Haryana

Karnal

CC/45/2022

Dharam Singh - Complainant(s)

Versus

Iffco Tokio General Insurance Company Limited - Opp.Party(s)

Mahinder Singh Chauhan

22 Jul 2024

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, KARNAL.

                                                        Complaint No.45 of 2022

                                                        Date of instt.25.01.2022

                                                        Date of Decision:22.07.2024

 

Dharam Singh son of Balram Singh, resident of house no.246, old LIG Police Complex, Madhuban, District Karnal, Haryana. Aadhar no.9210 1202 6054.

 

                                                 …….Complainant.

                                              Versus

 

Iffco Tokio General Insurance Company Limited Sector-12, Karnal through its Branch Manager.

…..Opposite Party.

 

Complaint under Section 35 of Consumer Protection Act, 2019.

 

Before   Sh. Jaswant Singh……President.      

      Sh. Vineet Kaushik…….Member

      Ms. Sarvjeet Kaur…..Member

 

Argued by: Shri M.S.Chauhan, counsel for the complainant.

                   Shri Mohit Goyal, counsel for the OP.

 

                     (Jaswant Singh, President)

ORDER:   

                

                The complainant has filed the present complaint under Section 35 of the Consumer Protection Act, 2019 against the opposite party (hereinafter referred to as ‘OP’) on the averments that complainant is the registered owner of one Maruti Swift VXI car bearing registration no.HR-05-BC-8309, which was got insured by the complainant from the OP, vide policy no.MB-826423, valid from 11.12.2019 to 10.12.2022 by paying premium of Rs.55,172/- and the insured declared value of the vehicle mentioned in the policy is Rs.6,27,950/- for 1^st year, Rs.5,28,800/- for 2^nd year and Rs.4,62,700/- for third year. On 14.04.2021, complainant while driving aforesaid vehicle and was going from his village Kot Chauri, Tihri Gharwal, Uttarakhand to Dehradun. In this car total six passenger were boarded including driver i.e. complainant. On the way at about 2.30 p.m. when the complainant alongwith aforesaid car reached ahead two KM from Aagrakhal, situated on Chamba to Rishikesh Road, then said car was misbalanced and fell down in the 110 Meter Chasm, resultantly the aforesaid vehicle has been totally damaged. The aforesaid incident was also reported in local police station vide Rapat no.19 dated 14.04.2021. Immediately, after the accident, complainant intimated to the company regarding the abovesaid accident and lodged claim no.37J446190 in the company of OP and at the that time the complainant had requested to OP to send a surveyor for inspecting the aforesaid damaged car and for assessing the actual loss caused to the aforesaid damaged car. Thereafter, OP had sent a letter dated 03.08.2021 to the complainant, vide which OP had instructed the complainant to send some relevant documents mentioned in the said letter and in compliance of the said letter, complainant submitted all the required document to the OP. After that complainant visited the office of OP several times and requested to settle the claim but OP did not pay any heed to the request of complainant. Lastly, OP sent a letter dated 25.11.2021, vide which OP repudiated the claim of complainant on the ground that “over seating of seven persons in the insured vehicle by you is a violation of policy terms and conditions”. However, it has been wrongly observed by the OP, because only six persons excluding one minor child (sitting in the lap of his mother Santoshi) were sitting in the aforesaid car and weight of all the occupants of car was within limit, so there is no violation of the terms and conditions of the policy, but OP illegally and unlawfully repudiated the insurance claim of the complainant without giving any opportunity to the complainant to give his version. In this way there is deficiency in service and unfair trade practice on the part of the OP. Hence this complaint.

2.             On notice, OP appeared and filed its written version raising preliminary objections with regard to maintainability; cause of action and concealment of true and material facts. On merits, it is pleaded on receipt of intimation of accident, OP immediately appointed a surveyor Mr. Rajeev Kumar Gupta to investigate and assess the loss pertaining to the insured vehicle. The insured himself was grossly negligent in the first place as the seating capacity of the insured vehicle according to RC was of five people whereas at the time of accident there were seven occupants in the car due to which, the accident took place. The said factum of seven occupants in the car is itself admitted by the complainant in his claim form and duly signed written statement submitted to the OP. The same is further corroborated by Police Report as well. As such, the claim of the complainant was rightly repudiated by the OP, vide letter dated 25.11.2021 as per the terms and conditions of the policy. There is no deficiency in service and unfair trade practice on the part of the OP. The other allegations made in the complaint have been denied and prayed for dismissal of the complaint.

3.             Parties then led their respective evidence.

4.             Learned counsel for complainant has tendered into evidence affidavit of complainant Ex.CW1/A, copy of repudiation letter dated 25.11.2021 Ex.C1, copy of statement of account Ex.C2, copy of quotation Ex.C3, copy of insurance policy Ex.C4, copy of police report Ex.C5 and closed the evidence on 18.05.2023 by suffering separate statement.

5.             On the other hand, learned counsel for the OP has tendered into evidence affidavit of Kapil Banati, General Manager Ex.OPW1/A, copy of Rajeev Kumar Gupta, Surveyor and Loss Assessor Ex.OPW2/A, copy of claim form Ex.OP1, copy of RC Ex.OP2, copy of insurance policy Ex.OP3, copy of Rapat Ex.OP4, copy of repudiation letter dated 25.11.2021 Ex.OP5, photographs of the vehicle Ex.OP6, copies of letters dated 25.05.2021 and 31.05.2021 Ex.OP7 and Ex.OP8, copy of survey report Ex.OP9, copy of assessment report Ex.OP10, copy of terms and conditions of the insurance policy Ex.OP11 and closed the evidence on 08.02.2024 by suffering separate statement.

6.             We have heard the learned counsel of the parties and perused the case file carefully and have also gone through the evidence led by the parties.

7.             Learned counsel for complainant, while reiterating the contents of the complaint, has vehemently argued that complainant got insured his vehicle with the OP. On 14.04.2021, the said vehicle met with an accident and become totally damaged. The matter was reported to the Police station. The loss intimation was also given to the OP. Complainant lodged the claim with the OP and submitted all the required documents for settlement of claim but OP wrongly repudiated the claim of complainant on the ground that at the time of accident the person seating in the said vehicle beyond its capacity. Complainant requested the OP several times for settlement of the claim but OP did not pay any heed to the request of complainant and repudiated the claim of complainant on the false and frivolous ground and lastly prayed for allowing the complaint.

8.             Per contra, learned counsel for the OP, while reiterating the contents of written version, has vehemently argued that on receipt of information, regarding damaged to the vehicle, Mr. Rajeev Kumar Gupta Surveyor and Loss Assessor was appointed to assess the loss, who assessed the loss subject to terms and conditions of policy. The claim of the complainant has rightly been repudiated by the OP as complainant has violated the terms and conditions of the policy and lastly prayed for dismissal of the complaint.

9.             We have duly considered the rival contentions of the parties.

10.           Admittedly, complainant got insured his vehicle with the OP. It is also admitted that the vehicle in question met with an accident during the subsistence of the insurance policy. It is also admitted that at the time of accident seven persons were travelling. It is also admitted that the insured declared value of the vehicle in question was Rs.5,28,800/-

11.           The claim of the complainant has been repudiated by the OP, vide repudiation letter Ex.C1/Ex.OP5 dated 25.11.2021 on the ground, which is reproduced as under:-

“The registered seating capacity of the insured vehicle as per Registration Certificate and its Motor Insurance Policy are 5 whereas it has been observed that as per the claim form, Police Report and your hand written and duly signed statement there 7 persons travelling in the insured vehicle at the material time of accident.

It is apparent from the aforesaid that the insured vehicle was being driven at the time of accident beyond the seating capacity on a hill road which resulted into the insured vehicle felling down 100 meters below the road. It is noteworthy that the permissible seating capacity of a vehicle is provided in order to ensure the safety of the driver of the vehicle as also the road users. Otherwise, also when a vehicle is over loaded/seated it has a bearing on the momentum of the vehicle and affects the breaking of the vehicle. Thus, it can be safely concluded that the accident took place as a result of over loading/seating which was the direct cause of accident. Therefore, over seating by you is a violation of policy terms and conditions.

In view of the above, we regret to inform you that claim is not tenable and we are closing the case as “No Claim”.

 

12.           The claim of the complainant has been repudiated by the OP on the ground that at the time of accident seven persons were travelling in the insured vehicle, when the permitted seating capacity of the vehicle is only five. The claim cannot be denied if the accident could not occur due to persons travelling beyond the seating capacity. In this regard we relied upon the case law titled as National Insurance Co. Ltd. Versus Pravinbhai D. Prajapati decided on 09.11.2010 wherein Hob’ble National Commission has held that if the number of persons traveling in the vehicle at the time of accident did not have a bearing on the cause of accident, then the mere factum of the presence of more persons in the vehicle would not disentitle the insured claimant from claiming compensation under the policy towards the  repair charges of the vehicle paid by the appellant. Further, in the instant case, the OP-company has not produced any evidence on record to prove that the accident occurred on account of the overloading of passengers in the goods carrying vehicle. Further, in case titled as Lakhmi Chand Versus Reliance General Insurance in civil appeal no.49-50 of 2016, date of decision 07.01.2016(S.C), Hon’ble Supreme Court has held that the insurance company is required to establish the  breach by cogent evident. In the event the insurance company fails to prove that there has been breach of conditions of policy on the part of the insured, the insurance company cannot be absolved of its liability.”

13.           If for the sake of gravity, if it is presumed that complainant has violated the terms and conditions of the insurance policy, in that eventuality, the claim of the complainant cannot be repudiated in toto.  In this regard, we relied upon the case laws cited in Revision Petition no.1870 of 2015(NC) decided on 14.08.2018 titled as New India Assurance Co. Ltd. Versus Thirath Singh Brar and authority of our own Hon’ble State Commission in First Appeal no.717 of 2016 decided on 6.4.2017 titled as United India Insurance Company Limited and others Versus Anshul Bansal.  In both judgments it was held that in case of any breach of warranty/condition of the policy the insurer is liable to pay 75% of admissible claim on non-standard basis.

14.           Further,  Hon’ble Punjab and Haryana High Court in case titled as New India Assurance Company Ltd. Versus Smt. Usha Yadav & others 2008 (3) RCR (Civil) 111, has held as under:-

“It seems that the Insurance Companies are only interested in earning the premiums which are rather too stiff now a days, but are not keen and are found to be evasive to discharge their liability. In large number of cases, the Insurance companies make the effected people to fight for getting their genuine claims. The Insurance Companies in such cases rely upon clauses of the agreements, which a person is generally made to sign on dotted lines at the time of obtaining policy. This is, thus pressed into service to either repudiate the claim or to reject the same. The Insurance Companies normally build their case on such clauses of the policy, but would adopt methods which would not be governed by the strict conditions contained in the policy”.

16.           Keeping in view the law laid down in the above judgments and facts of the case, the act of the OP amounts to deficiency in service while repudiating the claim of the complainant in toto. Hence, complainant is entitled to get 75% only of the admissible claim on non-standard basis.

17.           The complainant has alleged that in the accident the vehicle in question became totally damaged and claimed of Rs.5,28,800/- (i.e. the insured declared value of the vehicle) but he has not placed on file any evidence/proof to prove his version. Complainant relied upon document Ex.C3, which is only a quotation. On the other hand, surveyor of the OP, vide his survey report Ex.OP10, has assessed the loss to the tune of Rs.4,42,860/-. The surveyor is an independent and qualified person and his report cannot be dismissed summarily. Hence, the surveyor report will prevail. In this regard we are relying upon the judgment 2(2008) CPJ paged 182 (NC), United India Insurance Co. Vs. Maya, wherein it has been held that a surveyor report should not be dismissed summarily as the surveyor is independent and qualified person under the relevant provision of Insurance Act, 1938. In view of this authority as well as the facts and circumstances of the case, the OP is liable to pay the loss assessed by the surveyor alongwith interest, compensation for mental agony and harassment and litigation expenses.

18.           In view of the above discussion, we partly allow the present complaint and direct the OP to pay Rs.3,32,145/- (Rs.three lakhs thirty two thousand one hundred forty five only) i.e. 75% of the loss assessed by the surveyor alongwith interest @ 9% per annum from the date filing of the complaint i.e. 25.01.2022 till its realization to the complainant. We further direct the OP to pay Rs.25,000/- to the complainant on account of mental agony and harassment suffered by him and Rs.11,000/- for the litigation expense. The parties concerned be communicated of the order accordingly and the file be consigned to the record room after due compliance.

Announced

Dated:22.07.2024                                                                    

                                                                President,

                                                   District Consumer Disputes

                                                   Redressal Commission, Karnal.      

 

(Vineet Kaushik)                (Sarvjeet Kaur)    

                     Member                           Member