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Himachal Pradesh High Court · body

2006 DIGILAW 40 (HP)

NIC v. HARDYAL ROHTA

2006-03-06

M.B.SHAH, RAJAYALAKSHMI RAO

body2006
JUDGEMENT MB Shah, J. President: This Revision Petition is filed against the order dated 11.11.2003 passed by the State Consumer Disputes Redressal Commission, Himachal Pradesh, Shimla, in Appeal No. 174/2002, whereby the State Commission confirmed the order passed by the District Forum, which has directed the Insurance Company, Petitioner herein, to pay a sum of Rs.2, 73,500/- with interest at the rate of 9% pa with costs of Rs.1, 000/-. 2. Feeling aggrieved by the order of the State Commission, the Complainant has come in revision before us. 3. The facts in brief are that, undisputedly the Respondent/Complainant, Mr. Hardayal Rohta, had insured his truck with the Petitioner, M/s. National Insurance Company Ltd. (hereinafter referred to Insurance Company) for the period between 22nd May, 1998 and 21st May, 1999 for a sum of Rs.5.5 lakhs. The truck met with an accident on 16.10.1998 at 10.30 p.m. and the vehicle suffered extensive damage in the accident. On the basis of the information received from the Complainant, the Insurance Company appointed a Surveyor who had assessed the loss caused to the vehicle on total loss basis at Rs.2,73,500/-. Instead of paying the said amount, the Insurance Company had offered to pay him Rs.1, 79,750/- on non-standard basis, and the complainant has given his consent to receive the said amount on 4.10.1999. Thereafter, the Insurance Company did not pay the said amount for nearly ten months. Hence, the Complainant did not accept the said amount and filed a complaint before the Shimla District Forum, on 2.8.2000. 4.By its judgment and order dated 17.6.2002 passed in Complaint No.913/2000, the District Forum allowed the complaint and directed the Insurance Company to pay the sum of Rs.2,73,500/- with interest at the rate of 9% pa from the date of the complaint with costs of Rs.1,000/-. 5. Against that order the Insurance Company preferred appeal No. 174 of 2002 before the State Commission, Himachal Pradesh. By Judgment and order dated 11.11.2003, the State Commission dismissed the appeal. Hence, the Insurance Company has come in revision before us. 6. ln this Revision Petition, the learned Counsel for the Insurance Company has contended that: (a) as per the insurance policy there is limitation as to the use of the vehicle, i.e. in the truck, in question, gratuitous passengers ought not to have been permitted by the driver. Hence, the Insurance Company has come in revision before us. 6. ln this Revision Petition, the learned Counsel for the Insurance Company has contended that: (a) as per the insurance policy there is limitation as to the use of the vehicle, i.e. in the truck, in question, gratuitous passengers ought not to have been permitted by the driver. It is pointed out that as per the Surveyors report 5 persons died, 3 others were injured, the driver and the cleaner were also injured. Therefore, there was violation of the policy condition as to its use. Hence, the claim was settled on the non-standard basis, 75% of the assessed amount which is as under: Market value : Rs. 75% of the above : Rs. Less: Salvage value: Rs. (As per Surveyors Report) Less : Excess clause under Policy: Rs. 3,75,000.00 2,81,250.00 1,00,000.00 Rs. 1,500.00 1,79,750.00 (b) vide letter dated 4.10.1999 the insured accepted the settlement on non-standard basis at Rs. 1,79,750/-, but, subsequently, failed to accept it. It is also contended that the State Commission has erroneously referred to the decision of BV Nagaraju Vs. M/s. Oriental Insurance Company Ltd. (1996) 4 SCC 648, wherein it is held that: "Merely by lifting a person or two or even three by the driver or the cleaner of the vehicle without the knowledge of owner cannot be said to be such a fundamental breach that the owner should, in all events, be denied indemnification"; and (c) also in the present case the Insurance Company has not denied its liability. They have settled the claim on non-standard basis because there was violation of the terms of the condition. 7. As against this, the learned Counsel for the Complainant submitted that as per the terms of the policy six persons can be carried in a goods vehicle. Carrying two or more persons would not be such violation of the terms of the policy so as to reduce the compensation by one fourth of its market value. Findings: 8. 7. As against this, the learned Counsel for the Complainant submitted that as per the terms of the policy six persons can be carried in a goods vehicle. Carrying two or more persons would not be such violation of the terms of the policy so as to reduce the compensation by one fourth of its market value. Findings: 8. With regard to the first contention that in the goods vehicle, namely, the truck, gratuitous passengers ought not to have been permitted, in our view, this contention rightly rejected by the District Forum and by the State Commission on the ground that the Insurance Company failed to establish that the driver of the truck was carrying gratuitous passengers beyond the permissible limit and that was the cause of the accident. It also arrived at the conclusion that there was no material on record to establish that the Respondent was responsible for the alleged violation of the terms and conditions of the insurance policy willfully or knowingly. 9. Further, the State Commission has recorded specifically that this condition was not pressed in appeal. In this view of the matter, there is no substance and this requires to be rejected. 10.However, the learned Counsel for the Insurance Company has produced on record a subsequent judgment dated 13th October, 2004 passed by the High Court of Himachal Pradesh passed in FAO (MVA) No. 129 of 2000 with FAO (MVA) No. 123 of 2000, wherein the Court has arrived at the conclusion that the claimants in the MACT Matter (i.e. the heirs of the deceased) have established that the deceased and the other persons had gone to Delhi to sell vegetables and while returning from Delhi they purchased grocery articles from Chandigarh and hired the offending truck while traveling back home. Therefore, they would not be gratuitous passengers. In our view, this judgment would not make any difference, because in all the capacity of the vehicle was 6 + 2. As against this, additionally two more passengers were there, and, this cannot be a cause of accident. Hence, the decision rendered by the Apex Court in BV Nagaraju (Supra) is applicable. 11. Thirdly, for the alleged consent letter, the State Commission has pointed out that despite having obtained the Consent letter the Insurance Company failed to pay the said amount for months together. Hence, the decision rendered by the Apex Court in BV Nagaraju (Supra) is applicable. 11. Thirdly, for the alleged consent letter, the State Commission has pointed out that despite having obtained the Consent letter the Insurance Company failed to pay the said amount for months together. It had not offered the payment of the said amount on one or the other pretext, so finally the frustrated complainant was required to approach the District Forum on 2.8.2000. Finally, that offer was made only on 16.8.2001 during the pendency of the complaint. Therefore, the aforesaid alleged consent for accepting the amount on non-standard basis would have no effect in the present case. Even the said amount was not paid till this Commission directed the Insurance Company to pay the same by order dated 11th March, 2004. 12.In any set of circumstances, even the Insurance Company has accepted that the market value of the truck was Rs.3,75,000/- and the direction to pay compensation of Rs.2,76,500/- with interest at the rate of 9% pa by the District Forum does not call for any interference at this stage in revision petition. Hence, the Revision Petition is dismissed with costs quantified at Rs. 10,000/-. The Insurance Company is directed to pay the remaining amount with costs within six weeks from today.