Jammu and Kashmir

Jammu

CC/603/2017

UMESH SINGH - Complainant(s)

Versus

BAJAJ ALLIANZ - Opp.Party(s)

SANDEEP SINGH

20 Oct 2018

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM,JAMMU

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

                                                          .

 Case File  No.               377/DFJ           

 Date of  Institution   :    27-12-2016

 Date of Decision      :     03-10-2018

 

Umesh Singh,

S/O Sh.Chandey Ram,

R/O Arnas Mahore,

Distt.Reasi.

                                                                                                                                                Complainant

                   V/S

Bajaj Allianz General Insurance Co.Ltd.

2^nd Floor,Opposite BSF Camp Paloura,

 Akhnoor Road,Jammu.

                                                                                                                                                Opposite party

            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.

 

Sandeep Singh,Advocate for complainant, present.

Mr.Vishnu Gupta, Advocate for OP,present.  

 

                                                      ORDER

 

                        Grievance of complainant as disclosed in the complaint is that he being registered owner of vehicle JCB bearing registration No.JK20-5443 chasis No.HAR3DXXTHI489618 Engine No.H00056602 ,got the same was insured with OP vide Policy No.OG-15-1204-1811-00001163 w.e.f.25.11.2014 to 24.11.2015(Copy of registration certificate and Insurance Policy annexed as Annexures C1&C2,respectively)According to complainant,on,13.02.2015 the vehicle in question was being driven by driver,namely,Kuldeep Singh S/O Sh.Suram Singh R/O Maslote,Tehsil Thuroo and while going from Narloo to Kanthi for construction of road, when reached near Kanthi nallah unfortunately met with accident and FIR in this regard was also registered with P/S Arnas(copy of FIR is annexed as annexure-C3)Complainant further submitted that because of said accident, the vehicle in question suffered huge loss and dame was not repaired by  him from Gautam Engineering,Sarore and the loss of the vehicle in question was assessed at Rs.4,44,917/as per bills paid by complainant out of his own pocket(copy of bills is annexed as Annexure-C4).Allegation of complainant is that he approached OP for reimbursement of loss caused to the vehicle as the same was duly insured with the OP and he was asked to produce documents so that his claim can be processed. That the complainant submitted all the requisite documents for processing his case,however,the company had issued a letter to him stating that at the time of accident, three persons were travelling in the vehicle and as to why his policy be not repudiated (copy of letter is annexed as Annexure-C5).Further allegation of complainant is that he repeatedly approached OP for settlement of his claim and payment of loss suffered by him, but no communication has been received from the office of OP and it seems that the company has repudiated the claim of complainant without issuance of notice. Complainant further submitted that it is a sad state of affairs that the OP has repudiated his claim while referring to the clause Limitation as to Use though the same is not attached to the case of complainant as he has not violated any terms of the policy particularly when he is seeking compensation for loss to the vehicle. Constrained by the act of OP,complainant served legal notice through his counsel to OP,but nothing fruitful has been done by the OP(copy of legal notice annexed as Annexure-C6). In the final analysis, non settling of claim by OP,according to complainant, amounts to deficiency in service, therefore, complainant prays for sum of Rs.4,44,917/on account of bills paid by the complainant and in addition also prays for compensation of Rs.2.25 lacs under different heads.

                   On the other hand,OP filed written version and resisted the complaint on the ground that the complaint deserves outright dismissal as the claim of the complainant already stands repudiated by letters dated 08.07.2015 and 23.07.2015 and after repudiation of claim no consumer complaint can be maintained. The only option before the complainant is to approach Civil Court. That the present complaint deserves outright dismissal as the claim of complainant stands abandoned and extinguished as the repudiation of claim dated 08.07.2015 and 23.07.2015 was not made subject matter of dispute or challenged in court of law within 12 calendar months from the date of repudiation, hence the claim of the complainant stands abandoned and extinguished and not recoverable as provided in the insurance policy. That the complaint has been filed by concealment and suppression of true facts by the complainant  that at the time of so called accident, the insured vehicle was being plied by the complainant in breach of registration certificate,M.V.Act and terms and conditions of insurance policy by carrying two passengers in addition to driver though the vehicle as per its R.C.and insurance policy had seating capacity of only one i.e. driver and no other person or passenger could have been carried on the vehicle. Otherwise also risk of neither any passenger nor any labourer was covered under the policy. It is submitted that JCB No.JK20/5443 was insured with OP for the period 25-11-2014 to 24-11-2015 for Insured Depreciated Value of Rs.22 lacs.The relationship between the parties are strictly governed by the terms and condition of insurance policy,R.C.and M.V.Act and the said JCB was hypothecated with J&K Bank,Arnas Branch and the said bank is both necessary, as well as, proper party for just  and final adjudication of present complaint. The OP further submitted that the subject vehicle is alleged to have suffered damages on,13.03.2015 due to rash and negligent driving of its driver,namely,Kuldeep Singh,but at the time of accident two more persons,namely,Ajay Singh and Pawan Singh were travelling on the insured vehicle besides the driver, though the insured vehicle as per the registration certificate and insurance policy had seating capacity of one i.e. driver and no other person except the driver could have travelled or carried upon the insured vehicle.Ajay Singh and Pawan Singh passengers on the JCB suffered minor injuries and they were travelling on the insured vehicle as unauthorized passengers though not permitted to be carried on it or travel on the same. Rest of the contents are denied by OP.

                        Complainant adduced evidence by way of duly sworn his own affidavit and affidavits of Sukhbinder Singh and Delair Singh,respectively.Complainant has placed on record, copy of certificate of registration, Copy of policy schedule, copy of FIR, copies of invoice, copy of repudiation letter  issued by  OP to complainant and copy of legal notice.

                 On the other hand,OP adduced evidence by way of duly sworn affidavits of Gursharan Singh Modi,Surveyor and Sheshu Kumar Tickoo,Manager Bajaj Allianz General Insurance Co.Jammu.OP has placed on record copy of surveyor, copy of Final Survey Report, copy of Motor Insurance Claim Form, copies of communications exchanged between the parties, copy of policy schedule and copy of policy with its terms and conditions.

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

                      The point which requires consideration is that; as to whether,OP was justified in repudiating the claim in toto for carrying more persons than its permitted capacity.

                     In so far as accident of insured vehicle during currency of policy and carrying of two more persons against its permitted capacity of one are concerned, same are not in dispute.

            Parties have supported their rival contentions by way of duly sworn evidence affidavits, which are corroborative of the facts of their respective contentions, therefore, need no reiteration.

                 It is also to be noted that OP deputed surveyor who assessed loss and submitted final survey report, dated, 13-07-2015, whereby loss is assessed to the tune of Rs.3, 53,634/ as Net Assessed amount.

                    We have gone through the case laws relied upon a case Amalendu Sahoo V/S Oriental Insurance Company 2010 ACJ 1250 and Oriental Insurance Company Ltd.V/S Bansi lal 2007(II)SLJ(Con.)In the case Amalendu Sahoo V/S Oriental Insurance Company,the Hon’ble Supreme Court, has laid down that the Insurance Company is liable to indemnify the owner of the vehicle when the insurer has obtained comprehensive policy for the loss caused to the insurer 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 OP.The Honble National Commission in the case New India Assurance Company Ltd.versus Narayan Prasad Appaprasad Pathak (2006)CPJ 144(NC),while granting claim on non-standard basis has set out in the judgment, the guidelines issued by the Insurance Company about the settling all such non-standard claims. According to guidelines no(ii) in case overloading of vehicles beyond licenced carrying capacity, the claims can be settled on non-standard basis by paying 75% of the admissible claim. The surveyor in this case in his report dt.13-07-2015, has assessed the loss to the tune of Rs.3,53,634/

                  

                    In our view the point involved in the present case is squarely covered by the law laid down by Honble Supreme Court and Honble National Commission, wherein it has been held that in a case where there is breach of condition of insurance policy by carrying excess passengers, the insurance company should settle the claim on non-standard basis. In the said decision the guidelines have been reproduced and as per said guidelines in case of overloading of vehicles beyond licensed carrying capacity the claim can be settled on non-standard basis by paying insurance of 75% of the admissible claim. The proposition of law laid down by Hon’ble Supreme Court in the said case is applicable in the instant case.

                     Perusal of file shows that surveyor had assessed the loss on Net Liability on Net Assessed Amount to the tune of Rs.3,53,634/and as per guidelines laid down by Hon’ble Supreme Court, the complainant is entitled to reimbursement of claim to the extent of 75% of the admissible claim .The OP insurance company should have settled the claim of complainant on non-standard basis by paying 75% out of loss assessed by the surveyor, but in this case the OP has not settled the claim even on non-standard basis also and thus the OP is guilty of deficiency in service and is thus liable to indemnify the loss to the extent of 75% ,out of the assessed loss, which comes to Rs.2,65,226/                                    

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

                         The complaint is accordingly allowed and the OP is ordered to indemnify the complainant by paying him Rs.2,65,226/-It is to be noted that complainant apart from actual expenses incurred on repair of vehicle, has also claimed Rs.2.25 lacs on account of mental pain, shock and suffering alongwith  interest from the date of filing of claim petition, till its final liquidation.Hon’ble High Court, in Bajaj Allianz General Insurance Co.Ltd.Vs.Narinder Singh, passed in CIMA No.162/2013, decided on, 14-05-2013 in para 7 held as follows:

    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.

                         Therefore, in view of law laid down by Hon’ble High Court, complainant is not entitled to over and above the 75% of admissible claim

               This order shall be complied with within one month from the date of receipt of the order. 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)

                                                                                            President

Announced                                                           District Consumer Forum

   03-10-2018                                                                       Jammu.

Agreed by                                                               

 

Ms.Vijay Angral                                              

 Member    

 

Mr.Ghulam Sarwar Chauhan

Member