ORIENTAL INSURANCE COMPANY LIMITED & ANR vs RAJAK

This revision petition has been filed by the petitioners against the order dated 14.12.2012 passed by the Haryana State Consumer Disputes Redressal Commission, Panchkula (in short, ''the State Commission'') in Appeal No. 1247 of 2012 - Oriental Ins. Co. Ltd. Vs. Rajak by which, while dismissing appeal order of District Forum allowing complaint was upheld.

Brief facts of the case are that Complainant/respondent''s dumper HR-38K-0039 was insured by OP/petitioner and during currency of insurance dumper damaged in accident on 16.1.2003 while returning to Delhi from Bharatpur loaded with Silica sand. Complainant lodged report with the Police and intimation was given to OP. After getting vehicle repaired complainant submitted claim of Rs.4,34,428/- to OP which was repudiated on the ground that vehicle was overloaded at the time of accident. Alleging deficiency on the part of OP, complainant filed complaint before District Forum. OP resisted complaint and submitted that after intimation, surveyor was appointed and on investigation it was revealed that aforesaid dumper could carry weight upto 16,000 kgs. but it was loaded with 25,000 kgs and thus, violated terms and conditions of registration as well as policy, so, claim was rightly repudiated. It was further submitted that aforesaid dumper was loaded with Bill No. 5088 in the name of Maksood whereas Bill No. 6736 dated 9.2.2003 pertaining to vehicle HR-38B-2886 was loaded with 14MT of Silica in the name of Shariff and photocopy of GR6736 submitted by insured was false and forged, so, claim was repudiated and prayed for dismissal of complaint. Learned District Forum after hearing both the parties allowed complaint and directed OP to pay Rs.4,34,428/- with 9% p.a. interest and further directed to pay Rs.5,000/- as litigation expenses. Appeal filed by OP was dismissed by learned State Commission vide impugned order against which, this revision petition has been filed along with application for condonation of delay.

Heard learned Counsel for the parties and perused record.

Delay of 36 days has already been condoned subject to cost by order dated 19.1.2013.

Learned Counsel for the petitioner submitted that on account of overloading of dumper and submitting forged documents claim was rightly repudiated, but learned District Forum committed error in allowing complaint and learned State Commission further committed error in dismissing appeal; hence, revision petition be allowed and impugned order be set aside. On the other hand, learned Counsel for the respondent submitted that by inadvertence, bill pertaining to other dumper owned by complainant was submitted and further submitted that even if there was excess loading in the dumper, complainant is entitled to at least 75% on sub-standard basis; hence, revision petition be dismissed.

Perusal of record clearly reveals that dumper HR38K-0039 was loaded with Silica sand by Bill No. 5088 weighing 25 Mts in the name of Maksood. Perusal of RC of aforesaid dumper clearly reveals that dumper unladen weight was 9000 kgs and laden weight was permissible upto 25000 kgs meaning thereby, complainant was authorized to take 16000 kgs weight. Thus, there was clear violation of the conditions of registration as well insurance policy. Learned Counsel for the respondent submitted that in the light of judgment of Hon''ble Apex Court in C.A. No. 2703 of 2010 - Amalendu Sahoo Vs. Oriental Insurance Co. Ltd. in case of overloading of vehicle beyond licence carrying capacity claim is admissible upto 75% on non-standard basis. In the case in hand, as dumper was overloaded by 9000 kgs, in the light of aforesaid judgment complainant was entitled to only 75% of the admissible claim, but learned District Forum committed error in allowing 100% claim and learned State Commission further committed error in dismissing appeal.

Learned Counsel for the petitioner submitted that as complainant submitted false and forged documents, claim was rightly repudiated and he was not entitled to any compensation. This argument is devoid of force. After repudiation of claim, complainant served notice on OP in which it was specifically mentioned that inadvertently complainant submitted Bill No. 6736 dated 9.2.2003 instead of Bill No. 5088 dated 15.1.2003 and in such circumstances, it cannot be presumed that complainant purposely fabricated bill and submitted to OP for claiming compensation and OP has committed deficiency in repudiating claim in toto.

As far expenses incurred in repairs is concerned, complainant submitted in the complaint that he incurred expenditure of Rs.4,34,428/- in repair of his dumper to which OP denied in its written statement. Learned District Forum in paragraph 5 of order observed that there was no dispute that complainants spent Rs.4,34,428/- on spares and repairs on his dumper which is apparently wrong observation because OP has nowhere accepted aforesaid amount to have been incurred by complainant. In memo of appeal it was specifically denied that damage to the vehicle was to the extent of Rs.4,34,428/- and learned State Commission has not dealt with this aspect at all. In such circumstances, impugned order and order of District Forum are liable to set aside and matter is to be remitted back to the learned District forum to decide compensation afresh.

Consequently, revision petition filed by the petitioner is allowed and order dated 14.12.2012 passed by learned State Commission in Appeal No. 1247 of 2012 - Oriental Ins. Co. Ltd. Vs. Rajak and order of learned District Forum dated 6.8.2012 in CC No. 418/2005 - Rajak Vs. Oriental Ins. Co. Ltd. is set aside and matter is remanded back to learned District Forum to ascertain expenses incurred on repairs of dumper after giving an opportunity of being heard to both the parties and allow 75% of the admissible claim on non-standard basis as mentioned above.

Parties are directed to appear before District Forum on 13.07.2015.