As per MR. Ajitkumar Jain, Hon’ble Member
1 Complainant filed this complaint against opposite party for recovery of insurance claim for Rs.2.00 Lakhs. For his Jeep which met with accident, with Rs.3500/- for crane charges and expenses for toeing from spot to mechanic’s garage, plus Rs.1500/- per month for garage charges with interest @14%. He also claimed Rs.50,000/- as compensation for physical and mental harassment and Rs.5000/- as cost of the complaint.
2 Complainant’s case in short is that he owned one Mahindra Marshal Jeep bearing Registration No. MH-26 C-4930 for his personal use. He has taken comprehensive insurance from opposite party’s company by paying premium of Rs.8598/- from 21-07-2004. The policy No. was 163001/31/2004/3960 and comprehensive insurance of Rs.2.00 Lakhs. This policy covers risks of accident and theft of the vehicle.
3 On date 18-09-2003 complainant’s relative and some friends had gone by the said Jeep from Lalbarra to Palmgarh which is a place of Yasin Baba. They had reached and visited the place of Yasin Baba, then after performing the prayer and other religious rites, they started return journey from Palmgarh to Lalbarra at mid-night of 18-09-2003 and 19-09-2003. At about 3.00 A.M. of 19-09-2003 their vehicle met with an accident with a bamboo loaded truck No. CG-04 ZC-1395 at village Dabarapara which is near Bhilai. The truck was driven by driver Akhilesh Singh. In this accident 6 persons died and Jeep was totally damaged and not repairable and it turned to only scrap condition. Other six persons were injured and admitted in hospital.
4 Complainant has filed claim of Total loss of Jeep i.e. Rs.2.00 Lakhs to O.P. (Doc.N0.17 dated 15-03-2004) but O.P. repudiated the claim on the ground that accidental jeep was involved in carrying passengers at the time of accident and also tow passengers were exceed to the registered capacity of Jeep.
5 Complainant filed this complaint on dt.2-3-05 against O.P. before District Consumer Dispute Redressal Forum, Balaghat . On the grounds of lack of territorial Jurisdiction complain rejected . Then complainant filed appeal before Madhya Pradesh State Consumer Redressal Commission Bhopal, M.P.State Commission Bhopal also rejected the appeal on the same ground of territorial jurisdiction on date 25-07-2005.
6 Then on date 29-10-2005 this complaint filed before District Consumer Dispute Redressal Forum, Bhandara in which the O.P.’s office situated and O.P. running his business at Gondia. Gondia forum started from 03-07-2006 and this complaint was transferred from Bhandara to Gondia Forum for redressal.
7 In response to Notice U/S. 13 O.P. filed his written statement (on Ex.13) O.P. denied that there is any deficiency in service and refuted all allegation against insurer. O.P. submitted that the owner of the jeep never used his jeep for private purpose but he always used the jeep for commercial purpose. O.P. also submitted that “It will be pertinent to mention here that the company has sufficient evidence to hold that at the relevant time, the said vehicle was used occupants by contribution various amount amongst themselves and had paid the said amount towards the hire and diesel charges for their journey. In these circumstances the attitude and action on the part of the complainant was in breach of the policy condition there by relieving the O.P. from their responsibility to honor the said policy. It is further more submitted that at the relevant time there were 12 occupants (12 passengers) in the said jeep which was again including the exclusion clause and also against the sitting capacity of the said vehicle . Thus for both the reasons the complainant has breached the terms and conditions of the policy and there by the complainant was not entitled to get any claim much less the claim submitted by him, towards the damage to the said vehicle and in these circumstances, the claimant was already informed about the repudiation of his claim.
8 O.P. has appointed Shri. Sanjay Shrivastav for survey of the vehicle and also as investigator for this matter. Shri Sanjay Shrivastava contacted personally all the occupants of the vehicle like (1) Smt. Ranjana W/o. Vijay alise Pappu Awadhiya, (2) Sachin S/o. Bhagchand Pancheshwar, (3) Anwar Mohd S/o. Mohd. Amir and others. It is submitted that their (occupant’s) statements on oath before the Notary Public came to record. All these persons have accepted and admitted in their respective statement on oath that on 18-09-2003, they had come to Palmgarh and while returning at about 3.00 A.M. the said jeep was dashed by a bamboo loaded truck. They all accepted that all of them had paid the fare to the owner of the vehicle by contrib7ution. It is submitted that no any occupants of jeep was gratuitous (free) passenger. The investigator further submitted that at the time of accident of jeep there were 11+1 total 12 passengers in place of 9+1 (Ten). It means that 2 passenge5rs were in excess than the sitting capacity of the jeep . These facts are against the terms and conditions of the policy, therefore the complainant is not entitled to pay the damages as claimed. O.P. submitted that as above facts of case the repudiation of the claim is correct and the present complaint is liable to be dismissed.
9 In this accident 6 persons including driver had died, the details are as below:-
1 Sitaram S/o. Mahesh aged 24 Years , R/o. Amoli (Near Lalbarra)
2 Vijay Alias Pappu Chunewala, aged 25 Years , R/o. Amoli (Near Lalbarra)
3 Lakhan S/o. Ramji aged 30 Years, Driver of Jeep, R/o. Dharmiwada (Near Lalbarra)
4 Lal Mohammad S/o. Sheikh Marrar aged 50 Years, R/o. Panberi (Near Lalbarra)
5 Santosh S/o. Tiku aged 24 years, R/o. Amoli (Near Lalbarra)
6 Babubhai Musalman S/o. Sheikh Rahim aged 45 Years, R/o. Amoli (Near Lalbarra).
List of injured persons :
1 Gulabsing S/o. Shomsingh, aged 50 years, R/o. Manpur (Near Lalbarra)
2 Sachin S/o. Bhagchand Pancheshwar, R/o. Panberi (Near Lalbarra)
3 Bhura S/o. Nanu Marar, aged 40 Years, R/o. Amoli (Near Lalbarra)
4 Rashid Khan S/o. Dilwar Khan, aged 40 Years, R/o. Nelji (Near Lalbarra)
5 Deepchand S/o. Tularam Rangare, aged 40 Years, r/o. Lalbarra
6 Mohd. Anwar S/o. Amir Mohammad, R/o. Amoli (Near Lalbarra)
10 In this case the base of the repudiation of claim of complainant only two points are to be considered. First is whether the accidental jeep was engaged for commercial purpose and second is about two excess occupants of the Jeep.
11 On perusing all record, and pleading both sides these Three point (issues) arose for our consideration and our finding are given below :-
A Whether there is any deficiency in services on the part of the O.P. Yes
B Whether the jeep was engaged in commercial purpose No
C Whether two excess in the jeep was sufficient reason for repudiation of claims. No.
D What order As per final order.
REASONS
12 O.P.Mr. Sanjay Shrivastav the surveyor and investigator who was appointed by O.P., submitted an affidavit that he has collected the statements of all injured persons and oath was taken before notary public. As per the record O.P. has submitted only Xerox copy of statements on stamp paper of Rs.20/- (1) Mohd. Anwar, (2) Mr. Mahesh father of deceased sitaram (Thumb Impression), Gulabsing (Thumb Impression) executed on 17/06/2004 and statement on stamp paper Rs.20/- (Xerox Copy) of Deepchand Rangare and another statement of Sachin Pancheshwar. He has also filed statement of Smt. Ranjana W/o. Vijay. The Xerox copy of statement cannot be treated as affidavit on oath (Doc. 1 to 4 filed by O.P.) No any certificate issued on oath that they had given statement before any Notary Public. In Xerox Copy only illegible stamp of Notary without name was seen.
They occupants submitted that they have made contribution for hiring the Jeep. The leader of this jeep hirers Mr. Lal Mohmmad who claimed himself to be peer of wanjari Mazar, was also died in accident. So how much amount was fixed as hire charges was not known. In other part complainant has filed four affidavits in support of his claim. One Smt. Ranjana Awadhiya W/o. deceased Mr. Vijay, Second Injured Mr. Deepchand Rangare, Third Injured Mr. Sachin Pancheshwar, Fourth Mr. Mohd. Anwar has given their statement on oath before Notary Public Shri Ashok Gupta on Date 14-06-2006 . All four has given their statements that Mr. Nanhe is also admirer of Yasin Baba. Every year they used to go to visit Yasin Baba with Jeep owner Mr. Nanhe . He has not taken any amount from injured passengers as well as died passengers. All submitted in one voice that jeep owner Mr. Nanhe (The complainant) has got family relation with them. So there is no question of hiring charges between the Jeep owner and passengers of jeep. They submitted in their affidavit that Mr. Nanhe was also prepared for visit to Yasin Baba on date 18-09-2003 but due to illness he could not joined in the journey. All died and injured persons residing in village Amoli (Lalbarra) or near Lalbarra. There is no any evidence that each and every passenger had paid the traveling charges and their destination was common as against the public carrier Taxi. Which collect the passengers form stop to stop or village to village.
13 There is one case law cited as III (2006) CPJ 254 of HIMACHAL PRADESH STATE CONSUMER DISPUTE REDRESSAL COMMISSION, SHIMLA
Oriental Insurance Company Ltd. & others (Appellants)
V/s.
Sohan Singh (Respondent)
Their lordship had dismissed the appeal In this appeal and 5 case law were referred, decided by S.C. & N.C.
1 Angdu Ram V/s. United India Insurance Co. Ltd.
Appeal No. 155 of 2002
2 Ashok Gangadhar Maratha V/s. Oriental Insurance Co. Ltd.
III (1999) CPJ 5 (SC)- VII (1999)SLT 317- AIR 1999 SC 3181
3 United India Insurance Cp. V/s. Jaya Rajendra Kumar Nanda
I (2004) CPJ 25 (N.C.)
4 Prabhakar Transporters V/s. National Insurance Co. Ltd.
III (2003) CPJ- 125 (N.C.)- 2004 (I) JRC (310) (NC)
5 National Insurance Co. Ltd. V/s. Baljeet Kaur & Others
I (2004) ACC 259 (Sc)- I (2004) SLT 269- F (2004) CLT 257 (SC)
It was held that :-
“We will first take up plea regarding gratuitous passengers being carried and thus appellant being not liable for payment of any compensation when a reference is made to the cover note , it shows that the premium was charged by the appellant to cover the risk in respect of one driver, one cleaner and four laborers in addition to the third party property damages. In these circumstances unless it was shown that by carrying gratuitous passenger violation was such a nature which was fundamental in its character. Appellant can not escape it’s liability. If the submission of Mr. Bhasin is taken to it’s logical end, it will defeated the purpose of beneficial legislation like consumer protection Act. When laboraers were carried, premium have been charged by the appellant qua them, it is bound to indemnify the owner, butqua the so called gratuitous passengers appellant want to be exonerated. Another reason to negative to this plea of Mr. Bhasin is that it is not the case of his client that gratuitously carried passengers in the vehicle at the time of accident was the sole, absolute as well as the only cause of accident. Accordingly plea argued by Mr. Bhasin in this behalf is hereby rejected.”
In the light of above case law we are considering the fact that the accidental jeep was not engaged in commercial purpose.
14 The learned counsel of complainant has submitted 2 case laws for our consideration :-
I) In the High Court of Judicature at MADRAS (2004 ACJ 140)
C.M.A. Nos. 1228 of 1997 and 1331, 88, 1337, 327 and 1333 of 1998 decided on 20-06-2002
Mr. Ananda Valiama and others (Appellants)
V/s.
Arvindo Eye Hospital and another (Respondent)
The contents of above case law in short is that motor vehicle Act 1988, Section 149 (2) (a)(i)(c)-Motor Insurance-Policy-Breach of Liability of Insurance co.- Van dashed against a tree and two passengers were died and other sustained injuries-Insurance Co. contended that as 16 persons were carried in the ill- fated van against permit of 14, it is not liable whether the insurance Co. is exempted from it’s liability – HELD :- No. (1987 ACJ 411 (SC) relied) 1996 ACJ 1178
II) In the Supreme Court of India , New Delhi civil appeal No.6296 of 1995 decided on 20-05-1996.
B.V.Nagraju (Appellant)V/s. Oriental Insurance Co. Ltd (Respondent6) (Contents in short)
Motor vehicle Act.1988 Section 147- Motor Insurance Policy-Breach of complaint regarding repudiation of claims in respect of damages to a vehicle in accident. Insurance Co.contended that complaint violated terms of the policy by carrying passenger in the goods vehicle whether breach of carrying persons in a goods vehicle more than the number permitted in terms of the insurance policy is so fundamental breach so as to afford ground to the insurer to escaped liability altogether-Held-No.
(1994 CCJ 217) (Karnataka) confirmed.
O.P.Motor Insurance – Policy- Exclusion clause- construction of complaint regarding repudiation of claim in respect of damage to an insured vehicle in accident – insurer Co. contented that complainant violated the terms of the policy by carrying passengers in the goods vehicle-whether the terms of the policy of insurance need not be constructed strictly but be read down to advance the main purpose of the contract-held-YES.
15 In this case repudiation of claim was done by the O.P. on the basis of investigator’s report. We have verified the report of the investigator word by word and also the Final Observation there of :- As submitted by Shri Sanjay Shrivastava investigator of O.P. (Doc.No.5) dated 2-7-04. The investigator observed that
FINAL OBSERVATION
“After going through above all available facts and evidence the own damage claim of above Tata Sumo Claim No.163801/3/2004/00/37 is not bonafide as subject policy/coverage given to insured for his personal use vehicle and not for commercial purpose but as per the statement and other supporting documents it is clear that insured given his vehicle on HIRE to all occupant by taking rent plus diesel charges and also he was running his vehicle having 11+1 (twelve) passengers exceeding carrying capacity limit and this is against the terms and condition of subjected policy and it is breach of policy condition so lnsurer may take further decision regarding claim settlement.”
16 The final report of investigator was based on Tata Sumo Vehicle but the claim of complainant is for Mahindra & Mahind5ra Marshal Model Jeep. Hence in our opinion the report of investigator is incorrect and unbelievable, as appointed by the O.P.
17 The final survey done by 2nd surveyor Mr. Mahindra Singh Hora of Gondia on dated 15-12-2003 (Doc.27). As per his report the Net payable amount to the complainant is Rs.1,47,000/- . He also mentioned in his report that the best salvage offer obtained as Rs.50,780/-..
18 That the O.P. ought to have considered the claim of the complainant at least within 15 days from the submission of report by 2nd surveyor Mahindra Singh Hora on 15-12-2003 . As such we are of the considered opinion that the O.P. are liable to pay the aforesaid amount of claim of Rs.1,47,000/- to the complainant from 01-01-2004 . That having failed to do so we hold that there has been deficiency in services on the part of the O.P. , Hence we proceed to pass the final order as below.
O R D E R
1 The complaint is allowed.
2 Opposite Party is directed to pay Rs.1,47,000/- as claim of accident of Jeep with interest @12% from 01-01-2004 till realization.
3 Opposite Party is also directed to pay Rs.5000/- towards compensation for physical and mental harassment and cost of the proceedings to the complainant within one month from the date of this order.
4 Complainant is also authorized to collect damaged jeep/salvage at his own expenses.
