ICICI LOMBARD GENERAL INSURANCE COMPANY LTD vs URBAI

HEARD Mr. S. B. Keshwani, learned Advocate for the applicant and Mr. D. H. Rawal, learned Advocate for respondent No. 1. Respondent No. 2 served, absent.

BY this application delay of 125 days caused in filing the appeal under Section 15 of the Consumer Protection Act, 1986 is sought to be condoned. We have heard the submissions advanced by the learned Advocates appearing for the parties and also perused the impugned judgment. In our opinion before we consider the question of condonation of delay it would be appropriate to consider the prima facie merit, if any, in the appeal so that the exercise of condonation of delay is not rendered an exercise in futility.

It is suggested that Adambhai Rasulbhai Mansuri, husband of the complainant was covered under the Khedut Accidental Vima Yojna being an agriculturist. This was a group insurance policy obtained by the State of Gujarat and issued by the present applicant (original opponent No. 2 ). The said insurance policy was for the period 26. 1. 2003 to 25. 1. 2004; that on 9. 9. 2004 Adambhai Rasulbhai Mansuri was travelling in an Auto-rickshaw No. GJ-7-W 5580 on Express Highway ROV-6; that the said Auto-rickshaw met with an accident near Khatraj Cross Road as there was a collusion with motor truck No. GRY-3606; that the said Adambhai Rasulbhai Mansuri sustained serious injuries and succumbed to the same in the hospital on 14. 9. 2004; that Urbai Adambhi Mansuri wife of the deceased Adambhai Rasulbhai Mansuri lodged claim with the opponent Insurance Company claiming benefits of the aforesaid group insurance policy; that her claim came to be repudiated by the opponent Insurance Company on the ground that the vehicle i. e. Auto-rickshaw in which Adambhai R. Mansuri was travelling was overloaded with the passengers more than its capacity and, therefore, the complaint came to be filed before the learned Ahmedabad City Consumer Disputes Redressal Forum which came to be partly allowed directing opponent No. 2 (present appellant) to pay Rs. 1,00,000 to the complainant (present respondent) with 9% interest from 31. 1. 2005 and also awarding cost of the complaint quantified at Rs. 2,000.

IT is submitted by Mr. S. B. Keshwani, learned Advocate for the applicant that there is a breach of the policy and, therefore, the complainant (respondent No. 1) would not be entitled to the benefits under insurance policy. It is further contended that as the Auto-rickshaw was overloaded the claim cannot be justifiably granted. It is not disputed that Adambhai Rasulbhai Mansuri was travelling in an Auto-rickshaw which met with an accident as afore-stated and Adambhai sustained injuries and succumbed to the same. It is contended by Mr. Keshwani, learned Advocate for the applicant that the Auto-rickshaw in which Adambhai was travelling was overloaded with the passengers more than its capacity. There is nothing to show that Adambhai was a last passenger to enter Auto-rickshaw which was overloaded with the passengers more than its capacity. In other words, who overloaded the Auto-rickshaw? Certainly the deceased cannot be held responsible for overloading the Auto-rickshaw and, therefore, breach, if any, of the policy would be either by the driver or by the owner of the Auto-rickshaw whosoever is concerned.

MR. Keshwani has relied on the decision reported in IV (2006) CPJ 396 (NC) and II (2005) CPJ 689 and a decision in First Appeal No. 138/2002 by the Hon''ble National Commission. Both the above decisions pertained to the claim in respect of the damages caused to the vehicle, in other words, own damage claim for damages. In the instant case the deceased was one of the passengers in the Auto-rickshaw. As far as the principle enunciated in the above references is concerned there can be no dispute that the overloading for taking more passengers in a vehicle would be a breach of the policy. In our opinion, looking to the facts the principle enunciated by the Hon''ble National Commission would be of no assistance to the present applicant. All what is required to be seen in a case like this is whether the deceased was covered under the insurance policy or not and whether the death is accidental death or not. In the instance case both these facts are amply established looking to the impugned order and also fairly not disputed by the learned Advocate for the applicant. In view of the above we do not find any prima facie merit in the appeal and, therefore, the question of condonation of delay becomes insignificant since condonation of delay in filing the appeal would be nothing but an exercise in futility. In the result, for want of prima facie merit in the appeal, this application seeking condonation of delay caused in filing the appeal is dismissed.

IT is submitted by Mr. Keshwani learned Advocate for the applicant that pursuant to the order dated 19. 10. 2007 an amount of Rs. 50,000 has been deposited in this CMA in the Registry of this Commission and in view of the aforesaid order of dismissal of this application the said amount be refunded to the applicant.

REGISTRY of the Commission is directed to verify the deposit of Rs. 50,000 pursuant to the order dated 19. 10. 2007 and if the said amount is found to have been deposited by the applicant then the same be paid/refunded to the applicant with interest, if any accrued, thereon, by A/c payee cheque drawn in the name of the present applicant, ICICI Lombard General Insurance Co. Ltd. The said cheque be handed over to Mr. Keshwani, learned Advocate for the applicant for being handed over to the applicant. Appeal dismissed.