BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, KAITHAL.
Complaint No.42 /2017.
Date of instt.:02.2.2017.
Date of Decision:30.1.2018.
Ram Lal s/o Shri Kuldeep, r/o village Kheri Markanda, Tehsil Thanesar, Distt. Kurukshetra.
……….Complainant.
Versus
- Mahindra & Mahindra Ltd. ajoining Hotel Saffron Sector 7, Pipli Road, Kurukshetra. Ms. KBS Motors Pvt. Ltd. through its Manager/Proprietor/Partner.
- Tata AID General Insurance Co. Ltd., SCO No.232-234, 2nd Floor, Sector 34A, Chandigarh.
..……..Opposite Parties.
COMPLAINT UNDER SEC. 12 OF CONSUMER PROTECTION ACT, 1986.
Before: Sh. Rajbir Singh, Presiding Member.
Smt. Harisha Mehta, Member.
Present: Shri J.R. Saini, Adv. for the complainant.
Shri Manoj Ichhpilani, Adv. for the OP No.1.
Shri C.S. Gupta, Adv. for OP No.2.
ORDER
(RAJBIR SINGH, PRESIDING MEMBER).
The complainant has filed the present complaint under Section 12 of Consumer Protection Act, 1986, with the averments that he got purchased a Bolero Maxi Truck from OP No.1 and got insured the same from OP No.2 vide Policy No.015316054800 valid from 16.8.2014 to 15.8.2015. It is alleged that on 07.11.2014, the above-said vehicle was on route between village Kailram and Titram, the front tyre of it brushed suddenly and the truck turned turtle and got fire and burnt into ashes and totally damaged. It is alleged that he informed the OPs about this and OP’s appointed a surveyor. It is alleged that he submitted his claim and submitted all the required documents with OPs, but they did not pay any heed to his genuine request. This way, the OPs are deficient in service. Hence, this complaint is filed.
2. Upon notice, the opposite party No.1 appeared before this forum and filed reply raising preliminary objections regarding maintainability; cause of action; mis joinder of parties; jurisdiction and that the complaint is barred by the principles of Res Judicata. It is further submitted that the complainant purchased the vehicle in question from KBS Motors Pvt Ltd. Ambala and not from Kurukshetra and he got finance the same from MMFSL, Ambala. On merits, the contents of complaint are denied and so, prayed for dismissal of complaint.
The OP No.2 appeared and filed reply raising preliminary objections regarding maintainability and locus standi. It is submitted that the vehicle in question was registered as a goods carrying vehicle; that as per the RC and Policy, the maximum seating capacity of vehicle is two persons, whereas it was carrying 13 passengers at the time of accident, which is not permissible either by MV Act or as per terms and conditions of the policy; that Goods Carriage as defined in Sec.2(14) of the MV Act, 1988 does not permit carriage of any passengers. On merits, the contents of complaint are denied and so, prayed for dismissal of complaint.
3. In support of his case, the complainant tendered in evidence affidavit Ex.CW1/A; documents Ex.C1 to Ex.C5 and closed evidence on 26.9.2017. On the other hand, OP No.1 tendered in evidence affidavit Ex.RW1/A and closed evidence on 08.1.2018. OP No.2 tendered in evidence affidavits Ex.RW2/A, Ex.RW2/B & Ex.RW2/C; documents Ex.R1 to Ex.R7 and closed evidence on 15.1.2018.
4. We have heard ld. counsel for both the parties and perused the case file carefully and minutely and have also gone through the evidence led by the parties.
5. From the pleadings and documents placed on the file, it is not disputed that the complainant got insured his vehicle i.e. Bolero Maxi Truck with OP No.2 vide policy No.015316054800 valid from 16.8.2014 to 15.8.2015 (Ex.C1). It is also not disputed that on 07.11.2014, the said vehicle was caught fire due an accident and damaged.
6. According to the allegations of the complainant, he submitted all required document with the OPs and requested many times to make the payment of claim, but OP did not release his claim. The OP No.2 contended that as per the RC and Policy, the maximum seating capacity of vehicle is two persons, whereas it was carrying 13 passengers at the time of accident, which is not permissible either by MV Act or as per terms and conditions of the policy. But despite of violation of terms and conditions of insurance policy, we are of the considered view that the complainant should not be denied his claim in it’s entirety. It is, therefore, quite just and fair that the claim is in respect of vehicle must be settled on the basis of the guidelines of non-standard settlement. In this regard, we can rely upon the authority titled as NIC Vs. Nitin Khandelwal, 2008(3) RCR (Civil) page 193 (SC), wherein it has been held by Hon’ble Supreme Court that Car insured for personal use, but used as taxi-Theft of car-Insurance company cannot reject the claim on the ground of breach of contract. We can also rely upon the authority titled as Oriental Insurance Co. Ltd. Vs. Laxmegowda, reported in 2018 (1) CLT, Page No.120, wherein it has been held by the Hon’ble National Commission, New Delhi that Insurance Claim (Vehicle) – Whether the insurance company is liable to pay the claim to the insured in terms of the policy in question, keeping in view the fact that 14 passengers were found traveling in a goods carrying commercial vehicle at the time of the accident? Held- The complainant is entitled to get the claim on ‘non-standard’ basis only. The said authorities are fully applicable to the present case. So, we are of the considered view that the OPs have repudiated the claim of complainant in toto wrongly which amounts to deficiency in service on the part of OPs. In the present case, the surveyor Mr. Rajesh Chhaabra has assessed the loss of the damaged vehicle on Repair Basis for Rs.5,68,508.49. The surveyor is an independent person and the report of surveyor Ex.R1 is placed on the file. So, this report of surveyor is taken into consideration for deciding the compensation amount in the complaint. In this regard, we rely upon a judgment 2(2008) CPJ page 182 (NC), United India Insurance Co. Vs. Maya, wherein it has been held that a surveyor report should not be dismissed summarily as the surveyor is independent and qualified person under the relevant provisions of Insurance Act, 1938.
7. Thus, in view of above discussion, we allow the complaint partly and direct the OPs to settle the claim of complainant on non-standard basis and pay Rs.4,26,381.37 i.e. 75% of Rs.5,68,508.49 (as assessed by the surveyor on Repair Basis) to the complainant. No order as to costs. Let the order be complied with within 30 days, failing which, the complainant shall be entitled interest @ 8% p.a. from the date of commencement of this order till its realization. A copy of this order be sent to both the parties free of costs. File be consigned to the record room after due compliance.
Announced.
Dt.30.1.2018.
(Harisha Mehta), (Rajbir Singh), Member. Presiding Member.
Present: Shri J.R. Saini, Adv. for the complainant.
Shri Manoj Ichhpilani, Adv. for the OP No.1.
Shri C.S. Gupta, Adv. for OP No.2.
Remaining arguments heard. Order pronounced, vide our separate order in detail of even dated, the present complaint is partly allowed. File be consigned to record-room after due compliance.
Dated:30.1.2018. Member Presiding Member.
