Haryana

Karnal

CC/292/2020

Naresh Kumar - Complainant(s)

Versus

Cholamandalam MS General Insurance Company Limited - Opp.Party(s)

V.K. Sharma

27 Oct 2022

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, KARNAL.

 

                                                        Complaint No.292 of 2020

                                                        Date of instt.10.08.2020

                                                        Date of Decision:27.10.2022

 

Naresh Kumar son of Shri Rishipal, resident of Sukhdev Colony, Ram Nagar, Karnal.

                                               …….Complainant.

                                              Versus

 

1.     Cholamandlam MS General Insurance Company Limited, Dare House 2^nd floor, no.2, NSC Bose Road, Chennai-60001 through its Senior Divisional Manager.

 

2.     Cholamandlam MS General Insurance Company Limited, plot no.338, Scheme no.34, Extension old Mugal Canal (Karan Commercial Centre), Karnal through its Senior Divisional Manager.

 

                                                                      …..Opposite Parties.

 

Complaint Under Section 35 of Consumer Protection Act, 2019.

 

Before   Sh. Jaswant Singh……President.       

      Sh. Vineet Kaushik…….Member

      Dr. Rekha Chaudhary……Member

          

 Argued by: Shri Ramesh Kumar, counsel for the complainant.

                    Shri Vineet Rathore, counsel for the OPs.

 

                    (Jaswant Singh President)

ORDER:   

                

                The complainant has filed the present complaint Under Section 35 of Consumer Protection Act, 2019 against the opposite parties (hereinafter referred to as ‘OPs’) on the averments that complainant is registered owner in possession of Ashok Leyland Dost LS Pickup Tempo bearing registration no.HR-69B-4721, Model 2014, which was hypothecated to Cholamandlam Investment and Finance Company Limited, and the same was registered with Registration Authority, vide registration dated 02.04.2014. The said vehicle was insured with the OPs, vide policy no.3379/02373045/000/00, valid from 01.05.2019 to 30.04.2020. Complainant used to ply the aforesaid vehicle for earning his and his family livelihood. Complainant brought his vehicle to Barsana District Mathura on 06.09.2019 by hiring Dharampal and Vijay Kumar after loading the goods of Light decoration from Barsana District Mathura, said Dharampal sitting on conductor side and Vijay Kumar was sitting in backside body of said Tempo with goods and in return when at about 8.30 p.m. the complainant alongwith aforesaid Vijay Kumar and Dharampal reached Peripheral High near village Lechoura, District Bagpat (UP) then due to the wrong park of unknown vehicle, the said tempo of the complainant struck from conductor side, due to which the aforesaid Dharampal received multiple and grievous injuries on his vital parts and thereafter, during his treatment in Government hospital Sanjay Nagar Ghaziabad (UP), the said Dharampal died due to injuries sustained in the said accident. In the said accident the said tempo of complainant also fully damaged. Complainant sent the intimation to the OPs in this regard. Thereafter, OPs brought the vehicle by Crane at its branch garage at Karnal and the OP charged Rs.3100/- as service charges after completion of 100 kilometer, where the surveyor of the insurance company surveyed the vehicle of the complainant, who assessed the total loss to the vehicle. After 2-3 days of the accident, the complainant received telephonic message from Police Station Chandi Nagar, District Bagpat and police officer directed the complainant to bring back his tempo in the Police Station as early as possible. On the instruction of the police official, complainant took his vehicle at Chandi Nagar Police Station, District Bhagpat by hiring a private crane in the sum of Rs.10,000/- and since then the aforesaid vehicle is standing there. It is further averred that qua the aforesaid accident, an FIR no.0172 dated 12.09.2019 under section 279/427 & 30A of IPC has been registered against the complainant. Thereafter, complainant approached the OPs and enquired about the claim but OPs did not pay the claim and lingered the matter on one pretext or the other and lastly repudiated the claim of the complainant on the false and frivolous ground. In this way there is deficiency in service on the part of the OPs. Hence complainant filed the present complaint seeking direction to the OPs to pay the claim amount of Rs.2,50,350/- with interest, to pay Rs.13,100/- ( Rs.10,000/- for hiring private crane for taking the vehicle to police station + Rs.3100/- as charges taken by the insurance company for providing its crane), to pay Rs.2,00,000/- as compensation for mental agony and harassment and Rs.20,000/- as litigation expenses.

2.             On notice, OPs appeared and filed its written version raising preliminary objections with regard to maintainability; cause of action and concealment of true and material facts. On merits, it is pleaded that as per the version of complainant and documents submitted by him for processing the claim on the basis of which OPs conducted detailed investigation it is transpired that there is inordinate delay of 6 days in lodging the FIR and thereby imparting belated information to the OPs. The alleged accident took place on 06.09.2019 and FIR has been lodged after delay of six days i.e. on 12.09.2019. Moreover, it has been alleged that the vehicle struck against stationary unknown vehicle. It is highly improbable that why the registration particulars of stationary vehicle was not noted down and the third party liability would have been claimed from that vehicle. The complainant is not entitled to any reimbursement, much less any compensation, as he has been guilty of violation of the mandatory terms and conditions of the insurance policy and hence not entitled to insurance claim. The complainant miserably failed to impart the information qua alleged accident of vehicle in question to the OPs as well as to the concerned police instantly under the policy and as per law. Moreover, complainant failed to exercise due care and custody of the vehicle in question. So, the claim of the complainant has been rightly repudiated. It is further pleaded that after receiving the surveyor report dated 03.10.2019, OPs informed the complainant, vide letter dated 16.11.2019. Further, surveyor assessed the damages to the tune of Rs.1,95,895/- as per his report. The vehicle is in the custody of police/complainant and as such salvage, if any, is in possession of complainant. It is further pleaded that at the time of accident there were three persons travelling in the insured vehicle including the driver, when the permitted seating capacity of the vehicle as per the registration certificate is only 2, which is a serious violation of policy conditions pertaining to “Limitation as to use”, The relevant policy provisions are reproduced below for ready reference;-

General Exception (Applicable to all Sections of the Policy)

The company shall not be liable under this policy in respect of….

3. Any accidental loss damage and/or liability caused sustained or incurred whilst the vehicle insured herein is

a) Being used otherwise than in accordance with the “Limitation as to Use’. In view of the serious breach of policy condition as to “Limitation as to use”.

Same was communicated to complainant by dint of repudiation letter dated 05.12.2019, the complainant after receiving the letter instead of satisfying with valid and legal clause of policy, filed the present false complaint. It is further pleaded that the driver of the vehicle/complainant was not holding valid and effective driving license at the time of alleged accident. The vehicle is commercial one and the driving license of driver was meant for motorcycle and LMV. As such it can be clearly established that this is a serious and grave violation of policy and as such claim has rightly been repudiated under the policy. It is further pleaded that complainant has violated the condition of the insurance policy which explains that the insured shall take all reasonable steps to safeguard the vehicle from loss or damage and or to maintain it in efficient condition and the opposite party shall have at all times free and full access to examine the vehicle or any part thereof or any driver or employee of the insured. In view of the above, complainant has been negligent in his conduct and cannot be permitted to take advantage of his own negligence and violation of the policy terms. There is no deficiency in service on the part of the OP. The other allegations made in the complaint have been denied by the OP no.2 and prayed for dismissal of the complaint.

3.             Parties then led their respective evidence.

4.             Complainant has tendered into evidence his affidavit Ex.CW1/A, copy of registration certificate Ex.C1, copy of driving licence of complainant Ex.C2, copy of insurance policy Ex.C3, copy of bank passbook of complainant Ex.C4, copy of Aadhar card of complainant Ex.C5, copy of NOC of vehicle Ex.C6 and closed the evidence on 06.04.2021 by suffering separate statement.

5.             Learned counsel for the OPs has tendered into evidence affidavit of Sujeet Kumar Sahu, Deputy Manager Ex.OP1/A, copy of repudiation letter dated 05.12.2019 Ex.OP1, copy of letter dated 16.11.2019 Ex.OP2, copy of investigation report Ex.OP3, copy of charges details Ex.OP4, copy of statement of complainant Ex.OP5, copy of CRM Motor Claim Intimation Form Ex.OP6, copy of RC Ex.OP7, copy of RC Dashboard Ex.OP8, copy of driving licence Ex.OP9, copy of RC Dashboard Ex.OP10, copy of FIR Ex.OP11, copy of policy schedule Ex.OP12, copy of policy wording Ex.OP13 and closed the evidence on 05.05.2022 by suffering separate statement.

6.             We have heard the learned counsel of the parties and perused the case file carefully and have also gone through the evidence led by the parties.

7.             Learned counsel of complainant, while reiterating the contents of complaint, has vehemently argued that complainant is the registered owner of car in question and the same was financed by Cholamandlam Investment and Finance Company Limited and insured by OPs. On 06.09.2019 the said vehicle met with an accident in the area of near village Lechoura, District Bagpat(UP)  and in this regard an FIR no.172 dated 12.09.2019 with Police Station, Chandi Nagar, District Bagpat (UP) was lodged. The accident took place due to wrong parking of unknown vehicle. After the said accident, the matter was brought to the notice of OPs and OPs deputed his surveyor and the surveyor inspected the abovesaid vehicle and assessed the vehicle at total loss. Complainant submitted all the documents with the OPs and completed all the formalities and requested to settle the claim but OPs did not pay the claim and repudiated the same on the flimsy ground and prayed for allowing the complaint. Learned counsel for complainant relied upon the authorities titled as Lakhmi Chand Versus Reliance General Insurance in civil appeal no.49-50 of 2016, date of decision 07.01.2016(S.C); Mukund Dewangan Versus Oriental Insurance Company Limited in civil appeal no.5826 of 2011, date of decision 03.07.2017 (SC); Cholamandlam MS Gen. Insurance Versus Dinesh in first appeal no.509 of 2016 and 656 of 2017, date of decision 09.10.2017 of Hon’ble State Commission, Haryana, Panchkula; Sant Lal Versus Rajesh & Ors. etc. in civil appeal nos.8395-8396 of 2017, date of decision 03.07.2017 (SC) and Sri Duruganna Versus M/s Iffco Tokio Gen. Insurance Co. Ltd. in CC no.371 of 2018, date of decision 25.01.2022 of Hon’ble State Commission, Bengaluru.

10.           Per contra, learned counsel for OPs while reiterating the contents of written version, has vehemently argued that the accident took place on 06.09.2019 and FIR has been lodged after delay of six days i.e. on 12.09.2019. The complainant has miserably failed to impart the information qua alleged accident of vehicle in question to the OPs timely. Moreover, complainant failed to exercise due care and custody of the vehicle in question. So, the claim of the complainant has been rightly repudiated. The surveyor has assessed the damages to the tune of Rs.1,95,895/-. At the time of accident there were three persons travelling in the insured vehicle including the driver while the permitted seating capacity of the vehicle as per the registration certificate is only two, which is a serious violation of policy. He further argued that the driver of the vehicle was not holding valid and effective driving license at the time of alleged accident. As such there is violation of policy’s term and condition and OPs have rightly been repudiated the claim of complainant and lastly prayed for dismissal of the complaint.

11.           We have duly considered the rival contentions of the parties.

12.           Admittedly, the vehicle in question met with an accident during the subsistence of the insurance policy. It is also admitted that the vehicle in question was financed by Cholamandlam Investment and Finance Company Limited.

 14.          The claim of the complainant has been repudiated by the OPs, vide repudiation letter Ex.OP1 dated 05.12.2019 on the grounds, which reproduced as under:-

“At the material time of accident there were 3 persons travelling in the insured vehicle including the driver, when the permitted seating capacity of the vehicle as per the registration certificate is only 2, This is a serious violation of policy conditions pertaining to “Limitation as to use”, The relevant policy provisions are reproduced below for ready reference;-

General Exception (Applicable to all Sections of the Policy)

The company shall not be liable under this policy in respect of….

3. Any accidental loss damage and/or liability caused sustained or incurred whilst the vehicle insured herein is

a) Being used otherwise than in accordance with the “Limitation as to Use’. In view of the serious breach of policy condition as to “Limitation as to use”.

The Company reserves to repudiate the claim on any other grounds that may come to light at any time in future.”

 

15.           The claim of the complainant has been repudiated by the OPs on the ground that at the time of accident three persons were travelling in the insured vehicle including the driver, when the permitted seating capacity of the vehicle as per the registration certificate is only two. In case Lakhmi Chand’s case (supra) Hon’ble Supreme Court held that five passengers were travelling in the goods-carrying vehicle at the time of accident, whereas the permitted seating capacity of the motor vehicle of the appellant was only 1+1. The District Commission on the basis of pleading of the parties and the material on record considered the judgments of Hon’ble National Commission in case titled as National Insurance Co. Ltd. Versus Pravinbhai D. Prajapati wherein it was held that if the number of persons traveling in the vehicle at the time of accident did not have a bearing on the cause of accident, then the mere factum of the presence of more persons in the vehicle would not disentitle the insured claimant from claiming compensation under the policy towards the  repair charges of the vehicle paid by the appellant. Further, in the instant case, the OP-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.

16.           Keeping in view of the ratio of the law laid down in the aforesaid judgments, facts and circumstances of the case, the plea taken by the OPs is having no force as  OPs have miserably failed to prove on record that the accident occurred on account of the overloading of passengers in the goods carrying vehicle.

17.           The next plea taken by the OPs is that the driver of the vehicle was not holding valid and effective driving license at the time of alleged accident. The vehicle is commercial one and the driving license of driver was meant for motorcycle and LMV.  In this regard we are also fortified with the observations of judgment of the Hon’ble Supreme Court in Mukund Devagan’s case (supra) wherein Hon’ble Supreme Court held that in the matter of issue of driving licence of Light Motor Vehicles (LMV) that no separate endorsement on the driving licence is required to drive vehicle of the Light Motor Vehicle. Thus, plea taken by the OPs is having no force.

18.           The next plea taken by the OPs is that the complainant has not taken all reasonable steps to safeguard his vehicle from loss or damage. The onus to prove the same lies upon the OPs but OPs have failed to prove the same by leading any cogent and convincing evidence. OPs have completely failed to explain the act of complainant amounting to negligent behaviour for not safeguarding the vehicle. Hence, plea taken by the OPs has no force.

19.           The next plea taken by the OPs is that there is delay of six days in intimation regarding the accident of the vehicle in question by the complainant. In the present case vehicle in question was met with an accident on 06.09.2019, complainant lodged the FIR on 12.09.2019 and after that intimation regarding the said accident was sent to the insurance company. No doubt, complainant removed the vehicle in question from the spot without spot inspection done by the surveyor of the OPs and thus complainant deprived the right of the OPs to ascertain the necessary facts. In this regard we can rely upon the authority cited in Revision Petition no.1870 of 2015(NC) decided on 14.08.2018 titled as New India Assurance Co. Ltd. Versus Thirath Singh Brar,  and authority of our own Hon’ble State Commission in First Appeal no.717 of 2016 decided on 6.4.2017 titled as United India Insurance Company Limited and others Versus Anshul Bansal.  In both judgments it was held that in case of any breach of warranty/condition of the policy the insurer is liable to pay 75% of admissible claim on non-standard basis.

 20.          Further,  Hon’ble Punjab and Haryana High Court in case titled as New India Assurance Company Ltd. Versus Smt. Usha Yadav & others 2008 (3) RCR (Civil) 111, has held as under:-

                It seems that the Insurance Companies are only interested in earning the premiums which are rather too stiff now a days, but are not keen and are found to be evasive to discharge their liability. In large number of cases, the Insurance companies make the effected people to fight for getting their genuine claims. The Insurance Companies in such cases rely upon clauses of the agreements, which a person is generally made to sign on dotted lines at the time of obtaining policy. This is, thus pressed into service to either repudiate the claim or to reject the same. The Insurance Companies normally build their case on such clauses of the policy, but would adopt methods which would not be governed by the strict conditions contained in the policy.        

21.           Keeping in view that the ratio of the law laid down in aforesaid judgments, facts and circumstances of the present complaint, we are of the considered view that acts of the OPs while repudiating the claim of the complainant in toto amounts to deficiency in service and unfair trade practice, which is otherwise proved genuine one. 

22.           The surveyor of the OPs has assessed the loss to the tune of Rs.1,95,895/-. The complainant has violated the terms and conditions of the policy.  Hence, he is entitled for 75% of the said amount, alongwith interest, compensation for mental agony and harassment and litigation expenses.

23.           In view of the above discussion, we partly allow the present complaint and direct the OP to pay Rs.1,46,921/- (Rs.one lakhs forty six thousand nine hundred twenty one  only)  i.e.75%  of the loss assessed by the surveyor of the OPs to the complainant alongwith interest @ 9% per annum from the date of repudiation of the claim till its realization. We further direct the OPs to pay Rs.25,000/- to the complainant on account of mental agony and harassment suffered by him and Rs.11,000/-for the litigation expenses. This order shall be complied within 45 days from the receipt of copy of this order. The parties concerned be communicated of the order accordingly and the file be consigned to the record room after due compliance.

Announced

Dated:27.10.2022                                                                       

                                                                  President,

                                                     District Consumer Disputes

                                                     Redressal Commission, Karnal.

 

 

(Vineet Kaushik)        (Dr. Rekha Chaudhary)

                          Member                           Member