Haryana

Ambala

CC/100/2019

Jaswinder Singh - Complainant(s)

Versus

HDFC - Opp.Party(s)

Akhil Gupta

07 Jul 2022

ORDER

 BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, AMBALA.

 

                                                                      Complaint case no.         :     100 of 2019

                                                          Date of Institution           :     01.04.2019

                                                          Date of decision     :     07.07.2022.

         

Jaswinder Singh age 42 years son of Shri Jagdish Chand resident of # 105/3, Jaggi Colony, Ambala City, Tehsil & District Ambala.  

                                                                             ……. Complainant.

                                      Versus

1.       HDFC ERGO General Insurance Company Limited, Corporate Office, Ist Floor, 165-166, Backbay Redamation, H T Parekh Marg, Churchgate, Mumbai-400020, through its Manager and authorized signatory.  

2.       HDFC ERGO General Insurance Company Limited, 2^nd Floor, SCO No.237, Sector 12, Karnal-132001, through its Manager and authorized signatory.

3.       HDFC Bank Limited, Ist Floor, Shingar Palace Complex, Nicholson Road, Ambala Cantt.

 

                                                                    ….…. Opposite Parties.

Before:        Smt. Neena Sandhu, President.

                   Smt. Ruby Sharma, Member,

Shri Vinod Kumar Sharma, Member.

 

Present:       Shri Rajesh Sharma, Advocate, counsel for the complainant.

Shri Mohinder Bindal, Advocate, counsel for OPs No.1 and 2.

Shri Sandeep Chauhan, Advocate, counsel for the OP No.3.

 

Order:        Smt. Neena Sandhu, President.

Complainant has filed this complaint under Section 12 of the Consumer Protection Act, 1986 (hereinafter referred to as ‘the Act’) against the Opposite Parties (hereinafter referred to as ‘OPs’) praying for issuance of following directions to them:-

1. To pay the claim amount of Rs.15,18,500/- and Rs.1,00,000/- for the repair of body of the truck alongwith interest @ 12% per annum from the date of accident till its realisation.
2. To pay Rs.20,000/-, as compensation for the mental agony and physical harassment suffered by the complainant and to pay Rs.5,000/- per day for the loss of the income.
3. To pay Rs.10,000/- as litigation expenses.

OR

Any other relief which this Hon’ble Commission may deem fit.                                     

2.                Brief facts of the case are that complainant is the registered owner of Truck Tipper LPT3118 TC bearing registration No.HR-37D-9199. Complainant purchased the said truck for earning his livelihood, after obtaining loan from OP No.3. The said truck was comprehensively insured with the OPs No.1 and 2 vide policy No.2315201841498500000 for the period from 28.06.2017 to 27.06.2018, for Insured Declared Value of Rs.29,50,000/-, for which complainant paid premium amount of Rs.55,000/-. Unfortunately on 24.5.2018, the said truck met with an accident, due to negligence of the driver of the bus, who turned his bus towards the side of the truck, while passing/crossing and truck of the complainant overturned after striking with the divider. At the time of accident, the truck was being driven by well-trained driver namely Jagtar Singh son of Shri Om Parkash, complainant employed him after verifying his driving license and after taking his driving test. Since, there was no fault on the part of the driver of the truck therefore, no police proceedings were initiated against him. Information regarding accident of the truck was given to the OPs No.1 and 2 immediately and lodged the claim No.C230018061981 with them. OPs appointed a surveyor Shri A.K.Chatwal to assess the loss. The said surveyor, after inspecting the truck at the spot directed the complainant to shift the truck to the Metro Motors, Mohra, Ambala the authorized workshop of Tata Motors. Accordingly, complainant shifted the truck to the Metro Motors, Mohra, Ambala by crane and paid a sum of Rs.3500 to Shana crane Service, Ambala City vide invoice No.61. The Metro Motors workshop prepared the estimate of repair in the presence of the surveyor, who after discussing the matter with the work manager of the said workshop assured the complainant that he will submit his report with the insurance company soon and asked the complainant to get his truck repaired. The employee of the workshop prepared the estimate bill for repair to the tune of Rs.17,18,500/- and demanded 50% of the estimated amount, in advance to carry out the repair. Vide letters dated 20.6.2018, 18.07.2018, 08.08.2018 and 20.08.2018, said workshop demanded 50% of the estimated amount in advance and complainant brought this fact to the notice of the surveyor. OPs No.1 and 2 demanded certain papers, complainant supplied all the requisite documents to them, inspite of that they did not pay the amount demanded by the workshop. On one hand complainant stopped earning due to damage of his truck and on the other hand financer bank started pressurizing him to pay the loan amount. Complainant served a legal notice upon OPs No.1 and 2, but all in vain. Vide letter dated 15.10.2018, OPs No.1 and 2 denied to pay the claim amount on the flimsy ground of overloading. As the complainant was short of money and was unable to pay the repair charges of the said workshop, so he shifted his truck to Pawan Motors, Motor Market, Ambala City, for mechanical job.  Complainant haired the services of Manjit for repair of chassis and Kamaani, hired the service of Satpal for repair of the body of the truck and denting painting was done by Surinder. Complainant again requested the OPs No.1 and 2, to pay the claim amount but they decline to pay the claim amount.  By not paying the genuine claim of the complainant, the OPs have committed deficiency in service.   Hence, the present complaint.

3.                Upon notice, OPs No.1 and 2, appeared and filed written version, raised preliminary objections with regard to maintainability, not come with clean hands and suppressed the material facts etc.  On merits, it is stated that the vehicle in question was duly insured with the OPs No.1 and 2 vide policy No. 2315200026226200001 for the period from 28.06.2017 to 27.06.2018.  After receiving the information regarding the accident of the said truck, IRDA licensed surveyor Chhatwal and associates was appointed to inspect and assess the loss. Spot survey was carried out by the surveyor Chhatwal and associates and thereafter verification was carried out. During verification it was noted that as per document, i.e load challan, bill of laden goods and weighing slop, the laden weight of the vehicle at the time of accident was 43670 KG against load carrying capacity of the insured vehicle i.e 31000 KG. The truck was damaged while avoiding a bus, hit into divider and got over turned is directly attributable to the over loading of the vehicle, which amounts to gross violations of terms and conditions of the policy, thus no amount is payable to the complainant.  Hence, the present complaint filed by the complainant against the answering OPs, deserves dismissal with costs. 

4.                Upon notice, OP No.3, appeared and filed written version, raised preliminary objections with regard to maintainability, locus standi and concealed the true and material facts etc.  On merits, it is stated that complainant had also filed a civil suit against the answering OP for permanent injunction, however no stay was granted to him by the Hon’ble Court. On 29.09.2018, answering OP obtained the order from the Hon’ble Debt Recovery Tribunal Chandigarh to take custody of the truck bearing registration NO.HR-37D-9199, after due procedure answering OP filed an application before the Hon’ble Debt Recovery Tribunal, Chandigarh for permission for the sale of the vehicle and after getting permission answering OP will be legally entitled to sell the said vehicle, to satisfy the outstanding loan amount against the complainant and in case after the sale, the outstanding loan amount is not satisfied then answering OP further has a right to recover the remaining amount from the complainant by filing recovery suit against him. Rest of the allegations levelled by the complainant were denied and prayer has been made for dismissal of the present complaint filed by the complainant against it with costs.

5.                Learned counsel for the complainant tendered affidavit of complainant as Annexure CW1/A along with documents Annexure C-1 to C-44 and closed the evidence of the complainant. On the other hand, learned counsel for the OPs No.1 and 2 tendered affidavit of Shri Manoj Kumar Prajapati, authorized signatory, HDFC ERGO General Insurance Company Limited, Noida and affidavit of Shri A.K.Chatwal, authorized signatory for M/s Chatwal & Associates Insurance Surveyors & Loss Assessors, having office at # 135, Ajit Nagar, Ambala Cantt. and affidavit of Shri Piyush Sharma, Insurance Investigator, resident of 288-A, Talwandi, Kota Rajas­than as Annexure OPA to OPC alongwith documents Annexure OP-1 to OP-11 closed the evidence on behalf of OPs No.1 and 2. Learned counsel for the OP No.3 tendered affidavit of Shri Gagandeep Kandhari, aged about 37 years, Legal Manager HDFC Bank Limited, Ambala Cantt., as Annexure OP3/A alongwith documents Annexure OP3/1 to OP3/4 and closed the evidence on behalf of OP No.3.

6.                We have heard the learned counsel for the parties and have also gone through the record very carefully.

7.                The learned counsel for the complainant has submitted that the duly insured truck of the complainant met with an accident on 24.05.2018, it overturned and got damaged. It happened not due to the negligence of the driver but to avoid fatal accident. Complainant lodged the claim with the insurance company, vide letter dated 15.10.2018, Annexure C-1, it informed the complainant that the truck over turned due to over loading and as per the terms and conditions of the policy, claim is not payable and closed the claim file as “no claim”. He further submitted that in view of the guidelines issued by the IRDA and the law laid by the Superior Courts in catena of judgements that in case of overloading of vehicle beyond licence carrying capacity, the insurance company shall settle the claim on non-standard basis, as such, the OPs No.1 and 2 are liable to indemnify the complainant for the loss suffered by him. In support of this contention learned counsel for the complainant has placed reliance upon the judgement of Hon’ble Supreme Court of India in the case of Amalendu Sahoo Vs. Oriental Insurance Company Limited, 2010(3) CLT 1 (SC)=(2010) 4SCC 536, wherein it has been held that in case of breach of condition of the insurance policy, the Insurance Company ought to have settled the claim on non- standard basis. He has also placed reliance on the judgement, passed by the Hon’ble National Commission, New Delhi in the case of Oriental Insurance Company Vs. Girbar Singh Nandwanshi & Anr. ,2015 (3) CPR 299, wherein it has been held that in case of overloading, claim has to be processed on non-standard basis. He further placed reliance upon the case of Oriental Insurance Company Limited & Another Vs. Rajak 2015 (3) CPR 375 (NC), in this case Hon’ble National Commission, has opined that “In case of overloading of vehicle beyond licence carrying capacity, claim is admissible upto 75% on non-standard basis.  In case of overloading of a vehicle beyond licensed carrying capacity, claim preferred by Insured should be paid @ 75% of admissible claim”

8.                On the contrary, the learned counsel for the OPs No.1 and 2 has submitted that at the time of accident the truck was overloaded, the truck driver while avoiding a bus, hit into divider and overturned, is directly attributable to the over-loading of the vehicle, which amounts to gross violation of terms and conditions of the policy, thus, no amount is payable to the complainant. In support of his version the learned counsel for the OPs No.1 and 2 has placed reliance upon the judgement of Hon’ble National Commission, New Delhi, in the case of New India Assurance Company Limited Vs. Parshotam Kumar, 2017 (1) CJT, wherein it has been held that the truck at the relevant time was being driven with the excessive load beyond the permissible quantity. Over-loading was direct cause of accident repudiation justified.  He has also placed reliance upon the judgement dated 26.10.2021, passed by the Hon’ble National Commission, New Delhi in the case of Kryfs Power Components Limited Vs. M/s Cholamandalam MS General Insurance Company Limited, wherein it has been held that the appellant violated the terms and conditions of the policy and the respondent cannot be held liable for the negligent act of the appellant.

9.                The learned counsel for the OP No.3 has submitted that complainant had taken a loan from OP No.3, for the purchase of truck in question and loan amount is still outstanding against the complainant. OP No.3 being the banker, has a right to recover the due amount from the complainant. Even otherwise, OPs No.1 and 2, being the insurer are liable to indemnify the complainant and not the Bank.  

10.              From the certificate of insurance cum policy schedule, Annexure C-2, it is clear that the truck of the complainant was duly insured with the OPs No.1 and 2 for the period from 28.06.2017 to 27.06.2018 for an IDV of Rs.29,50,000/-. The said truck met with an accident on 24.05.2018 and got damaged. Complainant lodged the claim with the OPs no.1 and 2. Vide letter dated 15.10.2018, Annexure C-1/OP-10, they informed the complainant that the truck overturned due to over loading and as per terms and conditions of the policy, claim is not payable and closed the claim file as ‘no claim’. From the certificate issued by the transport Department Haryana, Annexure C-4, it is clear that the truck in question is heavy goods vehicle having gross weight of 31000 kg, unladen weight of 7500 kg. From the perusal of load challan issued by Corner Dharam Khanta, Annexure OP-6, it is evident that at the time of accident the truck was carrying 43,670 KG of load, meaning thereby at the time of accident truck was over loaded, which amounts to violation of terms and conditions of the policy. It may be stated here that learned counsel for the parties have referred the cases, as mentioned above in support of their contention. Since, in the case of Amalendu Sahoo Vs. Oriental Insurance Company Limited, (Supra) the Hon’ble Supreme Court of India, has clearly held that any claim arising out of over-loading will be settled on non-standard basis to the extent of 75%, as such, this principal of law settled by the Supreme Court of India shall hold the field.  Not only as above, the case of the complainant is also supported by the IRDA guidelines in which it has been clearly stated that:-

 Sr.                              Description                     Percentage         of

 No.                                                                     settlement

 

      (i)                            Under declaration                      Deduct 3 years'

                                      of licensed                               difference in

                                     carrying capacity                        premium from the

                                         amount of claim

                                         or deduct 25% of

                                         claim amount,

                                         whichever is

                                         higher.

 

      (ii)                           Overloading of                          Pay claims not

                                     vehicles beyond                         exceeding 75% of

                                       licensed carrying                     admissible claim.

                                       capacity

 

      (iii)                         Any other breach                       Pay upto 75% of

                                      of warranty/                             admissible claim.

                                     condition of

                                      policy including

                                      limitation as to

                                     use

 

In this view of the matter, we hold that insurance company shall settle the claim of the complainant on non-standard basis by paying a sum equallent to 75% of the assessed claim. From the perusal of Surveyor’s report dated 18.12.2018, Annexure OP-4, it is evident that the surveyor has assessed the loss to the tune of Rs.2,67,259/-, as such, OPs No.1 and 2 are liable to pay Rs.2,00,444/- (Rs.2,67,259/- x 75%) to the complainant.

11.              It may be stated here that neither any specific allegations has been levelled by the complainant against the OP No.3, nor it has been proved, therefore, complaint filed by the complainant against the Bank is liable to be dismissed.

12.              In view of the aforesaid discussion, we hereby dismiss the present complaint against OP No.3 and partly allow the same against OPs No.1 and 2  and direct them, to pay Rs.2,00,444/-,  to the complainant, within the period of 45 days, failing which OPs No.1 and 2 shall pay interest @ 4% per annum from the date of filing of the complaint i.e 01.04.2019, till its realisation.  Parties are left to bear their own costs. Certified copy of the order be supplied to the parties concerned, forthwith, free of cost as permissible under Rules. File be indexed and consigned to the Record Room.

Announced on: 07.07.2022.

 

          (Vinod Kumar Sharma)  (Ruby Sharma)               (Neena Sandhu)

              Member                         Member                      President