Haryana

Ambala

CC/330/2018

N.C. C. Senor Model School - Complainant(s)

Versus

UII Co - Opp.Party(s)

D.S.Punia

06 Feb 2020

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, AMBALA.

 

                                                          Complaint case No.: 330 of 2018

                                                          Date of Institution           :  08.10.2018

                                                          Date of decision    :  06.02.2020.

 

N.C.C Senior Model School, Naraingarh Road, Baldev Nagar, Ambala City, through its Principal/Chairman.

          ……. Complainant.

 

The United India Insurance Company through its Branch Manager, Branch Office Bal Bhawan Road, Polytechnic Road, Ambala City.

                    .…. Opposite Party.

         

Before:        Smt. Neena Sandhu, President.

                   Smt. Ruby Sharma, Member.

                   Shri Vinod Kumar Sharma, Member.

                            

Present:       Shri D.S. Punia, Advocate, counsel for complainant.

Shri Dev Batra, Advocate, counsel for OP.

 

Order:        Smt. Neena Sandhu, President

Complainant has filed this complaint under Section 12 of the Consumer Protection Act, 1986 (hereinafter referred to as ‘the Act’) against the Opposite Party (hereinafter referred to as ‘OP’) praying for issuance of following directions to it:-

1. To withdraw the repudiation letter No.BOAC/MS0045/2018-19 dated 10.07.2018 and to pay the claim amount of Rs.1,26,600/-.
2. To pay Rs.1,00,000/- as compensation for the mental agony and physical harassment suffered by him.
3. To pay Rs.33,000/- as litigation expenses.
382.  

Any other relief whichthis Hon’ble Forum may deem fit.

 

Brief facts of the case are that on 16.02.2018, the vehicle of the complainant bearing Registration No.HR-37-D-0942, duly insured with the OP was badly damaged in a road side accident. FIR No.26 dated 16.02.2018 was got registered at PS Panjokhra. The vehicle is a school bus, which was being used for transportation of the students. On the said unfortunate day, thirty four students were travelling in the said bus. The driver was driving the bus in a vigilant manner, at a slow speed being aware of the safety of the children seating in the bus. However, in order to save a motor cycle, the driver of the bus had to apply brakes suddenly and had to take the bus on one side of the road, front tire of the bus fell in deep ditch on the road and due to sudden jerk, the steering of the bus, became free, causing mechanical breakdown of the bus, due to which the bus went out of control and struck in the road side tree, resulting in a heavy damage to the bus and injuries to some of the occupants of the bus. There was no negligence on the part of the driver of the bus and this fact stands proved in separate enquiry conducted by the District Administration through Additional Deputy Commissioner, Ambala. The damaged bus got repaired by the complainant through authorized agency, after completion of the investigation and formalities by the police and the District Administration, Ambala. He submitted all the repair bills amounting to Rs.1,26,600/-, in the office of the OP, to settle the claim. Complainant surprised to receive repudiation letter No.BOAC/MS/0045/2018-19 dated 10.07.2018, wherein the OP has wrongly observed that “at the time of accident the bus was carrying 37 occupants, whereas the bus was passed and authorized to carrying 25 persons including the driver and the insured vehicle was being used in contravention of the Motor Vehicle Act and the Policy”.  It is further stated that the vehicle in question is a school bus with seating capacity of 25 persons. On the date of occurrence of the incident, the bus was carrying minor students of primary classes. A legal notice dated 24.07.2018, was served upon the OP with a request to withdraw the repudiation letter No.BOAC/MS/0045/2018-19 dated 10.07.2018 and to pay the claim amount, but of no avail. By not paying the accidental claim amount, the OP has committed deficiency in service. Hence, the present complaint.

2.                Upon notice, OP appeared through counsel and filed written version raising preliminary objections regarding jurisdiction, concealment of material information, cause of action. On merits, it is stated that a school bus No.HR-37-C-0942, owned by NCC Senior Model School, Ambala was insured with Branch Office Ambala City vide policy No.1101023116P115904384 valid from 21.02.2017 to 20.02.2018. The said bus met with an accident on accident on 16.02.2018. As per News duly published in various News papers-“Overloaded School Bus turned Turtle”. FIR against the driver Perminder Sngh under FIR No.26, under Section 279/337/304-A IPC was registered. At the time of accident beside driver, 34 students along with one teacher, Mrs. Yukati Kakshi and one conductor, Ravinder Kumar, were also travelling the said bus. Due to accident, one Girl Child Kanika D/o Shri Anil Kumar & Bus Conductor Ravinder Kumar died and twenty two children sustained injuries. Shri Ashok Kapoor, was deputed to investigate the matter, who gave his fact finding report dated 21.05.2018, confirming the facts of overloading of the bus in question. Accidental claim was lodged. Spot survey was not arranged by the insured. Surveyor Rajesh Sharma was appointed. Accordingly, the surveyor inspected the vehicle in question at M/s Viskarma Body Builder, Ambala City to assess the loss. The surveyor after consulting the repairer and insured has finally assess the net payable loss for Rs.47,000/-, vide his report dated 06.07.2018. However over loading against permissible limits, was also mentioned in the said assessment, hence said assessment & payable loss was subject to policy terms & conditions. On perusal of documents and investigation report, it was established that at the time of accident and loss, thirty four students besides Driver, Perminder Singh, Conductor, Ravinder Kumar & a Teacher, Yukati Bakshi, in total thirty seven persons were travelling in the bus in question against the  seating capacity of twenty five persons including driver. The accident and loss has taken place due to over loading. Since, the vehicle in question was used in contravention to the Motor Vehicle Act and the terms and conditions of the policy, therefore, no claim is payable and the OP has rightly & legally repudiated the claim vide its letter dated 10.07.2018.

3.                The ld. counsel for the complainant along with Shri Sanjay Kumar, Principal, N.C.C. Senior Model School, Naraingarh Road, Baldev Nagar, Ambala City tendered his affidavit as Annexure CA alongwith documents as Annexure C-1 to C-19 and closed the evidence on behalf of the complainant. On the other hand, learned counsel for OP tendered affidavits of Tajinder Singh, United India nsurance Co. Ltd., Ambala City, Rajesh Sharma, Insurance Surveyor & Loss Assessor, Jalbera Chowk, Ambala City, Ashok Kapoor, Insurance Investigator, Iqbal Ganj road, Ambala Cantt., as Annexure OPA to OPC respectively alongwith documents OP1 to OP15 and closed the evidence on behalf of the OP.

4.                We have heard the learned counsel for parties and carefully gone through the case file and also the case laws referred by ld. counsel for the parties.

5.                Ld. counsel for the complainant argued that unfortunately on 16.02.2018, the duly insured bus of the complainant, carrying 34 students met with an accident, and was badly damaged. Complainant informed the police and the OP about the said incident. The claim along with requisite documents was duly lodged with the OP, but the claim was wrongly repudiated by the OP vide letter dated 10.07.2018, on the ground of overloading and the bus was being driven  in contravention of the Motor Vehicle Act and in violation of the terms and conditions of the Policy. As per Notification dated 12.10.1999-Haryana Motor Vehicles (Fourth Amendment) Rule, 1999, all the vehicles including the school bus carrying school children can use excess seating capacity to the extent of 1.5 times of its registered seating capacity and as per above said notification the bus can be used for carrying thirty seven persons and at the time of accident the bus was carrying permissible number of persons i.e. 37 persons. The OP was not justified in repudiating the claim on the ground of overloading. Ld. counsel for the complainant placed reliance upon case law titled as M.C. Mehta Versus Union of India, JT 1997(9) SC 237 (P&H).

                   On the contrary, the ld. counsel for the OP argued that the OP has rightly repudiated the claim as at the time of accident, the bus in question was overloaded. From the registration certificate Annexure OP2, it is evident that the vehicle in question is having seating capacity of twenty five persons including driver. From the Annexure OP-10, it is evident that at the time of accident, thirty seven persons were travelling in the bus, out of which three were adults i.e. a teacher, a conductor and a driver and thirty four students. From the said document it is quite clear that out of thirty four students, fourteen were of the age of twelve years & above and twenty were below the age of twelve years. CBSE had issued circular No.CBSE/AFF./Circular-8/2017/1217401 dated 23.02.2017, for the safety of the school children and the school bus. In sub-clause (h) of clause 5 of the said circular it is categorically mentioned that, if the age of student is below twelve years, the number of students carried shall not exceed 1½ times the permitted seating capacity and the students above twelve years shall be treated as one person. At the time of accident, three adults and fourteen students of the age of twelve years & above, were seating in the bus. Meaning thereby, out of twenty five seats, seventeen seats were fully occupied by the staff and the students aged twelve years & above and remaining eight seats were to be occupied by the students below the age of twelve years. As per the aforesaid notification the said eight seats were to be occupied by twelve students. In this way, the school bus in question could have carried in total 17+12=29 persons, whereas at the time of accident the bus was carrying thirty seven persons, which clearly shows that at the time of accident the bus was overloaded. As per regulation No.2.1.1. (viii) of  regulations issued by Directorate School Education, Government of Haryana, on school safety, buses should not carry more than specified number of children permissible as per capacity and permit. Since, the bus in question being used in contravention of Motor Vehicle Act and in violation of terms and conditions of the policy, therefore no amount is payable to the complainant and the OP has rightly repudiated the claim. In support of his contention, the Ld. counsel for the OP has placed reliance on the judgment dated 25.09.2019, passed by the Hon’ble High Court of Madhya Pradesh in the case of Manish Emanwal Versus The State of Madhya Pradesh, and order dated 08.04.2016, passed by the Hon’ble National Commission in case titled as M/s Dubey Travels Vs. Oriental Insurance Company and also placed reliance upon the order dated 08.08.2017, passed by the Hon’ble State Commission, Rajasthan in case titled as Cholamandlam MS General Insurance Co. Versus Shri Jhabar Mal.

6.                Admittedly, the seating capacity of the school bus in question is twenty five including driver. From the Annexure P-10, it is evident that at the time of accident bus was carrying thirty seven persons out of which three were adults, fourteen students were aged twelve years & above and twenty students were below the age of twelve years. However, as per circular No.CBSE/AFF./Circular-8/2017/1217401 dated 23.02.2017, issued by CBSE (Marked as A), only twenty nine persons were allowed to sit in the bus in question, hence it is proved on record that at the time of accident, the bus was overloaded. In the case of M/s Dubey (supra), the Hon’ble National Commission, New Delhi, has rejected the claim on the ground of overloading of the school bus. In the case of Cholamandlam MS General Insurance Co. (supra), the vehicle which met with an accident was registered with the concerned Registering Authority with the capacity of seven persons, whereas at the time of accident twelve persons were travelling the said vehicle. The Hon’ble State Commission, Rajasthan, by making reliance on the order of the Hon’ble National Commission, New Delhi, in case Ms/ Dubey (supra), has allowed the appeal and set aside the order of District Forum. Taking in view the facts of the present case and the law laid down by Superior Courts/Fora in the cases referred to above, we hold that the present complaint is devoid of merits, consequently     we dismiss the same, without any order as to costs. Certified copies of this order be supplied to the parties concerned, forthwith, free of cost as permissible under Rules. File be indexed and consigned to the Record Room.

Announced on: 06.02.2020.

 

 

(Vinod Kumar Sharma)            (Ruby Sharma)               (Neena Sandhu)

              Member                           Member                          President

                                                                                       DCDRF, Ambala