Surinder Sharma aged 60 years son of Goverdhan Dass r/o vill Hajipur Distt. Hoshiarpur.
Reliance General Insurance Co. ltd. Jalandhar Ist Floor Rattan Tower Civil Lines near Nam Dev Chowk Jalandhar through its General Manager.
Reliance General Insurance S.C.O. 212-213-214 Sector 34-A Chandigarh through its General Manager.
Kotak Mohindera Prime Ltd Jalandhar through its Manager.
The complainant namely Surinder Sharma has filed the present complaint under section 12 of the Consumer Protection Act,1986 (as amended upto date) “hereinafter referred as the Act.”. In short,the facts of the case are that the complainant got insured his car bearing registration no. PB-07-T-4171 with OP No.1 from 19.5.2007 to 18.5.2008.
It is the case of the complainant that said vehicle was going from Mukerian to Hajipur on 13.5.2008. The vehicle at that time was being driven by Sumit Sharma-the son of the complainant. When the said vehicle reached near Dhir Poultry Farm, G.T.Road, it met with an accident. The vehicle got damaged. The intimation to P.S.Hajipur was given. The complainant got repaired the vehicle from Dada Motors, Jalandhar- authorized dealer of General Motor India Pvt. Ltd. and paid Rs. 1,58,720/- for the repair of the vehicle vide invoice no.7984 dated 28.5.2008 against receipt. Besides this, the complainant also spent Rs.5000/- . The complainant completed all the requisite formalities and lodged the claim with OP No.1,2.
It is the allegation of the complainant that OP No.1,2 illegally repudiated the claim vide letter dated 21.7.2008. the complainant never used the vehicle as taxi. The repudiation of the claim is stated to be illegal, hence this complaint.
OPNo.1,2 filed the joint reply Preliminary objections with regard to suppression of material facts was raised. On merits, the claim put forth by the complainant has been denied. It is admitted that the vehicle in question was insured with the replying OPs. It is also admitted that the claim was lodged. It is denied that the complainant spent the amount of Rs.1,58,720/- and Rs.5000/- . That as per terms of the insurance policy, the vehicle insured with the replying OPs could not be plied for hire and reward and the insured was bound to comply with the said terms and conditions. The matter was duly investigated and it transpired that the vehicle was being plied for hire and reward at the time of accident in breach of the terms and conditions i.e. 'limitation as to use', therefore, the claim of the complainant was repudiated vide letter dated 21.7.2008.
OP No.3 filed a separate reply. On merits, the claim put forth by the complainant has been denied. However it is replied that the vehicle in question was hypothecated with the replying OP. . That no claim has been made against the replying OP.
In order to prove the case, the complainant tendered in evidence his affidavit Ex.C-1, invoice Mark C-2, invoice dated 28.5.08 Mark C-3, invoice for Rs. 1,57,820/- Mark C-4, invoice dated 20.5.08 Mark C-5, RC Mark C-6, DD Mark C-7, letter dated 21.7.08 Mark C-8, insurance policy Mark C-9 and DL verification Mark C-10 and closed the evidence.
In rebuttal, the opposite parties Nos.1,2 tendered in evidence affidavit of Satyan Kapoor Ex. OP-1, claim cost Mark OP-2 and report Mark OP-3 and closed the evidence. The OP No.3 tendered in evidence affidavit of Vishal Anand Ex. OP-4 and closed the evidence.
The learned counsel for the parties have filed written arguments. We have gone through the written submissions and record of the file minutely.
The case of the complainant is that on 13.5.2008, the vehicle bearing registration no. PB-07-T-4171, which was insured with OP No.1 from 19.5.2007 to 18.5.2008, met with an accident and got damaged. The complainant got repaired the vehicle and paid Rs. 1,58,720/- vide invoice no.7984 dated 28.5.2008 against receipt and besides this, the complainant also spent Rs.5000/- .
It is the allegation of the complainant that Insurance Company illegally repudiated the claim vide letter dated 21.7.08. The OPs have raised the defence that the insured vehicle could not be plied for hire and award.
The claim was repudiated by the Insurance Company qua Mark C-8 on the ground that the vehicle was being plied for hire and reward at the time of accident in violation of the Motor Vehicle Act and policy clause 'limitation as to use', therefore, the claim was not within the purview of coverage of policy, as such, it was treated as closed claim .
The other facts are admitted.
Now the only point which calls determination from this Court is whether the vehicle was being plied for hire and reward at the time of accident in violation of the terms and conditions of the policy Mark C-9 ? The answer to this is in the negative.
Since the OP No.1,2- Insurance Company has repudiated the claim on the ground that the vehicle was being plied for hire and reward at the time of accident in violation of the terms and conditions of the policy, therefore, it was for the Insurance Company to prove that the claim was not payable as it was not within the purview of coverage of Insurance Policy and was rightly treated as closed claim..
The Insurance Company has only filed the affidavit of Satyan Kapoor, Manager Legal Ex. OP-1 in support of the said defence . The perusal of the record makes it clear that there is no other evidence available on the record to prove that the vehicle was being used for hire and reward, thus, OP No.1 and 2-Insurance Company was not justified in repudiating the claim, which amounts to deficiency in service.
Admittedly, the complainant has placed on record repair invoices Mark C-2 to C-5 but has not produced on record the receipt towards the payment of Rs.1,58,720/- to Dada Motors nor has submitted any affidavit of the authorized representative of Dada Motors in support of the bills/ invoice Mark C-2 to C-5, therefore, it looses its evidentiary value and on the contrary, the OP has placed on record the report of the surveyor Mark-OP-3 qua which the loss to the vehicle in dispute had been assessed to the tune of Rs.1,29,894/-. Since the complainant has failed to produce the receipt to prove the payment of Rs.1,58,720/- to Dada Motors , therefore,the report of the surveyor qua Mark-OP-3 is to be accepted as the surveyor is an expert and also an independent person to assess the damage caused to the vehicle of the complainant , thus, we are of the opinion that the claim of the complainant can be allowed on the basis of the survey report Mark-OP-3.
As a result of the above discussion, the complaint is accepted and the opposite parties Nos 1 and 2 are directed to pay Rs. 1,29,894/- to the complainant with interest @ 9 % per annum from the date of filing the complaint i.e. 27.1.2009 till realization alongwith litigation expenses of Rs.1000/- within one month from the receipt of copy of the order.