Orissa

Jajapur

CC/09/2013

Narayan Behera - Complainant(s)

Versus

The Manager,Reliance General Insurance Ltd. - Opp.Party(s)

Pramod Kumar Adhikari

18 Mar 2015

ORDER

                               IN THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, JAJPUR.

 

                                                                     Present:  1.Shri Biraja Prasad Kar, President.

                                                                                     2.Sri Pitabas Mohanty, Member,

                                                                                     3. Miss Smita Ray, Lady Member. 

 

Dated the 18 th day of March,2015.

C.C.Case No.09 of 2013

 

Narayan Behera, S/O.Muli Behera

 At. – Kamar Khandi P.O.Baladev jew    

P.S.-KendrapadaTown, Dist. Kendrapada                                    ……………..Complainant .                                                                                              

                        (Versus)

The Manager, Reliance General Insurance Co. Ltd, 5^th Janapath,Unit-3

 2^nd floor, Bhubaneswar .      .

                                                                                                                 …………………………Opp.Party.                       For the Complainant:           Sri  P.K. Adhikari, Sri  S.Ch. Bhadra , P.R. Adhikari, Advocates.

For the Opp.Party     :          Sri A. Ku. Dash, Advocate

 

 

                                                                               Date of order: 18.03. 2015

SHRI  BIRAJA PRASAD KAR, PRESIDENT.

                        The complainant alleges deficiency in service against the O.P.

                        The complainant’s case in brief , is that the complainant purchased a ‘ Tata ACE vehicle vide Regd. No.0R-05 AE-1446 and insured the said vehicle with the O.P vide policy No.2402782334003804 commencing from 04.02.2009 to mid night of 03.02.2010 . During the subsistence of policy, on dt.15.02.09 while the vehicle was proceeding from Anandapur towards Chandikhole loaded with goods near Rathia Chhak (N.H.5) the vehicle met with an accident as because a person came in front of the vehicle suddenly for which the driver applied brake resulting capsized on the road causing damage to the vehicle. The complainant informed about the accident to the O.P. insurer and on dt.17.02.09 one Surveyor was deputed by O.P company who visited the spot and found the vehicle to have been damaged. Opp. Party company advised the complainant to repair the vehicle. The complainant on good faith repaired the vehicle taking loan from different persons. The complainant approached  the Opp. Party to settle the claim but the Opp. Party refused to make any settlement as requested by the complainant. Finding no other alternative the complainant filed this complaint alleging deficiency in service against the Opp. Party with the prayer to direct the Opp. Party to settle the claim of the complainant for  Rs.2,00,000/- and to pay a cost of Rs.50,000/- to the complainant towards mental agony, harassment etc.    

                        On being noticed the Opp. Party appeared through their advocate and filed their written version refuting the allegations made in the complaint petition and inter alia pleaded that the alleged vehicle of the petitioner 0R-05-AE-1446 was insured with this Opp. Party vide policy No.2402782334003804 with validity from 04.02.09 to 03.02.10. The Opp. Party soon after getting the information about the alleged loss dt.05.02.2009 appointed surveyor M/S intrepid claims private Ltd. to undertake the necessary investigation and submit report. The surveyor after going through the matter in detail submitted his report. As per his report it is ascertained that at the time of alleged accident there were four persons  inside the cabin of the Truck. Among them one is the driver Ashok Kumar Behera,Sunakar Kabi is the helper and two other persons were Saura ch. Sahu and Dharanidhar Sahu . Apart from driver and helper the other two persons were plying in the vehicle in the capacity of fare paying passenger. As per statement collected from them the alleged accident took place due to over load in the cabin. The driver lost its control and met with the accident. The alleged vehicle being a Goods carrying Tata ACE Truck having the capacity to board only (1 + 1) two persons as per makers specification. Accordingly the Insurance policy was issued with receipt of requisites premium. But on going through the surveyors report when it is ascertained that there was  over loading inside the Truck, which is nothing ,but an irregularity and void to the contract of Insurance contract, for which the claim made by the petitioner amounting to rs.2,00,000/- towards repairing cost of the damaged vehicle was repudiated.

                        There is absolutely no deficit of service on the part of the Opp. Party in any manner. Rather this Opp. Party has taken utmost care and sincerity in taking the matter of the petitioner.

                        On the date of hearing we have heard arguments from the side of the Opp. party and perused the pleadings and documents available on record.

                        On perusal of the record and documents the factum of accident and damages caused to the vehicle has not been disputed. The plea of O.P falls on the ground that there is  over loading in the cabin of the Truck which causes in convenience to the driver to drive the vehicle and the driver lost his control for which accident took place which was against the terms and conditions of the Insurance policy. As against the allegations of the O.P we have verified the photo copy of the F.I.R which clearly reveals that the vehicle met with an accident as because a person came in front of the vehicle suddenly for which the driver applied brake resulting capsized of the vehicle on the road causing damage to the vehicle.  More over there is no iota of evidence produced from the side of the O.P. to show that carrying of hired passengers in the Truck causes in convenience to the driver for driving the vehicle at the material time of accident.

Even if it is presumed that there were more (two) passengers on hire in the vehicle than permitted, there was no nexus between the over loading and accident.

                         In this connection reference may be made to a decision of  Hon’ble National Commission in the case of New  India Assurance Company Limited V. Narayan Prasad Appaprasad Pathak ( reported in 2006 CPJ-144 (NC) ).  In that case also the question was, whether the insurance Company can repudiate the claims in a case where the vehicle carrying passengers and the driver did not have a proper driving license and met with an accident . While granting claim on non-standard basis the National Commission set out in its judgment the guidelines issued by the Insurance Company about settling all such non standard claims. The said guidelines are set out below:-

Sr. No. Description percentage of settlement

1. Under declaration of licensed carrying capacity deduct 3 years difference in premium from the amount of claim or deduct 25% of claim amount, which ever is higher.
2. Over loading of vehicles beyond licensed carrying capacity pay claims not exceeding 75% of admissible claim.
3. Any other breach of warranty / condition of policy including limitation as to use pay up to 75% of admissible claim.

                        We have also verified the following decisions of the Hon’ble Appex Court and National Commission.

1. 2013(3) CPR-641(SC)

A malendu Sahoo Vrs. Oriental Insurance Co. Ltd where in it is held that:-

“ Damage to vehicle in accident- dismissal of claim by For a below on the ground     that  Car at the time of accident was being driven on hire and was out side scope of Insurance Policy- Insurance  Company can not repudiate the claim in toto. Insurance Company directed to pay consoliated sum of Rs.2,50,000/- even though compensation claimed is Rs.5,00,000/-.

(2). 2006 CTJ-221(CP) (NCDRC)

United India Insurance Company Ltd. Vrs. Gian Singh wherein it is held that:-

“in case of violation of condition of policy as to the nature of use of the vehicle,       the claim ought to be settled on non-standard basis”.

                        From a perusal of the aforesaid decisions  and guide lines it is clear that one of the cases where 75% claim of the admissible claim was settled was  where conditions of policy including limitation as to use was breached.

                        In the instant case the entire stand of the Insurance Company is that the vehicle was carrying two other hire passengers which caused in convenience to the driver to drive the vehicle and in the course of that there has been accident . The claimant has violated  the terms and conditions of the Insurance Policy. Following the aforesaid guidelines, we are of the opinion

that the Insurance company can not repudiate the claim in toto . The O.P is liable to pay 75% of the admissible claim.             

                        The O.P. has not filed the report of the surveyor-cum-loss Assessor. In absence

Of  the  report  of   Surveyor-Cum-Loss-Assessor   we accept  the  retail  invoice of Trupti  Auto

Motives   (Authorized   Service  Center  of Tata Motors ) where in a sum of Rs.1,68,282.00 was

charged for the repair of the accident vehicle. Hence, the O.P is liable to pay Rs.1,26,211.00  i.e

 75% of the admissible claim.

 

                                                            O R D E R

                        In the result the C.C. Case is allowed on contest  against the O.P. without any cost. The Opp. Party is directed to pay Rs.1,26,211.00 to the complainant within two months of receipt of this order , failing which the aforesaid amount will carry an interest at the rate of 9% from 31.01.13  till the payment is made. The O.P. is also directed to pay a cost of Rs.5,000/- (five thousand ) to the complainant within two months .                     

                        This order is pronounced in the open Forum on this the18th  day of March ,2015. under my hand and seal of the Forum.

                                                                                                               (Shri Biraja Prasad Kar )

                                                                                                                        President.

(Sri Pitabas Mohanty)                                                  Typed to my dictation & corrected by me                                             

          Member                                                                        

                                                                                                    (Shri Biraja Prasad Kar)

(Miss Smita  Ray )                                                                                   President.

     Lady  Member.