Haryana

Karnal

42/2014

Randhir Singh S/o Phulla Ram - Complainant(s)

Versus

ICICI Lombard Gernal Insurance Company Limited - Opp.Party(s)

22 Apr 2016

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM KARNAL.     

                                                               Complaint No.42 of 2014

                                                               Date of instt.: 12.02.2014

                                                                Date of decision: 22.04.2016

 

Randhir Singh son of Sh.Phula Ram resident of House No.169/9, Arya Nagar, Gharaunda Disitrict Karnal.

.                                                                   ……..Complainant.

                                      Vs.

1. ICICI Lombard General Insurance company Ltd. Sector 12, HUDA, Karnal through its Branch Manager.

2. Mahindra & Mahindra Finance Ltd., behind Bus Stand, Mohilla Ashram 2^nd floor through its Branch Manager.

 

                                                                   ………… Opposite Parties.

 

                     Complaint u/s 12  of the Consumer Protection Act.

 

Before          Sh.K.C.Sharma……….President.

                   Sh.Anil Sharma…….Member.

 

Present:-        Sh.B.S.Jaglan Advocate for the complainant.

                     Sh.Vineet Rathore Advocate for the Opposite parties.

 

 ORDER:

 

                        This complaint has been filed by the complainant u/s 12 of the Consumer Protection Act 1986, on the averments that he got insured his vehicle  TATA ACE bearing chassis No. MAT483146dye18240 ENGINE No.4751DT18EWYSB1004 with the Opposite Party vide insurance policy No.3003/TM-00109363, which was valid from 14.6.2013 to 13.6.2014.  On 4.12.2013, his son was going to Pipli Mandi in the said vehicle for bringing potato . The said vehicle was being driven by Ishwar  while his son was sitting in the cabin alongwith  driver and one Palledar Naresh son of Suraj Bhan was sitting in the rear portion . When the vehicle reached near  village Samora , the same met with an accident and hit against a tree at Kachha portion of the road. The vehicle was badly damaged and occupants sustained serious injuries.  The matter was reported to the Police Station, Indri and general diary No.21-A was entered  regarding the  accident. The vehicle was brought to the authorized service station at Karnal and intimation was sent to the Opposite Party. Surveyor was appointed by the Opposite Party and loss was got assessed. The claim was lodged by him with the Opposite Party and  all the necessary documents were submitted. However, vide letter dated 28.1.2014, the Opposite Party repudiated the claim on the ground that the vehicle was carrying more persons than the registered seating capacity, which was violation of the policy “limitation to use”.  Repudiation of the claim was arbitrary and illegal. In fact, only driver and his son were seating in the  cabin, whereas Palledar Naresh was sitting in the open rear portion of the vehicle and there was  no violation of any condition of the policy.

2.                Notice of the complaint was given to Opposite Party no.1, who appeared  and filed written statement disputing the claim of the complainant. Objections have been raised that the complaint is not maintainable; that the complainant has not approached this Forum with clean hands; that the complaint is false and frivolous and an abuse of the process of law ; that the complainant has no locus standi and cause of action to file the present complaint and that the complaint is bad for non joinder of the necessary parties.

                   On merits, factum of accident and damages to the insured vehicle in the said accident has not been disputed. It has been submitted that surveyor was appointed who assessed the loss as Rs.2,88,658/- on the basis of final survey subject to  compliance of terms and conditions of the policy. However, there were three occupants in the vehicle at the time of accident, namely Naresh son of Suraj Bhan, Bharat son of Randhir and Ishwar Chand son of Sant Ram whereas according to the registration certificate of the vehicle, only two persons were allowed. Thus, there was clear cut violation of the condition of the policy and that was why, the claim of the complainant was rightly repudiated by the Opposite Party. The other allegations made in the complaint have been denied.

2.                Initially Opposite Party no.1 was only impleaded, but later on Opposite Party no.2 was also impleaded on its application.

 

4.                The Opposite Party no.2 filed separate written statement. It has been submitted that the complainant was advanced loan by the Opposite party no.2 for purchasing the vehicle and he duly executed loan agreement no.2650394 in that regard. However, he did not pay the installments as agreed in the loan agreement. Therefore, the matter was referred to the Arbitrator who after appreciating the claim and evidence led by the Opposite Party no.2 allowed the claim and passed well speaking award dated 18.9.2014. The complainant was directed to pay a sum of

Rs.4, 15,884/- alongwith further interest as allowed by the Arbitrator. Name of the Opposite Party no.2 was also mentioned in the column of hypothecation of registration certificate as well as in the insurance cover note, therefore, claim if any allowed, the same was  liable to be credited in appropriating the decretal amount outstanding against the complainant.

5.                In evidence of the complainant, his affidavit Ex.CW1/A, affidavit of Bharat Ex.CW2/A, affidavit of Ishwar Chand Ex. CW3/A  and documents Ex.C1 to Ex.C4 have been tendered.

6.                On the other hand in evidence of the opposite parties, affidavit of Meenu Sharma, Legal Manager Ex.OP1/A, affidavit of Pankaj Rana Ex.OP2/A and documents Ex.OP-1 to Ex.OP-10 have been tendered.

7.                We have appraised the evidence on record, the material circumstances of the case and the arguments advanced by the learned Counsel for the parties.

                   There is no dispute between the parties that the vehicle of the complainant was insured with opposite party no.1 for the period of 14.6.2013 to 13.6.2014 and the same met with an accident on 4.12.2013 and was damaged in the said accident. The claim of the complainant was repudiated by the opposite party no.1 on the ground that there were three occupants in the vehicle at the time of accident whereas only two persons were allowed as per registration certificate, therefore, there was clear cut violation of the condition of the policy.

8.                Learned counsel for the opposite parties put a great thrust upon the contention that as per the version put forth in the first information report three persons were travelling in the vehicle at the time of accident namely Naresh son of Surah Bhan, Bharat son of complainant and Ishwar Chand son of Sant Ram. As per registration certificate the seating capacity of two persons was allowed. Thus, there was the violation of the policy condition regarding “limitation as to use" of the vehicle. Therefore, the claim of the complainant was rightly repudiated by the opposite party no.1. It has further been argued that as per pleadings of the complainant the vehicle was being driven by Ishwar Chand whereas Naresh was sitting in the cabin alongwith the driver and one Palledar Naresh son of Suraj Bhan was sitting in the rear portion, but neither in the first information report it was mentioned that Naresh was Palledar and he was sitting in the rear portion nor there is any evidence of the complainant in support of such plea. Even otherwise, it is immaterial where the third person was sitting, because the fact remains that three persons were travelling in the vehicle at the time of accident, which was violation of the policy condition.

9.                It is admitted fact that three persons were travelling in the vehicle at the time of accident. However, the question arises whether travelling of three persons in the vehicle was violation of the policy condition regarding limitation as to use of the vehicle.

                   Copy of insurance policy is Ex.OP3 the clause regarding limitation as to use is reproduced as under:-

                   “ The policy covers use only under a permit within the meaning of the Motor Vehicle Act 1988 or such a carriage falling under sub section 3 of the Section 60 of the Motor Vehicle Act 1988.  The policy does not cover use for (a) Organized racing     (b) Pace making (c) Reliability trials (d) Speed testing.

                   A bare reading of the condition of the policy regarding “limitation as to use” makes it emphatically clear that it was not mentioned that use of the vehicle for travelling more persons than the seating capacity allowed in the registration certificate, would not be covered under the policy. The copy of commercial vehicles insurance policy Ex.OP8 indicates that any accidental loss/ damage and/or liability caused, sustained or incurred whilst the vehicle insured here in is being used otherwise than in accordance with the “limitation as to use”. Travelling of more persons than allowed is not covered in the heading of the “limitation as to use” of the vehicle under condition of the policy. Therefore, under such situation repudiation of the claim of the complainant by opposite party no.1 on the ground that three persons were travelling in the vehicle at the time of accident instead of two persons allowed in the column of the seating capacity in the registration certificate was neither legal nor justified, therefore, the same amounts to deficiency in service on the part of opposite party no.1.

                   Consequently, the complainant is entitled to get the amount of Rs.2,88,658/-as compensation for the loss/damage as assessed by the surveyor.

10.               The opposite party no.2 claimed that loan was advanced to the complainant by it for purchasing the vehicle but the complainant did not pay the installments therefore, the matter was referred to Arbitrator who passed well speaking award dated 18.9.2014 and directed the complainant to pay a sum of Rs.4,15,884/- alongwith future interest. It has also been claimed that if the claim of the complainant is allowed the same is to be credited in appropriating the decretal amount outstanding against the complainant. Copy of award Ex.OP9 and copy of statement of account Ex.OP10 have been placed on record to substantiate the said plea. The complainant has not disputed the factum of obtaining the loan from opposite party no.2 and default in payment of the installments in his affidavit Ex.CW1/A. Therefore, in view of such facts and circumstances the amount of loss/damage of vehicle by the opposite party no.1 is to be credited to the loan account of the complainant with opposite party no.2.

 11.              As a sequel to the foregoing discussion, we accept the present complaint with a direction to opposite party no.1 to pay Rs.2,88,658/- in the loan account of the complainant with the opposite party no.2 alongwith interest @ 9% per annum from the date of filing the complaint till realization. We further direct the opposite party no.1 to pay Rs.11,000/- to the complainant on account of mental agony and harassment suffered by him and for the litigation expenses. This order shall be complied within 30 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: 22.4.2016

                                                                                      (K.C.Sharma)

                                                                                         President,

                                                                             District Consumer Disputes

                                                                             Redressal Forum, Karnal.

                             (Anil Sharma)

                               Member