Punjab

Ludhiana

CC/19/15

Ram Akwal Sah - Complainant(s)

Versus

Bharti Axa General Ins.Co.Ltd - Opp.Party(s)

Kanwar Nain Singh

15 Feb 2023

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, LUDHIANA.

Complaint No: 15 dated 02.01.2019.

Date of decision: 15.02.2023.

 

Ram Akwal Sah son of Shri Vasudev Sah alias Guta Sah, resident of House No.1008/32, Street No.9, Bal Singh Nagar, Basti Jodhewal, Ludhiana.

.....Complainant

                                      Versus

1. Bharti AXA General Insurance Company Ltd., Ist Floor, Ferns Icon, Survey No.28, Doddanekundi, Bangalore-560037 through its Managing Director.

2. Bharti AXA General Insurance Company Limited, Branch Office: Unit No.6 & 7, 3rd Floor, Kunal Towers, Mall Road, Ludhiana.

.....Opposite parties      

Complaint Under Section 12 of the Consumer Protection Act, 1986.

QUORUM:

SH. SANJEEV BATRA, PRESIDENT

SH. JASWINDER SINGH, MEMBER

MS. MONIKA BHAGAT, MEMBER

 

COUNSEL FOR THE PARTIES:

For complainant            :         Sh. Kanwar Singh Grewal, Advocate.

For OPs                         :         Sh. Rajeev Abhi, Advocate.

 

ORDER

PER SANJEEV BATRA, PRESIDENT

1.                Brief facts of the case are that the complainant being the owner of Hyundai Creta car bearing registration No.PB-10-FR-2044 got the same insured from the opposite parties vide policy No.S6503708 having validity from 09.03.2018 to 08.03.2019 on payment of premium of Rs.38,558/-. On 15.03.2018, the said vehicle met with an accident at Bihar when the complainant was driving the vehicle and an FIR No.51/2018 dated 15.03.2018 under Section 279, 337, 338 IPC and under Section 37 (b) (c) of Bihar Prohibition & Excise Act, P.S. Sunbarsa, District Sitamarhi (Bihar) was registered. The vehicle was damaged in the accident and the intimation was given to opposite parties and as per their instructions, the vehicle was dropped at the service station as told by the officials of the opposite parties. Thereafter, the complainant lodged a claim with opposite parties upon which the officials of opposite parties came to the complainant for conducting survey and enquiry. During the survey, the documents were submitted to the surveyor who checked the documents and at that time, the complainant disclosed to the surveyor that there is a mistake of his name in the driving licence of the complainant. On this, the surveyor of the opposite parties instructed the complainant to get his name corrected in the driving licence and only then, the claim can be sanctioned. In the meantime, the surveyor told that for the purpose of initiation of the process, he needs the driving licence of some guarantor and on his asking, the complainant provided the driving licence of Mr. Lovesh Kumar to the surveyor. At that time, the surveyor also got the signatures of the complainant on some blank forms, papers etc. as per instructions of the surveyor as the complainant has studied up to Vth class only. The complainant further submitted that he started the proceedings to get his name corrected in the driving licence from "Ram Iqbal" to "Ram Akwal Sah" as due to identical pronunciation of the word "Iqbal" and "Akwal", this mistake had occurred in the driving licence. Moreover, nick name of the father of the complainant was mentioned in the earlier driving licence as "Guta Sah" and while getting his own name corrected in the driving licence, the complainant also applied for adding the full name of his father in the driving licence as "Vasudev Sah". After the correction of the driving licence, the complainant provided the copy of same to the surveyor namely Mr. Navin Bhushan Singh and it was also given to him in writing that the complainant was driving along with Ram Pukar Singh son of Biltu Sah and Rameshwar Sah son of Rudal Sah at the time of accident. The complainant assured to get sanction the claim very soon. Thereafter, the surveyor approached the complainant and told that there is some problem in the sanctioning of claim and also told that he will have to grease the palms of the higher officers of the opposite party and on this pretext, he obtained Rs.10,000/- as bribe from the complainant and assured that now the claim will be sanctioned very soon but even the claim was not sanctioned and the surveyor Mr. Navin Bhushan started demanding more money to which the complainant refused to accede his illegal demand as a result, the claim was rejected on flimsy grounds and regarding this letters dated 07.05.2018 and 14.07.2018 were sent to the complainant denying the claim due to the difference in the name of the complainant and his father in the old driving licence and in the new driving licence. On receipt of the said letters, the complainant visited many times the branch office of opposite parties and requested them to sanction the claim but no needful has been done by the opposite parties till date. The complainant further submitted that due to non- payment of the claim amount by the opposite parties, he could not get his car released and the same is lying idle in Bihar and the complainant is unnecessarily burdened with the parking charges. Due to non-release of the car, the complainant along with other occupants had to come back to Ludhiana after making some other arrangements which has caused immense harassment and humiliation to the complainant which amounts to unfair trade practice and deficiency on the part of the opposite parties. The complainant sent a legal notice dated 28.09.2018 to the opposite parties calling upon them to sanction the claim to the tune of Rs.6,00,000/- and to pay Rs.1,00,000/- as compensation but to no avail. Hence this complaint whereby the complainant has sought direction to the opposite parties to sanction the claim of the policy No.S6503708 to the tune of Rs.6,00,000/- approximately along with compensation of Rs.1,00,000/- and litigation expenses of Rs.20,000/-.

2.                Upon notice, the opposite parties appeared and filed written statement. In the written statement, the opposite parties assailed the complaint on the ground of maintainability of the complaint, the complaint being barred under Section 26 of the Consumer Protection Act, lack of jurisdiction, the complaint is bad for non-joinder of necessary parties, the complainant being stopped by his own act and conduct. The opposite parties stated that on receipt of the claim, it was duly registered, entertained and processed. The complainant has obtained the insurance policy No.S6503708 valid from 09.03.2018 to 08.03.2019 in respect of car No.PB-10-FR-2044. The insurance policy is a contract in itself and the parties are bound by the terms and conditions of the policy. It is one of the condition in the private car package policy which states that "whereas the insured by a proposal and declaration dated as stated in the schedule which shall be the basis of this contract and is deemed to be incorporated herein has applied to Bharti Axa General Insurance Co. Ltd., (herein referred to as "the company") for the insurance hereinafter contained and has paid the premium mentioned in the schedule as consideration for such insurance in respect of accidental loss or damage occurring during the period of insurance." It is one of the conditions in the policy under the head Driver Clause which lays down clearly that the persons authorized to drive the motor vehicle as "any person including the insured provided that a person driving holds an effective driving licence at the time of accident and is not disqualified from holding or obtaining such a licence." The complainant had also submitted the claim form where he has given a declaration that "I/We agree to provide additional information to the company, if required. I/We the above named, do hereby, to the best of my/our knowledge and belief, warrant the truth of the foregoing statement in every respect, and if I/We have made, or in any further declaration, the company may required in respect of said accident, shall make any false or fraudulent statement, or any suppression, or concealment, the policy shall be void and all rights to recover there under in respect of the past or future accident shall be forfeited. I understand that the company reserves the right of verification of facts and documents relation to the policy and claims." It is also one of the general exception No.3 (b) and condition No.8 of the policy, reproduced as under:-

General Exception 3(b)

"The company shall not be liable under this policy in respect of any accidental loss or damage and/or liability caused, sustained or incurred whilst the vehicle insured herein is being driven by or is for the purpose of being driven by him/her in the charge of any person other than a driver as stated in the Driver's Clause".

Condition No.8

"The due observance and fulfillment of the terms, conditions and endorsements of this policy in so far as they relate to anything to be done or complied with by the insured and truth of statements and answers in the said proposal shall be conditions precedent to any liability of the company to make any payment under this policy."

The opposite parties further alleged that Sh. Naveen Bhushan Singh, Surveyor, Loss Assessor, Investigator and Valuer, Azad Colony, Maripur, Muzzaffarpur, Bihar an IRDA approved surveyor and loss assessor was appointed as surveyor to assess the loss caused to vehicle No.PB-10-FR-2044 who had personally inspected the vehicle, took the photographs and other documents and thereafter, prepared and submitted his report dated 06.06.2018 with the opposite parties.

                   The opposite parties further alleged that Sh. Deepak Kumar Sinha, Investigator, near Shiv Mandir, Kusumpuram, Gola Road, Patna, Bihar was appointed as investigator who had made thorough investigation, took photographs, other documents and prepared his report and submitted the same with the opposite parties stating that "as the insured does not have any driving licence so he submitted driving licence of Lavesh Kumar to get benefitted from the insurance own damage claim. This claim seems to be repudiated on the basis of driver implant." He further stated that "at the time of loss insured himself was driving the said insured vehicle and he does not have any licence. Insured produced DL of Lavesh Kumar to get benefitted from OD claim." After the receipt of survey report of Sh. Naveen Bhushan Singh and investigation report of Sh. Deepak Kumar Sinha and after scrutinizing the documents placed in the claim file and after due application of mind by the officials of the opposite parties in terms of the insurance policy the complainant was called upon vide letter dated 07.05.2018 seek clarification about the discrepant and ambiguities observed while processing the claim as to why the claim of the complainant be not repudiated on the grounds that the complainant was driving the vehicle at the time of alleged and he was not holding a valid and effective driving licence and as such, there is a violation of driver clause of the policy as well as violation of Section 1 of the policy, declaration under the claim form and on account of misrepresentation of material information and making false and frivolous statement regarding the date of accident of vehicle and other wrong facts about the alleged loss. The complainant has failed to send the clarification sought by the opposite parties and as such, the claim of the complainant was repudiated as no claim on the grounds reproduced as under:-

1) As per claim form submitted by you, Mr. Lavesh Kumar was driving the vehicle at the material time of accident, whereas as per written statement submitted by you and other occupants it is noted that you yourself was driving the vehicle at the material time of accident and also Mr. Lavesh Kumar was not present on the board/vehicle. The occupants present on board/vehicle at the time of accident were as mentioned below;

• Mr. Ram Pukar Sah s/o. Mr. Biltu Sah
• Mr. Rameshwar Sah s/o. Mr. Rudal Sah
• Mr. Ram Akwal Sah s/o. Vasudev Sah

2) Further to our query w.r.t. DL discrepancy Mr. Lavesh Kumar produced driving licence copy of Mr. Ram Iqbal on 05.05.2018 & below anomalies were observed.

• Insured name as per RC, UID &b policy is RAM AKWAL SAH S/O. VASUDEOO SAH
• Insured name as per DL copy submitted by Lavesh Kumar; RAM IQBAL S/O GUTTA SAH Le father's name is also different.

As such, there is a breach of driver cause of the policy terms and conditions and also there is violation of section 1 of the policy and declaration from claim form and there is misrepresentation on material information and making false and fraudulent statement regarding the date of accident of the vehicle and other wrong facts about the alleged loss. The claim of the complainant has been rightly and legally repudiated as no claim.

                   On merits, the opposite parties reiterated the crux of averments made in the preliminary objections. The opposite parties alleged that the surveyor never told the complainant that there is mistake of name of the complainant in his driving licence and has never instructed the complainant to get his name corrected in the driving licence. The surveyors are duly licenced and approved by IRDA only and not by opposite parties. Moreover, there is no guarantor in processing of he claims and the surveyor has never told the complainant to provide the licence of some guarantor. However, the complainant of his own provided licence of Lavesh Kumar to the surveyor as the complainant was not holding driving licence though he was driving the vehicle at the time of alleged accident. The opposite parties further alleged that complainant has never paid Rs.10,000/- as bribe nor the surveyor has received the same as bribe. The surveyor has got no right to sanction the claim, the claim was never denied due to difference in the name of the complainant and his father in the old driving licence and in the new driving licence. The claim of the complainant was repudiated on legal, valid and enforceable grounds and in accordance with the terms and conditions of the policy and law of land. The opposite parties have denied any deficiency in service on their part and also prayed for dismissal of the complaint.

3.                In support of his claim, complainant tendered his affidavit Ex. CA in which he reiterated the allegations and the claim of compensation as stated in the complaint. The complainant also tendered documents Ex. C1 is the copy of driving licence of the complainant, Ex. C2 is the copy of insurance policy w.e.f. 09.03.2018 to 08.03.2019, Ex. C3 is the copy of complaint written by the complainant to register the case, Ex. C4 is the copy of FIR No.51/2018, Ex. C5 and Ex. C6 is the copies of letters dated 07.05.2018, 14.07.2018, written to complainant by the opposite parties, Ex. C7 is the copy of transaction inquiry, Ex. C8 is the copy of legal notice dated 28.09.2018, Ex. C9 and Ex. C10 are the copies of postal receipts and closed the evidence.

4.                On the other hand, counsel for the opposite parties tendered affidavit Ex. RA of Sh. Rishikant, Senior Executive Legal the opposite parties, affidavit Ex. RB of Sh. Deepak Kumar Sinha, Investigator and affidavit ex. RC of Sh. Navin Bhushan Singh, Surveyor and Loss Assessor along with documents Ex.R1 and Ex. R2 are the copies of letters dated 14.07.2018 and 07.05.2018 written by the opposite parties to the complainant, Ex. R3 is the postal receipt, Ex. R4 is the copy of large loss claim advice, Ex. R5 is the copy of claim form, Ex. R6 is the copy of motor final survey report dated06.06.2018 of Sh. Navin Bhushan Singh, Surveyor, Ex. C7 is the copy of estimate of the repair, Ex. R8 is the copy of estimate for repairs, Ex. R9 is also the repair estimate, Ex. R10 is the copy of driving licence of Lavesh Kumar, Ex. R11 is the copy of driving licence of the complainant, Ex. R12 are the photographs of the vehicle, Ex. R13, Ex. R31 and Ex. R34 are the copies of the private car package policy w.e.f. 09.03.2018 to 08.03.2019, Ex. R14 is the status report dated 04.04.2018, Ex. R15 is the copy of investigation report of Sh. Deepak Kumar Sinha, Investigator Ex. R16 and Ex. R17 are the copies of letters written by complainant to the opposite parties, Ex. R18 and Ex. R19 are the prescriptions slips of Ram Ishwar Sah and Ram Pukar Sah respectively, Ex. R20, Ex. R21 and Ex. R30 are the copies of complaints written by complainant to the police, Ex. R22 is the copy of aadhar card of the complainant, Ex. R23 and Ex. R26 are the copies of PAN card of the complainant, Ex. R24 is the copy of aadhar card of Ram Pukar Sah, Ex. R25 is the copy of driving licence of the complainant, Ex. R27 is the copy of Hyundai RSA certificate-customer copy, Ex. R28 is the copy of tax invoice, Ex. R29 is the copy of insurance policy from 09.03.2017 to 08.03.2018, Ex. R32 is the risk assumption letter, Ex. R33 is the copy of list of insurance ombudsman and closed the evidence.

5.                We have heard the arguments of the counsel for the parties and also gone through the complaint, affidavit and annexed documents and written reply along with affidavit and documents produced on record by both the parties.

6.                The complainant Ram Akwal Sah admittedly is the owner of Hyundai Creta car bearing registration No.PB-10-FR-2044 vide registration certificate dated 09.03.2016 Ex. R11. The said vehicle was insured with the opposite parties w.e.f. 09.03.2018 to 08.03.2019 and the policy documents are Ex. C2 = Ex. R13, Ex. R31 and Ex. R34. This policy came into existence on 09.03.2018 and it was a renewal policy. Perusal of Ex. R31 policy documents clearly depicts the name of the complainant as "Mr. Ram Akwal Sah and his father's name as Vasudev Sah". Further the personal accident cover for the driver/owner has been provided for a sum of Rs.2,00,000/-. In "Driver Clause" any person including the insured has been mentioned. Needless to say that at the time of issuing the policy, the opposite parties must have examined the certificate of registration Ex. R11, the Driving licence of the complainant Ex. Cl in order to ascertain and verify the identity of the complainant.

7.                The vehicle met with an accident on 15.03.2018 and at that time, the complainant was driving the said vehicle. FIR No.51/2018 dated 15.03.2018 Ex. C4 proves this fact. Deepak Kumar Sinha, investigator has submitted his affidavit Ex. RB and report Ex. R15 whereby he has observed that at the material time of loss, the vehicle was driven by the complainant and three other occupants of the car also sustained injuries. However, at the time of inspection, the complainant did not have driving licence so he submitted the driving incense of Lavesh Kumar. But the complainant has an explanation to offer that the discrepancy in his name and father's name was detected during the inspection and it is the investigator who advised him to get the name rectified and further suggested in the meantime he may submit the licence of some other person. Sh. Navin Bhushan Singh, Surveyor has filed his affidavit Ex. RC along with his report Ex. R6 and annexed the documents. He has assessed the loss at Rs.4,02,242/- and also verified the ownership in the name of the complainant. During the course of proceedings, vide order 11.10.2019 of this Commission, the concerned Clerk of D.T.O, Ludhiana was ordered to be summoned with complete record of licence of Ram Akwal Sah and in pursuance of which Mr. Ravinder Singh, Clerk RTA Office, Ludhiana appeared and he suffered statement on 22.01.2021 that the has brought the compete record of driving licence No.0227267 issued on 16.11.2000 in the name of Ram Iqbal s/o. Guta Shah and he further stated that later on the name in this licence was changed by online application. The witness further stated that the new name in this licence is Ram Akwal Shah son of Vasudeoo Sah, resident of H. No. 1008/32, St. No.9, Bal Singh Nagar, Basti Jodhewal, Ludhiana East, Ludhiana by making correction on 22.05.2018.

8.                The close scrutiny of the aforesaid documents confirms that it is the complainant who was driving the vehicle at the time of accident and he was having a legal and valid driving licence since 16.11.2000. Now the question arises that whether discrepancy in the driving licence of the complainant entitles the opposite parties to repudiate the claim by invoking general exception 3 (b) and condition No.8 of the policy.

9.                As discussed above, the opposite parties have insured the vehicle as well as extended benefit of personal accident to the complainant after verifying the documents with regard to the ownership of the vehicle, his identity and competency to drive the vehicle. Now they cannot say that there is violation of driver's clause and it being a case of misrepresentation to the insurance company which violates the insurance contract between both parties of utmost good faith.

10.              In 2022 LiveLaw (SC) 937 in M/s. Texco Marketing Pvt. Ltd. Vs TATA AIG GIC Ltd. and others passed by the Hon'ble Supreme Court of India. Appellant secured a Standard Fire & Special Perils policy which was meant to cover a shop situated in the basement of the building. However, exclusion clause of the contract specifies that it does not cover the basement. The appellant continued to pay the premium promptly. The shop met with fire accident for which the appellant raised a claim. The claim was repudiated by respondent No.1 taking the umbrage under the exclusion clause. The Hon'ble Supreme Court partly allowed the appeal and observed in para No.21 of the judgment:-

"21. On a discussion of the aforesaid principle, we would conclude that there is an onerous responsibility on the part of the insurer while dealing with an exclusion clause. We may only add that the insurer is statutorily mandated as per Clause 3(ii) of the Insurance Regulatory and Development Authority (Protection of Policy Holder's Interests, Regulation 2002) Act dated 16.10.2002 (hereinafter referred to as IRDA Regulation, 2002) to the effect that the insurer and his agent are duty bound to provide all material information in respect of a policy to the insured to enable him to decide on the best cover that would be in his interest. Further, sub- clause (iv) of Clause 3 mandates that if proposal form is not filled by the insured, a certificate has to be incorporated at the end of the said form that all the contents of the form and documents have been fully explained to the insured and made him to understand. Similarly. Clause 4 enjoins a duty upon the insurer to furnish a copy of the proposal form within thirty days of the acceptance, free of charge. Any non-compliance, obviously would lead to the irresistible conclusion that the offending clause, be it an exclusion clause, cannot be pressed into service by the insurer against the insured as her e may not be in knowhow of the same."

The Hon'ble Supreme Court also further observed in para No.37 of the judgment:-

"37.Once it is proved that there is a deficiency in service and that respondent No. I knowingly entered into a contract, notwithstanding the exclusion clause, the consequence would flow out of it. We have already discussed the scope and ambit of the provisions under the Indian Contract Act, 1872. Even as per the common law principle of acquiescence and estoppel, respondent No. I cannot be allowed to take advantage of its own wrong, if any. It is a conscious waiver of the exclusion clause by respondent No. 1."

As such, there is a deficiency in service on the part of the opposite parties and the repudiation of the claim was not justified. In the given set of circumstances, it would be just and appropriate if opposite parties are directed to pay the claim of Rs.4,02,242/- as per Ex. R6 to the complainant along with interest @8% per annum from the date of filing of complaint till actual payment within 30 days from the date of receipt of copy of order along with a composite costs of Rs.15,000/-.

11.              As a result of above discussion, the complaint is partly allowed with direction to the opposite parties pay the claim of Rs.4,02,242/- as per Ex. R6 to the complainant along with interest @8% per annum from the date of filing of complaint till actual payment within 30 days from the date of receipt of copy of order. The opposite parties are further directed to pay a composite compensation and costs of Rs.15,000/- (Rupees Fifteen Thousand only) to the complainant. Compliance of order be made within 30 days from the date of receipt of copy of order. Copies of order be supplied to parties free of costs as per rules. File be indexed and consigned to record room.

12.              Due to huge pendency of cases, the complaint could not be decided within statutory period.

(Monika Bhagat)          (Jaswinder Singh)                      (Sanjeev Batra)                       Member                     Member                                       President         

 

Announced in Open Commission.

Dated: 15.02.2023.

Gobind Ram.

 

 

 

Ram Akwal Vs Bharti AXA GIC                        CC/19/15

Present:       Sh. Kanwar Singh Grewal, Advocate for complainant.

                   Sh. Rajeev Abhi, Advocate for OPs.

 

                   Arguments heard. Vide separate detailed order of today, the complaint is partly allowed with direction to the opposite parties pay the claim of Rs.4,02,242/- as per Ex. R6 to the complainant along with interest @8% per annum from the date of filing of complaint till actual payment within 30 days from the date of receipt of copy of order. The opposite parties are further directed to pay a composite compensation and costs of Rs.15,000/- (Rupees Fifteen Thousand only) to the complainant. Compliance of order be made within 30 days from the date of receipt of copy of order. Copies of order be supplied to parties free of costs as per rules. File be indexed and consigned to record room.

 

(Monika Bhagat)          (Jaswinder Singh)                      (Sanjeev Batra)                       Member                     Member                                       President         

 

Announced in Open Commission.

Dated: 15.02.2023.

Gobind Ram.