Punjab

Faridkot

CC/16/320

Harbans Singh - Complainant(s)

Versus

The New India Assurance Co. Ltd., - Opp.Party(s)

Ravinder Kumar Goyal

18 Apr 2017

ORDER

 DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, FARIDKOT

 

Complaint No. :     320

Date of Institution: 4.11.2016

Date of Decision :  18.04.2017

 

Harbans Singh age 50 years, s/o Jalour Singh r/o village Khara, Tehsil Kotkapura and District Faridkot.                                                                

                                                                                      ...Complainant

Versus

The New India Assurance Company Ltd through its Branch Manager, Opposite IOC Depot, Mall Godown Road, Kotkapura, Tehsil Kotkapura and District Faridkot.

                             .............OPs

Complaint under Section 12 of the

Consumer Protection Act, 1986.

 

Quorum:Sh. Ajit Aggarwal, President,

               Sh P Singla, Member.

 

Present: Sh  Ravinder Goyal, Ld Counsel for Complainant,

              Sh Y P Bansal, Ld Counsel for Ops.

 

ORDER         

(Ajit Aggarwal, President)

                         Complainant has filed the present complaint under Section 12 of the Consumer Protection Act, 1986 against  United India Insurance Co/OPS seeking directions to OPs to make payment of Rs.10,00,000/- as insurance claim with interest and for further directing OPs to pay Rs.2,00,000/- as compensation for deficiency in service and harassment and Rs.55,000/- as litigation expenses.

2                           Briefly stated, the case of the complainant is that trolla of complainant bearing registration no. PB 05 M 5982 was insured with Ops vide Insurance Policy No. 360701311400006123 w.e.f. 27.07.2014 to 26.07.2015. It is further submitted that on 7.07.2015, when complainant was going from Kalait (Bikaner) to Maruvi (Gujarat), his vehicle met with an accident in the area of P S Baltora District Barmer (Rajasthan) and FIR No.306 to this effect was also got registered on 7.07.2015. Trolla of complainant was badly damaged in this accident and complainant duly informed about this fact to Ops and they appointed  a Surveyor to assess the loss. Complainant submitted all requisite documents demanded by Ops and completed all formalities to obtain his claim, but every time officials of Ops linger on the matter on one pretext to other. All this amounts to deficiency in service and has caused harassment and mental tension to complainants for which he has prayed for directing the OPs to pay compensation and litigation expenses incurred by him besides the main relief. Hence, the complaint.

3                                    The counsel for complainant was heard with regard to admission of the complaint and vide order dated 8.11.2016, complaint was admitted and notice was ordered to be issued to the opposite party.

4                                 On receipt of the notice, Ops filed reply through counsel wherein took preliminary objections that this Forum has no jurisdiction to hear and try the present complaint as alleged accident has taken place at Rajasthan. It is averred that at the time of accident, the vehicle was not driven by licensed driver, rather vehicle in question was being driven by Jasbir Singh who was not having any driving license at the time of accident. Moreover, lengthy evidence is required to prove the case, which is not possible in summary proceedings and even complainant is stopped by his own act and conduct to file the present complaint. Complainant has filed a false and frivolous complaint and there is no deficiency in service on the part of answering Ops. It is further averred that as per Survey Report given by Eminet Solv Serve Insurance, Surveyors and Loss Assessors P Ltd, the maximum liability in present complaint is limited to Rs.5,48,500/-, but it is denied because at the time of accident vehicle in question was being driven by Jasbir Singh, who did not have any driving license at that time and specifically denied that it was being driven by Harbans Singh/complainant. However, on merits, OPs denied all the allegations levelled by complainant being wrong and incorrect and reiterated that there is no deficiency in service or unfair trade practice. It is asserted that in said accident only horse of trolla damaged whereas as trailer of the vehicle remained intact. The allegations with regard to relief sought too were refuted with a prayer that complaint deserves to be dismissed with costs.

5                                   Parties were given proper opportunities to prove their respective case. Ld Counsel for complainant tendered in evidence documents Ex C-1 to 6 and then, closed their evidence.

6                                 In order to rebut the evidence of the complainant, ld Counsel for Ops tendered in evidence affidavit of Din Dyal as Ex OP-1 and documents Ex OP-2 to 8 and then closed the evidence on behalf of Ops.

7                                     We have heard the ld counsel for complainant as well as Ops and have carefully gone through the record available on file.

8                                     The Ld Counsel for complainant argued that trolla of complainant bearing registration no. PB 05 M 5982 was insured with Ops against Insurance Policy No. 360701311400006123 w.e.f. 27.07.2014 to 26.07.2015. On 7.07.2015, when complainant was going from Kalait (Bikaner) to Maruvi (Gujarat), his trolla met with an accident in the area of P S Baltora District Barmer (Rajasthan) and FIR No.306 to this effect was also got registered on 7.07.2015. Trolla of complainant was badly damaged in accident and he duly informed about this fact to Ops and they appointed  a Surveyor to assess the loss. Complainant submitted all requisite documents demanded by Ops and completed all formalities to obtain his claim, but every time officials of Ops linger on the matter on one pretext to other. All this amounts to deficiency in service and has cause great harassment to him. He has prayed for accepting the complaint and also prayed for compensation and litigation expenses.

9                                     In reply to the arguments of complainant, counsel for OPs argued that this Forum has no jurisdiction to hear and try the present complaint as alleged accident has taken place at Rajasthan. It is averred that at the time of accident, the vehicle was not driven by licensed driver, rather vehicle in question was being driven by Jasbir Singh who was not having any driving license at the time of accident. It is further averred that lengthy evidence is required to prove the case, which is not possible in summary proceedings and even complainant is stopped by his own act and conduct to file the present complaint. Complainant has filed a false and frivolous complaint and there is no deficiency in service on the part of OPs. Moreover, as per Survey Report given by Eminent Solv Serve Insurance, Surveyors and Loss Assessors P Ltd, the maximum liability in present complaint is limited to Rs.5,48,500/-, but it is denied because at the time of accident vehicle in question was being driven by Jasbir Singh, who did not have any driving license at that time and it is specifically denied that it was being driven by Harbans Singh/complainant. OPs have denied all the allegations levelled by complainant being wrong and incorrect and asserted that in said accident only horse of trolla damaged whereas as trailer of the vehicle remained intact. Ld counsel for Ops submitted that there is no deficiency in service on their part and prayed for dismissal of complaint.

10                              From the aforesaid discussion, it is observed that case of the complainant is that his insured trolla met with an accident and he duly intimated Ops about this fact and completed all formalities and submitted requisite documents to Ops to get his genuine claim, but Ops lingered on the matter for no reason. On the contrary, it is admitted by Ops that vehicle in question was insured with them and there is no dispute regarding occurrence of accident, but they stress mainly on the point that at the time of accident, the vehicle was not driven by duly licensed driver, rather vehicle in question was being driven by Jasbir Singh who was not having any driving license at the time of accident. It is denied that at the time of accident the vehicle in question was driven by Harbans Singh/complainant, rather it was driver by Jasbir Singh, who died in the accident and this fact is proved in the investigation conducted by Police. The Police filed Challan against Jasbir Singh in the court at Balotra (Rajasthan) and in challan, Police clearly mentioned that Jasbir Singh had no driving license, copy of challan is Ex OP-4. Ops also investigated the matter through Satyendra Vyas Investigator, who also gave the same report. Copy of Investigation Report is Ex OP-3. So, as per terms and conditions of Policy, Ops have rightly repudiated the claim vide letter dated 13.09.2016 Ex OP-2. Ld counsel for Ops further argued that in any case, the complainant is not entitled to anything more than the amount assessed by Surveyor vide his Survey Report Ex OP-5.

11                                 Ld Counsel for complainant argued that at the time of accident, the vehicle was driven by Harbans Singh/complainant and if it is presumed that it was driven by Jasbir Singh who had no driving license at the time of accident, then in that case also, the Ops cannot repudiate the claim on this ground. He put reliance on the case citation 2004(2) RCR 114, Supreme Court of India in case titled as National Insurance Co. Ltd Vs Swaran Singh and Ors wherein Hon’ble Apex Court held that Motor Vehicle Act, 1988, Section 149(2) (a) (ii) and proviso to Sub Section (4) and (5)-Disqualification of driver – Validity of driving license – Insurer is entitled to raise all defences available u/s 149 (2) of the Act -  However, mere absence, fake or invalid at the relevant time are not the defences available to insurer against the insured or third parties – to avoid its liability towards the insured also the insurer has to prove the insured to be guilty of negligence and failure to exercise reasonable care in compliance of conditions of Policy – Burden is on the insurer to establish breach of Policy by leading cogent evidence – Mere non production of license or evidence by the insured cannot be considered as discharge of burden of insurer. It is argued that Insurance Company has failed to prove that there is any negligence or failure to exercise any reasonable care in driving of the vehicle. He also put reliance on the citation 2010 (1) Consumer Protection Cases 653 in case titled as Amalendu Sahoo Vs Oriental Insurance Company Ltd wherein Apex Court held that even where violations of Policy is found, Insurer should pay 75% of total amount as on non standard basis. He also placed reliance on citation 2008 (3) CPC 559 Supreme Court of India titled as National Insurance Company Ltd Vs Nitin Khandelwal, wherein Hon’ble Apex Court held that appellant Insurance Company is liable to indemnify the owner of vehicle when the insurer has obtained comprehensive policy for the loss caused to the insurer even assuming that there was a breach of condition of Insurance Policy. The appellant Insurance Company ought to have settled the claim on non standard basis. He also placed reliance on citation 2006 (2) Consumer Protection Cases 33 titled as New India Assurance Company Vs Narayan Prasad Appa Prasad, wherein Hon’ble National Commission held that vehicle at the time of accident was carrying passengers more than permitted by rules – Even driver was not duly licensed – Order of authority below granting payment of full insured amount with cost and compensation cannot be sustained – Appellant directed to settle the claim on non standard basis i.e 75% of Rs.4,32,000/-with 9% interest. They further held in para no.4 of the judgment that not having proper valid license to drive a Maxi-cab as also carrying excess passengers than the licensed capacity are violation of the terms and conditions of the policy. It is for covering these contingencies that GIC has issued the guidelines for the Insurance Company for settling the claim on “non standard basis”, which is as follows:

Following types of claims shall be considered as non standard and shall be settled as indicated below after recording the reasons :

 

Sr. No.	Description	%age of Settlement
(i)	Under declaration of licensed carrying capacity	Deduct 3 years difference in premium from the deduct 25% of claim amount, whichever is higher.
(ii)	Overloading of vehicles beyond licensed carrying capacity	Pay claims not exceeding 75% of admissible claim.
(iii)	Any other breach of warranty/condition of Policy including limitation as to use.	Pay upto 75% of admissible amount.

 

12                                          Ld Counsel for complainant argued that even if it is taken that at the time of accident, vehicle was driven by Jasbir Singh, who had no valid driving license at the time of accident, then in that case also, the Insurance Company cannot repudiate the whole insurance claim of complainant and in that case, it should be decided on the basis of non standard basis.

13                                 We have thoroughly gone through the file and case law produced by the complainant and from the perusal of all documents placed on record and in view of above discussion, we have come to the conclusion that if it is presumed that vehicle was driven by Jasbir Singh, who had no driving license at that time and it is breach of terms and conditions of the Insurance Policy, then, in that case also, the Insurance Company cannot repudiate the whole claim of complainant and it is to be decided on non standard basis and therefore, in the light of above discussion, the complaint in hand is hereby partly allowed. Ops are directed to settle the claim of complainant on non standard basis and are ordered to pay Rs.5,23,875/- i.e 75% of Rs. 6,95,000/- as assessed by the Surveyor on net salvage basis vide his Survey Report Ex Op-5 alongwith interest at the rate of 9% per anum from 13.09.2016 i.e from the date of repudiation till final realization. Ops are further directed to pay Rs.3000/-as litigation expenses to complainant. Compliance of this order be made within one month from the date of receipt of the copy of the order, failing which complainant shall be entitled to proceed under Section 25 and 27 of the Consumer Protection Act. Copy of order be given to parties free of cost under rules. File be consigned to record room.

Announced in Open Forum

Dated : 18.04.2016

                                                Member                   President

                                                (P Singla)         (Ajit Aggarwal)