Judgment:
Surjit Singh, President:
Oral:
1. By this order we are disposing of two appeals the titles and particulars thereof are given in the title of this order. Both the appeals arise out of the same order, i.e. order dated 18.06.2010 of Learned District Consumer Disputes Redressal Forum, Solan and, therefore, they are being disposed of by common order.
2. Shri Tula Ram, appellant in F.A. No.271/2010 (hereinafter referred to as complainant) owned a Mahindra Pickup Van No.HP-16-0732. He got it insured with M/s Bajaj General Insurance Company Limited, appellant in Appeal No.311/2010 (hereinafter referred to as opposite party), against âown damage in the sum of Rs. 1,90,000/-. The aforesaid amount was the value of the vehicle declared by the complainant himself. Vehicle met with an accident on 16.02.2008 and was extensively damaged. Accident was reported to opposite party by the complainant. A Surveyor was deputed by the opposite party, who assessed the loss at Rs. 78,010/-. Appellant was not satisfied with the assessment done by the Surveyor of opposite party. According to him, the vehicle had been totally damaged in the accident and, therefore, he was entitled to the entire amount for which, the vehicle had been insured. Opposite party did not pay, even the amount of Rs. 78,010/- assessed by its Surveyor and repudiated the claim on the ground that the vehicle at the time of accident was being driven by a son of the complainant, named Varinder Kumar, who did not possess a valid and effective driving licence and also because the number of passengers on board the vehicle, at the time of accident was in excess to the limit prescribed in the registration certificate, as also in the insurance policy.
3. Complainant, then filed a complaint, under Section 12 of Consumer Protection Act, seeking issuance of a direction to the opposite party to pay the entire amount of insurance money. Complaint was contested by the opposite party. Grounds raised were the same as mentioned in the letter of repudiation, viz. the vehicle was being driven by a person not possessing a valid and effective driving licence and number of persons on board was excess of the limit prescribed in registration certificate.
4. Learned Forum below vide impugned order, held that the vehicle was being driven not by Varinder Kumar, the son of the complainant, but one Om Parkash, who had been employed by the complainant to drive the truck. Learned Forum has not even touched the issue of number of persons travelling in the vehicle being in excess of the limit prescribed in registration certificate. With the finding that the vehicle was being driven by duly licensed person, complaint has been allowed and the opposite party directed to pay Rs. 78,010/-, the amount assessed as damage to the vehicle by the Surveyor of opposite party, with interest at the rate of 9% per annum from the date of complaint, till the payment of aforesaid amount of money and also to pay Rs. Â 1500/- as costs.
5. Complainant is aggrieved, so far as the quantum of money ordered to be paid on account of insurance claim, is concerned. Opposite party is aggrieved by the finding and order that it is liable to pay the amount assessed by its Surveyor.
6. We have heard the learned counsel for the parties and gone through the record.
7. It is submitted on behalf of opposite party that the vehicle was being driven by Varinder Kumar, a son of the complainant and said Varinder Kumar was not holding any licence to drive the vehicle at the relevant time. We find no legal evidence on record in support of this submission. Copy of FIR, on which the reliance is placed by the learned counsel for the opposite party shows that the lodger of FIR gave out the name of the person driving the vehicle as Varinder Kumar, on the basis of information made available to him by other persons present at the site of the accident. He did not know the person driving the vehicle himself. Next document, on which the learned counsel places reliance, is Surveyors report. Report of the Surveyor is Annexure R-5. The report is authored by Shri Umesh Kumar Sood. As per this report, investigation conducted by some Alok Ranjan indicated that the vehicle was being driven by Varinder Kumar, the son of the complainant. Investigation report of said Alok Ranjan has not only been proved, but the same is even not available on record. So this report also does not come to rescue of the opposite party.
8. Next submission made on behalf of opposite party is that there were more than three persons on board the vehicle at the time, when accident took place, but as per registration certificate, not more than three persons, including the driver could have been on board the vehicle at a time. Learned counsel draws our attention to the registration certificate Annexure P-2, in which seating capacity of the vehicle is recorded as â3â. He also refers to insurance policy Annexure P-7, in which seating capacity is written as â2â. It appears that seating capacity mentioned in policy Annexure P-7 excludes the driver, because in registration certificate, seating capacity is recorded as â3â.
9. At the time of accident, there were five persons on board the vehicle, as is made out from Annexure R-3, the claim form submitted by the complainant. The form is duly signed by him. He does not deny in the complaint or the rejoinder or in his affidavit tendered by way of evidence, the signature on this form. Also, there is another document in the form of writing by him. The same is Annexure R-4. This writing also shows that at the time, when accident took place, there were five persons, three inside the cabin and two in the body of the vehicle. The fact that the vehicle was overloaded in the sense that there were more persons on board it, than permitted to travel, at a time would, however, not render the complainants claim liable to outright rejection. This is a case of breach of condition of policy and this is not a fundamental or basic breach of law. Therefore, the complainant would be entitled to insurance money, by his claim being treated as ânon-standardâ in terms of General Regulations on general insurance. When the claim is treated as ânon-standardâ, 75% of the assessed amount of loss is paid to the claimant.
10. So far as the complainants plea for directing the opposite party to pay the whole of the insurance money is concerned, suffice it to say that we find no material on record in support of his plea that this was a case of total loss. The value of the vehicle as declared by the complainant at the time of insurance was at Rs. 1,90,000/-. This was the depreciated value of the vehicle. The cost of replacement of damaged parts of the vehicle, as per Surveyors report Annexure R-5, was Rs. 1,11,768/-. Since this was the value of brand new spare parts, the Surveyor rightly reduced this amount by 40%, on account of depreciation, so far as the metallic parts are concerned and 50%, so far as non-metallic parts are concerned. The total amount, he has worked out after cut on account of depreciation comes to Rs. 78,010/-. On account of treatment of the claim as ânon-standardâ, this amount is required to be reduced to 75% and thus the amount to which the complainant is entitled comes to Rs. 58,508/-.
11. In view of the above discussion, appeal filed by the complainant is dismissed, appeal filed by the opposite party is partly allowed and the amount by which the opposite party is now to indemnify the complainant is reduced from Rs. 78,010/-, (as ordered by the Learned District Forum) to Rs. 58,508/-. There is no change, so far as other directions regarding payment of interest and costs are concerned.
12. This order shall be placed on the record of F.A. No.271/2010, titled as Tula Ram versus M/s Bajaj Allianz General Insurance Company Limited and its one authenticated copy, shall be placed on the record of the F.A. No.311/2010, titled as M/s Bajaj Allianz General Insurance Company Limited versus Tula Ram.
13. One copy of this order be sent to each of the parties, free of cost, as per Rules.