Haryana

Karnal

CC/24/2022

Sunil Kumar - Complainant(s)

Versus

Cholamandlam Ms General Insurance Company Limited - Opp.Party(s)

Subhash Kashyap

08 Aug 2024

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, KARNAL.

                                                        Complaint No.24 of 2022

                                                        Date of instt.14.01.2022

                                                        Date of Decision:08.08.2024

 

Sunil Kumar son of Shri Mann Singh, resident of village Biana, tehsil Indri, District Karnal. Aadhar no.403493211590.

 

                                                 …….Complainant.

                                              Versus

 

1. Cholamandlam MS General Insurance Company Ltd. registered and head office 2^nd floor, Dare House 2 NSC Bose Road, Chennai-600001 through its Managing Director.

 

2. Cholamandlam MS General Insurance Company Ltd. SCO no.334, basement, Mugal Canal Market, Karnal through its Branch Manager.

 

                                                              …..Opposite Parties.

 

Complaint under Section 35 of Consumer Protection Act, 2019.

 

Before   Shri Jaswant Singh……President.     

      Ms. Sarvjeet Kaur ..…….Member

 

Argued by: Shri Subhash Kashyap, counsel for the complainant.

                   Shri Naveen Khetarpal, counsel for the OPs.

 

                     (Jaswant Singh, President)

ORDER:   

                

                The complainant has filed the present complaint under Section 35 of the Consumer Protection Act, 2019 against the opposite parties (hereinafter referred to as ‘OPs’) on the averments that complainant is the registered owner of one Truck bearing registration no.HR-45C-9331 and the same was insured with the OPs, vide policy no.3379/02385866/000/01, valid from 17.05.2020 to 16.05.2021. Aslam Khan son of Smshad Khan is the driver of the complainant who was driving the aforesaid vehicle. The said Aslam Khan is having valid driving licence. On 01/02.05.2021, the aforesaid driver of the complainant alongwith cleaner namely Sarvar son of Islam resident of Sijud, P.S. Rampur, District Saharanpur (UP) were going from Maharastra to Nepal after loading the Banana in the aforesaid truck and the aforesaid truck was being driven by said Aslam Khan with his due left hand side in a moderate speed, by following all the traffic rules. At about 1.30 a.m. (night) when they reached near Ghaghara Ghad, Behraich Road in the meantime one Truck bearing registration no.UP42T-9198 which was being driven by its driver in a very high speed, rashly and negligently and by coming wrong side he directly hit into the aforesaid truck. Due to this impact the aforesaid truck has damaged badly and the clearer Sarver has died. The accident took place due to the sole rash and negligent driving of said truck by the driver of truck, in this regard the complainant lodged a case FIR no.0161 Dated 03.05.2021 under section 279/304-A of IPC at Police Station Ram Nagar, District Barabanki. In this accident, the aforesaid vehicle has badly damaged and the same is neither repairable nor pliable over the road. Intimation was sent to the OPs regarding the said accident and on receipt of intimation, OPs appointed a surveyor and the surveyor of the OPs visited at the spot and made the inspection of the accidental vehicle and asked the complainant that the said vehicle has totally damaged and the same is not repairable. The surveyor has assessed the loss to the tune of Rs.17,50,000/-. The surveyor has taken all the relevant documents from the complainant and assured that they would certainly access the loss of the said vehicle. As per the assurance of the surveyor of the OPs the complainant had taken the aforesaid vehicle from the place of accident at his house and the said vehicle is still lying in the premises of the complainant. Complainant approached in the office of OPs several times and requested to settle the amount but OPs did not pay any heed to the request of complainant and lastly repudiated the claim of complainant, vide letter dated 01.08.2021 on the false and frivolous ground. The complainant has taken the aforesaid vehicle on hire purchase basis and complainant was paying the loan installment by plying the said vehicle. Complainant is paying the loan installments from his own pocket. OPs illegally and unlawfully have repudiated the claim of the complainant. Due to this act and conduct of the OPs, complainant has suffered mental pain and agony as well as financial loss. In this way there is deficiency in service and unfair trade practice on the part of the OPs. Hence this complaint.

2.             On notice, OPs appeared and filed its written version raising preliminary objections with regard to maintainability; jurisdiction; cause of action; locus standi and concealment of true and material facts. On merits, it is pleaded that after getting the intimation regarding loss of vehicle, OPs immediately appointed an IRDA approved independent licensed surveyor to survey the vehicle and assess the loss and investigator to investigate the matter and collect documents. After receiving investigation report, it has come to know that claim of the complainant is not maintainable. By the investigation, it was found that cleaner was driving the vehicle at the material time of accident and does not possess the valid and effective driving licence. Cleaner also died in the accident due to severe injuries. As per FIR at the time of accident vehicle was running condition but as per insured statement vehicle was parked and cleaner was sitting on driver seat. FIR is forged with respect to the driver at the material time of accident, which constitute fraud and misrepresentation of facts. There is gross violation of terms and conditions of the policy. So, being not maintainable, claim of the complainant repudiated by the OPs, vide repudiation letter dated 01.08.2021. There is no deficiency in service and unfair trade practice on the part of the OPs. The other allegations made in the complaint have been denied and prayed for dismissal of the complaint.

3.             Parties then led their respective evidence.

4.             Learned counsel for the complainant has tendered into evidence affidavit of complainant Ex.CW1/A, copy of aadhar card Ex.C1, copy of insurance policy Ex.C2, copy of RC Ex.C3, copy of driving licence Ex.C4, copy of repudiation letter dated 01.08.2021 Ex.C5, copy of FIR Ex.C6, copy of General Diary Detail Ex.C7, copy of post mortem report Ex.C8, copy of MLR dated 02.05.2021 and closed the evidence on 12.09.2022 by suffering separate statement.

5.             On the other hand, learned counsel for the OPs has tendered into evidence affidavit of Sunil Gupta Ex.RW1/A, affidavit of Shubham Arora Ex.RW2/A, affidavit of Sanhil Ex.RW3/A, copy of repudiation letter dated 01.08.2021 Ex.R1, copy of investigation report Ex.R2, copy of survey report Ex.R3, copy of terms and conditions of the insurance policy Ex.R4 and closed the evidence on 22.09.2023 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 for complainant, while reiterating the contents of the complaint, has vehemently argued that the complainant got insured his vehicle with the OPs. On 02.05.2021 the said vehicle of complainant met with an accident near Ghaghara Ghad, Behraich Road, District Barabanki, Rampur (UP). The intimation was sent to the OPs. OPs appointed a surveyor and said surveyor has assessed the loss to the tune of Rs.17,50,000/-. Complainant submitted the claim with the OPs and requested to settle the same but OPs did not settle the claim of complainant and lastly repudiated the claim of the complainant on the false and frivolous ground and lastly prayed for allowing the complaint.

8.             Per contra, learned counsel for the OPs, while reiterating the contents of written version, has vehemently argued that after getting the intimation regarding loss of vehicle, OPs appointed an IRDA approved independent licensed surveyor to survey the vehicle and assess the loss and investigator to investigate the matter. After investigation, it was found that cleaner was driving the vehicle at the time of accident and does not possess the valid and effective driving licence. Cleaner also died in the accident. There is gross violation of terms and conditions of the policy. So, the claim of the complainant was rightly repudiated by the OPs and lastly prayed for dismissal of the complaint.

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

10.           Admittedly, complainant got his vehicle insured with the  OPs for the insured declared value (IDV) of Rs.26,17,250/-. It is also admitted that during the subsistence of the insurance policy, the vehicle of the complainant met with an accident.

11.           The claim of the complainant has been repudiated by the OP, vide repudiation letter Ex.C5/Ex.R1 dated 01.08.2021 on the following ground, which is reproduced as under:-

“During the investigation it was found that cleaner was driving the vehicle at the material time of accident and does not possess valid driving licence. Also cleaner died in the accident due to severe injuries. This has been also confirmed after thorough investigation of the case at their end and the resultant findings thereafter.

Also it came to light that the FIR is forged with respect to the driver at the material time of accident which constitutes Fraud and Misrepresentation of facts.

The relevant policy conditions are reproduced below for your immediate reference:-

This policy and the schedule shall be read together and any word or expression to which specific meaning has been attached in any part of this policy or of the schedule shall bear the same meaning wherever it may appear.

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 the truth of the statements and answers in the said proposal shall be conditions precedent to any liability of the company to make any payment under this policy.

Therefore, under the given circumstances, they express their inability to consider his claim.

The company reserves to repudiate the claim on any other ground that may come to light at any time in future.

The payment of the claim has to be in accordance with the terms and conditions of the policy issued. While expressing their inability to pay this claim due to the above mentioned reason, they reiterate their commitment to pay all admissible claims fairly and promptly.”

12.           The claim of the complainant has been repudiated on the abovementioned grounds. OPs have alleged that at the time of accident, cleaner was driving the vehicle without valid and effective driving licence.

13.           Best witness was the driver namely Aslam Khan son of Smshad Khan, who is having valid and effective driving licence Ex.C4 but during the investigation neither the investigator of the OPs has joined the said witness nor OPs have examined/tendered the affidavit of said witness before the Commission to prove their version. Thus, the plea taken by the OPs goes unproved that at the time of accident cleaner was driving the vehicle.

14.           OPs have also alleged that as per insured statement his vehicle was parked at the time of accident but in the FIR it is not stated by the insured that vehicle was parked at that time. On perusal of the FIR Ex.C6, it is nowhere mentioned that at the time of accident, the vehicle was either parked or plying condition. Thus, the plea taken by the OPs is only on the basis of presumption and assumption, which is not admissible in the eyes of law.  Hence, the plea taken by the OPs has no force.

15.           Furthermore, if for the sake of gravity, if it is presumed that complainant has violated the terms and conditions of the insurance policy, in that eventuality, the claim of the complainant cannot be repudiated in toto.  In this regard, we  rely upon the case laws 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.

16. 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”.

17.           Keeping in view, the ratio of the law laid down in aforesaid judgment, facts and circumstances of the present complaint, the act of the OPs while repudiating the claim of complainant in toto amounts to deficiency in service and unfair trade practice, which is otherwise proved genuine one. 

18.           The complainant has alleged that the surveyor of OPs has assessed the loss to the tune of Rs.17,50,000/-. But on perusal of the surveyor report Ex.R3, the surveyor of the OP has assessed the net liability to the tune of Rs.9,74,332.36 only. Complainant has not placed on file any other proof with regard to the loss of Rs.17,50,000/- Hence, the OPs are liable to pay the 75% of the loss assessed by the surveyor in his report Ex.R3 alongwith interest, compensation for mental agony and harassment and litigation expenses.

19.           In view of the above discussion, we partly allow the present complaint and direct the OPs to pay Rs.7,30,749/- (Rs. seven lakhs thirty thousand seven hundred forty nine only) i.e. 75% of the loss assessed by the surveyor of the OPs  alongwith interest @ 9% per annum from the date of filing of the complaint i.e. 14.01.2022 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:08.08.2024

         President,

      District Consumer Disputes                           

      Redressal Commission, Karnal.

 

                           (Sarvjeet Kaur) 

                             Member