DISTRICT CONSUMER DISPUTES REDRESSAL FORUM,<br /> BATHINDA (PUNJAB)<br /> <br /> CC No. 42 of 01-02-2010<br /> Decided on : 28-06-2010 <br /> <br /> Labh Singh S/o Harnek Singh R/o VPO Meja Della Kalan, District Sirsa now R/o Village Bhai Bhaktaur, Tehsil Talwandi Sabo, District Bathinda.<br /> <br /> .... Complainant<br /> Versus<br /> <br /> 1.ICICI Lombard General Insurance Company Limited, Sharma Complex, Ist Floor, Guru Kashi Marg, Corner Power House Road, Bathinda, through its BranchManager<br /> 2.Gaurav Saxena Surveyor cum CSM of ICICI Lombard General Insurance Company Limited, Sharma Complex, Ist Floor, Guru Kashi Marg, Corner Power House Road, Bathinda.<br /> 3.Dashmesh Finance Co., Near Krishna Continental Hotel, Bibi Wala Road, Bathinda, through its Owner/Manager<br /> ..... Opposite parties<br /> <br /> Complaint under Section 12 of the Consumer Protection<br /> Act, 1986.<br /> <br /> QUORUM <br /> <br /> Ms. Vikramjit Kaur Soni, President<br /> Dr. Phulinder Preet, Member <br /> Sh. Amarjeet Paul, Member<br /> <br /> For the Complainant : Sh. Naresh Garg, counsel for the complainant <br /> For the Opposite parties : Sh. Vinod Garg, counsel for opposite party No. 1<br /> Opposite party No. 2 & 3 exparte. <br /> <br /> O R D E R<br /> <br /> VIKRAMJIT KAUR SONI, PRESIDENT<br /> <br /> 1. The complainant is owner of Eicher Vehicle 110 having registration No. HR-55-9904 Model 2001, which is hypothecated with opposite party No. 3. The said vehicle was comprehensively insured with opposite party No. 1 vide Insurance Certificate No. 3003/5736654/00/B00 w.e.f. 03-08-2009 to 02-08-2010. The opposite party No. 1 has issued Insurance Certificate for the IDV of Rs. 3,00,000/- and no Insurance policy was issued to him although the same is mandatory. Opposite party No. 1 fixed I.D.V. of Rs. 3,00,000/- as per rules of I.R.D.A. after depreciation and charged Rs. 11,659/-. On the intervening night of 9th and 10th August, 2009 at about 12.30 A.M. the above said vehicle met with an accident and turned turtle in the Khatans in the revenue limits of P.S. Patran. DDR No. 23 dated 10-08-2009 was lodged with P.S. Patran. At the time of accident the vehicle was being driven by Deena Nath. The intimation regarding the accident was immediately given by the complainant to the office of opposite party No. 1 who appointed Mr. Sanjay K. Jain as spot surveyor on 10-09-2009 and the vehicle was removed from the Khetans with the help of crane after paying Rs. 4,000/-. On the same day, the vehicle was shifted to Kaka Denting Painting Works, Vishavkarma Market, Bathinda and he paid Rs. 5,000/- as shifting charges. The complainant started repair of his vehicle under supervision and direction of opposite party No. 2. The complainant spent Rs. 70,000/- on repairs including Rs. 40,000/- for new spare parts. The complainant alleged that at the time of survey, the surveyor of opposite party No. 1 obtained his signatures on blank claim Form, 5-6 blank papers, blank consent form and blank full and final voucher and gave assurance that full claim amount will be paid. He further alleged that surveyors of opposite parties have not given him any sport survey report or final survey report. He alleged that his claim was repudiated vide letter dated 11-12-2009 on the ground that permit was not valid whereas the vehicle was in roadworthy conditions and was having valid permit. A copy of permit was already supplied to opposite party No. 1. He further alleged that government grants permit to the vehicle and not to the person and the vehicle did not meet with an accident due to permit in the name of previous owner. The vehicle was purchased by the complainant in the month of July, 2009 alongwith all the papers i.e. R.C. Permit and Insurance after getting the vehicle transferred in his name. The complainant purchased the above said Insurance from opposite party No. 1 and at that time he also submitted all the relevant papers. At the time of issuance of above said Insurance Certificate, opposite party No. 1 never raised any objection regarding this.<br /> 2. Opposite party No. 1 in its written version pleaded that complainant has concealed material facts and documents from this Forum that he was running the vehicle in the State of Punjab without a valid permit in his name with respect to the said vehicle as on the date of alleged accident. Hence, there was violation of terms and conditions of the policy as well as provisions of Motor Vehicles Act. The opposite party No. 1 repudiated the claim of the complainant vide letter dated 11-12-2009 on this ground. It had further pleaded that it deputed Mr. Sanjay Kumar Jain, who conducted spot survey at the place of accident and submitted spot survey report dated 13-08-2009. The opposite party denied that complainant had spent Rs. 4,000/- as crane charges or Rs. 5,000/- for shifting the vehicle from the place of accident to Bathinda. Thereafter Sh.Satinder Pal Singh was deputed as final surveyor who conducted survey and assessed the loss to the tune of Rs. 22,245/- after applying depreciation and other provisions as per terms and conditions of the policy and IMT. It had also denied that complainant had spent Rs. 70,000/- on repairs charges or Rs. 40,000/- for new parts. The opposite party No. 1 had denied that its surveyor had obtained signatures of the complainant on any blank document. It had also never assured the complainant to pay the entire claim amount. None appeared on behalf of opposite party Nos. 2 & 3 despite service of notice. Hence, exparte proceedings were taken against them.<br /> 3. Parties have led evidence in support of their pleadings. <br /> 4. Arguments heard and written submissions submitted by the parties perused. The complainant has alleged in his complaint that his vehicle No. HR-55-9904 Model 2001, which was hypothecated with opposite party No. 3, met with an accident on 10-08-2009. The vehicle was comprehensively insured by opposite party No. 1 who issued Insurance Certificate for the IDV of Rs. 3,00,000/-. The vehicle met with an accident in the intervening night on 09-08-2009 and 10-08-2009 at about 12.30 A.M. DDR No. 23 dated 10-08-2009 was lodged with Police Station Patran in this regard. At that time, the vehicle was driven by Deena Nath. The complainant intimated the accident immediately to opposite party No. 1 who deputed Mr. Sanjay Kumar Jain as spot surveyor and after spot survey, the vehicle was got removed from Khatan after paying charges of Rs. 4,000/-. Thereafter the accidental vehicle was brought to Bathinda after paying Rs. 5,000/-. The opposite party No. 1 appointed opposite party No. 2 as final surveyor and the complainant started repairs under the supervision and direction of opposite party No. 2. As per complainant, Rs. 70,000/- was spent on repairs out of which parts worth Rs. 40,000/- were incorporated in the vehicle. All the original bills were handed over to the surveyor. The opposite party No. 1 repudiated the claim of the complainant vide Ex. C-7 for the reason that permit was not valid. The final surveyor assessed the loss to the tune of Rs. 22,245/- vide Ex. R-3, after applying depreciation and other provisions as per terms and conditions of the policy. A perusal of Clause “Limitation as to use” of Goods Carrying Vehicles Package Policy Certificate Cum Policy Scheme Ex. C-3 reveals that :-<br /> “Use only for carriage of goods within the meaning of the Motor Vehicles Act. The policy does not cover : (1) use for organized racing, pace making, reliability trials or speed testing. (2) use whilst drawing a trailor except the towing (other than for reward) of any one disabled mechanical propelled vehicle. (3) use for carrying passengers in the vehicle ; except employees (other than the driver) not exceeding the number permitted in the registration document and coming under the purview of Workmen's Compensation Act, 1923.” <br /> The surveyor of the opposite parties has assessed the loss to the tune of Rs. 22,245/- whereas the complainant has submitted the bills amounting to Rs. 39,032/- + Rs. 15,700/- as labour charges. There is depreciation on spare parts to the tune of 50% amounting to Rs. 19,516/-. The surveyor who is expert in branch of assessing the damages must give reasons that for what reasons claim of the complainant was not justified. The support can be sought by the law laid down by the Hon'ble Himachal Pradesh State Consumer Disputes Redressal Commission, Shimla in the case 2007 (I) CPJ 236 titled Oriental Insurance Company Ltd., Vs. Ramesh Singh wherein it has been held that :<br /> “Consumer Protection Act, 1986 – Section 15 – Insurance – Surveyor's report – Reliability – Surveyor, who is expert in branch of assessing damages, required to give reasons, howsoever brief, as to on what basis and for what reasons claim of complainant not justified – In such absence, Surveyor's report cannot be accepted.” <br /> The opposite party No. 1 has raised objection that on the date of accident the complainant was not having valid permit in his name with respect to the vehicle in question. The permit which was available with the complainant was only for UP, Chandigarh and Delhi whereas he was plying the vehicle in the State of Punjab. A perusal of Ex. C-13 & Ex. C-14 shows that the vehicle in question was having National Permit No. 980/NP/08 valid from 17-09-2008 to 16-09-2013, but the same was in the name of previous owner. A perusal of Ex. C-15 reveals that the National permit No. 171/NP/SSA/09 dated 05-10-2009 of the vehicle in question was in the name of the complainant and was valid upto 2013.<br /> 5. Keeping in view the facts and circumstances of the case, this Forum is of the view that that although route permit has no nexus with the cause of accident yet it can be termed as breach of Motor Vehicles Act. Hon'ble Punjab & Haryana High Court held in 2007(3) RCR 78 titled Zile Singh Vs. Mukesh Kumar that the insurer would not be allowed to avoid his liability unless the alleged breach of condition is so fundamental as are found to have contributed to the cause of accident. In such circumstances, where there is any breach of policy, the loss can be paid on non-standard basis. The support can be sought by the precedent laid down by the Hon'ble National Commission in the case 2005(3)CPR 124 (NC) New India Assurance Company Limited Vs. Surinder Singh Khurana, wherein it was held that even if there is violation of provision of Motor Vehicles Act, it could be termed to be breach of warranty and claim is to be settled on non-standard basis. Reliance can also be put on the observations of the Hon'ble State Commission, Chandigarh in First Appeal No. 120 of 2008 decided on 05-03-2010 titled National Insurance Company and others Vs. M/s. Anil Trading Company wherein it has been observed that :-<br /> “The alleged breach is with regard to the provisions of Motor Vehicles Act. Therefore, the question would be whether the Insurance Company repudiate the claim on the alleged ground of breach of some provisions of the Motor Vehicles Act or some other Act. It is not the case of the Insurance Company that the policy is a statutory policy.<br /> In our view the Insurance Company cannot repudiate the claim when there is no breach of terms of the policy, because insurance is a matter of contract between the parties.<br /> Therefore, the appellants are not entitled to repudiate the claim merely on the ground that the vehicle involved in the accident was not having the fitness certificate on the date of accident. <br /> On the same analogy, the appellants had no right to repudiate the insurance claim on the ground that by driving the vehicle without route permit, the respondents have violated the statutory provisions.” <br /> 6. Thus, in view of the above discussions and findings, we are of the view that there is deficiency in service on the part of the opposite parties in repudiating the claim of the complainant. The complainant is entitled to the claim amount on non-standard basis. Therefore, this complaint is accepted against opposite party No. 1 and dismissed qua opposite party Nos. 2 & 3. The opposite party No. 1 is directed to pay Rs. 26,412/- as claim amount, Rs. 3,000/- as towing charges Rs. 5,000/- as compensation for mental harassment and Rs. 3,000/- as litigation expenses to the complainant, within 45 days from the date of receipt of copy of this order.<br /> A copy of this order be sent to the parties concerned free of cost and the file be consigned to record.<br /> Pronounced<br /> 28-06-2010 (Vikramjit Kaur Soni)<br /> President<br /> <br /> <br /> (Dr. Phulinder Preet)<br /> Member<br /> <br /> <br /> (Amarjeet Paul) Member <br /> <br /> <br /> <br /> <br />