DISTRICT CONSUMER DISPUTES REDRESSAL FORUM,

BATHINDA

C.C. No. 419 of 08-10-2015

Decided on : 15-09-2016

Rinkaljit Singh S/o Gurwinder Singh, R/o House No. 728, Dhobiana Basti, Bathinda.

…...Complainant

Versus

1. HDFC ERGO General Insurance Co. Ltd., Corporate Office : 6^th Floor, Leela Business Park, Andheri – Kurla Road, Andheri (East) Mumbai through its General Manager (Deleted vide order dated 9-10-2015)

2. HDFC ERGO General Insurance Co. Ltd., Unit No. 502, 504, 506, 5^th Floor, Mahatta Tower, B-1 Block, Community Centre, Janak Puri, New Delhi 110 058 through its Regional Manager/Manager Claims

3. HDFC ERGO General Insurance Co. Ltd., having its Cashless Garage in M/s. AB Motors Pvt. Ltd., Opp. ITI Mansa Road, Bathinda, through its Incharge

4. HDFC ERGO General Insurance Co. Ltd., 1^st Floor, 124-125, Sector 8-C, Madhya Marg, Chandigarh through its Manager (Deleted vide order dated 9-10-2015)

   .......Opposite parties

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

Quorum :

Sh. M.P.Singh Pahwa, President

Sh. Jarnail Singh, Member

Present :

For the Complainant : Sh. J. S. Walia, Advocate.

For the opposite parties : OPs No. 1 & 4 already deleted.

Sh. Varun Gupta, Advocate for OP No. 2.

Opposite party No. 3 exparte.

O R D E R

M. P. Singh Pahwa, President

1. This complaint has been filed by Rinkaljit Singh, complainant under Section 12 of the consumer Protection Act, 1986 (here-in-after referred to as 'Act') against HDFC ERGO General Insurance Company Limited and others (here-in-after referred to as 'opposite parties').

2. Briefly stated, the case of the complainant is that he purchased new Sonalika D1 750 III DC PS Tractor (here-in-after referred to as “Sonalika Tractor”) after getting loan from L&T Finance Ltd. The said Tractor was registered with Registering Authority, Bathinda, vide Registration No. PB-03AJ/3369. The complainant got the said “Sonalika Tractor” comprehensively insured with the opposite parties for its Insured Declared Value (IDV) at Rs. 5,70,000/- vide policy No. 2316 8322 8000 000 for the period from 09-02-2015 to 08-02-2016.

3. It is pleaded that said Tractor of the complainant met with an accident on 16-07-2015 on Fzilka-Ferozepur Road, Near Sanjhi Haveli, Jalalabad, when it was being driven by Gursewak Singh S/o Nikka Singh R/o V. Channu, P S Lambi, Distt. Sri Mukatsar Sahib, who had gone to Fazilka for domestic work on 15-07-2015. On 16-7-2015, he was returning to Village Channu. At about 1.30/2.00 p.m. when he reached on Jalalabad-Ferozepur-Fazilka Road Near Sanjhi Haveli, one Truck No. RJ-191G/4544 driven by its driver Net Ram S/o Jawahra Ram, R/o Village 13MD, District Sanganagar rashly and negligently hit behind the Trolley (Trailer) due to which Tractor and Trolley turned and went to the other side of the road, causing damage to Tractor and Trolley. Gursewak Singh driver was seeing the Tractor and Trolley and after about 20 minutes one 'Gorha Tralla' No. PB-05Y-6434 driven by its driver Harjit Singh S/o Buta Singh R/o Village Bhageka, District Ferozepur rashly and negligently came from Ferozepur side and hit with the Tractor Trolley, causing extensive loss to the Tractor and Trolley. The Tractor was broken in pieces. A case FIR No. 86 dated 17-07-2015 under Section 279/427 IPC has been registered in PS City Jalalabad against above named Net Ram and Harjit Singh on the statement of Gursewak Singh.

4. It is pleaded that complainant lodged claim with the opposite parties with regard to the loss to Tractor. The opposite parties appointed surveyor to assess the loss. The surveyor inspected the spot as well as damaged Tractor. All the relevant documents required by the surveyor were handed over to him. The surveyor disclosed that the vehicle is a total loss. The complainant is entitled to total loss amount of Rs. 5,70,000/- i.e. IDV. There would be no cutting in the said amount. The surveyor of the opposite parties also got signatures of the complainant on blank printed forms stating that the same are required for finalizing the claim by the opposite parties. The opposite parties assured the complainant that the claim will be finalized and payment of claim will be made within few days. The complainant also got the Tractor inspected from Singhal Enterprises, authorized dealer of Sonalika International Tractors Ltd., Old Bus Stand, Fauzi Chowk, Bathinda, for estimating the loss to the Tractor. Engineers of said dealer after inspection of Tractor disclosed that the total loss is Rs. 4,51,706.50 besides loss of Rs. 79,153/- being cost of other parts of Tractor. The original estimate was handed over to the surveyor of the opposite parties.

5. It is also pleaded that complainant has received letter dated 24-08-2015 from the opposite parties stating therein that during alleged investigation it has come to their notice that the vehicle was being used for carrying sand on hire whereas the policy has been issued under Miscellaneous and Special Types of vehicles package policy i.e. for purposes of agriculture and forestry. The opposite parties repudiated the claim of the complainant.

6. It is asserted that complainant is an agriculturist and he purchased the tractor for agriculture purposes only and he was using the same for this purpose. The allegations that the tractor was carrying sand on hire basis have been manipulated by the opposite parties in order to repudiate the claim of the complainant. The repudiation of claim is totally wrong.

7. On this backdrop of facts, the complainant has alleged deficiency in service and unfair trade practice on the part of the opposite parties. He has prayed for directions to the opposite parties to pay total loss/claimed amount of Rs. 5,70,000/- alongwith interest @ 12% p.a. from the date of loss till payment ; Rs.1.00 Lac as compensation and Rs. 25,000/- as litigation expenses. Hence, this complaint.

8. In view of the statement of the learned counsel for the complainant, name of opposite parties No. 1 & 4 were deleted. Notice to opposite parties No. 2 & 3 were issued. None appeared on behalf of opposite party No. 3. As such, exparte proceedings were taken against it.

9. The opposite party No. 2 put an appearance through its counsel for and contested the complaint by filing written reply. In written reply, the opposite party No. 2 raised preliminary objections that it is HDFC ERGO General Insurance Company Limited having its corporate office at Ist Floor, 165-166, Backbay Reclamation, H.T. Parekh Marg, Churchgate, Mumbai 400 020 is a company registered under the Companies, 1956 and under Section 3 of the Insurance Act, 1938 carrying on General Insurance business.

10. Thereafter it raised legal objections that complainant has no cause of action and locus standi to file the complaint. The complaint is not maintainable. The complainant has attempted to misguide and mislead this Forum. He has suppressed material facts from this Forum. That opposite party is having no branch office within the jurisdiction of this Forum. Complaint is not maintainable. It is liable to be dismissed on this score. That the complainant has failed to disclose any legal and valid cause of action against it. That the complaint does not qualify the ingredients of a valid complaint as envisaged in Section 2(1)(c) of the 'Act', because there is not a single allegation which leads the opposite party to either deficiency of service or that of any unfair trade practice. That the complainant has created a false story in his complaint to mislead this Forum by false and frivolous facts and circumstances. That the complainant has no cause of action to file the complaint. That intricate question of law and facts are involved. The parties have to lead evidence by examining and cross examining the witnesses. The process under the 'Act' is summary in nature. The complainant, if so advised, may file civil suit. That the opposite party has already provided services to the complainant. That neither there is any deficiency in service on the part of opposite party nor opposite party has indulged in unfair trade practice. That the complainant is stopped from filing the complaint by his own acts, conduct, omission and acquiescence. That the opposite party float the insurance scheme for the public in general and after prior approval of the Insurance Regulatory & Development Authority (IRDA). All the terms and conditions of the respective policies are set by IRDA constituted under IRDA Act, 1999 and Insurance Act, 1938. That complaint is false, frivolous and vexatious in nature. It has been filed in order to cause undue harassment to the opposite party and that complainant himself violated the terms and conditions of the policy.

11. On Merits, it is admitted that complainant is owner of the vehicle in question and he got it insured from the opposite party after going through the entire terms and conditions of the policy. The opposite party issued policy alongwith entire conditions of the policy. It is admitted that complainant lodged complaint but it is pleaded that as per claim the date of accident is mentioned as 15-7-2015 but now the complainant has revealed that accident occurred on 16-7-2015. The time of accident is also wrongly stated before this Forum.

12. It is also pleaded that on receipt of claim from the complainant, the opposite party appointed surveyor namely Er. Rajesh Garg to assess the loss and also verify the documents and cause of accident and other relevant things to finalize the claim. Er. Rajesh Garg surveyor and loss assessor assessed the loss as Rs. 4,70,000/- against the estimates of the vehicle as per provisions of Insurance Law. The opposite party after receiving report of the surveyor alongwith documents, scrutinized the file and found that the vehicle in question was used for other purpose as mentioned in the policy. At the relevant time, the vehicle in question was used for sand which is not permitted under the policy. The policy purchased by the complainant is against the vehicle under Misc. and Special Types of vehicles Package Policy and premium was charged for the same. As such, the claim does not fall within the ambit of insurance as granted by the opposite party. It comes under Exclusion Clause. As such, opposite party repudiated the claim of the complainant as per terms and conditions of the policy. All the other averments are denied. In the end, the opposite party prayed for dismissal of complaint.

    The opposite party No. 2 has also quoted some case law in the written reply, the reference of which is not considered necessary at this stage.

13. Parties were afforded opportunity to produce evidence. In support of his claim, complainant has tendered into evidence his affidavit dated 20-1-2016 (Ex. C-1), affidavit dated 20-1-2016 of Gursewak Singh (Ex. C-2), photocopy of certificate (Ex. C-3), photocopy of address of HDFC, Bathinda (Ex. C-4), photocopy of repayment schedule (Ex. C-5), photocopy of loan agreement letter (Ex. C-6), photocopy of policy (Ex. C-7), photocopy of FIR (Ex. C-8), photocopy of estimate (Ex. C-9 & Ex. C-10), photocopy of repudiation letter (Ex. C-11), photocopy of driving licence of Gursewak Singh (Ex. C-12) and photocopy of R.C. of tractor (Ex. C-13).

14. In order to rebut this evidence, opposite party No. 2 has tendered into evidence photocopy of letter dated 24-8-2015 alongwith claim documents (Ex. OP-2/1), affidavit dated 2-3-2016 of Pankaj Kumar (Ex. OP-2/2) and photocopy of terms and conditions (Ex. OP-2/3).

15. We have heard learned counsel for the parties and gone through the record.

16. Learned counsel for complainant has reiterated his stand as set up in the complaint and as detailed above. It is further submitted by learned counsel for the complainant that material facts are not in controversy. It is not disputed that complainant is the owner of tractor in question. He got it insured with the opposite party. It is also not disputed that tractor met with an accident and the complainant lodged claim. The opposite party repudiated the claim of the complainant vide letter dated 24-08-2015 (Ex. C-11). The reason for repudiating the claim recorded in this letter is that the vehicle was being used for carrying sand on hire whereas the policy was for the purpose of Agriculture and Forestry Vehicle only. As the opposite party has repudiated the claim on the ground that tractor was being used for the purpose other than Agriculture, this fact was to be proved by the opposite party but there is no evidence from the side of the opposite party to prove this fact. It is also not disputed that opposite party appointed Er. Rajesh Garg, Surveyor & Loss Assessor. The opposite party has also placed on record copy of letter dated 24-08-2015 alongwith claim documents as Ex. OP-2/1 consisting 28 pages. A perusal of this record will prove that conclusion of the opposite party is simply on the basis of some news clippings as well as photographs but news clippings and photographs cannot be used as substantive evidence. The report submitted by Er. Rajesh Garg is also made part of this record. In this report also, it is simply mentioned that as per the investigation report and from spot photos, the vehicle was loaded with the sand but there is no other evidence collected by the surveyor to jump to this conclusion. As per complainant, accident took place on early morning on 16-7-2015. FIR was registered on the same day. There is nothing mentioned in the FIR also that tractor was loaded with sand or any other commercial goods. There is no police report to the effect that tractor was loaded with sand or any commercial goods. Therefore, conclusion of the surveyor that tractor was being used for commercial purposes is without evidence. It is to be rejected out-rightly. When this conclusion is rejected, there is no hurdle in releasing the claim of the complainant.

    The surveyor appointed by the opposite party has assessed the loss to the extent of Rs. 4,70,000/- (After deducting Rs. 25,485/- as salvage). Therefore, this assessed loss is more than 75% of the IDV i.e. Rs. 5,70,000/-. The opposite party has repudiated the claim without any justification which amounts to deficiency in service. The complainant is entitled to interest @ 18% P.A. from the date of accident. The complainant is also entitled to compensation amounting to Rs. 1.00 lacs for unnecessary harassment and litigation expenses amounting to Rs. 25,000/-. The complaint be accepted.

17. On the other hand, learned counsel for opposite party No. 2 has reiterated his stand as taken in the written reply. It is further submitted by learned counsel for opposite party No. 2 that opposite party No. 2 fairly admitted material facts. The factum of insurance and factum of accident are not disputed. The assessed loss to the vehicle is also not disputed but the claim of the complainant is based on policy document, copy of which is Ex. OP-2/3. The complainant is bound by terms and conditions detailed in this policy document. There are some limitations regarding use of vehicle which are detailed in this policy. The complainant has obtained policy under “Agriculture and Forestry Vehicles” policy and the there is limitation for use of vehicle. The vehicle is to be used only for agriculture and forestry purposes and not for any other purpose. The surveyor was appointed to investigate the cause of accident as well as loss to the vehicle. The surveyor has collected evidence which included newspaper clippings and photographs of the vehicle after accident. As per news paper clippings, the truck was being used for carrying sand which is not agriculture purpose rather commercial purpose. Some other circumstances will also corroborate the conclusion of the surveyor. The complainant is resident of Bathinda. The accident took place in the area of Jalalabad. It is mentioned that driver has gone to Fazilka for domestic purposes on 15-7-2015. It is highly improbable that driver will go to Fazlika for domestic work on tractor trolly which is solely meant for agriculture purposes. The accident took place at about 1.30 a.m. It is also highly improbable that driver will come back at some odd hours except in case he was doing some illegal activities. Therefore, this fact corroborate the conclusion arrived at by surveyor. The evidence proves that complainant has used the vehicle for the purpose which was not permissible under the policy. The opposite party has rightly repudiated the claim. The complaint is liable to be dismissed.

18. We have carefully gone through the record and have considered the rival contentions.

19. The undisputed facts are that the complainant is the owner of the vehicle in question. He got his vehicle insured with the opposite parties under the policy of “Agriculture and Forestry Vehicles”. The said vehicle met with an accident. Complainant lodged claim which has been repudiated by opposite party No. 2 after getting report of the surveyor. The opposite party No. 2 has placed on record copy of letter dated 24-08-2015. A perusal of this letter reveals that claim has been repudiated by observing that vehicle was being used against limitation as to use. It is mentioned that vehicle was being used for carrying sand on hire. Therefore the opposite party was to prove that the vehicle was being used for carrying sand on hire. There is no evidence except some photographs and new paper clippings. It is well settled that photographs (even not duly approved) and newspaper clippings cannot be treated as substantive evidence until corroborated by some other evidence. The name of the person for whom the sand was being carried is not mentioned. The name of the person who hired the tractor for carrying sand is not mentioned. The photographs does not show that vehicle met with an accident while carrying sand. The FIR was got recorded on the statement of driver Gursewak Singh. In this FIR there is no reference that vehicle was carrying sand at the time of accident. There is no police investigation to the effect that vehicle was being used for carrying sand. In these circumstances, the conclusion of the surveyor is without any evidence and is not accepted. When this conclusion of the surveyor is disbelieved, the only result is that repudiation of claim is unjustified.

20. Now the next point for determination is regarding amount for which the complainant is entitled. The vehicle was insured w.e.f. 09-02-2015 to 08-02-2016 for the IDV of Rs. 5,70,000/-. It is well settled that IDV does not change for the whole year period till the policy is operative i.e. it will remain same from 9-2-2015 to 8-2-2016. The surveyor appointed by the opposite party Er. Rajesh Garg has also assessed the loss. Survey report in this regard is also on the file alongwith other documents. As per this report, total assessed loss is Rs.4,70,000/- less Rs. 25,485/- on account of salvage. Therefore the loss assessed is more than 75% of the IDV. Hence, the complainant is entitled to the IDV of the vehicle.

21. In taking this view, we are supported from a case law titled as United India Insurance Company Vs. Prabhdeep Kaur Bindra decided on 17-6-2014 wherein the Hon'ble State Commission, U.T. Chandigarh in a case where the total repair cost was Rs. 8,46,050/- which was more than 75% of the IDV, was pleased to observe that :-

    “According to GR.8 of the Indian Motor Tariff, the vehicle would be considered to be case of CTL (Constructive Total Loss), where the aggregate cost of retrieval and/or repair subject to the terms and conditions of the Insurance Policy exceeds 75% of the IDV. The insurer was required to treat the vehicle as total loss. The surveyor could not reduce the amount of repairs by making deductions, in respect of various parts.”

22. In the result, this complaint is partly accepted with Rs. 10,000/- as cost and compensation against opposite parties No. 2 & 3. The opposite parties No. 2 & 3 are directed to pay Rs. 5,70,000/- being IDV of the vehicle in question to the complainant with interest @ 9% p.a. w.e.f. 24-08-2015 (date of repudiation of claim) till payment. However, the complainant is bound to execute the documents, if any, required by the opposite parties for indemnifying the claim.

23. The compliance of this order be made by the opposite parties jointly and severally within 45 days from the date of receipt of copy of this order.

24. The complaint could not be decided within the statutory period due to heavy pendency of cases.

25. Copy of order be sent to the parties concerned free of cost and file be consigned to the record.

    Announced :

    15-09-2016

    (M.P.Singh Pahwa )

    President

     

     

     

    (Jarnail Singh )

    Member