DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-II
Udyog Sadan, C-22 & 23, Qutub Institutional Area
(Behind Qutub Hotel), New Delhi-110016.
Case No.634/2008
Sh. Abdul Khaliq
S/o Sh. Ata Ur Rehman
R/o H. No. 121, Gali No.3,
IInd Floor, Lalita Park,
Laxmi Park, Delhi-110092 ….Complainant
Versus
Iffco -Tokio General Insurance Co. Ltd.
Through its Director/Manager
FAI Building-10, Shaheed Jeet Singh Marg,
New Delhi-110067 ……Opposite Party
Date of Institution : 29.09.08 Date of Order : 21.03.16
Coram:
Sh. N.K. Goel, President
Ms. Naina Bakshi, Member
O R D E R
The case of the Complainant, in brief, is that he had purchased a new car Toyota Innova bearing registration No. DL 7CE 6427 from MGF Toyota, Sector-18, Gurgaon, Haryana on 28.06.06 under the financial assets of ICICI Bank. He got insured the same form the OP on 28.06.06 vide policy No. 35588755 and certificate No. 35584234 and insurance premium of Rs.33,000/- was paid by the Complainant. The actual ex-showroom value of the said car was Rs.8,62,200/- as well as Rs.75,208/- for insurance, temporary and permanent registration charges at the time of purchase. Thereafter, he had spent about Rs.48,000/- on the decoration of the car and as such the total actual value of the said car became Rs.9,85,000/-on road. He had purchased the car for private/personal use; on 22.06.07 when the family of the friend of Complainant was going to pilgrim on the hill area of Himachal Pradesh and the car was going to upper side from the lower side on the hill road suddenly an unknown truck came from the upper front side and hit the side of his car and the car became out of control and fell down into the lower hill road. A FIR No. 76/07 U/s 279/337/304A IPC was registered at P.S. Kotkehloor, Vilash Pur, Himachal Pradesh on the same day. In the said accident, the car was completely damaged and all the persons who were travelling in the car were seriously injured and out of them four persons had died. He immediately informed the Customer Care Executive of the OP regarding accident and brought the damaged car in the showroom/workshop of MGF Toyota and paid Rs.10,000/- for hiring the truck to bring the car. The Surveyor of the OP conducted the survey and sent a complete damaged car report to the OP. Even after receiving the report from Surveyor, the OP neither paid the compensation/Claim to him nor given any satisfactory reply even despite several requests to the OP. He sent a legal notice on 12.06.08 but OP even after receiving the legal notice neither paid the claim nor replied the notice. The car was lying in the workshop of the company and they have charged Rs.6742/- for keeping the car. The OP is bound to pay Rs.10 lacs to the Complainant because the car met with accident on 22.06.07 and the insurance policy of the car was valid w.e.f. 28.06.06 to 27.06.07 and on the date of accident the car was having valid insurance policy and its driver was having valid driving license. Hence, the OP is liable to pay the claim to the Complainant. The Complainant has prayed as under: -
- Direct the OP to pay the claim amount of Rs.10 lakh to the Complainant alongwith @ 24% interest per annum.
- Direct the OP to pay Rs.2000/- per day to the Complainant from the date of accident i.e. 22.06.07 upto the final realization of the claim.
- Direct the OP to pay to the Complainant the cost and expenses of the present petition as well as the fee of Advocate of Rs.22,000/-.
OP in the written statement has stated that the vehicle No. DL-7CE-6427 (Innova) was insured with the OP under policy /cover note No. 35588755 under the private vehicle category as specified by the Complainant. The premium was received towards the private vehicle and not for commercial vehicle, although the Complainant had an option to take a commercial policy after paying all the dues to the Govt. under the Motor Vehicles Act. The vehicle met with an accident and fell into the gorge while going towards Naina Devi in Himachal Pradesh. There were 12 passengers in the car whereas the seating capacity was 7 + 1. As per the investigation, the FIR No. 76/07 dated 22.06.07 was also lodged under sections 279/337/304A IPC. In the accident, four persons had died, namely, Sh. Sunil Nagpal, Ms. Sarla Nagpal, Ms. Parul Nagpal and Mr. Karan Nagpal residents of 2972, Shalimar Park, Bholanath Nagar, Shahdara, Delhi and other occupants were injured in the accident. The spot survey was also conducted. The speedometer was found to be broken and not working. The investigator M/s Royal Associates investigated the matter and enquired from the injured Sh. Rajiv Nagpal who had told that he was running a private business and on 19.06.07 he alongwith the family members i.e. mother Sarla Devi, nephew Karan, brother Sunil Nagpal, wife Parul Nagpal, niece Aakansha, sister-in-law Vijay Nagpal, relative Ravi Pasricha, son Lokesh had gone on tour to Haridwar and Naina Devi. They hired one Innova car No. DL-7CE-6427 @ Rs.9.50 per k.m. for this tour. On 22.06.07 after visiting Haridwar they were going to Naina Devi. At noon when they were 8 km short before Naina Devi, due to the negligence of the driver the Innova went out of control and fell into deep hills and in that accident his wife, mother, brother and nephew died and the other sustained injuries and were still under treatment. The survey was conducted and on enquiry it was revealed that the family was travelling for hire and reward and the vehicle was being plied for commercial purposes; that the Complainant has wrongly stated that Sh. Rajiv Nagpal and his family were the friends of his driver whereas it was revealed from the spot enquiry that the vehicle was being used for commercial purpose. The accident was caused due to the over loading of the passengers. The vehicle was also inspected. There was no relationship between the passengers and the driver or the owner of the vehicle. The said information was revealed after the investigation from the passengers. Hence, the claim was repudiated on the ground of usage of the private vehicle for hire and reward. Even the driver gave a wrong statement that the occupants were his friends. But during the investigation they were not found to be related in any manner whatsoever. The FIR spoke that 12 passengers were travelling in the Innova car. OP has further stated that the vehicle was insured only for private use and not for the commercial use. The premium was collected for the private vehicle. It was the onerous duty of the Complainant to strictly ply the vehicle as per terms and conditions. The various investigative reports showed that the vehicle was being plied for a commercial purpose without payment of commercial usage which had caused revenue loss to the Govt. of NCT of Delhi. The parties to the contract were supposed to adhere to the privity of the contract and to the extent of the premium paid. As there was violation of the terms and conditions of the policy, they sent a letter dated 09.10.2007 to the Complainant repudiating the claim specifying the reasons. OP has prayed for dismissal of the complaint.
In the rejoinder, Complainant has stated that the passengers were the family friends of the Complainant. It is denied that 12 passengers were travelling in Innova car. The vehicle was a private vehicle and was used only for private use and not for commercial use. The contract between the insured applicant and the OP was on the basis of collection of the premium. The OP had collected the premium for the private vehicle and not for the commercial purpose. It is also denied that there is serious fundamental breach of terms and conditions of the policy as the usage was supposed to be strictly as per the Motor Vehicles Act.
Complainant has filed his own affidavit in evidence while affidavit of Sh. P. J. Pradhan, Vice President has been filed in evidence on behalf of the OP.
No Written arguments have been filed on behalf of the Complainant
Written arguments have been filed on behalf of the OP.
It is not in dispute that the Complainant had insured his vehicle bearing No. DL-7CE-6427 vide policy No.35588755 and paid Rs.33,000/- as an insurance premium to the OP on 28.06.2006. The vehicle met with an accident on 22.06.07. The Surveyor after inspection gave a report that the number of the passengers travelling in the vehicle exceeded the licensed capacity. In the FIR, it is mentioned that 12 persons including the driver were travelling at the time of accident.
In view of the above, it is proved that at the time of accident 12 persons were travelling in the car and as per the RC only 8 persons could travel in the vehicle. The surveyor has in its report stated that the accident had occurred due to excessive number of passengers. There was a violation of RC and the terms and conditions of the policy. During the investigation, it was found that Mr. Rajiv Nagpal had confirmed that he is having private business and on 19.06.07 he alognwith his family members had gone on tour to Haridwar and Naina Devi. They hired one Innova No. DL-7CE-6427 (i.e. the car in question) @ Rs.9.50 per k.m. for the tour. On 22.06.07 after visiting Haridwar they were going to Naina Devi. Hence, it is clear that the vehicle in question was being used for commercial purpose at the time of accident whereas the Complainant had a policy for personal use only. Therefore, we hold that the Complainant has not been able to prove deficiency in service on the part of OP. Accordingly, the complaint is dismissed. The parties are left to bear their own costs.
Let a copy of this order be sent to the parties as per regulation 21 of the Consumer Protection Regulations. Thereafter file be consigned to record room.
Announced on 21.03.16.
(NAINA BAKSHI) (N.K. GOEL) MEMBER PRESIDENT
Case No. 634/08
19.3.2016
Present – None.
Vide our separate order of even date pronounced, the complaint is dismissed. Let the file be consigned to record room.
(NAINA BAKSHI) (N.K. GOEL) MEMBER PRESIDENT
