H.P. STATE CONSUMER DISPUTES REDRESSAL COMMISSION, SHIMLA.

----

DATE OF DECISION: 02.06.2009

In the matter of:

Appeal No.522/2007.

Branch Manager, Oriental Insurance Co. Ltd., The Mall Solan, H.P. through its Senior Divisional Manager, Oriental Insurance Co. Ltd. Mythe Estate, Pine View, Kaithu, Shimla, H.P.

… … Appellant.



Versus



1. Smt. Surto Devi W/O late Sh. Jiwan Singh, (Mother of late Sh. Man Singh).

2. Smt. Kanta Devi W/O late Sh. Man Singh,

3. Smt. Asha Devi D/O late Sh. Man Singh,

4. Kumari Sangita D/O late Sh. Man Singh,

5. Sh. Dharam Pal S/O late Sh. Man Singh,

6. Master Anil (minor) son of late Sh. Man Singh,

7. Smt. Indra Devi W/O late Sh. Man Singh,

8. Smt. Santosh Devi D/O late Sh. Man Singh,

9. Kumari Kiran D/O late Sh. Man Singh,

10. Kumari Rekha (Minor) D/O late Sh. Man Singh,

11. Master Kishore (Minor) S/O late Sh. Man Singh,

12. Sh. Kamal Raj S/O late Sh. Man Singh,

All residents of Vill. Kharahan, Tehsil Sangrah, District

Sirmour, H.P.

…. …. Respondents.



Present: Mr. Vinu Bhasin, Advocate,

For the appellant.



None for the respondents though represented by S/Sh. Deepak Kaushal and Yudhvir Singh, Advocates.



Appeal No.357/2008



1. Smt. Surto Devi W/O late Sh. Jiwan Singh, (Mother of late Sh. Man Singh).

2. Smt. Kanta Devi W/O late Sh. Man Singh,

3. Smt. Asha Devi D/O late Sh. Man Singh,

4. Kumari Sangita D/O late Sh. Man Singh,

5. Sh. Dharam Pal S/O late Sh. Man Singh,

6. Master Anil (minor) son of late Sh. Man Singh,

7. Smt. Indra Devi W/O late Sh. Man Singh,

8. Smt. Santosh Devi D/O late Sh. Man Singh,

9. Kumari Kiran D/O late Sh. Man Singh,

10. Kumari Rekha (Minor) D/O late Sh. Man Singh,

11. Master Kishore (Minor) S/O late Sh. Man Singh,

12. Sh. Kamal Raj S/O late Sh. Man Singh,

All residents of Vill. Kharahan, Tehsil Sangrah, District Sirmour, H.P.

… … Appellants.

Versus



Oriental Insurance Co. Ltd., The Mall Solan, H.P. through its Senior Divisional Manager, Oriental Insurance Co. Ltd. Mythe Estate, Pine View, Kaithu, Shimla-3, H.P.

… … Respondent.



Present: None for the appellants though represented by S/Sh. Deepak Kaushal and Yudhvir Singh, Advocates.



Mr. Vinu Bhasin, Advocate,

For the respondent.



----------------------------------------------------------------------------------------------



Hon’ble Mr. Justice Arun Kumar Goel (Retd.), President.

Hon’ble Mrs. Saroj Sharma, Member.

Hon’ble Mr. Chander Shekhar Sharma, Member.



Whether approved for reporting? Yes



---------------------------------------------------------------------------------------------



O R D E R



Justice Arun Kumar Goel (Retd.), President (Oral).





1. Since both these appeals have arisen out of the order passed by District Forum, Shimla, Camp at Nahan in Complaint No.105/2005, dated 6.9.2007, as such they were taken up for hearing together. Some of the appellants in Appeal No.357/2008, who are respondents in Appeal No.522/2007 are minors, and because neither their Counsel nor guardian appeared, therefore in order to protect their interest, Shri Ashok Tyagi, Advocate, was appointed as a Legal Aid Counsel in both these appeals to defend them and his consolidated fee was fixed at Rs. 5,000/- in these appeals to be paid out of the Legal Aid Fund of this Commission. He was requested to examine the file and if possible to argue the appeals on behalf of his clients. After having gone through the complaint and appeal files, Shri Tyagi submitted that he is ready to argue the cases. Appeal No.522/2007 has been filed by the Insurance Company, hereinafter being referred to as the OP and Appeal No.357/2008 has been filed by the complainants, who are being referred to hereinafter as such.



2. Facts giving rise to these appeals are, that Man Singh who was the predecessor-in-interest of the complainants, was the owner of truck bearing Registration No.HP-14A-1826 (Temporary). It was covered under a valid policy of insurance when it met with accident on 19/20-12-2004. As a result of this accident, the truck was extensively damaged and its owner driver Man Singh also died. Claim after accident when lodged with the OP, was repudiated on the ground that there were unauthorized

passengers travelling in the vehicle in violation of the policy conditions subject to which it was insured. Vehicle did not possess a valid route permit and fitness certificate, as such the OP was not liable to indemnify the complainants. Another fact that needs to be noted here is that in addition to the truck being insured under a valid policy of insurance, risk of deceased Man Singh as driver of the vehicle was also covered under Double Accident Benefit Policy for which premium had been charged by the OP is again not in dispute between the parties.



3. After taking evidence on record, District Forum below allowed the complaint and OP was directed to indemnify the complainants in the sum of Rs.2,93,730/- alongwith interest on this amount @ of 9% per annum with effect from the date of expiry of 3 months from the date of accident i.e. 20.4.2004 (this date is wrong because accident is of 19/20-12-2004) till actual payment was made alongwith litigation cost of Rs.3500/-.



4. It is against this order of the District Forum below both parties i.e. complainants as well as OP are aggrieved. Insurance Company has filed the appeal for dismissal of the complaint, whereas complainants have filed the appeal for enhancement of compensation and at the same time for the grant of compensation on account of the death of Man Singh, driver, because he had obtained policy under double accident benefit, by modifying the impugned order.





5. We shall first take up the appeal of the Insurance Company-OP. Shri Bhasin forcefully urged that District Forum below fell into error by ignoring the fact that vehicle in question was a transport vehicle and was adapted as well as meant for carriage of goods only, whereas total 5 persons including driver were travelling in the vehicle at the time of accident. Persons other than the driver were all unauthorized, gratuitous passengers, as such his client was not responsible to indemnify the complainants in the circumstances of this case. District Forum below according to him completely ignored this vital aspect and therefore according to him, this appeal deserves to be allowed on this short ground alone. Further plea urged by Mr. Bhasin is that the vehicle was being plied on a temporary number even after expiry of 1 month from the date of its purchase, therefore provisions of Motor Vehicles Act, 1988, stood violated and on this account also the impugned order is liable to be set aside.



6. Both these pleas were seriously contested and resisted on behalf of the complainants by Shri Tyagi. According to him, the persons who were travelling in the vehicle were neither unauthorized nor gratuitous passengers as alleged on behalf of the OP. Even if it is assumed for the same of argument without conceding, still no benefit can be derived by the OP from this fact. Further according to him District Forum below fell into grave error when it ignored the claim of his clients under double accident benefit policy. In these circumstances, he prayed for dismissing the appeal of the OP and allowing the appeal of his clients.



7. If on examination of the materials on record we come to the conclusion that travelling of one extra person was either the sole or contributory cause of accident, in such a situation the matter has to be dealt with on that premise, otherwise consequences hardly need to be explained.



8. In this behalf when a reference is made to the insurance policy, seating capacity of the vehicle is shown to be 4. In these circumstances merely because one person was extra, will not make any difference. Reason being that in order to succeed on this plea, OP was duty bound to have further established by acceptable and cogent evidence that travelling of one extra person was the sole or contributory cause of accident. With reference to the complaint file, nothing could be pointed out by the learned Counsel for the OP-Insurance Company in this behalf. That being the position, merely because one person beyond the seating capacity of the vehicle was travelling at the time of accident does not in any manner improve the case of the OP.



9. So far vehicle being plied on temporary registration number is concerned, it also does not make any difference in this case, because that is not the cause of accident. That being the position, we are of the view that this plea is also misconceived and merits rejection. Ordered accordingly.



10. In support of the appeal of the Insurance Company no other point was urged. Therefore, this appeal has no merit and deserves to be dismissed while upholding the impugned order of the District Forum below as the amount awarded therein rightly indemnifies the complainants so far their own damage claim qua the insured vehicle is concerned.



11. Now coming to the appeal of the complainants. As already observed it could not be disputed on behalf of the OP-Insurance Company, that the deceased was insured under double accident benefit policy and premium had been charged by the Insurance Company. Admittedly Man Singh who was also the owner of the vehicle died as a result of the accident in question. In these circumstances, we are of the view that the OP-Insurance Company is liable to pay the sum of Rs.2,00,000/- i.e. the sum insured over and above what has been awarded by the District Forum below vide impugned order towards own damage to the vehicle, because Man Singh had died as a result of the accident, which position could not be disputed on behalf of the OP. Ordered accordingly.





12. No other point was urged.





In view of the aforesaid discussion, appeal No.522/2007 is dismissed being without merits. And at the same time Appeal No.357/2008 is allowed thereby directing the OP to pay Rs.2,00,000/- (over and above the compensation awarded by the District Forum below vide its order dated 6.9.2007 in Complaint No.105/2005), alongwith interest @ 9% per annum w.e.f. 21.04.2005 till the date of payment/deposit which ever is earlier. This date 21.4.2005 has been fixed after allowing four months time to OP to settle the claim of the complainants. Besides this the time of three months for payment given from “24-2-2004” by District Forum below in its order dated 6.9.2007 in Complaint No.105/2005 is corrected to “20.12.2004”.





Order of the District Forum below in Complaint No.105/2005 dated 6.9.2007 is modified to the extent as above and both the appeals stand disposed of subject to this modification.





All interim orders passed in Appeal No.522/2007 shall stand vacated forthwith.



Office is directed to place a copy of this order on the file of Appeal No.357/2008.



Learned counsel for the OP has undertaken to collect copy of this order from the Court Secretary free of cost as per rules. Shri Tyagi has undertaken to inform Smt. Kanta Devi, W/O late Shri Man Singh, Resident of Village Karahan, Tehsil Sangrah, District Sirmour, H.P. Office is directed to send a copy of this order to the complainants free of costs.



Shimla,

June 2, 2009.



( Justice Arun Kumar Goel ) (Retd.)

President





( Saroj Sharma )

Member.





/BS/ (Chander Shekhar Sharma )

Member.