BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, AMRITSAR.

Consumer Complaint No. 181 of 2016

Date of Institution: 22.04.2016

Date of Decision: 15.01.2018

M/s.M.R.Filling Station, Rattan Singh Chowk,  Fatehgarh Churian Road, Amritsar, through its proprietor Ms.Simmi Arora daughter of Sh.Mohan Singh Arora.

Complainant

Versus

The New India Assurance Company Limited, Divisional Office 80-Court Road, Amritsar through its Senior Divisional Manager.

Opposite Party

Complaint under section 12 & 13 of the Consumer Protection Act, 1986 (as amended upto date).

Present: For the  Complainant: Sh.G.S.Sachdeva, Advocate.      

              For the Opposite Party: Sh.Rajinder Nayyar, Advocate.                      

Coram

Sh.Anoop Sharma, Presiding Member

Ms.Rachna Arora, Member.   

Order dictated by:

Ms.Rachna Arora, Member

1.       The complainant  has brought the instant complaint under section 12 & 13 of the Consumer Protection Act, 1986 on the allegations that the complainant is the proprietorship firm and Ms.Simmi daughter of Mohan Singh Arora is the proprietor of the complainant concern and she is running the aforesaid firm for earning her livelihood, and hence the complainant is a consumer as provided under the Act and is competent to invoke the jurisdiction of this Forum. One petrol tanker bearing RC No.PB-02-BN 9747 belongs to the complainant concern which was insured by Opposite Party  vide policy No.36050031140100000640  for the period from 18.4.2014- 2.11 PM to 17.4.2015- 11.58.59 PM. On 4.2.2015 the aforesaid tanker met with an accidental fire near Malian village due to short circuit in the engine area when it was returning from Jalandhar with products. However, the driver of the vehicle in question immediately called for fire tender from Sewa Samiti, Amritsar which deuced the fire. During the fire fighting the driver of the vehicle actively participated which helped save the products. But unfortunately, entire tanker alongwith all the documents lying in the vehicle in question got burnt and perished despite optimum efforts these could not be saved. The FIR is also lodged in this regard. Soon after the accident, the Opposite Party  was also informed and a request was made to the Opposite Party for deputing their surveyor to access the loss so suffered by the complainant and after assessment of loss, the insurance claim was filed by the complainant with the office of Opposite Party. Thereafter, the Opposite Party  raised some documents which were duly supplied. Now again vide letter dated 25.9.2015, the Opposite Party  raised the objections that hazardous goods carriage training certificate of the driver does not cover date of loss.  Since the complainant has already submitted that all documents have been perished in the fire that gutted the tanker on 4.12.2015. It is also furnished by complainant that no tanker can enter the IOC depot if its driver is not properly trained in hazardous goods carriage. At last, the Opposite Party  vide its letter dated 23.11.2015 has stated that the claim of the complainant is not admissible and the claim file is closed as No Claim without assigning any justified rhyme or reason. Vide instant complaint, the complainant has sought the following reliefs.

a)       Opposite Party  may kindly be directed to settle the claim of the complainant for Rs.5,74,170/-. 

b)      Opposite Party  may kindly be directed to pay Rs.50,000/- on account of compensation for causing her mental tension and harassment.

c)       Opposite Party  may kindly be directed to pay cost of the present litigation.

Hence, this complaint.

2.       Upon notice, Opposite Party  appeared and contested the complaint by filing  joint written statement taking preliminary objections therein inter alia that the complainant has concealed the true and hard facts from this Forum. The true facts are that it is not disputed that the vehicle in question was insured with Opposite Party and it was met with an accident due to short circuit and intimation was duly given to the Opposite Party  and the Opposite Party  immediately deputed its surveyor Er.Inderjit Singh for spot survey report and thereafter R.P.Bhasin & Co surveyor and loss assessor to assess the loss of the said vehicle  and said surveyor assessed the loss to the vehicle to the tune of Rs.2,25,000/- subject to submission of all the relevant documents necessary  for the settlement of the claim i.e. driving licence of the driver who was driving the vehicle in question at the time of accident and hazardous goods carries training certificate of the driver pertaining to the accident period and after verification of these documents, it was found that the driving licence  of the driver dated 16.1.2013 is valid for MCWG and LMV and DL further endorsement for LMV and LMV  can dated 25.6.2014 valid upto 24.2.2017 and NP upto 25.11.2033 stands in the name of Hira Singh son of Karnail Singh and the hazardous goods carries training certificate of driver is valid from 20.5.2015 to 19.5.2016. As per the verification of these documents, the driver of the vehicle in question was not having a legal and valid driving license at the time of alleged accident  and he was driving the said vehicle without any valid driving licence which is against the terms and conditions and hence, the claim of the complainant was rightly rejected after due application of mind. 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.C-1 in support of the allegations made in the complaint and also produced copies of documents Ex.C2   to Ex.C41  and closed her evidence.

4.       On the other hand, to rebut the evidence of the complainant, the Opposite Party tendered into evidence the affidavit of Sh.J.S.Dhaap, Sr.Divisional Manager,  Ex.OP1 alongwith copies of documents Ex.OP2 to Ex.OP19 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.       The complainant has submitted his affidavit Ex.C1 in which he has reiterated the facts as detailed in the complaint and contended that the complainant is the proprietorship firm and Ms.Simmi daughter of Mohan Singh Arora is the proprietor of the complainant concern and she is running the aforesaid firm for earning her livelihood, and hence the complainant is a consumer as provided under the Act and is competent to invoke the jurisdiction of this Forum. One petrol tanker bearing RC No.PB-02-BN 9747 belongs to the complainant concern which was insured by Opposite Party  vide policy No.36050031140100000640  for the period from 18.4.2014- 2.11 PM to 17.4.2015- 11.58.59 PM. On 4.2.2015 the aforesaid tanker met with an accidental fire near Malian village due to short circuit in the engine area when it was returning from Jalandhar with products. However, the driver of the vehicle in question immediately called for fire tender from Sewa Samiti, Amritsar which deuced the fire. During the fire fighting the driver of the vehicle actively participated which helped save the products. But unfortunately, entire tanker alongwith all the documents lying in the vehicle in question got burnt and perished despite optimum efforts these could not be saved. The FIR is also lodged in this regard. Soon after the accident, the Opposite Party  was also informed and a request was made to the Opposite Party for deputing their surveyor to access the loss so suffered by the complainant and after assessment of loss, the insurance claim was filed by the complainant with the office of Opposite Party. Thereafter, the Opposite Party  raised some documents which were duly supplied. Now again vide letter dated 25.9.2015, the Opposite Party  raised the objections that hazardous goods carriage training certificate of the driver does not cover date of loss.  Since the complainant has already submitted that all documents have been perished in the fire that gutted the tanker on 4.12.2015. It is also furnished by complainant that no tanker can enter the IOC depot if its driver is not properly trained in hazardous goods carriage. At last, the Opposite Party  vide its letter dated 23.11.2015 has stated that the claim of the complainant is not admissible and the claim file is closed as No Claim without assigning any justified rhyme or reason.

7.       On the other hand, ld.counsel for the Opposite Parties has repelled the aforesaid contention of the ld.counsel for the complainant on the ground that it is not disputed that the vehicle in question was insured with Opposite Party and it was met with an accident due to short circuit and intimation was duly given to the Opposite Party  and the Opposite Party  immediately deputed its surveyor Er.Inderjit Singh for spot survey report and thereafter R.P.Bhasin & Co surveyor and loss assessor to assess the loss of the said vehicle  and said surveyor assessed the loss to the vehicle to the tune of Rs.2,25,000/- subject to submission of all the relevant documents necessary  for the settlement of the claim i.e. driving licence of the driver who was driving the vehicle in question at the time of accident and hazardous goods carries training certificate of the driver pertaining to the accident period and after verification of these documents, it was found that the driving licence  of the driver dated 16.1.2013 is valid for MCWG and LMV and DL further endorsement for LMV and LMV  can dated 25.6.2014 valid upto 24.2.2017 and NP upto 25.11.2033 stands in the name of Hira Singh son of Karnail Singh and the hazardous goods carries training certificate of driver is valid from 20.5.2015 to 19.5.2016.As per the verification of these documents,the driver of the vehicle in question was not having a legal and valid driving license at the time of alleged accident  and he was driving the said vehicle  without any valid driving licence which is against the terms and conditions.

8.       The only ground for repudiation of the claim of the complainant is that the after verification of the submitted  documents, it was found that the driving licence  of the driver dated 16.1.2013 is valid for MCWG and LMV and DL further endorsement for LMV and LMV  can dated 25.6.2014 valid upto 24.2.2017 and NP upto 25.11.2033 stands in the name of Hira Singh son of Karnail Singh and the hazardous goods carries training certificate of driver is valid from 20.5.2015 to 19.5.2016. As per the verification of these documents, the driver of the vehicle in question was not having a legal and valid driving license at the time of alleged accident  and he was driving the said vehicle  without any valid driving licence with is against the terms and conditions.   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 claimed 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.     In view of the aforesaid facts and circumstances of the case, we direct the Opposite Party to make the payment of   75%   of the claimed amount by the complainant,  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 Party  also directed to pay Rs.2000/- to the complainant on account of compensation besides Rs.1000/- 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

Dated: 15.01.2018.                           (Rachna Arora)             (Anoop Sharma)                                                               Member                     Presiding member