Punjab

Patiala

CC/14/316

Sandeep Kumar - Complainant(s)

Versus

Iffico Tokkio Co.ltd - Opp.Party(s)

Surinder Gupta

16 Apr 2015

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM,

PATIALA.

 

                                      Complaint No. CC/14/316 of 12.11.2014

                                      Decided on: 16.4.2015

 

Sandeep Kumar aged 32 years s/o Sh.Kailash Chand R/o H.No.24, Muniara Mohalla, Samana, Tehsil Samana, District Patiala.       

 

                                                                  Complainant

                                      Versus

IFFCO-TOKIO General Insurance Company Ltd.,5C/1, Sheetal Complex, Ground Floor, Near CMO Complex,Rajbaha Road, Patiala through its Branch Manager.

                                                                  Ops

 

                                      Complaint under Section 12 of the

                                      Consumer Protection Act.

 

                                      QUORUM

 

                                      Sh.D.R.Arora, President

                                      Smt.Neelam Gupta, Member

                                      Smt.Sonia Bansal, Member

                                     

                                                                            

Present:

For the complainant:     Sh.Surinder Gupta , Advocate

For Op        :                  Sh.D.P.S.Anand,Advocate     

                                     

                                         ORDER

D.R.ARORA, PRESIDENT

1. The complainant got his car make Mohindra Verito bearing registration No.PB-11-BB-6904, insured with the op vide policy No.1-2F71GN6 for the period 15.11.2013 to 14.11.2014.The said car of the complainant had met with an accident on 26.2.2014 near Taj Palace at Sunam while returning from Bathinda while being driven by Mandeep Singh son of Gurcharan  Singh because of some fault having developed in the car and same having gone out of control and the same having had hit against a tree. The car was totally damaged. The driver died in the accident at the spot while the other occupants sustained the injuries. DDR no.8 dated 27.2.2014 was lodged with  P.S.City Sunam by Kishan Chand, the occupant of the other car following the ill-fated car. The registration number of the car was got corrected as PB-11-BB-6904 make Mohindra Verito instead of the car make  Swift as mentioned in the DDR No.8 dated 27.8.2014 vide DDR No.30 dated 15.3.2014 by the complainant.
2. The intimation regarding the incident was given to the official of the op immediately on 27.2.2014 and thereafter the same was taken to the workshop having engaged the crane of M/s Guru Nanak Garage Services ,Samana. The complainant lodged the claim with the op for a sum of Rs.5,30,000/- plus the lifting charges of Rs.4100/-. The surveyor of the op inspected the damaged vehicle. All the relevant documents as required were handed over to the surveyor, who assured the complainant to submit his report to the insurance company within a month.
3. The complainant visited the op a number of times as also the surveyor with a request to pass the claim in respect of the total loss of the vehicle at the earliest but they went on disclosing that the matter was under investigation.
4. On 10.10.2014, the complainant received a letter from the op having informed him interalia, “The registered seating capacity of vehicle as per RC is 5’ but as per surveyor report 6 passenger were seating at the material time of accident; this is a violation of the insurance policy terms and conditions as well as related provisions of Motor Vehicle Act,1988. In the light of above, we regret to inform you that your claim is not tenable and we are closing the same as “No Claim”.
5. On receipt of the said letter the complainant immediately approached the op and tried to convince that the DDR had been lodged by the occupant of the another vehicle, who had wrongly got the make of the vehicle written as Swift  which was lateron got corrected by him and that 4 persons were sitting in the car at the time of the accident. The complainant tried his best to convince the officials of the op that four persons plus the driver Mandeep Singh were sitting in the car at the time of the incident but the op was determined to repudiate the genuine claim of the complainant. Accordingly the complainant has brought this complaint against the op under Section 12  of the Consumer Protection Act,1986 ( for short the Act) for a direction to the Op to pay him Rs.5,30,000/- towards the claim of the vehicle plus Rs.4100/-, the lifting charges, Rs.10,000/- by way of compensation on account of the harassment and the mental agony and further to award him  Rs.10,000/- towards the expenses of the litigation.
6. On notice, the op appeared and filed the written version. It is admitted by the Op that it had issued Private Car Package Policy in respect of car No.PB-11-BB-6904 for the period 15.11.2013 to 14.11.2014 for the sum insured of Rs.5,30,000/- in favor of the complainant but the op has got no liability to pay any claim. It is denied that the car had met with an accident on 26.2.2014 near Taj Palace at Sunam as alleged. It is also denied that DDR no.8 dated 27.2.2014 was lodged with P.S.City Sunam and the same was got corrected vide DDR No.30dated 15.9.2014.It is also denied that the accident had taken place because of the car having developed some fault and the same having gone out of  control of the driver and the same having hit against a tree and that the car was totally damaged. It is however, admitted that on receipt of the intimation regarding the loss on 27.2.2014, the Op had immediately deputed Sh.S.P.J.Singh IRDA approved surveyor to assess the loss, who vide his report assessed the loss in a sum of Rs.4,49,000/- and the surveyor further found that two persons namely Mandeep Kumar, driver and Diwan Chand Goyal had died at the spot while four other persons seated in the car had sustained minor injuries. It is denied that the surveyor had assured the complainant that he will submit his report within a month after getting the  documents verified.
7. It is admitted by the op that it had repudiated the claim of the complainant on 8.10.2014 on the ground that the vehicle was over loaded and the insured had been informed accordingly. It is denied that after the repudiation of the claim, the complainant had approached the op. It is denied by the op that four persons were sitting in the car at the time of the accident. It is denied that the op repudiated the claim of the complainant illegally and arbitrarily. The Op has denied the jurisdiction of the Forum to try the complaint. After denouncing the other allegations of the complaint, going against the op, it was prayed to dismiss the complaint.
8. In support of his complaint, the complainant produced in evidence Ex.CA his sworn affidavit alongwith documents Exs.C1 to C7 and his counsel closed the evidence.
9. On the other hand, on behalf of the Op, its counsel tendered in evidence Ex.OPA, the sworn affidavit of Palvi Raj, Vice President  of the op at New Delhi, Ex.OPB, the sworn affidavit of Sh.S.P.J.Singh, surveyor and loss assessor at Patiala alongwith documents Exs.OP1 to OP5 and closed its evidence.
10. The parties failed to file the written arguments. We have heard the learned counsel for the parties and gone through the evidence on record.
11. Ex.OP2 is the repudiation letter dated 8.10.2014 written by the Op to the complainant on the subject: Claim for your vehicle No.PB 11BB6904, date of loss 27.2.2014, policy No.85787022 Claim No.33806931  and informed him, on careful perusal of the report of the surveyor they noticed as under:

• The registered seating capacity of vehicle as per Registration Certificate is 5 but as per survey report 6 passengers were seating at the material time of accident.
• This is a violation of the insurance policy terms and conditions as well as relevant provisions of the Motor Vehicle Act,1988.

In the light of the above, we regret to inform you that your claim is not tenable and we are closing the case as “No Claim”

12.  As regards the number of the occupants in the car make Mohindra Verito bearing registration No.PB11BB6904 at the time of the accident, they were 6 in number as can be made out from Ex.C3, copy of DDR no.8 dated 27.2.2014 lodged with P.S.City Sunam by Kishan Chand s/o Desh Raj Aggarwal R/o Sector 44C,Chandigarh. He categorically got it recorded in the said DDR that on 26.2.2014 he alongwith the members of his family as also his brother Dewan Chand Goyal s/o Desh Raj r/o Sector 44 C, Chandigarh with the members of his family had gone to Bathinda in their separate vehicles to attend the marriage of a relative and that on 27.2.2014 after attending the marriage they were coming back from Bathinda in their vehicles. The car make Swift of his brother Dewan Chand Goyal was being driven by Mandeep Singh s/o Gurcharan Singh, r/o Khalsa Colony,Samana. When they reached near Taj Palace near Samana at about 3.30AM that the car of his brother namely Dewan Chand Goyal, which was going ahead of his car, had gone out of order because of a technical fault and the same hit against the tree on the right side. The car got turned turtle and thereafter the same had again come into original position. After stopping his car they had reached the place of the accident and  taken out Puran Chand @ Bubby s/o Suraj Bhan,Kamlesh Rani wife of Puran Chand, Mohet Garg s/o Puran Chand, Ms.Mikkha Gupta d/o Puran Chand R/o Samana, Dewan Chand and driver Mandeep Singh from the car who were taken to Civil Hospital Samana in his car. The doctor checked them up. Dewan Chand Goyal and driver Mandeep Singh had died while the other occupants had sustained minor injuries. In this way, it would appear that in the ill-fated car besides the driver Mandeep Singh 5 more occupants namely Puran Chand @Bubby, Kamlesh Rani, Mohit Garg, Ms.Mikkha and Dewan Chand Goyal were travelling.
13. As per the copy of the certificate of registration, Ex.C1, the seating capacity of the vehicle was 4.In that way besides the driver there could sit 4 more persons.
14. The only ground on the basis of which the op repudiated the claim of the complainant vide letter Ex.C7 dated 8.10.2014 is the violation of insurance policy terms and conditions as well as relevant provisions of the Motor Vehicle Act,1988.
15. The learned counsel for the op failed to show us any such condition to have been contained in the certificate of insurance cum schedule,Ex.C2 as also the policy terms and conditions produced alongwith the same. In the certificate of insurance cum schedule,Ex.C2, in the heading Limitations as to use, it is recorded: “The policy covers use of vehicle for any purpose other than hire or reward, carriage of goods(other than samples or personal luggage), organized racing, pace making, speed testing, reliability trails, use in connection with motor trade”. We have also examined the policy terms and conditions produced separately alongwith aforesaid certificate of insurance-cum-schedule,Ex.OP4 and under the General Exceptions , it is provided: “That the company shall not be liable in respect of :

1.       any accident, loss, damage and/or liability caused, sustained or incurred outside the Geographical Area

2.       any claim arising out of any contractual liability.

3.       any accident, loss, damage and/or liability caused, sustained or incurred whilst the Motor Car in respect of or in connection with which insurance is granted under this policy is

1. being used otherwise than in accordance with the Limitations as to use or
2. being driven by any person other than a Driver as stated in the Driver’s clause

4.   a)  any accident loss or damage to any property whatsoever or any loss or expense whatsoever resulting in or arising therefrom or any consequential loss.

      b)  any liability of whatsoever nature.

          Directly or indirectly caused by or contributed to by or arising from ionizing radiation or contamination by radioactivity from any nuclear fuel or from, any nuclear waste form the combustion of nuclear fuel. For the purposes of this exception combustion shall include any self-sustaining process of nuclear fission.

5.      any accident, loss of damage or liability directly or indirectly caused by or contributed to by or arising from nuclear weapons material.

6.       any accident, loss or damage and/or liability directly or indirectly or proximately or remotely occasioned by contributed to by or traceable to arising out of or in connection with

 

War, invasion, the act of foreign enemies, hostilities, or War like operations) whether before or after declaration of war) Civil War,Mutiny, Rebellion, Military, or usurped power or by any direct or indirect consequences of any of the occurrences and in the event of any claim hereunder the insured shall prove that the accident, loss, damage and/or liability arose independently of and was in no way connected with or occasioned by or contributed to by or traceable to any of the said occurrences or any consequences thereof and in default of such proof the company shall not be liable to make any payment in respect of such a claim”

16.     Even under Section 1 of the said policy terms and conditions pertaining to the loss or damage, it is provided that the company shall not be liable to make any payment in respect of:

3. Consequential loss, depreciation, wears and tears, mechanical and electrical break down, failures or breakage.
4. Damage to tyres unless such Motor Car is damaged at the same time when the liability of the company is limited to 50%(fifty percent) of the replacement and
5. Any accidental loss or damage suffered whilst the insured or any person driving with knowledge and consent of the insured is under the influence of intoxicating liquor or drugs. In the event of the Motor car being disabled by reason of loss or damaged covered under this policy; the Company will bear the reasonable cost of protection and removal to the nearest repairers and of redelivery to the insured but not exceeding in all Rs.1500/-(one thousand five hundred only) in respect of any one accident”.

17.     Whereas Sh.Surinder Gupta, the learned counsel for the complainant placed reliance upon the citation New India Assurance Company Ltd. Vs. Kotlu Brahamana, Ex-Servicemen’s Transport Cooperative Society Ltd. 1(2012)CPJ 262 (NC) of the Hon’ble National Consumer Disputes Redressal Commission, New Delhi, the learned counsel for the op placed reliance upon the citations Ajit and another Vs. Krishna Devi and another2013 ACJ  1773  of the Hon’ble Punjab & Haryana High Court, S.G.Shiva Murtheppa versus Relinace General Insurance Co.Ltd. 1(2012)CPJ 175(NC) of the Hon’ble National Consumer Disputes Redressal Commission, New Delhi, New India Assurance  Company Ltd.& Anr. Verus Sanjeev Kathuria  1(2012) CPJ 195 and S.R.Muralidharan Versus New India Assurance Co.Ltd. III(2012)CPJ 318(NC) .

18.     We have examined the aforesaid citations. In the case of the citation New India Assurance Company Ltd. Vs. Kotlu Brahamana ESTCSL (supra), during the validity period of the insurance, the bus met with an accident on 16.5.1994 as a result of which the same was badly damaged. The claim submitted by the respondent society was repudiated on the ground that at the time of accident the driver of the bus was not having a valid and effective driving licence and also because the bus was over loaded, which was violation of the terms and conditions of the policy. The respondent filed the complaint before the District Forum. It was held by the District Forum as also the Hon’ble State Commission in appeal that the driver did have a valid licence. Regarding over loading of the bus and the consequential thereof, the District Forum concluded that even if the bus was carrying the passengers above the permissible limit, there was no tangible and clinching evidence on record to conclude that the cause of accident was because of over loading. Applying the ratio of the judgment B.V.Nagaraju v. Oriental Insurance Co.Ltd.,II(1996)CPJ 18(SC)  of the Hon’ble Supreme Court and applying the clause 10 of the Manual of Motor Claims, it was held that the complainant would be entitled to  refund of 75% of the admissible claim, which was assessed by the surveyor at Rs.1,01,100/-.Both the parties preferred the appeal before the Hon’ble State Commission. Whereas the appeal preferred by the Insurance Company was dismissed, in the appeal preferred by the complainant, the order was modified holding that the petitioner is entitled to pay a sum of Rs.1,01,100/- with interest @9% per annum to the respondent w.e.f. the date of filing of the complaint i.e. 8.9.1995.In the revision preferred by the Insurance company, it was observed by the Hon’ble National Commission, “ We note that the Petitioner had repudiated the Respondent’s insurance claim on two grounds : i) that the driver did not have a valid and effective driving licence at the time of accident, and (ii) that the bus was carrying more than the permissible number of passengers. So far as point No.2 is concerned, we agree with the Fora below that there is no conclusive and credible evidence on record that the accident was caused because the bus was carrying more than the permissible number of passengers. The so-called expert evidence sought to be relied on and brought to our notice by Counsel for the Petitioner i.e. the affidavit of the Surveyor who is also a mechanical and automobile engineer reads as follows:

“That on perusal of papers/documents i.e. FIR, Spot Survey Report, Police  Investigation Report and other related documents, it is manifestly clear that the accident is the result of overloading, which has caused the breakage of Kamani, As such the accident could be attributed to overloading.”

          8. This cannot be construed as an expert opinion of an independent person and is only a conjecture based on documents produced before the Surveyor. No other credible evidence has been produced by Petitioner to indicate that the accident occurred because the bus was carrying more than the permissible number of passengers as has already been observed by the Fora below. Thus the case is squarely covered by the judgment of  Hon’ble Supreme Court titled B.V.Nagaraju v. Oriental Insurance Co.Ltd.(supra), wherein it has been ruled that if overloading is not the prime cause of the accident, the Insurance Company cannot repudiate the claim”.

          In our case also there is no evidence lead by the Op that the accident had occurred because of over loading of the vehicle. There is no evidence to show as to how many passengers were sitting by the side of the driver and what were the numbers of the passengers sitting in the rear seat

19.     In the case of the citation Ajit and another Vs. Krishna Devi and another (supra) it was held that it was case of the liability  of the Insurance company towards the third party in respect of gratuitous passengers and therefore, the said citation cannot be applied to the facts of the complaint with advantage. In the case of the citation S.G.Shiva Murtheppa Versus Reliance  General Insurance Co.Ltd.(supra) it was noted by the Hon’ble National Consumer Disputes Redressal Commission, New Delhi that the ground cited by the respondent for repudiation of the claim was as under:

“ The said goods carrying vehicle was registered  for twelve in all seating capacity. It has been gathered and also confirmed in the police complaint that at the time of accident there were eighteen people travelling in the above-mentioned vehicle. This exceeds the seating capacity of the vehicle and is a violation of limitation to use clause (pl.refer No.3 of the said clause, which states that:

                                 “The policy does not cover:

                             Use for carrying passengers in the vehicles; 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”.

          3.  Moreover, during the hearing, the learned counsel for the petitioner did not dispute that the motor vehicle was registered for carriage of passengers not exceeding to 12(including the driver) and at the time of accident the vehicle was instead carrying 16 persons. Therefore, there was an explicit and admitted violation of one of the conditions of the insurance policy as rightly pointed out in the letter of repudiation of the claim issued by the Insurance Company”.

Similarly, in the case of the citation New India Assurance Company Ltd. and Anr. Versus Sanjeev Kathuria (supra), the insurance policy, Annexure A-9(R8) specifically provided ,

“2.  The Company shall not be liable to make any payment in respect of−

(a)    Consequential loss, depreciation, wear and tear, mechanical or electrical breakdown failures or breakages nor for damage caused by overloading or strain of the insured vehicle nor for loss of or damage to accessories by burglary, house-breaking or theft unless such insured vehicle is stolen at the same time”

20.     To the contrary in our case, the op has not been able to point out any clause contained either in the certificate of insurance-cum-schedule,Ex.OP4 or the policy terms and conditions attached therewith separately that the company shall not be liable to make any payment in respect of damages caused by overloading or strain of the insured vehicle. In the case of the citation  New India Assurance Company and another Vs.Sanjeev Kathuria (supra), it has been observed by the Hon’ble Haryana State Consumer Disputes Redressal Commission, Panchkula that it is well settled principle of law that while settling the claim of the parties, the terms of the insurance policy have to be construed strictly and none of the parties can be granted any relief beyond those terms. Reliance was placed upon the citation Suraj Mal Ram Niwas Oil Mills(P) Ltd. V. United India Insurance Co.Ltd. and Another,VIII(2010) SLT 374=IV(2010) ACC 654 (SC) = IV(2010) CPJ38 (SC) = 2011 CTJ  11(Supreme Court)(CP) for the following observations:

“22.   Before embarking on an examination of the correctness of the grounds of repudiation of the policy, it would be apposite to examine the nature of a contract of insurance. It is trite that in a contract of insurance, the rights and obligations are governed by the terms of the said contract. Therefore, the terms of a contract of insurance have to be strictly construed, and no exception can be made on the ground of equity”.

21.     The learned counsel for the op failed to show us any provisions contained under the Motor Vehicle Act,1988 , on the basis of which the op could repudiate the claim of the complainant because of over loading of the vehicle. Therefore, we are of the considered view that the claim of the complainant repudiated by the op by virtue of the letter,Ex.OP2 dated 8.10.2014 cannot be up held, being not based on account of any violation of policy terms and conditions.

22.     Now coming to the liability of the op to pay the loss of the damages.Sh.S.P.J.Singh, surveyor in his final survey report dated 20.1.2015 Ex.OP1, assessed the loss at Rs.4,49,000/-, which apparently appears to be not correct because the op had repudiated  the claim of the complainant on the basis of the report of the surveyor Mr.S.P.J.Singh vide their letter dated 8.10.2014 Ex.OP2 going to show that the report Ex.OP1 was received after the repudiation of the claim. No exception has been taken to the survey report by the complainant. We, therefore, accept the complaint and direct the op to make the payment of Rs.4,49,000/- . The complainant has not produced any receipt regarding the payment of Rs.4100/- towards the towing charges paid to M/s Guru Nanak Garage Services, Samana. The Op shall make the payment of the said amount of Rs.4,49,000/-with interest @9% P.A. from the date of the repudiation i.e. 8.10.2014 till final payment. In view of the facts and circumstances of the case, the complaint is accepted with costs assessed at Rs.5000/-. The order be complied by the op within one month on receipt of the certified copy of this order.

Pronounced

Dated:16.4.2015

 

                   Sonia Bansal                  Neelam Gupta                         D.R.Arora

          Member               Member                                   President