PER:
Charanjit Singh, President;
1 The present complaint has been received from the District Consumer Disputes Redressal Commission Amritsar by the order of the Hon’ble State Consumer Disputes Redressal Commission Punjab, Chandigarh for its disposal.
2 The complainant has filed the present complaint by invoking the provisions of Consumer Protection Act under Section 12 & 13 against the opposite party on the allegations that the complainant is engaged in catering business and has purchased the TATA ACE bearing registration No. PB02CR9414 Chassis No. MAT445553GYH13373, engine No. HTYS91031 for an amount of Rs. 3,96,871/- on 17.10.2016 from Narain Automobiles, G.T. Road Amritsar. The said vehicle was being used by the complainant for carry his utensils, equipments and materials for catering business. The complainant has no other vehicle for carrying on his business activity and the complainant is using the said vehicle for earning his livelihood. The complainant got insured the said vehicle from the opposite party on dated 17.10.2016 and the vehicle was covered for a period of 17.7.2016 to 16.7.2017. There exists a relationship of consumer and service provider between the complainant and opposite party. During the period of the enforcement of the said policy, the insured vehicle met with an accident on 2.2.2017 with a stray cattle at Fatehgarh Churian Byepass Amritsar while it was being driven by Ravi Sharma son of Kishan Lal. The said vehicle got badly damaged in the said accident and the information regarding the said accident was duly passed on by the complainant immediately as per the terms and conditions of the policy. Thereafter, the damaged insured vehicle was taken to Narain Automobiles and the requisite documents of the claim i.e. claim form etc. were duly filled and submitted with the opposite party by the complainant. After receiving the claim form the opposite party sent its surveyor who made an estimate dated 14.2.2017 of the loss incurred by the insured vehicle and in his estimate has assessed the total loss to the insured vehicle at Rs. 1,13,823/-. Thereafter the complainant having completed all the requisite formalities kept waiting for any intimation on part of the opposite party regarding sanctioning of the insured amount and getting the repaired insured vehicle. To the utter surprise of the complainant was verbally informed by the opposite party that the claim of the complainant had been repudiated. Thereafter, the opposite party vide its letter dated 29th March, 2017 had formally repudiated the claim on the reason of misrepresentation of facts. The reason assigned by the opposite party while repudiating the claim of the complainant is arbitrary and the opposite party had failed to give any plausible and cogent reasons while repudiating the claim of the complainant. Due to such arbitrary and whimsical actions of the opposite party, the complainant was left with no other option but to get the insured vehicle repaired himself. The agency i.e. Narain Automobiles also told the complainant to remove the vehicle otherwise they will charge daily rent/ expenses for keeping the vehicle in their premises. The complainant took the insured vehicle and got it repaired from some private shops and had made the payments of the said bills himself. The complainant had incurred an amount of Rs. 83,061/- in total for getting the insured vehicle repaired from various shops. The complainant has prayed that the opposite parties be directed to
(a) Repay the expenses incurred by the complainant to get the insured vehicle in working order amounting to Rs. 83,061/-
(b) To make necessary repairs which could not be affected from outside the agency or to pay a sum of Rs. 50,000/- as the cost of value diminished by such arbitrary and whimsical action of the opposite party.
(c) To compensate the complainant with Rs. 25000/- on account of losses incurred as mental harassment and agony.
(d) To pay a sum of Rs. 15,000/- as costs of the present suit of this litigation.
3 After formal admission of the complaint, notice was issued to Opposite Party and opposite party appeared through counsel and has filed written version by interalia pleadings that the present complaint is not legally maintainable as the same is an abuse of process of law. The complainant has not come to this commission with clean hands and had suppressed the material facts from the notice of this commission. As per the averments of the complaint the present case is not maintainable as the vehicle in question is a commercial vehicle. So the jurisdiction of this commission is barred. The complainant has concealed and has suppressed the material and relevant facts of the case. The complaint has been filed with malafide and dishonest intention and has not only concealed the material facts from this commission but has also twisted and distorted the same to the suit there own convenience and to mislead this commission. The bills which has been placed on record by the complainant looks like fabricated one as no date has been mentioned in the bill of Indian Motor Garage, K.D. Tyres Shopee and some of the bills are estimated bills and even there is fabrication in the bill dated 16.3.2017 which shows that the complaint has not been filed in a proper manner and some fabricated documents have been placed. Even the bills placed on the record by the complainant is not of any recognize service station. At the time of filing of the claim the complainant has concealed, misrepresented the factum of driver and the complainant has tried to hide the material facts from the knowledge of opposite party and as such, the claim of the complainant was repudiated on 29.3.2017. The complainant has acted in bad faith with respect to subject of this complaint and has approached this commission with unclean hands. “One who comes into equity must come with clean hands”. The contract of the insurance between the opposite party and complainant is governed by its policy terms and conditions. The opposite party has denied the other contents of the complaint and prayed for dismissal of the same.
4 To prove his case, Ld. counsel for the complainant has placed on record the affidavit of complainant Ex. CW1/A alongwith documents i.e. copy of letter dated 29.11.2007 Ex. C-1, copy of policy schedule Ex. C-2, copy of RC Ex. C-3, copy of gate pass Ex. C-4, copy of the driving license Ex. C-5, copy of the bill for paint Ex. C-6, copy of the bills for repair Ex. C7 to Ex. C-11, copy of the estimate of the surveyor of the opposite party Ex. C-12, affidavit of Ravi Sharma son of Kishan Lal Ex. CW2/A and closed the evidence. On the other hands, Ld. counsel for the opposite party tendered in evidence copy of observation sheet Ex. OP1, copy of letter dated 29.3.2017 Ex. OP2, Copy of claim form Ex. OP3, copy of the cover note Ex. OP4, copy of RC of the vehicle in dispute Ex. OP5, Copy of the certificate of exemption Ex. OP5, copy of the surveyor report of Sh. Rajeev Sharma Ex. OP6, copy of the investigation report of Gagandeep Singh, investigator Ex. OP7, copy of statement of Sukhwant Singh given to the investigator which is part and parcel of the investigation Ex. OP7/A, Copy of the photographs of the complainant Ex. OP7/B and Ex. OP7/C, copy of photographs of Harpreet Singh Ex. OP7/D.
5 We have heard the Ld. counsel for the parties and have gone through the record on the file.
6 In the present case, it is not disputed that the complainant got insured his vehicle from the opposite party. It is also not disputed that the vehicle met with an accident. The opposite party has repudiated the claim of the complainant vide repudiation letter dated 29.3.2017 Ex. C-1 on the reason Misrepresentation of facts (Driver details are misrepresented at intimation/claim form from actual & try to hide the material facts). In the present case dispute is that whether at the time of accident the vehicle in question was being driven by Ravi Sharma or Harpreet Singh. According to complainant, the opposite party has wrongly repudiated the claim of the complainant on the false ground. According to complainant, at the time of accident the vehicle in question was being driven by the one Ravi Sharma who was having valid driving license and the complainant has also placed on record driving license of Ravi Sharma as Ex. C-5. But on the other hands, according to opposite party the said vehicle was being driven by the son of the complainant namely Harpreet Singh and Harpreet Singh was not having a valid driving license. To prove its contention, the opposite party has placed on record report of investigating agency Gagandeep Singh, who investigated the matter and he has placed on record statement of Sukhwant Singh complainant which is written by daughter of complainant namely Kawaljit Kaur in Punjabi language and in the statement Sukhwant Singh has admitted that in his car his son Harpreet Singh was present with him at the time of accident. The driving license of the son of the complainant has been lost as such they are giving the driving license of their nearer. The said statement is duly signed by Kawaljit Kaur daughter of complainant, Harpreet Singh son of complainant and Sukhwant Singh complainant himself. The said statement Ex. OP7/A has been made by the complainant before the investigator. The opposite party has also placed on record photographs Ex. OP7/B, OP7/C, OP7/D of the complainant and his son with the statement given by them. The complainant in Ex. OP7/A himself admitted that the vehicle in question was being driven by Harpreet Singh son of complainant whose driving license has been misplaced and driving license of some nearer of complainant has been given by him. But while submitting the claim form he has mentioned the name of driver as Ravi Sharma and given the driving license of Ravi Sharma. The complainant has misrepresented the facts at the time of submitting his claim. Both the parties are bound by the terms and conditions of the policy. The terms and conditions of the Insurance Policy have to be strictly construed. Hon’ble Supreme Court in the case of Export Credit Guarantee Corporation of India vs. Garg Sons International 2013 (1) SCALE 410 (SC) held in Para Nos.8 to 11 as under:
“8. It is a settled legal proposition that while construing the terms of a contract of insurance, the words used therein must be given paramount importance, and it is not open for the Court to add, delete or substitute any words. It is also well settled, that since upon issuance of an insurance policy, the insurer undertakes to indemnify the loss suffered by the insured on account of risks covered by the policy, its terms have to be strictly construed in order to determine the extent of the liability of the insurer. Therefore, the endeavour of the Court should always be to interpret the words used in the contract in the manner that will best express the intention of the parties. (Vide: M/s. Suraj Mal Ram Niwas Oil Mills (P) Ltd. v. United India Insurance Co. Ltd., (2010) 10 SCC 567).
9. The insured cannot claim anything more than what is covered by the insurance policy. The terms of the contract have to be construed strictly, without altering the nature of the contract as the same may affect the interests of the parties adversely. The clauses of an insurance policy have to be read as they are consequently, the terms of the insurance policy, that fix the responsibility of the Insurance Company must also be read strictly. The contract must be read as a whole and every attempt should be made to harmonize the terms thereof, keeping in mind that the rule of contra proferentem does not apply in case of commercial contract, for the reason that a clause in a commercial contract is bilateral and has mutually been agreed upon. (Vide : Oriental Insurance Co. Ltd. v. Sony Cheriyan AIR 1999 SC 3252; Polymat India P. Ltd. v. National Insurance Co. Ltd., AIR 2005 SC 286; M/s. Sumitomo Heavy Industries Ltd. v. Oil & Natural Gas Company, AIR 2010 SC 3400; and Rashtriya Ispat Nigam Ltd. v. M/s. Dewan Chand Ram Saran AIR 2012 SC 2829).
10. In Vikram Greentech (I) Ltd. & Anr. v. New India Assurance Co. Ltd. AIR 2009 SC 2493, it was held: “An insurance contract, is a species of commercial transactions and must be construed like any other contract to its own terms and by itself. The endeavour of the court must always be to interpret the words in which the contract is expressed by the parties. The court while construing the terms of policy is not expected to venture into extra liberalism that may result in rewriting the contract or substituting the terms which were not intended by the parties. (See also: Sikka Papers Limited v. National Insurance Company Ltd & Ors. AIR 2009 SC 2834).”
11. Thus, it is not permissible for the court to substitute the terms of the contract itself, under the garb of construing terms incorporated in the agreement of insurance. No exceptions can be made on the ground of equity. The liberal attitude adopted by the court, by way of which it interferes in the terms of an insurance agreement, is not permitted. The same must certainly not be extended to the extent of substituting words that were never intended to form a part of the agreement.”
7 While repudiating the claim of the complainant the opposite party has not committed any deficiency in service and unfair trade practice and the claim has been validly repudiated by the oppoise party.
8 In view of the above discussion, we do not find any merit in the present complaint and the same is hereby dismissed with no order as to costs. Copy of order will be supplied by District Consumer Disputes Redressal Commission, Amritsar to the parties as per rules. File be sent back to the District consumer Disputes Redressal Commission, Amritsar.
Announced in Open Commission
25.08..2022
