ORDERS:
Charanjit Singh, President;
1 The complainant has filed the present complaint by invoking the provisions of Section 35 and 38 of the Consumer Protection Act against the opposite parties on the allegations that he is an agriculturist by profession and he had purchased one tractor bearing chassis No. NHN36000ZJJ439878 Engine No. 241722DX, bearing Registration Number Pb-46-AC-4966 in the year 2018 for his personal use to work in his fields and to carry his grain to market. The aforesaid tractor of the complainant was insured with the opposite parties vide policy Number M5057004 valid w.e.f. 22.12.2018 to 21.12.2019 and to avail said policy, the complainant had paid premium amount of Rs. 14,002.74 Paise to opposite parties and has availed services of the opposite parties, as such, the complainant is consumer qua the opposite parties as defined under the Consumer Protection Act, and is competent to invoke the jurisdiction of this Commission. Unfortunately on 27.11.2019 the aforesaid tractor of the complainant met with an accident with a truck at Flyover, Goindwal Bye-pass, Tarn Taran and in the said accident, tractor of the complainant was badly damaged and information regarding the accident was duly given to the police and FIR No. 305 dated 28.11.2019 was registered by Police at Police City Tarn Taran. the complainant had brought his tractor for repair at Punjab Autos, Sarhali Road, Tarn Taran and information regarding accident was given by the complainant to the insurance company for its claim vide claim No. 37C97799. The surveyor was duly appointed by the opposite parties and documents as required were duly supplied by the complainant to the surveyor but after passage of time, inspite of approving the claim of the complainant, the opposite parties had sent letter dated 29.2.2020 to the complainant, wherein, it was informed to the complainant that claim filed by the complainant is not tenable and reason has been stated that “the registered sitting capacity of vehicle as per R.C. is one, but as per information/ FIR received, two persons were sitting in the vehicle at the time of accident. This is violation of the insurance policy terms and conditions”. At the time of availing the insurance policy, only cover note was provided but no term and conditions were explained and provided to the complainant. The complainant has not filed the claim of deceased involved in the accident but has filed claim for the repair of the vehicle, which was duly insured by the opposite parties, as such, the opposite parties in order to avoid the claim has wrongly rejected the claim of the complainant. Since, the opposite parties have rejected the claim of the complainant, but the vehicle was lying with the service centre, as such, as per instructions of the complainant, the tractor of the complainant was got repaired by the service centre and invoice No. 232 and 233 of dated 2.6.2020 were issued by the service centre and the complainant has paid the repair cost amount as per invoice to the tune of Rs. 2,05,507/-, Rs. 21,195/- alongwith labour charges of Rs. 10,500/- in total Rs. 2,37,200/- was paid by the complainant to get repair his tractor and beside this, another amount of Rs. 65,200/- for the purchase of new tyres and tubes was also incurred by the complainant vide invoice dated 13.5.2020. Rejection of valid claim of the complainant by the opposite parties is illegal on their part as the claimant was having valid insurance policy with him, driver of the tractor was having valid driving licence, but with malafide intention, claim of the complainant has been rejected by the opposite parties which amounts to unfair trade practice and deficiency in service on part of the opposite parties. Inspite of having valid insurance policy, the complainant has to spent huge amount from his own pocket to get his vehicle repaired and to get benefit of the same. The complainant has approached to the opposite parties telephonically and requested them to approve the claim and to refund the amount incurred by him, but the officials of the opposite parties had refused to accept the claim. The complainant has prayed that the present complaint may be accepted and the opposite parties may kindly be directed to accept the claim of the complainant and necessary order may be passed in favour of complainant and against the opposite parties to refund the amount of Rs.3,02,400/- which the complainant had incurred to get his tractor repaired alongwith interest at the rate of 8% per annum till realization. The complainant has also prayed Rs. 1,00,000/-as compensation and Rs. 15,000/- as litigation expenses. Alongwith the complaint, the complainant has placed on record his affidavit Ex. C-1, Copy of registration certificate Ex. C-2, copy of insurance cover note Ex. C-3, copy of FIR dated 28.11.2019 Ex. C-4, copy of letter dated 29.2.2020 Ex. C-5, copy of invoice dated 2.6.2020 Ex. C-7, C-8, copy of invoice dated 13.5.2020 Ex. C-6, photographs showing accident Ex. C-9, Copy of adhar card of complainant Ex. C-10.
2 After formal admission of the complaint, notice was issued to Opposite Parties and Opposite Parties appeared through counsel and filed written version contesting the complaint on the preliminary objections that the complaint is not maintainable in the present form. On receipt of intimation about the accident, the opposite party company immediately deputed IRDAI accredited independent Surveyor Sh. Sharanpal Singh for survey and assessment of loss caused to the tractor in the alleged accident as per the terms and conditions of the insurance policy. The aforesaid Surveyor submitted his final report dated 4.3.2020 assessing the loss to the tune of Rs.1,72,058/- on without prejudiced basis. He further noticed in his report that at the time of accident there were two persons sitting on the tractor where the tractor as per its registration certificate and policy has sitting capacity of only one person, hence it is the violation of MV Act, therefore, the report is forwarded to the underwriters for their consideration and final decision on the matter subject to terms and conditions of the insurance policy. After considering the report of surveyors and other documents on record, the opposite party insurance company found the claim of the complainant is not tenable and hence the liability under the insurance policy was repudiated. The decision of the claim was duly conveyed to the complainant vide letter dated 29.2.2020, so there is no deficiency in service on the part of the opposite party insurance company and it is the complainant himself who is liable for nonpayment of his claim. The complainant cannot take benefit of his own wrongs. The insurance contract is a bilateral contract between the insured and insurer and both the parties strictly bound by the terms and conditions of the policy, as agreed upon between the parties. The complainant has violated the terms and conditions of the Insurance Policy and has not complied with the conditions strictly as the contents of the FIR on the record regarding this occurrence is clearly evident that the vehicle of the complainant was being driven in violation of the Motor Vehicle Act as well as terms and conditions of the Motor Insurance policy, by carrying passenger on the vehicle beyond the permitted limit. As per insurance policy schedule: Limitation As to use: Miscellaneous and special type of vehicles- Class D:
The policy does not cover: (1) Use for hire or reward or racing pace making reliability trial or speed test. (2) Use for carriage of passengers for hire or reward. (3) Use whilst drawing a trailer except the towing (other than or reward) of any one disabled mechanically propelled vehicle. (4) Use whilst drawing a greater number of trailers in all than is permitted by law (For Agricultural and Forestry vehicles only)
The complainant is also in clear breach of condition No. 8 of the insurance Policy, reads as Under:
Condition No. 8 of Policy schedule “The due observance and fulfillment of the terms, conditions and endorsement of this policy in so far as they relate to anything to be done or complied with by the insured and the truth of the statements and answers in the said proposal shall be conditions precedent to any liability of the company make any payment under this policy”
Secondly, the vehicle of the complainant was reportedly met with an accident on 27.11.2019 whereas the opposite party company intimated only on 16.12.2019 i.e. after a delay of about 19 days, and the same is violation of condition No 1 of the insurance policy, reads as under:-
Condition No. 1 of policy schedule states that “Notice shall be given in writing to the company immediately upon the occurrence of any accidental loss or damages in the event of any claim and thereafter the insured shall give all such information and assistance as the company shall require. Notice shall also be given in writing to the company in respect of any occurrence which may give rise to a claim under this policy. In case of theft or criminal act which may be the subject of claim under the policy the insured shall give immediate notice to the police and cooperation with the company in security the conviction of the offender.”
In light to the above, the claim of the complainant was legally repudiated and closed as ‘No Claim’ by opposite party company. Hence there is no deficiency in service on the part of opposite party and the complaint of the complainant is deserved dismissal on that ground. The complainant has not come to the commission with clean hands. He is guilty of concealment of true and material acts as such he not entitled to the relief claimed in the complainant. The opposite party is not liable for misleads an unethical acts of complainant and hence the present complaint be dismissed with heavy costs. On merits, it is pleaded that the vehicle of the complainant was insured by the opposite party company vide policy No. M5057004 w.e.f. 22.12.2018 to 21.12.2019. The insurance policy is contractual in nature and the claims arising therein are strictly subject to the terms and conditions forming part of the policy. The opposite party has denied the other contents of the complaint and prayed for dismissal of the complaint. Alongwith the written version the opposite party has placed on file the affidavit of Sameer Gupta Vice President Ex. OPs/1, letter dated 29.2.2020 to Gurmail Singh son of Piara Singh Ex. OPs/2, final survey report by Saranpal Singh dated 4.3.2020 Ex. OPs/3, Motor Claim form Iffco Tokio Gen. Insurance company Ltd. Ex. OPs/4, Certificate for registration of PB46-AC-4966 Ex. OPs/5, letter dated 4.3.2020 by Er. Sranpal Singh to Manager Iffco Tokio Ex. OPs/6, FIR No. 305 dated 28.11.2019 U/s 304-A/337/338/279/427 IPC Ex. OPs/7, Insurance of Tractor having Chassis No. NHN36000ZJJ439878 in the name of Gurmail Singh son of Piara Singh Ex. OPs/8.
3 We have heard the Ld. Counsel for the complainant and opposite party and have gone through the evidence and documents placed on the file by the parties.
4 Ld. counsel for the complainant contended that the complainant is an agriculturist by profession and he had purchased one tractor bearing chassis No. NHN36000ZJJ439878 Engine No. 241722DX, bearing Registration Number Pb-46-AC-4966 in the year 2018 for his personal use to work in his fields and to carry his grain to market. The aforesaid tractor of the complainant was insured with the opposite parties vide policy Number M5057004 valid w.e.f. 22.12.2018 to 21.12.2019 Ex. C-3 and to avail said policy, the complainant had paid premium amount of Rs. 14,002.74 Paise to opposite parties. Unfortunately on 27.11.2019 the aforesaid tractor of the complainant met with an accident with a truck at Flyover, Goindwal Bye-pass, Tarn Taran and in the said accident, tractor of the complainant was badly damaged and information regarding the accident was duly given to the police and FIR No. 305 dated 28.11.2019 was registered by Police at Police City Tarn Taran Ex. C-4. He further contended that the complainant had brought his tractor for repair at Punjab Autos, Sarhali Road, Tarn Taran and information regarding accident was given by the complainant to the insurance company for its claim vide claim No. 37C97799. The surveyor was duly appointed by the opposite parties and documents as required were duly supplied by the complainant to the surveyor but after passage of time, inspite of approving the claim of the complainant, the opposite parties had sent letter dated 29.2.2020 to the complainant, wherein, it was informed to the complainant that claim filed by the complainant is not tenable and reason has been stated that “the registered sitting capacity of vehicle as per R.C. is one, but as per information/ FIR received, two persons were sitting in the vehicle at the time of accident. This is violation of the insurance policy terms and conditions”. He further contended that at the time of availing the insurance policy, only cover note was provided but no term and conditions were explained and provided to the complainant. The complainant has not filed the claim of deceased involved in the accident but has filed claim for the repair of the vehicle, which was duly insured by the opposite parties, as such, the opposite parties in order to avoid the claim has wrongly rejected the claim of the complainant. He further contended that the opposite parties have rejected the claim of the complainant, but the vehicle was lying with the service centre, as such, as per instructions of the complainant, the tractor of the complainant was got repaired by the service centre and invoice No. 232 and 233 of dated 2.6.2020 Ex. C-7 and C-8 were issued by the service centre and the complainant has paid the repair cost amount as per invoice to the tune of Rs. 2,05,507/-, Rs. 21,195/- alongwith labour charges of Rs. 10,500/- in total Rs. 2,37,200/- was paid by the complainant to get repair his tractor. He further contended that beside this, another amount of Rs. 65,200/- for the purchase of new tyres and tubes was also incurred by the complainant vide invoice dated 13.5.2020. Rejection of valid claim of the complainant by the opposite parties is illegal on their part as the claimant was having valid insurance policy with him, driver of the tractor was having valid driving licence, but with malafide intention, claim of the complainant has been rejected by the opposite parties which amounts to unfair trade practice and deficiency in service on part of the opposite parties and prayed that the present complaint may be allowed. On the other hands. Ld. counsel for the opposite party contended that On receipt of intimation about the accident, the opposite party company immediately deputed IRDAI accredited independent Surveyor Sh. Sharanpal Singh for survey and assessment of loss caused to the tractor in the alleged accident as per the terms and conditions of the insurance policy. The aforesaid Surveyor submitted his final report dated 4.3.2020 assessing the loss to the tune of Rs.1,72,058/- on without prejudiced basis. He further noticed in his report that at the time of accident there were two persons sitting on the tractor where the tractor as per its registration certificate and policy has sitting capacity of only one person, hence it is the violation of MV Act, therefore, the report is forwarded to the underwriters for their consideration and final decision on the matter subject to terms and conditions of the insurance policy. He further contended that after considering the report of surveyors and other documents on record, the opposite party insurance company found the claim of the complainant is not tenable and hence the liability under the insurance policy was repudiated. The decision of the claim was duly conveyed to the complainant vide letter dated 29.2.2020, so there is no deficiency in service on the part of the opposite party insurance company and it is the complainant himself who is liable for nonpayment of his claim. He further contended that the complainant has violated the terms and conditions of the Insurance Policy and has not complied with the conditions strictly as the contents of the FIR on the record regarding this occurrence is clearly evident that the vehicle of the complainant was being driven in violation of the Motor Vehicle Act as well as terms and conditions of the Motor Insurance policy, by carrying passenger on the vehicle beyond the permitted limit. As per insurance policy schedule: Limitation As to use: Miscellaneous and special type of vehicles- Class D:
The policy does not cover: (1) Use for hire or reward or racing pace making reliability trial or speed test. (2) Use for carriage of passengers for hire or reward. (3) Use whilst drawing a trailer except the towing (other than or reward) of any one disabled mechanically propelled vehicle. (4) Use whilst drawing a greater number of trailers in all than is permitted by law (For Agricultural and Forestry vehicles only)
He further contended that the complainant is also in clear breach of condition No. 8 of the insurance Policy, reads as Under:
Condition No. 8 of Policy schedule “The due observance and fulfillment of the terms, conditions and endorsement of this policy in so far as they relate to anything to be done or complied with by the insured and the truth of the statements and answers in the said proposal shall be conditions precedent to any liability of the company make any payment under this policy”
He further contended that the vehicle of the complainant was reportedly met with an accident on 27.11.2019 whereas the opposite party company intimated only on 16.12.2019 i.e. after a delay of about 19 days, and the same is violation of condition No 1 of the insurance policy, reads as under:-
Condition No. 1 of policy schedule states that “Notice shall be given in writing to the company immediately upon the occurrence of any accidental loss or damages in the event of any claim and thereafter the insured shall give all such information and assistance as the company shall require. Notice shall also be given in writing to the company in respect of any occurrence which may give rise to a claim under this policy. In case of theft or criminal act which may be the subject of claim under the policy the insured shall give immediate notice to the police and cooperation with the company in security the conviction of the offender.”
In light to the above, the claim of the complainant was legally repudiated and closed as ‘No Claim’ by opposite party company. Hence there is no deficiency in service on the part of oppo9te party and the complaint of the complainant is deserved dismissal on that ground. And prayed that the present complaint may be dismissed.
5 In the present case, insurance is not disputed. The opposite party has repudiated the claim of the complainant on one of the ground that on receipt of intimation about the accident, the opposite party company immediately deputed IRDAI accredited independent Surveyor Sh. Sharanpal Singh for survey and assessment of loss caused to the tractor. The aforesaid Surveyor submitted his final report dated 4.3.2020 assessing the loss to the tune of Rs.1,72,058/- on without prejudiced basis. He further reported in his report that at the time of accident there were two persons sitting on the tractor where the tractor as per its registration certificate and policy has sitting capacity of only one person, hence it is the violation of MV Act. After considering the report of surveyor and other documents on record, the opposite party insurance company found the claim of the complainant is not tenable and hence the liability under the insurance policy was repudiated. The claim of the complainant has been repudiated on the basis of report of surveyor. The opposite parties have placed on record report of surveyor as Ex. OPs/6. But to prove the report of surveyor Ex. OPs/6, the opposite parties have not placed on record the affidavit of surveyor. In the absence of which no evidentiary value can be made on the report submitted by the surveyor. Reliance in this connection has been placed upon Manikant Vs. New India Assurance Co.Ltd. 1(2012) CPJ 88 (NC) of the Hon’ble National Commission wherein it has been held that the surveyor did not appear in court and subject himself to cross examination nor was any affidavit filed by him to prove his report . Producing a document in court does not by itself constitute proving the document. It has to be backed by credible evidence. In the instant case, no evidence was led to prove the surveyor’s report in the absence of which the surveyor’s report has little evidentiary value. The complainant has submitted all the documents for settlement of claim. The opposite party on the one hand is saying that there the vehicle of the complainant was reportedly met with an accident on 27.11.2019 whereas the opposite party company intimated only on 16.12.2019 i.e. after a delay of about 19 days. This delay in the opinion of the Commission is not such a delay which could compel the insurance company to close or repudiate the claim of the complainant. Otherwise also, a circular dated 20.9.2011 was issued by IRDA, referred to all the insurance companies, which reads as under:-
“Circular
To: All Life Insurers and non-life insurers
Re: Delay in claim intimation/ documents submission with respect to
i) All life insurance contracts and
ii) All Non-life individual and group insurance contracts.
The Authority has been receiving several complaints that claims are being rejected on the ground of delayed submission of intimation and documents.
The current contractual obligation imposing the condition that the claims shall be intimated to the insurer with prescribed documents within a specified number of days is necessary for insurers for effecting various post claim activities like investigation, loss assessment, provisioning, claim settlement etc. However, this condition should not prevent settlement of genuine claims, particularly when there is delay in intimation or in `submission of documents due to unavoidable circumstances. The insurers’ decision to reject a claim shall be based on sound logic and valid grounds. It may be noted that such intimation clause does not work in isolation, and is not absolute. One needs to see the merits and good spirit of the clause, without compromising on bad claims. Rejection of claims on purely technical grounds in a mechanical fashion will result in policy holders losing confidence in the insurance industry, giving rise to excessive litigation.
Therefore, it is advised that all insurers need to develop a sound mechanism of their own to handle such claims with utmost care and caution. It is also advised that the insurers must not repudiate such claims unless and until the reasons of delay are specifically ascertained, recorded and the insurers should satisfy themselves that the delayed claims would have otherwise been rejected even if reported in time.
The insurers are advised to incorporate additional wordings in the policy documents, suitably enunciating insurers’ stand to condone delay on merit for delayed claims where the delay is proved to be for reasons beyond the control of the insured.
J. Harinarayan
Chairman”:
A bare reading of circular shows that if the claim is otherwise payable then it should not be repudiated or rejected simply on the ground of delay and delay is only to be considered when claim is otherwise not made out and is liable to be rejected even if the matter has been reported in time. In case titled as National Insurance Company Limited Vs. Kulwant Singh 2014(IV) CPJ page 62 (NC) the Hon’ble National Commission observed that the insurance company should not have repudiated the claim merely on account of delay in giving the information to insurance company particularly when there was absolute no delay in lodging the FIR with the police. In the case in hand also, accident took place on 27.11.2019 and intimation to the police and FIR No. 305 was registered on 28.11.2019 and as such, there was no delay at all for giving the intimation to the police. Moreover, in similar case titled as Reliance General Insurance Company Limited- Petitioner Vs. Sri Avvn Ganesh-Respondent 2012(1) CPJ page 176 in case under Consumer Protection Act, 1986 the intimation of death was given to the insurer with delay and claim was repudiated on the ground that death of insured was intimated after 4 months as against stipulated period of one month. The complainant filed complaint on the allegation of deficiency in service by insurance company, but the same was dismissed, but appeal filed by the complainant was allowed by Hon’ble State Commission. On revision, the Hon’ble National Commission, New Delhi observed that all the conditions for acceptance of insurance claim except point of reporting loss within one month of its occurrence had been substantially fulfilled and delayed intimation of death of insured due to injuries he suffered on account of accident could not be held to be destructive to insurance claim because the facts and circumstances of death were clearly established on the basis of medical on records as well as deposition of doctor who attended the insured and it was observed that like in case of theft of moveable insured property, delay in intimation was not prejudicial to the insurer because in such cases, Insurance company was not prevented, because of delay, from carrying out any investigation into the facts and circumstances as to whether the accident and consequent loss fell within the substantive condition of insurance policy and no infirmity was found in the order and revision petition was dismissed. In the case in hand also, there is delay of 19 days as claimed by the Opposite Party which is not material in the case in hand for closing or repudiating the claim case of the complainant and as such, the complainant is entitled to claim the insurance amount of the vehicle in question.
6 Furthermore, the opposite parties have repudiated the claim of the complainant on the ground that the complainant has violated the terms and conditions of the policy. But during the arguments Ld. counsel for the complainant has contended that the opposite parties have not explained the terms and conditions of the policy in question to the complainant and same are not supplied or explained to her at the time of inception of insurance policy. He placed reliance on citation 2001(1)CPR 93 (Supreme Court) 242 titled as M/s Modern Insulators Ltd Vs The Oriental Insurance Company Ltd, wherein Hon’ble Apex Court held that clauses which are not explained to complainant are not binding upon the insured and are required to be ignored. Moreover, it is usual with the insurance company to show all types of green pastures to the customer at the time of selling insurance policies, and when it comes to payment of the insurance claim, they invent all sort of excuses to deny the claim. In the facts of this case, ratio of the decision of Hon‟ble Apex Court in case of Dharmendra Goel Vs. Oriental Insurance Co. Ltd., III (2008) CPJ 63 (SC) is fully attracted, wherein it was held that, Insurance Company being in a dominant position, often acts in an unreasonable manner and after having accepted the value of a particular insured goods, disowns that very figure on one pretext or the other, when they are called upon to pay compensation. This, take it or leave it‟, attitude is clearly unwarranted not only as being bad in law, but ethically indefensible. It is generally seen that the insurance companies are only interested in earning the premiums and find ways and means to decline claims. In similar set of facts the Hon’ble Punjab & Haryana High Court in case titled as New India Assurance Company Limited Vs. Smt.Usha Yadav & Others 2008(3) RCR (Civil) Page 111 went on to hold as under:-
“It seams that the insurance companies are only interested in earning the premiums and find ways and means to decline claims. All conditions which generally are hidden, need to be simplified so that these are easily understood by a person at the time of buying any policy. The Insurance Companies in such cases rely upon clauses of the agreement, which a person is generally made to sign on dotted lines at the time of obtaining policy. Insurance Company also directed to pay costs of Rs.5,000/- for luxury litigation, being rich.
7 In view of the above discussion, the present complaint is allowed and the opposite parties are directed to make the payment of Rs. 3,02,400/- to the complainant within one month from the date of receipt of copy of this order. The complainant has also been harassed by the opposite parties for a long time, as such the complainant is also entitled to Rs. 15000/- as compensation on account of harassment and mental agony and Rs 10000/- as litigation expenses. Opposite Parties are directed to comply with the order within one month from the date of receipt of copy of the order, failing which the complainant is entitled to interest @ 9% per annum, on the awarded amount, from the date of accident till its realisation. Case could not be disposed of within the stipulated period due to heavy pendency of the cases in this Commission and due to COVID-19. Copies of the order be furnished to the parties as per rules. File is ordered to be consigned to the record room.
Announced in Open Commission.
18.01.2023
