Haryana

Karnal

CC/724/2019

M/s Garg Cement Agencies - Complainant(s)

Versus

HDFC Ergo - Opp.Party(s)

Naveen Khetarpal

05 Jan 2022

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL  COMMISSION, KARNAL.

 

                                                         Complaint No. 724 of 2019

                                                          Date of instt.25.10.2019

                                                          Date of Decision 05.01.2022

 

M/s Garg Cement Agencies, through its Prop. Ajay Kumar Garg, age 56 years son of Shri Jag Mohan Lal Garg, resident of Mohalla Ganti, Gram Rural, Shamli, (Uttar Pradesh)-247778.

                                                 …….Complainant.

                                              Versus

 

1.     HDFC Ergo, Second floor, SCO no.237, Sector-12, Urban Estate, Karnal, through its Manager.

 

2      HDB Financial Services, adjoining wine shop, sector-12, Karnal.

 

                                                                      …..Opposite Parties.

 

Complaint Under section 12 of the Consumer Protection Act, 1986 as amended Under Section 35 of Consumer Protection Act, 2019.

 

Before   Sh. Jaswant Singh……President.       

      Sh. Vineet Kaushik…….Member

 

 Argued by: Shri Manjeet Kamboj, counsel for complainant.

                    Shri Sanjeev Vohra, counsel for OP no.1.

                    Shri Dheeraj Sachdeva, counsel for OP no.2.

                    

                    (Jaswant Singh President)

ORDER:   

                

                        The complainant has filed the present complaint under Section 12 of the Consumer Protection Act, 1986 as after amendment Under Section 35 of Consumer Protection Act, 2019 against the opposite parties (hereinafter referred to as ‘OPs’) on the averments that complainant purchased a TATA Ultra-1518 from SJS Motors (UP) who is the authorized dealer for the sale of vehicles manufactured by TATA Motors for a sum of Rs.16,66,500/-, vide invoice no.ISJSME1920000582 dated 28.06.2019 in the name of M/s Garg Cement Agencies through its Proprietor Ajay Kumar Garg to earn his livelihood. The abovesaid vehicle was financed by OP no.2 for a sum of Rs.15,48,450/-, vide loan no.8108853. The abovesaid vehicle was insured with OP no.1, vide policy no.2315202895500200001, valid from 28.06.2019 to 27.06.2020. It is averred that due to some payment adjustment by OP no.2, the delivery of the vehicle was given on 31.07.2019 and the temporary authorization certificate was issued to the complainant on 31.07.2019, which was valid upto 30.08.2019. Thereafter, complainant applied for registration certificate of the abovesaid vehicle and received the temporary registration certificate from RTO, Shamli on 06.08.2019, which was valid from 06.08.2019 to 05.09.2019. The complainant has also applied for the National permit on the same day, but the permit was received on 09.08.2019 issued by Transport Department, UP valid from 09.08.2019 to 08.08.2024. It is further averred that permit cannot be issued in the absence of registration certificate and the temporary registration certificate was issued on 06.08.2019, which was valid from 06.08.2019 to 05.09.2019 and the very next day, the complainant applied for National Permit which was received by the complainant on 09.08.2019.

2.             Further, on 06.08.2019, Bilal alias Rahul, the driver of the vehicle alongwith above vehicle proceeded for Panipat from Shamli for installation of GPS system in the above vehicle. He reached near Transport Panipat and made a telephonic call to the GPS installer, but his mobile was switched off. He asked by the complainant to stay there till next day to come back after installation of GPS. On 07.08.2019, he waited for sometime but the installer was not available, so the complainant asked him to come back. At about 9/9.30 p.m when he reached near village Nimbri, in the meantime another truck being driven by its driver in a rash and negligent manner become out of control and hit his vehicle in the vehicle of the complainant as a result of which the vehicle of the complainant was badly damaged. Thereafter, complainant informed the insurance company on the same day and complainant was asked to take his vehicle to M/s Metro Motors, Panipat for its cashless repair. As per the instruction of the OP no.1, the complainant took his vehicle to M/s Metro Motors, Panipat and the OP no.1 sent his surveyor who inspected the vehicle and asked the complainant to furnish all the requisite documents. As per the instructions of the surveyor, the complainant provided all relevant documents to the surveyor and accordingly Metro Motors Panipat prepared an estimate of Rs.4,00,000/-, which was acknowledged by the Surveyor. Thereafter, complainant requested the OP no.1 for settlement of the claim but OP no.1 lingered on the matter on one pretext or the other and lastly repudiated the claim of the complainant, vide letter dated 01.10.2019 on the false and flimsy ground. Thereafter, under the constraint circumstances, the complainant took the delivery of his vehicle from M/s Metro Motors by paying an amount of Rs.3,45,000/-. Thereafter, complainant visited the office of OP no.1 several times and request for reimbursement of the said amount but OP no.1 did not pay any heed to the request of complainant. In this way there was deficiency in service on the part of the OP no.1. Hence complainant filed the present complaint.

3.             On notice, OP no.1 appeared and filed its written version stating therein that as bare perusal of the documents, proves that the permit of the vehicle was found to be invalid  on the date of alleged accident and as per section 66 of Motor Vehicle Act no vehicle can ply on public place without a valid permit, hence the claim under the policy was rightly repudiated, vide letter dated 01.10.2019 on the ground that permit submitted by insured was not valid, on the date and at the time of accident. The date of alleged accident i.e. 07.08.2019 the insured vehicle was being plied on the road without any permit, which constituted fundamental violation of policy condition as well as Motor Vehicle Act 1988. It is further pleaded that the vehicle in question insured with the insurance company from 28.06.2019 to 27.06.2020, vide policy no.2315202895500200001, subject to the provision of IMT and policy conditions, which was never disputed by the complainant. It is further pleaded that after receiving the intimation, OP no.1 without any delay processed the claim of the complainant and duly appointed the IRDAI approved surveyor namely Manmeet Singh Makkaer, who submitted its report and the surveyor in his report clearly mentioned that “Permit was applied after the accident.” Thus, after the verification of the submitted documents and after the perusal of survey report the claim of the complainant was repudiated. There is no deficiency in service on the part of the OP no.1. The other allegations made in the complaint have been denied and prayed for dismissal of the complaint.

4.             OP no.2 in its written version raising preliminary objections with regard to maintainability; locus standi and jurisdiction. On merits, it is pleaded that complainant approached the OP no.2 for loan of commercial vehicle for the purchase of vehicle Tata LPT 1518 and accordingly a written agreement executed between the parties and an amount of Rs.1548450/-was disbursed to the complainant, vide loan no.8108853 on 09.07.2019 loan amount was to be repaid in 36 monthly installment of Rs.56253/- to be paid till 10.06.2022. It is further pleaded that the claim of the complainant is against the OP no.1 only in the entire complaint and also if this Forum (now Commission) allows the complaint of the complainant against the OP no.1 in that eventuality the claim is to be paid to the answering OP being the hypothecate owner of the vehicle. There is no deficiency in service on the part of the OP no.2 and prayed for dismissal of the complaint.

5.             Parties then led their respective evidence.

6.             Complainant tendered into evidence affidavit of Ajay Kumar Garg prop. Ex.CW1/A, Tax Invoice Ex.C1, copy of loan statement Ex.C2, copy of temporary certificate of registration Ex.C3, copy of temporary authorization of registration certificate Ex.C4, copy of National permit Ex.C5, copy of R.C. Ex.C6, insurance policy Ex.C7, repudiation letter Ex.C8, tax invoice Ex.C9, copy of letter of driver Ex.C10 and closed the evidence on 11.02.2021 by suffering separate statement.

7.             OP no.1 tendered into evidence affidavit of Shweta Pokhriyal Ex.RW1/A, affidavit of Manmeet Singh Makkar Surveyor and Loss Assessor Ex.RW1/B, repudiation letter dated 01.10.2019 Ex.R1, permit valid upto 09.08.2019 to 08.08.2024 Ex.R2, permit Ex.R3, survey report Ex.R4, insurance policy Ex.R5 and closed the evidence on 26.10.2021 by suffering separate statement.

8.             OP no.2 tendered into evidence affidavit Ex.OPW2/A, statement of account dated 17.12.2019 Ex.OP1, loan agreement Ex.OP2, statement of account dated 12.08.2021 Ex.OP3 and closed the evidence on 12.08.2021 by suffering separate statement.

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

10.           Learned counsel for complainant, while reiterating the contents of the complaint, has vehemently argued on 06.08.2019  the driver of the complainant went to Panipat for installation of GPS system and at that time the vehicle in question was empty and  the empty vehicle has no need for the national permit. The complainant spent Rs.3,45,000/- for repair of the vehicle. The claim of the complainant has been repudiated by the OP no.1 on the false and frivolous ground. Thus, the act of the OP no.1 amounts to deficiency in service and prayed for allowing the complaint. Learned counsel for complainant relied upon the judgment of Hon’ble Punjab and Haryana High Court The Thanesar Cooperative Marketing cum Processing Society Ltd. Versus Ram Niwas and others (bunch of the cases) decided on 29.11.2012

11.           Per-contra, learned counsel for OP no.1, while reiterating the contents of written version, has vehemently argued that the permit of the vehicle in question was found to be invalid on the date of alleged accident and as per section 66 of Motor Vehicle Act no vehicle can ply on public place without a valid permit, hence the claim under the policy was rightly repudiated, vide letter dated 01.10.2019 on the ground that permit submitted by insured was not valid, on the date and at the time of accident. The date of alleged accident i.e. 07.08.2019 the insured vehicle was being plied on the road without any permit, which constitute fundamental violation of policy condition as well as Motor Vehicle Act 1988. Hence, prayed for dismissal of the complaint. Learned counsel for OP no.1 relied upon the judgment of Hon’ble Supreme Court Amrit Paul Singh and Anr. Versus TATA AIG General Insurance in civil appeal no.2253 of 2018 date of decision 17.05.2018 and Amritpal and another Versus Meetu Bai and others 2019 ACJ 2806 decided on 08.02.2019 by Hon’ble Punjab and Haryana High Court.

12.           Learned counsel for OP no.2 argued that complainant approached the OP no.2 for loan of commercial vehicle for the purchase of vehicle Tata LPT 1518 and accordingly an amount of Rs.1548450/-was disbursed to the complainant on 09.07.2019 and loan amount was to be repaid in 36 monthly installments. He further argued that the claim of the complainant is against the OP no.1 only in the entire complaint and also if this Forum (now Commission) allows the complaint of the complainant against the OP no.1 in that eventuality the claim is to be paid to the answering OP being the hypothecate owner of the vehicle. There is no deficiency in service on the part of the OP no.2.

13.           Admittedly, the vehicle in question was met with an accident during subsistence of the insurance policy. The claim of the complainant has been repudiated by the OP no.1, vide letter dated 01.10.2019 Ex.R1 on the following ground:-

        “Clause 66 lays down that no motor vehicle shall be used as a transport vehicle without a permit issued by transport authorities to use the vehicle as such in a public place. It is also provides for exemption of certain vehicle from the operation of the provisions of this clause on certain conditions and for usage for certain specific purpose”.

In the light of the above, we regret to inform you that we would not be able to honor our liability for the abovesaid loss and are repudiating the above claim and closing the claim as no claim in our records”.

14.           The claim of the complainant has been repudiated by the OP on the ground that at the time of accident the vehicle in question was plying on public place without route permit. The necessity of the permits defined in Section 66 of Motor Vehicles Act, 1988.

15.           It is not disputed that at the time of accident the vehicle in question was empty. Now the question for consideration arises before us whether the route permit is necessary or not if any transport vehicle while proceeding empty to any place to another?

16.           As per Section 66 of sub section 3(p) if any transport vehicle while proceeding empty to any place for purpose of repair the provisions sub section (1) of Section 66 of Motor Vehicles Act, 1988  shall not apply.

17.           It is admitted fact that at the time of alleged accident the driver of the complainant had gone to Panipat for installation of the GPS system in the vehicle in question and at that time vehicle was empty. Hence, in view of Section 66 of sub section 3(p) there was no necessity of the permits at that time.

18.           In Thanesar Cooperative’s case (supra) Hon’ble Punjab and Haryana High Court held that “the absence of route permit by itself cannot be a ground for denying liability of the insurance company, Section 149 of the Motor Vehicles Act contemplates a violation for purpose of permit and does not cover the case of unavailability of valid route permit at the relevant time of accident to exonerate the insurance company. The right of indemnity can therefore be denied and the orders are modified to allow for right of full indemnity and the insurer shall not have powers to recover any amount from the insured or the driver”. The above said authority is fully applicable to the facts and circumstances of the present case. Thus, in view of the facts and circumstances of the present complaint, we are of the considered view that the act of the OP no.1 amounts to deficiency in service and unfair trade practice while repudiating the claim of the complainant, which otherwise proved genuine one.

19.           The authorities cited by the learned counsel for OP no.1 are not applicable to the facts of the present case.

20.           As per the survey report dated 04.10.2019 Ex.R4, the loss has been assessed by the surveyor of the OP no.1 as Rs.3,14,990/- but complainant claimed Rs.3,45,000/-. Hence, the report of the surveyor will prevail. In this regard we are relying upon the authority 2(2008) CPJ paged 182 (NC), United India Insurance Co. Vs. Maya, wherein it has been held that a surveyor report should not be dismissed summarily as the surveyor is independent and qualified person under the relevant provision of Insurance Act, 1938. In view of this authority as well as the facts and circumstances of the case, we are of the considered view that the OP no.1 is liable to pay the loss assessed by the surveyor alongwith interest and litigation expenses.

21.           It is not the case of the OP no.2 that complainant has failed to repay the loan amount as per the terms and conditions of the loan agreement. As per the version of the complainant he is paying the loan amount regularly. It is also evident from the loan account statement Ex.OP2/3 that complainant is repaying the loan amount regularly. Hence, plea taken by the OP no.2 that claim amount if any be awarded in favour of the OP no.2 being the hypothecate owner of the vehicle has no force.

22.          Thus, as a sequel to above discussion, we allow the present complaint and direct the OP no.1 to pay Rs.3,14,990/- to the complainant with interest @ 9% per annum from the date of repudiation of the claim till its realization. We further direct the OP no.1 to pay Rs.20,000/- to the complainant on account of mental agony and harassment suffered by him and Rs.11,000/- for the litigation expense. 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: 05.01.2022                                                                    

                                                                      President,

                                                      District Consumer Disputes

                                                      Redressal Commission, Karnal.

 (Vineet Kaushik)              

      Member