noted as PW-1. The documents Ex.P-1 to Ex.P-11 are marked. ON the other hand, affidavit-evidence of Assistant Manager of the Insurance Company was filed, he was noted as RW-1. One document Ex.R-1 marked.
7. In view of the pleadings of the parties, their respective evidences and documentary evidences.
1. It is a fact that, the complainant is the owner in possession of the Jeep bearing No. KA-23/M-6432.
2. It is a fact that, the said vehicle was insured with opposite insurance company for a period of one yar starting from 06-04-10 to 05-04-11.
3. It is a fact that, the said vehicle met with an accident on 23-05-10 at 8:00 am on Manvi Sirwar Main Road near Chukki Suggapa’s land
4. It is a fact that, opposite insurance company not settled the claim of the complainant till today.
8. Keeping in view of the undisputed facts as noted above, we have not referred the relevant documents pertaining to those admissions as it is not necessary.
9. Ex.P-1 copy of FIR and copy of the complaint. Ex.P-2 the copy of the charge sheet and Ex.P-4 IMV report, discloses the fact that, the accident took place due to alleged negligence of its driver which are punishable U/sec. 279, 337 & 338. Police have not charge sheeted the accused for commission of any one of the offences under IMV Act or under Karnataka Police Act.
10. Repudiation of the claim of the complainant are on two grounds, the first ground shown by the opposite for repudiating the claim of the complainant is that, the vehicle was plying with 19 persons at the time of accident which is against the seating capacity 11+1 as per RC Ex.P-6 and there by it is a breach of condition of the policy.
11. The second ground for repudiation is that, the vehicle was plying on hire basis. The persons traveling in the said vehicle at that time were paid passengers. It is a private vehicle, hence this also violates the terms and conditions of the policy, as such the insurance company has rightly repudiated the claim of the complainant and thereby there was no deficiency in its service.
12. The learned advocate for complainant relied on the rulings as noted under:
1. 2010 (3) CPR P-38 (NC)
2. 2010 (2) CPR P- 441 (State Commission)
3. 2010 (3) CPR P-153 (State Commission)
4. 2011 (4) CPR 56 (NC) new India Assurance Company Ltd., and another V/s. Smt. Mohanbai.
On the other hand, the learned advocate for opposite relied on the judgment of the Hon’ble National Commission in Revision Petition NO. 3176/2011 dt. 17-03-2011.
13. The learned advocate for complainant placed his reliance on the ruling reported at Sl.No.1 & 4 and submitted that, carrying of eight persons against the sanctioned capacity of six could not be construed as major violation or fundamental breach of conditions of policy. Other rulings referred by him, are of the Hon’ble State Commission of Maharastra & Simla.
The judgment in Revision Petition bearing No. 3176/2011 dt. 17-03-2011 passed by the Hon’ble National Commission relied by the advocate for opposite pertaining to the case of Karnataka i.e, against the order passed by the Bellary District Forum. The said order explicitly state that, at the time of accident of the vehicle, 16 persons were carrying against the sanctioned capacity of 12 persons, hence there was a clear violation of the terms and conditions of the insurance policy. Keeping in view of the principles of the two judgments of the Hon’ble National Commission referred by the complainant as well as by the opposite insurance company and other rulings referred above, we have to see that whether the principles of the rulings referred by the complainant reported in 2010 (3) CPR 38 NC and applicable to the facts of this case or the principles stated in the judgment in Revision Petition No. 3176/2011.
14. Admittedly the vehicle was insured with opposite insurance company is under comprehensive policy. The first ground for repudiation is that, 19 persons were traveling in the said jeep against the permitted seating capacity 11+1 and thereby it violates the terms and conditions of the policy.
15. On perusal of FIR and complaint, it is very much clear that, one person by name Shiva Kumar R/o. Sirwar filed his complaint with regard to accident. Ex.P-2 the copy of the charge sheet discloses that, police have investigated the matter and filed charge sheet against the driver of the said vehicle U/sec. 279, 337 & 338 IPC. It clearly goes to show that, the driver of the vehicle or the persons was entrusted the vehicle not violated any provisions under IMV Act or under any provisions of K.P. Act. Apart from this fact, it is very much clear from the judgment referred at Sl.Nos.1 & 4 of the Hon’ble National Commission and also the principles stated by their lordships of the Hon’ble Supreme Court in AIR 1996 Supreme Court 2054, wherein, it is held by their lordships that, the breach of carrying humans in a goods the vehicle more than number of permitted in terms of insurance policy_ is not so fundamental breach, so as, to afford to the insurer to eschew liability altogether__ Exclusion terms and conditions of insurance policy shall read to serve main purpose of policy.
16. Keeping in view of the principles held by their Hon’ble Supreme Court as well as the Hon’ble National Commission we are of the view that, the alleged breach in carrying person is not a fundamental breach. The judgment in Revision Petition No. 3176/2011 on which the learned advocate for opposite is placing his reliance, is not serving his purpose in the light of the principles held by the Hon’ble Supreme Court hence we are not accepting the contention of the opposite for repudiating the claim of the complainant.
17. As regards second ground for running the vehicle on hire basis, plying the jeep with paid passengers, the opposite has not filed any documents to convince us, as on the said date and time and place it was running on hire basis or it was carrying paid passengers. No allegations by the police in this regard either in FIR or in the charge sheet. Hence the second ground of opposite is also not accepted for non settling the claim of the complainant, such untenable grounds establishes the fact of negligence on the part of insurance company and thereby it found guilty under deficiency in its service which is required to be given to complainant, accordingly, we answered Point No-1 in affirmative.
18. As regards to the liability of the Insurance Company to the complainant, in view of the repair of damages to his vehicle by the complainant he has produced number of documents in his support including quotations bills etc., opposite filed only xerox copy of the policy with terms and conditions. Opposite not filed any surveyor’s report, as such, we have to take into consideration of the documents filed by the complaint to assess the damage to the vehicle. Ex.P-10 is an estimate, hence it is not acceptable. Ex.P-10(1) is a bill dt. 28-05-10 for Rs. 6,680/- Ex.P-10(2) is another bill dt. 28-05-10 for Rs. 23,805/- and Ex.P-10(3) another bill dt. 28-05-10 for Rs. 5,800/-, these three bills are admissible. Ex.P-10(4), Ex.P-10(5) & Ex.P-10(6) are the bills which are not having any dates, as such, these bills are not admissible. Ex.P-10(7) and Ex.P-10(8) pertaining to the date 28-05-10 for total amount of Rs. 66,999/- which is admissible. Ex.P-10(9) is the quotation, Ex.P-10(10) is an estimate, and Ex.P-10(11) is quotation, which are not the bills and accordingly the claim under those documents not admitted. Hence the complainant is entitled to get an amount under the bills Ex.P-10(1), Ex.P-10(2), Ex.P-10(3) & Ex.P-10(7) & Ex.P-10(8), which amounts to Rs. 1,03,284/- from the opposite insurance company.
19. The complainant is also entitled to get an amount of Rs. 3,000/- under the head of deficiency in service on the part of the insurance company.
20. The complainant is also entitled to get an amount of Rs. 2,000/- towards cost of litigation. Hence the complainant is entitled to get total amount of Rs. 1,08,284, which is rounded to Rs. 1,08,300/-.
21. The complainant is also entitled get interest at the rate of 9% p.a. on the total sum of Rs. 1,08,300/- from the date of this complaint till realization of the full amount, accordingly we answered Point No-2
POINT NO.3:-
22. In view of our findings on Point Nos-1 & 2, we proceed to pass the following order:
ORDER
The complaint filed by the complainant is partly allowed with cost.
The complainant is entitled to get an amount of Rs. 1,08,300/- from the opposite insurance company.
The complainant is entitled to recover interest at the rate of 9% p.a. on Rs. 1,08,300/- from the date of complaint till realization of the full amount.
Opposite is hereby granted one month time to make the above payment to the complainant from the date of this judgment.
Intimate the parties accordingly.
(Dictated to the Stenographer, typed, corrected and then pronounced in the open Forum on 16-01-12)
Smt.Pratibha Rani Hiremath, Sri. Gururaj Sri. Pampapathi,
Member. Member. President,
Dist.Forum-Raichur. Dist-Forum-Raichur Dist-Forum-Raichur.
