Haryana

Ambala

CC/113/2014

BALKAR SINGH - Complainant(s)

Versus

BAJAJ ALLIANZ GENERAL INSURANCE COMPANY LTD. - Opp.Party(s)

TARUN KALRA

07 Sep 2017

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM AMBALA

                                                          Complaint case no.        : 113 of 2014.

                                                          Date of Institution         : 02.05.2014.

                                                          Date of decision   : 07.09.2017

 

Balkar Singh s/o Gurmukh Singh r/o village Dera Salimpur, Tehsil Barara District Ambala.

……. Complainant.

                                      Versus

 

1.Bajaj Allianz General Insurance Company Limited GE Plaza Airport Road, Yerawada Pune, 411006 through the Manager of its General Manager/ Manager/ Director.

2.Bajaj Allianz General Insurance Company Limited 1^st Floor 167-18-C, Sadar Bazar Road, Hazara Singh Building, Ambala Cantt. Through its Manager.

3.Bajaj Allianz General Insurance Company Ltd. Claims Department, SCO 14,4^th  Floor, Urban Estate, Sector-5, Panchkula (Haryana) through its Manager.

 

….…. Opposite parties.

BEFORE:   SH. D.N. ARORA, PRESIDENT

                   SH. PUSHPENDER KUMAR, MEMBER         

                   MS. ANAMIKA GUPTA, MEMBER                 

 

Present:       Sh.Tarun Kalra, counsel for complainant.

                   Sh.R.K.Vig, counsel for OPs.

 

ORDER:

                   Brief facts of the present complaint are that complainant is registered owner of Mahindra Scorpio bearing registration No.HR37C-5452 and he got the same insured with OPs through its agent having validity from 12.02.2013 to 11.02.2014.  The complainant is an ex-official of Indian Army having driving licence valid from 17.12.2012 to 16.12.2017. In the night of 18.05.2013  the complainant alongwith his friends and family members were returning after attending the Shagun Ceremony from Kaithal then all of sudden vehicle got turned down and got badly damaged, due to this, the complainant, Mohan Lal  and his family members sustained injuries but said Mohan Lal succumbed due to injuries during treatment. The police of PS Ismailabad also registered DDR regarding this. After recovering from the injuries the complainant lodged insurance claim with the Ops to the tune of Rs.6,50,000/- for repair/replacement of vehicle and also submitted all the requisite documents with them but they vide letter dated 27.08.2013  repudiated the claim on the ground that the vehicle was being driven for hire and reward. Thereafter the complainant sent reply to this letter to the OPs and requested  for honouring the claim but to no avail and also they did not provide any document to the complainant.  The act and conduct of the Ops clearly amounts to deficiency in service. In evidence, the complainant has tendered affidavits Annexure CX and Annexure CY and documents Annexure C1 to Annexure C11.

2.                On notice, OPs appeared and filed their joint reply to the complaint. It has been submitted that there is no deficiency in service on the part of OPs as the vehicle was being used for Hire & Reward at the time of accident in contravention of terms and conditions of the policy. After intimation about the accident, the Ops had appointed a surveyor who in his final survey report had assessed the loss to the tune of Rs.4,52,544/-  subject to the terms and conditions of the policy. The OPs had appointed Investigator Dr.Sachin Gulati to investigate whether the vehicle was being used for commercial purposes then during investigation it came to his knowledge that the vehicle was being used for carrying passenger’s (Hire & Reward) i.e. for commercial purposes one Sandeep Kumar s/o late Sh.Mohan Lal had disclosed that Rs.2300/- were paid to the complainant for this tour.  The MACT claim is also under challenge. Other allegations levelled in the complaint have been controverted and prayer for dismissal of the complaint has been made. In evidence the OPs have tendered affidavits Annexure R1, Annexure R2 and documents Annexure R3 to Annexure R14.

3.                          It is not disputed that the vehicle in question was insured with the OPs and the accident had occurred during the subsistence of the policy in question which was having valid from 12.02.2013 to 11.02.2014 with IDV of Rs.6.50,000/- as is evidence through Annexure C3.

                     The sole ground of learned counsel for the OPs is that the complainant was using the vehicle in question for commercial purposes (Hire & Reward) and had violated the terms and conditions of the policy, therefore, his claim has rightly been repudiated as both the parties were bound by the terms and conditions of the policy. In support of his contentions he drew the attention of this Forum towards the statement of Sandeep Kumar son of deceased Mohan Lal, who alongwith his family was travelling in the vehicle in question at the time of accident, recorded by the investigator during investigation whereby he has deposed that Rs.2300/- were paid to complainant as hiring charges. In support of this contention learned counsel for the OPs has relied upon the case laws titled as National Insurance Company Limited Vs. Laxmi Narian Dhut  2007 (2) RCR (Civil) SC page 345.

                             On the other hand learned counsel for the complainant has argued the investigator who had recorded the statement of Sandeep Kumar during investigation was appeared before MACT, Ambala as RW1 and during his statement he had tendered the statement of Sandeep Kumar but learned MACT, Ambala made a verdict at the time of deciding the case titled as as Sandhya Rani Vs. Balkar Singh etc. decided on 18.09.2014 (Annexure C4) that due to non-examination of said Sandeep Kumar into witness box said plea was not tenable. It has been further argued the situation in the present case is also not different because it was for the OPs either to summon said Sandeep Kumar to tender affidavit to authenticate his statement Annexure R1, therefore, this version taken by the Ops is not tenable to make a ground for repudiation of the genuine claim of the complainant which has been proved on the case file.

                   Learned counsel for the complainant has further argued that if for the sake of arguments it is presumed that the vehicle was being plied for hire and reward even then the claim of the complainant cannot be denied toto and it should be settled on non-standard basis. In support of his contention he has placed case laws titled as IFFCO TOKOI GENERAL INSURANCE COMPANY AND OTHERS VS. K.P.PRAKASH 2012 (2) CPJ 97 (NC),  NATIONAL INSRUANCE COMPANY LIMITED VS. NITIN KHANDELWAL  2008 (ACJ) 2035  (SC), NATIONAL INSRUACNE COMPANY LIMITED VS. KAMAL SINGHAL 2010 (4) CPJ 297 and VIJAY KUMAR VS. MANAGER BAJAJ ALLIANZS GENERAL INSURANCE COMPANY LIMITED  2016 (2) conLT 148.  In all the cases the vehicle was used for hire and reward and claim was repudiated by the insurance company on the ground of committing of fundamental breach of terms and conditions of policy by using the vehicle for commercial purposes. Hon’ble Supreme Court in case titled as VIJAY KUMAR VS. MANAGER BAJAJ ALLIANZS GENERAL INSURANCE COMPANY LIMITED (supra) has held as under:

“In my view the use of a vehicle registered as a private car for Reward or Hire cannot be said to be fundamental so as to entitle the insurer to wholly deny the benefit of insurance to the insured in a case of accident. This is not a case where the vehicle was plied on the road without fitness or registration. Here there are was no bar on using the vehicle at a public place though having been registered as a private car it could not have been used as taxi. Had the insured got the vehicle registered and insured as taxi, the insurer could have charged a higher premium but could not have refused to insurer the vehicle. The insurer in such a case is only deprived of the higher premium which it could have recovered had the vehicle been registered and insured as a taxi. In my opinion, such a breach of the terms of the insurance policy cannot be said to be fundamental so as to permit the insurer to repudiate the claim in its entirely. Therefore, the claim in such cases ought to be settled on a non-standard basis”.

                   After hearing both the parties and going through the material available on the case file it is ample clear that the OPs have repudiated the claim by observing that the vehicle was being plied for Hire & Reward, therefore, keeping in view the case law title as VIJAY KUMAR VS. MANAGER BAJAJ ALLIANZS GENERAL INSURANCE COMPANY LIMITED (supra) this plea is not survived and the complaint deserves acceptance. From the surveyor report it is clear that the damaged parts of the vehicle was having the value of Rs.5,60069/- and the surveyor has assessed the loss to the tune of Rs.4,53,544/- after deducting the salvage and compulsory excess clause besides deducting of Rs.1,48,822.95/- as depreciation charges.  Perusal of the case file reveals that the as per the insurance policy the model of the vehicle is 2011 and the IDV of the vehicle is Rs.6,50,000/-. It is a settled law that if a vehicle is damaged upto the extent of 75% then it would be treated as complete damage/total loss. The surveyor in his report has not pointed out that the vehicle is repairable and he assessed the loss to the tune of Rs.4,53,544/- despite the fact that the IDV of the vehicle was Rs.6,50,000/-.  The verdict made in the case law relied upon by learned counsel for the OP is not disputed wherein it has been mentioned that  there is difference of approach in cases where dispute relates to claim relating to insurer and insured and the conceptual difference between third party right and own damages cases has to be kept in view but it is pertinent to mention here that this Forum has powers to decide the case as per the Consumer Protection Act, 1986 keeping in view the fact that whether there is any deficiency in service on the part of OP/OPs or not and in the present case this Forum found the Ops deficient in providing service as per provisions of Section 2 (1) (d) & (g) of Consumer Protection Act, therefore, this Forum is deciding the present complaint as per the provisions of Consumer Protection Act. Accordingly, we accept the present complaint by giving 75 % of the insured amount to the complainant on non-standard basis. Hence, the present complaint is hereby partly allowed with costs to be assessed at Rs.5,000/- on non-standard basis  (75 % of admissible claim as that is applicable only where the breach is insignificant & not maturity fundamentals to the loss) and OPs are directed to comply with the following directions within thirty days from receipt of copy of the order:             

1. To pay the 75 % of the Insured Declared value of the vehicle in question i.e. Rs.6,50,000/- alongwith with simple interest @ 9% per annum from the date of filing of complaint till actual realization after deducting Rs.2000/- on account of compulsory excess and the complainant is directed to handover the salvage charges to the OP.

 

Copies of the order be sent to the parties concerned, free of costs, as per rules. File after due compliance be consigned to record room.

Announced on: 07.09.2017                                     (D.N. ARORA)

                                                                                       President

 

    

     (PUSHPENDER KUMAR)

                                                                                       Member

 

 

         (ANAMIKA GUPTA)

                                                                                       Member