Haryana

Ambala

CC/342/2021

Amit Kumar - Complainant(s)

Versus

Modern Automobiles - Opp.Party(s)

11 Mar 2024

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, AMBALA.

Complaint case no.	:	342 of 2021
Date of Institution	:	08.11.2021
Date of decision	:	11.03.2024

Amit Kumar son of Shri Mangu Ram, aged 41 years, r/o Quarter no.CB 4, Lal Kurti Bazar, Ambala Cantt.

          ……. Complainant

                                                Versus

1. Modern Automobiles, Model Town Crossings, G.T.Road, Ambala City through its Branch Manager/Auth. official.
2. The New India Assurance Company Limited having its Local Office at 5406, Punjabi Mohalla, Ambala Cantt. (Policy sourced through Maruti Insurance Broking Pvt. Ltd.) Insurer of Vehicle No. HR-85D-6972 vide Insurance Policy no.98000031190908726403 dt.27.01.2020.
3. The New India Assurance Co. Ltd. 1215, 12th Floor, Naurang House 21, Kasturba Gandhi Marg, New Delhi-110001.

….…. Opposite Parties.

Before:       Smt. Neena Sandhu, President.

                    Smt. Ruby Sharma, Member,

          Shri Vinod Kumar Sharma, Member.           

 

Present:      Shri Pawan Kumar Goel, Advocate, counsel for the complainant.

                    Shri S.R. Bansal, Advocate, counsel for the OP No.1.

                   Shri Pankaj Kumar, Advocate counsel for OPs No.2 and 3.

 

 Order:        Smt. Neena Sandhu, President.

                   Complainant has filed this complaint under Section 35 of the Consumer Protection Act, 2019 (hereinafter referred to as ‘the Act’) against the Opposite Parties (hereinafter referred to as ‘OPs’) praying for issuance of following directions to them:-

1. To pay the amount of Rs.1,09,327/- spent towards repair of the vehicle alongwith interest @9% p.a.
2. To pay Rs.1,50,000/-, as compensation for the mental agony and physical harassment suffered by the complainant.
3. To pay Rs.30000/-, as litigation expenses.
4. Grant any other relief this Hon’ble Commission may deems fit.

2.             Brief facts of the case are that the complainant had purchased Maruti Car EECO 5 Seater AC BS- VI having its Registration no. HR85D-6972 from OP No.1 for his personal use and got the insured from OP No. 2 vide Insurance Policy no.98000031190908726403 valid for the period from. 27.01.2020 to 26.01.2021. The relatives of complainant had come to Ambala and he sent them to Ludhiana in his above vehicle along with his driver Jagdish Kumar on 17.12.2020. When the vehicle reached Avtar Vaishno Dhaba in Village Mohanpur, (after crossing Khanna), at about 3:15 PM, stray animals came in front of car of complainant and driver applied sudden brake to save the said animals, as a result of which a swift car coming from behind struck from back to car of complainant. The vehicle turned down and relatives sitting therein suffered minor injuries in this accident who were treated and discharged by Civil Hospital, Ludhiana. It was not a case of hiring of passengers. A DDR was lodged in General Diary Register vide No. 19 on 18.12.2020 by police of P.S. Sadar, Khanna, Distt. Khanna. The vehicle of the complainant was damaged badly and as such was brought to OP No.1 for its repair. The complainant also informed OP No.3 who appointed Surveyor Sh. Rajesh Sharma who also recorded statement of complainant and also took all documents in this regard. After making several rounds and inspection, the complainant was told by official of OP No.3 that his claim will be passed and it will take time as Branch Manager has been transferred. However, an estimated cost of repair was prepared on by OPs No. 1 to 3 along with its Surveyor which amounts to Rs.2,26970.50. Then repair was done and invoice of Rs. 1,09,327/- was prepared by OP No.1.  The Branch manager was changed and a new surveyor Sh. Shubham Arora was appointed despite the fact that previous surveyor which was never rejected by O.Ps No.2 and 3. The said new surveyor in terms of causing benefit to OP No.2 and 3, made a false report and stated that it is a case of hiring and reward and passengers were being driven to their destination by driver of complainant and also wrote that those were unknown and not relatives of complainant. The complainant was forced to sign some stamp papers as was told by new surveyor that claim would be passed only if complainant will sign the said affidavit and without knowing the contents of said affidavit, got obtained the signatures of complainant over it. However, on the basis of this false report, the OP No.2 and 3 rejected the claim of complainant vide letter dated 11.08.2021, Annexure C-9 herewith. No false statement, fraud, misrepresentation, concealment and manipulation of facts and violation of policy was ever committed by complainant. Hence this complaint.
3.           Upon notice, OP No.1 appeared and filed written version wherein it raised preliminary objections  to the effect that the present complaint is legally not maintainable; as the complainant had visited for accidental repair and the same was properly attended and made it roadworthy, but the payment was not made either by the complainant or by  OP No.2  and  3 hence there is no deficiency in service or fault of the  OP No.1;  the present complaint is false and frivolous, no case is made out against  OP No.1 i.e. service provider: the present complaint is not maintainable in any manner whatsoever because the  OP No.1 is bound to receive the accidental repair charges etc. On merits, it has been stated that OP No.1 has been suffering a lot financially, physically and mentally, as there is no fault and the vehicle is lying parked in roadworthy condition. The condition of the repaired vehicle is going to be deteriorated day by day but OP No.1 is not liable for the condition of battery, tyres and other equipments of the car. OPs No.2  and  3 and complainant be directed to make the payment of Rs.1,09,327/-, along with interest and other recurring expenses as the vehicle is lying parked with  OP No.1 at their risk. Rest of the averments of the complainant were denied by OP No.1 and prayed for dismissal of the present complaint with costs.
4.           Upon notice, OPs No.2 and 3 appeared and filed written version wherein they raised preliminary objections to the effect that this complaint is not maintainable and an abuse to the process of law; the matter involves disputed questions of fact and law and can be entertained by civil court only; the complaint filed is beyond limitation; the complaint is bad for mis-joinder and non-joinder of parties; the complainant has no locus standi to file this complaint; the complainant is not a consumer etc. On merits, it has been stated that the complainant had taken the Policy for the Private Car in question, however, the said vehicle was used by the complainant on hire basis at the time of alleged loss, in clear violation of policy's terms and conditions mentioned therein in the clause/column of Limitation as to Use: according to which "The Policy does not cover the loss to the insured vehicle if it is being used for hire and reward".
5.           Moreover, the complainant also tried to avail the claim illegally and deceitfully on the basis of false statement about the status of the passengers travelling in his above said Private Car at the time of alleged accident to the surveyor and police, which has been proved to be wrong as admitted by the complainant himself in his own handwritten statement duly signed by him in the presence of his brother and his driver to the investigator Mr.Shubham Arora. The said statement also countersigned by his brother Mr.Pawan Kumar and driver Mr.Jagdish Kumar and the same is to the effect that the said passengers were infact unknown to him and were not his relatives and were being carried in the said car at that relevant time against rent/fare. Alongwith the said hand written statement, the photographs of the complainant were also clicked by the investigator. Thus, the complainant had given false and incorrect version about the status of passengers travelling in the insured vehicle at the time of accident in question. Accordingly, the alleged claim of the complainant was repudiated vide letter dated 11.08.2021 detailing all the relevant and legal facts therein. Furthermore, the Surveyor was appointed for assessment of the loss etc., but the complainant had not submitted the relevant particulars to OPs No.2 and 3 as well as to the said surveyor even demand in respect of  i) providing the medical record of all the alleged injured passengers, who were travelling in the vehicle at the time of accident and were allegedly admitted in the Civil Hospital, Ludhiana, ii) providing the contact numbers of the passengers travelling in the vehicle alongwith their ID Proofs, iii) further providing the written statements of the alleged injured persons and even till date the same have not been furnished even on the commission's record also. As the complainant failed to do so, as such the matter was required to be investigated properly. Accordingly, the investigator namely Sh.Shubham Arora was deputed to investigate the matter in question properly and to give his true facts finding report with regard to the accident in question and other aspects related thereto. Even to the said investigator, the said complainant/insured failed to provide all the necessary relevant information/particulars as detailed above because the said persons were not the relatives of the complainant, rather they travelled in the said vehicle on the day of said accident as the passengers on hire and reward basis. These facts were proved on putting some questions in this regard from the complainant by the investigator, on which the complainant as well as his driver Mr.Jagdish broke in front of the investigator and submitted the true and actual facts related to this case through a hand written statement of the complainant in presence of the said driver Jagdish Kumar and brother of the complainant namely Pawan Kumar. The complainant in presence of his brother and driver willfully without any force etc. had given the statements etc. to the investigator at his own. The complainant wants to get benefit of his own wrong by manipulating the true and material facts and trying to get false claim. Rather, he is liable for the criminal prosecution as fraud has committed by him in the manner described above. Rest of the averments of the complainant were denied by OPs No.2 and 3 and prayed for dismissal of the present complaint with costs.
6.           Learned counsel for the complainant tendered affidavit of the complainant as Annexure CW1/A alongwith documents as Annexure C-1 to C-9 and closed the evidence on behalf of complainant. However, it is pertinent to mention here that the OP No.1 failed to lead any evidence despite availing various opportunities, therefore, evidence of the OP No.1 have been closed by the order of this Commission on 19.01.2024. Learned counsel for the OPs No.2 and 3 tendered affidavit of Raj Kumar Mittal, Incharge/Manager, Karnal Suit Hub, The New India Assurance Co. Ltd., Divisional Office, Gagan Building, G.T.Road, Near Old Bus stop, Karnal and affidavit of Shubham Arora, Insurance Claims Investigator, Residence cum office House No.3548/1, Timber Market, Ambala Cantt. as Annexure OP2/A and OP2/B respectively alongwith documents Annexure OP-1 to OP-13 and closed the evidence on behalf of OPs No.2 and 3.
7.           We have heard the learned counsel for the parties and have also carefully gone through the case file.
8.           Learned counsel for the complainant submitted that by repudiating the genuine claim of the complainant despite the fact that the accident took place during currency of the policy in question, the OPs are deficient in providing service.
9.           On the other hand, learned counsel for OP No.1 while reiterating the objections raised in written version submitted that it has no role whatsoever, the claim was rejected by OPs No.2 and 3. He further submitted that the complainant or OPs No.2 and 3 have to pay the repair charges of the accidental vehicle and also responsible for wear and tear of the vehicle lying parked in the premises of OP No.1.
10.           Learned counsel for OPs No.2 and 3 submitted that because the private insured vehicle was being used as hire and reward at the time of accident, which amounts to violation/breach of fundamental terms and conditions of the policy in question, as such, the insurance company has  rightly repudiated the claim of the complainant. He further submitted that OPs No.2 and 3 have sufficiently proved the fact that the private insured vehicle was being used as hire and reward at the time of accident.
11.            The first question which needs determination of this Commission is regarding the objection taken by OPs No.2 and 3 that this complaint filed is barred by limitation. It may be stated here admittedly the claim of the complainant has been repudiated by OPs No.2 and 3 vide letter dated 11.08.2021, Annexure OP-9, and therefore if the  period of two years of limitation is counted from 11.08.2021 this  complaint having been filed on 08.11.2021 is well within limitation. Therefore, objection taken by OPs No.2 and 3 in this regard is devoid of merit and accordingly rejected.
12.           It is not in dispute that the vehicle in question was insured under the policy in question, as a private vehicle. It has also been established by OPs No.2 and 3 by way of statements of the concerned driver driving the vehicle in question at the time of accident; brother of the complainant and also of the insured, Annexure OP-4, that at the relevant time of accident, the vehicle in question was used for hire and purchase, as a result of which, OPs No.2 and 3 repudiated the claim of the complainant vide letter dated 11.08.2021, Annexure OP-9, relevant part of which is reproduced hereunder:-

“…..Subject.: Claim no. 98000031200391136498, Date of loss: 17.12.2020, Insured vehicle: Maruti EECO 5 Star no. HR-85D-6972.

Sir, This refers to your above subject motor claim preferred with regard to the accidental loss to your vehicle make Maruti car EECO 5 Star bearing registration no. HR-85D-6972 alleged to have occurred on 17.12.2020 and subsequent visit of surveyor Sh. Rajesh Sharma for the assessment of the loss and a detailed investigation carried out by Sh. Shubham Arora, investigator. The entire set of documents had been perused by us and after considering the same on all aspects, we regret to inform you that your reported claim is not maintainable/payable and has been repudiated by the competent authority due to reasons and violations of the following terms and conditions of the Insurance Policy:

That on perusal of documents, it has been found and established that the said insured vehicle in question was used on hire basis at the time of alleged loss whereas the said vehicle was registered and insured as a private vehicle thus it was being used for hire  and  reward in clear violation of policy terms and conditions.

That you had also tried to avail the claim illegally and deceitfully on the basis of false statement about the status of passengers travelling in your said car at the time of accident to the surveyor and police which has been proved to be wrong as admitted by you in your own handwritten statement to the investigator that the said passengers were infect unknown to you and were not your relatives and were being carried in said car at that relevant time against rent/fare. Thus you have given false and incorrect version about the status of passengers travelling in the insured vehicle at the time of accident in question.

Hence there is a misrepresentation, concealment and manipulation of facts and violation of policy terms and conditions.

Your attention is invited to the limitation as to use clause in the insurance policy according to which "the policy does not cover the loss to the insured vehicle if it is being used for hire and reward."

Your attention is also invited to the undertaking in claim form as follows:

"I/we the above named, do hereby, to the best of my/our knowledge and belief, warrant the truth of the foregoing statements in every respect and agree that if I/We have made any false of fraudulent statement or there be any suppression or concealment of facts, the claim shall be forfeited."

Kindly refer to Condition no. 7 of the term and condition of the Insurance Policy according to which "The due observation and fulfillment of the terms, conditions and endorsements of this policy in so far as the relate to anything to be done or complied with by the insured and the truth of the statements and answers in the said proposal shall be conditions precedent to any liability of the Company to make any payment under this policy.

In this instance policy conditions stand violated.

In the light of above, we regret to inform you that your claim is not tenable and does not fall under the purview of policy and thus has been repudiated by the competent authority. Hence, your claim is not payable and does not require any further consideration.…”

13.           Under above circumstances, the moot question which falls for consideration is, as to whether OPs No.2 and 3 were right in repudiating the claim of the complainant on the ground that the vehicle in question was registered and insured as private vehicle, yet, it was being used for hire and reward violating the terms and conditions of the policy in question. It is an admitted fact that the accident took place because stray animals came in front of the vehicle in question, the OPs No.2 and 3 repudiated the claim on one ground that the claim is not payable because the vehicle in question was registered and insured as private vehicle, yet, it was being used for hire and reward violating the terms and conditions of the policy in question”.  
14.           It may be stated here that in Amalendu Sahu vs Oriental Insurance Co.Ltd, AIR 2010 SUPREME COURT 2090, it was held by the Hon’ble Supreme Court of India that because such an act is not a fundamental breach of terms and conditions of the policy, therefore  claim amount to the extent of 75% is payable on non standard basis. Relevant part of the said order is reproduced hereunder-

“…..11. What is disputed by the insurance company is that the vehicle was not used for personal use but was used by way of being hired, though no payment for hiring charges was proved. However, according to the insurance company, by using the vehicle on hire, the appellant had violated the terms of the insurance policy and on that basis the insurance company was within its right to repudiate the claim.

 

12. Reference in this case may be made to the decision of National Commission rendered in the case of United India Insurance Company Limited v. Gian Singh reported in 2006 CTJ 221 (CP) (NCDRC). In that decision of the National Consumer Disputes Redressal Commission (NCDRC) it has been held that in a case of violation of condition of the policy as to the nature of use of the vehicle, the claim ought to be settled on a non-standard basis. The said decision of the National Commission has been referred to by this Court in the case of National Insurance Company Limited v. Nitin Khandelwal reported in 2008 (7) SCALE 351. In paragraph 13 of the judgment, in the case of Nitin Khandelwal (supra) this Court held:- "..The appellant Insurance Company is liable to indemnify the owner of the vehicle when the insurer has obtained comprehensive policy for the loss caused to the insurer. The respondent submitted that even assuming that there was a breach of condition of the insurance policy, the appellant Insurance Company ought to have settled the claim on non- standard basis."

13. In the case of Nitin Khandelwal (supra) the State Commission allowed 75% of the claim of the claimant on non-standard basis. The said order was upheld by the National Commission and this Court refused to interfere with the decision of the National Commission.

14. In this connection reference may be made to a decision of National Commission in the case of New India Assurance Company Limited v. Narayan Prasad Appaprasad Pathak reported in (2006) CPJ 144 (NC). In that case also the question was, whether the insurance company can repudiate the claims in a case where the vehicle carrying passengers and the driver did not have a proper driving licence and met with an accident. While granting claim on non-standard basis the National Commission set out in its judgment the guidelines issued by the insurance company about settling all such non-standard claims. The said guidelines are set out below:-

 

		Percentage of settlement
	Under declaration of licensed carrying capacity	Deduct 3 years' difference in premium from the amount of claim or deduct 25% of claim amount, whichever is higher.
	Overloading of vehicles beyond licensed carrying capacity	Pay claims not exceeding 75% of admissible claim.
(iii)	Any other breach of warranty/ condition of policy including limitation as to use	Pay upto 75% of admissible claim.

 

From a perusal of the aforesaid guidelines it is clear that one of the cases where 75% claim of the admissible claim was settled was where condition of policy including limitation as to use was breached. 16. In the instant case the entire stand of the insurance company is that claimant has used the vehicle for hire and in the course of that there has been an accident. Following the aforesaid guidelines, this Court is of the opinion that the insurance company cannot repudiate the claim in toto. ….”

 

15.           Thus, in the present case, the ratio of law of Amalendu Sahu  case (supra) is fully applicable and therefore by repudiating the claim of the complainant of the complainant in toto, OPs No.2 and 3 are deficient in providing service.
16.           It may be stated here that the complainant has claimed an amount of Rs.1,09,327/- while placing reliance on tax invoice dated 10.02.2021, Annexure C-8 incurred for repairing the accidental vehicle, having been issued by OP No.1. This tax invoice dated 10.02.2021, Annexure C-8 has not been challenged by the OPs No.2 and 3. At the same time, OPs No.2 and 3 have failed to place on record the report of the surveyor for the reasons best known to them. Under these circumstances, the OPs No.2 and 3 are liable to make payment of Rs.81,995/- i.e. 75% of Rs.1,09,327/-  on non-standard basis alongwith interest from the date of repudiation of claim.
17.           Since, no deficiency in service has been proved on the part of OP No.1, it being repairer of the vehicle in question, therefore, this complaint against OP No.1 is liable to be dismissed.  However, it is made clear that OP No.1 shall not charge any parking charges etc. from the complainant.
18.           In view of the aforesaid discussion, we hereby dismiss the present complaint against OP No.1 and allow the same against OPs No.2 and 3 and direct them, in the following manner:-
    1. To pay the amount of Rs.81995/- i.e. 75% of Rs.1,09,327/- on non-standard basis to the complainant alongwith interest @6% p.a. from the date of repudiation of the claim i.e. from 11.08.2021 onwards till realization.
    2. To pay Rs.5,000/-, as compensation for the mental agony and physical harassment suffered by the complainant.
    3. To pay Rs.3,000/- as litigation expenses.

The OPs No.2 and 3 are further directed to comply with the aforesaid directions within the period of 45 days, from the date of receipt of the certified copy of the order, failing which the OPs No.2 and 3 shall pay interest @ 8% per annum on the awarded amount, from the date of default, till realization. Certified copy of this order be supplied to the parties concerned, forthwith, free of cost as permissible under Rules. File be indexed and consigned to the Record Room.

Announced:- 11.03.2024

 

(Vinod Kumar Sharma)	(Ruby Sharma)	(Neena Sandhu)
Member	Member	President