New India Assurance Co. Ltd vs Pandharinath Vithal Satare

This revision petition has been filed by the petitioner New India Assurance Co. Ltd. against the order dated 23.4.2013 of the State Consumer Disputes Redressal Commission, Maharashtra, (in short 'the State Commission') passed in First Appeal No.A/11/18.

Brief facts of the case are that on 15.10.2006 the vehicle (Truck) bearing No.MH-04/H-4924 was got insured for the period of 15.10.2006 to 14.10.2007 for Rs.2,00,000/- from the New India Assurance Company vide Insurance Policy bearing No.140802/31/06/01/00009364, in the name of Mr. Pandharinath Vithal Satare. On 21.03.2007, at about 10:30 A.M. the said vehicle met with an accident. On 28.03.2008, the claim of the respondent was duly processed and after the investigation, the said claim was repudiated by the petitioner/Insurance Company on the basis of breach of Terms & Conditions of the policy. Aggrieved with the repudiation of the claim Sh. Pandharinath Vithal Satre/Complainant filed a complaint before the District Forum Maharashtra, Mumbai being Complaint No.122 of 2008. On 30.09.2010, the District Forum allowed the complaint of the complainant and directed the Insurance Company to pay a sum of Rs.90,000/- towards claim to the insured and further directed the Insurance Company to pay a sum of Rs.30,000/- on account of mental agony and Rs.10,000/- towards cost of litigation alongwith interest @10% per annum. On 23.4.2013, aggrieved with the order of the District Forum, Insurance Company preferred an appeal before the State Commission, being FA No.A/11/18. The State Commission allowed the appeal in part and directed the Insurance Company to pay 75% of admissible claim on non-standard basis.

Hence this revision petition by the opposite party/ Insurance Company.

Heard the learned counsel for the petitioner. The respondent was proceeded ex-parte vide order dated 08.11.2016 of this Commission as none appeared inspite of service of notice.

Learned counsel for the petitioner stated that the insurance claim was repudiated mainly on two grounds. First, that the driver was talking on the mobile phone, therefore, he lost the balance and truck met with an accident. This fact is borne out from the FIR, which was lodged by a person, who was also travelling in the truck. The second ground is that about 12-13 passengers were travelling in the truck, which was registered as goods vehicle. This was a clear violation of terms and conditions of the policy.

The District Forum allowed the claim for Rs.90,000/- and gave a finding that the driver was not talking on mobile phone as the person who filed the FIR has not mentioned this fact in the evidence affidavit filed by that person. The State Commission has also agreed with the order of the District Forum in this regard. The State Commission has allowed the claim @75% on non-standard basis considering the violation of condition of the policy in respect of passengers travelling in the goods vehicle. The learned counsel argued that the insurance claim even on non-standard basis cannot be allowed when any basic intrinsic condition is violated. The goods vehicle/truck is not meant for carrying 12-13 passengers. It cannot be denied that the accident might have occurred due to the fact that the driver may be sitting in a congested space due to these passengers and he was not able to control the truck, therefore, the accident might have been caused due to these passengers travelling in goods vehicle.

I have given a thoughtful consideration to the arguments advanced by the learned counsel for the petitioner and have examined the material on record. Even if the person who filed the FIR, has not narrated the fact of driver talking on mobile phone, it is clearly stated in the FIR that the driver was talking on his mobile phone and he lost the balance leading to accident. The FIR has to be treated true reflection of the facts prevailing at that time until denied. In the affidavit, this fact has not been denied, though there is no mention of the fact as well. In this condition, the averment made in the FIR cannot be treated as false statement. Accordingly, the findings of the District Forum as well as of the State Commission in this regard are erroneous and cannot be accepted.

Now coming to the question of 12-13 passengers traveling in the truck, it is seen that this is a clear violation of the Motor Vehicle Act, 1988 and consequently the violation of the conditions of the policy. The fact is that when there would be more passengers sitting in the cabin of the driver than permitted, the driver would be constrained to sit in a small place uncomfortably and this will reflect in his driving. Taking passengers in goods vehicle is a clear violation of the provisions of the Motor Vehicle Act, 1988 and because of this violation, the conditions of the policy are also violated. Clearly, this also shows a case of negligent driving as driver was talking on mobile phone while driving the truck. In these circumstances, even the award of insurance claim on non-standard basis (75% of the claim) is not justified, however, as the loss has occurred and the policy was valid at the time of accident, insurance claim can be considered in the light of the judgment of the Hon'ble Supreme Court in Amalendu Sahoo Vs. Oriental Insurance Co. Ltd., II (2010) CPJ 9 (SC), wherein the Hon'ble Supreme Court has allowed the insurance claim up to 75% on violation of conditions of the policy/condition of permit. As atleast two conditions have been violated in the present case, in my view the claim cannot be considered for more than 50% of the award made by the District Forum.

Based on the above discussion, the order of the State Commission is modified to the extent that insurance claim should be settled for 50% of the awarded amount by the District Forum. Accordingly, the Insurance Company is directed to pay only Rs.45,000/- (rupees forty five thousand only) to the complainant along with interest @ 5%p.a. from the date of the order of the District Forum i.e. 30.9.2010. The revision petition is accordingly disposed off.