Haryana

Yamunanagar

CC/264/2013

Sukhbir Singh s/o Sh.Karnail Singh, - Complainant(s)

Versus

ICICI Lombard - Opp.Party(s)

SS Gujjar

29 Sep 2016

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, YAMUNA NAGAR

                                                                                                Complaint No. 264 of 2013.

                                                                                                Date of institution:03.04.2013.

                                                                                                Date of decision:  29.09.2016

 

Sukhbir Singh aged about 38 years son of Sh. Karnail Singh resident of village Hiran Chhapper, Tehsil Jagadhri, District Yamuna Nagar.

                                                                                                                                                                                                                                                                                                                                                           …Complainant.

                                                Versus

1. ICICI Lombard General Insurance, ICICI Lombard House 414, Veer Savarkar Marg, Near Sidhi Vinayak Temple, Parbhadevi, Mumbai 40025, through its Managing Director.
2. ICICI Lombard General Insurance, Branch Office, Yamuna Nagar, through its Branch Manager.             

                                                                                                                                                                                                                                                                                                                         …Respondents

 

BEFORE:  SH. ASHOK KUMAR GARG, PRESIDENT

                  SH. S.C.SHARMA, MEMBER        

 

Present: Sh. Sahib Singh Gurjar, Advocate, counsel for complainant.   

              Sh. Rajiv Gupta, Advocate, counsel for respondents.

           

ORDER

1.                     The present complaint has been filed under section 12 of the Consumer Protection Act 1986.

2                      Brief facts of the present complaint, as alleged by the complainant, are that complainant got his vehicle make TATA Magic 8-STR bearing registration No. HR-58A-1338 comprehensively insured from the OPs insurance company vide policy bearing No. 3004/TM513730/00/000 dated 22.09.2011 and paid Rs. 11,851/- as premium. The insurance policy in question was valid w.e.f. 07.10.2011 to 06.10.2012. During the currency of insurance period, on 01.08.2012 the vehicle in question of the complainant met with a road side accident and due to that badly damaged. In this respect, an FIR bearing No. 355 dated 01.08.2012 under section 279/337 IPC was registered in the Policy Station City, Yamuna Nagar. Thereafter, the complainant got repaired his vehicle from M/s Pasco Motors and has spent a sum of Rs. 2,43,966/-. The complainant lodged his claim with the OPs Insurance Company and completed all the formalities but the OPs Insurance Company refused to compensate the same to the complainant. The complainant made so many requests but all in vain. Lastly, prayed that the OPs be directed to release the amount of repair on account of damage to his vehicle and also to pay compensation as well as litigation expenses. Hence this complaint.

 3.                    Upon notice, OPs Insurance Company appeared and filed its written statement by taking some preliminary objections such as complaint is not maintainable; there is no negligence or deficiency in service on the part of OPs Insurance Company; complainant had no insurable interest in the vehicle in question on the alleged date of accident i.e. on 01.08.2012 because as per contents of the FIR bearing No. 355 dated 01.08.2012 which was got registered by one Sham Lal who is nephew of the complainant, has alleged himself as owner of the vehicle in question as he had purchased the same from one Sukhbir Singh complainant about 1 ½ years back, so, the complainant was a stranger qua the vehicle in question and is not entitled to get any compensation. Further, the vehicle in question was also being used as passenger carrying transport vehicle at the time of alleged accident by the said Sham Lal in utter violation of the terms and conditions of the policy and provision of M.V. Act. The vehicle in question was registered as private vehicle but the same was got insured as passenger carrying vehicle. At the time of alleged accident some paid passengers were travelling in the vehicle in question. Further, it has also been mentioned that as the vehicle was used as a transport vehicle, a specific category of transport driving license besides route permit and fitness certificate was also required to ply the vehicle in question. However, in this case, the driver of the vehicle was not holding any valid and effective driving license to drive light transport vehicle and vehicle in question was being plied without route permit and fitness certificate.  

4                      On merit, it has been admitted that on receipt of the intimation regarding the accident of vehicle in question, the OPs Insurance Company deputed Sh. Sandeep Kumar an independent Surveyor and Loss Assessor to Survey and Assess the loss, if any, to the vehicle in question. The said surveyor submitted his report and assessed the net loss on repair basis to the tune of Rs. 1, 74,226/- vide his report dated 27.08.2012. After processing the report and other documents, it was found that vehicle in question was being plied by its owner in utter violation of the terms and conditions of the Insurance policy as well as Motor Vehicle Act, so, the claim of the complainant was rightly repudiated vide letter dated 05.10.2012 and further reiterated the stand taken in the preliminary objections. Lastly, prayed for dismissal of complaint being no deficiency in service or unfair trade practice on the part of the OPs.

5                      To prove the case, counsel for the complainant tendered into evidence affidavit of complainant as Annexure CX and photo copies of documents:- such as copy of insurance policy as Annexure C-1and C-2, copy of repair bills of Pasco Motors as Annexure C-3, Copy of repudiation letter dated 05.10.2012 as Annexure C-4, copy of FIR No. 355 dated 01.08.2012 as Annexure C-5, Copy of registration certificate of vehicle bearing registration No. HR-58A-1338 as Annexure C-6, copy of fitness certificate as Annexure C-7, copy of NOC issued by Financer TATA Motor consisting 6 pages as Annexure C-8 and closed the evidence on behalf of complainant.

6                      On the other hand, counsel for the OPs tendered into evidence affidavit of Sh. Inderjeet Singh, Legal Manager ICICI Lombard as Annexure RW/A and affidavit of Sandeep Kumar, Surveyor and Loss Assessor as Annexure RW/B and photo copies of documents such as copy of FIR as Annexure R-1, copy of surveyor report dated 27.08.2012 as Annexure R-2, copy of repudiation letter as Annexure R-3, copy of insurance policy alongwith terms and conditions as Annexure R-4 and closed the evidence on behalf of OPs.

7                      We have heard the learned counsel for both the parties and have gone through the pleadings as well as documents placed on file very minutely and carefully.

8                      It is not disputed that the vehicle make TATA Magic 8-STR bearing registration No. HR58-A-1338 was not insured with the OPs insurance company vide its insurance policy bearing No. 3004/TM/513730/00/000 (Annexure C-2/R-4) valid w.e.f. 07.10.2011 to 06.10.2012 for a sum of Rs. 1,92,846/-. It is also not disputed that the vehicle in question met with an accident on 01.08.2012 which is duly evident from the copy of FIR bearing No. 355 dated 01.08.2012 Annexure C-5/R-1. It is also not disputed that an independent Surveyor & Loss Assessor Sh. Sandeep Kumar was appointed by the OPs Insurance Company who submitted his report dated 27.08.2012 (Annexure R-2) and assessed the net loss on repair basis to the tune of Rs. 1,74,226/- .

9.                     Ld. Counsel for the complainant argued that genuine claim of the complainant has been wrongly repudiated by the OP Insurance Company on the flimsy ground where as from the documents i.e. copy of FIR no. 335 dated 01.08.2012 (Annexure C-5) it is duly proved that during the currency of insurance policy (Annexure C-2) vehicle in question met with a road side accident and due to that badly damaged. And further argued that it is also proved on file from the copy of repair bill (Annexure C-3) that the complainant got repaired his vehicle from M/s Pasco Motors and has spent a sum of Rs. 2,43,966/- Lastly, prayed for acceptance of the complaint with seeking direction  to release the amount spent on repair of his damage vehicle and also to pay compensation as well as litigation expenses..

10.                   On the other hand, counsel for the OP Insurance Company hotly argued at length that claim of the complainant has been rightly repudiated by the OP Insurance Learned counsel for the OP Insurance Company further argued that even in the said FIR lodged with the police station City Yamuna Nagar  it is clearly evident that even on the date of alleged accident one sham Lal, who lodged the FIR was the owner in possession of the Vehicle in question as he has specifically mentioned in his statement given to the police that he was owner of the vehicle in question as he had purchased the same from one Sukhbir Singh complainant about 1 ½ years back, Hence, at the time of alleged accident, complainant Sukhbir Singh was not having any insurable interest in the vehicle in question, Further, the vehicle in question was also being used as passenger carrying transport vehicle at the time of alleged accident by the said Sham Lal in utter violation of the terms and conditions of the policy and provision of M.V. Act. The vehicle in question was registered as private vehicle but the same was got insured as passenger carrying vehicle. so, the claim of the complainant has been rightly repudiated by the Op Insurance Company and referred the case law titled as New India Insurance Company Limited Versus Chandrakant Bhujangi Jogdand, Revision Petition No. 4387 of 2009, United India Insurance Company Ltd. Versus Sri V.C. Deenadayal etc. Revision Petition No. 426 of 2007 decided on 13.03.2009 and M/s Complete Insulations (P) Ltd. Versus New India Assurance Company Ltd. 1996(1) PLR page No.202 Supreme Court.

11.                   After hearing both the parties, we are of the considered view that the claim of the complainant has been wrongly repudiated by the Op Insurance Company and the argument advanced by the counsel for the ops Insurance Co. is not tenable. In the present case,  the OP Insurance Company rely upon only contents of FIR (Annexure R-1) whereas it is clearly evident that insurance policy  (Annexure C-2) stands in the name of complainant i.e. Sukhbir Singh and Registration Certificate( Annexure C-6) is also stands in the Name of complainant Sukhbir Singh, So, merely because one sham Lal has alleged that he himself was the owner is possession of the vehicle in question, have no weightage in the eye of law as it is settled law that contents of the FIR is often lodged in haste, and the same cannot be substituted for evidence giving exhaustive version of the occurrence. Further, the FIR is never lodged on solemn affirmation FIR is to be proved by author of FIR. In the proceedings before forum it could be in the shape of affidavit of author of FIR. Onus was on the Insurance Co. in this regard which has not been discharged. The same view has been held in case titled as Virat Sama Vs Mohan Lal and others Vil.CVI-1994(1) PLR82. First Information Report by itself cannot be treated as substantive evidence upon which ops Insurance Company relies to prove the sale of vehicle in question by the complainant to one Sham Lal. As per section 2(30) of the M.V.Act it is provided as under:-

“Owner” means a person in whose name a motor vehicle stands registered, and where such person is a minor, the guardian of such minor and in relation to a motor vehicle which is the subject of a hire purchase, agreement, or an agreement of lease or an agreement of Hypothecation, the person in possession of the vehicle under that agreement.  

 

This section also support the version of the complainant and ops has not placed on record any agreement of lease etc or any agreement of sale etc. in favour of Sham Lal.

12.                   Further, the second plea of the ops Insurance Co. is also not tenable as the ops insurance Company has not placed on file any cogent evidence to prove that vehicle in question was being used as passenger carrying transport vehicle at the time of alleged accident by the said Sham Lal in utter violation of the terms and conditions of the policy and provision of M.V. Act and vehicle in question was registered as private vehicle but the same was got insured as passenger carrying vehicle. Further no cogent evidence by way of any affidavit /report of any registration or Licensing authority etc that at the time of alleged accident, the driver of the vehicle was not holding any valid and effective driving license to drive the vehicle in question and it was being plied without route permit, fitness certificate and some paid passengers were travelling in the vehicle in question. The case law referred by counsel for the Ops is not disputed but not helpful in the present case whereas the law titled as Virat Sama Vs Mohan Lal and others (supra) is fully applicable in the present case.

13                    Now the next question remains, as to what extent the complainant is entitled to get damages. Learned counsel for the complainant argued that complainant has spent 2,43,966/- on account of damage to the vehicle is not tenable as no cogent evidence by way of expert report has been filed by the complainant to prove that he is entitled to get the same whereas on the other hand, loss has been assessed by the Surveyor and Loss Assessor to the tune Rs. 1,74,226/- . on net loss basis vide his report dated 27.08.2012 (Annexure R-2) and it is settled proposition of the law has been held by the Hon’ble National Commission as well as State Commission in various cases that surveyor is the best technical independent person to assess the loss and credence should be given to the surveyor report in the absence of any discrepancy or ambiguity in the report. However, the vehicle in question was insured with the OPs Insurance Co. for a sum of Rs. 1,92,846/-. In this way also complainant cannot claim more than of sum insured. Moreover, the claim of the complainant has been repudiated as per letter dated 05.10.2012 (Annexure C-4/R-3) which is reproduced here:-

We have perused the documents submitted by you and regret to inform you that your claim cannot be settled for the following reason/s. “ Insurance policy is under passenger carrying package policy and your vehicle registered under private car… you have not informed about differences in your vehicle class. “

As the claim of the complainant has been repudiated only on the ground mentioned above, so, Op Insurance Company cannot be permitted to take new defence before the Forum. So, we are of the considered view that the complainant is only entitled to get the assessed amount of Rs. 1,74,226/- from the ops Insurance Company.

14.                   In the circumstances noted above, we are of the considered view that the OP Insurance Company has withheld the amount of Rs.1, 74,226/- without any legal and solid reasons and cause. Hence, we have no option except to partly allow the complaint of complainant.

15.                   Resultantly, we partly allow the complaint of complainant and direct the OP Insurance Company to pay a sum of Rs.1,74,226/- to the complainant alongwith interest at the rate of 7 % per annum from the date of filing of the complaint i.e. 03.04.2013 till its actual realization and further to pay Rs.1500/- as compensation for mental agony and harassment as well as litigation expenses. Order be complied within 30 days after preparation of copy of this order failing which complainant shall be entitled to invoke the jurisdiction of this Forum as per law. Copies of this order be sent to the parties concerned free of costs as per rules. File be consigned to the record room after due compliance.

Announced in open court 29.09.2016.           

                                                                                    (ASHOK KUMAR GARG)

                                                                                    PRESIDENT,

                                                                                   

 

                                                                                    (S.C.SHARMA )

                                                                                    MEMBER.