Haryana

Yamunanagar

CC/401/2013

Saleem S/o Hukam Deen - Complainant(s)

Versus

Branch Manager,Bhart AXA General Insurance Co.Ltd. - Opp.Party(s)

Mukesh Sehgal

28 Sep 2017

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, YAMUNA NAGAR AT JAGADHRI.

                                                                        Complaint No.401 of 2013.

                                                                        Date of Institution:29.5.2013.

                                                                        Date of Decision:28.9.2017.

 

Saleem aged 42 years s/o Sh. Rukam Deen R/o Village Dudhla, Tehsil Jagadhari, Distt. Yamuna Nagar.

                                                                                                …Complainant.

                                                Vs.

1.        Branch Manager, Bharti AXA General Insurance Co. Ltd. Near State Bank of India, model Town, Yamuna Nagar.

2.      Bharti AXA General Insurance Co. Ltd., 1^st Flooor, fems Icon, Survey No.28, Doddankundi Village K.R. Puran Hobil, Banglore-37.

…Respondents.

                                                Complaint under section 12 of the

                                                Consumer Protection Act.

CORAM:        SH.SATPAL………..PRESIDENT,

                        SH.S.C.SHARMA,    MEMBER.

                        SMT. VEENA RANI SHEOKAND, MEMBER.

 

Present: Sh.Mukesh Sehgal, Adv. for complainant.

               Sh.Rajiv Gupta, Adv. for OPs.

 

ORDER:         (SH.SATPAL PRESIDENT)

 

1.                     The complainant filed this complaint under section 12 of the Consumer Protection Act against the respondents (hereinafter the respondents shall be referred as Ops).  During the course of arguments, the complainant has filed an application for amending the title of the complaint by correcting the name of the father of the complainant as Rukam Deen instead of Hukam Deen as the error occurred due to a typographical mistake, it has further been prayed that the Ops will not suffer any loss or injury in case this amendment is allowed.  Further it will not change nature of the complaint.   Application perused.  From the contents of the application, it is clear that this is only a typographical mistake as the father name of the complainant as mentioned in R.C. annexure C.1, already placed on record is Rukam Deen.  As such no prejudice will be caused to the Ops in case this amendment is allowed.  Moreover, it will not effect the merits of the case, hence, this application is allowed.  Amended title filed, the same be placed on record.

2.                     Brief facts of the complaint as alleged by the complainant are that the complainant had purchased a tractor Swaraj 735 FE, along with other allied items i.e. Trolley etc. bearing No.HR02W-9491 and got the same comprehensively insured with the Ops vide policy No.FCV/10749263/11/12D11118 for total IDV of Rs.3,40,000/- w.e.f. 14.12.2011 to 13.12.2012 and paid Rs.6333/- as premium.  Unfortunately, on 14.12.2011 the said tractor and trolley met with an accident and damaged badly and the complainant had to spent a sum of Rs.1,50,000/- on the repair of the said tractor. 

Immediately, after the accident the complainant informed the Ops about the accident and Ops appointed the surveyor to inspect the tractor trolley before and after the repair.  Thereafter, the complainant had lodged the claim with the OPs submitting all the bills along with other necessary documents as required by the Ops and requested the Ops to pay the claim.  The complainant received a letter dated 16.8.2012 from the Ops through which Ops stated that they have repudiated the claim of the complainant on the false, frivolous and flimsy ground that at the time of accident the tractor trolley was carrying four passengers including driver in excess of their sitting capacity.  Hence, the tractor trolley laden weight exceeded the laden weight mentioned in the registration certificate of the tractor and thus was sufficient reason for driver to loose control over the tractor and moreover, the loading of passengers beyond seating capacity mentioned in the Registration Certificate is not allowed.  Further, to avoid their legal liability from paying the claim amount the Ops have sent a notice dated 30.4.2012 containing false, frivolous matter for cancellation of the policy. The said notice was duly replied by the complainant through his counsel vide reply dated 13.6.2012.  All the labourer filed individual claim petitions against the owner driver and OPs.  The learned court of Sh.C.L.Mohal, MACT Yamuna Nagar decided all the three claim petition vide single judgment bearing MACT case No.12 of 9.2.2012 decided on 16.1.2013.   In the above said claim petition, owner and insurer of the above said tractor trolley had appeared and filed their written statement separately.  The learned Court of Sh.C.L.Mohal, MACT, Yamuan Nagar allowed the claim petitions of the claimants against the Insurance Company.  In the above said case, the Ops-company took all the pleas which are mentioned in the repudiation letter dated 16.8.2012 but the Hon’ble MACT was not convinced with the objections made by the Ops and accepted the claim petitions.  The complainant requested the Ops several times and has shown the judgment passed by the learned MACT court but of no use, which amounts to deficiency in service on the part of the Ops and prayed for acceptance of complaint by directing the Ops to pay claim of Rs.1,50,000/- along with interest @24% p.a. from the date of accident till its realization and further to pay Rs.50,000/- as compensation for mental agony and harassment as well as Rs.11,000/- as cost of proceedings. 

3.                     Upon notice, the Ops appeared and filed their written statement by taking some preliminary objections alleging therein that the complaint is not maintainable; there is no negligence or deficiency in services on the part of the Ops; the complainant has not come to this Forum with clean hands; the complainant has no locus standi to file the present complaint; in order to obtain the Insurance Cover of tractor/trolley bearing Registration No.HR02W-9491 from the Ops, the complainant misrepresented the facts and obtained the insurance cover through misrepresentation with a bad motive and design to cover the accident dated 14.2.2011 under the insurance cover of Ops.  In this case, the date of accident is 14.2.2011 and the insurance cover was fraudulently obtained (by making misrepresentation of material facts) on the same day i.e. 14.2.2011 by showing antedate in the insurance cover note.  It was in the knowledge of the complainant/owner of the tractor/trolley bearing Regn. No.HR02W/9491 that the accident of uninsured tractor trolley had already taken place and thereafter a misrepresentation with criminal intent was made to the insurance company and the complainant managed antedate and time insurance cover.  Note: in order to escape from the anticipated liability under Motor Vehicle Act. Hence, the OP-company has no liability in this case.  It was also found by the Ops that while obtaining the said policy, the complainant had given previous policy particulars of Iffco Tokio General Insurance company as cover note/policy number as 70231487 but that was also found fake and keeping in view the said facts, the Ops-company vide its endorsement and notice dated 30.4.2012 declared the policy to be void ab initio and cancelled the same from inception.  Thus, the complainant was duly informed that there is no insurance policy in force in respect of the vehicle in question and it was well within the knowledge of the complainant that the insurance is now not at risk; there is no privity of contract between the parties. The tractor/trolley bearing No.HR02W-9491 is neither a passengers carrying nor Goods Carriage vehicle.  Further, the seating capacity of the tractor trolley is only one person i.e. driver only but as per police investigation three persons besides driver were traveling on the mud guards of the tractor on both sides of the driver seat and more than eight persons were traveling in the trolley attached with the tractor.  This specific facts have come on record in the statement of one passenger namely Arun Kumar son of Sh.Mahinder recorded u/s 161 Cr.P.C during investigation conducted by the police in this case and from his statement it is clear that three passengers namely Jagmohan, Nitish and Pawan Kuamr were sitting on the mudguards of the tractor besides 7-8 persons traveling in the trolley; the driver was not holding any valid and effective driving license to drive Light Transport Vehicle; liability of insurance company under M.V.Act is on the different footing than the liability under contractual obligation; in this case, belated claim was lodged with the Ops and on receipt of claim intimation, the Op company immediately started processing the claim and IAR surveyor and loss assessor was deputed by the OPs-company to conduct the survey and assess the loss if any and to collect all the relevant documents from the insured.  The surveyor conducted the survey and after taking into account all the damages and on applying relevant depreciation clauses assessed the loss on repair basis to the tune of rs.78,608.30ps vide his report subject to terms and conditions of the insurance policy.  On merits, controvert the plea taken by the complainant and reiterated the stand taken in the preliminary objections.  There is no deficiency in service on the part of the Ops and prayed for dismissal of complaint with costs. 

4.                     To prove the case of the complainant, the counsel for the complainant tendered into evidence affidavit as annexure CW/A, documents such as copy of R.C. as annexure C.1, copy of D.L. as annexure C.2, copy of cover note as annexure C.3 to C.5, copy of mechanical report as annexure C.6, copy of letter dated 16.8.2012 as annexure C.7, copy of policy as annexure C.8, copy of legal notice as annexure C.9, acknowledgement as annexure C.10, copy of order of learned MACT Tribunal as annexure C.11 & C.12, copy of repair bills C.13 to C.16 and closed the evidence on behalf of the Ops. 

5.                     The counsel for the Ops tendered into evidence affidavit as annexure R.A & R.B, documents such as copy of letter dated 16.8.2012 as annexure R.1, copy of cover note as annexure R.2, copy of D.L. as annexure R.3, copy of RC as annexure R.4, copy of FIR as annexure R.5, copy of statement of Sh.Arun Kumar as annexure R.6, copy of final survey report as annexure R.7 and closed the evidence on behalf of the Ops.

6.                     We have heard the learned counsel for the parties and gone through the pleadings as well as documents placed on the file.  The counsel for the complainant argued that this fact is admitted that the tractor of the complainant was comprehensively insured with the Ops for IDV of Rs.3,40,000/- for the period from 14.12.2011 to 13.12.2012.  Unfortunately, on 14.12.2011 the tractor trolley of the complainant met with an accident for which the intimation was given and claim was duly lodged by the complainant with the Ops well in time along with all the documents as required by the OPs, but the Ops vide their letter dated 16.8.2012 illegally and wrongly repudiated the claim of the complainant on the false grounds that the vehicle in question was carrying passengers at the time of accident, whereas the learned MACT Tribunal had already passed the claims of the claimants where elaborate evidence was led by the parties because the persons which were travelling/going on the tractor trolley not the passengers even the farm labourers of the complainant.   The learned counsel for the complainant draw the attention of this Forum towards authority reported in 2016(1)RCR(Civil) P.795 titled as Lakhmi Chand vs. Reliance General Insurance (SC) wherein it has been held that,”Consumer Protection Act, 1986, Section 12-Five Persons travelling in goods carrying vehicle which has seating capacity of 1+1-Vehicle met an accident on account of rash and negligent driving of the offending vehicle by its driver-Insurance Company liable to pay compensation for the damage caused to the vehicle-

(1)       Company has not produced any evidence on record to prove that the accident occurred on account of the overloading of passengers in the goods carrying vehicle-Further held-

(2)       For the insurer to avoid his liability, the breach of the policy must be so fundamental in nature that it brings the contract to an end. 2004(2) RCR (Civil) 114 (SC), 1996 (3) RCR (Civil) 304 (SC) Relied.

                        Lastly prayed for acceptance of complaint.

7.                     On the other hand the learned counsel for the Ops reiterated the stand taken in the preliminary objections and draw the attention of this Forum towards authority reported in 2010 (ACJ 2671 Bombay High Court, Aurangabad Bench titled as National Insurance Co. Ltd. Vs. Sushila and others, wherein it has been held that,” Motor Insurance-Tractor-trolley-Goods vehicle-Passenger risk-Liability of insurance company-Labourer travelling in trolley filled with manure with thrown on the ground when trolley got detached from the tractor and tilted to its side and he sustained fatal injuries-Owner contended that deceased was walking on the road and came under the trolley-FIR lodged on the date of accident states that deceased was travelling in tractor-trolley along with other labourers-No evidence was led by the owner that deceased was walking on the road-Nobody was authorized to travel in the trolley and insurance policy did not cover the risk of persons travelling in the trolley-Premium of Rs.15/- was paid for persons employed in connection with operation and/or loading/unloading-whether insurance company is liable-Held: no, owner and driver are liable.  Further draw the attention of this Forum towards authority reported in VOL.CLI-(2008-3), PLR P.471 titled as The New India Insurance Company Ltd. Vs. Darshana Devi and others, wherein it has been held that, “(i) Motor Vehicles Act, 1988 (59 of 1988) Section 149 (2)-Deceased sitting on the mudguard of the tractor-Insurance Company not liable to pay compensation. Further draw the attention of this Forum towards authority reported in VOL-CLX-(2010-4), P.436 titled as United India Insurance Company Limited vs. Ramji Lal and others, wherein it has been held that, “(i) Motor Vehicles Act,1988 (59 of 1988) Section 147-If a person is travelling on the tractor, who is not a driver but an unauthorized passenger, there was no need for compulsory insurance,” and further draw the attention of Forum towards order dated 16.1.2015 passed by the Hon’ble National Commission in case titled as Krishan Dass vs. New India Insurance Co. Ltd. Wherein held that, “Sections 2(I)(g) and 21(b) Insuance-Accident of Vehicle-Total loss-Death of driver-Tractor met with an accident during subsistence in total loss and death of driver-FIR suggests that accident took place due to negligence of tractor driver-Driver allowed two persons to sit on mudguard and he could not watch the danger coming towards his vehicle from left and right side-It is bounded duty of the owners to keep the drivers under their control-Negligence of driver established-Repudiation of claim justified-Revision petition No.2984 of 2007 relied upon.  Lastly prayed for dismissal of complaint.

8.                     After hearing the learned counsel for the parties and going through the pleadings as well as documents placed on the file, it is clear and admitted fact that the tractor trolley of the complainant was duly insured with the Ops and the same met with an accident wherein the tractor trolley was damaged badly.  This fact is also not disputed that the intimation was not given in time and claim has not been lodged.  The only point of controversy between the parties is whether the passengers were being carried on the vehicle at the time of accident or not? Whether the cause of accident was due to sitting of above said persons or not?  From the perusal of the case file, it is clear that in the orders passed by the Learned Motor Accidental Claims Tribunal after recording elaborate evidence and cross examinations of the witnesses, it was held that the persons who were sitting on the mudguard were the farm labourers not passengers.  The findings of the learned Tribunal are believable, justifiable and beyond any doubt.  Since the facts, on which the Ops have repudiated the claim of the complainant has already been discussed and considered by the learned Tribunal then the Ops should have accepted the verdict of Learned MACT.   Further, from the perusal of the case file, it is also not clear as to whether the accident occurred due to sitting of the above said persons in the tractor trolley.  The authorities (supra) referred by the counsel for the Ops are not disputed but not identical to the facts and circumstances of the case in hand, because the Hon’ble National Commission in the authority (supra) has held that Driver allowed two persons to sit on mudguard and he could not watch the danger coming towards his vehicle from left and right side.  The accident as discussed in the above said authority by the Hon’ble National Commission occurred in Hilly area at VPO Pirni, tehsil Manali, Distt. Kulu, HP and in the present case there was no such hills and the accident of the tractor of the complainant took place in clear and plain area and it is also proved that the persons sitting on it were not passengers.  As such, the authority (supra) referred by the learned counsel for the complainant is fully applicable to the facts and circumstances of the case in which the Hon’ble Supreme Court of India has held that Company has not produced any evidence on record to prove that the accident occurred on account of the overloading of passengers in the goods carrying vehicle and in the present case also it has nowhere been proved by the Ops that the vehicle was overloaded by the passengers.  From the perusal of the cover note (annexure C.3) it is clear that seating capacity including driver/cleaner has been shown as 1+4 and in the present case the Ops have themselves pleaded that 4 (four) passengers including driver were sitting on the mudguard of the vehicle in question.  Since, the policy permits the complainant to carry 1+4 persons then in what manner and how violation has been made by the complainant.  Hence, the repudiation of the claim by the Ops is not justified and it amounts to deficiency in service on the part of the Ops.

9.                     So, far as the point of quantum of claim is concerned, the complainant has prayed for granting the relief for Rs.1,50,000/- along with interest, whereas the surveyor appointed by the Ops had assessed the loss to the tune of Rs.78608.30ps and it is settled law as decided by the Hon’ble Apex Court in so many orders that the surveyor is best person and the report of the surveyor cannot be denied, hence, the complainant is entitled for Rs.78,608.30ps i.e. the claim as assessed by the surveyor vide report (annexure R.7).

9.                     Resultantly, we partly allow the complaint of the complainant by directing the Ops to pay Rs.78,608/- on account of loss to the damaged tractor of the complainant along with interest @6%p.a. from the date after three months from the date of accident till its realization and further to pay Rs.5500/- as compensation for mental agony, harassment as well as cost of proceedings.  Order be complied within one month from the date of preparation of this order failing which the complainant is at liberty to invoke the jurisdiction of this Forum as per law.  Copies of this order be supplied to the parties concerned free of costs.  File be consigned to the record-room.

Announced in open Court:28.9.2017.

                                                                                                (SATPAL)

                                                                                                PRESIDENT.

 

 

(VEENA RANI SHEOKAND)                    (S.C.SHARMA)

MEMBER                                                      MEMBER.