Chandigarh

DF-II

CC/432/2018

Vishal Dhawan - Complainant(s)

Versus

United India Insurance Company Limited - Opp.Party(s)

Adv. Kamal Kant Verma

02 Dec 2019

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-II

U.T. CHANDIGARH

 

Consumer Complaint No.	:	432/2018
Date of Institution	:	03.08.2018
Date of Decision	:	02.12.2019

 

                                       

                                               

Vishal Dhawan son of Sh.Ravinder Kumar Dhawan r/o H.No.412, Gali No.4, Ganesha Basti, Bathinda.

                                ...  Complainant.

Versus

 

United India Insurance Company Ltd, Divisional Office-1, SCO No.127-128, 4^th Floor, Sector 17-C,Chandigarh through its  Divisional Manager.

…. Opposite Party.

 

BEFORE:

 

              SHRI RAJAN DEWAN, PRESIDENT

SMT.PRITI MALHOTRA, MEMBER

 

 

Argued by:-

 

                Sh.Kamal Kant Verma, Adv. for the complainant

                Sh.J.S.Bagga, Adv. for the OP.

 

 

PER RAJAN DEWAN, PRESIDENT

1.         Briefly stated, the case of the complainant, he purchased a Dastun Car bearing temporary registration No.CH-106((T)-747 which was valid from 03.01.2018 to 02.02.2018 from M/s Joshi Auto Wheels Pvt. Ltd. on 03.01.2018 by raising the loan from HDFC Bank for earning his livelihood. The same was insured with the OP vide PCV 4 Wheeler Not Exceeding 6 PSGRS Package Policy for the period from 30.01.2018 to 29.01.2019 (Annexure C-4).    He applied for permanent registration of the vehicle as well as route permit etc. to the State Transport Authority, Mohali and deposited the required fee on-line on 29/30.01.2018(Annexure C-6 (Colly.).  He got CNG kit fitted in the vehicle from its authorized agency.   It has been averred that on 28.03.2018, the driver of the car was returning to his residence to park the vehicle and when he reached at light points Sector 17/18 (Press Chowk) then one Ambulance bearing registration No.PB65AH-2952 jumped the red light and hit against the car due to which it was damaged.  Since the offending vehicle was ambulance, the driver of the car did not press for police action and the matter was taken on record by Police as information only.  The officials of the Police Station, Sector 3, Chandigarh entered the DDR No.006 dated 28.03.2018 and then DDR No.053 dated 05.04.2018.  The car was taken to M/s Joshi Auto Wheels Pvt. Ltd., Chandigarh  which prepared the estimate of loss. Subsequently the OP appointed Sh.Rajesh Wadhawan as Surveyor to access the loss to the vehicle who submitted his report to the OP.  He also provided all the documents to Dr.Joseph K Masih, investigator appointed by the OP. According to the complainant, the OP has rejected the claim vide letter dated 29.06.2018 on flimsy grounds. Alleging that the aforesaid acts amount to deficiency in service and unfair trade practice on the part of the OP, the complainant has filed the instant complaint.
2.         In its written statement, the OP while admitting the factual matrix of the case has pleaded that the complainant purchased the vehicle in question, run on petrol on 03.01.2018 whereas he got fitted CNG kit on 25.01.2018 and subsequently he applied for registration of the vehicle as petrol vehicle on 29.01.2017 but he did not endorse the vehicle as CNG kit fitted vehicle although he had got fitted the CNG kit before applying for its registration and thus he concealed this fact from the Registering Authority.  It has further been pleaded that extra premium of Rs.1282/- was to be paid in case of CNG fitted vehicle which he did not pay and he concealed the fact of CNG kit and, therefore, he violated the terms and conditions of the Insurance Policy.  It has further been pleaded that the vehicle was not having permit to ply the same in Chandigarh where the alleged accident took place.   It has further been pleaded that no FIR was registered and only a DDR No.6 dated 28.03.2018 was registered with the concerned police station.  It has further been contended that the claim was rightly repudiated by the Company. The remaining allegations have been denied, being false. Pleading that there is no deficiency in service on its part, a prayer for dismissal of the complaint has been made.
3.         The complainant filed rejoinder to the written reply of the Opposite Party controverting its stand and reiterating his own.
4.         We have heard the learned Counsel for the parties and have gone through the documents on record.
5.         It is an admitted case of the parties that the vehicle in question met with an accident on 28.03.2018 during the existence of the Insurance Policy in question. It is also not in dispute that the vehicle was qualified as total loss basis as the net liability on repair basis was more than 75% of the IDV as is evident from the survey report dated 24.05.2018.
6.         The only question to be determined in this case is as to whether the claim was rightly repudiated by the OP vide its letter dated 12.07.2018 (Annexure C-11) or not.
7.         The main defence of the OP is that the vehicle in question was being plied in contravention of the terms and conditions of the Insurance Policy as the CNG kit was fitted in the vehicle at the time of the accident and the aforesaid fact was not brought to the notice of the OP.   Even there was no endorsement of CNG kit in the RC of the vehicle.  However, we do not find any weight in this submission of the OP because the RC was first to be registered with Licensing Authority on the basis of the original documents i.e. Sale Invoice and the Sale Certificate (Form No.21) dated 03.01.2018. The endorsement of CNG kit, if any, was to be added subsequently after the registration of the vehicle with the Licensing Authority because the same was got fitted after purchase of the vehicle in question.  In the present case, the complainant had applied for the registration of the vehicle and route permit before the expiry of the temporary registration number with the Punjab Motor Vehicle Department on 29.01.2018 and the RC of the vehicle in question was admittedly received by him from the Licensing Authority in the month of April, 2018 whereas the vehicle met with an accident on 28.03.2018 and  as such there was no occasion for the complainant to get the necessary endorsement with regard to the CNG kit in the RC of the vehicle.  Here, our view finds support even from the observations of Dr.Joseph K.Masih, Investigator appointed by the OP itself who  in his investigation report dated 25.06.2018 (Annexure C-9) at  para (vi) of the opinion and observations has opined as under:-

“He got copy of registration in the month of April, 2018 and that is the reason the CNG was not entered in the RC”.

                In this view of the matter, we are of the considered view that the CNG could be entered only when the RC was to be issued by the Licensing Authority and only then the procedure of any endorsement could be undertaken by the complainant. 

8.         Besides this, it is not the case of the OP that the vehicle suffered damages due to any electric shock on account of the fitting of the CNG kit in the vehicle in question.  There is no nexus of accident with the alleged fitting of CNG kit in the car.  On the contrary, the Investigator of the OP himself has clearly observed in para (vii) of his Investigation Report that on 28.03.2018, Dastun Cab No.CH01-06-(T)-0747, which was driven by Sh.Attal Prakash was coming to home via Sector 8, Chandigarh then suddenly an ambulance No.PB-65AH2952 jumped the red light at 17/18 Light Point and hit against the car in question resultantly it was damaged.  Besides this, the Investigator has further observed that there was no third party loss of life and so DDR No.6 dated 28.03.2018 and DDR No.53 dated 05.04.2018 were entered by the Police at Police Station Sector 3, Chandigarh.  Keeping in view the facts and circumstances of the present case, we are of the considered view that the OP has committed deficiency in service by repudiating the claim in toto on the grounds stated in the letter dated 12.07.2018 (Annexure C-11).
9.         However, the fact remains that there is violation of the provisions of the terms and conditions of the policy as well as Motor Vehicles Act and as such the OP instead of repudiating the whole claim of the complainant should have settled the claim on non-standard basis.  In these set of the circumstances, the repudiation of the claim in toto by the OP only on the ground that the vehicle in question was being plied in contravention of the terms and conditions of the Insurance Policy as well as the provisions of the Motor Vehicles Act, is held to be unjustified, illegal and untenable, which construed deficiency in service on the part of the OP-Insurance Company.
10.                     In this connection, reference may be made to a decision of National Commission in the case of New India Assurance Company Limited v. Narayan Prasad Appaprasad Pathak, reported in II (2006) CPJ 144 (NC). In that case, the question was whether the insurance company can repudiate the claims in a case where the vehicle carrying passengers and the driver did not have a proper driving license and met with an accident. While granting claim on non-standard basis the National Commission set out in its judgment the guidelines issued by the insurance company about settling all such non-standard claims. The said guidelines are set out below:

	“Sr. No.	Description		Percentage of settlement
	i)	Under declaration of licensed carrying capacity		Deduct 3 years’ difference in premium from the amount of claim or deduct25% 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 claim.

11.          From a perusal of the aforesaid guidelines it is clear that even in cases where condition of policy including limitation as to use was breached, the claim was ordered to be settled at 75% of the admissible claim. Hence, the present case is also fully covered by the ratio of law settled in the aforesaid judgment and the insurance company should not have repudiated the claim in toto.
12.                     In view of the above, the complaint deserves to be allowed. Accordingly the complaint is partly allowed against the OP and the OP is directed as under:-
    1. To pay Rs.2,15,195/- i.e. 75% of the assessed claim on non-standard basis to the complainant along with interest @ 9% from the date of repudiation, till its actual realization.
    2. To pay Rs.15,000/-, for mental agony and physical harassment caused to the complainant and also for deficiency in providing service and adopting unfair trade practice.
    3. To pay cost of litigation, to the tune of Rs.11,000/- to the complainant.

 This order be complied with by the OP, within 45 days from the date of receipt of its certified copy, failing which the amount at Sr.No.(ii) shall carry interest @9% per annum from the date of this order till actual payment besides compliance of other directions.

13.         Certified copy of this order be communicated to the parties, free of charge. After compliance file be consigned to record room.

Announced

02/12/2019

 

Sd/-

(RAJAN DEWAN)

PRESIDENT

 

Sd/-

(PRITI MALHOTRA)

MEMBER