As regards liability of the Insurance Company to indemnify the loss to the Complainants due to damage caused to the insured vehicle in an accident, the only question that arises for our consideration is as to whether the Insurance Company has established beyond doubt the fact that at the relevant time of accident the insured vehicle was used in breach of policy conditions in respect of limitation as to use. It is the contention of the insurance company that the vehicle involved in the accident was used to carry passengers on rental basis against the provisions of the Motor Vehicles Act and terms and conditions mentioned in the concerned insurance policy. To support this contention the Insurance Company relied upon statements of certain persons recorded by police authorities. However, such statements loose their evidentiary value since those were not tendered in evidence as contemplated under Section-13(4) of the Consumer Protection Act, 1986. Unless such statements were tendered in evidence or unless affidavits of those persons were filed, it was wrong on the part of the District Forum to uphold the version of the Insurance Company and to dismiss the complaint of the Complainants relying upon such bare statements. Thus, the finding recorded by the District Forum is bad, illegal and cannot be supported.
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Smt. Savitri Dattatraya Powar and Others Vs. Divisional Officer, National Insurance Co. Ltd.
Court : Maharashtra - State Consumer Disputes Redressal Commission (SCDRC) - Mumbai
Judge : HONOURABLE MR. JUSTICE S.B. MHASE PRESIDENT, HONOURABLE MR. DHANRAJ KHAMATKAR MEMBER & HONOURABLE MR. NARENDRA KAWDE MEMBER
Decided On : Jan-21-2013
Case Number : First Appeal No. 827 of 2007 & 828 of 2007 (Arisen out of Order Dated 12/05/2007 in Case No. 223 & 224/2006 of District Kolhapur)
Citation; 2014 (2) ALL M R(JOURNAL) 61
Both these appeals are filed by same Appellants against the same Respondent challenging a common order dated 12/5/2007 passed by the District Forum, Kolhapur in two consumer complaints bearing Nos.223 of 2006 and 224 of 2006. Since these appeals involve identical facts and common question of law for adjudication both these appeals are disposed of simultaneously by this common judgment and order.
[2] Smt. Savitri Dattatraya Powar and Smt. Laxmi Dattatraya Powar, who are the Appellants Nos.1 and 2 herein respectively and who were the original Complainants Nos.1 and 2 respectively in the two consumers filed before the District Forum, both are widows of Late Mr. Dattatraya Keshav Powar, while the Appellant No.3/original Complainant No.3, Mr. Gautam Dattatraya Powar is the son of deceased Mr. Dattatraya Keshav Pawar. (Hereinafter all the Appellants shall be collectively referred to as ‘the Complainants’) Late Mr. Dattatraya Keshav Pawar had insured his vehicle ‘10 seater Toyota Qualis’ bearing RTO Registration No.MH-24-C-2777 with the Respondent/original Opponent, National Insurance Company Ltd. (hereinafter referred to as ‘the Insurance Company’ for the sake of brevity) under ‘Private Car Policy B Package’ bearing policy No.270801/31/04/6114874. The policy was valid through the period from 11/2/2005 to 10/2/2006. The Insured Declared Value (IDV) of the vehicle was `3,00,000/-. Under the same insurance policy a compulsory personal accident insurance cover was extended to the driver of the insured vehicle to the extent of `2,00,000/- on accepting premium of `100/-.
[3] On 24/4/2005 viz. during the validity of the insurance policy, while Mr. Dattatraya Keshav Pawar was driving the insured vehicle, it met with an accident on Miraj – Pandharpur Road. In the said accident driver Mr. Dattatraya Keshav Powar succumbed to injuries and died. The Complainants lodged two claims with the Insurance Company. First claim was pertaining to personal accident cover extended to the driver under the insurance policy while for the second claim the Complainants called upon the Insurance Company to indemnify the loss caused due to damage sustained to insured vehicle in the accident. However, both these claims were repudiated by the Insurance Company for the only reason that the insured vehicle was used in breach of policy conditions in respect of limitations as to use. Feeling aggrieved thereby, the Complainants preferred to consumer complaints before the District Forum. By filing Consumer Complaint No.223 of 2004, the Complainants claimed an amount of `2,00,000/- from the Insurance Company towards personal accident claim arising from the death of Late Mr. Dattatraya Keshav Pawar, whereas by filing Consumer Complaint No.224 of 2004, the Complainant claimed from the Insurance Company an amount of `2,35,000/- towards indemnification of loss sustained due to damage to the insured vehicle in the accident. In both these complaints, the Complainants also claimed incidental relief of compensation and costs.
[4] The Insurance Company filed its written version in both these complaints and justified the repudiation inter-alia contending that the vehicle involved in the accident was used to carry passengers on rental basis against the provisions of the Motor Vehicles Act and terms and conditions mentioned in the concerned insurance policy.
[5] The District Forum upholding the contention raised by the Insurance Company held that there was no deficiency in service on the part of the Insurance Company and dismissed both these consumer complaints by a common order dated 12/5/2007. Feeling aggrieved by the impugned orders, the original Complainants preferred these two appeals.
[6] Heard Adv. Jayant Bardeskar on behalf of the Appellants/original Complainants. No one appeared on behalf of the Respondent/Insurance Company.[7] Fact of insurance cover is not in dispute. Similarly, the fact that the insured vehicle met with an accident during the validity of the insurance policy is also not in dispute. It is also not in dispute that at the time of accident Late Mr. Dattatraya Keshav Powar was driving the ill-fated insured vehicle. The accident was fatal leading to death of the driver and damaging the insured vehicle. Since the driver, Mr. Dattatraya Keshav Powar met with an accidental death the question as to whether the insured vehicle was used in breach of terms and conditions incorporated in the insurance policy is not at all relevant because a separate personal accident cover to the extent of `2,00,000/- was extended to the driver in order to meet the contingency of death of the driver in an accident. Therefore, upon accidental death of the driver this amount becomes due and payable and the District Forum has wrongly held that in refusing to pay this amount to the Complainants, there is no deficiency in service on the part of the Insurance Company. By repudiating the genuine claim of the Complainants on this count without proper application of mind, certainly there is deficiency in service on the part of the Insurance Company. Thus, the order passed by the District Forum is bad, illegal and cannot be supported. Insurance Company will have to pay this amount to the Complainants.
[8] As regards liability of the Insurance Company to indemnify the loss to the Complainants due to damage caused to the insured vehicle in an accident, the only question that arises for our consideration is as to whether the Insurance Company has established beyond doubt the fact that at the relevant time of accident the insured vehicle was used in breach of policy conditions in respect of limitation as to use. It is the contention of the insurance company that the vehicle involved in the accident was used to carry passengers on rental basis against the provisions of the Motor Vehicles Act and terms and conditions mentioned in the concerned insurance policy. To support this contention the Insurance Company relied upon statements of certain persons recorded by police authorities. However, such statements loose their evidentiary value since those were not tendered in evidence as contemplated under Section-13(4) of the Consumer Protection Act, 1986. Unless such statements were tendered in evidence or unless affidavits of those persons were filed, it was wrong on the part of the District Forum to uphold the version of the Insurance Company and to dismiss the complaint of the Complainants relying upon such bare statements. Thus, the finding recorded by the District Forum is bad, illegal and cannot be supported. In repudiating the claim of the Complainants under the insurance policy toward damage caused to the insured vehicle in the accident, there is deficiency in service on the part of the Insurance Company. On similar set of facts, Their Lordships of the Apex Court in the case of Amalendu Sahoo Vs. Oriental Insurance Company Ltd. ~ II-(2010)-CPJ-9-(SC), relying upon the decision of the Hon’ble National Commission in the case of United India Insurance Company Limited Vs. Gian Singh ~ II-(2006)-CPJ-83-(NC) and in the case of New India Assurance Company Limited Vs. Narayan Prasad Appaprasad Pathak ~ II-(2006)-CPJ-144-(NC) and also, previous decision of the Apex Court in the case of National Insurance Company Limited Vs. Nitin Khandelwal ~ IV-(2008)-CPJ-1-(SC), directed the Insurance Company therein to settle the claim at 75% of the admissible claim. Keeping these observations at the back of our mind, we direct the Insurance Company to settle the insurance claim of Complainants at 75% of the Insured Declared Value (IDV) of `3,00,000/-, which comes to `2,25,000/-.
[9] Thus, to sum up, the Insurance Company is liable to pay to the Complainants, an amount of `2,00,000/- towards settlement of personal accident claim arising out of accidental death of Late Mr. Dattatraya Keshav Powar and `2,25,000/- towards indemnification for damage caused to the insured vehicle in the accident. In fact, these amounts were immediately payable on the happening of the accident. However, for such flimsy reasons, supra, the Insurance Company avoided making payment of these amounts to the Complainants. Not only that the Complainants are deprived of these amounts. Thus, it will be just and proper to award interest on these amounts at a reasonable rate of 9% p.a., as from the date of repudiation i.e. 27/3/2006 till its realization by the Complainants. We hold accordingly and pass the following order:-ORDER
(i) Appeals bearing Nos.827 of 2007 and 828 of 2007 are hereby partly allowed.
(ii) Impugned common order dated 12th May, 2007 passed by the District Forum, Kolhapur in Consumer Complaints Nos.223 of 2006 and 224 of 2006 is hereby quashed and set aside. Consequently, both these consumer complaints are partly allowed.
(iii) Respondent/original Opponent, National Insurance Company Limited is directed pay to the Appellants/original Complainants an amount of `2,00,000/- towards settlement of personal accident insurance claim arising out of death of Mr. Dattatraya Keshav Powar.
(iv) Respondent/original Opponent, National Insurance Company Limited is directed to pay to the Appellants/original Complainants an amount of `2,25,000/- towards settlement of insurance claim arising out of ‘Private Car Policy B Package’ in respect of damage caused to the insured vehicle in the accident.
(v) Respondent/original Opponent shall pay the amounts, as ordered here-in-above, to the Appellants/original Complainants together with interest thereon @ 9% p.a., as from 27th March, 2006 within forty-five days from the date of this order and failing which additional interest @ 6% p.a., shall have to be paid on these amounts till till realization.
(vi) Rests of the claims of the Appellants/original Complainants stands rejected.
(vii) No order as to costs.
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