Advocate Dnyandeo Shinde for
the Complainant
Advocate Prashant Chavan for
the Opponent
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Per Hon’ble Shri. V. P. Utpat, President
:- JUDGMENT :-
Date – 15th April 2013
This complaint is filed by consumer against Insurance Company who has wrongly repudiated his insurance claim. Brief facts are as under-
[1] The complainant had vehicle of Ashok Leyland Company bearing no. MH 43-E-1967 which was insured with the opponent for the period 17/2/2007 to 16/2/2008. The said vehicle was met with an accident on 29/12/2007. The driver and cleaner were injured in the said accident which took place within the jurisdiction of Loni Kalbhor. The F.I.R. was lodged bearing no.429/2007. The complainant had requested the opponent to take survey of the vehicle and also prayed for paying compensation. The Opponent has repudiated the claim by letter dated 28/4/2008 on the ground that there is breach of condition of policy and the complainant had allowed two fare paying passengers to travel by the said vehicle which is a goods vehicle. As the Opponent has wrongly repudiated the insurance claim hence complainant has filed this complaint and prayed for compensation of Rs.3,80,182/- towards repair charges of the insured vehicle, compensation for mental and physical harassment as well as loss in business and also asked compensation of Rs.25,000/- towards legal and incidental expenses.
[2] The Opponent resisted the claim by filing written version on 27/7/2009. The contents of the complaint are flatly denied by the opponent. It is the case of the opponent that eventhough the disputed truck was insured with the opponent the same is not liable to pay loss or damage to the said vehicle as the complainant has committed breach of condition of policy. It is specifically averred that the persons who were traveling by the truck were not employees of the complainant and two fare paying passengers were traveling by the truck. That amounts to violation of terms of policy. The complainant has exaggerated the claim as regards repairing charges and damage to the vehicle. The complainant has wrongly claimed Rs.1,00,000/- for detention of the vehicle and Rs.1,00,000/- for mental agony and harassment. The Opponent has prayed for dismissal of the claim.
[3] After scrutinizing the documentary evidence which is adduced on behalf of both parties, considering the affidavits, written arguments as well as hearing the argument following points arise for my determination. The points, findings and the reasons thereon are as under-
Sr.No. | POINTS | FINDINGS |
1 | Whether the complainant has proved that the Opponent has wrongly repudiated his claim ? | In the affirmative |
2 | Whether the complainant is entitled for compensation ? | In the affirmative |
3 | What order ? | Complaint is partly allowed |
REASONS-
As to the Point Nos. 1 to 3-
The admitted facts in the present proceeding are that the vehicle belonging to the complainant was insured with the Opponent on the date of accident. The complainant has produced voluminous documents such as the original bill cum receipt of the disputed vehicle, R.C.T.C. Book, Insurance Policy Cover Note, the bills as regards the repairs of the vehicle, the letter issued by the complainant to the opponent for making arrangement of survey of the vehicle, the bills of repairs of the vehicle. The Opponent has produced original policy alongwith terms and conditions, copy of F.I.R. and statements by the injured witnesses which were recorded by the investigating officer. Both parties have also filed affidavits in support of their contention. The learned Advocate for the Opponent argued before me that there is clear cut breach of conditions of policy hence the complainant is not entitled for the insurance claim and it was rightly repudiated by the opponent. It is brought to my notice that at the time of accident two fare passengers were traveling by the goods vehicle which was insured with the opponent. It is significant to note that while considering the breach it should be proved by the opponent that there is nexus between the accident and the alleged breach of condition of the policy. According to the opponent two fare paying passengers sat in the cabin of the vehicle at the time of alleged accident. But it reveals from the documentary evidence that sufficient place is provided for the driver as well as three persons in the said cabin. In such circumstances it cannot be said that there was absolute breach of condition of policy and there is nexus between the alleged breach of condition of policy and the accident. The learned Advocate for the opponent also argued before me that it is own damage claim and not third party claim. Then the claimant has no right to plead any excuse for breach of condition of the policy. It is significant to note that as the insurance company has pleaded the breach of condition of policy then heavy burden lies upon the opponent to discharge the same burden. The opponent has not produced any evidence except copy of FIR and the statements recorded by the police during the course of investigation of crime. These documents are not sufficient for discharging the burden which is lying on the insurance company. It is not proved by the Insurance Company that the alleged passengers were fare paying passengers. In such circumstances I held that the opponent has failed to prove that there was breach of condition of policy.
The complainant has demanded compensation on various grounds. According to the complainant he had spent Rs.1,80,182/- for repair of the vehicle. He had produced copies of bills as regards expenses incurred for repairing of the vehicle. The opponent has failed to obtain survey report. Hence I held that the complainant is entitled for that much amount by way of compensation from the opponent. The complainant is also entitled for compensation of Rs.10,000/- by way of mental and physical sufferings, Rs.5,000/- by way of costs of this proceedings. The claim as regards loss in business on account of negligence on the part of the opponent cannot be entertained as this Forum has no jurisdiction to award compensation for commercial purpose. I answer points accordingly and pass the following order –
:- ORDER :-
1. The complaint is partly allowed.
2. It is hereby declared that the opponent has caused deficiency in service by repudiating the claim of the complainant.
3. The Opponent is directed to pay to the complainant amount of Rs.1,80,182/- towards repair charges alongwith interest @ 9 % p.a. from the date of filing of complaint till its realization within six weeks from the date of receipt of copy of order.
4. The Opponent is directed to pay to the complainant compensation of Rs.10,000/- towards mental and physical sufferings and Rs.5000/- towards costs of proceeding within six weeks from the date of receipt of copy of order.
Copy of order be supplied to both the parties free of cost.
Place-Pune
Date- 15/04/2013
