BEFORE TELANGANA STATE CONSUMER DISPUTES REDRESSAL COMMISSION: AT HYDERABAD
F.A.No. 1230 OF 2013 AGAINST C.C.NO.738 OF 2010 DISTRICT CONSUMER FORUM HYDERABAD-II
Between
M/s IFFCO-TOKIO General Insurance Co.,Ltd.,
8-1-1, 2nd floor, Opp: Clock Tower
Above Sony World, SD Road,
Secunderabad-003
Appellant/complainant
A N D
Syed Nahim S/o Syed Amin
Aged about 55 yars, Occ: Business
H.No.4-25, Ghanpur, Toopran
Medak District
Respondent/complainant
Counsel for the Appellant Sri N.Mohan Krishna
Counsel for the Respondent Sri K.Jawahar
QUORUM :
HON’BLE SRI JUSTICE B.N.RAO, PRESIDENT
&
SRI PATIL VITHAL RAO, MEMBER
TUESDAY THE TWENTY EIGHT DAY OF MARCH
TWO THOUSAND SEVENTEEN
Oral Order : (per Hon’ble Sri Justice B.N.Rao Nalla, Hon’ble President)
***
This appeal is directed against the order dated 12.03.2013, passed by District Forum-II, Hyderabad in CC No.738 of 2010. By the impugned order, the complaint has been partly allowed and the appellant/opposite party (O.P.) has been directed to pay a sum of Rs.56,250/- towards damages of the vehicle with interest @ 9% p.a together wth compensation of Rs.10,000/- and costs of Rs.2,000/-.
2. The brief facts as stated in the complaint are that the complainant got his vehicle insured with the opposite party insurance company on 10.06.2008 by paying the requisite premium. While so, on 10.04.2009 the vehicle of the complainant met with an accident due to which the vehicle was extensively damaged. The complainant intimated the said accident to the opposite party in turn the opposite party has deputed the surveyor. An estimate for repairs was prepared for an amount of Rs.95,296/-. But the opposite party repudiated the claim even though the complainant submitted all the relevant documents.
3. The opposite party resisted the case contending that the complainant failed to produce the driving license of the driver of the vehicle to prove that the driver had valid driving license. Further, the vehicle was carrying 9 persons against the seating capacity of 4 persons which violates the terms and conditions of the policy. Therefore the opposite party justified its action of repudiation and prayed for dismissal of the appeal.
4. The complainant has filed his affidavit and got Exs.A1 and A2 marked. While on behalf of the opposite party, its Deputy General Manager filed his affidavit and got Ex.B1 to B6 marked.
5. The Dist. Forum after considering the evidence placed on record opined that even if the driver did not have a proper license or carrying more passengers other than the limit the insurance company is liable to pay upto 75% of the admissible claim and allowed the complaint directing the opposite party to pay Rs.56,250/- with interest @ 9% per annum from the date of complaint till realization together with compensation of Rs.10,000/- and costs of Rs.2,000/-
6. Feeling aggrieved with the said order the opposite party preferred the appeal contending that at the time of accident the vehicle was carrying 9 persons against the seating capacity of four and this amounts to clear violation of permit. More over the at the time of accident the driver of the vehicle was not having valid driving license. The surveyor assessed the damages at Rs.60,000/- It is obligatory on the part of the insured to produce his driving license along with the claim form to the opposite party.
7. The counsel for the complainant has filed written arguments
8. The point that arises for consideration is whether the order of the Dist. Forum is vitiated by mis-appreciation of fact or law?
9. The complainant, insured his vehicle bearing , with the appellant/ opposite party, paying required premium of for the period from 18.06.2008 to 17.06.2009 is not under challenge before us. It is also an admitted fact that the vehicle met with an accident at Gajwal-Toopran road , during the currency of the policy. The vehicle owner, after informing the accident made claim with the opposite party and in turn the opposite party appointed a surveyor who submitted the estimate at Rs.60,965/-. The opposite party repudiated the claim on the grounds that at the time of accident the driver of the vehicle was not having valid driving license and also the vehicle was carrying 9 passengers against the seatig capacity of 4 which violates the terms and conditions of the policy.
10. Ex.B3 is the copy of Certificate of Registration issued by RTO, Siddepet show that the vehicle is in the name of the complainant and insured with the opposite party. Ex.B4 is the copy of FIR No.72/2009 dated 10.04.2009 wherein the Sarpacnh Dara Yadagiri has complained to the police stating that on 10.04.2009 at 12.00 p.m. at Gajwel – Toopran Road, the driver of the lorry bearing No.AP 23U 9269 coming in rash and negligent manner dashed the complainant’s vehicle bearing Auto No.AP 23U 8873 resulting which the inmates in the vehicle three of them were known to the witness along with other 7 members were died. From the above FIR it is clear that there were total 9 passengers in the vehicle against the seating capacity of 4. Further, the surveyor in his report dated 30.06.2009 stated that the driver of the vehicle is not having driving license as per FIR.
11. In National Insurance Co.Ltd. v. Swaran Singh, the Hon’ble Supreme Court has observed as under:
62. the proposition of law is no longer res integra that the person who alleges breach must prove the same. The insurance company is, thus, required to establish the said breach by cogent evidence. In the event the insurance company fails to prove that there has been breach of conditions of policy on the part of the insured, the insurance company cannot be absolved of its liability. (See Sohan Lal Passi, 1996 ACJ 1044 (SC).
((i)**********
(ii) **************
(iii)**************
(iv)The Insurance companies are, however, with a view to avoid their liability must not only establish the available defence(s) raised in the said proceedings but must also establish 'breach' on the part of the owner of the vehicle, the burden of proof wherefor would be on them.
(v)The court cannot lay down any criteria as to how said burden would be discharged, inasmuch as the same would depend upon the facts and circumstances of each case.
12. Though at the time of accident, the vehicle carrying 9 passengers against the seating capacity of four but the accident was infact caused on account of the rash and negligent driving of the offending vehicle by its driver, against whom a criminal case vide FIR no. 72 of 2009 was registered for the offences referred to under the provisions of the 304(A) of IPC.
13. However, the Hon'ble Supreme Court of India in Civil Appeal No. 2703 of 2010 "Amalendu Sahoo Vs. Oriental Insurance Co. Ltd.", decided on 25.3.2010 held in paras No. 12 to 15 as follows:-
"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 Singhreported in 2006 CTJ 221 (CP) (NCDRC). In that decision of the National Consumer Disputes 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 by 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 the case of 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 ofNew 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 in its judgment the guidelines issued by the insurance company about settling all such non-standard claims. The said guidelines are set out below:-
S.No. | Description | Percentage of settlement |
(i) | Under declaration of licensed Carrying capacity | Deduct 3 years difference in premium from the amount of claim or deduct 25% of claim amount whichever is higher. |
(ii) | Overloading of vehicles beyond licensed carrying capacity | Pay claims not exceeding 75% of admissible claim. |
(iii) | Any other breach of warranty/condition of policy including limitation as to use. | Pay up to 75% of admissible claim. |
14. From a perusal of the aforesaid guidelines it is clear that one of the cases where 75% claim of the admissible claim was settled was where condition of policy including limitation as to use was breached.
15. Further our Hon'ble National Commission in a judgment "National Insurance Company Limited Vs. Jaswant Singh", 2013 (2) CPC 297 (NC), relying upon the Hon'ble Supreme Court held that permit for plying of vehicle has no connection with the case of accident and the claim on non-standard basis by paying 75% of assessed claim with interest is payable.
16. The Surveyor and Loss Assessor submitted the report Ex.B-5 which Net labour charges were assessed at Rs.4800/- under (A), Parts with Nil Deprecion wre assessed at Rs.1,855/- under (B) and Parts with normal depreciation were assessed at Rs.57,288/- under (C), Parts with 50% depreciation were assessed at Rs.3,251/- under (D) total (A)+(B)+(C)+(D) equal to Rs.67,194/- less salvage is Rs.5,729 and less excess tariff is Rs.500/- and net claim amount payable was Rs.60,965/- and the Net Assessed Loss was given as Rs.60,965/- and the complainant is entitled to 75% of the loss assessed by the surveyor i.e. Rs.60,965/- i.e., Rs.45,723.75.
17. The Supreme Court held that the compensation to be awarded is to be fair and reasonable. In Charan Singh vs Healing Touch Hospital and others 2000SAR(Civil) 935 the Apex Court stressed the need of balancing between the compensation awarded recompensing the consumer and the change it brings in the attitude of the service provider. The Court held While quantifying damages , consumer forums are required to make an attempt to serve ends of justice so that compensation is awarded, in an established case, which not only serves the purpose of recompensing the individual, but which also at the same time aims to bring about a qualitative change in the attitude of the service provider. Indeed calculation of damages depends on the facts and circumstances of each case. No hard and fast rule can be laid down for universal application. While awarding compensation, a Consumer Forum has to take into account all relevant factors and assess compensation on the basis of accepted legal principles, on moderation. It is for the Consumer Forum to grant compensation to the extent it finds it reasonable, fair and proper in the facts and circumstances of a given case according to established judicial standards where the claimant is able to establish his charge.
18. The interest awarded by the District Forum is clearly by way of compensation for the suffering caused to the complainant by repudiation of the claim on insufficient grounds. We are therefore constrained to have to reject compensation of Rs.10,000/- awarded by the District Forum.
In the result the appeal is allowed by modifying the order of the District Forum and directed the opposite party to pay Rs.45,723.75 (75% of Rs.60,965/-) with interest @ 9% per annum from the date of the complaint till realization together with costs of Rs.2,000. Time for compliance four weeks.
PRESIDENT MEMBER
Dated: 28.03.2017
