Haryana

Sonipat

327/2014

VIJAYPAL S/O JAGDISH CHANDER - Complainant(s)

Versus

BRANCH OFFICE GOHANA - Opp.Party(s)

S.S. MIGLANI

08 Oct 2015

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM,

SONEPAT.

                               Complaint No. 327 of 2014

                             Instt. on:    01.12.2014                                       Date of order:15.10.2015.

Vijay Pal son of Jagdish Chander r/o V. Khanpur Kalan, tehsil Gohana, distt. Sonepat.

                                                …Complainant

New India Assurance Co. Ltd.  Branch Gohana through its Branch Manager.

 

    Respondent.

 

COMPLAINT UNDER SECTION 12 OF

THE CONSUMER PROTECTION ACT,1986

 

Argued by: Sh. SS Miglani Adv. for complainant.

           Sh. Surender Malik, Adv. for respondent.

 

 

BEFORE-   Nagender Singh, President.

          Smt. Prabha Wati, Member.

          D.V. Rathi, Member.

 

O R D E R

          Complainant has filed the present complaint against the respondent alleging himself to be the registered owner of vehicle no.HR46B/0009 and the same was insured with the respondent.  The said vehicle is having its capacity of load as 15 ton and the weight of the vehicle is 10 ton and the complainant got prepared its body from market and is being used as a damper which has been duly passed from RTA in November, 2007.  Unfortunately, the said vehicle has met with an accident on 4.2.2014 and turned turtle and intimation regarding accident was given to the respondent who deputed the surveyor Shri Ashok Sharma who conducted the spot survey and has submitted his report and assessed the loss.  The complainant as per the directions of the respondent got repaired the vehicle and has incurred about Rs.305934/ and submitted all the bills to the respondent for payment.  Shri DR Gupta was appointed by the respondent who has submitted his survey report.   As per spot survey report, the vehicle was carrying stone dust at the time of loss, whereas as per GRBill no.149 dated 4.2.2014 the vehicle was carrying sand.   The claim was repudiated on the ground that the load body was found extended and it was not found as per Tata Specified load body by which carrying capacity was enhanced by 50% and thereby over loading of 50%.  Infact the said body was got affixed on the chasis of the vehicle of the complainant from the private market just after its purchase and further RTA passed the said vehicle finding it according to all specification norms affixed under the Motor Vehicles Act.  At the time of accident, the load of the said vehicle was 14.2 Ton as specifically mentioned by the surveyor of the respondent whereas the capacity of the said vehicle is 15 ton.    So, the respondent has wrongly and illegally repudiated the claim of the complainant and by not paying the amount of Rs.305934/ the respondent has rendered the deficient services to the complainant. So, he has come to this Forum and has filed the present complaint.

2.        In reply, the respondent has submitted that the complainant himself has violated the terms and conditions of the policy and has modified the open body of the vehicle in question and extended the load carrying capacity without the permission of the concerned authority and without giving any information to the respondent.  At the time of accident, the vehicle in question was overloaded and due to overload and modification in body structure of the vehicle and extension of load carrying capacity driver lost his control and vehicle turned turtle and met with an accident and it is the duty of the insured person to take every safety measures to prevent loss to the vehicle in question and the complainant remained fail to do so and without getting any permission from the concerned registration authority he modified the body with an intention to carry more load and due to that the accident took place and vehicle was damaged and as per the manufacturer of the truck in question open body structure/trolley is totally different then the modified body structure/trolley tipper body, which was at the time of accident.   The actual loss as per the surveyor and loss assessor namely Daya Ram Gupta in the vehicle in question was Rs.1,36,560/ and after deducting amount of excess clause i.e. Rs.1500/ , total comes to Rs. 135060/  and after deducting the value of scrap i.e. Rs.560/, the amount comes to Rs.134500    The bills submitted by the complainant are false and procured one. So, no liability can be fastened upon the respondent. Further as per the photo and report submitted by surveyor and loss assessor Ashok Sharma, there is totally different in the body structure of tipper body/trolley fabricated by manufacturer of the vehicle.  The claim of the complainant was rightly repudiated and the repudiation letter is legal and binding upon the complainant. The amount claimed by the complainant i.e. Rs.305934/ is on very higher side and the actual loss was Rs.134500/ as per the report of Daya Ram Gupta, Surveyor and loss assessor.  But the complainant is not entitled to get the amount of Rs.134500/ as he himself violated the terms and conditions of the policy and plied the vehicle in contravention of the rules and regulations of registering authority.  There is no deficiency in service on the part of the respondent and thus, prayed for the dismissal of the present complaint.

3.        We have heard both the learned counsel for the parties at length and have also gone through the entire case file very carefully.

4.        Ld. Counsel for the complainant has submitted that the respondent has wrongly and illegally repudiated the legal and genuine claim of the complainant. The vehicle no.HR46B/0009 is having its capacity of load as 15 ton and the weight of the vehicle is 10 ton and the complainant got prepared its body from market and is being used as a damper which has been duly passed from RTA in November, 2007.  Unfortunately, the said vehicle has met with an accident on 4.2.2014 and turned turtle and intimation regarding accident was given to the respondent who deputed the surveyor Shri Ashok Sharma who conducted the spot survey and has submitted his report and assessed the loss.  The complainant as per the directions of the respondent got repaired the vehicle and has incurred about Rs.305934/- and submitted all the bills to the respondent for payment.  Shri DR Gupta was appointed by the respondent who has submitted his survey report.   As per spot survey report, the vehicle was carrying stone dust at the time of loss, whereas as per GR/Bill no.149 dated 4.2.2014 the vehicle was carrying sand.   The claim was repudiated on the ground that the load body was found extended and it was not found as per Tata Specified load body by which carrying capacity was enhanced by 50% and thereby over loading of 50%.  Infact the said body was got affixed on the chasis of the vehicle of the complainant from the private market just after its purchase and further RTA passed the said vehicle finding it according to all specification/norms affixed under the Motor Vehicles Act.  At the time of accident, the load of the said vehicle was 14.2 Ton as specifically mentioned by the surveyor of the respondent whereas the capacity of the said vehicle is 15 ton.    So, the respondent has wrongly and illegally repudiated the claim of the complainant and by not paying the amount of Rs.305934/- the respondent has rendered the deficient services to the complainant.

          Ld. Counsel for the respondent has submitted that the complainant himself has violated the terms and conditions of the policy and has modified the open body of the vehicle in question and extended the load carrying capacity without the permission of the concerned authority and without giving any information to the respondent.  At the time of accident, the vehicle in question was overloaded and due to overload and modification in body structure of the vehicle and extension of load carrying capacity driver lost his control and vehicle turned turtle and met with an accident and it is the duty of the insured person to take every safety measures to prevent loss to the vehicle in question and the complainant remained fail to do so and without getting any permission from the concerned registration authority he modified the body with an intention to carry more load and due to that the accident took place and vehicle was damaged and as per the manufacturer of the truck in question open body structure trolley is totally different then the modified body structure/trolley tipper body, which was at the time of accident.   The actual loss as per the surveyor and loss assessor namely Daya Ram Gupta in the vehicle in question was Rs.1,36,560/- and after deducting amount of excess clause i.e. Rs.1500/ total comes to Rs. 135060/ and after deducting the value of scrap i.e. Rs.560/ the amount comes to Rs.134500    The bills submitted by the complainant are false and procured one. So, no liability can be fastened upon the respondent. Further as per the photo and report submitted by surveyor and loss assessor Ashok Sharma, there is totally different in the body structure of tipper body trolley fabricated by manufacturer of the vehicle.  The claim of the complainant was rightly repudiated and the repudiation letter is legal and binding upon the complainant. The amount claimed by the complainant i.e. Rs.305934 is on very higher side and the actual loss was Rs.134500 as per the report of Daya Ram Gupta, S&LA.  But the complainant is not entitled to get the amount of Rs.134500/ as he himself violated the terms and conditions of the policy and plied the vehicle in contravention of the rules and regulations of registering authority.  There is no deficiency in service on the part of the respondent.

5.        After hearing both the learned counsel for the parties at length and after going through the entire relevant material available on the case file very carefully, we find no force in the contentions raised by the ld. Counsel for the respondent.  The perusal of the case file shows that there is no report from the side of the respondent to prove that before issuing insurance policy to the complainant in respect of the vehicle in question, the respondent ever physically inspected the vehicle.  On the contrary, the complainant has tendered his affidavit deposing therein that the respondent has paid the claim on the basis of same body of the vehicle in question and the same was paid on 28.8.2012 amounting to Rs.46500/  and on 6.6.2013 amounting to Rs.41900/  The cover note issued by the respondent insurance company also shows that no claim bonus has been given to the complainant at any point of time. From the above affidavit, it is proved that the respondent insurance company has also paid the claim amount to the complainant in respect of the same vehicle and at the time of paying the said claim amount, the respondent insurance company never objected regarding modification of the body.

          The respondent insurance company on the basis of report of Ashok Sharma, Surveyor and loss Assessor has pleaded in the written statement that the vehicle in question was fabricated by the insured person from open market.  Whereas the surveyor and loss assessor vide his letter dated 30.8.2014 has written to the insurance company that “after due discussion, I found the load body have not extended by the insured and I admit my mistake”.  So, the plea taken by the respondent insurance company is not tenable in the eyes of law.

          Further we have perused the insurance cover note for the period w.e.f. 9.10.2013 to 8.10.2014 and it shows that the respondent insurance company has charged Rs.10071/- from the complainant on account of OD premium.

          The complainant has alleged that the capacity of the vehicle is 15 ton and weight is 10 ton.  But the respondent insurance company has pleaded that the carrying capacity of the vehicle is 15 ton and unload weight is 9 ton instead of 10 ton. But to prove this fact, no document has been placed on record by the respondent.  In our view, the cause of accident as alleged by the respondent insurance company is not tenable because the accident has not taken place due to the reasons as alleged by the respondent insurance company.

 

          Now the main question arises for consideration before this Forum is whether the complainant is entitled to get any claim amount from the respondent insurance company or not and if so, to what amount?

          In the present case, the respondent’s stand is that the surveyor has assessed the loss of the complainant to the tune of Rs.1,34,500/-.

 

          We have perused the report of Shri Daya Ram Gupta, Surveyor and Loss Assessor very carefully.  The salvage value has been assessed by the surveyor in a very less manner. The surveyor has deducted the salvage value thrice i.e. for Rs.20,000 Rs.75,000/- and Rs.15000/- i.e. total Rs.1,10,000/-. 

Cost of 2^nd hand load body with sub        

Frame & hydraulic jack assy.          Rs.155000

Less Salvage                               Rs. 75000

                                           Rs.80000

 

The calculation on repair basis of load body with sub frame and hydraulic jack assy as made by the surveyor is wrong and the same is reproduced below:-

 

Calculation on repair basis of load body       

with sub frame and hydraulic jack assy

Material allowed                           : Rs.95000-00

Less dep.  40%                            : Rs.38000-00

                                           : Rs.57000-00

Less Salvage                               : Rs.15000-00

                                             Rs.42000-00

ADD Labour charges                         : Rs.55000-00

                                             Rs.97000-00

Meaning thereby, the surveyor towards the amount of Rs.1,55,000/- has only assessed the amount of Rs.80,000/-.  Labour charges has been added by the surveyor to the tune of Rs.55000/-, but he has allowed the labour charges to the tune of Rs.15000/- only.  In our view, the assessment made by the

surveyor towards the salvage value and labour charges is wrong and is on a very lower side because the surveyor has failed to mention the criteria by which he reach at the conclusion that this and this amount must be deducted towards the salvage value and this and this amount must be paid to the complainant towards the labour charges.

          The complainant by way of present complaint has claimed that he has incurred Rs.305934/- on the repair of his vehicle and this amount has been genuinely incurred by him and has been paid to the repairer of the vehicle.  The surveyor has assessed the loss to the tune of Rs.1,34,500/-.  But as discussed above, the surveyor has assessed the salvage value and labour charges on a very lower side.  If the salvage value as assessed by the surveyor is considered, it comes to Rs.1,10,000/-  and the labour charges were assessed as Rs.55000/-, then it was allowed only for a sum of Rs.15000/-, meaning thereby, a net loss of Rs.1,50,000/- has been caused to the complainant.   In our view, the ends of justice would be fully met if the respondent insurance company is directed to pay a sum of Rs.2 Lacs to the complainant.  Accordingly, we hereby direct the respondent insurance company to make the payment of Rs.2,00,000/- (Rs.two lacs) to the complainant alongwith interest at the rate of 09% per annum from the date of filing of the present complaint till its realization.  Further it is directed to the respondent to pay a sum of Rs.Five thousands for rendering deficient services, for causing unnecessary mental agony, harassment and further to pay a sum of Rs.five thousands to the complainant under the head of litigation expenses.

 

 

          With these observations, findings and directions, the present complaint stands allowed.

          Certified copy of this order be provided to both the parties free of cost.

File be consigned to the record-room.

 

 

(Prabha Wati)        (DV Rathi)                 (Nagender Singh-President)

Member DCDRF        Member DCDRF                   DCDRF, Sonepat.

 

Announced: 15.10.2015