Jammu and Kashmir

Jammu

CC/429/2017

JOGINDER KUMAR - Complainant(s)

Versus

BAJAJ ALLIANZ - Opp.Party(s)

SATYAJEET

19 May 2018

ORDER

CONSUMER DISPUTES REDRESSAL FORUM,JAMMU

(Constituted under J&K Consumer Protection Act,1987)

                                                          .

 Case File  No                502/DFJ           

 Date of  Institution       08-03-2016

 Date of Decision            10-05-2018

 

Joginder Kumar,

S/O Sh.Rattan Lal,

R/O Chak Agra,Tehsil R.S.Pura,

Distt.Jammu.

                                                                                                                                                Complainant

                          V/S

1.Bajaj Allianz General Insurance Co.Ltd.,

 Branch Office,Opp.BSF Camp,2^nd Floor,

 Akhnoor Road,Paloura,Jammu.

2.J&K Grameen Bank,Branch Badyal Brahmna,

  Jammu Through its Manager.

                                                                                                                                          Opposite parties

CORAM

                  Khalil Choudhary    (Distt.& Sessions Judge)   President

                  Ms.Vijay Angral                                                       Member

                  Mr.Ghulam Sarwar Chauhan                                Member.

 

In the matter of: Complaint under section 10 of J&K Consumer

                              Protection Act 1987.

 

 Mr.Satyajeet,Advocate for complainant, present.

 Mr.Sanjay K.Dhar Advocate for OP1,present.

Mr.Akash Gupta Advocate,for OP2,present.

 

                                                                         ORDER

                                  Facts relevant for the disposal of complaint on hand are that; complainant being owner of light goods vehicle(Tata 207) bearing registration No.JK02AV-2615,got the same hypothecated with OP2 and the loan was sanctioned by OP2.According to complainant he  purchased the said vehicle on 24-02-2012 from Fair Deal Motors Pvt.Ltd.Kunjawani Bye-Pass Road,Jammu,copy of registration certificate is annexed as Annexure-A and was regularly paying instalments of loan amount to OP2.Complainant further submitted that he insured the said vehicle with OP1 on,24-02-2014 vide insurance policy No.OG-14-1204-1803-00003213 for the period 24-02-2014 to 23-02-2015,copy of policy schedule cum certificate of insurance is annexed as Annexure-B and complainant appointed Mr.Romesh Chander S/O Sh.Darshan as driver of said vehicle, copy of driving licence is annexed as Annexure-C.According to complainant, he was using the said vehicle as goods career and have also obtained authorization certificate from Transport Deptt.and has also got national permit for the said vehicle, copy of authorization certificate and permit are annexed as Annexure-D.Complainant further submitted that on 22-12-2014,the said vehicle was driven to Jallalabad,Jalandhar,Punjab for goods carrying purposes and was loaded with fresh fruit, the said vehicle met with an accident at Jallalabad,Jalandhar Punjab with a maruti car No.DL-luk-4007 due to  rash and negligent driving of the driver of the offending vehicle and dense fog in the area and the police of Police Station Jallalabad registered FIR dated 23-12-2014,Copy of FIR is annexed as Annexure-E and it is important to mention here that at the time of accident, two persons were travelling in the said vehicle. Complainant further submits that he contacted insurance company and a surveyor was sent by OP to take the photographs and documents of said, but surveyor report has not been provided to him. Further allegation of complainant is that after waiting for some year, he approached OP,but every time he was assured that the claim will be released at the earliest and to the utter dismay of complainant,OP sent a letter dated 12-06-2015 to him stating that the claim could not be released, as the policy obtained by the complainant for sitting capacity of two persons and as per information gathered by Insurance company three persons were travelling in the said vehicle  at the time of accident, however the fact is that only two persons were travelling in the said vehicle at the time of accident, copy of letter is annexed as Annexure-F.Complainant further submitted that he filed a reply to the letter of OP stating therein that only two persons were travelling in the said vehicle at the time of accident and as such there is no violation of policy, copy of reply is annexed as Annexure-G.Grievance of complainant is that OP without considering the reply issued another letter dated 15-07-2015 repudiated the claim of complainant, copy of letter daft 15-07-2015 is annexed as Annexure-H.Complainant further submitted that after waiting for sometime, he got his vehicle repaired from M/S Basra Sales Corporation, Shop No.28-C Old Jawahar Nagar Near Water Tank,Alaska Chowk,Ladowali Road,Jalandhar City Punjab and also from Bachan Brothers Denting Works Near Suchi Pind Chowk,Lamba Pind Bye Pass Jallandhar City,Punjab,where he paid a total sum of Rs.2,35,475/-,copies of bills are annexed as Annexure-J and after getting the vehicle repaired brought back to Jammu. Complainant further submitted that despite completion of all requisite formalities,OP did not settle the claim,therefore,according to complainant, same amounts to deficiency in service,resultantly,complainant prays for direction to OP for payment of Rs.2,35,475/-on account of loss of insured vehicle and in addition, prays for compensation under different heads to the tune of Rs.2.25 lacs.

                      On the other hand,OP1 while denying its liability in toto, raised defence that there is no deficiency of service or unfair trade practice on the part  of Insurance Company to invoke the jurisdiction of this Forum. That the case at hand involves intricate questions of facts and law, which require voluminous evidence,oral,as well as, documentary to be lead for proper adjudication of the matter. The Op1 further submitted that as per survey report three persons were travelling in the insured vehicle which implies that unauthorized passenger was travelling ,same is breach of policy terms and conditions and risk not covered under Section 147 of Motor Vehicles Act. That the claim of complainant has been bonafidely repudiated by the competent authority of OP on,23-07-2015 bobnafidely in good faith after thorough investigation and proper application of mind on the ground that the complainant has violated the terms and conditions of policy of insurance and provisions of M.V.Act 1988,since the insured vehicle was not being plied in accordance with its limitation as to use .The liability of OP is excluded in terms of General Exception(3)(a)of the Policy condition. It is further submitted that the subject vehicle is registered and insured as a goods carrying commercial vehicle and is not meant for carrying the passengers, but at the time of accident three persons including driver were being carried in the subject vehicle in violation of Policy terms conditions and its Registration Certificate when admittedly the said vehicle was having seating capacity of only two persons and there was no permission sought from the Regional Transport Authority to carry the passengers or labours beyond seating capacity, thus the OP insurer is not liable to indemnify the complainant. Rest of the contents of complaint are denied.

                At the same time,OP2 filed written version and resisted the complaint on the ground that as the alleged accident had taken place at Jallalabad,Julandhar,Punjab and FIR has also been registered at Police Station Jallalabad,as such the Ld.Forum has no territorial jurisdiction to entertain and adjudicate upon the complaint. It is further submitted that JK Grameen Bank is a big brand in the industry and has a very good track record and said insurance claim has been rejected by OP1 and OP2 has no role to play in that and OP2 could not be blamed for the same.Howeve,it is submitted that that the complainant obtained a loan of Rs.5.00 lacs from OP2 for purchase of said light goods vehicle (Tata Make)and the said loan was sanctioned on,22-02-2012 ad same was advanced on,24-02-2012 and the said vehicle has been hypothecated with OP2 and as on date the total outstanding against the complainant is Rs.4,30,764/-.

                  Complainant adduced evidence by way of duly sworn his own affidavit and affidavits of Paramjit Singh and Rakesh Kumar,respectively.Complainant has placed on record, copy of certificate of registration, copy of Policy schedule, copy of driving licence,copy of authorization certificate of N.P.(GOODS),copy of goods carriage permit, copy of challan,copy of FIR, translated copy of FIR into English, copies of communications and copies of retail invoice.

                 On the other hand,OP1 adduced evidence by way of duly sworn affidavit of Sheshu Tikoo Branch Head Bajaj Allianz General Insurance Company Ltd.Jammu.OP1 has placed on record the Provisional Assessment Report.

                     We have perused case file and heard L/Cs for the parties at length.

                  Briefly stated case of complainant is that he being owner of light goods vehicle(Tata 207) bearing registration No.JK02AV-2615,got the same hypothecated with OP2 and the loan was sanctioned by OP2 and he  purchased the said vehicle on 24-02-2012 from Fair Deal Motors Pvt.Ltd.Kunjawani Bye-Pass Road,Jammu and was regularly paying instalments of loan amount to OP2.Complainant further submitted that he insured the said vehicle with OP1 on,24-02-2014 vide insurance policy No.OG-14-1204-1803-00003213 for the period 24-02-2014 to 23-02-2015 and complainant appointed Mr.Romesh Chander S/O Sh.Darshan as driver of said vehicle. According to complainant, he was using the said vehicle as goods career and have also obtained authorization certificate from Transport Deptt.and has also got national permit for the said vehicle. Complainant further submitted that on 22-12-2014,the said vehicle was driven to Jallalabad,Jalandhar,Punjab for goods carrying purposes and was loaded with fresh fruit, the said vehicle met with an accident at Jallalabad,Jalandhar Punjab with a maruti car No.DL-luk-4007 due to  rash and negligent driving of the driver of the offending vehicle and dense fog in the area and the police of Police Station Jallalabad registered FIR dated 23-12-2014 and it is important to mention here that at the time of accident, two persons were travelling in the said vehicle. Complainant further submits that he contacted insurance company and a surveyor was sent by OP to take the photographs and documents of said vehicle, but surveyor report has not been provided to him. Further allegation of complainant is that after waiting for some year, he approached OP,but every time he was assured that the claim will be released at the earliest and to the utter dismay of complainant,OP sent a letter dated 12-06-2015 to him stating that the claim could not be released, as the policy obtained by the complainant for sitting capacity of two persons and as per information gathered by Insurance company three persons were travelling in the said vehicle  at the time of accident, however the fact is that only two persons were travelling in the said vehicle at the time of accident. Complainant further submitted that he filed a reply to the letter of OP stating therein that only two persons were travelling in the said vehicle at the time of accident and as such there is no violation of policy. Grievance of complainant is that OP without considering the reply issued another letter dated 15-07-2015 repudiated the claim of complainant. Complainant further submitted that after waiting for some time, he got his vehicle repaired from M/S Basra Sales Corporation, Shop No.28-C Old Jawahar Nagar Near Water Tank,Alaska Chowk,Ladowali Road,Jalandhar City Punjab and also from Bachan Brothers Denting Works Near Suchi Pind Chowk,Lamba Pind Bye Pass Jallandhar City,Punjab,where he paid a total sum of Rs.2,35,475/- and after getting the vehicle repaired brought back to Jammu. Complainant further submitted that despite completion of all requisite formalities,OP did not settle the claim.

               On the other hand stand of OP1 is that the complainant has violated the terms and conditions of policy of insurance and provisions of M.V.Act 1988,since the insured vehicle was not being plied in accordance with its limitation as to use .The liability of OP1 is excluded in terms of General Exception(3)(a)of the Policy condition. It is further submitted that the subject vehicle is registered and insured as a goods carrying commercial vehicle and is not meant for carrying the passengers, but at the time of accident three persons including driver were being carried in the subject vehicle in violation of Policy terms conditions and its Registration Certificate when admittedly the said vehicle was having seating capacity of only two persons and there was no permission sought from the Regional Transport Authority to carry the passengers or labours beyond seating capacity, thus the OP insurer is not liable to indemnify the complainant.

                        Be it noted that admittedly, although at the time of accident, vehicle in question was being driven in violation of terms and conditions of Insurance Policy, in our opinion OPs in rejecting the claim in its entirety have grossly erred, because as per settled preposition of law,OP1 was required to settle the claim on non standard basis.

                          Point involved in the matter is more res integra,Honble Supreme Court dealt with the issue in, Amalendu Sahoo V/S Oriental Insurance Company 2010 ACJ 1250 and Oriental Insurance Company Ltd.V/S Bansi lal 2007(II)SLJ(Con.).

                    We have gone through the case laws relied upon by the learned counsel for complainant. In the case Amalendu Sahoo V/S Oriental Insurance Company, the Honble Supreme Court, has laid down that the Insurance Company is liable to indemnify the owner of the vehicle when the insured has obtained comprehensive policy for the loss caused to the insured and even if it is assumed that there was breach of condition of the insurance policy, the Insurance Company ought to have settled the claim on non-standard basis. So in view of principle of law laid down in the above cited case law, the Insurance Company cannot repudiate the insurance claim in toto raised by the complainant regarding loss of the vehicle in question which is admittedly insured by the OP1.

                        Perusal of file shows that the complainant has claimed the loss of vehicle to the tune of Rs.2,35,475/-,which is also substantiated by the original bills on record produced by the complainant himself and as per guidelines laid down by Honble Supreme Court, the complainant is entitled to reimbursement of claim to the extent of 75% of the admissible claim. Since as per own pleading and proof of the loss suffered by the vehicle of complainant is proved to the amount of Rs.2,35,475/-and this has not been rebutted by the Ops,therefore, the OP1 insurance company should have settled the claim of complainant on non-standard basis by paying 75% out of loss as per bills produced by the complainant, but in this case the OP1 has not settled the claim even on non-standard basis also and thus the OP1 is guilty of deficiency in service and is thus liable to indemnify the loss to the extent of 75% ,out of the loss proved by the complainant, which comes to Rs.1,76,606/ -.

                        Therefore in view of the abovesaid discussion, we are of the view that the repudiation of insurance claim made by OP1 is improper, unjustified and resorted to by insurance company OP1 only to defeat the genuine claim of the complainant and it amounts to deficiency in service.

                    The complaint is accordingly allowed and the OP1 is ordered to indemnify the complainant by paying him Rs.1,76,606/-.It is to be noted that complainant has also claimed Rs.2,25,000/-on account of mental pain, shock and suffering alongwith  interest from the date of filing of claim petition, till its final liquidation. In this respect, there is no gainsaying that ill fated vehicle bearing registration No.JKO2AV-2615,was driven in breach of condition of policy, however, it is only because of law laid down by Honble Supreme Court and National Commission, complainant is held entitled to 75% of admissible claim, therefore, in case apart from 75% of admissible claim any compensation granted, it would be over and above the admissible claim and we afraid that would be in breach of guidelines laid down by Honble Supreme Court, therefore, we are of the opinion that same is impermissible, hence prayer of complainant for awarding compensation apart from 75% of admissible claim is turned down. We are fortified in  our view by the judgment of Honble High Court, titled Bajaj Allianz General Insurance Co.Ltd.Vs.Narinder Singh passed in CIMA No.162/2013 decided on 14-05-2013,para 7 whereof is reproduced herein below:

      7.The case of the respondent falls within third description,i.e.,any other breach of warranty/condition of policy including Limitation as to use for which the insurer is to pay up to 75% of admissible claim.75% of the admissible claim has been awarded,i.e.Rs.2.50 lac.Same is in consonance with the ratio of the judgment referred. In our view, in the given circumstances, when maximum, i.e.75% of the admissible claim has been awarded, award of interest and litigation charges amounting to Rs.10,000/- shall be impermissible. However, parking expenses charged by the Garage where damaged vehicle was lying since accident are allowable. In total Rs.2.50 lac are worked out to be payable to the respondent.

                      The complaint is accordingly allowed and OP1 is ordered to indemnify the complainant by paying him Rs.1,76,606/-.This order shall be complied with within one month from the date of receipt of the order. The copy of the order be provided to the parties free of charge. The complaint is accordingly disposed of and the file be consigned to records.

 Order per President                                   Khalil Choudhary

                                                                (Distt.& Sessions Judge)

Announced                                                     President

10-05-2018                                           District Consumer Forum

Agreed by                                                      Jammu.

                                                             

  Ms.Vijay Angral          

  Member                                                                                               

.               

 Mr.Ghulam Sarwar Chauhan

Member