The Oriental Insurance Company Limited Branch Office Vs. Birendra Prasad - Court Judgment

B.C. Kandpal, President:

1. This appeal, under Section 15 of the Consumer Protection Act, 1986, is directed against the order dated 05.06.2012 passed by the District Forum, Tehri Garhwal in consumer complaint No. 20 of 2008, whereby the District Forum has allowed the consumer complaint and directed the appellant “ opposite party to pay sum of Rs. 1,38,000/- to the respondent “ complainant together with interest @6% p.a. from 05.10.2006 till payment.

2. Briefly stated, the facts of the case as mentioned in the consumer complaint, are that the complainant is the registered owner of vehicle No. UA-09-5354, which was insured with The Oriental Insurance Company Limited for the period from 27.02.2006 to 26.02.2007. On 14.07.2006, the said vehicle met with an accident at a place about 2 kms. from Devprayag. The complainant submitted an estimate of repairs to the tune of Rs. 3,23,709/-. However, the claim lodged by the complainant was repudiated by the insurance company vide letter dated 24.10.2007. Alleging deficiency in service on the part of the insurance company, the complainant filed a consumer complaint before the District Forum, Tehri Garhwal.

3. The insurance company filed written statement before the District Forum and pleaded that the seating capacity of the vehicle was five, whereas in the accident, three persons died and four sustained injuries; that as per the registration certificate of the vehicle, the seating capacity of the vehicle was six in all including driver, whereas at the time of the accident, seven persons were sitting in the vehicle; that the claim of the complainant was rightly repudiated and that there is no deficiency in service on their part.

4. The District Forum, on an appreciation of the material on record, allowed the consumer complaint vide impugned order dated 05.06.2012 in the above manner. Aggrieved by the said order, the insurance company has filed this appeal.

5. We have heard the learned counsel for the parties and have also perused the record.

6. In the accident in question, three persons died and four sustained injuries. Thus, at the time of the accident, seven persons were sitting in the vehicle. The registered permissible capacity of the vehicle was six in all including driver. Thus, the vehicle was overloaded by only œone? person and it can not be said that the vehicle was overloaded to a huge extent and the cause of the accident can not be attributed to the overloading of the vehicle and the same is also evident from the survey report dated 31.08.2006 of Sh. R.K. Mankad, surveyor / assessor and investigator.

7. However, since the vehicle was overloaded at the time of the accident and hence some deduction should be made from the amount found payable to the complainant and in the present case, we are of the view that deduction @15% on account of overloading of the vehicle, would be just and proper.

8. So far as the quantum is concerned, Navneet and Company in their letter dated 05.10.2006 written to the insurance company, have stated that they have thoroughly studied the report dated 31.08.2006 of Sh. R.K. Mankad and in the conclusion, they have stated that the insured “ complainant is ready to accept the claim on cash loss basis at Rs. 1,38,000/-. From the perusal of the impugned order, it is also evident that the complainant has given his consent for the said sum. However, 15% deduction has to be made from the said amount on account of overloading of the vehicle at the time of the accident and by deducting the amount of Rs. 20,700/- (15% of Rs. 1,38,000/-), the complainant is entitled to Rs. 1,17,300/-. The interest awarded by the District Forum @6% p.a. is just and proper. However, we are of the view that the complainant is entitled to interest from the date of filing of the consumer complaint and not from 05.10.2006, as was directed by the District Forum. Thus, the appeal succeed partly and is to be allowed accordingly.

9. For the reasons aforesaid, appeal is partly allowed. Order impugned dated 05.06.2012 passed by the District Forum is modified and the appellant is directed to pay sum of Rs. 1,17,300/- to the respondent together with interest @6% p.a. from the date of filing of the consumer complaint till payment. No order as to costs.