Tamil Nadu

StateCommission

FA/527/2012

The Chief Regional Manager,The New India Assurance Ltd & 2 others - Complainant(s)

Versus

TTS Transport Services - Opp.Party(s)

N.Vijayaraghavan

26 May 2015

ORDER

BEFORE THE STATE CONSUMER DISPUTES REDRESSAL COMMISSION, CHENNAI

 

                      BEFORE            HON’BLE THIRU JUSTICE R. REGUPATHI    PRESIDENT     

                                                  THIRU.A.K.ANNAMALAI                                JUDICIAL MEMBER 

                         Tmt. P. BAKIYAVATHI                                      MEMBER

                                                                                      F.A.NO. 527/2012

[Against the Order in  C.C No.430/2010 dated 27.7.2011 on the file of the DCDRF, Coimbatore ]

DATED THIS THE 26^th DAY OF MAY 2015

1. The Chief Regional Manager

The New India Assurance Co. Ltd,

594, Obli Towers, D.B.Road           

R.S.Puram, Coimbatore  641 002 

 

2. The Divisional Office,

The New India Assurance Co.Ltd,

Main Road, Dindigul

 

3. The Branch Manager,

The New India Assurance

No.82, New Dharapuram Road

Palani 602                                              ..Appellants/opp.parties 1 to 3

                                           Vs

TTS Transport Services

Rep.by its partner

T.Venkatesan

5 & 6, Devi Garden

Kangeyam Road,

Tiruppur – 641 604                                 ..Respondent/complainant

 

Counsel for the Appellants/opp.parties    : M/s  Vijayaraghavan

Counsel for the Respondent/complainant  : Mr. T.Ravikumar

 

The opposite parties are the appellants. The District Forum allowed the complaint. Against the said order, the Appellants/opp.parties filed this appeal praying to set aside the order of the District Forum in CC.No. 430/2010  dated 27.7.2011. 

          This appeal coming before us for hearing finally on 7.4.2015 upon hearing the arguments on both side, perusing the documents, lower court records, and the order passed by the District Forum, this commission made the following order.

THIRU.A.K.ANNAMALAI,  JUDICIAL MEMBER

1.   The opposite parties are the appellants.

 2.    The complainant having a bus bearing registration No. TN 39 AJ 8889  insured with the third opposite party for the period from 7.9.2008 to 6.9.2009 for own damage and 3^rd party claim. The bus met with an accident on 14.9.2008 near Avinashi bus stand about 9.20 a.m and due to this accident about 20 persons were injured and the bus was heavily damaged. Hence the complainant claimed the damages for Rs. 3,57,485/- for the spares and repairing charges from the opposite parties. On 9.9.2009, the 1^st opposite party repudiated the claim by sending a letter on the ground, the vehicle was carrying 95 persons against the capacity of 57 +2, but there is no violation of policy condition alleged by them. Thereby the consumer complaint came to be filed claiming the relief for payment of Rs.3,57,485/- along with Rs.10 lakhs compensation and for cost.

3.  The opposite parties denied the allegations admitting the repudiation and in the grounds of appeal stated for the same and thereby claimed no deficiency in service on their part.

4.    On the basis of both side materials and after an enquiry, the District Forum allowed the complaint and directed the opposite parties  to pay a sum of Rs. 3,57,485/- and to pay a sum of Rs.5000/- towards compensation for mental agony and other sufferings and to pay a sum of Rs.1000/- as cost.

5.   Aggrieved by the impugned order, the opposite parties have come forward with this appeal contending that the District Forum erroneously allowed the complaint without taking note of over loading/excess carriage which caused the accident and even such cases, non-standard settlement was also not permissible and the claim was fit to be repudiated in full.

6.    We have heard both side arguments, contentions and perusal of records, in this case, it is admitted case of both sides that the complainant having availed a policy for the vehicle bus registration No TN 39 AJ 8889 met with an accident on 14.9.2008 during the force of the policy claimed a sum of Rs. 3,57,485/- which was repudiated by the opposite party on the ground of violation of conditions of the policy by carrying excessive passenger of 95 persons more than the permit for  57 +2, the opposite parties repudiated the claim on the basis of investigation report  under Ex.B.2  in which page 13 of the report under the heading investigation findings as below it is stated:-

       8.    Investigation Findings:

      “The under signed investigator’s discreet enquiries with the police, revenue department, hospitals, people doing business at the place of accident and verification of hospital records etc., have confirmed that around 95 passengers have found travelled in the bus TN 39 AJ 8889 in the said Road Traffic Accident happened on 14.9.2008 at 9.20 hrs, near New Bus stand, Avinashi. It is a violation of bus permit conditions and insurance policy conditions”

    and thereby the claim was repudiated for which the District Forum relying upon the order reported in III (2004) CPJ 428 Hon’ble Tamil Nadu State Consumer Disputes Redressal Commission, Chennai has held as below:-

          “Therefore, assuming for the purpose of the case that more passengers that the permitted loading capacities were carried out thus there was overloading of bus, applying the reasoning of the Supreme Court, we have to hold that it is only an irregular user. It is not the case nor it can be contended that the accident is the direct result of the overloading. In other words, there is no link to establish the accident to the fact of overloading. On the other hand, the FIR shows that the accident was not because of overloading but due to the circumstances stated therein. Therefore, the resultant position is that the accident was an independent event and it was unconnected with the overloading. Therefore, even assuming that there was some overloading, that fact had not contributed to the accident. Only where it is the cause of the accident, then alone the breach of permit conditions viz., the fact of overloading would become material and fundamental as to affect the very contract between the parties since it is not so in this case, the overloading is neither a fundamental breach nor a material factor. Therefore, it cannot be construed to affect the validity of the contract between the parties. At best it was only an irregular act on the part of the driver or conductor as the case may be in allowing the overloading of passengers. On that ground, the 1^st opposite party cannot ward off the claim. Hence the repudiation by the 1^st opposite party is not justifiable and therefore, the repudiation is unjustified and thus there is deficiency in service” Whereas the opposite parties have relied upon the ruling reported in FA 288/2005 NCDRC, New Delhi dated 29.1.2010 in the case of New India Assurance Company Ltd Vs  Pavan Kumar

   while considering these two reported matters and in view of the facts and circumstances of the case, in this case, the investigator of the appellant have submitted a report under Ex. A.7 in which he had estimated the claim damages recommended for a sum of Rs. 2,32,494/- after considering all the details including the policy excess amount salvage of materials etc., But the District Forum having accepted the estimation of the complainant under Ex.A.5, allowed the claim for Rs.3,57,485/- . We are of the view that could not be the correct one when the authorised insurance company survey report is available which alone would prevail unless it is proved it is not acceptable one and thereby we are of the view only to that extent alone, the claim should be considered and allowed and accordingly we are inclined to allow the appeal to that extent alone by modifying the order of the District Forum reducing the claim payable by the opposite parties from Rs.3,57.485/- to 2,32,494/- only and accordingly

      In the result, the appeal is allowed in part by modifying the order of the District Forum reducing the claim payable by the opposite parties from Rs.3,57,485/- to Rs.2,32,494/- alone only and the opposite parties are directed to pay a sum of Rs.2,32,494/- as per surveyor report under Ex.A.7 dated 26.12.2008 towards payment of insurance amount claimed by the complainant with regard to the vehicle bearing registration No. TN 39 AJ 8889 insured with them and in other respects, confirming the order of the District Forum.

         The above directions shall be complied within six weeks from the date of this order.

          No order as to costs in this appeal.

 

P.BAKIYAVATHI                    A.K.ANNAMALAI                          R.REGUPATHI

   MEMBER                             JUDICIAL MEMBER                          PRESIDENT