First Appeal No.363 of 2011

6th April, 2015.

Petitioner Counsel: S.S. JINSIWALE
Respondent Counsel: S.S. INAMDAR

Cases Cited:
B.V. Nagaraju Vs. Oriental Insurance Co. Ltd., 1996 ACJ 1178 (SC) [Para 14]
Amalendu Sahoo Vs. Oriental Insurance Co. Ltd., 2010 ALL SCR 814=2010 ACJ 1250 [Para 14]
The General Assurance Society Ltd. Vs. Chandmull Jain & Anr., 1966 ACJ 267 [Para 14]
National Insurance Co. Ltd. Vs. Nitin Khandelwal, 2008(3) ALL MR 875 (S.C.)=2008 ACJ 2035 (SC) [Para 14]

JUDGMENT

Mrs. USHA S. THAKARE, Hon'ble President :- Being aggrieved by the order passed in consumer complaint bearing no.586/09 by District Consumer Disputes Redressal Forum, Solapur on 06/01/2011, original opponent, The New India Assurance Co.Ltd. has filed present appeal.

2. By the order under challenge the learned District Forum has directed the opponent/present appellant to pay an amount of Rs.7,73,750/- with interest @9% p.a. from 21/10/2008 till realizations of amount. The opponent/appellant is further directed to pay an amount of Rs.2,000/- towards costs to the complainant/consumer. The opponent was further directed to pay the amounts as per direction within 30 days from the date of the order.

3. Facts giving rise to the appeal are as under:-

The respondents/complainants had filed consumer complaint bearing no.586/09 against the insurance company for claiming the amount covered under the insurance policy with interest, compensation for mental harassment and costs of the litigation. According to the complainants, deceased Uttam Shankar Shinde had purchased a tanker bearing registration no.MH-45-0110 for transporting milk. Said tanker was insured with the opponent vide insurance policy No.151300/31/05/03632. Insurance policy was valid for the period from 05/08/2005 to 04/08/2006. Insurance policy was comprehensive policy. On 26/06/2006, deceased Uttam was going to Mumbai by said tanker along with milk. Said tanker met with an accident on Pune-Mumbai Express Highway. Uttam died in said accident. Tanker was totally damaged. Complainants, who are the legal heirs of the deceased, filed an application with the opponent/insurance company along with necessary documents. Claim form was submitted and amount of insurance was claimed. However, opponent/insurance company denied the claim by letter dated 21/10/2008. Tanker was totally damaged and it was beyond repairs. Deceased Uttam had purchased the tanker availing finance from finance company. The opponent denied the claim filed by the complainants. Opponents are guilty for deficiency in service. Therefore, the complainants have filed consumer complaint before the District Forum, Solapur.

4. The insurance company had denied the complaint by filing written statement. It is admitted that MH 45 0110 was insured by the insurance company for the period 05/08/2005 to 04/08/2006. The tanker was goods vehicle and it was insured under Goods Carrying Commercial Package Insurance. While issuing the policy, certain conditions were imposed. The insured tanker met with an accident on 26/06/2006. After getting the information of the accident, surveyor was appointed. Surveyor, Utpal Sharma did survey of spot. The officer of the company, namely, Pratap Deshmukh, did investigation. During investigation, it was revealed that deceased Uttam was carrying 4 passengers through tanker illegally. As per registration certificate, only tanker driver was allowed to travel through tanker. In contravention of the registration and permit, 5 persons were illegally travelling through tanker at the time of an accident. Due to breach of policy conditions, the claim was liable to be rejected. Surveyor made assessment of Rs.7,73,650/- on total loss basis of the tanker. The complainants are not entitled to claim under the insurance policy and therefore, the complainant is liable to be rejected with costs according to the opponent.

5. Both the parties lead evidence by filing affidavits and relied on certain documents. After hearing learned counsel for both the parties and after giving thoughtful consideration to the arguments advanced on behalf of both the parties, the learned District Forum was pleased to allow the consumer complaint filed by the legal heirs of the deceased Uttam by order dated 06/01/2011.

6. Being dissatisfied with the impugned order, original opponent has preferred the appeal.

7. We have heard learned counsel Mr.S.S.Jinsiwale for the appellant and learned counsel Mr.S.S.Inamdar for the respondents. During the course of arguments, both the parties have placed reliance on certain rulings.

8. Relationship of the complainants/respondents with the deceased is not challenged by the opponent/appellant. Complainant, Smt.Ashwinin Uttam Shinde is widow of the deceased. Complainant no.2 to 4 are minor children of the deceased. Complainant no.5 and 6 are old aged parents of the deceased. It is admitted fact that deceased Uttam had purchased the tanker No.MH 45 0110 for transporting milk for his livelihood. He used to drive his own tanker. On the date of the accident, he was driving his own tanker. Said tanker was insured with the opponent insurance company and said insurance policy was valid for the period from 05/08/2005 to 04/08/2006.

9. Copies of insurance policy, certificate of registration of the tanker are on record. While issuing policy, certain conditions were imposed. The limit of the liability as mentioned in the insurance company is as under:-

Limit of the amount of the Company's Liability Under Section II-1(ii) in respect of anyone accident; as per Motor Vehicles Act, 1988.

Limit of the amount of the Company's Liability Under Section II(1(ii) in respect of any one claim or series of claims arising out of one event UPTO Rs.7,50,000/-

10. The tanker was goods vehicle. Sitting capacity including driver was only one. Registration certificate makes it clear that only driver was allowed to travel. When sitting capacity was only one, other persons/passengers were not allowed to travel through the said tanker. The owner of the tanker was not allowed to carry other passengers.

11. After the accident, one Mr.Anil Salve had filed report of the accident. On the basis of said report, FIR No.104/06 was registered u/s.304(A), 279, 337, 338 of I.P.C. read with Sec.184, 66/192 of M.V.Act, copy of which is filed on record. Complainant-Anil Bansi Salve was cleaner in Truck No.MH 04 H 5488 at the time of the accident. His truck was carrying onions from Junnar to Mumbai-Vashi. Said truck was being driven by Rajendra Dabade. It is stated that on 26/06/2006 at about 2.30 a.m. on Pune-Mumbai Express Highway, Near KM Stone No.37/50 at Village Mouje Dheku, milk tanker came from back side and hit on the truck No.MH 04 H 5488. In the said accident, driver, Rajendra Dabade sustained injuries. Milk tanker turned turtle. Complainant also sustained injuries. It is mentioned that in the accident, 5 persons died. The accident was occurred due to high speed of milk tanker No.MH 45 0110.

12. During investigation, police recorded statement of witnesses. Statement of one Mr.Babasaheb Pokal is recorded by Police. It is transpired from the said statement that tanker driver Uttam Shinde and another driver, Nagnath Gaikwad along with three more persons died in the accident. It means that 5 persons were in the tanker. As per registration certificate, only driver was allowed to travel in the tanker. Same fact has been reiterated in the statements made by witnesses, Arun Tukaram Kute and Sangeeta Mahadeo Shinde. The deceased Uttam, who was the owner of the tanker, allowed four persons to travel through the milk tanker at the time of accident. The owner-cum-driver invited the risk.

13. Five persons were sitting in the tanker when having sitting capacity of one only. The owner should not have permitted the passengers to sit in tanker near him and travel through goods vehicle. Carrying passengers through goods vehicle is clear-cut breach of certificate of registration and policy conditions. The container was used contrary to the insurance policy. Learned District Forum failed to consider registration certificate and insurance policy and terms incorporated in those documents in their proper perspective. Opponent-insurance company was perfectly right in repudiating the claim of the original complainant due to breach of policy condition.

14. Forum below relied upon the decision of Apex Court in the matter of B.V.Nagaraju V/s. Oriental Insurance Co. Ltd.(1996 ACJ 1178, Supreme court), in which it is interpreted that policy of the insurance need to be construed strictly or be read to advance the main purpose of the contract. The reliance is further placed at the time of arguments, on the recent judgement of Apex court in the matter of Amalendu Sahoo V/s. Oriental Insurance Co. Ltd. (2010 ACJ 1250) : [2010 ALL SCR 814] wherein the Division Bench of Apex Court upheld the ratio applied by Hon'ble National Commission to grant compensation on non-standard basis even if it is case of breach of terms of insurance policy. However, we find decision on which respondent/org.complainant relies are the judgement per incuriam since it ignored the decision of Hon'ble Five Judges Bench of Apex Court in the matter of The General Assurance Society Ltd. V/s. Chandmull Jain and another (1966, ACJ 267). The ratio of said case is that insurance being the contract and when the terms of the insurance policy are not in question by the parties and if they are not ambiguous, those terms need to be given effect to and it is not for the court or quasi judicial authority dealing to the question for interpretation otherwise or those clauses are not subject to inquiry by such authorities. In the instance case, the terms of the insurance policy are clean and no ambiguity is left. The exclusion clause is part and parcel of the insurance policy. Therefore, when it is established that there is a breach of terms of the insurance policy, repudiation of the insurance claim cannot be faulted with. Furthermore, even as observed by the Hon'ble National Commission in the matter of National Insurance Co.Ltd. V/s. Nitin Khandelwal (2008 ACJ 2035 (SC) : [2008(3) ALL MR 875 (S.C.)] that the appellant insurance company is liable to indemnify the owner of the vehicle when the insured has obtained comprehensive policy for the loss caused to the insured. The respondent submitted that even assuming that there was a breach of condition of the insurance policy, the appellant insurance company ought to have settled the claim on non-standard basis. It is the discretion of the insurance company to consider the case in the light of the policy. When the question of discretion comes which is used in a just and proper manner one cannot presume deficiency in service on part of the insurance company within the meaning of Consumer Protection Act, 1986. Thus, we find that Forum below erred in settling the dispute. We cannot support the impugned order. Holding accordingly, we pass the following order:-

ORDER

1. Appeal is allowed.

2. Impugned order dated 06/01/2011is set aside.

3. Consumer complaint stands dismissed.

4. One set of appeal compilation be retained. Rest be returned to the appellant forthwith.

5. Certified copies of the order be furnished to the parties forthwith.

Appeal allowed.