Sh.Anoop Sharma, Presiding Member

1.       The complainant   has brought the instant complaint under section 12 of the Consumer Protection Act, 1986 on the allegations that the complainant is owner of vehicle Toyota Innova bearing Chassis No.MBJ11JV4007529006,  Engine No.2KDU765278, RC No.PB-02-CQ-3975 which was insured by the complainant with Opposite Parties vide insurance policy No.TSB/30023900 for the period from 22.05.2015 till midnight of 21.5.2016 and paid the premium of Rs.52,593/-. Said vehicle was purchased by the complainant for his personal family use as private vehicle for his family use and in this regard, he has employed one driver namely Gurpreet Singh alias Lala son of Surinder Singh. It was on 1.2.2016 when the friend of the complainant namely Vikas Talwar alongwith his family and family of the complainant had gone to Rama Mandi, Jalandhar in a palace near Haveli Hotel to attend some marriage party with said driver of complainant namely Gurpreet Singh and when after attending the said marriage ceremony, they were coming back at that time there was darkness and fog, and when they started to go back to Amritsar, one anther Innova car no.DL-1-YC-4712 came from opposite direction and due to fog, both the drivers could not see the vehicles and colluded with each other from driver side,  due to which some of the occupants got some minor injuries, who were given first aid treatament from Johal Hospital, Rama Mandi, Jalandhar and were discharged, but due the said accident, huge loss occurred to the vehicle. In this regard, matter was reported to police of P.S.Rama Mandi, Jalandhar  vide GDR No.13 dated 1.2.2016. Gurpreet Singh was holding valid driving license and copy of driving license of Gurpreet Singh and copy of general diary report are enclosed.  The accident and damage to the vehicle occurred during the currency period of insurance, as such, the complainant immediately lodged the claim and informed the office of Opposite Parties and they appointed Er.Rohit Kapoor as surveyor who conducted the survey and assessed the loss to the tune of total loss and submitted his report with Opposite Parties in this respect. But the Opposite Parties have repudiated the claim of the complainant.   Vide instant complaint, the complainant has sought the following reliefs.

a)       Opposite Parties be directed to pay the claim of Rs.12,26,145/- being the sum assured for total loss fo the vehicle alongwith interest @ 24% per annum from the date of loss  till realization.

b)      Opposite Parties be directed to pay compensation of Rs.1,00,000/- to the complainant.

c)       Opposite Parties  be directed to pay the  cost of the present litigation of Rs.11,000/- and Rs.33000/- as counsel fee.  

d)      Any other relief to which the complainant is found under the law, equity and justice be also allowed.  

Hence, this complaint.

2.       Upon notice, Opposite Parties  appeared and contested the complaint by filing written statement taking preliminary objections therein inter alia that the present complaint is legally not maintainable and is liable to be dismissed; that the vehicle was being used for hire and reward whereas the policy issued for a private vehicle, hence the Opposite Parties is not liable for any claim. On merits, the Opposite Party took almost same and similar pleas as taken by them in the preliminary objections. It is averred that as admitted by the driver of the complainant Gurpreet Singh son of Surinder Singh, in his statement that he is working as driver with the complainant since last 7-8 months and on 31.1.2016, said vehicle was hired by customers for marriage function at Jalanadhar. It is also pertinent to mention here that one of the passengers namely Baldev Raj son of Late Roshan Lal also in his statement , stated that he alongwith his family members hired the said Innova car bearing No.PB-02-CQ-3975 from Amritsar to Jalandhar for attending marriage function, so it is crystal clear that the vehicle in question was used by the complainant for commercial purposes and on the other hand, the complainant is admitting himself that the vehicle was used as a private vehicle for his family, as such the complainant has violated the terms and conditions of the policy, therefore, he is not entitled for any claim as alleged and the complaint is liable to be dismissed. As such, the present complaint is not maintainable at all.    Remaining facts mentioned in the complaint are also denied and a prayer for dismissal of the complaint with cost was made.

3.       In his bid  to prove the case, complainant tendered into evidence  affidavit Ex.CW1/A  in support of the allegations made in the complaint and also produced copies of documents Ex.C2 to Ex.C5  and, affidavit of Gurpreet Singh Ex.CW2/A, affidavit of Baldev Raj Ex.CW3/A, affidavit of Vikas Talwar Ex.CW4/1,  closed his evidence.

4.       On the other hand, to rebut the evidence of the complainant, the Opposite Parties tendered into evidence the affidavit of Sh.Surinder Singh Ex.OP1,2/1 alongwith copies of documents Ex. OP1/2/2 to Ex.OP1,2/9  and closed the evidence on behalf of the Opposite Party.

5.       We have heard the ld.counsel for the parties and have carefully gone through the evidence on record.

6.       Ld.counsel for the complainant has reiterated the averments as mentioned in the complaint and submitted that the complainant is owner of vehicle Toyota Innova bearing Chassis No.MBJ11JV4007529006,  Engine No.2KDU765278, RC No.PB-02-CQ-3975 which was insured by the complainant with Opposite Parties vide insurance policy No.TSB/30023900 for the period from 22.05.2015 till midnight of 21.5.2016 and paid the premium of Rs.52,593/-. Said vehicle was purchased by the complainant for his personal family use as private vehicle for his family use and in this regard, he has employed one driver namely Gurpreet Singh alias Lala son of Surinder Singh. It was on 1.2.2016 when the friend of the complainant namely Vikas Talwar alongwith his family and family of the complainant had gone to Rama Mandi, Jalandhar in a palace near Haveli Hotel to attend some marriage party with said driver of complainant namely Gurpreet Singh and when after attending the said marriage ceremony, they were coming back at that time there was darkness and fog, and when they started to go back to Amritsar, one anther Innova car no.DL-1-YC-4712 came from opposite direction and due to fog, both the drivers could not see the vehicles and colluded with each other from driver side,  due to which some of the occupants got some minor injuries, who were given first aid treatament from Johal Hospital, Rama Mandi, Jalandhar and were discharged, but due the said accident, huge loss occurred to the vehicle. In this regard, matter was reported to police of P.S.Rama Mandi, Jalandhar  vide GDR No.13 dated 1.2.2016. Gurpreet Singh was holding valid driving license and copy of driving license of Gurpreet Singh and copy of general diary report are enclosed.  The accident and damage to the vehicle occurred during the currency period of insurance, as such, the complainant immediately lodged the claim and informed the office of Opposite Parties and they appointed Er.Rohit Kapoor as surveyor who conducted the survey and assessed the loss to the tune of total loss and submitted his report with Opposite Parties in this respect. But the Opposite Parties have repudiated the claim of the complainant.

7.       On the other hand, ld.counsel for the Opposite Party has repelled the aforesaid contentions of the ld.counsel for the complainant  on the ground that  the vehicle was being used for hire and reward whereas the policy issued for a private vehicle, hence the Opposite Parties is not liable for any claim. On merits, the Opposite Party took almost same and similar pleas as taken by them in the preliminary objections. It is averred that as admitted by the driver of the complainant Gurpreet Singh son of Surinder Singh, in his statement that he is working as driver with the complainant since last 7-8 months and on 31.1.2016, said vehicle was hired by customers for marriage function at Jalanadhar. It is also pertinent to mention here that one of the passengers namely Baldev Raj son of Late Roshan Lal also in his statement , stated that he alongwith his family members hired the said Innova car bearing No.PB-02-CQ-3975 from Amritsar to Jalandhar for attending marriage function, so it is crystal clear that the vehicle in question was used by the complainant for commercial purposes and on the other hand, the complainant is admitting himself that the vehicle was used as a private vehicle for his family, as such the complainant has violated the terms and conditions of the policy, therefore, he is not entitled for any claim as alleged and the complaint is liable to be dismissed.

8.       The only ground for repudiation of the claim of the complainant is that the vehicle was being used for hire and reward whereas the policy issued for a private vehicle, hence the Opposite Parties is not liable for any claim. Said vehicle was hired by customers for marriage function at Jalanadhar. It is also pertinent to mention here that one of the passengers namely Baldev Raj son of Late Roshan Lal also in his statement , stated that he alongwith his family members hired the said Innova car bearing No.PB-02-CQ-3975 from Amritsar to Jalandhar for attending marriage function, so it is crystal clear that the vehicle in question was used by the complainant for commercial purposes and on the other hand, the complainant is admitting himself that the vehicle was used as a private vehicle for his family, as such the complainant has violated the terms and conditions of the policy.  But if the complainant has violated the terms and condition of the policy, the  Insurance Company ought to have settled the claim of the complainant on “non standard basis”even if some of the conditions of the insurance policy are not adhered by the insured. Learned counsel in support of his above contention has relied upon the case titled National Insurance Company Limited versus Kamal Singhal IV (2010)CPJ297 (NC) wherein the Hon'ble National Consumer Disputes Redressal Commission, New Delhi relying upon various decisions of the National Consumer Disputes Redressal Commission in the matter of (1) National Insurance Company Ltd. v. J. P. Leasing & Finance Pvt. Ltd. (RP No. 643/2005), (2) Punjab Chemical Agency v. National Insurance Company Ltd. (RP No. 2097/2009), (3) New India Assurance Co. Ltd. v. Bahrati Rajiv Bankar, (RP) No. 3294/2009) and (4) National Insurance Company Ltd. v. Jeetmal, (RP No.3366/2009) and also judgment of the Hon'ble Apex Court in the matter of Insurance Company Versus Nitin Khandewal IV (2008) CPJ 1(SC), wherein Hon'ble Apex Court held in the breach of condition of the policy was not germane and also held further that :

 “ the appellant Insurance Company is liable to indemnify the owner of the vehicle when the insurer has obtained comprehensive policy to the loss caused to the insurer”.

The Hon'ble Supreme Court has further held that;

“even assuming that there was a breach of policy, the appellant Insurance Company ought to have settled the claim on “non-standard basis.”

Hon'ble Apex Court in back drop of these features, in these cases, allowed 75% of the claim of the claimant on the “non-standard basis”. This view was again reiterated by the Hon'ble Apex Court in the matter of Amalendu Sahoo versus Oriental Insurance Company Limited. II(2010) CPJ 9(SC)=II (2010)SLT 672.

That the Hon'ble National Commission in the case National Insurance Company Limited versus Kamal Singhal referred to above relying upon the law laid down by the Hon'ble Supreme Court has held that;

“there being a long line of decisions on this score, we have no option but to uphold the finding of Fora below with modification that the claim be settled on 'non-standard' basis”, in terms of the guidelines issued by the Insurance Company. In case petitioner company fails to carry out the direction contained therein, the amount payable on 'non-standard' basis, shall carry interest @ 6% p.a from the date of expiry of six weeks till the date of actual payment”.

9.       Having regard to the position of the law, as has been laid down, by the Hon'ble Apex Court in the various decisions referred to herein above and also the view expressed by the Hon'ble National Commission, we are of the considered view that in the present case the complainant, if not entitled for the entire insured amount, the Insurance Company definitely ought to have settled the complainant's claim on 'non-standard basis”, which in the facts and circumstances taking the assistance of the view expressed by the Hon'ble Apex Court and also by the Hon'ble National Commission, we allow 75% of the claim of the complainant on 'non-standard' basis”.

10.     Er.Rohit Kapoor, Surveyor, Loss Assessor & Valuer has assessed the net assessed  loss to the vehicle in question at Rs.10,95,724/- and the loss assessed by the surveyor can not be brushed aside without valid reasons.  It has been held by Hon’ble National Commission, New Delhi in case Oriental Insurance Company Limited Vs. B.Ramareddy II(2006) CPJ 339 (NC) that surveyor’s report is an important piece of evidence. Compensation can be awarded only on the basis of surveyor’s report.  Hon’ble Supreme Court of India in case Sri Venkateshwar Syndicate Vs. Oriental Insurance Company Limited, II(2010) CPJ 1 (SC) has held that the report of the surveyor is to be given due importance and weighage and it can not be brushed aside without valid reasons. 

11.     In view of the aforesaid facts and circumstances of the case, we direct the Opposite Parties to make the payment of   Rs.8,21,793/-  (i.e. 75%   of the assessed amount by the surveyor on 'non-standard' basis) within a period of 30 days from the date of receipt of the copy of this order, failing which the awarded amount shall carry interest @ 6% per annum from the date of order till payment.  Opposite Parties are also directed to pay Rs.5000/- to the complainant on account of compensation besides Rs.5000/- as litigation expenses.  Copies of the order be furnished to the parties free of costs. File is ordered to be consigned to the record room. Case could not be disposed of within the stipulated period due to heavy pendency of the cases in this Forum.

Announced in Open Forum