DISTRICT CONSUMER DISPUTES REDRESSAL FORUM,JAMMU
(Constituted under J&K Consumer Protection Act,1987)
.
Case File No 17/DFJ
Date of Institution 11-04-2015
Date of Decision 24-02-2018
Jagdish Chander,
S/O Sh.Kapoor Chand,
R/O Ward No.1 Arnia Bishnah,
District Jammu.
Complainant
V/S
Iffco Tokio General Insurance Company Ltd.
4th & 5th Floor,Iffco Tower,Plot No.3,Sector 29,
Gurgaon-122001.
Opposite party
CORAM
Khalil Choudhary (Distt.& Sessions Judge) President
Ms.Vijay Angral Member
Mr.Ghulam Sarwar Member.
In the matter of Complaint under section 10 of J&K Consumer
Protection Act 1987.
Mr. Manohar Singh, Advocate, for complainant, present.
Mr.Dewakar Sharma,Advocate for OPs, present.
ORDER
Facts relevant for the disposal of complaint on hand are that complainant being owner of SX4-VDI/MARUTI SX4 VDI bearing registration, No. JK02BB-2298, got the said vehicle insured with OP,vide Policy No.88485927 issued on,24-02-2014 and was valid upto 24-02-2015,copy of insurance policy is annexed as Annexure-A and the complainant being resident of border area and on 06-10-2014 the abovesaid vehicle was damaged in firing/shelling across border for which the report has been entered in the Police Station Arnia vide DD NO.13 O9 of 2014,copy of police report is annexed as Annexure-B..According to complainant, he parked his vehicle at M/S Peaks Auto (P) Ltd.authorised dealer of Maruti Suzuki India Ltd.for repair of vehicle and the surveyor of OP was called at M/S Peaks Auto (P)Ltd.,but the surveyor of OP refused to process the claim of complainant for the reason best known to him and he was compelled to spend Rs.72,319/-from his pocket for the repair of vehicle,copy of bill is annexed as Annexure-C. Allegation of complainant is that since his vehicle is fully insured by OP,so the OP is legally liable to indemnify the loss caused to the vehicle. Complaint further proceeds on the premise that he submitted all requisite documents and gave them many reminders to OP,but all in vain and this act of OP constitutes deficiency in service. Hence present complaint. Therefore under these circumstances, complainant approached this Forum with the prayer for compensation and indemnification of loss to the tune of Rs.1,72,319/-under different heads.
On the other hand,OP filed written version and resisted the complaint on the ground that the insurer had taken all necessary steps to co-operate the insured for smooth disposal of the claim of insured for the damages caused to his vehicle in the accident, the allegations of deficiency in service are wholly misconceived,baseless,concocted & unsustainable in law besides being extraneous and irrelevant with regard to the facts and circumstances of the mater under reference. It is submitted that the answering OP has denied the claim of complainant on the facts that the insured vehicle got damaged not due to out of vehicle but due to firing and shelling across the border and such damages are not covered under the policy. The Op further submitted that as per policy provisions, under general exception No.6 which says any accidental loss or damage and/or liability directly or proximately or remotely occasioned by or contributed to by or traceable t or arising out of or in connection with war, invasion, the act of foreign enemies, hostilities or warlike operations (whether or after declaration of war) civil car, mutiny rebellion, military usurped power or by any direct or indirect consequences. The OP further submitted that complainant has failed to fulfill necessary terms and conditions of the policy and he allowed the vehicle been plied by the person who was not having valid and effective driving licence and the vehicle was driven in contravention of terms and conditions of the policy, as such the present complaint is not maintainable.
Complainant adduced evidence by way of duly sworn evidence affidavit and affidavits of Raj Pal and Ashok Kumar,respectively.C omplainant has placed on record copy of policy, copy of certificate issued by SHO Police Station Arnia and copy of invoice issued by Peaks Auto (P) Ltd.
On the other hand,OP adduced evidence by way of duly sworn evidence affidavit of Arun Kotwal Marketing Executive.
We have perused case file and heard L/Cs appearing for the parties at length.
After hearing L/Cs for parties and perusing the case file, the point for consideration is, as to whether or not OP is deficient in service in not settling the case of the complainant.
Before heading further, it is to be noted that since parties have lead evidence in the shape of evidence affidavits, which are much or less reproduction of contents of their respective pleadings,therefore,we do not feel it necessary to represent the same again and if need arises, same would be referred hereinafter at appropriate stage.
L/C for complainant vehemently argued that despite completion of all requisite formalities,OP did not indemnify the loss suffered by the complainant, therefore, same constitutes deficiency in service. On the other hand, submission of L/C for OP is that the insurer had taken all necessary steps to co-operate the insured for smooth disposal of the claim of insured.L/C for OP further submitted that the insured vehicle got damaged not due to out of vehicle but due to firing and shelling across the border and such damages are not covered under the policy and as per policy provisions, under general exception No.6 which says any accidental loss or damage and/or liability directly or proximately or remotely occasioned by or contributed to by or traceable t or arising out of or in connection with war, invasion, the act of foreign enemies, hostilities or warlike operations (whether or after declaration of war) civil car, mutiny rebellion, military usurped power or by any direct or indirect consequences.
Be it noted that in so far as insurance of vehicle in question and its loss during currency of policy is concerned, same are not in dispute. According to complainant, insured vehicle suffered loss.In order to support his contention that loss to the insured vehicle is suffered, complainant relied upon estimation details.
Once it has been shown that vehicle was comprehensively insured and it was damaged during currency of Insurance Policy, in that event, OP is not expected to devoid the benefits of Insurance Policy to the insured on technical grounds, which are short of fundamental breach of contract of indemnity.
Otherwise also legally speaking it is settled law that the parties are always bound and governed by the terms and conditions of contract and whenever contract is entered into there is proposal made by one party in its unequivocal and unambiguous terms conveyed to the otherside and acted by otherside with the same response and in its understanding and knowledge leaving no scope of any future suspicion and incredibility in mind to come in the way of the said contract afterwards.
Here we would like to refer to the judgment of Honble High Court of Gauhati passed in a case titled,North Goalpara Motor Workers Cooperative Society Ltd. V/S New India Assurance Co.Ltd.and ors.wherein their lordship has been pleased to held as:
Liability of Insurer-Damage to vehicle-The words ‘use of a motor vehicle’-Cover accidents which occur both when the vehicle in question is in motion as also when it is stationary-Bomb exploded inside the bus when it was standing/stationary and,therefore,the accident had arisen out of the use of the vehicle in question-That part, when the accident took place on 10-02-89,the Bangaigaon District was not declared as a terrorist affected area and the vehicle was duly covered by the insurance policy, without any default on the part of the owner in payment of the insurance premia;nor had the insurance lapsed during the relevant period of time-Insurance company in the circumstances cannot avoid its liability of payment of compensation
Admittedly, as per Police Report issued by SHO Police Station Arnia,it is certified that the car bearing registration No.JK02BB/2298 belongs to Jagdish Chander was damaged in firing/shelling across the border on,06-10-2014,i.e. during the validity of Insurance Policy, insuring the vehicle for Rs.6,76,697/-on a premium of Rs.12838.
It is needful to reproduce the judgment of Honble Supreme Court passed in Oriental Insurance Company Ltd.V/S M/S Ozma Shipping Co.and Anr.2010 AIR SCW 514 wherein it has been held;
Before parting with this case we would like to observe that the insurance companies in genuine and bona fide claims of the insured should not adopt the attitude of avoiding payments on one pretext or the other. This attitude puts a serious question mark on their credibility and trustworthiness of the insurance companies. Incidentally by adopting honest approach and attitude the insurance companies would be able to save enormous litigation costs and the interest liability.
The claim of complainant is also strengthen by invoice issued by Peaks Auto (P)Ltd.,wherein it is clearly mentioned that an amount of Rs.72,319/-has been paid by the complainant to Peaks Auto (P)Ltd.Therefore,OP is duty bound to indemnify the complainant, under the terms of policy.
Therefore, in view of the foregoing reasons the complaint filed by the complainant for redressal of his grievance is allowed and OP is directed to pay to the complainant an amount of Rs.72,319/-alongwith interest 7% per annum w.e.f.03-12-2014(i.e. from the date of payment of bill),till its realization. The complainant is also entitled to compensation of Rs.10,000/-for causing unnecessary harassment and mental agony and litigation charges of Rs.5000/-.The OP shall comply the order within one month from the date of receipt of this order. Copy of this order be provided to both the parties as per requirement of the Act. On deposit of the amount in this Forum, the same shall be paid to the complainant through payees account cheque.The complaint is accordingly disposed of and file be consigned to records after its due compilation.
Order per President Khalil Choudhary
(Distt.& Sessions Judge)
Announced President
24-02-2018 District Consumer Forum
Agreed by Jammu.
Ms.Vijay Angral
Member
Mr.Ghulam Sarwar Chauhan,
Member
