Dev Raj Sharma son of Sh. Som Dev Sharma resident of village Sambal, Post Office Bijani, Tehsil Sadar, District Mandi, H.P.



…Complainant

Vs



Oriental Insurance company Ltd.. through its Branch Manager Jail Road, Mandi, H.P.

…..Opposite party








ORDER.

This order shall dispose of a complaint under Section 12 of the Consumer Protection Act, 1986( hereinafter referred to as the “Act”) instituted by the complainant against the opposite party. The case of the complainant is that he got his cattle insured with the opposite party with effect from 27-9-2006 to 26-9-2009.During the currency of the policy the said cow expired on 4-4-2008 and post mortem was got conducted . The matter was reported to the opposite party. All the relevant documents as required were submitted to the opposite party for early indemnification. The complainant averred that the opposite party had posted two letters dated 22-8-2008 and 5-9-2008 wherein uncalled for explanation was demanded to the effect that why report of Gram Panchayat Bijani was prepared instead of Gram Panchayat Nasloh where the insured cow stated to have died .


The complainant further averred that vide letter dated 26-9-2008 he has explained that the cow died between the boundaries of two Panchayats where it was taken for grazing but till date the claim has not been settled .With these averments , the complainant had sought a direction to the opposite party to pay the sum insured in the sum of Rs.10,000/-. Apart from this, Rs.5,000/- has been claimed as compensation besides a sum of Rs.3000/- has been claimed as costs of complaint.

2 The opposite party had filed reply wherein it has been pleaded in preliminary objections that complex question of fact is involved in the case which require oral as well as documentary evidence , that this Forum has no jurisdiction, that the cow had already been sold prior to the death to some body residing in village Nasloh, Gram Panchayat Nasloh and as such the complainant has no insurable interest On merits , insurance of the cow has not been denied It has been averred that the Pradhan Gram Panchayat Nasloh has not given any death certificate and Vice President Gram Panchayat has issued the certificate who is not competent to issue the same . It has further been pleaded that the cow has been sold by the complainant to some body of Nasloh and the complainant is saying falsely that the cow was taken for grazing purpose . It has also been averred that photographs show that the cow was ill and was not in a position to graze . Rest of the contents of the complaint have been denied and prayed for dismissal of the complaint

3. The complainant filed rejoinder reiterating the contents of the complaint and controverted the allegations made in the reply .

4. We have heard the ld. counsel for the parties and have carefully gone through the entire record. The case of the complainant is that his cow was insured with the opposite party with effect from 27-9-2006 to 26-9-2009 and during the currency of the policy, said cow expired on 4-4-2008 and despite submission of all the relevant documents , the opposite party is not settling the claim. On the other hand, the case of the opposite party is that the complainant has no insurable interest as the cow was already sold by the complainant to somebody else and the complainant has failed to explain as to how the insured cattle had died in village Nasloh which falls in another Gram Panchayat and why death certificate has not been procured from Pradhan Gram Panchayt Nasloh. According to the opposite party, the certificate qua the death of the insured cattle issued by the vice President Bijani cannot be read in evidence because he is not competent to issue such certificate .

5 After hearing the ld. counsel for the parties and scrutiny of the record it has become crystal clear that during the currency of the policy, the cow in question died on 4-4-2008 which fact is evident from the post mortem report dated 7-4-2008 adduced in evidence by the complainant issued by Senior Veterinary Officer I/C Sub Divisional Veterinary Hospital Mandi. Therefore once it has been proved by the complainant that his insured cow had died , the objection raised by the opposite party regarding the issuance of certificate of death by vice President Gram Panchayat Bijni and not by Pradhan Gram Panchayat, Nasloh is immaterial .


According to the opposite party, the complainant has no insurable interest as the cow in question had been sold by the complainant to somebody else . However there is no iota of evidence led by the opposite party that the cow has been sold by the complainant . In the absence of any documentary evidence , by no stretch of imagination it can be said that the cow has been sold by the complainant and he is not entitled to the insurance claim on account of death of the insured cattle . So far as the objection of the opposite party that how the cow expired in village Nasloh has no legs to stand because it has been explained by the complainant that the cow was taken for grazing purpose .


In view of above , we have no hesitation to conclude that the objections raised by the opposite party for rejecting the claim are illegal, arbitrary and non-payment of insurance claim to the complainant on the aforesaid grounds amounts to deficiency in service for which the complainant is entitled for reasonable amount of compensation and we award a sum of Rs.2000/- on this count . As per the insurance policy, the cow in question was insured for Rs.10,000/- therefore, the insurer is liable to indemnify the complainant in the sum of Rs.10,000/- on account of death of the insured cattle .

6 In the light of above discussion, the complaint is allowed and the opposite party is directed to pay the insured sum i.e. Rs.10,000/- to the complainant with interest at the rate of 9% p.a. from the date of filing of the complaint till realization. In addition to this, the opposite party is also directed to pay Rs.2000/- as compensation and Rs.1000/- as costs of litigation to the complainant.

7 Copy of this order be supplied to the parties free of cost as per Rules.



8 File, after due completion be consigned to the Record Room.

Krishan Lal Sharma son of Sh. Chura Mani Sharma resident of village and Post Office Churag, Tehsil Karsog, District Mandi, H.P.





…Complainant

Vs



The Oriental Insurance Company Ltd Divisional Office at Vidya Bhawan Hospital Road Mandi town through its Divisional Manager



…..Opposite party









ORDER.

This order shall dispose of a complaint under Section 12 of the Consumer Protection Act, 1986( hereinafter referred to as the “Act”) instituted by the complainant against the opposite party. The case of the complainant is that he is registered owner of vehicle No.HP-63-1797 which was insured with the opposite party with effect from 12-2-2008 to 11-2-2009 in the sum of Rs.2,50,000/-. During the currency of the insurance policy, said vehicle met with an accident on 5-5-2008 at Rohanda when it was being driven by licensed driver and vehicle sustained heavy damage. The matter was immediately reported to the opposite party who deputed its surveyor to assess the damage who visited the accidental site and inspected the vehicle at the spot and apprised the complainant that the vehicle is total loss . All the documents were submitted to the opposite party. The complainant averred that on the date of accident the vehicle had been hired by Principal of High School Kandha for bringing the Text Books from Education Board office at Mandi and one teacher was occupant of the vehicle to receive the goods from Board Office and two other persons had been sent for loading and unloading and care taker of the goods .


The complainant further averred that the accident of the vehicle had taken place due to some sudden mechanical failure of steering and also injured some pedestrian on the road and then rolled down downward to a distance resulting into death of two occupants who boarded the vehicle at Rohanda as owners cum care taker of their goods but in the First Information report the police has wrongly mentioned that nine persons including driver were travelling in the vehicle. It has also been averred that the surveyor has taken blank signed claim form from the complainant .


The complainant alleged that the claim had been repudiated vide letter dated 8-11-2008 on the ground of over loading and breach of limitation as to use which according to him is unjustified . With these averments , the complainant had sought a direction to the opposite party to pay Rs.2.50,000 as own damage claim on total loss basis with interest at the rate of 12 % P.A. from 5-5-2008 till payment and had also claimed Rs.50,000/- as compensation Apart from this cost of complaint has also been claimed.

2. The opposite party had filed reply wherein it has been pleaded in preliminary objections that the vehicle involved in the accident is a goods vehicle but at the time of the accident eight persons excluding driver on board of the vehicle against seating capacity of five and that too on fare paying passengers which is a breach of terms and conditions of the policy and that there is no deficiency in service on its part. On merits , the opposite party had not denied the insurance as well as accident of the vehicle in question. The opposite party had also not denied the deputing of surveyor and pleaded that the surveyor has assessed the loss at net loss liability on total loss basis at Rs.2,49,500/ subject to deposit of salvage but it was found that at the time of accident the vehicle was carrying nine persons including driver and since the vehicle is goods carrier , the policy prohibits the carrying of passengers , hence as per the terms and conditions of the policy, claim was repudiated vide letter dated 8-11-2008.


The opposite party has admitted that the text books and Bags from Mandi were being brought by Bhagat Ram teacher of Govt. High School Kandha . Rest of the allegations have been denied . It has also been denied that signatures of the complainant were taken on blank claim form. It has further been averred that the breach is fundamental in nature and as such the repudiation of the claim is legal. The opposite party prayed for dismissal of the complaint.

3. The complainant filed rejoinder reiterating the contents of the complaint and controverted the allegations made in the reply .

4. We have heard the ld. counsel for the parties and have carefully gone through the entire record. Be it stated that the opposite party had not disputed the insurance and accident of the vehicle in question . The case of the complainant is that at the time of the accident six persons including driver were sitting in the vehicle and the same were sitting as owner –cum care taker of the goods. On the other hand, the case of the opposite party is that the repudiation is legal as at the time of the accident there were eight persons excluding driver on board of the vehicle against its seating capacity of five and the persons were being carried in the goods vehicle were fare paying passengers which is breach of the terms and conditions of the policy .


The opposite party had placed reliance on First Information Report Annexure O-4 report of investigator Sh. Dinesh Kumar Gupta dated 27-8-2008 Annexure O-5 alongwith his affidavit. The perusal of the First information report Annexure O-4 shows that Bhagat Ram PTA teacher of Govt. High School Kandha alongwith one Sh. Nika Ram and his nephew Sunil Kumar hired the vehicle for Kandha to Mandi for bringing the books and on the way five more persons took lift in the vehicle. As per the report of the investigator also, at the time of the accident, Sh.Dinesh Kumar was driving the vehicle and eight persons were sitting in it .


The Investigator also recorded the statement of the occupant of the vehicle Sh.Gopal who stated that he and his sister Hima Devi hired the vehicle from Rohanda to Churag at Rs.30/- per passenger. He also recorded the statement of Sh. Dev Raj who also stated that driver had charged Rs. 70/- from Rohanda to Karsog .Statements of both the aforesaid persons have also been placed on record as Annexure O-6 and Annexure O-7. However the complainant has failed to adduce any evidence contrary to it . The perusal of the registration certificate of the vehicle Annexure C-1 shows that it is a Light Goods vehicle having seating capacity of six. As discussed above, the opposite party had proved that at the time of accident unauthorized passengers were sitting in the vehicle .Therefore, we have no hesitation to conclude that the vehicle was being plied in violation of the terms and conditions of the insurance policy.

5 The next question, which arises for determination is as to whether the opposite party was justified in repudiating the claim of the complainant as a whole on this score

or not .The answer to this poser in all fairness would be in the negative for the reason that opposite party had failed to prove and establish that the carrying of unauthorized passengers in the vehicle was the sole and contributory cause of the accident. No evidence has been led by the opposite party to this effect. In our opinion, it cannot be said that said breach is such a breach that





the owner should in all event be denied indemnification. This breach cannot be termed as fundamental breach empowering the opposite party to repudiate the claim as a whole . As a matter of fact , the complainant or his driver by allowing unauthorized passengers in the vehicle has contravened the limitation clause as to use in the policy and in case of such breach, it is clause 10 of the Procedural Manual of Motor Claims which is applicable and as per the same , where there is any breach including breach of limitation as to use , the claim has to be considered and paid as Non Standard claim. The clause 10 of the Procedural Manual of the Motor Claim is reproduced here asunder:-





“ 10. Non Standard Claims .

Following standard claims

Following types of claims shall be considered as non standard claim and shall be settled as indicates below after recording the reasons.



Description Percentage of settlement

Under declaration Deduct 3 years difference

Of licensed carrying in premium from the

Capacity amount of claim or deduct 25 % of claim amount whichever is higher



Overloading of Pay claims not exceeding

Vehicle beyond 75% of admissible claim

Licensed carrying

Capacity



Any other breach Pay up to 75% of admissible claim

Of warranty/condition

of policy including

limitation as to use



6 The Hon’ble National Commission in its various decisions had held that if the vehicle is used contrary to the terms and conditions of the policy, the insurance company has to treat the claim as per the guidelines applicable for settlement of non standard claims and the percentages are also duly indicated in clause 10 of the Procedural Manual of Motor Claims . In the case titled National Insurance Company vs Muni Lal Yadav 2001(2) CPR-1( NC), the vehicle was insured as private vehicle but used as public vehicle at the time of accident. Hon’ble National Commission after relying upon the observations of Hon’ble Supreme Court in the case of B.V. Nagaraju vs M/S Oriental Insurance Company ltd II(1996)CPJ-18(SC) and M/S Skandia Insurance company ltd vs Kokilaben Chaudravadan 1987(2) SCC-654 had held that the claim is to be settled in accordance with Skandia’s case approved in B.V. Nagaraju case and according to Motor Claims guidelines applicable for settlement of non standard claims.


In the present case also , the claim of the complainant is covered under clause 10 of the Procedural Manual of Motor Claims which provides that for “ any other breach of warranty/ condition of policy including limitation as to use” the claim shall be settled as non standard claim and pay up to 75% of the admissible claim. Therefore, in view of the aforesaid decisions of Hon’ble Apex Court as well as of the Hon’ble National Commission and also in view of the Motor Claims guidelines, it will be appropriate to direct the opposite party to treat the claim of complainant as non standard claim and to pay 75% of the compensation to which he is entitled.



7 Now the next question which arises for consideration before this Forum is as to what amount the complainant is entitled on account of loss suffered by him due to accident of the vehicle .The complainant in his complaint had claimed Rs. 2,50,000/-on total loss basis .On the other hand, the opposite party has admitted in his reply that loss assessed by the surveyor on total loss basis is Rs.2,49,500/- The opposite party has also adduced in evidence the copy of report of Surveyor Sh. Mohinder K Sharma Annexure O-1which corroborates the version of the opposite party that the loss sustained by the complainant on account of accident of the vehicle in question is to the tune of Rs.2,49,500/- on total loss basis . The expected salvage value of the vehicle with registration certificate had been assessed at Rs.50,000/- and without registration certificate Rs.30,000/-.


The report of Surveyor is an important document and it cannot be brushed aside without sufficient reasons. The Hon’ble National Consumer Disputes Redressal Commission in United India Insurance company vs Jadhav Kirana Store , III (2005)CPJ-79(NC) has held that the Surveyor report is an important document and it should not be shunned without sufficient reasons. Therefore, in the absence of any satisfactory evidence to the contrary , we accept the report of Surveyor and in view of the same , we hold that the loss suffered by the complainant with respect to the damage caused to the vehicle is Rs.2,49,500/- on total loss basis subject to deposit of salvage with registration certificate and he is entitled to 75% of this amount which comes to Rs.1,87,125/-.

8 In the light of above discussion, the complaint is partly allowed and the opposite party is directed to pay Rs.1,87,125 /- on total loss basis with interest at the rate of 9% p.a. from the date of filing of the complaint till realization subject to the deposit of salvage with registration certificate . If the complainant fails to deposit the salvage or registration certificate in that event the opposite party shall be entitled to deduct the amount of salvage / registration certificate as assessed by the surveyor .In addition to this, the opposite party is also directed to pay Rs.2500/- as costs of litigation to the complainant.

9 Copy of this order be supplied to the parties free of cost as per Rules.



10 File, after due completion be consigned to the Record Room.

Prasoon Sharma son of Sh. Madhusudan Sharma resident of Akhara Bazar, Kullu Tehsil and District Kullu, HP owner of vehicle No. HP-66-0945



…Complainant

Vs



Oriental Insurance company Ltd. Branch Kullu Near college Gate Dhalpur, Kullu, Tehsil and District Kullu, H.P. through its Branch Manager

…..Opposite party



ORDER.

This order shall dispose of a complaint under Section 12 of the Consumer Protection Act, 1986( hereinafter referred to as the “Act”) instituted by the complainant against the opposite party. The case of the complainant is that he got the jeep bearing number HP-66-0495 insured with the opposite party with effect from 4-8-2007 to 3-8-2008 .During the currency of the insurance policy, said jeep met with an accident on 14-5-2008 near Kalajor , Garsa due to failure of the brakes and the vehicle went off the road . First information to this effect was lodged with Police Post Bhunter . The complainant averred that one person Sh.Dinesh Kumar died in the accident and driver sustained injuries .



The matter was reported to the opposite party and claim was lodged and the complainant also fulfilled all the formalities but the claim had been rejected vide letter dated 5-11-2008 with the remarks “ not payable hence repudiated the same as No Claim”. With these averments , the complainant had sought a direction to the opposite party to pay Rs.1,70,000/- for the loss of jeep and had also claimed Rs.50,000/- on account of mental harassment . Apart from this costs of complaint has also been claimed.

2. The opposite party had filed reply wherein it has been pleaded in preliminary objections that there is no deficiency in service on its part , that the claim made by the complainant was duly processed , investigated and assessed and when the same was not found to be genuine , the same was repudiated after due application of mind and complainant was duly communicated vide registered letter dated 5-11-2008, that the vehicle in question was registered as Goods carrying commercial vehicle and seating capacity of the same is 2+1 as per the registration certificate and that four unauthorized/ gratuitous passengers were travelling in the vehicle at the time of accident which is breach of the terms and conditions of the policy condition with regard to Limitation as to use of the vehicle. On merits the opposite party has taken same stand as taken in the preliminary objections. It has further been pleaded that the vehicle was empty at the time of the accident and four persons were travelling in the vehicle out of which driver was the employee of the complainant and three persons were unauthorizedly travelling .


It had been averred that surveyor Sh. Mohinder Kumar Sharma had assessed the loss at Rs.62,251.75 paise subject to terms and conditions of the insurance policy. It has further been pleaded that the complainant is guilty of breach of the terms and conditions of the Insurance policy and hence the claim was repudiated The opposite party had denied the charge of deficiency in service on its part. The complaint had been sought to be dismissed.





3. The complainant filed rejoinder reiterating the contents of the complaint and controverted the allegations made in the reply .



4. We have heard the ld. counsel for the parties and have carefully gone through the entire record. Be it stated that the opposite party had not denied the insurance of the vehicle with it as also the factum of accident which took place on 14-5-2008. The claim of the complainant has been repudiated on the ground that at the time of the accident, gratuitous / unauthorized passengers were travelling in the vehicle which is a breach of the policy condition.


To substantiate its case the opposite party had relied upon the first information report Annexure R-2, , claim intimation letter Annexure R-4, Motor claim form Annexure R-5, report dated 25-6-2008 of the investigator Sh. Bhupkeshwar Sharma . The perusal of the First Information Report No.293 dated 15-5-2008, Police Station Kullu Annexure R-2 shows that at the time of the accident , the vehicle was being driven by Sh. Bhupinder Singh and three other persons S/Sh Lekh Raj, Tulsi Ram and Dinesh Kumar were sitting in it and out of them Sh.Dinesh Kumar died on the spot . In the claim intimation letter dated 15-5-2008 Annexure R-4, Motor Claim Form Annexure R-5, it has been admitted by the complainant that four persons including driver were travelling in the vehicle at the time of the accident .


As per the report of the investigator dated 25-6-2008 Annexure R-6 Sh. Bhupinder Singh was driving the vehicle at the time of accident and S/Sh.Tulsi, Ram , Lekh Raj and Dinesh Kumar were travelling as unauthorized passengers and the vehicle was empty at the time of the accident. No evidence to the contrary has been adduced in evidence by the complainant that no unauthorized persons were travelling in the vehicle. The perusal of the registration certificate shows that the vehicle in question is a goods carrying vehicle and the seating capacity of the vehicle is 2+1. Therefore, from the scrutiny of the evidence on record , it is crystal clear that three unauthorized passengers were travelling in the vehicle at the time of the accident which amounts to breach of the terms and conditions of the policy.

5 The next question, which arises for determination is as to whether the opposite party was justified in repudiating the claim of the complainant as a whole on this score

or not .The answer to this poser in all fairness as well as in the interest of justice would be in the negative for the reason that as per the mechanical report the cause of the accident was due to failure of the brakes. The opposite party had failed to establish that the carrying of unauthorized passengers in the vehicle was the sole and contributory cause of the accident. No evidence has been led by the opposite party to this effect. In our opinion, it cannot be said that said breach is such a breach that owner should in all event be denied indemnification . This breach cannot be termed as fundamental breach empowering the opposite party to repudiate the claim as a whole . As a matter of fact , the complainant or his driver by allowing three unauthorized passengers in the jeep has contravened the limitation clause as to use in the policy and in case of such breach, it is clause 10 of the Procedural Manual of Motor Claims which is applicable and as per the same , where there is any breach including breach of limitation as to use , the claim has to be considered and paid as Non Standard claim. The clause 10 of the Procedural Manual of the Motor Claim is reproduced here asunder:-

“ 10. Non Standard Claims .

Following standard claims

Following types of claims shall be considered as non standard claim and shall be settled as indicates below after recording the reasons.

Description Percentage of settlement

Under declaration Deduct 3 years difference

Of licensed carrying in premium from the

Capacity amount of claim or deduct 25 % of claim amount whichever is higher



Overloading of Pay claims not exceeding

Vehicle beyond 75% of admissible claim

Licensed carrying

Capacity



Any other breach Pay up to 75% of admissible claim

Of warranty/condition

of policy including

limitation as to use





6 In view of above discussion , it is held that the complainant is entitled to the insurance claim up to 75 % of the loss caused to the tractor in question.

7 Now the next question which arises for consideration before this Forum is as to what amount the complainant is entitled on account of loss suffered by him due to accident of the jeep . The complainant in his complaint had clamed Rs. 170,000/- as repair charges but not even a single document has been adduced in this behalf .On the other hand, the opposite party has admitted in his reply that loss assessed by the surveyor is Rs.62,251.75 paise . The opposite party has also adduced in evidence the copy of report of Surveyor Sh. Mohinder Kumar Sharma Annexure R-11 which corroborates the version of the opposite party that the loss sustained by the complainant on account of accident of the jeep in question is to the tune of Rs.62251.75/- The report of Surveyor is an important document and it cannot be brushed aside without sufficient reasons.


The Hon’ble National Consumer Disputes Redressal Commission in United India Insurance company vs Jadhav Kirana Store , III (2005)CPJ-79(NC) has held that the Surveyor report is an important document and it should not be shunned without sufficient reasons. Therefore, in the absence of any satisfactory evidence to the contrary , we accept the report of Surveyor Annexure R-11 and in view of the same , we hold that the loss suffered by the complainant with respect to the damage caused to the vehicle is Rs.62,252/- subject to deposit of salvage ,the value of which has been assessed at Rs.2500/- and he is entitled to 75% of this amount which comes to Rs.46689/-.

8 In the light of above discussion, the complaint is partly allowed and the opposite party is directed to pay Rs.46,689/- subject to deposit of salvage to the complainant with interest at the rate of 9% p.a. from the date of filing of the complaint till realization. In addition to this, the opposite party is also directed to pay Rs.2500/- as costs of litigation to the complainant.

9 Copy of this order be supplied to the parties free of cost as per Rules.



10 File, after due completion be consigned to the Record Room.

Tarun Mohindru son of Sh. Manohar Lal Mohindru resident of House No. 189/1 Mandi, Tehsil Sadar, District Mandi, H.P.





…Complainant





V/S

The Oriental Insurance company Ltd through its Divisional Manager, Vidya Bhawan Palace Colony / Hospital Road, Mandi, District Mandi, H.P.

..Opposite party.






ORDER.



This order shall dispose of a complaint under Section 12 of the Consumer Protection Act, 1986( hereinafter referred to as the “Act”) instituted by the complainant against the opposite party. The case of the complainant is that he is registered owner of HMT tractor No. HP-33A-7306 bearing chassis No. 00042548 engine No.55037 .The complainant purchased the tractor for his own use as he is a contractor by profession. The tractor was purchased from M/S Palam Tractors and Spares, Nerchowk in the year 2006. The complainant got the said tractor insured with the opposite party vide insurance policy Annexure C-2 from 21-10-2006 to 20-10-2007. During the currency of the policy, due to sudden failure of the brakes , the tractor met with an accident at place Dandhar near Banjar, District Kullu, H.P. where he has sent the same for work of contract . The driver of the tractor died in the accident . First Information Report was lodged with the police.


The complainant averred that the tractor had been damaged and he had sustained loss to the tune of Rs.50,625/-. The claim was lodged with the opposite party alongwith all requisite documents including the estimate well in time The complainant averred that he was told that it will take some time to process and settle the claim and directed him to get the tractor repaired and assured to settle and pay the claim after words . Upon this the complainant got the tractor repaired from M/S Palam Tractor and Spares ,Nerchowk and spent a sum of Rs. 50,625/-.


The original bills and documents were handed over to the opposite party but neither the claim was settled nor amount was paid and vide letter dated 11-12-2007 , Annexure C-10, the complainant was informed that the claim had been repudiated the grounds of which are whimsical and arbitrary The complainant averred that when he employed Sh. Pawan Kumar as driver with the tractor , he had seen the driving license of said Sh. Pawan Kumar who died in the accident but his license could not be traced despite the search by the complainant and widow of the deceased and as such there is no breach on the part of the complainant The complainant alleged that the act of the opposite party amounts to deficiency in service. With these allegations, the complainant had sought a direction to the opposite party to pay a sum of Rs.50,625/- on account of loss caused to the vehicle due to accident alongwith interest at the rate of 18% per annum from the date of accident till payment , to pay Rs.5 000/- for harassment , and also to pay cost of complaint .



2. The opposite party had filed reply wherein preliminary objections have been raised that there is no deficiency in service on the part of the opposite party and as such the complaint is not maintainable , that the claim lodged by the complainant was got investigated and assessed and when the same was not found to be genuine claim the same was repudiated after due application of mind and decision was conveyed to the complainant, that the complainant had violated the terms and conditions of the insurance policy, as the tractor was being used for a purpose other than limitation as to use , that two gratuitous passengers were travelling and that neither the driving license of the driver nor copy of it nor any particular of Sh. Pawan Kumar has been supplied, that complex question of law and facts are involved and controversy between the parties cannot be resolved in summary proceeding.


On merits , the opposite party had admitted that the tractor alongwith trailor having seating capacity one was insured with it for the period from 21-10-2006 to 20-10-2007 in the sum of Rs. 3,23,000/-. It has also been admitted that aforesaid tractor met with an accident during the currency of the policy and driver died but denied that the tractor had sustained damage of Rs.50,625/-.


The opposite party submitted that the surveuyor had assessed the indemnity to the tune of Rs.33,283.45 paise subject to terms and conditions of the policy. It has further been submitted that the driving license of Sh. Pawan Kumar had not been produced by the complainant despite the issuance of letter which suggests that Sh. Pawan Kumar did not hold driving license and as such the opposite party is not liable to indemnify the complainant .The complaint had been sought to be dismissed.



3. The complainant had filed rejoinder reiterating the contents of the complainant and controverting those as made in the reply.

4. We have heard the ld. counsel for the parties and have carefully gone through the record. The insurance of the vehicle in question has not been denied by the opposite party. It has also not been disputed by the opposite party that the vehicle in question met with an accident on 24-5-2007. However, the claim of the complainant has been repudiated by the opposite party on the ground that the vehicle being a goods carrying vehicle was being used in violation of the insurance policy as at the material time two unauthorized persons were travelling in the vehicle and the driving license of the driver was not produced by the complainant which amounted to breach of the terms and conditions of the insurance policy.

5. The first question which arises for consideration is as to whether unauthorized persons were travelling in the tractor at the time of the accident. The onus to prove that unauthorized persons were travelling in the tractor at the time of accident was on the insurer which has been discharged by it by producing documentary evidence i.e. copy of first information report No. 61 of 2007 dated 24-5-2007 of Police Station Banjar wherein it has categorically been averred that two persons besides driver were sitting on the tractor at the time of the accident. First Information report has been lodged by none other than Sh. Hira Lal who was also sitting on the tractor at the material time . Now it was for the complainant to rebut the aforesaid documentary evidence adduced by the opposite party. However, no evidence to the contrary has been led by the complainant .


Even in the rejoinder it has not been specifically denied by the complainant that no unauthorized persons were travelling in the tractor at the material time . As per the registration certificate of the tractor, Annexure C-1, its seating capacity is one .Therefore, we have no hesitation to conclude that at the material time two unauthorized persons were sitting on the tractor which amounts to violation of the terms and conditions of the insurance policy. The repudiation of the claim on this ground cannot be said to be illegal.

6 Now the only question which is left to be determined by this Forum is as to whether the opposite party was justified in repudiating the claim of the complainant on the ground that since the driving license of the driver was not produced, it amounted to breach of the terms and conditions of the insurance policy. In this respect, the opposite party had made reference to the correspondence which had preceded prior to the institution of the complainant and has stated that by number of letters, the complainant was called upon to furnish the driving license of the driver for the purpose of the settlement of the claim but despite that the complainant has failed to furnish the driving license . The material on record clearly shows that in respect of the claim lodged by the complainant, the insurance company referred the matter to its Surveyor Sh. M.L.Gupta who has given his report dated 19-8-2007 Annexure R-3 and who in his report had mentioned that the driving license had not been produced by the insured .


Thereafter by the letters dated 21-8-2007 Annexure R-4 and letter dated 14-9-2007 Annexure R-5 the insurance company had asked the complainant for furnishing the driving license but the same was not furnished . It is in these circumstances the opposite party had repudiated the claim of the complainant by means of letter dated 11-12-2007 Annexure R-8. It is to be stated that as per the terms and conditions of the insurance policy Annexure R-1, the opposite party i.e. the insurance company is under an obligation to settle the claim in accordance with the terms and conditions of

the insurance policy. The policy in such situation is in par with the contract . There are corresponding obligations caste under the contract upon the insured i.e. complainant herein as well. If one reads the printed terms and conditions of the policy , it has been specifically mentioned in condition No.1 that immediately upon the occurrence of any accidental loss or damage,a notice shall be given in writing to the company and thereafter the insured shall give all such information and assistance as the company shall require. In the present case, as it is amply demonstrated from the correspondence between the parties which preceded to filing of the complaint that the complainant despite being repeatedly called upon for furnishing the driving license had not done so. In the letter dated 26-9-2007 annexure R-6 written by the complainant to the opposite party he had mentioned that the driver died in the accident and he was having LTV license .


It has further been stated that he had seen his license before appointing him as driver but did not keep the Photostat copy of the driving license and after his death the driving license could not be traced any where . However, in our opinion it is not sufficient for the complainant to state that the driving license of the driver could not be traced by him. As a matter of fact there is failure on the part of the complainant to discharge his contractual obligation to furnish the driving licence or its particulars to the insurer which were repeatedly called upon by it from the complainant. In our opinion ,in the first place it is for the complainant to produce either the driving license or its photocopy or its particulars .


Once the complainant produces the driving license or its particulars then the onus will shift on the insurer and it is for the insurer to get the driving license verified as to whether it is valid or not. However, as the complainant had failed to produce the driving license or its particulars , it cannot be said that the opposite party was deficient in providing service to the complainant .Therefore , the repudiation of the claim of the opposite party cannot be said to be illegal and the grievance of the complainant against the insurance company i.e. the opposite party of deficiency in service has to be rejected as being not established .

7 In view of what has been discussed hereinabove, we hold that the complainant fails to establish charge of deficiency against the opposite party . Therefore , the complaint is dismissed with no order as to costs .



8 Copy of this order be supplied to the parties free of cost as per Rules.



9 File, after due completion be consigned to the Record Room.

Shri Pradeep Kumar Sood S/O late Shri Narinder Kumar Sood, Resident of Subathu Road, Dharampur, Tehsil Kasauli, District Solan, H.P.



… Complainant

Versus



The Oriental Insurance Company Limited,

Through its Manager, Office at The Mall,

Solan, District, Solan H.P.

…Opposite Party.



O R D E R:

Sureshwar Thakur (District Judge) President:- The instant complaint has been filed by the complainant, by invoking the provisions of Section 12 of the Consumer Protection Act, 1986. The complainant avers that he is owner of Mahindra Max bearing registration No.HP-64-0474, which was insured with the OP-Company commencing from 01.06.2005 to 31.05.2006. It is averred that the aforesaid vehicle was stolen, on, 15.11.2005 at Subathu Road. The complainant, further, proceeded to aver, that, the aforesaid incident of theft was brought to the notice of the OP-Company, as also, to the Police, upon which FIR No.163/2005, came to be lodged with Police Station, Dharampur, and thereafter, insurance claim was also lodged with the OP-Company. The OP-Company, instead of settling the insurance claim, dilly-dallied the same, on one pretext or the other. Hence, it is averred that there is apparent deficiency in service on the part of the OP-Company and accordingly relief to the extent as detailed in the relief clause be awarded in favour of the complainant.

2. The OP-Company, in its written version, to the complaint, raised preliminary objection vis-à-vis maintainability of the complaint. On merits, it is contended that the complainant did not furnish the requisite and mandatory documents to them for consideration and settlement of his claim. They further contend that the complainant did not submit the copy of untraced report/final investigation report prepared by the police. Hence, it is denied, that, there was any deficiency in service on their part or that they have indulged in an unfair trade practice.

3. Thereafter, the parties adduced evidence, by way of affidavits, and, documents in support of their respective, contentions.

4. We have heard the learned counsel for the parties at length and have also thoroughly scanned the entire record of the case.

5. The vehicle named and styled as ‘Mahindra pickup’, was stolen, on, 15.11.2005. The theft, as, had occurred, had so occurred during the currency of the insurance policy purchased by the complainant from the OP-Company. An FIR, Annexure Cw1/A, in relation to the theft came to be lodged with the Police Station, Dharampur. The OP-Company resists the claim of the complainant on the score that the complainant, did, not lodge the FIR with the concerned police station, and, also, did not produce untraced report, besides, the court order, was also not produced, whereas, the production of the aforesaid, before it, being a mandatory requirement under the insurance policy, hence, the OP-Company, was well within its right, to, repudiate the claim, of, the complainant.

6. Before dealing with the first contention, as, urged, before us, on behalf of the OP-Company, regarding non-registration of, an, FIR with the concerned police station, the said contention appears, to be, not, tenable, in face, of, the existence of a copy of FIR Annexure CW1/A, on record, whose perusal discloses the fact that on, 15.11.2005, when the complainant reached, at his shop, he found the vehicle missing, hence, reported the matter to the police, upon which FIR bearing No.163/2005, came to be lodged with the concerned police station.


Therefore, with the complainant having reported the matter to the police, and thereafter an FIR qua theft of vehicle, having come to be registered, the, action, of, the OP-Company to have repudiated the claim of the complainant, for, non-supply of the copy of the FIR, was not a legally justifiable stand. Since, their exists on record, the copy of FIR, its, requirement by the OP-Company, is, hence, meaningless.

7. In pronouncing upon the vigor of the second contention as raised by the OP-Company regarding non-supply of untraced report, as also, of the court order, whereas, their production before, it, being a mandatory requirement under the policy, hence, on their non-production, the terms and conditions of the insurance policy having come to be breached, as such, validating their repudiation, the said contention, is, falsified by, a, bare reading of the insurance cover whose recitals do not enjoin, the, insured to produce them before it, hence, insistence of theirs being produced before it, by the insured, is, beyond the purview of the insurance policy, as such, when their production is not mandatory, their, non-production, does not comprise a breach of the insurance cover. As such, rejection of the claim of the insured, for, their non-production, is, untenable.


Moreover, in case, the insurer desired to obtain the aforesaid, then, it was for them to do the needful, rather, theirs untenably enjoin the insured to do so. In taking this view, we draw sustenance from the case law as reported in Latest HLJ 2009 (HP) 714 of the Hon’ble HP State Consumer Commission, as rendered in First Appeal No.277/2008, decided on 01.04.2009, in case Rajinder Kumar versus General Manager, National Insurance Company Ltd.. Therefore, for lack of such copy of court order, in terms of the view, as taken by the Hon’ble Commission, the OP-Company, is, obliged to indemnify the claim of the complainant, and its repudiation, for non-supply of the aforementioned documents, was a clear cut deficiency in service on the part of the OP-Company.

7. Since, the vehicle was manufactured in the month of May, 2004, and it having been stolen on, 15.11.2005, i.e. within six months, from the date of effecting insurance, with the OP-Company, and as per the terms and conditions of the insurance policy, no depreciation is permissible to be afforded to the OP-Company, while making good the loss of the complainant, in terms of theft of his insured vehicle.

8. In view of the aforesaid discussion, this complaint deserves to be allowed in the following terms:-

i) That the OP-Company, shall indemnify the complainant, to the extent of the insured sum, i.e. Rs.3.00 lacs;

ii) That the aforesaid amount of indemnification, shall carry interest at the rate of 9% per annum, with effect from the date of filing of the complaint, i.e. 05.10.2007, till actual payment is made.

iii) That the OP-Company, is also saddled with litigation cost of Rs.3,000/-;

iv) That the OP-Company, shall comply with this order within a period of forty five days, after the date of receipt of copy of this order;

v) That since the claim of the complainant, has been settled on total loss basis, in that eventuality, the complainant shall surrender R.C. and key of the vehicle, to the OP-Company, and shall also furnish indemnity bound in their favour that in case of recovery of the vehicle, he shall not claim ownership thereof;

9. The learned counsel for the parties undertook to collect the certified copy of this order from the office, free of cost, as per rules. The file after due completion, be consigned to record room.

Smt. Sunita Devi Wife of Shri Kashmiri Resident of M.C Quarters, Phagli, Tehsil and District Shimla-171004 (H.P.).



… Complainant.

Versus



The Oriental Insurance Company Ltd. Mythe Estate, Kaithu, Tehsil and District Shimla-171003 9 H.P.) Through its Senior Divisional Manager.

…Opposite Party.





O R D E R:

Sureshwar Thakur (District Judge) President:- This complaint has been filed by the complainant, by invoking the provisions of Section 12 of the Consumer Protection Act, 1986. The complainant avers that he is owner of Tata-207 Pickup bearing registration No.HP-63-0517, which was insured, by him, with the OP-Company, for a period of one year commencing from 27.10.2005 to 26.10.2006. He further avers that, on, 08.10.2006, during the currency of the insurance policy, the aforesaid vehicle met with an accident and suffered extensive damage. It is further averred that, the factum of the vehicle having met with an accident was reported to the OP-Company, who in turn deputed the spot surveyor to assess the loss caused to the vehicle.


Thereafter, he, got his vehicle repaired by incurring an amount of Rs.50,000/- to make it road worthy, hence, lodged an insurance claim with the OP-Company, who instead of settling the insurance claim, dilly-dallied its settlement, for one reason or the other. Hence, feeling aggrieved and dissatisfied, it is averred that, there is apparent deficiency in service on the part of the OP-Company and accordingly relief to the extent as detailed in the relief clause be awarded in favour of the complainant.

2. The OP-Company, in its written version, to the complaint, raised preliminary objections vis-à-vis maintainability of the complaint, breach of terms and conditions of the insurance policy, inasmuch, as, unauthorized passengers were traveling in the vehicle at the time when it met with an accident. On merits, it is contended that on receipt of the information regarding accident, Loss Assessor was appointed to assess the loss, who assessed the loss at Rs.19,499/-, whereas, the value of the salvage was assessed at Rs.650/-, which was payable to the insured subject to terms and conditions of insurance policy. Since, there was violation of the terms and conditions of the insurance policy, hence, the OP-Company was well within its right to repudiate the claim of the complainant. Hence, it is denied, that, there was any deficiency in service on their part or that they have indulged in an unfair trade practice.

3. Thereafter, the parties adduced evidence, by way of affidavits, and, documents in support of their respective, contentions.

4. We have heard the learned counsel for the parties at length and have also thoroughly scanned the entire record of the case.

5. The vehicle of the complainant insured with the OP-Company during the currency of the insurance policy met with an accident, on, 08.10.2006. The fact of the accident was brought to the notice of the OP-Company and surveyor appointed by the OP-Company, assessed the loss caused to the vehicle in the accident. The OP-Company, has, resisted the claim of the complainant on the ground that since, an, unauthorized passenger namely Shri Chaman Lal, was traveling in the vehicle, his being, so, unauthorisedly carried in the vehicle occasioned a breach of terms and conditions of the insurance policy, therefore, it is contended, that, the repudiation of the claim, is, tenable.

6. However, a perusal of the challan form, annexed as Annexure C-4, reveals that, it, bears a date contemporaneous to the date on which the accident occurred, as also the fact that the consignor, of, the goods as was being carried in it, being a consignment of raddi, was one Shri Chaman Lal and in the rejoinder furnished by the complainant in repudiation to the reply of the OP-Company, that, Shri Chaman Lal was occupying the vehicle unauthorisedly, it, has been elucidated that Shri Chaman Lal was traveling in the vehicle along with goods, which fact as detailed in the rejoinder accompanied by an affidavit sworn by the complainant has not been repulsed by satisfactory evidence in rebuttal furnished by the OP-Company.


Hence, the effect is that it leads us, to, the inference, as, sprouting from the recitals Annexure C-4, that, not only Shri Chaman Lal had availed of the service of the vehicle owned by the complainant by seeking to transport in the vehicle the goods, as reflected in it, on a date contemporaneous to the accident, but, also, when he was the owner of the consignment, it, has to be obviously, also, inferred for lack of evidence in rebuttal furnished to the rejoinder of the complainant that he was traveling in the vehicle, that as a matter of fact, he was so traveling in it as owner, of, the goods, hence, his traveling in the vehicle along with goods which he owned, cannot, be, construed to be an unauthorised traveling in the vehicle. Consequently, the ground as urged by the OP-Company for repudiating the claim of the complainant is untenable.

7. The further ground that Annexure C-4 is bereft of its value in the light of the fact that in the Loss Assessor having visited the site of the accident, the raddi as was purportedly carried in the vehicle was not found in it, hence, the fact Shri Chaman Lal was traveling in the vehicle is repulsed, comes to be deprived, of, its efficacy in its light of the contents, of, the rejoinder, wherein, it has been pointedly stated that Chaman Lal had unloaded the radi from the ill-fated truck from the spot and had availed of the service of another vehicle for, its, being carried to the destination. Moreover, for failure on the part of the OP-Company to rebut the said contention, as urged in the rejoinder, the inference, is, that the effort made by the OP-Company to repulse the effect of Annexure C-4, is, aborted.

8. Since, the OP-Company has contended that the Loss Assessor had assessed the loss at Rs.19,499/-, hence for lack of rebuttal to the said assessment, it is to be construed that the complainant has acquiesced to the said assessment, hence, it is to be inferred that the only amount which is payable to the complainant is to the extent of Rs.19,499/-.

9. In the light of the above discussion, the complaint is allowed in the following terms:-

i) That the OP-Company shall indemnify the complainant, to the extent of Rs.19,499/-;



ii) That the aforesaid amount to be paid to the complainant, by the OP-Company, shall carry interest, at the rate of 9% per annum, with effect from the date of filing of the complaint, i.e.11.09.2007, till making entire payment of the awarded sum;



iii) That the litigation cost is quantified at Rs.1500/- payable by the OP-Company to the complainant;



iv) That the OP-Company shall comply with this order, within a period of forty five days, after the date of receipt of copy of this order;



10. The learned counsel for the parties undertook to collect the certified copy of this order from the office, free of cost, as per rules. The file after due completion, be consigned to record room.

Smt. Subhadra Kumari Wd/o late Sh. Ashok Kumar C/o Sh. Bhadur Singh R/o Village & P.O Juri, Tehsil Rampur Bushehr, Distt. Shimla, H.P.



… Complainant.

Versus



The Oriental Insurance Company Ltd.

Through its Branch Manager Branch Office,

Opposite Anup Service Station, Kaithu Shimla, H.P.

…Opposite Party.





O R D E R:




Sureshwar Thakur (District Judge) President:- This complaint has been filed by the complainant, by invoking the provisions of Section 12 of the Consumer Protection Act, 1986. The complainant avers that her husband late Shri Ashok Kumar was owner of Swaraj Mazda bearing registration No.HP-63-0793, which was insured, by him, with the OP-Company, for a sum of Rs.5,42,000/-, for a period of one year commencing from 30.07.2004 to 29.07.2005. She further avers that, on, 26.03.2005, during the currency of the insurance policy, the truck rolled into a ditch and suffered total loss. It is further averred that, the factum of the vehicle having rolled down into a ditch, thereby causing total loss to it, was reported to the OP-Company, as also, to the Police, upon which, FIR No.41/2005, dated, 26.03.2005 came to be lodged with Police Station, Rampur. Thereafter, she, complied with the requisite formalities, and lodged an insurance claim with the OP-Company, who instead of settling the insurance claim, vide communication dated 03.09.2007 repudiated her claim. Hence, feeling aggrieved and dissatisfied, it is averred that, there is apparent deficiency in service on the part of the OP-Company and accordingly relief to the extent as detailed in the relief clause be awarded in favour of the complainant.

2. The OP-Company, in its written version, to the complaint, raised preliminary objections vis-à-vis maintainability of the complaint, breach of terms and conditions of the insurance policy, inasmuch, as, gratuitous passengers were traveling in the vehicle at the time when it met with an accident. On merits, it is contended that on receipt of the information regarding accident, investigator was appointed, who reported that four persons were traveling in the vehicle when it met with an accident, hence, the OP-Company was well within its right to repudiate the claim of the complainant. Hence, it is denied, that, there was any deficiency in service on their part or that they have indulged in an unfair trade practice.

3. Thereafter, the parties adduced evidence, by way of affidavits, and, documents in support of their respective, contentions.

4. We have heard the learned counsel for the parties at length and have also thoroughly scanned the entire record of the case.

5. The vehicle of the complainant as insured with the OP-Company during the currency of the insurance policy purchased by the complainant, from the OP-Company, met with an accident, on, 26.03.2005. An FIR in relation to the accident came to be lodged with the concerned Police Station. The OP-Company resists the claim of the complainant on the ground that since the vehicle at the relevant time was carrying passengers beyond the permissible limit, hence, breach of the policy having come to be occasioned, its repudiation is tenable.

6. In support of its contention that passengers beyond the permissible limit were traveling in the vehicle at the relevant time, reliance has been placed on Annexure R-1, which is the copy of the investigation report, as, filed by the Investigator.

7. However, a perusal of Annexure R-1 while reciting the names of persons traveling in the vehicle also reveals that an unidentified person was, also, traveling in the vehicle at the relevant time. Even if, besides the persons whose identities have been revealed in Annexure R-1, were traveling in the vehicle, their, was an unidentified person, also, traveling in the vehicle, at, the relevant time, then, unless, the Investigator had in his report expressly stated that the unidentified person so traveling in the vehicle, was traveling not as an owner of the goods carried in the vehicle, but, was traveling gratuitous, hence, unauthorisedly, at, the relevant time, obviously, in, the absence of such a conclusion as arrived by the Investigator in Annexure R-1, as also when, the complainant in paragraph 4, has, pointedly averred that, at the relevant time, besides, Shri Gopal Dass and late Shri Ashok Kumar, some other persons who were owners, of, the vegetables which was being carried in the vehicle, were also traveling in it, which averment, too, has not been subjected to a pointed denial, by the OP-Company, hence, cumulatively, the, OP-Company has not been able to satisfactorily prove, that, all the persons who were being carried in the vehicle, at, the relevant time, were, not, the owners of the goods, being, transported in it. As a corollary the unidentified person is also to be construed to be traveling in the vehicle as owner of the goods carried in it.

8. As a sequitor, the reliance placed on Annexure R-1, while it suffers from the above infirmity, cannot, be, of any avail to the OP-Company, in, contending before us that the unidentified person traveling in the vehicle, was traveling in it, unauthorisedly while being, not, one of the owners of the goods transported in the vehicle at the relevant time.

9. Even otherwise, the OP-Company has not been able to prove that assuming, if, the unidentified person was a gratuitous passenger, hence, in his being carried in the vehicle, a, breach of the terms and conditions of the insurance cover, was occasioned, that, in his being, so, carried in the vehicle contributed, to, the accident. In other words, the carrying of unidentified person, in, the vehicle at, the relevant time, when has, not been proved to be the fundamental cause of accident, so as, to, enable the OP-Company, to, repudiate or renege from, its, contractual obligation, as, unless, for reiteration, it, was proved that in the carrying of such a gratuitous passenger constituted such a fundamental breach inasmuch, as, it was the prima-dona cause of the accident, his, being unauthorisedly carried would not put an end to the contract.

10. Now comes the point of indemnification, for which amount the complainant is entitled from the OP-Company. Since, the OP-Company has assessed the loss at Rs.3,91,000/- on net of salvage basis, as per survey report Annexure R-2, and the said report of the Loss Assessor having not come to be repulsed by an expart report, hence, is to be construed to be the loss caused to the vehicle.

11. In the light of the above discussion, the complaint is allowed in the following terms:-

i) That the OP-Company shall indemnify the complainant, on net of salvage basis, to the extent of Rs.3,91,000/-;



ii) That the aforesaid amount to be paid to the complainant, by the OP-Company, shall carry interest, at the rate of 9% per annum, with effect from the date of filing of the complaint, i.e.11.09.2007, till making entire payment of the awarded sum;



iii) That the litigation cost is quantified at Rs.3500/- payable by the OP-Company to the complainant;



iv) That since the loss has been assessed on net of salve basis, hence, the complainant shall return the key and RC of the vehicle, to the OP-Company, on receipt of the awarded amount by him from the OP-Company;



v) That the OP-Company shall comply with this order, within a period of forty five days, after the date of receipt of copy of this order;



12. The learned counsel for the parties undertook to collect the certified copy of this order from the office, free of cost, as per rules. The file after due completion, be consigned to record room.

Krishan Singh Verma S/o Late Sh. Beli Ram Verma, R/o Vill. Khamoli, P.P. Khunni, Tehsil Nankhari,

District Shimla, H.P.



… Complainant.



Versus



1. The Divisional Manager, Oriental Insurance Company, Divisional Office, Near Pine View Hotel, TaraHall, Shimla H.P.



2. The Branch Manager, Oriental Insurance Company, K.No. Opposite Petrol Pump, Kaithu, Shimla 173003 H.P.

…Opposite Parties.









O R D E R:




This complaint has been filed by the complainant, by invoking the provisions of Section 12 of the Consumer Protection Act, 1986. The complainant avers that he was registered owner of Max Pickup bearing registration No.HP-63-1037, which was insured, by him, with the OPs-Company, for a period of one year commencing from 13.01.2005 to 12.01.2006. He further avers that the aforesaid vehicle, unfortunately, met with an accident, on, 17.02.2005, during the currency of the insurance policy and suffered extensive damage. It is further averred that, the factum of the vehicle, having met, with an accident, was report to the OP-Company, as also, to the Police, upon which, FIR bearing No.18/2005, was lodged with the Police Station, Theog. Thereafter, he, lodged a insurance claim with the OP-Company, who instead of settling the insurance claim, for an amount of Rs.45,500/-, approved it, for an amount of Rs.15,000/-. Hence, it is averred that, there is apparent deficiency in service on the part of the OPs-Company and accordingly relief to the extent as detailed in the relief clause be awarded in favour of the complainant.

2. The OPs-Company, in its written version, to the complaint, raised preliminary objections vis-à-vis maintainability of the complaint, and breach of terms and conditions of the insurance policy. On merits, it is contended that at the time of accident, the driver of the afflicted vehicle was not having valid and effective driving licence, hence, the complainant was asked to clarify the position regarding the invalidity of the driving licence possessed by its holder and since the complainant failed to do the needful, as such the claim was closed as no claim. However, it is contended that surveyor was appojnted to assess to inspect the vehicle and assess the loss caused to it, who assessed the loss at Rs.20,872/- which was to be paid to the insured, as per the terms and conditions of the insurance policy. Hence, the action of the OP-Company, in closing the claim, of the complainant, cannot be held to be unlawful. Hence, it is denied, that, there was any deficiency in service on their part or that they have indulged in an unfair trade practice.

3. Thereafter, the parties adduced evidence, by way of affidavits, and, documents in support of their respective, contentions.

4. We have heard the learned counsel for the parties at length and have also thoroughly scanned the entire record of the case.

5. The vehicle named and styled as ‘Mahindra & Mahindra’ as revealed by the registration certificate to be falling in the category of a, ‘light commercial vehicle’, met, with an accident, on 17.02.2005. The accident, as, had so occurred, had occurred during the currency of the insurance policy purchased by the complainant from the OP-Company. The FIR in relation to the accident came to be lodged with the concerned Police Station. The OP-Company resists the claim of the complainant on the score that the driver of the ill-fated vehicle was not was at the relevant time, possessing a valid and effective driving licence, inasmuch, as, with the vehicle being categorized, in the registration certificate, as a ‘light commercial vehicle’, its, driver possessing a licence to drive a light motor vehicle, without an endorsement of his being entitled to drive a transport vehicle, hence, was not possessed of a valid and effective driving licence to drive it.

6. In pronouncing upon the vigour of the contention as raised by the OP-Company, we draw sustenance from the order of the Hon’ble HP State Consumer Commission, as rendered in F.A.No.110 of 2006 decided on 15.07.2008, in case M/S Oriental Insurance Company Limited versus Shri Munish Rohal, wherein the Hon’ble HP State Consumer Commission, while determining the validity of the driving licence of a driver authorized to drive a light motor vehicle, when, the ill-fated vehicle in that case was registered as a light commercial vehicle, and the Hon’ble Appellate Forum while relying in their decision, the, judgments detailed in it, had held, while, distinguishing, the, judgment of the Hon’ble Apex Court as relied upon by the learned counsel for the insurer, that, since those judgments have not considered the applicability of Procedural Manual of Motor Claim (own damage and third party) and with the Hon’ble Appellate Forum while considering the impact of clause 10 of Procedural Manual of Motor Claim (own damage and third party) had held that for breach of conditions of policy, inasmuch, as, with the driver while holding a licence to drive a light motor vehicle, proceeded to drive a light commercial vehicle.


Hence, the claim of the insured has to be assessed on non-standard basis. While following the said verdict of the Hon’ble Appellate Forum, we hold that even if the licence of the driver did not authorize him to drive a transport vehicle, for, lack of such authorization, in, terms of the view, as taken by the Hon’ble Appellate Forum, the OP-Company, is, obliged to indemnify the claim of the complainant on non-standard basis.

7. Since, the Loss Assessor in his report dated 14.05.2005, while discarding certain estimated amounts, as purportedly expendable by the complainant on the repair of the vehicle, while discarding the same, has assigned reasons. Therefore, his assessment qua loss is to be accepted. Resultantly, in terms of the amount assessed and quantified, by the Loss Assessor, we direct that the OP-Company shall indemnify the complainant to the extent of Rs.20,871/-, on non-standard basis, i.e. the OP-Company shall pay 75% of Rs.20,871/- to the complainant along with interest at the rate of 9% per annum, from the date of filing of the complaint, i.e. 04.01.2006, till actual payment is made. In addition to this, the OP-Company shall also pay litigation cost of Rs.1500/-. This order shall be complied with, by the OP-Company within a period of forty five days, after the date of receipt of copy of this order.

8. The learned counsel for the parties undertook to collect the certified copy of this order from the office, free of cost, as per rules. The file after due completion, be consigned to record room.

Shri Nain Singh son of Sh. Mohar Singh,

Resident of Vill. Pab- Manal, Tehsil Shillai,

District Sirmaur, H.P.



… Complainant.

Versus



The Oriental Insurance Company Ltd. Through its Branch Manager, having its Office in Hotel Regency, Near Delhi Gate (Chaugan) Nahan, Distt Sirmour, H.P.



…Opposite Party.





O R D E R:



This instant complaint, has been filed by the complainant, by invoking the provisions of Section 12 of the Consumer Protection Act, 1986. The complainant avers that he is owner of Bolero Camper bearing registration No.HP-17B-0231, which was got insured, by him, with the OP-Company vide insurance cover bearing No.786482, valid from 08.04.2006 to 07.04.2007. It is averred that on, 20.03.2007, the aforesaid vehicle met with an accident, and suffered extensive loss. As usual, the matter was brought to the notice of the OP-Company, as well, as, to the notice of the Police, upon which Rapat bearing No.4, dated 21.03.2007, came to be lodged with Police Station, Renukaji.


Thereafter, the insured preferred the insurance claim with the OP-Company, who instead of settling it, delayed its settlement on one pretest or the other, which as per allegation of the complainant, tantamounts to deficiency in service and unfair trade practice. Hence, it is averred that there is apparent deficiency in service on the part of the OP-Company, and, accordingly, the relief to the extent, as detailed in the relief clause, be awarded in favour of the complainant.

2. The OP-Company, in its written version, to the complaint, raised preliminary objection regarding maintainability of the complaint, inasmuch, as, that the claim as filed by the complainant is fraud. On merits, it is contended that the insured has lodged a false claim in order to extract under money and part with the vehicle. They further contend that no repairs have been carried out by the complainant, as this fact came to light when the surveyor appointed by them investigated the matter. Hence, it is contended that there was no deficiency in service on their part.

3. Thereafter, the parties led evidence in the shape of affidavits/documents, in support of their respective rival contentions.

4. We have heard the learned counsel for the parties and have thoroughly scanned the entire record of the case.

5. The vehicle of the complainant as insured by the OP-Company, met with an accident, during the currency of the insurance policy, on, 20.03.2007, inasmuch, as, it rolled into a ditch when the driver was not occupying the driver’s seat. The complainant in support of his claim, has relied upon Annexure-A, which is a copy of the entry made in the Rojnamcha of the concerned Police Station. Its perusal reveals the fact that on the fateful day, when the vehicle arrived at the site of the accident, the driver on noticing a sound in the engine, stopped the vehicle and after applying hand brakes, alighted from the vehicle, to, inspect the same. However, the vehicle moved on its own and rolled into a ditch. The above recital in Annexure-A, contended by the OP-Company, to be concocted, inasmuch, as, it is contended that the complainant had pushed the vehicle into the ditch.

6. However, no, report of any mechanical expert has been adduced by the OP-Company, in, support of the said contention or to falsify the contention of the complainant that that the engine had developed a defect, for inspection whereof, he, had alighted from the vehicle at which stage, the vehicle rolled into a ditch. Only on the report of the mechanical expert having been placed on record, we would have been able to concur with the submission of the OP-Company, that, the defect in the engine for whose inspection the driver had alighted from the vehicle, had, not as a matter of fact occurred, hence, the plea as raised by the complainant, of a defect having occurred in it, is, not to be imputed credence.

7. Moreover, the further plea of the complainant that even after application of hand brakes, the vehicle rolled into the ditch, has not come to be falsified by the report of the mechanical expert. Accordingly, for lack of rebuttal to the plea as raised by the complainant, which is duly supported by an affidavit qua the manner of rolling of the vehicle, into a ditch, the same is to be construed to be credible. As a sequel, then, the ground for repudiating the claim of the complainant by the OP-Company carries no weight.

8. Henceforth, adverting to the quantum of compensation payable to the complainant by the OP-Company, an advertence, ought to be made to Annexure OP-3, wherein the Loss Assessor while assessing the loss, has in his wisdom discarded the estimates and has assigned reasons for discarding them. Therefore, with the Loss Assessor in Annexure OP-3, having, as such, furnished reasons for discarding the estimates qua the sums as required to be expended on making the vehicle road worthy, the loss assessed by him, as such, is to be constructed to be worthy of credence.

9. Consequently, we allow this complaint and direct the OP to indemnify the complainant to the extent of Rs.1,71,202/-, along with interest at the rate of 9% per annum with effect from the date of filing of the complaint, i.e. 28.03.2008 till making full payment of the aforesaid amount to the complainant. The OP-Company is also directed to pay litigation cost of Rs.2500/- to the complainant. This order shall be complied with, by the OP-Company, within a period of forty five days, after the date of receipt of copy of this order. With this, the complaint stands disposed of. The learned counsel for the parties have undertaken to collect the certified copy of this order from the office. The file after due completion, be consigned to record room.

Shri Tilak Raj S/o Shri Kanthi Ram, resident of V.P.O Sangrah, Tehsil Renuka Ji, District Sirmaur, H.P.



… Complainant.

Versus



The Oriental Insurance Company Ltd.,

The Mall, Nahan, Distt. Sirmaur,

Through its Branch Manager.



…Opposite Party.






O R D E R:



This instant complaint, has been filed by the complainant, by invoking the provisions of Section 12 of the Consumer Protection Act, 1986. The complainant avers that he got his building and residential premises insured with the OP-Company vide insurance cover note bearing No.0089421, effective from 03.05.2005 to 02.05.2015, for an amount of Rs.4.00 lacs. It is averred that on, 11.03.2006, due to heavy rain/earth quake, the insured residential premises of the complainant got destroyed/damaged, and suffered loss of Rs.2,92,694/-. As usual, the matter was brought to the notice of the OP-Company, and thereafter, the insured preferred the insurance claim with the OP-Company, for indemnification, who instead of settling it, repudiated vide communication dated 28.07.2006, which as per the allegation of the complainant, tantamounts to deficiency in service and unfair trade practice. Hence, it is averred that there is apparent deficiency in service on the part of the OP-Company, and, accordingly, the relief to the extent, as detailed in the relief clause, be awarded in favour of the complainant.

2. The OP-Company, in its written version, to the complaint, raised preliminary objection regarding maintainability of the complaint, inasmuch, as, that there is no deficiency in service. On merits, it is contended that the insured had procured the policy fraudulently as on inspection, it was found that the ground & first floors, were under construction and that the building was not designed or used for residential purpose, hence, the OP-Company was well within its right to refuse the indemnification amount to the insured. Hence, it is contended that there was no deficiency in service on their part.

3. Thereafter, the parties led evidence in the shape of affidavits/documents, in support of their respective rival contentions.

4. We have heard the learned counsel for the parties and have thoroughly scanned the entire record of the case.

5. It is not disputed that the semi constructed building of the complainant suffered a loss caused to it, by a landslide, which had occurred as a result of heavy rains. The loss to which the semi constructed building of the complainant was put to, did, occur during the currency of the insurance policy purchased by the complainant from the OP-Company covering the risk of damage to it by landslides caused by heavy rains. The complainant had reported the occurrence to the Police and intimation, is, recorded in the Rapat Rojnamcha, of the concerned Police Station, which bears Annexure-D.

6. However, the OP-Company repudiated the claim of the complainant on the score, that, though, the policy purchased by the complainant from the OP-Company covered or contemplated risk of damage caused to the building, by, natural causes, yet, in the light of the report of the Loss Assessor, as well, as, photographs placed on record, detailing as well, as, revealing the fact of part of the construction having been raised for purported commercial purpose, hence, the benefits of the policy limited to residential premises only, whereas, a part of the semi constructed building was envisaged, in, the light of the aforesaid revelation, in, the photographs placed on record, as well, as, in the report of the Loss Assessor, for commercial use, cannot, hence, for, breach of the insurance policy, be, afforded to the complainant.

7. Even though, the photographs, as placed, on, record revealing the fact that shutters have been installed by the complainant on two portions of the building on the ground floor, on, strength whereof, the, Loss Assessor inferred that such portions of the building were contemplated to be used by the complainant for commercial purposes, hence, affording leverage to the OP-Company, to, contend that the benefit of the policy, cannot, be afforded, to, the complainant for his act of having come, to, install shutter on the ground floor of the semi constructed building implying user of such portion for commercial purposes, hence, having committed breach of the policy condition.


Yet, the mere fact that the shutters have been installed on two portions of the semi constructed building of the complainant implying their contemplated user for commercial purposes, cannot, unless their was sure and satisfactory evidence, adduced by the OP-Company, that as a matter, of, fact, the complainant has been using such premises for commercial purpose, enable us, to, lend sustenance to the said contention, as, there, is, a big hiatus between contemplated user and actual user, only, the later tantamounting to breach of policy inviting repudiation of claim.

8. Moreover, with the fact of user by the complainant of the said premises for commercial purposes could also have been substantiated by adduction of evidence by way of receipts of sales tax as deposited by the complainant before the Taxing Authorities. In the absence of the above evidence, mere installation of shutters by the complainant on two portions of the building on the ground floor, cannot, hence, enable us to infer that the complainant had been using the premises for commercial purposes, hence, having infracted the provisions of the insurance policy contemplating the coverage of risk qua only the building used for residential purpose, alone, as such, was disentitled to the benefit thereof. Resultantly, the ground as put forth by the OP-Company for repudiating the claim of the complainant, is, untenable.

9. The complainant has depended upon the extract of estimate prepared by the Public Works Department, in which the official of the Public Works Department had assessed the loss at Rs.2,60,700/-. On the contrary, the OP-Company depends upon the report of the Loss Assessor bearing Annexure OP-3, wherein, the Loss Assessor has quantified the loss to the building at Rs. 91,591/-. With the diversity in the findings as recorded by the official of the Public Works Department on whose report the complainant relies and the finding as recorded, in, Annexure OP-3, on whose finding the OP-Company, relies, we are to hence, conclude, as, to, which finding carries more weight. Annexure-A, which is the finding recorded by the official.


The Public Works Department on whose finding the complainant relies, the official has, in, Annexure-A has depended on the abstract of cost expendable on these parts of the building of the complainant purportedly damaged by the landslide. However, a perusal, thereof reveals that the official of the Public Works Department, in, the annexure appended to Annexure-A, has, espoused the carrying out of certain works in the foundation, as well, as other ancillary works which per say, in, our considered view are meant for undoing the structural defects as had erupted, at, the initial stage of the construction.


The works, as, espoused by the official prepared in Annexure-A, hence, in our considered view, have, no, nexus with the damage caused to those portions of the building by the landslides occasioned on account of heavy rains nor, also, when such works as advised by the official of the Public Works Department, have been not concluded by him on the strength of evidence led or considered by him to be such works are necessary, for, undoing the damage caused to those portions by a natural cause, hence, the advisory works are meant for fortification of the building or for undoing the defects in the construction, as such, when otherwise not found to be attributable to the landslide, are irrelevant for assessing the loss payable to the complainant Therefore, we are disinclined to accord sanctity to Annexure-A.

10. On the other hand, the report, of, the Loss Assessor relied upon by the OP-Company bearing Annexure OP-3, is, not only incisive, but, also details the expenditure necessary to be carried out on those portions of the building which were damaged as a result of the landslides caused by heavy rains. The Loss Assessor in Annexure OP-3, has not only been careful, but, has, also attributed reasons for not assessing in favour of the complainant, these losses not envisaged by the insurance cover, as also, excluded such losses, which have not befallen the building, as, a result of the landslide. The rates as applied by the Loss Assessor while assessing the loss in favour of the complainant, is, on the basis of the approved rates of the Public Works Department, hence, the loss assessed by him, cannot be said to be assessed arbitrarily. For reasons aforesaid, we are inclined to accord sanctity to the loss assessed by the Loss Assessor in Annexure OP-3.

11. In the light of the above discussion, the complaint is allowed in the following terms:-

i) That the OP-Company shall indemnify the complainant to the extent of Rs.91,591/-;



ii) That the aforesaid amount, shall carry interest at the rate of 9% per annum, with effect from the date of filing of the complaint, i.e. 11.01.2008, till making entire payment of the awarded amount;



iii) That the OP-Company, shall also pay litigation cost of Rs.1500/- to the complainant;



v) That the OP-Company shall comply with this order, within a period of forty five days, after the date of receipt of copy of this order;



12. The learned counsel for the parties undertook to collect the certified copy of this order from the office, free of cost, as per rules. The file after due completion, be consigned to record room.

Sh. Mohit Maria son of Shri Yashpal Maria, resident of Dadahu, Tehsil Nahan, Distt Sirmaur ( H.P.)



… Complainant.

Versus



The Oriental Insurance Company Ltd., The Mall Nahan, Distt. Sirmour, H.P. through its Branch Manager, Branch Office, at Nahan, H.P.





…Opposite Party.









O R D E R:



This instant complaint, has been filed by the complainant, by invoking the provisions of Section 12 of the Consumer Protection Act, 1986. The complainant avers that he is owner of Mohindra & Mohindra Bolero Jeep bearing registration No.HP-18A-1210, which was got insured with the OP-Company vide policy bearing No.549043, valid from 23.12.2003 to 22.12.2004. It is averred that on, 27.09.2004, the aforesaid fell into a deep gorge thereby resulting in total damage. As usual, the matter was brought to the notice of the OP-Company, as well, as, to the notice of the Police, upon which FIR bearing No.74/2004, came to be lodged with Police Station, Rajgarh. Thereafter, the insured preferred the insurance claim with the OP-Company, who instead of settling it, delayed its settled on one pretest or the other, which as per further allegation of the complainant, tantamounts to deficiency in service and unfair trade practice. Hence, it is averred that there is apparent deficiency in service on the part of the OP-Company, and, accordingly, the relief to the extent, as detailed in the relief clause, be awarded in favour of the complainant.

2. The OP-Company, in its written version, to the complaint, raised preliminary objections regarding maintainability of the complaint, inasmuch, as, that there is no deficiency in service and that the driver of the vehicle did not possess a valid and effective driving licence to drive the vehicle. On merits, it is contended that the OP-Company was well within its right to refuse the indemnification amount to the insured as there was violation of terms and conditions of the insurance policy, as the driver of afflicted vehicle did not possess a valid and effective driving licence, and further that there were unauthorized passengers sitting in the afflicted vehicle at the time, when the vehicle rolled down into a deep gorge. Hence, it is contended that there was no deficiency in service on their part.

3. Thereafter, the parties led evidence in the shape of affidavits/documents, in support of their respective rival contentions.

4. We have heard the learned counsel for the parties and have thoroughly scanned the entire record of the case.

5. The OP-Company, has, repudiated the claim of the complainant, on the strength, that, with the registration of vehicle Annexure-B, revealing the fact of its being registered as a ‘commercial vehicle’, hence, a, ‘transport vehicle’, therefore, with the complainant, placing reliance on the driving licence of the driver merely authorizing him to drive a light motor vehicle, without an endorsement of his being entitled to drive a transport vehicle, in which category, it fell, therefore, he not possessing a valid and effective driving licence, to drive the vehicle, the claim of the complainant for breach of the terms and conditions of the insurance policy, is, tenable.

6. Considering the fact that the contention of the complainant is corroborated by Annexure-B, as well, as, by Annexure-N, which is the driving licence of the complainant. Therefore, obviously, with Annexure-B, revealing the fact of vehicle, having been registered as a commercial vehicle, hence, a transport vehicle, there was a legal necessity of its driver to hold a licence with an endorsement on it of his being authorized to drive a transport vehicle, whereas, Annexure-N, does not while authorizing its holder to drive alight motor vehicle, contain an endorsement of his being authorized to drive a transport vehicle, in which category the vehicle fell. As such, he was disentitled to drive the vehicle. On this point, we draw strength from case law as laid down by the Hon’ble Apex Court, in case New India Assurance Co. Ltd. Versus Prabhu Lal. Hence, the action of the OP-Company, in repudiating the claim of the complainant, cannot be construed to be illegal and arbitrary, as such, attribution of deficiency in service on the part of the OP-Company, is, false.

7. In view of the above, the complaint being without any merit deserves dismissal, hence we order accordingly, leaving the parties to bear their own cost. The learned counsel for the parties undertook to collect the certified copy of this order from the office, free of cost, as per rules. The file after due completion, be consigned to record room.

M/s Himalya International Ltd. Shubkhera, through its M.D. Sh. Manmohan Malik, through his G.P.A, Sh. Neeraj Mehra, the Finance Controller of the M/s Himalya International Ltd. Shubkhera.





… Complainant.

Versus



The Oriental Insurance Company Ltd., The Mall Nahan, H.P.



…Opposite Party.







O R D E R:



This instant complaint, has been filed by M/S Himalya International Limited, through its Managing Director Shri Manmohan Malik, through his General Power of Attorney Shri Neeraj Mehra, by invoking the provisions of Section 12 of the Consumer Protection Act, 1986. The complainant avers that it deals in processing and export of Mushrooms and other vegetables. It is averred that on 26.05.2005, 1250 cartons of frozen mushrooms were to be exported from Shubhkhera, Paonta Sahib to M/S Rich Sea Pack, Georgia in United States, which were insured with the OP-Company, till its delivery, to the customers in U.S.A. The complainant further proceeded to aver that on 15.07.2005, 952 cartons, out of 1250 cartons, were lifted from Legend Warehouse to M/S Rich Sea Pack Atlas Cold Storage, Georgia and on inspection, the mushroom contained in the said cartons were not found in good condition, hence, customer refused to take the delivery. When the customer did not take the delivery of the mushrooms, the complainant requested the OP-Company to indemnify the loss.


It is averred that the complainant suffered a loss of Rs.19.05 lacs, but the denial of the OP-Company, in indemnifying the complainant for the loss, tantamounts to deficiency in service and unfair trade practice on their part. Hence, it is averred that there is apparent deficiency in service on the part of the OP-Company, and accordingly relief to the extent, as detailed in the relief clause, be awarded in favour of the complainant.

2. The OP-Company, in its written version, to the complaint, raised preliminary objections regarding maintainability of the complaint, inasmuch, as, complainant is not a consumer as the transaction was a commercial in nature, that there are complicate question of facts and law, and that no policy exist for risk cover. On merits, it is contended that deficit premium was paid by the complainant and no risk was covered beyond the Port of Discharge at New York. It is further contended that the loss of only 952 cartons was reported and there was no loss to the remaining 298 boxes, which were lying at Legend Warehouse, hence the damage occurred after the release of 952 boxes from Legend Warehouse, as such, the claim is not payable. Hence, it is contended that there was no deficiency in service on their part.

3. Thereafter, the parties led evidence in the shape of affidavits/documents, in support of their respective rival contentions.

4. We have heard the learned counsel for the parties and have thoroughly scanned the entire record of the case.

5. The insurance cover as purchased by the complainant from the OP-Company covered the risk of damage to the goods, during their transit from Paonta Sahib for thier delivery to the consignee, at, the port of discharge, i.e. New York. The complainant alleges, that, of 1250 cartons sent by ship to the consignee, 952 cartons, during transit got damaged, hence, he has asserted a claim to the extent as claimed from the OP-Company.

6. The parties do not dispute the fact that it was during the currency of the insurance cover that the purported damage was caused to a part of the consignment. However, the OP-Company resists the claim of the complainant on the score that the complainant has not been able to adduce cogent and satisfactory proof qua the fact that it was during the course of the goods having been carried in the ship till port of discharge, that, the goods were damaged.

7. A perusal of Annexure OP-3, as well, as, Annexures OP-4 & OP-5, while revealing the fact that the place of delivery of the consignment was New York, hence, countenances the contention of the OP-Company that the goods sent by ship were to be delivered at New York. However, a perusal of Annexure OP-7, reveals the fact that the container carrying the goods was released from the ship on 29th June, 2005. Annexure OP-7, also, divulges the fact that it was on 7th July, 2005 that the container was picked up CH Robinson Trucking from the port of discharge and was received by Legend Warehouse & Trucking Report on, 15.07.2008. It was on, August 15, 2005 that the Trusl Trucking picked 952 cases of the Shipment from Legend Warehouse in Traller, for, delivery to Atlas Cold Storage, Dougals, Georgla. The date of delivery of the consignment to Atlas Cold Storage, Dougals, Georgla, has not been referred in Annexure OP-7. It has not been demonstrated that the goods developed the defect on their being received on, 07.07.2005, at, the port of discharge.

8. Even though, Annexure OP-7, also, recites that the purported attribution of damage to the consignment was on account of high temperature during the course of transit, yet, no satisfactory and cogent proof has been adduced to support the said recital in Annexure OP-7. Annexure OP-7, also, recites the fact that the consignment was shipped in a corrugated cardboard contained in a clear poly bag and it was on opening of the cartons that the defect was noticed in the goods. However, no cogent evidence exists as to the place and stage the defect was noticed, since, the receipts of the goods on, 07.07.2005, at the port of discharge. Therefore, when further, in, Annexure OP-7, it, is, detailed on information available that Legend Warehouse proceeds to strip the import shipment and then palletizes them for delivery to Atlas Cold Storage, hence, has presumed that Lykes Line Ltd., on receiving the goods as transported to it by CH Robinson Trucking, had, stripped the shipment and palletized, it, for delivery to Atlas, Cold Storage, which, presumption had not been repudiated. Hence, it appears also that even prior, to, the defect in the goods having been noticed, the act, of, Legend Warehouse in stripping the import shipment and palletizing it for delivery to Atlas Cold Storage may have begotten the damage to the consignment.


It was for the complainant to adduce evidence, to, rebut the inference that, the act, of Legend Warehouse in striping, of, the import shipment and then palletizing it for delivery to Atlas Cold Storage, did, not beget, the, damage to the goods and that the damaged was begotten during the course its being shipped to the port of discharge. However, neither the aforesaid has been impleaded as a party nor its version has come forth, obviously, also, no, evidence which could have then been adduced by Legend Warehouse in case, then, jurisdiction continued to vest with this Forum on being impleaded as a party, to, repulse the fact, of, the finding as arrived at above, has been adduced.

9. Moreover, when considerable time, has, elapsed since the release of the shipment in New York, which, is, the port of discharge, at which stage the defect in the goods was not noticed nor evidence has come to substantiate the purported attribution in Annexure OP-7, that, high temperature during the course of transit, begot, the, damage to the goods, therefore, it is to be concluded that with, non-observance of the damage to goods in the port of discharge, the damage as had infected goods, for, reasons aforesaid, was as a result of stripping of the import shipment and its having been then palletized for delivery to Atlas Cold Storage by Global Reliance, or on account of lack of appropriate temperatures having been maintained either at the Legend Warehouse or in the transportation mechanism which was availed of for transportation to Legend Warehouse or to the Atlas Cold Storage or also on account of proper temperature being maintained during transit from Paonta Sahib for onward delivery to shippers, especially when the fitness certificate as furnished by the shipping company, qua the goods, which booked the consignment, has not been placed on record.


Hence, it cannot be said by any stretch of imagination that there was any deficiency in service on the part of the OP-Company or that it has indulged in an unfair trade practice, by repudiating the claim of the complainant. As such, the repudiation of the claim of the complainant, by the OP-Company for the reasons aforesaid, was well within the parameter of the insurance policy, and cannot be construed to be suffering from any infirmity, hence, legal and valid.

10. In view of the above, the complaint being without any merit deserves dismissal, hence we order accordingly, leaving the parties to bear their own cost. The learned counsel for the parties undertook to collect the certified copy of this order from the office, free of cost, as per rules. The file after due completion, be consigned to record room.

Shri Partap Singh S/o Sh. Mohi Ram,

R/o Vill.Ranwa,P.O Karog,Tehsil Sangrah,

District Sirmaur, H.P.





… Complainant.

Versus





The Oriental Insurance Company,

through its Branch Manager,

The Mall Nahan, H.P.

… Opposite party.









O R D E R:




This complaint has been filed by the complainant, by invoking the provisions of Section 12 of the Consumer Protection Act, 1986. The complainant avers that he is registered owner of Mohindra Pickup bearing registration No.HP-18-0325, which was insured, by him, with the OPs-Company, for a period of one year commencing from 16.06.2006 to 15.06.2007. He further avers that the aforesaid vehicle, unfortunately, met with an accident, on, 14.12.2006, during the currency of the insurance policy and suffered total loss damage. It is further averred that, the factum of the vehicle, having met, with an accident, was reported to the OP-Company, as also, to the Police, upon which, FIR bearing No.90/2006, was lodged with the Police Station, Renukaji. Thereafter, he, lodged a insurance claim with the OP-Company, who instead of settling the same, repudiated vide communication dated 25.07.2007, on the ground that unauthorized passengers were traveling in the vehicle. Hence, it is averred that, there is apparent deficiency in service on the part of the OP-Company and accordingly relief to the extent as detailed in the relief clause be awarded in favour of the complainant.

2. The OP-Company, in its written version, to the complaint, raised preliminary objections vis-à-vis maintainability of the complaint, and breach of terms and conditions of the insurance policy. On merits, it is contended that at the time of accident, the vehicle was carrying unauthorized passenger, hence, there being violation of the terms and conditions of the insurance policy, the OP-Company was well within its right to repudiate the claim of the complainant. However, it is contended that surveyor was appointed to assess the loss caused to vehicle, who assessed the loss at Rs.83,000/- which was to be paid to the insured, as per the terms and conditions of the insurance policy. Hence, the action of the OP-Company, in repudiating the claim, of the complainant, cannot be held to be unlawful. Hence, it is denied, that, there was any deficiency in service on their part or that they have indulged in an unfair trade practice.

3. Thereafter, the parties adduced evidence, by way of affidavits, and, documents in support of their respective, contentions.

4. We have heard the learned counsel for the parties at length and have also thoroughly scanned the entire record of the case.

5. The vehicle of the complainant insured with the OP-Company during the currency of the insurance policy met with an accident, on, 14.12.2006. The fact of the accident was brought to the notice of the OP-Company and surveyor appointed by the OP-Company, assessed the loss caused to the vehicle in the accident. The OP-Company, has, resisted the claim of the complainant on the ground that since, unauthorized passenger were traveling in the vehicle, they being, so, unauthorisedly carried in the vehicle occasioned a breach of terms and conditions of the insurance policy, therefore, it is contended, that, the repudiation of the claim, is, tenable. The said contention, as raised by the OP-Company, in its reply, has not come to be repulsed by the complainant, by adduction of evidence by way of affidavits of the person who were traveling in the vehicle at the relevant time, that they were not traveling as an unauthorized passenger, rather they were the owners of the potatoes, which as per the complainant, were being carried in the vehicle.


However, no copy of the challan proving the fact that they were owners of the goods, hence, were traveling in the vehicle along with goods, rather, the said fact as asserted in the complaint, accompanied by an affidavit sworn by the complainant, has, been repulsed by satisfactory evidence in rebuttal furnished by the OP-Company, inasmuch, as, by their placing reliance on Annexure R-2, which is the copy of FIR and Annexure R-5, which is the copy of the MACT Petition filed by the gratuitous passenger in the court of learned Motor Accident Claims Tribunal-1, Sirmour.

6. Hence, the effect is that it leads us, to, the inference, as, sprouting from the aforesaid discussion that gratuitous passengers were traveling in the vehicle when it met with an accident, hence, it being violation of the terms and conditions, of the insurance policy, even then the OP-Company, cannot exculpate its liability, even to indemnify the complainant to the extent of 75% on non-standard basis, in view of the law as laid down by the Hon’ble HP State Consumer Commission, as rendered in F.A.No.110 of 2006 decided on 15.07.2008, in case M/S Oriental Insurance Company Limited versus Shri Munish Rohal, wherein the Hon’ble HP State Consumer Commission, while determining the validity of the driving licence of a driver authorized to drive a light motor vehicle, when, the ill-fated vehicle in that case was registered as a light commercial vehicle, and the Hon’ble Appellate Forum while relying in their decision.


The judgments detailed in it, had held, while, distinguishing, the, judgment of the Hon’ble Apex Court as relied upon by the learned counsel for the insurer, that, since those judgments have not considered the applicability of Procedural Manual of Motor Claim (own damage and third party) and with the Hon’ble Appellate Forum while considering the impact of clause 10 of Procedural Manual of Motor Claim (own damage and third party) had held that for breach of conditions of policy, inasmuch, as, with the driver while holding a licence to drive a light motor vehicle, proceeded to drive a light commercial vehicle, hence, the claim of the insured has to be assessed on non-standard basis.

7. While following the ratio of said verdict of the Hon’ble Appellate Forum, spelling out that, unless, the breach of a condition of the insurance policy, is, proved to be the fundamental cause of the accident, the liability of the insurance company remains alive, hence, when it has not proved by cogent evidence that the carrying of gratuitous passenger in the vehicle was the prima donna cause of the accident, hence, we hold that even, if, their were unauthorized passengers traveling, in, the vehicle at the time when it met with an accident, in, terms of the view, as taken by the Hon’ble Appellate Forum, the OP-Company, is, obliged to indemnify the claim of the complainant on non-standard basis.

8. Since, the Loss Assessor in his report Annexure R-4, dated 27.03.2007, has assessed the loss at Rs.83,000/- on cash loss basis. Therefore, his assessment qua loss is to be accepted, having remained un-repulsed on behalf of the complainant. Resultantly, in terms of the amount assessed and quantified, by the Loss Assessor, we direct that the OP-Company shall indemnify the complainant to the extent of Rs.83,000/- on non-standard basis, i.e. the OP-Company shall pay 75% of Rs.83,000/- to the complainant along with interest at the rate of 9% per annum, from the date of filing of the complaint, i.e. 05.09.2007, till actual payment is made. In addition to this, the OP-Company shall also pay litigation cost of Rs.2500/-. This order shall be complied with, by the OP-Company within a period of forty five days, after the date of receipt of copy of this order.

9. The learned counsel for the parties undertook to collect the certified copy of this order from the office, free of cost, as per rules. The file after due completion, be consigned to record room.

Shri Mohd. Iqbal S/o Sh. Mohd. Sadik,

R/o Village Bhuppur, Tehsil Paonta Sahib

District Sirmour, H.P.





… Complainant.

Versus





The Oriental Insurance Company Ltd.,

4-6, Calibre Market, Rajpura, Punjab

through its Sr. Divisional Manager.





…Opposite Party





O R D E R:




This complaint has been filed by the complainant, by invoking the provisions of Section 12 of the Consumer Protection Act, 1986. The complainant avers that he is owner of truck bearing registration No.HR-37A-0024, which was insured with the OP-Company, for a period of one year, commencing from 16.12.2005 to 15.12.2006. He further averred that the aforesaid truck met with an accident on, 05.03.2006, and suffered extensive loss. The complainant, further, proceeded to aver, that, the factum of accident was brought to the notice of the OP-Company, as also, to the Police. Thereafter, the insurance claim was preferred with the OP-Company, but the OP-Company instead of settling it, dilly-dallied, the same on one pretext or the other. Hence, it is averred that there is apparent deficiency in service on the part of the OP-Company and accordingly relief to the extent as detailed in the relief clause be awarded in favour of the complainant.

2. The OP-Company, in its version, to the complaint, raised preliminary objection regarding maintainability of the complaint, inasmuch, as, the driver of the ill fated vehicle was not possessed of a valid and effective driving licence to drive the truck. On merits, it is contended that since the vehicle is registered as a heavy transport vehicle, hence, the driver was not having a valid and effective driving licence inasmuch, as, the licence possessed was by the driver was not endorsed for H.T.C. as such, the OP-Company was well within its right to repudiate the claim of the complainant, for breach of terms and conditions of the insurance policy. Hence, it is denied, that, there was any deficiency in service on their part or that they have indulged in an unfair trade practice.

3. Thereafter, the parties adduced evidence, by way of affidavits, and, documents in support of their respective, contentions.

4. We have heard the learned counsel for the parties at length and, have, also, thoroughly scanned the entire record of the case.

5. The complainant, is, aggrieved by the repudiation of his claim, which he has lodged, before, the OP-Company, indemnifying him, for, damage, to his, vehicle, suffered, by it, in, an accident, which the vehicle met, on, 05.03.2006.

6. The OP-Company, has denied the claim of the complainant on the ground that the driving licence as held by the driver, who, was driving the vehicle at the relevant time, did not authorize him, to, drive the category of the vehicle, which, he was driving at the relevant time, inasmuch, as, the vehicle having come to be registered as a, “heavy transport vehicle”, yet with the driving licence of its driver, who was driving it, on the relevant time, merely authorizing him to drive a, light transport vehicle, hence the driver when holding a, licence merely to driver a, light transport vehicle, and not endorsed to heavy transport vehicle, whereas, the, vehicle was registered as a, “heavy transport vehicle”, disempowered him, to, drive the vehicle at the relevant time.

7. A perusal of the registration certificate, which bears Annexure-K, of the vehicle does reflect the fact of it being registered, as, a, heavy transport vehicle, hence a heavy goods vehicle. The driving licence of the driver, Annexure-J, who was driving, it, at the relevant time, reveals that, he, was authorized to drive only, a, light transport vehicle and its not having been endorsed for driving a heavy goods vehicle. In the absence of, their, being an endorsement in the driving licence of his being authorized to drive a heavy goods vehicle, in which category, the vehicle of the complainant fell or of an endorsement of his being authorized to drive a heavy goods vehicle.


Obviously, the driver who was driving the vehicle at the relevant time, did not, hence, hold a, driving licence authorizing him to drive, a, heavy goods vehicle, in, which category the vehicle, of, the complainant fell. Hence, for lack of a, valid and effective driving licence, being possessed by the driver at the relevant time, the OP-Company cannot be held guilty of rendering any deficiency in service, in theirs repudiating the claim of the complainant.

8. In the light of the above discussion, the complaint being without any merit deserves dismissal and we order accordingly, leaving the parties to bear their own cost. The learned counsel for the parties undertook to collect the certified copy of this order from the office, free of cost, as per rules. The file after due completion, be consigned to record room.

1. Shri Geeta Ram

2. Shri Naresh Kumar

both sons of Shri Devi Ram,

Resident of Village Gharyan, P.O. Patta Brawry,

Tehsil and District Solan, H.P. Presently

residing at Village Kather, Near Subzi Mandi,

Bye Pass Road Solan, H.P.



… Complainants

Versus



1. The Chief Manager (Claim Department)

The Oriental Insurance Company Ltd., Oriental House, 25/27, Asaf Ali Road, New Delhi-110002.



2. The Regional Manager,

The Oriental Insurance Company Ltd.,

Jeevan Bharti Building, 9th floor, Tower-1, Cahhaught Place New Delhi.



3. The Oriental Insurance Company Ltd.,

Branch Office, The Mall, Solan, District Solan,

Through its Branch Manager.



…Opposite Parties.









O R D E R:



The instant complaint has been filed by the complainants, by invoking the provisions of Section 12 of the Consumer Protection Act, 1986. The complainants, aver that they are owner of vehicle Eicher Truck having registration No.HP-14-7525, which was insured with the OPs-Company vide insurance cover bearing No.377047, commencing from 29.03.2006 to 28.03.2007. It is averred that the aforesaid vehicle met with an accident, on, 27.03.2007 and suffered extensive damage. The complainants, further, proceeded to aver, that, the aforesaid incident, was brought to the notice of the OPs-Company, as well, as, to the Police, upon which FIR having No.64/2007 dated 27.03.2007, came to be lodged with Police Station, Solan, and thereafter, insurance claim was also lodged with the OPs-Company. The OPs-Company, instead of settling the insurance claim, dilly-dallied the same, on one pretext or the other. Hence, it is averred that there is apparent deficiency in service on the part of the OPs-Company and accordingly relief to the extent as detailed in the relief clause be awarded in favour of the complainant.

2. The OPs-Company, in its written version, to the complaint, raised preliminary objections vis-à-vis maintainability of the complaint, inasmuch, as, the vehicle was insured with the Delhi Branch, validity of the driving licence possessed by the driver. On merits, it is contended that since, no intimation was given to the OPs regarding the accident, hence, the spot survey could not be conducted. As such, it is denied, that, there was any deficiency in service on their part or that they have indulged in an unfair trade practice.

3. Thereafter, the parties adduced evidence, by way of affidavits, and, documents in support of their respective, contentions.

4. We have heard the learned counsel for the parties at length and have also thoroughly scanned the entire record of the case.

5. The vehicle of the complainant, met with an accident on, 27.03.2007 and an FIR qua the said accident was lodged with the concerned Police Station. The OP-Company, has, repudiated the claim, as asserted by the complainant, merely on the strength of the vehicle having not been insured with them , at, the relevant time, when, it meet with an accident.

6. However, the OP-Company, has not, adduced any proof qua the fact that the vehicle was not insured with at the relevant time, when it met with an accident. Rather, when their exists on record the copy of cover note bearing Annexure C-2, whose contents divulges the fact that the vehicle having registration No.HP-14-7525, was insured with it, for an amount of Rs.1,53,000/-, and it was in existence from 29.08.2006 to 28.03.2007 and the accident having taken place during the subsistence of the insurance cover, its, existence belies the defence of the OP-Company that there was no insurance policy issued in favour f the complainants qua the vehicle.

7. The, plea of the OP-Company, that since no intimation regarding the accident was given to them, hence depriving them of the opportunity to assess the loss, is, also falsified by the existence of fee bills dated 16.04.2007, for an amount of Rs.750/- and 1735/- issued by Chaman Singhal, Surveyor & Loss Assessor in favour of the complainant. As such, when the OPs-Company, has failed, to, adduce evidence both satisfactory and cogent that no insurance policy qua the vehicle was issued in favour of the complainants, as also, qua the fact that they have been deprived of the opportunity to appoint surveyor to assess the loss caused to the vehicle, the OPs-Company, cannot, hence, seek to, exculpate its liability to defray to the complainant, the amount of the loss.

8. Therefore, in the light of the above, we deem it fit and appropriate that the OPs-Company shall proceed, on, receiving the bills, as furnished by the complainants to the OPs-Company reflecting the expenses incurred by them on the repairs of the damaged vehicle, as well, as, the driving licence whose validity on being determined, shall assess, the, loss payable to the complainants. The OPs-Company, hence, shall proceed to appoint a loss assessor who shall proceed to assess the loss, caused to the insured vehicle, within a period of two months after the date of receipt of copy of this order, and thereafter, the OPs-Company shall also be obliged, to defray the amount, as assessed by the surveyor to the complainants. In the above terms, the complaint stands disposed of. No order as to the costs. The learned counsel for the parties undertook to collect the certified copy of this order from the office, free of cost, as per rules. The file after due completion, be consigned to record room.