0BEFORE THE DISTRICT CONSUMER DISPUTES
REDRESSAL COMMISSION, JALANDHAR.
RBT/CC No.265 of 2022
Date of Inst. 02.08.2022
Date of Decision: 28.10.2022
Gobindpreet Singh son of late Sh. Balwant Singh, resident of House No. 63, Village Adalpur, Tehsil Shahkot, District Jalandhar.
….. Complainant
Versus
1. Bajaj Allianz General Insurance Company Limited, Branch Office, 3rd Floor, Satnam Complex, BMC Chowk, Jalandhar City through its Branch Manager.
2. Bajaj Allianz General Insurance Company Limited, Branch Office, 3rd Floor, Satnam Complex, BMC Chowk, Jalandhar City through Motor Claims Manager.
…Opposite Parties
Complaint Under the Consumer Protection Act.
Before: Dr. Harveen Bhardwaj (President)
Smt. Jyotsna (Member)
Sh. Jaswant Singh Dhillon (Member)
Present: Sh. Sudhir Gupta, Adv. Counsel for the Complainant.
Sh. R. K. Sharma, Adv. Counsel for the OPs No.1 & 2.
Order
Dr. Harveen Bhardwaj (President)
1. The instant complaint has been remanded back by the Hon’ble State Commission, vide order dated 10.03.2022, whereby the order of this Commission dated 01.06.2021 was set-aside and the District Commission was directed to decide the complaint on merits only as the same was filed within the period of limitation.
- Brief facts of the complaint are that the Bolero Camper Car bearing no. PB08-C-3726, 2014 Model owned and registered in the name of Balwant Singh (since deceased) father of the complainant and said vehicle was duly insured vide Motor Vehicle Cover Note No.DY 1302683993 for IDV of Rs.6 lakh valid from 28.02.2016 to 27.02.2017 with comprehensive coverage as granted therein. The contract was reached between the father of the complainant , who is LR , who was residing with his father having died in a road side accident dated 13.05.2016 at Shahkot Jalandhar Road, Army vehicle no.04D156433WCL2 hit against the Bolero while coming from the opposite side resulting into damage of the Bolero Camper Car in question. The claim of the damaged car in question was reported with the OPs immediately after the accident and surveyor and loss Assessor was deputed who assessed the loss and assured him that since the vehicle was a total loss, the entire IDV shall be paid to him in due course. The complainant requested the surveyor and OPs to provide him with a complete copy of policy insurance with terms and conditions which were never supplied to him by OPs. The complainant has been pursuing his case with the OPs from time to time by visiting their office on number of occasions and meeting Branch Manager, who assured him claim shall be paid at the earliest. But complainant was surprised to receive letter dated 26.08.2016 from office of OPs whereby they rejected the claim. This act of OPs not only amounts to delay, deficiency and commission of unfair trade practices by OPs but they have also failed to protect the policyholder. Therefore, the complainant being LR of the deceased father, has filed the present complaint and prayed that OPs be directed to pay Rs.6 lakh i.e. insured declared value of the insured damaged vehicle in question, besides to pay Rs.2 lakh towards compulsory PA cover granted in favour of the insured Balwant Singh, to pay Rs. 1 lakh as compensation for mental harassment with 18% interest p.a. and Rs.55,000/- towards litigation expenses.
- Upon notice, OPs appeared and filed their joint written reply and contested the complaint of the complainant by raising preliminary objections that there is no delay in service or unfair trade practice on the part of OPs. The complaint is hopelessly time barred. The complainant has not come to the Form with clean hands and has suppressed the material facts from this Forum. On merits, it was averred that after scrutinizing the documents it was observed that Balwant Singh was holding driving license bearing no. PB 6720130007025 dated 18.06.2013 issued by Licensing Authority Shahkot for MCWG, LMV and Tractor and not valid from LMV Transport i.e. commercial class of vehicle at the time of accident. The insured vehicle is commercial vehicle was being driven in violation of terms and conditions of insurance policy. OPs vide letter dated 26.08.2016 sought reply within seven days from receipt of letter but no response of letter dated 26.08.2016 received. Hence as per terms and conditions OPs repudiated the claim of the complainant vide letter dated 06.09.2016. The complaint is hopelessly time barred. It is condition of the insurance policy under which it has been expressly agreed and declared that if the company shall disclaim liability to the insured for any claim hereunder and such claim shall not within 12 calendar months from the date of such disclaimer have been made the subject matter of a suit in a court of law. Rest of the averments made in the complaint was denied by OPs and they prayed for dismissal of the complaint.
4. The complainant has tendered in evidence copies of documents Ex.C-1 to Ex.C-7. On the other hand, OPs tendered in evidence copy of terms and conditions of the policy as Ex.O-1 and closed the evidence.
5. We have heard learned counsel for the parties and have also gone through the case file as well as written argument submitted by complainant very minutely.
6. It is not disputed that the vehicle of the complainant i.e. Bolero Camper Car bearing No.PB08-C-3276 Model 2014 was in the name of Balwant Singh and the complainant is the Son/ LR of deceased Balwant Singh. It is proved that the deceased Balwant Singh, the father of the complainant died in a road side accident on 13.05.2016 at Shahkot Jalandhar Road, wherein an Army Vehicle bearing No.04D156433WCL2 hit against the Bolero Camper Car while coming from the opposite direction. This fact has been proved by the DDR Ex.C-3. The death certificate of the deceased Balwant Singh has been proved as Ex.C-4. It is proved that after the death of Balwant Singh, the wife of deceased Balwant Singh also expired and her death certificate has been proved as Ex.C-5. This clearly proves that the complainant is the only surviving LR of deceased Balwant Singh. It is not disputed that the Bolero car was insured with the OP as per insurance Ex.C-1. The RC of the vehicle has been proved as Ex.C-2. The complainant lodged the claim with the OP after the accident and intimated about death of his father to the OP, but his claim was rejected on 26.08.2016, vide Ex.C-6 on the ground that the DL of the deceased Balwant Singh was not valid for LMVT, Commercial class of vehicle at the time of accident. The complainant made a representation to the OPs, but to no effect. The complainant has also proved on record that the Bolero car was completely damaged and the complainant has also given to the OPs the estimate of the repair of the car, but to no effect rather the OP has wrongly and illegally repudiated the claim.
7. The contention of the Ld. Counsel for the OPs is that the claim is not maintainable and even the present complaint is not maintainable as the complaint has been filed after 12 months of the accident. He has also submitted that the deceased was not having a valid driving licence at the time of accident. Therefore, he is not entitled to any claim. There is a specific clause in the shape of terms and conditions that the claim is to be filed within a period of 12 months, then the claim shall be deemed to have been abandoned and shall not thereafter be recoverable. For this, he has relied upon the law laid down by the Hon’ble Supreme Court in 2009 (1) RCR Civil 703 and submitted that though the Hon’ble State Commission has decided the general limitation for filing the complaint, but the Hon’ble State Commission has not considered and discussed the condition of filing claim within 12 months, therefore the complaint be dismissed on this short ground only. He has also relied upon the law laid down by the Hon’ble Orissa State Consumer Disputes Redressal Commission 2011 CPJ (II) 269.
8. The case of the OP is based on the point of limitation and filing the complaint after the 12 calendar months from the repudiation of the claim. Earlier the complaint of the complainant was dismissed by the Ld. District Commission on the ground that the complainant had filed the complaint after two years from rejecting the claim of the complainant and on this ground only, the complaint was dismissed. The order was challenged before the Hon’ble State Commission. The Hon’ble State Commission has remanded the complaint to the District Commission by setting-aside the impugned order dated 01.06.2021 passed by the District Commission, vide which the complaint was dismissed. It was observed by the Hon’ble State Commission that the complaint should be decided on merits as the same was filed within period of limitation. It is not disputed as per Consumer Protection Act the period of limitation for filing complaint is two years from the date of repudiation of the claim and the complaint has been filed within two years from the date of repudiation. The letter of repudiation Ex.C-6 shows that the claim was repudiated only on the ground that the deceased Balwant Singh was not having valid driving license for LMVT, Commercial class of vehicle at the time of accident and there is no reference of the fact that there is any such condition of limitation or filing the claim within 12 months from the date of the repudiation in this repudiation letter. Even otherwise the contention of the complainant is that the terms and conditions were never supplied to the complainant as he has been asking the complainant and the surveyor to provide him the original terms and conditions of the policy since his father had died and the terms and conditions were never received by them, but he was never supplied with the terms and conditions of the policy. It has been held in case titled as “Bajaj Allianz General Insurance Co. Ltd. Vs. Rajwant Kaur and Other”, 2021 (3) CLT 540 (CHD) that the onus is on the appellant insurance company to prove that it provided the terms and conditions of the policy to the complainant and the same were in her knowledge-Appeal disposed off. It has been held in a case titled as “National Insurance Co. Ltd. & Ors. Vs. M/s Saraya Industries Ltd”, 2020 (1) CLT 278 (NC), wherein it is held that it is the duty of the insurance company to supply all the terms and conditions of an insurance policy to the policy holder-there cannot be any presumption under law on the terms and conditions. It has been held in a case titled as “Manager, Shriram Transport Finance Co. Ltd. & Ors. Vs. M. A. Jose”, cited in 2020 (1) CLT 281 (NC), wherein it is held that it is settled proposition of law that a positive fact needs to be proved first-the contention of the OPs that they had supplied copies to the complainant is a positive assertion-Therefore the legal proposition of the law case the duty upon the OPs to discharge that burden. It has been held in a case titled as “Bhanwar Lal Vishnoi Vs. Oriental Insurance Co. Ltd.”, cited in 2017 (1) CLT 401, wherein it is held that the insurance co. has to prove that the exclusion clause under which the claim is sought to be repudiated was communicated to the complainant. It has neither been proved nor alleged by the OPs that the terms and conditions were supplied to the complainant.
9. So far as the objection of driving license is concerned, the accident occurred due to suddenly coming a stray animal in front of his car and in such circumstances, no one is responsible for such an accident. The driving of the car by the deceased was not responsible for the accident. It occurred suddenly without his fault. More so, the deceased was having valid driving license at the time of accident which was caused on 14.05.2016 during the validity of the driving license. No commercial license is required for that as he was driving Bolero car, which was not commercial rather he was authorized to drive LMV, MCWG and Tractor. The condition in the insurance policy cannot override the general law which says that the complaint can be filed within two years from the date of repudiation. So, the order of repudiation is itself wrong and illegal without any reason.
10. The law referred by the Ld. Counsel for the OPs titled as “Oriental Insurance Co. Ltd. Vs. Ahalya Behera” of Hon’ble Orissa State Commission is not applicable to the facts of the present case as in that case, the complainant had filed the claim before the Motor Vehicle Tribunal as well as to get the benefit before the Consumer Court with different facts in both the complaints and in that case, the Hon’ble Orissa State Commission has dismissed the claim with the rider that he should have filed the claim before the Forum within 12 months. It has been held by the Hon’ble Larger Bench of the Hon'ble National Commission in a case titled as “Wilhelm Textiles India Pvt. Ltd. Vs. Oriental Insurance Co. Ltd.”, that the condition of the insurance policy abandoning the right of the claimant is violative of Section 28 of the Indian Contract Act and therefore, this condition cannot be read against the insured. The law referred by the Ld. Counsel for the OP in a case titled as “H. P. State Forest Company Ltd. Vs. M/s United India Insurance Co. Ltd.” is also not applicable to the facts of the present case as in the present case the terms and conditions were never brought to the notice of the complainant and unless and until the complainant is aware of the terms and conditions, exclusion clauses or any such clause, he cannot be said to have availed the right or abandoned the right of filing the claim before any court of law. It has been held in a case titled as “Bajaj Allianz General Insurance Co. Ltd. Vs. Rajwant Kaur and Other”, 2021 (3) CLT 540 (CHD) that the onus is on the appellant insurance company to prove that it provided the terms and conditions of the policy to the complainant and the same were in her knowledge. It has been held in a case titled as “National Insurance Co. Ltd. & Ors Vs. M/s Saraya Industries Ltd”, 2020 (1) CLT 278 (NC) that it is the duty of the insurance company to supply all the terms and conditions of an insurance policy to the policy holder-there cannot be any presumption under law on the terms and conditions. It has been held in a case titled as “Bhanwar Lal Vishnoi Vs. Oriental Insurance Co. Ltd.”, cited in 2017 (1) CLT 401, that the insurance co. has to prove that the exclusion clause under which the claim is sought to be repudiated was communicated to the complainant. More so, there is general law that the claim is to be filed within two years from the date of repudiation of the claim.
11. In view of the above detailed discussion, the complaint of the complainant is partly allowed and OPs are directed to pay Rs.4,05,593.11 i.e. the amount assessed by the Surveyor alongwith interest @ 6% per annum from the date of repudiation of the claim. Further, OPs are directed to pay a compensation of Rs.10,000/- for causing mental tension and harassment to the complainant and Rs.5000/- as litigation expenses. The entire compliance be made within one month from the date of receipt of the copy of order. This complaint could not be decided within stipulated time frame due to rush of work.
12. Copies of the order be supplied to the parties free of cost, as per Rules. File be indexed and consigned to the record room.
Dated Jaswant Singh Dhillon Jyotsna Dr. Harveen Bhardwaj
28.10.2022 Member Member President
Present: Sh. Sudhir Gupta, Adv. Counsel for the Complainant. Sh. R. K. Sharma, Adv. Counsel for the OPs No.1 & 2.
Vide our separate detailed order of today, the present complaint is partly allowed. Copies of the order be sent to the parties free of costs under the rules. File be consigned to the record room.
Dated Jaswant Singh Dhillon Jyotsna Dr. Harveen Bhardwaj
28.10.2022 Member Member President
