The case of the complainant in brief is that the complainant is the owner of one Chevrolet AVEO UVA Model of four wheeler vehicle under Registration No.AS-06/G-0074. Said vehicle was duly insured with the OPs who issued Policy No.200301/31/09/6100001086 dated 05.08.09 which was valid from 13.08.09 to 12.08.10. On 26.02.10 complainant made a plan to go to Guwahati by her above vehicle which was to be drive by driver Ranjit Ghosh in connection with urgent work. It is further stated that on the previous night i.e. 25.02.10 Sri Arun Kumar Singh and Sri Braja Kumar Singh of Guwahati who are known to the complainant requested the complainant to accompany with her to Guwahati. On 26.02.10 due to some personal difficulties the complainant could not proceed to Guwahati and send the driver Ranjit Ghosh along with Sri Arun Kumar Singh and Sri Braja Kumar Singh and two other persons who were known to Arun Kumar Singh and Braja Kumar Singh. During their journey on 26.02.10 by the National Highway No.37 the vehicle met an accident near Burapahar under Jakhalabandha P.S. of Nagaon District, as a result of which driver Ranjit Ghosh and three other passengers succumbed to injuries and Arun Kr. Singh sustained severe injury on his head who was immediately shifted to hospital. Subsequently, GD Entry was made in connection with this accident at Bagori PP being Bagori PP GDE No.866 dated 26.12.10. Thereafter, the complainant paid Rs.17200/- for towing the vehicle from Burapahar to Dibrugarh and dropped the vehicle at Pashupati Traders, where repairing of the vehicle was estimated at Rs.6,24,751/-. The complainant on 04.03.10 intimated the fact of accident to the OP and submitted all the supporting documents with request to pay the insurance amount. The OP, subsequently, appointed a surveyor to survey the damaged vehicle at Pashupati Traders, Dibrugarh and after being survey he found that the vehicle was completely damaged for which he did not advise for repairing the vehicle. The vehicle is still lying at Pashupati Traders in damaged condition and the complainant had to pay parking charge of Rs.7920/- to Pashupati Traders. The complainant time and again approached to the Op No.2 for settlement of the claim but she did not get any response from OP. Subsequently, OP No.2 vide his letter dated 18.08.10 refused to pay the claim stating that the vehicle was used by the Registered Contractor Bridge Infrastructure for “hire or reward” as appears from statement made by the sole survivor of the accident Sri Arun Kr. Singh and was not used for private purpose for which policy was taken . The complainant stated that the vehicle was used by the complainant herself and was not used by the Registered Contractor Bridge Infrastructure for “hire or reward”. The accident occurred on 26.02.10 within the validity period of the insurance policy. The OP has concocted the fact to reject the genuine claim of the complainant which appears to be deficiency in service and as such claimed Rs.3,45,500/- being insurance amount of the vehicle, Rs.17200/- being the amount for towing the vehicle from Burapahar to Dibrugarh, Rs.7920/- being parking charge at Pashupati Traders and Rs.1,00,000/- being compensation towards mental harassment and agony and cost of the litigation.
After registering the case notices were issued to the OPs No.1 & 2 who have contested the case by filing written statement stating inter-alia that the case is not maintainable in law as well as on fact and there is no deficiency in service on the part of OP. The OP admitted regarding the insurance of the vehicle vide policy No.200301/31/09/6100001086 valid from 13.08.09 to midnight of 12.08.10. The OP contended that the complainant subscribed the said insurance policy for his private car to be used for his private matter subject to the limitation as to the use “the policy covers use of the vehicle for any purpose other than hire or reward etc”. But it appears that said vehicle bearing Registration No.AS 06/G-0074 was used for hire by a Registered Contractor group by the name of Bright Infrastructure and the said firm used the vehicle frequently to visit their working area viz Silchar, Dhubri, Barpeta etc. The OP appointed their investigator to investigate the matter who during investigation recorded the statement of the sole surviving occupant Sri Arun Kr. Sinha and the complainant and submitted his investigation report on 14.06.10. From the statement of Arun Kr. Sinha it reveals that on 25.02.10 Sri Arun Kr. Sinha, U.K.Sinha, Sri B.K.Sinha and I.Deka came from Guwahati to Dibrugarh by hiring the above vehicle driven by Sri Ranjit Ghosh to attend a tender of Water Resource Department at Dibrugarh. They stayed at Dibrugarh Town for the night and while returning on 26.02.10 by the said vehicle an accident took place as a result of which the driver and other three persons succumbed to the injuries except Sri Arun Kr. Sinha. Thus, it appears that the vehicle was used for commercial purposes for hire or reward and not for private purposes on the date of accident. The said vehicle was used for hire or reward by violating the condition of policy and as such, the OPs are not liable to pay the claim of the complainant. The complainant has improved and concocted the entire story for filing this case for wrongful gain to herself and wrongful lost to the OPs. The Insurance Policy was obtained in respect of private car of the complainant but the said vehicle was used for hire or reward in violation of the policy condition to the knowledge of the owner of the vehicle and as such, there is no deficiency in service on the part of OP. Hence, it is prayed to dismiss the case with cost.
In this case complainant gave her evidence as CW-1 and another witness Sri Sunirmal Dutta as CW-2 by swearing affidavit and exhibited as many as 11 documents in support of her case. On the other hand, OP examined Sri Sumendra Chandra Roy, Branch Manager of Dibrugarh Branch and Sri Deepak Kr. Das, Investigator as DW-1 and DW-2 and exhibited 5 documents to rebut the case of the complainant. Heard argument of both the parties.
DECISION, DISCUSSION AND REASONS THEREOF:
Upon going through the evidence of both the parties and their documentary evidence and the arguments advanced it is found that one Chevrolet car under Registration No. AS-06/G-0074 owned by the complainant was duly insured with the OPs who issued Policy No.200301/31/09/6100001086 dated 05.08.09 which was valid from 13.08.09 to 12.08.10. There is no dispute regarding the policy as well as accident of the vehicle during the validity period of the policy.
Now the question arise as to whether at the relevant time when the accident had taken place the insured vehicle was given on rental basis or on hire basis and if answer to the said question is in the affirmative than whether the claim made by the complainant will have to be allowed or repudiation of the claim by OPs is justified?
On perusal of the evidence of witness No.1 and 2 of the complainant it is found that on 26.02.10 the complainant made a plan to go to Guwahati by car No. AS-06/G-0074 driven by Ranjit Ghosh for some urgent work at Guwahati. Mwanwhile, Sri Arun Kumar Sinha of Imphal and Braja Kumar Sinha requested the complainant to drop them at Guwahati which the complainant agreed. But on 26.02.10 the complainant could not proceed to Guwahati due to some personal difficulties and sent Ranjit Ghosh, driver of the vehicle along with Arun Kumar Sinha and Braja Kumar Sinha and two other persons who were known to Sri Arun Kumar Sinha and Braja Kumar Sinha. During their journey on 26.02.10 by the National Highway No.37, car met an accident near Burapahar under Jakhalabanda P.S. In the said vehicle five passengers travelled out of which four succumbed to the injuries except Arun Kumar Sinha who was immediately shifted to hospital. For the said accident Bagori police post made a GD Entry being GD Entry Bagori PP GDE No.866 dated 25.12.10. Since the vehicle was within the validity period of insurance the complainant claimed the insurance amount but OP repudiated the claim on the ground that the vehicle was used for hire violating the policy condition.
So far as breach of policy condition is concerned, it is the onus to establish the same lies on the Insurance Company, particularly, when the complainant denied that the he had committed any breach of condition of the policy. Therefor, we have to find out as to whether at the relevant time when accident had taken place the insured vehicle was given on rental basis or hire basis to the Bright Infrastructure.
On perusal of the evidence and argument advanced by learned counsel for the OP it is found that the claim of the complainant was repudiated on the ground of vehicle being used for hire or reward. The OP contended that the policy was subscribed by the complainant for private car to be used for her private purpose. In the policy there was a limitation as to the use of the vehicle “the policy covers use of the vehicle for any purpose other than hire or reward etc.” The OP on the basis of the claim made by the complainant appointed Sri Deepak Kumar Das as Investigator who enquired the matter and recorded the statement of sole surviving passenger Sri Arun Kumar Sinha and the complainant and submitted his investigation report on 14.06.10. Ext-E is the appointment letter of Investigator, Ext-B is the report of Investigator. In respect of the accident the investigator has given a detail report stating that the vehicle was kept at Guwahati and Late Ranjit Ghosh was driving the car. The Investigator recorded the statement of sole surviving
passenger Sri Arun Kumar Sinha who stated that on 25.02.10 he along with four other persons including driver visited Dibrugarh to attend a tender of Water Resource Department by the vehicle No.AS-06/G-0074 hired by the Registered Contractor’s Group i.e. Bright Infrastructure. Said vehicle was used often to visit to their working place such as Silchar, Dhubri, Barpeta etc. Ext-C is the statement of sole surviving passenger Arun Kumar Sinha recorded by the Investigator. In support of the above OPs examined Sri Deepak Kumar Das, Investigator, as DW-2 who supported the above contention. DW-2 in his evidence stated that during investigation while he visited to the house of Arun Kumar Sinha he found him in sound health and gave statement to him in writing. This DW stated that from the statement of Arun Kumar Sinha it reveals that on 25.02.10 Sri Arun Kumar Sinha, Sri U.K. Sinha, Sri B.K.Sinha and I. Deka came from Guwahati to Dibrugarh by hiring car No.AS-06/G-0074 to attend a tender of Water Resource Department at Dibrugarh. Said car was driven by Sri Ranjit Ghosh. They halted the night of 25.02.10 at Dibrugarh and while returning on the next day on 26.02.10 the alleged accident took place due to some technical snag and dashed against a tree, causing severe injury to him and all other occupants in the said vehicle succumbed to the injury. Ext-C is the statement of Sri Arun Kumar Sinha. The DW-2 further stated that he also recorded the statement of the complainant Smti. Chandana Dutta from where it reveals that she and her son Sri Subhrajit Dutta went to Guwahati from Dibrugarh in their vehicle No.AS-06/G-0074. Her son is working at a Company at Guwahati and resided in a rented house. The vehicle is used at Guwahati and kept with her sister. Late Ranjit Ghosh used to drive the vehicle who is her sister’s son. On 24.02.10 Ranjit Ghosh took the vehicle to Dibrugarh and she gave him the vehicle. Afterwards she came to know that while returning from Dibrugarh on 26.02.10 the vehicle met with an accident. One was injured and all other occupants of the vehicle expired. How they boarded at her vehicle she does not know. Ext-D is the statement of Smti. Chandana Dutta. DW-2 further stated that after due investigation and on scrutiny of driving licence, registration certificate, GD Entry No.866 dated 26.02.2010 of Bagori PP submitted his report dated 14.06.10 vide Ext-E.
On perusal of the said report of DW-2 it reveals that usually the car was kept at Guwahati. It was used as private car and the car was driving by Ranjit Ghosh./ further from the report it reveals that as per statement Arun Kumar Sinha they have registered contractor’s group i.e. Bright Infrastructure and working construction of various places of Assam. On 25.02.10 they visited Dirugarh to attend a tender of Water Resource Department by the said car. Next day on the way back to Guwahati the mishap happened. They used to visit different place by the said vehicle.
If we go through the evidence of complainant as CW-1 it is found that the complainant made a plan to go to Guwahati on 26.02.10 but could not start for Guwahati due to some personal difficulties and sent Arun Kumar Sinha, Braja Kumar Sinha and two other persons who were known to Arun Kumar Sinha and Braja Kumar Sinha. The plea taken by the complainant is not satisfactory and trustworthy. Further, as stated by the complainant that Arun Kumar Sinha of Imphal and Braja Kumar Sinha of Guwahati both partner of Bright Infrastructure are known to the complainant’s family and requested the complainant to drop them at Guwahati which the complainant agreed. Whereas, from the statement of sole surviving occupant of the vehicle stated that they have come from Guwahati on 25.02.10 to attend a tender of Water Resource Department at Dibrugarh and halted at Dibrugarh on 25.02.10 and while returning from Dibrugarh to Guwahati on 26.02.10 the vehicle met with an accident which appears to be that the vehicle was used for the purpose of hire and reward and not for private purpose on the date of accident by violating the condition of the policy. The OP exhibited the statement of Arun Kumar Sinha as Ext-C and the statement of complainant as Ext-D. In support of the case of the OP one Sumendra Chandra Roy, Branch Manager of Dibrugarh Branch as DW-1 and Sri Deepak Kumar Das, Investigator of OP as DW-2. Ext-E is letter of appointment of Investigator and Ext-B is the report of investigation. From the evidence of CW-2 as well as the statement of sole surviving injured Arun Kumar Sinha we find that the insured vehicle was driven on hire basis by the Bright Infrastructure. From the evidence of DW-2 it appears that only the driver of the vehicle who was related with the complainant and other inmates in the insured vehicle were not related with each other and also not related with the complainant from where it can be inferred that the insured vehicle was driven on hire or reward. As against the evidence on record produced by the complainant, we find that there are sufficient rebuttal materials on the record and as such inference that can be drawn that the vehicle was given to hire or reward. The OP proved by positive and cogent evidence which was required to be led for discharging their burden. Hence it is held that the OP established that the insured vehicle was used for hire and reward.
Even though there was violation of a condition of the policy regarding use of the vehicle the question for hire or reward as alleged by the OPs Insurance Company, keeping this aspect in view we accepted the claim of the complainant on non-standard basis, since the decision of this is in the line with the view taken by the Hon’ble Supreme Court in the case of Amalendu Sahoo vs. Oriental Insurance Co. Ltd (2010 CTJ 485 SC) as the fact of this case is identical to those In Amalendu Sahoo’s case. In this context, we may refer the following observation of their Lordship’s of the Apex Court:-
“12. Reference in this case may be made to the decision of National Commission rendered in the case of United India Insurance Company Limited v. Gian Singh reported in 2006 CTJ 221 (CP) (NCDRC). In that decision of the National Consumer Disputed Redressal Commission (NCDRC) it has been held that in a case of violation of condition of the policy as to the nature of use of the vehicle, the claim ought to be settled on a non-standard basis. The said decision of the National Commission has been referred to buy this Court in the case of National Insurance Company Limited v. Nitin Khandelwal reported in 2008 (7) SCALE 351. In paragraph 13 of the judgment, in the case of Nitin Khandelwal (supra) this Court held:-
“..The appellant Insurance Company is liable to indemnify the owner of the vehicle when the insurer has obtained comprehensive policy for the loss caused to the insurer. The respondent submitted that even assuming that there was a breach of condition of the insurance policy, the appellant Insurance Company ought to have settled the claim on non-standard basis.”
13. In this case Nitin Khandelwal (supra) the State Commission allowed 75% of the claim of the claimant on non-standard basis. The said order was upheld by the National Commission and this Court refused to interfere with the decision of the National Commission.
14. In this connection reference may be made to a decision of National Commission in the case of New India Assurance Company Limited v. Narayan Prasad Appaprasad Pathak reported in (2006) CPJ 144 (NC). In that case also the question was, whether the insurance company can repudiate the claims in a case where the vehicle carrying passengers and the driver did not have a proper driving licence and met with an accident. While granting claim on non-standard basis the National Commission set out it in its judgment the guidelines issued by the Insurance Company about settling all such non-standard claims. The said guidelines are set out below:-
Sr. No. Description Percentage
of Settlement
- Under declaration of Deduct 3 years’
of Licensed carrying difference in
capacity premium from
the amount of claim or deduct 25% of
claim amount, whichever is higher.
- Overloading of vehicles Pay claims not
Beyond Licensed carrying exceeding 75% of
Capacity admissible claim.
- Any other breach of Pay upto 75% of
Warranty/condition of admissible claim.
Policy including limitation
as to use.
The fact of the present case are identical in the case of Amalendu Sahoo’s (Supra) where the private motor car was being driven on hire basis at the time of accident and based on surveyor report the claim was repudiated keeping in view the terms of the insurance policy according to which the use of the car for hire was not permitted. In this case admittedly the complainant had taken a comprehensive policy for the vehicle in question and, as such, keeping in view the ratio in the case of National Insurance Company Ltd. vs. Nitin Khandelwal (2008(7)SCALE 351) reiterated in the case of Amalendu Sahoo this Forum agreed to accept the claim of the complainant on non-standard basis keeping in view of the guidelines as above. The Insurance Company i.e. OPs were liable to indemnify the owner of the vehicle i.e. Complainant, when he has obtained a comprehensive policy for the loss caused to him due to the accident. No doubt there was a breach of condition of the insurance policy, the OPs ought to have settled the claim on non-standard basis which amounts to deficiency in service. The OPs cannot not repudiate the claim of the complainant in toto in case of damage of the vehicle due to accident.
On the appraisal of the pleadings and evidence adduced on the record, keeping in view of the guidelines and the facts and circumstances of this case and on the basis of the settled legal position this Forum accepted the complaint petition on non-standard basis and granted relief as reproduced above to the complaint and doth ordered that as the vehicle was insured for an amount of Rs.3,45,500/- and the complainant is entitled to the compensation on non-standard basis at 75% of the insured amount and the compensation comes to Rs.2,59,125/- for damage of the vehicle due to accident to the complainant with interest @9% per annum from the date of filing this case till the date of payment. The OPs are further directed to pay Rs.5000/- as litigation expenses to the complainant. All the above amount shall be paid to the complainant through this Forum within one month from the date of this judgment. Furnish copy of this judgment to OPs for compliance.
