This is an application u/s.12 of the C.P. Act, 1986.

          In the present complaint complainant has alleged that complainant entered into an insurance contract with OP1 to insure a passenger vehicle being a JCB Excavator bearing Registration No.NL-07A-2496 and also for the driver and/or conductor, cleaner/helper while engaged in the service of the insured in such occupation in connection with the vehicle insured and as per terms and condition of the policy for any accident med by the driver and/or helper and/or cleaner would be covered by insurance under the Workmen’s Compensation Act, 1923 or the Final Accidents Act, 1855 or under common law in respect of personal injury.

          It is specifically mentioned that the vehicle was insured with National Insurance Company first thereafter New India Assurance Company Ltd and that package policy was executed on 19-12-2007 and renewed on 19-12-2008 and duly registered with the Government of Nagaland on 04-01-2007 as it is appeared in RC Book and Certificate of Registration.

          Fact remains vehicle bearing Registration No.NL-07A-2495(JCB) and its permit granted from the Regional Transport Authority, Government of Nagaland for plying from Mokokchung(Nagaland) to Yongkiong(Arunachal Pradesh) via Jorhat, Shib Sagar, Dibrugarh, Dhemaji, Parighed(Arunachal Pradesh) Yongkiong and back and for that purpose permit was given to carry driver handyman, helper during journey.  Such special permit was given vide Special Permit No.2495/MKA/08 dated 19-12-2008 and the same was to remain valid upto 18-01-2009 and said vehicle had been used on higher basis for carrying out Government Road Works at Panggo in Arunachal Pradesh met with an accident on 13-01-2009 morning between 3 a.m. and 4 a.m. in between Bondo and Janbo Village when it fell down from the road and more than 300 mts. below into a gorge and on the date of accident it was a insurance coverage and total sum insured was Rs.11,39,742/- and premium was paid Rs.17,330/- and insurance coverage valid period was form 19-12-2008 to 18-12-2009. 

          After accident the dependent of the driver had lodged a claim before the Commissioner under the Workmen’s Compensation Act, 1923 at Golaghat, Assam which was registered as WC Case No.54 of 2009 and in the said claim case OP1 was impleaded as a party and OP Insurance Company participated in the proceeding and in terms of the award, a sum of Rs.4,26,080/- had been deposited fully and finally by the insurance company vide a cheque in the Workmen’s Compensation Account, Golaghat in Assam.  It is further submitted after the accident the spot survey report could not be submitted immediately with the insurance company.   The complainant did not know what were the risks but on 20-05-2009 complainant received a claim form from the OP1 along with a letter dated 20-05-2009 and on 20-05-2009 said claim form, dully filled in along with necessary documents filed to the OP2 under a cover letter dated 25-05-2009 where it was categorically mentioned that the vehicle fell down about 300 meters from the main road into deep gorge and as such it was not possible to recover the same and to make estimate of the loss suffered and by the said letter the insurance company was requested to lodge the claim as total loss and the complainant also informed that the driver’s licence No.13075/TV/T/06 issued by the Government of Nagaland.  Subsequently, on 29-09-2009 OP Company wrote to the complainant contending that the claim was pending due to non-submission of the original FIR/FRT Death Certificates and post-mortem report of the driver and cleaner for verification and the complainant submitted original FIR for accident of the vehicle with a request to process the claim and said letter was received on 01-12-2009 by the OP1.  Subsequently, complainant submitted all the documents and by seeking consent from the complainant as regards the acceptance of the salvage value of Rs.30,000/- for the said vehicle which met with accident but could not be recovered from the deep gorge where it had fallen into and the complainant had accepted the salvage value of the vehicle since the claim was lying unsettled for more than 1½ years but in respect of the compliance of the same OP assessed salvage value of Rs.1,50,000/-.  Subsequently, complainant prayed for settlement of the same after adjustment of the salvage value but even then ultimately it was not disposed of and for which for redressal complainant filed this complaint.

          On the other hand the Insurance Company by filing written version submitted that no doubt there was a violation of insurance policy in respect of Excavator leader bearing registration No.NL-07A/2496 in the name of M/s. Binani Agri Inputs with insured declared value of Rs.11,39,792/- and it was intimated that an accident was taken place on 13-01-2009 in the State of Arunachal Pradesh and as a result two persons died and the said loader failed in a deed gorge.  Thereafter, independent licensed surveyor Sri Aswini Sharma was surveyed and assessed the loss for collecting necessary documents from insured and assessed the salvage value of Rs.1,50,000/- and after considering the documents and etc it was considered by the competent authority of the OP that at the time of accident the vehicle was running and/or operational and from the driving licence of the driver f the said vehicle it reflects that the said driver was having a transport licence and the said licence was obtained by the driver before the age of 20 in total derogation to provision as set forth in section 4(2) of the Motor Vehicle Act, 1988 and accordingly, for violation of the said provision the claim was repudiated and also on the ground as per certificate of the registration of the subject vehicle, the said Excavator is for only one person but fact remains from the report of policy it appears that two persons were died in the accident who were sitting on the said vehicle as such it can be inferred that one person extra person was sitting on the said vehicle in violation to the provision of the certificate of Registration and for which the claim was repudiated on 01-03-2011.  So, there was no negligence or deficiency on the part of the OP for which the complaint should be dismissed.

Decision with Reasons

On proper consideration of the complaint, written version including the document as filed by the complainant it is found that manufacturing of the said Excavator was of December, 2006 and date of Registration is 04-10-2007 truth is that sitting capacity is only for one person i.e. driver so other that the driver no person can be carried at the time of using that Excavator but in the present case it is found that two persons were carried away that means one driver and another person and both of them died in the said accident.  So, no doubt the condition of the policy has been violated by the driver and owner of the said vehicle and it is principle of law if any insure violates any such conditions of the policy in that case 25% of the total sum insured shall be deducted.  When that is the fact then out of Rs.11,39,792/- , Rs.2,40,000/- shall be deducted for violation of the terms of the policy and for carrying another person other than the driver at the said Excavator at the time of accident.  Similarly, considering the manufacturing year December, 2006 and date of Registration dated 04-10-2007 and also considering the date of accident on 13-01-2009 including rate of depreciation of all other parts including wooden parts as per Clause 4 of Section of the policy and applying that depreciation table it is found that 35 to 40% shall be deducted as deprivation because out of the total amount and on calculation it is found that further Rs.3,60,000/- shall be deducted as depreciation cost.  So, out of the total sum insured Rs.11,39,792/- insurance company easily deducted Rs.6 lakhs out of that for violation of policy condition and for depreciation of the said vehicle as per policy condition and, thereafter, after deducting salvage charge OP ought to have release the fund in respect of the claim of the complainant.  but fact remains violation is there for which it is repudiated but it is the verdict of the National Commission is that for vital violation 25% may be deducted for each violation so for that authorization 25% is deducted for violation of the policy i.e. for carrying one person in the Excavator but it is mandatory as per Rule that in an Excavator except driver no person shall be there and for which Rs.2,40,000/- has been deducted and further Rs.3,60,000/- has been deducted as depreciation cost.  So, total Rs.6 lakhs is deducted and Rs.1,39,792/- as salvage charges and accordingly a sum of Rs.5,00,000/- may be released as final settlement of the claim of the complainant but it has been released by the Forum only considering the entire fact and also the terms and condition of the policy and no doubt repudiation for violation of term cannot be stated as illegal.  But anyhow after relying upon the ruling of the National Commission reported in II 2013 CPJ 48 we are allowed this claim of the complainant and accordingly, we are directing the OP insurance company to release a sum of Rs.5 lakhs in favour of the complainant as final settlement of the claim for which the said complaint is filed against the OP.  But no interest or compensation is awarded in view of the fact there is previous fault and violation on the part of the complainant for carrying more than one person in the said Excavator i.e. some other person which is proved that two persons were in the said Excavator which fall in the deep gorge and practically we have taken a moral view to compensate the complainant and we are directing the OP to release a sum of Rs.5 lakhs only treating the entire claim as final settlement and vacating the repudiation order as made by the OP.

In the result, the case succeeds in part.

Hence,

Ordered

That the case be and the same is allowed on contest against the OP but without any cost as no deficiency or negligence on the part of the OP proved. 

          OP is directed to pay a sum of Rs.5 lakhs by the complainant treating it as a final settlement of disputed claim for which the present complaint is filed against the OP and treating the repudiation as modified and said amount shall paid to the complainant within 45 days from the date of this order failing which for non compliance of the Forum’s order OP shall have to pay punitive damages @Rs.200/- per day till full satisfaction of the decree and if it is collected it shall be deposited to this Forum by the OP.

          OP is directed to comply this order within the stipulated period in default further penalty and fine may be imposed for starting penal action.