Punjab

Sangrur

CC/478/2019

Hardeep Singh - Complainant(s)

Versus

HDFC ERGO General Insurance Limited - Opp.Party(s)

Sh.Ashish Kumar

04 Jan 2024

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, SANGRUR .

 

                                                                        Complaint No. 478

 Instituted on:   09.09.2019

                                                                        Decided on:     04.01.2024

Hardeep Singh son of Ajmer Singh, resident of Chhlan Patti, Ward No.01, Bhawanigarh, District Sangrur 148026.

                                                         …. Complainant 

                                                 Versus

1.     HDFC ERGO General Insurance Company Ltd. Branch : 1st Floor, SCO 11, Chhoti Baradari, Patiala through its Manager 147001.

2.     HDFC ERGO General Insurance Company Limited, Fifth Floor, Surya Tower, 88, Mall Road, Ludhiana through its Authorised Signatory 141001.

                                                        ..Opposite parties

 

For the complainant  :       Shri Ashish Kumar Adv.

For the OPs              :       Shri Sanjeev Goyal, Adv.

 

 

Quorum                                          

Jot Naranjan Singh Gill, President

                        Kanwaljeet Singh, Member

 

ORDER

JOT NARANJAN SINGH GILL, PRESIDENT:

 

1.             Complainant has preferred the present complaint against the opposite parties on the ground that the complainant purchased a truck bearing registration number PB-13-BD-5773 by raising the loan from HDFC Bank, Sangrur and thereafter he availed services of the OP by getting insured his truck bearing registration number PB-13-BD-5773 from OP number 1 for Rs.26,12,500/- by paying the requisite premium of Rs.68,300/- and the OPs issued insurance policy for the same which was valid for the period from 31.07.2018 to 30.07.2019. Further case of complainant is that on 1.4.2019, the said truck was proceeding to Pulivendula from Thathireddypalli village and Malkit Singh driver of the vehicle lost his control on banana bunches loaded lorry and fell down on right side of the road and at that time the driver of the vehicle was driving the vehicle in a rash and negligent manner. A criminal case was registered against the driver of the vehicle vide FIR number 95 under section 337 IPC  dated 2.4.2019 at P.S. Lingala, District Y.S.R. Kadapa. Further case of the complainant is that intimation of accident was given to the OPs and the vehicle in question was got repaired by spending an amount of Rs.5,00,000/-. The grievance of the complainant is that the OPs vide letter dated 8.5.2019 repudiated the claim on the ground that three persons (including driver) were sitting inside the cabin and seven persons were sitting at the top of the cabin of the vehicle, which is said to be in violation of terms and conditions of the policy.  Further it is averred that in the present case the cause of accident is not overloading of the vehicle, rather the same was due to rash and negligent driving of the vehicle in question by its driver Malkiat Singh. The complainant requested the OPs to make the payment of claim, but the OPs wrongly repudiated the claim, which is said to be deficiency in service on the part of the OPs. Thus, the complainant has prayed that the OPs be directed to release the claim amount of Rs.5,00,000/- alongwith interest @ 18% per annum from the date of accident till realisation and further claimed compensation and litigation expenses.

2.             In reply filed by OPs, preliminary objections are taken up on the grounds that the complaint is false, frivolous, vague and vexatious in nature and has been made to injure the interest and reputation of the OPs, that the complainant has violated the terms and conditions of the policy as well as the provisions contained in the Motor Vehicles Act as at the time of accident three persons (including driver) were sitting inside the cabin and seven persons were sitting at the top of the cabin, however, the sitting capacity in cabin is only two (including driver).  However, insurance of the truck in question is admitted one. It is also admitted that the insured vehicle of the complainant met with an accident on 1.4.2019 when it was being driven by driver Malkit Singh.  Receipt of intimation is admitted and after receipt of intimation, the OPs appointed Mr. Pavan Kumar Reddy PV, surveyor and loss assessor to assess the loss and as per his report, at the time of accident, total 10 persons were travelling inside and outside cabin, the same has been recorded in the FIR. On merits, the insurance of the vehicle vide policy number 2315202369190300001 for the period from 31.7.2018 to 30.7.2019 is admitted and the policy in question was also sent to the complainant alongwith its terms and conditions. It is further submitted that policy was despatched to the insured on 23.08.2018 vide AWB No.35595214185. It is stated that the complainant brought the accidental vehicle at Bansal Automobiles, Patran for repairs, but it has been denied that he spent an amount of Rs.5,00,000/- on its repairs. It is stated that the claim has rightly been repudiated vide letter dated 8.7.2019 as the complainant violated the terms and conditions of the policy. The other allegations levelled in the complaint have been denied. Lastly, OPs have prayed for dismissal of the complaint with costs.

3.             The learned counsel for the complainant has produced Ex.C-1 to Ex.C-21 copies of documents and affidavit and closed evidence. On the other hand, the learned counsel for OPs has produced Ex.OPs/1 to Ex.OPs/4 copies of documents and affidavit and closed evidence.

4.             We have gone through the pleadings put in by  the parties along with their supporting documents with their valuable assistance. 

5.             The learned counsel for the complainant has argued that the complainant availed services of the OPs by getting insured his truck in question from OP number 1 for Rs.26,12,500/- by paying the requisite premium of Rs.68,300/- and the policy was valid for the period from 31.07.2018 to 30.07.2019, a copy of which on record is Ex.C-1. Further the learned counsel for complainant has argued that on 1.4.2019, the said vehicle when was proceeding to Pulivendula from Thathireddypalli Village and during this process Malkit Singh driver of the vehicle lost his control on banana bunches loaded lorry and fell down on right side of the road and at that time the driver of the vehicle was driving the vehicle in a rash and negligent manner. A criminal case was registered against the driver of the vehicle vide FIR number 95 u/s337 IPC dated 2.4.2019 at PS Lingala, District Y.S.R. Kadapa as is evident from the copy of FIR on record Ex.C-2. Further case of the complainant is that intimation of accident was given to the OPs and the vehicle in question was got repaired by spending an amount of about Rs.5,00,000/-. Further the learned counsel for the complainant has argued that OPs vide letter dated 08.07.2019 repudiated the claim of the complainant on the ground that three persons (including driver) were sitting inside the cabin and seven persons were sitting at the top of the cabin of the vehicle, which is said to be in violation of Motor Vehicle Act, 1988 and of terms and conditions of the policy and the copy of repudiation letter on record is Ex.C-20.  Further the learned counsel has argued that in the present case the cause of accident is not overloading of the vehicle, rather the same was due to rash and negligent driving of the vehicle in question by its driver Malkiat Singh. Though the complainant requested  OPs to make the payment of claim, but OPs wrongly repudiated the rightful claim, which is said to be deficiency in service on the part of the OPs and thus has prayed for acceptance of the complaint.

6.             On the other hand, the learned counsel for the OPs has contended vehemently that  the claim has rightly been repudiated because at the time of accident, total 10 persons (including driver) were travelling inside and outside cabin of the truck in question, which is a clear cut violations of the terms and conditions of the policy as well as of the Motor Vehicle Act,1988. It is contended that the complainant brought the accidental vehicle at Bansal Automobiles, Patran for repairs, but it has been denied that he spent an amount of Rs.5,00,000/- on its repairs. It is stated that the claim has rightly been repudiated vide letter dated 8.7.2019 (Ex.OP1&2/3) as the complainant violated the terms and conditions of the policy. Lastly the Ops have prayed for dismissal of the complaint with costs.

7.             At the outset, it is an admitted fact between the parties that the vehicle of the complainant was insured with the OPs and the loss/damage of the vehicle during the subsistence of the insurance policy is also not disputed.   In the present case, the OPs have repudiated the claim of the complainant on the ground that during survey it was found that at the time of accident, total 10 persons (including driver) were travelling inside and outside of the cabin of the truck in question, which has also been recorded in the FIR. In the instant case the accident was in fact caused on account of rash and negligent driving of the offending vehicle by its driver, against whom a criminal case vide FIR number 95 under section 337 IPC dated 2.4.2019 was registered. It is worth mentioning here that the complainant has alleged that he spent an amount of Rs.5,00,000/- on the repairs of the truck in question and the complainant has brought on record the copies of various bills/receipts which are on record as Ex.C-3 to Ex.C-15.  On the other hand, the OPs have produced on record only copy of the spot survey report Ex.OP1&2/2 of Pavan Kumar Reddy PV dated 3.4.2019, whereas no final survey report has been produced on record to show exact loss of the vehicle from where it could be ascertained about the exact loss of the vehicle. The OPs have also not produced on record any evidence to show actual despatch and delivery of the terms and conditions of the policy to the complainant.

8.             To support the case of complainant, the learned counsel for the complainant has cited Lakhmi Chand versus Reliance General Insurance 2016(2) CPJ (3)(Supreme Court), wherein in a similar case five persons were travelling in goods carrying vehicle which has capacity of 1+1 and the vehicle met with 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 as the 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 further it was held that the insurer to avoid liability, the breach of the policy must be so fundamental in nature that it bring the contract to an end.  As such, we are of the considered opinion that in view of the law laid down by the Hon’ble Apex Court of India, the OP insurance company cannot deny its liability to pay for the insurance claim on the above mentioned grounds.

9.             Further reliance can be placed on Oriental Insurance Company  Branch Office at Hardaspura versus Bhim Singh, First Appeal No.204 of 2018 , decided on 26.03.2021 (HP State Commission), wherein the claim of the complainant was repudiated by the OP insurance company on the ground that the vehicle in question was a goods carrier and at the time of the accident 25 gratuitous passengers were present in the vehicle against the sitting capacity of 2. As regards carrying more passengers than the sitting capacity of the vehicle is concerned, it may be noticed that it is by now a settled law that in case of over loading, the insurance company cannot totally repudiate the claim of the insured.  The insurance company is required to settle the claim in such situation on non standard basis. In this context, reference can be made to the decision of the Hon’ble National Commission in New India Assurance Company Limited versus Narayan Prasad Appaprasad Pathak (2006) 2 CPJ 144 (NC), wherein it has been laid down that when there was overloading of the vehicle, beyond licensed capacity, the claim is to be paid on non standard basis @ 75% of the admissible claim. This decision was approved by the Hon’ble Supreme Court in Amalendu Sahoo vs. OIC 2010(4) SCC 536. Thus, repudiation of the claim on the ground of over loading is clearly not correct. In view of this, the learned forum below has rightly rejected this ground and awarded compensation in favour of the complainant on non-standard basis. As such, we are of the considered opinion that the OPs are liable to pay to the complainant the claim amount at 75% as held by the Hon’ble Supreme Court of India.

10.           Now coming to the quantum of compensation payable to the complainant. The complainant has produced on record Ex.C-3 to Ex.C-15 the copies of estimate/bills, a total of which comes to Rs.4,73,993/- and if calculated, 75% of this amount is Rs.3,55,495/-. As such, we are of the considered opinion that the OPs are liable to pay to the complainant an amount of Rs.3,55,495/-.

11.           In view of our above discussion, we allow the complaint and direct OPs to pay to the complainant an amount of Rs.3,55,495/- being the claim amount alongwith interest @ 6% per annum from the date of filing of the present complaint i.e. 09.09.2019 till its realisation in full. We further direct them to pay to the complainant an amount of Rs.5000/- as compensation for mental tension, agony and harassment and an amount of Rs.5000/- as litigation expenses. This order shall be complied with by OPs within a period of sixty days of receipt of copy of this order.

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

13.           Copy of this order be supplied to the parties free of cost. File be consigned to the records after its due compliance.  

                        Pronounced.

                        January 4, 2024.