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2007 DIGILAW 159 (HP)

Oriental Insurance Co. Ltd. v. Meera Devi

2007-05-07

ARUN KUMAR GOEL, NARINDER SINGH THAKUR, SAROJ SHARMA

body2007
ORDER (Arun Kumar Goel, President) - We have heard learned Counsel for the parties and with their assistance have also examined the record of the case. Vehicle being insured on the date of its accident with the appellant is not in dispute. However, on claim being lodged, it was not settled by the Insurance Company. This resulted in filing of the complaint under Section 12 of the Consumer Protection Act, 1986. Thereafter, when put to notice, stand of the appellant was that vehicle being a transport vehicle was adapted and meant for carriage of goods, passengers could not have been carried in it. Mr. Sharma, learned Counsel for the appellant pointed out that against the capacity of 1+3, there were as many as 7 passengers travelling in the vehicle at the time of accident i.e., 1+6 more persons. Therefore, according to him, impugned order is liable to be set aside on this short ground alone. 2.Alternatively and without conceding he urged that if his first submission falls, in such a situation, after allowing depreciation on the sum insured, the impugned order may be modified by setting the same as a non-standard claim instead of the impugned order. With a view to support his submission, he placed reliance on a decision of the National Commission in the case of New India Assurance Co. Ltd. v. Narayan Prasad Appaprasad Pathak, 2006(II) CPJ 144 (NC) and urged that Clause 10 of the Guidelines issued by the General Insurance Corporation of India Ltd. for setting claims on ‘non-standard basis’ is clearly attracted. Thus, he prayed for reduction of the amount in question as awarded by the District Forum below. On a reference to the impugned order dated 17.1.2007 in Consumer Complaint No. 8/2005, we find that the appellant has been directed to pay Rs. 1,70,777 to the respondent with 9% interest from the date of filing of the complaint i.e. 27.12.2004 alongwith Rs. 1,000 as litigation cost. Reliance was placed by Mr. Sharma on the policy condition ‘Limitation as to use’ at the time of accident of the vehicle carrying excess passengers who were travelling as unauthorised passengers. All these pleas have been contested by Mr. Sarpal Singh, learned Counsel for the respondent. 1,000 as litigation cost. Reliance was placed by Mr. Sharma on the policy condition ‘Limitation as to use’ at the time of accident of the vehicle carrying excess passengers who were travelling as unauthorised passengers. All these pleas have been contested by Mr. Sarpal Singh, learned Counsel for the respondent. Per him, onus was upon the appellant to have established the number of persons firstly being carried unauthorisedly in the vehicle and also at the same time that such excess number of persons was the cause of accident or contributed to the accident in question. Onus being on the appellant-Insurance Company, he relied upon a decision of this State Commission in the case of Megh Pal Thakur v. Oriental Insurance Company Limited, 2004(1) Current Law Journal (H.P.) 596. On the basis of this judgment, he urged that since appellant has failed to prove this fact, therefore, alternate submission urged by Mr. Narinder Sharma, learned Counsel for the appellant, needs to be rejected. We are unable to accept this submission urged by Mr. Singh because reference to para 5 of the judgment of this State Commission relied upon by him shows that the Insurance Company in this case itself had offered to settle the claim as per recommendations of its surveyor and the net liability of the loss on total loss basis was of Rs. 5,78,500. Its subsequent scaling down by converting the claim under the category of non-standard claim by its Divisional Manager was unjustified. This, in our opinion had mainly weighed with the District Forum below in this case while upholding the claim of the appellant and scaling down of compensation was set aside. This judgment is dated 18.3.2002. On the other hand, in support of the alternate submission, decision in the case of New India Assurance Co. Ltd. v. Narayan Prasad Appaprasad Pathak (supra), relied upon by Mr. Sharma, negatives the submission of Mr. Singh. Since we are accepting that the number of persons traveling in the truck at the time of accident were six i.e., beyond the licensed carrying capacity, claim payable cannot exceed 75% of the admissible claim in view of the Clause 10 of the Guidelines issued by the General Insurance Corporation of India Ltd. for the Insurance Companies for settling the claims on non-standard basis. For ready reference, this clause is extracted hereinbelow :- “10. Non-standard claims. For ready reference, this clause is extracted hereinbelow :- “10. Non-standard claims. - Following types of claims shall be considered as non-standard and shall be settled as indicated below after recording the reasons ; Sr. No.DescriptionPercentage of Settlement (i)Under declaration of licensed carrying capacityDeduct 3 years difference in premium from the amounted of claim or deduct 25% of claim amount, whichever is higher. (ii)Overloading of vehicles beyond licensed carrying capacityPay claims not exceeding 75% of admissible claim. (iii)Any other breach of warranty/condition of policy including limitation as to usePay upto 75% of admissible claim.” 3.Now coming to the submission of Mr. Sharma that excess passengers were travelling in the vehicle in question. Ordinarily we would have accepted the denial of respondent in this behalf and then held that the appellant has failed to establish the number of persons travelling in the vehicle, but unfortunately for the respondent, he was himself travelling in the vehicle at the time of accident and the driver having died in this very accident, he was the best person to have repudiated the claim of the appellant so far it concerns about the number of persons travelling in the vehicle in question. In case respondent was not travelling, situation would have been otherwise. Then some leverage could be given to the respondent on the basis of the decision in the case of Megh Pal Thakur v. Oriental Insurance Company Ltd. (supra). That being the position, in our opinion, offered sum of Rs. 1,70,777 has to be reduced by 25%. Deductions to be allowed considering it as non-standard claim. Nothing to the contrary has been brought not our notice on behalf of the respondent not to follow the view of the National Commission referred to in the preceding paragraphs of this order. Thus, the impugned order deserve to be modified by reducing 25% of the amount of Rs. 1,70,777 which comes to Rs. 1,28,083.75 or say Rs. 1,28,083. On this sum of Rs. 1,28,083 respondent is held entitled to interest @ 9% per annum from the date of complaint as well as litigation cost as ordered by the District Forum below. While partly allowing this appeal, order passed by the District Forum below in Consumer Complaint No. 8/2005 stands modified, leaving the parties to bear their own costs. All interim orders passed from time to time in this appeal shall stand vacated forthwith. While partly allowing this appeal, order passed by the District Forum below in Consumer Complaint No. 8/2005 stands modified, leaving the parties to bear their own costs. All interim orders passed from time to time in this appeal shall stand vacated forthwith. Office is directed to make copy of this order available to the parties free of costs as per Rules. M.R.B. ———————