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2014 DIGILAW 215 (UTT)

NEW INDIA ASSURANCE COMPANY LIMITED v. MUNNI DEVI

2014-05-15

B.C.KANDPAL, C.C.PANT

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ORDER (Per: Justice B.C. Kandpal, President): This appeal, under Section 15 of the Consumer Protection Act, 1986, is directed against the order dated 29.12.2009 passed by the District Forum, Almora in consumer complaint No. 04 of 2008, whereby the District Forum has allowed the consumer complaint and directed the appellant – opposite party to pay sum of Rs. 2,00,000/- to the respondent – complainant towards the personal accident insurance cover of her deceased husband /driver of the insured vehicle; Rs. 1,18,099.50/- towards compensation in regard to the damage caused to the vehicle in the accident; Rs. 2,000/- towards mental and physical agony and Rs. 2,000/- towards litigation expenses, within a month from the date of the order, failing which the appellant was also held liable to pay interest @6% p.a. on the above amount from the date of order till the date of actual payment. 2. Briefly stated, the facts of the case as mentioned in the consumer complaint, are that late Sh. Deep Chandra Bhatt, the deceased husband of the complainant – Smt. Munni Devi, was the registered owner of vehicle No. UA04-D-6297 (Maxi Cab). The said vehicle was insured with the opposite party – The New India Assurance Company Limited for the period from 02.11.2006 to 01.11.2007. During the validity of the insurance policy, on 29.08.2007, the insured vehicle met with an accident near Kanarchina on Almora – Sheraghat road. In the said accident, the deceased husband of the complainant, who was driving the vehicle at the relevant time, died. The complainant submitted the claim with the insurance company and completed the entire formalities, but the claim of the complainant was repudiated by the insurance company vide letter dated 13.03.2008. Alleging deficiency in service on the part of the insurance company, the complainant filed a consumer complaint before the District Forum, Almora. 3. The insurance company filed written statement before the District Forum and pleaded that at the time of the accident, the vehicle was overloaded; that the driver did not possess an experience of five years in driving the insured vehicle; that the claim of the complainant was rightly repudiated per letter dated 13.03.2008 and that there is no deficiency in service on their part. 4. The District Forum, on an appreciation of the material on record, allowed the consumer complaint vide impugned order dated 29.12.2009 in the above manner. 4. The District Forum, on an appreciation of the material on record, allowed the consumer complaint vide impugned order dated 29.12.2009 in the above manner. Aggrieved by the said order, the insurance company has filed this appeal. 5. We have heard the learned counsel for the parties and have also perused the record. 6. In the present case, the claim of the complainant was repudiated by the insurance company vide letter dated 13.03.2008 on the ground that the driver was not having a valid and effective driving licence as he was not having an experience of five years in driving the transport vehicle on the date of the accident and also that at the time of the accident, the vehicle was overloaded and 17 persons were travelling in the vehicle against the permitted carrying capacity of 10. 7. The vehicle in question was a maxi cab and the deceased husband of the complainant was granted the permit for contract carriage by State Transport Authority, Dehradun in respect of the subject vehicle (Paper No. 25), wherein a condition was stipulated that to drive the vehicle, the driver must have five years driving experience. There is no dispute with regard to the fact that the vehicle in question was a transport vehicle and was being used for hire and reward. The copy of the driving licence of late Sh. Deep Chandra Bhatt, who being insured, was driving the vehicle himself at the relevant time, is on record (Paper No. 27), which shows that initially, the driving licence was issued for motorcycle + motor car only and the same was valid for the period from 04.11.2004 to 03.11.2024 and the same was endorsed for transport vehicle on 28.09.2006, which was valid upto 27.09.2009 and the licence holder was made authorised to drive light motor vehicle in hills w.e.f. 03.11.2006. The accident in question took place on 29.08.2007 and hence on the date of the accident, the driver was not possessing an experience of five years in driving the vehicles such as the insured one. Learned counsel for the appellant – insurance company cited a decision dated 14.09.2009 of this Commission passed in First Appeal No. 142 of 2007; The New India Assurance Company Limited Vs. Govind Chauhan. Learned counsel for the appellant – insurance company cited a decision dated 14.09.2009 of this Commission passed in First Appeal No. 142 of 2007; The New India Assurance Company Limited Vs. Govind Chauhan. In the said case also, the driver was not having minimum five years experience to drive passenger carrying commercial vehicle, which was a condition of the permit and it was held that the insurer is not liable to pay any compensation. Learned counsel also cited another decision dated 22.06.2011 of this Commission rendered in First Appeal No. 69 of 2010; The Oriental Insurance Company Limited Vs. Chanchal Kumar Mukherjee. In the said case, the claim was repudiated by the insurer on the ground that the driver was not having a driving licence of five years old or more, as was specified under the terms of the road permit. It was held that the repudiation of the claim on the said ground was justified and the appeal of the insurer was allowed and the order made by the District Forum allowing the consumer complaint, was set aside. 8. Thus, from the above discussion, it is quite clear that on the date of the accident, the driver was not having an experience of five years in driving the transport vehicle and that too in hill routes and, as such, the insurance company was justified in repudiating the claim and the view to the contrary taken by the District Forum, can not be said to be justified and is not legally sustainable. 9. Apart from above, the insurance company has also repudiated the claim on the ground that at the time of the accident, the vehicle was overloaded. The copy of the registration certificate of the vehicle on record (Paper No. 26) shows that the total seating capacity of the vehicle including driver was ten in all. The insurance company has taken the stand that at the time of the accident, 17 persons were travelling in the vehicle, out of whom, 10 died and 7 sustained injuries. The above defence of the insurer finds support with the spot survey report dated 25.09.2007 of Sh. Hem Chandra Suyal, Surveyor, Loss Assessor, Valuer & Investigator (Paper Nos. The insurance company has taken the stand that at the time of the accident, 17 persons were travelling in the vehicle, out of whom, 10 died and 7 sustained injuries. The above defence of the insurer finds support with the spot survey report dated 25.09.2007 of Sh. Hem Chandra Suyal, Surveyor, Loss Assessor, Valuer & Investigator (Paper Nos. 33 to 36), wherein he has clearly stated that in the accident in question, 10 passengers died and 7 passengers were injured and he has given the name, parentage and address of the said persons and the said fact has also been mentioned by Sh. Sunil K. Agarwal, Surveyor & Loss Assessor in his final survey report dated 28.01.2008 (Paper Nos. 37 to 42). There is no evidence to the contrary on record to disbelieve the report of the statutory surveyor. Thus, there was also breach of the terms and conditions of the policy as well as the provisions of the Motor Vehicles Act, 1988 on the part of the insured and at the time of the accident, the vehicle was overloaded and on that ground also, the claim was not payable. 10. Learned counsel for the appellant also cited a decision dated 14.06.2010 of this Commission given in First Appeal No. 122 of 2008; The Oriental Insurance Company Limited Vs. Kashmir Singh. In the said accident, the seating capacity of the vehicle was six in all including driver, but at the time of the accident, ten persons including driver were travelling in the vehicle and it was held that the insurer is not liable to pay any compensation. Learned counsel further cited a decision dated 24.05.2011 of this Commission rendered in First Appeal No. 210 of 2010; The Oriental Insurance Company Limited Vs. Harendra Singh Kanwasi, wherein the claim was repudiated by the insurer on the ground that the vehicle was carrying 14 passengers as against the permitted seating capacity of 10 passengers and it was held that the insurer has rightly repudiated the claim on the ground of overloading of the vehicle. 11. The District Forum has not properly considered the facts and circumstances of the case and has erred in allowing the consumer complaint per impugned order, which can not be sustained and is liable to be set aside and the appeal is fit to be allowed. 12. For the reasons aforesaid, appeal is allowed. 11. The District Forum has not properly considered the facts and circumstances of the case and has erred in allowing the consumer complaint per impugned order, which can not be sustained and is liable to be set aside and the appeal is fit to be allowed. 12. For the reasons aforesaid, appeal is allowed. Order impugned dated 29.12.2009 passed by the District Forum is set aside and consumer complaint No. 04 of 2008 is dismissed. No order as to costs.