DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION-II

Udyog Sadan, C-22 & 23, Qutub Institutional Area

(Behind Qutub Hotel), New Delhi- 110016

Case No.40/2011

M/S Darcl Logistics Ltd.

Having its Registered Office at

Plot No. 55 P, Sector 44,

Institutional Area, Gurugram,

Haryana- 122003

                                                                                                                        ….Complainant

Versus

New India Assurance Co. Ltd.

Having its branch office at,
2^nd Floor, Mother House,

22 Yusuf Sarai, Commercial Complex,

Gulmohar Enclave, New Delhi- 110049

        ….Opposite Party

            Date of Institution    :    10.02.2011    

            Date of Order            :    15.03.2022  

Coram:

Ms. Monika A Srivastava, President

Ms. Kiran Kaushal, Member

Sh. U.K. Tyagi, Member

ORDER

Member:  Ms. Kiran Kaushal

1.  Briefly put, Complainant is a public limited company represented by
   Mr. Jayender Manucha, SPA holder.

2.  It is stated that, Complainant is a registered owner of goods carrying commercial vehicle bearing Registration No. KA01A 7425. The said vehicle was insured with the New India Assurance Co. Ltd. hereinafter referred to as OP. Complainant’s vehicle met with an accident on 10.09.2007 during the subsistence of insurance policy. Complainant’s vehicle met with an accident at Mangoli Cross, District Bijapur in Karnataka. Hence, FIR was lodged with Police Station Mangoli. The same is annexed as Annexure C/4. Thereafter, intimation of the claim was given to OP on 11.09.2007.

3.  OP appointed a surveyor, who assessed the loss of vehicle at
   Rs.17,26,840/-. Thereafter, many reminders were issued to OP for settlement of the claim. But to utter shock of the Complainant, OP repudiated the claim vide letter dated 17.04.2009 on the ground that the vehicle was overloaded at the time of the accident. It is stated that the police report and the survey reports do not suggest the cause of accident as overloading or even the negligence of driver.

4.  Alleging that the repudiation of the said claim by OP is totally unjustified and illegal, it is prayed that OP be directed to make payment of Rs.17,26,840/- alongwith interest @18% p.a. from the date of application of claim and further to pay Rs.2,00,000/- as compensation on account of harassment and mental agony.  

5.  Per contra, OP contended that loss is not tenable as the vehicle was found overloaded at the time of accident. It was carrying a weight of 61,240 M.T. against permissible limit of 31,750 kg. Hence, overloaded by almost to the tune of 93%. It is stated that the vehicle was not only overloaded to the extent of 93% but also driven rashly and negligently, which resulted into the loss. It is next stated that on receipt of intimation of the accident, OP deputed a surveyor for the spot assessment of loss. The said surveyor after examining the vehicle submitted his report dated 29.09.2007 pointing out various damages.

6.  The company also deputed another surveyor for the assessment of loss and the said surveyor after examining the vehicle has assessed the loss at Rs.8,75,880/-. The amount was only payable in case there was no breach in the terms of policy. After examination of documents, it was affirmed that vehicle was overloaded by almost 93%. The vehicle was being used contrary to policy conditions as well as provision of MV Act as such the claim was repudiated as per policy terms and conditions. Hence, it is prayed that as the complaint is devoid of any cause of action same is liable to be dismissed.

7. Replication on behalf of the Complainant is filed, evidence by way of affidavit and written arguments are filed on behalf of parties. Arguments on behalf of parties are heard, record is perused.
8. It is not in dispute that the Complainant had taken an insurance policy for the vehicle in question and the accident took place during the subsistence of policy. However, OP repudiated the claim of the Complainant stating that the vehicle was overloaded as the permissible carrying capacity of the insured vehicle was 31,750 kg. whereas, it was carrying weight of 61,240 M.T. at the time of accident. It is stated that the vehicle was not only overloaded to the extent of 93% but also driven rashly and negligently, which resulted into the loss hence the repudiation.
9. We have gone through the Motors Spot Survey Report appended at page 17 of the complaint, where under the heading ‘Cause and Nature of accident’, it is nowhere mentioned that the vehicle was being driven rashly or negligently. Similarly, the Motor Final Survey Report dated 28.02.2008 under the same heading mentions that “while insured vehicle was proceeding at the above said place, it hit the vehicle bearing Registration No. KA25B175 at the rear, when the same suddenly slowed down without any signal, hence the damage”. The said observations nowhere indicate negligent or rash driving.

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10.   As regards overloading of the vehicle, OP has not filed any evidence to prove the same, even if we believe it to be true, it is not proved anywhere that overloading the vehicle caused the damage.
11.   In Civil Appeal Nos. 1779-1780/2022 decided on 24.02.2020 titled
    Delhi Assam Roadways Corp. Ltd. (now known as Darcel logistics Ltd.) V/s United India Insurance Co. Ltd., it is held:-

We have considered the submissions on behalf of the parties. The only breach alleged on part of the appellant is that the vehicle was carrying load in excess of that permissible under the registration certificate. While the load carrying capacity mentioned in the registration certificate mentions the registration laden weight as 49,000 kgms, the truck was in fact carrying load of 68,670 kgms. But the surveyors report does not mention that as the reason for the accident. Be that as it may be, the discussion need not detain us any further in view of the following observations contained in paragraph 14 and 15 of Amalendu Sahoo V/s Oriental Insurance Co. Ltd. reads as follows:-

          “14. In this connection reference may be made to a decision of National Commission in the case of
New India Assurance Company Limited V/s 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:-

15. From a perusal of the aforesaid guidelines it is clear that one of the cases where 75% claim of the admissible claim was settled was where condition of policy including limitation as to use was breached”.

12. As law laid down by Hon’ble Supreme Court in the matter supra and the discussion above the complaint is allowed. OP is directed to pay 75% of Rs.8,75,880.15/- the amount assessed by the surveyor i.e. Rs.6,56,910.11/- alongwith interest @6% from the date of filing of the complaint till realization. Failing which, OP will be liable to pay Rs.6,56,910.11/- @10% till realization. Additionally, OP is directed to pay Rs.10,000/- towards cost of litigation. 

File be consigned to the record room after giving a copy of the order to the parties as per rules. Order be uploaded on the website.