The complainant Gurdeep Singh (here-in-after referred to as complainant) has filed this complaint U/s 12 of Consumer Protection Act, 1986 (Now C.P. Act, 2019, here-in after referred to as 'Act') before this Forum (Now Commission) against New India Assurance Co. Ltd. and another (here-in-after referred to as opposite parties).
Briefly stated the case of the complainant is that he purchased the goods carrying vehicle bearing registration No.PB-03X-5736, to earn his livelihood, from its previous owner Davinder Singh son of Harnaik Singh after availing loan from opposite party No.2 i.e. Cholamandlam Investment & Finance Company Ltd., The complainant has regularly been paying the instalments of the loan to opposite party No.2 without any break.
It is alleged that after purchase of the aforesaid vehicle the complainant got it insured with opposite party No.1 vide policy No.36060031150100003199 effective from 22.01.2016 to 21.01.2017. No term and conditions of the policy were ever supplied by the opposite party No.1 to the complainant and aforesaid vehicle was insured as goods carrying commercial vehicle with capital sum insured Rs.17 Lac, but the officials of opposite party No.1 while issuing the aforesaid policy have inadvertently written the vehicle as oil tanker although the same is goods carrying open body commercial vehicle.
It is alleged that on 24-10-2016 the said vehicle met with an accident, in the early morning at Garh Shankar Road, Banga when all of sudden a vehicle came from opposite direction and in order to avoid the accident complainant steered the aforesaid vehicle towards right side due to which the insured vehicle collided with an electric poll and turned turtled by the side of the road in the ditches while the same was loaded with crusher and sand. In the accident, electric poll of PSPCL was also broken and complainant paid Rs.6500/- as penalty/charges for damage to the property of PSPCL. In the accident, vehicle was badly damaged. Intimation regarding the accident was immediately given on mobile phone No.98157-10088 i.e. to the Senior Divisional Manager of opposite party No.1 who conveyed the complainant that opposite party No.1 is going to depute Sandeep Kalra, Surveyor for the spot survey of the vehicle. After spot inspection, the concerned surveyor instructed the complainant to shift the vehicle to any workshop for repair and complainant took the vehicle for repair at Rampura Phul by towing the same and paid towing charges Rs.5000/-.
It is also alleged that thereafter Mr. Gurjinder Singh of M/s G.S. Associates, Surveyor and Loss Assessor was deputed to assess the final loss and accordingly he inspected the damaged vehicle at workshop at Rampura on 29.10.2016 in the presence of the complainant. As required by opposite party No.1 and surveyor, complainant submitted all the required documents such as repair bills, route permit, registration certificate, fitness certificate, driving license etc. The complainant incurred about Rs.85,000/- on repair of damaged vehicle, paid Rs.6500/- to PSPCL Banga and Rs.5000/- as towing charges. That complainant has learnt that aforesaid Gurjinder Singh assessed net loss to the aforesaid vehicle to the tune of Rs.60,000/- only.
It is further alleged that the complainant received a letter dated 14.03.2017 from opposite party No.1 whereby the opposite party No.1 has repudiated the lawful claim of the complainant on flimsy grounds with the allegations that insured vehicle was insured as oil tanker but at the time of accident insured vehicle was fitted with an open body as such insured has changed the body of insured vehicle without any intimation and endorsement of the company. The said vehicle has never been used as oil tanker nor body of oil tanker was ever fixed on the aforesaid insured vehicle and as stated earlier official of opposite parties have inadvertently written word LPS 4018 Oil Tanker in the aforesaid insurance policy although officials of opposite parties have also mentioned in "type of commercial vehicle" as a goods carrying vehicle. Moreover, in the type of body insurance company itself has written the word open body and if the body is open then question of insured vehicle being used as oil tanker does not arise.
The complainant alleged that the complainant has suffered business losses as the said vehicle could not be used for about one month due to accident. The complainant requested opposite party No.2 not to charge the loan instalments as aforesaid vehicle has been damaged in accident and is lying idle but to no effect.
On this backdrop of facts, the complainant has prayed for directions to the opposite parties to pay Insurance amount alongwith expenses Rs.96,500/- with interest @ 12% p.a. from the date of due payment till realization and also pay compensation to the tune of Rs.50,000/- on account of mental tension, agony, botheration, humiliation and harassment in addition to Rs.11,000/- as litigation expenses.
Upon notice, opposite parties appeared through their respective counsel and contested the complaint by filing separate written statements. The opposite party No. 1 filed its written version raising legal objections that the complaint has been filed only to injure the goodwill and reputation of the opposite parties. That the complaint is false, frivolous and vexatious to the knowledge of the complainant. That this Commission has got no jurisdiction to try and entertain the present complaint as the claim of the complainant has been repudiated after thorough investigation. That the intricate questions of law & facts are involved in the present complaint, which requires voluminous documents and evidence for determination which is not possible in the summary procedure under the Act and appropriate remedy, if any, lies only in the Civil Court.That the complainant has concealed material facts and documents from this Commssion.
It has been pleaded that the true facts of the case are that on receipt of intimation regarding the alleged accident, the opposite party deputed its Surveyors/Assessors M/s G.S. Associates, Bathinda, to assess the loss, who vide their report dated 7.1.2017 has assessed the net loss to the tune Rs.50,394/-, however, but at the same time, it was also found that at the time of insurance, the complainant got insured the oil tanker with the opposite party as is evident from the R.C. of the vehicle, whereas at the time of accident, it was a tralla i.e. it is fitted with an open body and the complainant has changed the load body without information and endorsement to the company. Accordingly, the claim of the insured has been repudiated by the competent authority and an intimation in this regard has already been given to the insured/complainant vide registered letter dated 14.3.2017.
Further legal objections are that the complainant is not consumer; complainant has violated the terms & conditions of the policy; complainant has no locus standi or cause of action ; complaint is not maintainable in its present form and that there is no deficiency in service or unfair trade practice on the part of the opposite party,
On merits, the opposite party No.1 has admitted that vehicle in question was insured with it. It has been pleaded that the complainant took the policy in question for his vehicle No. PB-03X/5736, which was an oil tanker as is evident from the R.C. of the vehicle, so there is no question of any inadvertence on the part of opposite party while issuing the policy for oil tanker. M/s G.S. Associates, was deputed to assess the loss, who vide their report dated 7.1.2017 has assessed the net loss of Rs.50,394/-. The claim of the complainant has been repudiated by the competent authority and an intimation in this regard has already been given to the complainant vide letter dated 14.3.2017. After controverting all other averments of the complainant, the opposite party No. 1 prayed for dismissal of complaint.
The opposite party No. 2 in its separate written version raised legal objections that the complainant made opposite party No.2 as party in this complaint being financer. The disputes is between the complainant and the opposite party No.1.
It has been pleaded that the complainant took financial assistance from the opposite party No.2 for the purchase of Tata 4018 and the same is bearing registration no.PB-03X-5736. The complainant took a loan of Rs. 14,50,000/- dated 27.01.2016 and agreed to pay back in 47 monthly installments with agreed rate of interest. The opposite party No. 2 being its financer has a first charge and first claim on the said Tata 4018 being its hypothecate and finance and at the time of deciding the present complaint the interest of the opposite party No.2 be first protcted and the amount due to against the said Tata 4018 be first paid to the opposite party No.2 and then the rest of the claim be decided.
On merits, the opposite party No. 2 reiterated its version as pleaded in legal objections and detailed above. In the end, the opposite party No 2 prayed for dismissal of complaint.
In support of his complaint, the complainant has tendered into evidence his affidavit dated 23.8.2017 (Ex.C-1) and the documents (Ex.C-2 to Ex.C-5) and further documents (Ex. C-6 to Ex. C-16) in additional evidence.
In order to rebut the evidence of complainant, opposite party No. 1 tendered into evidence affidavit of Ashwani Kumar Kakkar Sr. D.M dated 24-5-2017 (Ex.OP-1/1), and the documents ( OP-1/2 to Ex. OP-1/9).
The opposite party No. 2 tendered into evidence affidavit of Sarabjit Singh dated 30-10-2017 (Ex.OP-2/1) and the documents (Ex.OP-2/2 & Ex. OP-2/3).
We have heard learned counsel for the parties and gone through the record.
The learned counsel for the parties reiterated their stand as taken in their respective pleadings as detailed above.
We have given careful consideration to these submissions.
In the case in hand there is no dispute regarding insurace and accident of the vehicle and regarding deputation of surveyor.
The opposite party No.1 repudiated the claim of the complainant vide letter dated 14.03.2017 (OP-1/3) on the ground that the vehicle in question is insured as oil tanker in policy and oil tanker is also mentioned in registration certificate but at the time of accident, it is fitted with an open body.
A perusal of file reveals that Ex.C-2 is the Insurance policy of the vehicle in question for the period from 22-1-2016 to 21-01-2017 under which period accident took place. In this document type of body is written as “OPEN” but the variant is mentioned as LPS 4018 Oil Tanker. Ex. C-16 is the insurance policy of said vehicle for the period from 31-3-2017 to 30-3-2018. In this policy, Make and model of the vehicle is mentioned as TATA LPS 4018 and Type of Body is mentioned as 'Others”
Ex.C-5 is the registration of the vehicle in question, which reveals type of body as 'Truck', valid upto 15-1-2018 and Tax 31-3-2017. Permits of the vehicle Ex. C-9 & Ex.C-10 also show Type of vehicle as 'HTV'. Ex.C-11 is the letter issued by opposite party No.2 to complainant regarding 'No Objection' in cancelling the loan endorsement in the policy. In this document also type of the vehicle is mentioned as TATA LPS 4018/TC 4X2 BS2 Tractor/Trailer. Ex.OP-2/3 is the account statement of loan availed by complainant from opposite party No.2. In this document also asset discription is given as TATA LPS 4018/TC 4X2 BS2 Tractor/Trailer. Thus, evidence placed on file proved that vehicle in question is a open truck/trailer.
As discussed above, in the Insurance policy Ex.C-2 type of body of the vehicle in question is mentioned by the opposite party No. 1 as open. When the type of body of the vehicle is open then how can it be said that the vehicle is a Oil Tanker. Moreover, at the time of effecting insurance, in general practice, pre-inspection of the vehicle, to be insured, is carried out and engine number and chassis numbers are traced by the insurance companies. In the case in hand, the opposite party No.1 while issuing the policy has given two opinions. On the one hand, they have mentioned type of body of vehicle as 'OPEN' and on the other hand they have described it as 'Oil Tanker whereas at the time of effecting insurance physical verification of vehicle is necessary and open body was mentioned by opposite party No. 1 after physical verification. For this lapse, if any, which took place on the part of opposite party No.1, complainant cannot be made to suffer. Moreover, in this case opposite parties failed to bring on file any terms and conditions of policy alleged to be violated or any evidence to prove any nexus of said violation with accident. Therefore, complainant is entitled to the insurance claim as the whole evidence placed on file proved that vehicle in question is a open truck/trailer.
Hon'ble Supreme Court in case titled as Lakhmi Chand Vs. Reliance General Insurance (2016) 3 SCC 100 has laid down that insurer should establish that there is a fundamental breach and the subject fundamental breach had a nexus with the accident.
Hon'ble National Commission in the case titled National Insurance Co. Vs. Anil Trading Company cited as 2019(3) CLT 315 has held :
Repudiation on the ground that vehicle in question was registered as an open truck, whereas at the time of accident, it was being used as an oil tanker which is violation of Section 52 of the Motor Vehicle Act. It was also held that the same has no nexus with the alleged accident and has allowed the claim of the complainant.
Hon'ble Punjab & Haryana High Court in the case titled as New India Assurance Co. Ltd Vs. Usha Yadav 2008 (3) RCR Civil 111 has observed that: “Cash rich Insurance company indulging in luxury litigation to repudiate claim of the Insured – It seems that the insurance companies are only interested in earning the premiums and find ways and means to decline the claim”.
Thus, keeping in view facts, circumstances, evidence placed on file and aforesaid settled law, this Commission is of the considered opinion that there is deficiency in service on the part of the opposite parties in rejecting the genuine claim of the complainant. Therefore, the complainant is entitled to the claim amount as assessed by surveyor.
Hon'ble National Commission in case of Narinder Kumar Joshi Vs. Reliance General Insurance Company Limited IV 2017 CPJ 366 (NC) has observed that the insurance claim is to be settled on the basis of surveyor report unless legitimate reasons are pointed out for not accepting the surveyor report.
In the result, this complaint is partly allowed with Rs. 10,000/- as cost and compensation against opposite party No. 1 and stands dismissed qua opposite party No. 2. The opposite party No. 1 is directed to pay to complainant claim amount of Rs. 50,394/- with interest @ 8% p.a. from the date of repudiation of claim i.e. 14-3-2017 till realization.
The compliance of this order be made by opposite party No. 1 within 45 days from the date of receipt of copy of this order.
The complaint could not be decided within the statutory period due to covid pandemic and heavy pendency of cases.
Copy of order be sent to the parties concerned free of cost and file be consigned to the record room.
Announced :
30-08-2022
(Kanwar Sandeep Singh)
President
(Paramjeet Kaur)
Member
