Tamil Nadu

North Chennai

CC/335/2018

S.Vijaya - Complainant(s)

Versus

The United India Insurance Co. Ltd & Othes - Opp.Party(s)

M.Palani

18 Jul 2022

ORDER

Complaint presented on :13.12.2011           Date of disposal            :18.07.2022

                                                                                  

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION,

CHENNAI (NORTH)

@ 2^ND Floor, T.N.P.S.C. Road, V.O.C. Nagar, Park Town, Chennai – 600 003.

 

                PRESENT : THIRU. G. VINOBHA, M.A., B.L.,                          :PRESIDENT

                                      TMT. KAVITHA KANNAN, M.E.,                         : MEMBER-I

                              THIRU.V.RAMAMURTHY,B.A.,B.L.,PGDLA.,    :MEMBER-II

 

C.C. No.335/2018

 

DATED MONDAY THE 18^th  DAY JULY OF 2022

S.Vijaya,

W/o. Sadasivam,

Kollapatti Animur Post,

Tiruchengode

Namakkal District.

                                                                                      .…..Complainant

 

 ..Vs..

1).     The Branch Manager,

          The United India Insurance Co.Ltd.,

          Branch Office,

          146, N Kumar Complex,

          Tiruchengode.

2).     The United India Insurnace Co. Ltd.,

          Represented by its Disvisional Manager,

          Coimbatore.

3).     The United India Insurance Co.Ltd.

          Rep.by its Chairman and Managing Director,

          24 Whites Road,

          Chennai-600 014

                                                                                      …..Opposite Parties

 

 

Counsel for Complainant                           : M/s. M.Palani

 

Counsel for  opposite parties 1 to 3             : M/s. Nageswaran & Narichania

ORDER

 

THIRU. G. VINOBHA, M.A., B.L., PRESIDENT :

This complaint has been filed by the complainant against the opposite party under section 12 of the Consumer Protection Act, 1986 prays to settle the claim of Rs.6,36,486/- together with interest at the rate of 18% per annum from the 25.12.2010 till date of payment and to pay a sum of Rs.10,000/- towards irreparable loss and hardship and to pay a sum of Rs.10,000/- towards costs of these proceedings.

This complaint was originally filed before the District Commission, Chennai (South) and taken on file in C.C. No. 361/2011.  Thereafter, the said complaint has been transferred to this Commission as per the proceedings of the Hon’ble S.C.D.R.C. and taken on file as C.C. No.335/2018.

1.THE COMPLAINT IN BRIEF:

          The complainant stated that the she had taken a vehicle insurance policy bearing No.170901/31/10/01/00005/35 dated:29.08.2010 inrespect of her stage carriage bearing reg no.TN 34 L 2891 from the period 29.08.2010 to 28.08.2011.  The complainant stated that the vehicle was on the road on 20.12.2010 and was operating in between Erode and salem.  At the time of operation the driver of the vehicle after alighting and picking up passengers at Tiruchengode and when proceeding towards Salem near Ariyanur which in just 7 km from Salem noticed a Tourist vehicle bearing regn.KL 9N 5015 carrying Ayyappa Devotees was coming in the opposite direction rashly and negligently and on seeing the same, the driver of the complainant’s vehicle when about to slow down his vehicle, the vehicle which was coming in the opposite direction hit against the complainant’s vehicle and as a result, the complainant vehicle got damaged in extenso and some of the passengers in the vehicle were also got injured.  Further submitted that the time of accident was 07.30.a.m. and in the said vehicle that there were about 36 passengers only. It must be noted that the vehicle was taken from Erode at about 05.38 a.m. and reached Tiruchengode at 06.35a.m. which is a distance of 20 km and after alighting and picking up some passengers there, he started towards salem and when it reached Ariyanur, the accident took place at about 07.30.a.m.. The distance in between Tiruchengode and Ariyanur is 35 km and to travel such distance , the drive took about 50 minutes which would go to show that the vehicle was operated on a moderate speed observing all the traffic rules and regulations.  Thus this fact would lead to irresistible conclusion that the complainant’s vehicle was operated at the time of accident at a moderate speed by observing all traffic rules and regulations whereas the vehicle was coming in the opposite direction which is a tourist vehicle carrying Ayyappa Devotees came rashly and negligently, hit against the complainant’s vehicle and as a result the vehicle got damaged and passengers therein also got injured.  On such accident the vehicle was taken to the police station where a complaint was lodged. The complainant submitted that the vehicle was immediately inspected by the motor vehicle inspector and immediately such accident, the matter was informed to the 1^st respondent with whom the vehicle is insured and he deputed his surveyor to inspect the vehicle.  After such inspection the vehicle was  taken to M/s. T.V. Sundaram Iyengar and sons ltd for repairing the chasssis and under parts.  Before the vehicle was attended for repairing by the said company, the company informed the same to the insurance company, the 1^st respondent herein and the 1^st respondent again deputed one surveyor for inspection and the said surveyor made a spot visit and after seeing the same advised the company  to carry out the repairs and submit the bill.  On such instruction from the said surveyor of the insurance company the repair was carried out by the TV sundaram Iyengar and sons Ltd.  Before carrying out the repairs the said TV sundaram Iyengar and sons Ltd submitted an estimate cost for the repairs under proposal dated 20.12.2010 and the same was addressed to the 1^st respondent. Further submitted that the estimate cost submitted by the bus body building companies such as TV sundaram Iyengar & Sons Ltd., and Maruthi Coach Builders Pvt. Ltd., the complainant submitted a claim form before the 1^st respondent dated 21.12.2010. After repair work was carried out T.V. sundaram Iyengar & Sons Ltd sent a bill dated 25.12.2010 towards the expenses for the repair work, company raised a bill for a sum of Rs.44,376/-. The complainant submitted that after chassis and under parts of the vehicle got repaired, the same was taken to Maruthi Coach Builders Pvt. Ltd. Karur for carrying out body damages to the vehicle which was attended by the Maruthi Coach Builders Pvt. Ltd and its subsidiary company by name apex traders. Even here before carrying out the repairs, the company also intimated to the 1^st respondent and the 1^st respondent also deputed his surveyor to inspect the body damage caused to the vehicle and after inspection a green signal was given by the surveyor to the said coach builder to attend the work, and before attending the work he also sent an estimate of Rs.6,20,000/- for the repairs under bill dated 28.12.2010.  After the body damage repair was carried out, the said company charged a sum of Rs.1,25,000/- and its subsidiary company a sum of Rs.4,67,108/- under the bills dated 14.01.2011 towards the repair charges. Those bills were submitted to the 1^st opposite party for settlement.  Finally under the impugned letter dated 29.06.2011 after a lapse of 6 months, the 1^st opposite paryt sent communication inter alia alleging that the bus was carrying passengers more than its seating capapcity and the same is in violation of the policy/permit conditions and consequently he is repudiating the complainant claim.  The complainant filed writ petition on the file of the High Court in W.P.17093/2011 and the same was dismissed on 12.11.2011 on the ground of alternative remedy with liberty to approach the Consumer Forum. The complainant submitted that at the time of accident the vehicle was carrying only 36 passengers and the same is supported by the trip sheet maintained by the conductor of the vehicle and the same was also seized by the police at the time of accident along with permit copy and registration certificate.  The complainant submitted that terms of the policy there is no mentioning about over load or violation of permit conditions and claim can be repudiated on that account. Hence the opposite party liable to pay Rs.6,36,486/- and for other reliefs.  

2.WRITTENVERSION FILED BY THEOPPOSITE PARTIES IN BRIEF:

          The opposite party denies all the allegations stated by the complainant except those, which are specifically admitted thereon. The opposite party submitted that the preliminary objection is that the complainant is not maintainable before this forum, since in terms of Sec.11 of the Consumer Protection Act 1986 shall have the jurisdiction to entertain the complaint within the limit of whose jurisdiction the opposite party or each of the opposite parties, where there are more than one, at the time of the institution of the complaint, actually and voluntarily resides or carries on business, the cause of action, wholly or in part arises. It is pertinent to mention herein that the policy was issued by the 1^st opposite party/branch office Tiruchengode, the complainant resides at Tiruchengode the accident took place at Ariyanur when the bus flying from tiruchengoode who in turn deputed surveyor and investigator and obtained report based on the report it was inferred that the bus was carried more than the seating/carrying capacity at the time of accident, thus being the violation of policy terms and conditions, the claim was repudiated 1^st opposite party as such the present complaint is not maintainable. The complaint with an intention to bend the jurisdiction made the Chairman and Managing Director as 3^rd opposite party having office at Chennai who was no way connected with the claim. This forum is well aware that the legal aspects of settlement of claims involves examinations of the claim in relation to the coverage under policy and compliance with policy conditions.  In terms of investigation report the bus carried more passengers that the seating capacity at the time of accident thus being the violation of policy terms and conditions the claim was repudiated by 1^st opposite party.  Hence there is no deficiency in service and the complainant shall be dismissed inlimine with cost.

3. POINTS FOR CONSIDERATION:

1. Whether there is any deficiency in service on the part of opposite party as alleged in the complaint?

2. Whether the complainant is entitled for the reliefs prayed in the complaint.     If, so to what extent?

Both side arguments heard. The complainant filed proof affidavit and Ex.A1 to A10 were marked on his side and written arguments.  The opposite parties filed proof affidavit and Ex.B1 to B4 were marked on the opposite parties side and written arguments.

4. POINT NO :1 :-

                   It is admitted fact that the complainant had taken a vehicle insurance policy on 29.08.2010 in respect of stage carrier bearing Reg no. TN 34 L 2891 for the period from 29.08.2010 to 28.08.2011 midnight, it is also admitted fact that the above said vehicle met with an accident on 20.12.2010 and  F.I.R was registered and in the said accident a Tourist vehicle with Reg no. KL 09 N 5015 was also involved and several persons who travelled in both the vehicles were injured and both the vehicles were damaged in the said accident which occurred at 07.30am on that date.  According to the complainant her vehicle was driven at moderates at the time of accident and the accident occurred only due to the rash and negligent driving of the vehicle coming in the opposite direction and immediately after the accident the MV inspector , inspected the vehicle and it was informed to the 1^st opposite party to whom the vehicle was insured and a surveyor was deputed to inspect the vehicle who made a spot visit. On the instruction of the surveyor of the insurance company a total sum of Rs.6,36,486/- was spent by the complainant towards repairing chassis under parts and towards body damage and those bills were submitted to the 1^st opposite party.  Which was repudiated by the 1^st opposite party on 29.06.2011 after a delay of six months stating that the bus was carrying more passengers than the seating capacity and same is violation of policy conditions against which the complainant preferred W.P.17093/2011 before High Court which was dismissed dated 12.11.2011 to seek alternative remedy by approaching the Consumer Forum and it is claimed by the complainant that at the time of accident the vehicle was carrying only 36 passengers as supported by trip sheet maintained by the conductor and the repudiation of the claim is  not valid and even if there is any overload the insurance company cannot escape its liability as per the decision of the Hon’ble supreme court and therefore claimed Rs.6,36,486/- with interest along with other reliefs.

          5. In the written version of the opposite parties it was mainly contended that the policy was issued by the 1^st opposite party having branch office at Tiruchengode and complainant is residing at Tiruchengode, the accident took place at Ariyanur when the bus was flying from tiruchengode to salem and the FIR was registered in Salem District and hence contended no part of Cause of action arose before this commission and the 3^rd opposite party having office at Chennai who is Managing Director has no way connected with the claim  and in order to bring the complaint within this commissions jurisdiction he is added as a party and therefore raised objection with regard to territorial jurisdiction and further contended that as per the surveyor and investigation report the bus was carrying more than the seating capacity and thereby violated the terms and conditions and hence contended that the complaint is not maintainable.

          6. With regard to jurisdiction aspect as per Sec.34(2)(b) of the Consumer Protection Act 2019 a complaint can be filed within the jurisdiction in which any of the opposite party where there are more than one at the time of complaint actually resides or carries on business or has a branch office.  In the present case though the policy was issued by the 1^st opposite party having branch office at Tiruchengode it is found from Ex.A1 the registered and head office of the 1^st opposite party is at Whites Road, Chennai which is shown as 3^rd opposite party and hence the complaint as filed before this commission and as per the decision relied on by the complainant Reported in (2016) 3 Supreme Court Cases Page. No.43 Dated:05.01.2016 is applicable the facts of the present case and hence the complaint is maintainable and within the jurisdiction of this commission. The decision relied upon opposite party reported in (2010) Supreme Court Cases page.135 is not applicable to the facts of the present case.

          7. The copy of estimate bill by Maruthi Coach builders Quoating Rs.6,20,000/- for reconstruction of new body is marked as Ex.A3.  The copy of actual bill charged by TVS towards repair charges and the copy of actual bill charged by maruthi Coach Builders were marked as Ex.A6 and A7, it is found from Ex.A10 that the Hon’ble High court has dismissed the Writ petition filed by the complainant giving liberty to petitioner to approach Consumer Redressal Forum It is found from Ex.A1 that the complainant has insured the vehicle and paid premium for own damage also the terms and conditions were also set out in Ex.A1, it is found from the claim form submitted by the complainant to the insurance company on 23.12.2010 which was signed by the complainant wherein the complainant has stated that the at the time of accident the vehicle was driven by one  Mr.M.Prabu  who was having valid driving license and the conductor was one Solamalai further it is stated that the accident occurred due to rash and negligent of opposite side vehicle it is further stated at page no.15 the number of passengers  permitted is 59 in all  and number of passenger carried is 50 passengers .  But, in Ex.A4 which is a copy of trip sheet maintained by the conductor it is stated that on the date of accident  35+2 passengers travelled in the bus which is contrary to Ex.A5 claim form, but in the complaint, complainant says in para.No.4 that there were 36 passengers in the bus at the time of accident.  Therefore even in the documents filed by the complainant there is variation and contradiction with regard to the number of passengers travelled on that date, whereas in Ex.B1 which is an investigation report filed by an independent surveyor of the insurance company, It is stated that a criminal case was registered based on the complaint of driver of the opposite party bus against the driver of the complainant bus alleging rash and negligence on the part of complainant’s driver.  It is further stated in Ex.B1 that as per the FIR the accident occurred only due to the rash and negligent driving of complainant bus by its driver, it is further found in Ex.B1 that as per the information obtained under RTI Act from the police authorities at the time of accident 20 persons who were seated in the complainant bus and 11 persons who were standing in the same bus were injured in the said accident and it is further stated that the bus has seating capacity of 59 and as per his report more persons than the permitted seating capacity travelled in the bus at the time of accident  which is violation of policy conditions.  Even in Ex.B2 which was letter  by the investigation officer namely the inspector of the police of the concerned police  station has also stated that 20 seated passengers and 11 standing passengers were injured at the time of accident.  It is further found from Ex.B2 which are copies of 161 statements of persons travelled in the bus and they also alleged that the accident was due to the negligence of the complainant bus driver who crossed the road without noticing the opposite vehicle.  Even as per the statement of the trainee conductor of the complainant bus the negligence is on the part of the complainant bus driver. The complainant counsel relied upon a decision in (2016) 3 Supreme Court Cases in Page No.100 Dated: 07.01.2016 and contended that “ Mere factum of carrying more passengers than permitted capacity in goods carrying vehicle by insured does not amount to fundamental breach of terms of policy further held, burden of proof to establish such breach on part of insured/causality rests with Insurance company” and also relied upon AIR 1996 Supreme Court Page 2054 Dated:20.5.01996 based on which the complainant contended that carrying more than the seating capacity is not so fundamental breach to eschew liability of insurance company.  But the facts of the above said cases are different from the facts of the present complaint and hence not applicable. In the present case the accident was on account of rash and negligent driving of the complainants vehicle driver against whom a criminal case was registered as found from Ex.B1 to B4 and therefore the carrying of more passengers at the time of accident and thereby violating the terms and conditions of the policy which constituted a fundamental breach of policy and hence the claim was  rightly rejected by the 1^st opposite party.  Further as stated earlier the complainant failed to established that only permitted number of persons travelled at the time of accident. The injury to 11 standing persons will go to show that they travelled by standing only due to the fact that the seating capacity of the vehicle was already full and hence this fact support the case of the opposite party contention.  Reliance cannot be given to Ex.A4 trip sheet which is maintained by the complainant’s conductor in the absence of any other document to support Ex.A4 contention. Whereas even the Ex.A5 and para.4 of the complaint are contrary to Ex.A4 hence it is found that the 1^st opposite party repudiated claim rightly and there is no deficiency in service on the part of the opposite party as alleged in the complaint. Point no 1 answered accordingly.

8. Point. No.2:-

          Based on findings given to point. No.1.  the complainant is not entitled to any of the reliefs claimed in the complaint.Point.no.2 is answered accordingly.

          In the result the complaint is dismissed. No costs.

Dictated  by the President to the Steno-Typist taken down, transcribed and computerized by him, corrected by the President and pronounced by us in the open Commission on this the 18^th   day of  July 2022.

 

MEMBER – I                MEMBER – II                                 PRESIDENT

LIST OF DOCUMENTS FILED BY THE COMPLAINANT:

Ex.A1	29.08.2010	Copy of the policy of insurance in respect of the vehicle bearing Regn.No.TN 34 L 2899
Ex.A2	20.12.2010	Copy of the estimate bill as proposed by T.V.Sundaram Iyengar & sons Ltd
Ex.A3	20.12.2010	Copy of the estimate bill as propsed by maruthi Coach Builders pvt. Ltd
Ex.A4	20.12.2010	Copy of the trip sheet.
Ex.A5	23.12.2010	Claim made by the petitioner with insurance company
Ex.A6	25.12.2010	Copy of the actual bill charged by T.V.Sundaram Iyengar & sons Ltd towards the undertaking the repair in respect of the petitioners vehicle and satisfied by the petitioner
Ex.A7	14.01.2011	Copy of the actual bill charged by Maruthi coach builders pvt ltd karur and satisfied by the petitioner.
Ex.A8	14.01.2011	Copy of the acutal bill charged by apex traders karur and satisfied by the petitioner
Ex.A9	29.06.2011	Copy of the impugned letter served by the 1st opposite party
Ex.A10	12.11.2011	Copy of order in W.P.No.17393 of 2011

 

LIST OF DOCUMENTS FILED BY THE OPPOSITE PARTY:

Ex.B1	27.04.2011	Copy of the investigation report
Ex.B2	04.02.2011	Letter of the investigation officer
Ex.B3	07.05.2012	Copy of investigation report
Ex.B4		Copies of 161 statements

 

 

 

 

MEMBER – I                MEMBER – II                                 PRESIDENT

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

CC.No. 335/2018 Dated:18.07.2022 Order Pronounced,           In the result the complaint is dismissed.  No costs.   Member-I     Member-II       President