BEFORE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, BHIWANI.
Complaint No.132 of 2016.
Date of institution:-04.07.2016.
Date of decision: - 25.11.2019.
Sukhbir son of Shri Rajeram resident of village Budheri Tehsil Loharu & District Bhiwani.
...Complainant.
Versus
1.Magma Fin corp Limited Second Floor SCF 81/82 above Bata Showroom Delhi Road, Urban State Second, Hisar District Hisar through its Manager/Authorized signatory.
2. Magma HDI General Insurance Company Limited, Registered Office 24, Park Street, Kolkata 700016.
…Opposite parties.
Complaint under section 12 of
Consumer Protection Act, 1986
Before: Sh. Nagender Singh, President.
Sh. Shriniwas Khundia, Member
Present: Sh.Ashok Kumar, Advocate for the complainant.
Sh.R.K.Verma, Advocate for opposite party No.1.
Sh.Sameer Gambir, Advocate for the opposite party No.2.
ORDER
NAGENDER SINGH, PRESIDENT
In nutshell, the facts of the complaint are that the complainant is registered owner of Tractor Mahendra & Mahendera bearing registration No.HR-18B-8715 and the same was got insured with opposite party No.1 vide certificate No.GA000036-5456200, loan ID No.PG/0035/A/13/000386 commenced from date 29.08.2014 and termination date 29.08.2016. (In fact cover note No.CN16400002/4107/149507 valid from 30.08.2015 to 29.08.2016. On 23.12.2015 when the complainant and another three persons, who were sitting in the tractor fitted with trolley, were going to bring dry fodder, from village Budheri to village Kunwari (Hisar), in the way, the balance of the tractor got out of control due to suddenly appearance of Neel Cow and the tractor in question got badly damaged due to striking against a tree. Due intimation was given to opposite party No.1, on this, surveyor, appointed by the insurance company, who inspected the tractor and on asking of surveyor, the complainant brought his tractor to Sharma Autos and got repaired the same by spending a sum of Rs.95,000/-. Necessary bill and documents were submitted to the surveyor, who assured that the claim would be settled within one month. But the opposite party No.2 repudiated the claim of the complainant vide letter dated 16.02.2016 Ex.R2 on the ground that as per RC, the seating capacity of the vehicle is one where as four persons were seating on the tractor which is totally violation of MV Act. The complainant requested the opposite party No.1 for payment of genuine claim of the complainant many times but to no avail. Due to inaction on the part of the opposite parties, the complainant suffered financial loss besides mental agony and harassment. Hence, this complaint.
2. On notice, opposite parties appeared and contested the complaint of the complainant by filing reply wherein preliminary objections such as maintainability, estoppal, locus standi, suppression of material facts from this Forum and territorial jurisdiction etc. have been taken. It has been submitted that it is mentioned in the FIR that four persons were sitting in the tractor at the time of accident whereas the seating capacity of the vehicle is one, therefore, the claim was not payable as per terms and conditions of the policy. It is further submitted that insurance is a contract and the liability is as per the terms and conditions of the contract and the insurance company is not liable to pay any compensation on account of violation of terms and conditions of the insurance policy. The complainant has violated the terms and conditions of the policy, therefore, his claim was rightly repudiated vide letter dated 16.02.2016. Other contentions made in the complaint have been controverted and prayer for dismissal of the complaint has been made.
3. The parties have led their evidence in the form of affidavit and documents. The complainant has tendered in evidence affidavit and documents Annexure C1 to Annexure C6 and closed the evidence on 29.11.2018 whereas the opposite parties have tendered affidavit Ex.RW2/A and documents Annexure R2 to Annexure R12, on the case file and closed the evidence on 29.01.2018.
4. Heard. The counsel for the complainant reiterated the averments made in the complaint and prayed for its acceptance whereas the counsels for opposite parties reiterated the averments made in the reply and prayed for dismissal of the complaint.
5. Learned counsel for the opposite parties has argued that the there is no deficiency in service on the part of opposite parties as claim has rightly been rejected on account of violation of the terms and conditions of the insurance contract by the complainant as four persons were sitting on the tractor despite the fact that the seating capacity of the vehicle was one and even the vehicle was not passengers carrying vehicle. In support of his arguments he has placed reliance of case laws titled as M.S.Middle High School Vs. HDFC ERGO General Insurance Company Limited & Ors. Decided by Hon’ble Supreme Court on 22.11.2017 in SLP (C)No.31405/2017, HDFC ERGO General Insurance company Vs. Sh.Bhagchand Saini decided by Hon’ble National Commission on 04.12.2014 in RP No.3049 of 2014, Oriental Insurance Company limited Vs. Laxmegowda decided by Hon’ble National Commission on 11.09.2017 in RP No.1739 of 2006, Oriental Insurance Company Vs. Shiv Pujan Kushwaha decided by Hon’ble National Commission in RP No.1616 of 2018, Khimjibhai & sons Vs. New India Assurance Company Ltd. IV (2011) CPJ 458 (NC), Amalendu Sahu Vs. Oriental Insurance Company Limited 2010 (3) CLT Vol.47 page 1 (SC) and Oriental Insurance Company Limited Vs. Krishna Devi and Others decided by Hon’ble Punjab & Haryana High Court in FAO No.3873 of 2013 (O&M) decided on 21.12.2017.
6. On the other hand, learned counsel for the complainant has argued that the insurance company has wrongly rejected the claim in toto and if there was any violation of the terms and conditions of the policy, the claim can be settled on non-standard basis. In support of his arguments he has placed reliance of case laws titled as National Insurance Company Limited Vs. Sanjeev Kumar 1 (2018) CPJ 169 (NC) and Oriental Insurance Company Limited Vs. Oriental Insurance Company Vs. Shiv Pujan Kushwaha decided by Hon’ble National Commission in RP No.1616 of 2018.
7. Undisputedly, the vehicle of the complainant was insured with the opposite parties and the same had met with an accident when the complainant was going to bring dry fodder from village Budheri to village Kunwari (Hisar). As per the complainant the vehicle met with an accident and suffered total loss, but the insurance company has repudiated the claim without any basis. Perusal of the case file reveals that after the accident and intimation surveyor was appointed who inspected the vehicle and produced his report on the case as file Ex.R6. In this report he has assessed the loss to the tune of Rs.67275/- and it has been further mentioned that the claim settlement is recommended as per the above assessment and the same is subject to final approval and admission of liability as per policy’s terms and conditions.
8. The rejection of the whole claim on the ground of carrying four passengers on the insured vehicle is not tenable because as per our opinion, three occupants were not passengers but they were labour for filling the dry fodder in the trolley. So, these occupants could not be considered as passengers. Learned counsel for the complainant has rightly placed reliance of case law titled as National Insurance Company Limited Vs. Sanjeev Kumar and Oriental Insurance Company Limited Vs. Oriental Insurance Company Vs. Shiv Pujan Kushwaha (supra) wherein Hon’ble National Commission has opined that Damaged vehicle was insured under policy issued by petitioners at the time of fateful accident-Although surveyor report is not final word when it comes to assessment of claim, departure from same should be accompanied by valid reasons- Fora below failed to provide any cogent reason for making departure from surveyor report and merely directed petitioner to settle claim on basis of bills furnished by respondent, which is not justified- As per surveyor’s report, net assessed loss is Rs.95445/- whereas value of the total bills amounts to Rs.1,78,000/- As per surveyor’s report there were some 20-22 persons sitting in loaded body of insured goods vehicle at the time of accident-This amounts to violation of policy condition-Claim can be settled on non-standard basis-Petitioner is directed to settle claim on basis of 75 % of admissible claim. Since the surveyor appointed by the insurance company himself has coincided the damage to the vehicle with accident and assessed the loss to the tune of Rs.67275/- in his report Ex.R6 therefore, in our opinion it would be justified if we allow the present complaint on non-standard basis.
9. Keeping in view the above facts and circumstances of the case as well as the law laid down by Hon’ble National Commission in National Insurance Company Limited Vs. Sanjeev Kumar and Oriental Insurance Company Limited Vs. Oriental Insurance Company Vs. Shiv Pujan Kushwaha (supra), we are of the view that the insurance company has wrongly rejected the whole claim of the complainant. Hence, the present complaint is hereby allowed on non-standard basis with the following directions to the opposite parties:
- To pay a 75 % of the amount i.e. Rs.67275/-, which comes to Rs.50456/- to the complainant alongwith with simple interest @ 9% per annum from the date of filing of complaint till actual realization.
- To pay a sum of Rs.10,000/- to the complainant on account of deficiency in service.
- To pay Rs.5,000/- as cost of litigation.
Order be complied within 30 days from the date of order. Copy of the order be sent to the parties concerned, free of costs, as per rules. File after due compliance be consigned to record room.
Announced in open Forum.
Dated: - 25.11.2019.
(Shriniwas Khundia) (Nagender Singh)
Member President,
District Consumer Disputes
Redressal Forum, Bhiwani.
