Before the District Consumer Disputes Redressal Forum, Rohtak.

                                                          Complaint No. : 244.

                                                          Instituted on     : 01.08.2013.

                                                          Decided on       : 11.04.2016.

Rakesh son of Shri Raj Singh r/o V.& P.O. Bohar, Tehsil and Distt. Rohtak.

                                                          ………..Complainant.

                             Vs.

The New India Assurance Company Ltd., 313, Modal Town, Delhi Road, Rothak through its Divisional Manager.

                                                     ……….Opposite party.

          COMPLAINT U/S 12 OF CONSUMER PROTECTION ACT,1986.

BEFORE:  SH.JOGINDER KUMAR JAKHAR, PRESIDENT.

                   MS. KOMAL KHANNA, MEMBER.

                   SH. VED PAL, MEMBER.

Present:       Sh.Pawan Jangra, Advocate for the complainant.

                    Sh.R.K.Bhardwaj, Advocate for the opposite party.             

                                      ORDER

SH. JOGINDER KUMAR JAKHAR, PRESIDENT :

1.                          The present complaint has been filed by the complainant with the averments that he is registered owner of vehicle bearing no.HR-12R-3305 and the said vehicle was insured with the opposite party vide policy no.353800/47/11/12/00000002 for the period 20.04.2011 to 19.04.2012. It is averred that the said vehicle met with an accident on 01.06.2011 between Garhi and Sisana with a Crusier Jeep bearing No.HR-61A-4191 as the driver of the Jeep was driving the jeep in rash and negligent manner.  It is averred that complainant informed the opposite party about the accident and submitted all the required documents. But the opposite party vide its letter dated 29.05.2012 has repudiated the claim on the ground that gratuitous passengers were sitting in the vehicle at the time of accident.  It is averred that the complainant had to pay damages to the tune of Rs.150000/- approx. of the vehicle in question and requested the opposite party several times to pass the claim but to no effect. It is averred that the act of opposite party is illegal and amounts to deficiency in service. As such it is prayed that opposite party may kindly be directed to make the payment of amount spent by the complainant on repair of his vehicle i.e. Rs.150000/- alongwith interest, compensation and litigation expenses to the complainant.

2.                          On notice, the opposite party appeared and filed its written reply submitting therein that the insurance company has rightly repudiated the claim because four gratuitous passengers were sitting on the mudguard of the tractor therefore there is violation of terms and conditions of the policy. It is averred that in fact the surveyor has assessed the loss of Rs.64000/- but the same has not been paid to the complainant due to violation of terms and conditions of the policy.  It is prayed that the complaint may kindly be dismissed with costs. 

3.                          Both the parties led evidence in support of their case.

4.                          Ld. Counsel for the complainant in his evidence tendered affidavit Ex.CW1/A, documents Ex.C1 to Ex.C12 and has closed his evidence. On the other hand, ld. Counsel for the opposite party in his evidence has  tendered affidavits Ex.R1 & Ex.R2, document Ex.R3 to Ex.R12 and has closed his evidence.

5.                          We have heard learned counsel for the parties and have gone through material aspects of the case very carefully.

6.                          In the present case insurance and accident of the vehicle is not disputed.  It is also not disputed that the opposite party appointed the surveyor who as per his report Ex.R3 has assessed the loss amounting to Rs. 64000/- but the same has been repudiated by the opposite party vide letter Ex.R6 on the ground that gratuitous passengers were sitting on the tractor  which is in violation of terms and conditions of the policy.

7.                          After going through the file and hearing the parties it is observed that the claim of complainant has been repudiated by the opposite party on the ground that gratuitous passengers were traveling in the vehicle in violation of terms and conditions of the policy. To prove its case opposite party has placed on file copies of statements Ex.R8 to Ex.R11 but the alleged statements are merely photocopies and are not supported with the affidavits of the persons. Moreover it is not proved on file that traveling of such passengers was the cause of accident. As per copy of FIR Ex.R4 the accident has occurred due to negligence of driver of Jeep No.HR-61A-4191. In this regard reliance has been placed upon the law cited in 2016 ACJ 551 titled as Lakhmi Chand Vs. Reliance General Insurance co. Ltd. whereby Hon’ble Supreme Court of India has held that: “No evidence that accident occurred on account of overloading of passengers in goods vehicle and breach of policy is so fundamental in nature that it brings the contract to an end-Whether claim was arbitrarily rejected by the insurance company-Held–Yes-Order of District Forum restored”, as per III(2006) CPJ 254 titled Oriental Insurance Co. Ltd. & Anr. Vs. Sohan Singh, whereby Hon’ble H.P.State Commission, Shimla has held that: “Gratuitous passenger-Liability denied since gratuitous passengers carried in vehicle-Carrying of such passengers, not sole, absolute and only cause of accident-Insurer liable” and as per IV(2008)CPJ 67 titled National Insurance Co. Ltd. Vs. Gobind Chandra Nayak Hon’ble National Commission has held that: “Insurance-Terms and conditions violated-Contention, six persons permitted to travel in vehicle-8 persons found traveling in vehicle at accident time-Contention not acceptable-Two more persons were in vehicle at accident time, does not mean violation of terms and conditions of claim on non standard basis-Discharge vouchers signed under protest-Complaint allowed by state commission-Order upheld in appeal”. In view of the aforesaid law which are fully applicable on the facts and circumstances of the case it is observed that in the present case also the cause of accident was the negligence of driver of other vehicle and carrying of such passengers was not the cause of accident. Hence the complainant is entitled for the claim as per report of surveyor Ex.R3.

8.                                In view of the facts and circumstances of the case it is directed that opposite party shall make the payment of Rs.64000-(Rupees sixty four thousand only) along with interest @ 9% p.a. from the date of filing the present complaint i.e. 01.08.2013 till its realisation  and shall also pay a sum of Rs.3500/-(Rupees three thousand five hundred only) as litigation expenses to the complainant maximum within one month from the date of decision failing which the awarded amount shall fetch interest @ 12% p.a. from the date of decision. Complaint is disposed of accordingly.

9.                         Copy of this order be supplied to both the parties free of costs.

10.                        File be consigned to the record room after due compliance.

Announced in open court:

11.04.2016.

                                                          ................................................

                                                          Joginder Kumar Jakhar, President

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                                                          Komal Khanna, Member.

                                                                        ……………………………….

                                                          Ved Pal, Member.