District Consumer Disputes Redressal Commission ,Faridabad.
Consumer Complaint No.108/2020.
Date of Institution: 20.02.2020.
Date of Order: 17.08.2022.
Om Prakash S/o Shri Kallu, Profession – Transporter, R/o H.No. 1640, Gali No.3 Hanuman Mandir, Sehatpur, Surya Colony, Faridabad, Haryana, Pin No. 121003.
…….Complainant……..
Versus
1. Cholamandalam MS General Insurance Co. Ltd., Office at 2nd floor, Pusa Road, Karol Bagh, Near Metro Pillar No. 81, New Delhi through its Divisional Manager/Authorized Person.
Also at:-
Office No. 157, Sector-46, Faridabad Haryana 121001 through its Manager/Authorized person.
2. Cholamandalam Investment & Finance Company Ltd., Office at 2nd floor building No. 28, Central Market, West Punjabi Bagh, Lajpat Nagar, New Delhi – 110 026.
Also at:-
Ist floor, A-27, Nehru Ground Pin Code 121001 Faridabad Haryana – 121001.
Also at Ground floor, G-5, Rama Place, Sector-20B, Sector-20, Faridabad, Haryana-121001.
…Opposite parties……
Complaint under section-12 of Consumer Protection Act, 1986
Now amended Section 34 of Consumer protection Act 2019.
BEFORE: Amit Arora……………..President
Mukesh Sharma…………Member.
PRESENT: Sh. R.V.Singh, counsel for the complainant.
Sh. Rakesh Dabaas , counsel for opposite party No.1.
Sh. Rajiv Rana, counsel for opposite party No.2.
ORDER:
The facts in brief of the complaint are that the complainant was the registered owner of the vehicle bearing its registration No. HR-38-U-7313 and the said vehicle was insured with the opposite party No.2 vide policy No. 3379/01716182/000/001 valid from 21.04.2017 to 20.04.2018 for the insured sum of Rs.12,70,000/-. The said vehicle was financed from the opposite party No.2 against which complainant was paying the EMI of Rs.39,319/- on monthly basis. On 18.07.2017 at about 10:15pm in the night, the said vehicle No. HR-38-U-7313 of the complainant had been met with road accident and in this occurrence, one person namely Pratap Singh S/o Shri Nain Singh R/o Village Kadal, P.O. Tikkari, P.S.Niyol, District Shimla had died and another person namely Raja Ram S.o Shri Rambabu R/o village Pahladpur, who had received/sustained multiple and grievous injuries on his personal and in this regards, A FIR No. 341 dated 1907.2017 u/s 279/304-B IPC in P.S.Kalsi (Dehradun) had been registered and in the said accident vehicle of the complainant was totally damaged. The complainant had paid the total amount of Rs.7,86,380/- out of the total loan amount of Rs.14,00,000/- in the terms of monthly EMIs. Out of paid amount of Rs.7,86,380/- complainant paid the principle amount of Rs.5,00,084/- and interest of Rs.2,86,296/- as per the bank/loan statement provided by the opposite parties. Apart form the above, the complainant had suffered the huge business loss of Rs.4,50,000/- as well and reputation of the complainant had been totally ruined due to the sole negligence, u professional and unethical service of the opposite parties. The complainant sent legal notice dated 26.02.2018 to the opposite party but all in vain. The aforesaid act of opposite parties amounts to deficiency of service and hence the complaint. The complainant has prayed for directions to the opposite parties to:
a) pay the cost of the said vehicle to the complainant as a compensation as per the terms of the policy and total amount paid by the complainant was Rs.7,86,380/- may kindly be refunded back to the complainant alongwith the penal interest decided by the Forum.
b) pay Rs. 4,50,000/- against the business loss as policy covers the business loss also in the commercial vehicle insurance policy.
c) pay Rs. 25,000 /-as litigation expenses.
2. Opposite party No.1 put in appearance through counsel and filed written statement wherein Opposite party No.1 refuted claim of the complainant and submitted that the complainant had submitted claim form, by annexing relied upon documents including driving licence No. UP8320140002373 favouring Raja Ram issued from Licensing Authority Firozabad (UP) claim amount towards damaged insured vehicle. During process of the claim by the insurance company it was found that apparently from copy said DL & verification thereto, the DL of the driver of insured vehicle was invalid because there was no endorsement so as to drive the insured vehicle in Hill Zone, thus, in view of terms and conditions of the insurance policy as well as in pursuant of written consent of complainant for non standard on account of invalid driving licence the insurance company had already paid the payable & admissible claim amount, to the financer of the insured vehicle viz. cholamandlam Investment and Finance Company Limited on 30.03.2018. As such, the present complaint, by claiming as Rs.7,86,380/- being paid amount by the complainant as well as Rs.4,50,000/- as business loss. Opposite party No. 1 denied rest of the allegations leveled in the complaint and prayed for dismissal of the complaint.
3. Opposite party No.2 put in appearance through counsel and filed written statement wherein Opposite party No.2 refuted claim of the complainant and submitted that the complainant had availed a funds facility for the purchase of New vehicle bearing its registration NO. HR-38U-7313 to the tune of Rs.1650468/- from the answering opposite party vide Auto loan account N O. XVFOFBD00001400284 and for which a loan agreement was duly signed and executed between the parties to the present complaint. As per terms and conditions of the said loan agreement, the complaint was to repay the above said loan amount to the answering opposite party, in 45 equal installments of Rs.46580/- each and the first installment was to be paid from 01.06.2015 and the last installment was to be paid on or before 01.02.2019. After availing the funds facility the complainant always remained irregular in making the repayment of the loan amount to the answering opposite party and defaulted in installments from the very beginning. The officers of the opposite party also visited personally to the complainant and requested him to make the payment of the outstanding amount to the opposite party that thereafter as per the FIR NO. 341 dated 19.07.2017 u/s 279/304B IPC, PS, Laksi (Dehradun) which came to the knowledge of the answering opposite parties through insurance company i.e opposite party No.1 that the vehicle in question was totally damaged in road accident and accordingly insurance company release/disbursed the insurance amount to the answering opposite party as there was a huge outstanding amount due and payable by the complainant on the account of monthly EMI, interest and other overdue charges. It was submitted that the answering opposite parties was the absolute owner of the vehicle in question unless and until entire loan amount had not been paid by the borrower and more over the vehicle in question had been hypothecated
in favour of the answering opposite party as per the terms and conditions of the loan agreement, hence the answering opposite party was legally entitled to receive the insurance amount pertains to the vehicle in question. As per the terms and conditions of the loan agreement the answering opposite party was the absolute owner of the vehicle bearing its registration NO. HR-38U-7313 and the vehicle had been hypothecated in favour of the answering opposite party and hence the complainant cannot claim any right, title or interest over the said vehicle unless and until entire dues of loan amount were not paid to the answering opposite party. Opposite party No. 2 denied rest of the allegations leveled in the complaint and prayed for dismissal of the complaint.
4. The parties led evidence in support of their respective versions.
5. We have heard learned counsel for the parties and have gone through the record on the file.
6. In this case the complaint was filed by the complainant against opposite parties– M/s. Cholamandalam MS General Insurance Co. Ltd. & another with the prayer to: a) pay the cost of the said vehicle to the complainant as a compensation as per the terms of the policy and total amount paid by the complainant was Rs.7,86,380/- may kindly be refunded back to the complainant alongwith the penal interest decided by the Forum. b) pay Rs. 4,50,000/- against the business loss as policy covers the business loss also in the commercial vehicle insurance policy. c) pay Rs. 25,000 /-as litigation expenses.
To establish his case the complainant has led in his evidence, Ex.CW1/A – affidavit of Shri Om Prakash, Ex.C-1 copy of order dated 17.12.2019 passed by the District Consumer Disputes Redressal Fourm Faridabad, Ex.C-2 – RC, Ex.C-3 – insurance policy for the period 21.4.2016 to 20.04.2017, Ex.C-3(A) – insurance policy for the period 21.4.2017 to 20.4.2018, Ex.C-4 – certificate,, Ex.C-5 – Form N.P.PU.C,, Ex.C-6 – Certificate of fitness, Ex.C-7 – receipt, Ex.C-8 – Authorization certificate of N.P.(Goods), Ex.c-9 – account statement from
09.01.2010 to 09.01.2020, Ex.C-10 – letter 19.07.2017, Ex.C-11 – statement of Om Parkash, Ex.C-12 – Nakal Chik,, Ex.C-12 (A) - Vehicle technical report,, Ex.C-13 – letter, Ex.C-14 - letter dated 27.11.2017,, Ex.C-15 – Affidavit in the reception of evidence for and behalf of opposite party, Ex.C-16 – legal notice, Ex.C-17 – postal receipts.
On the other hand counsel for the opposite party strongly agitated
and opposed. As per the evidence of the opposite party No.1 Ex.RW1/A – affidavit of Surjeet Kumar Sahu, Dy. Manager (Legal), M/s. Chola Mandlam MS General Insurance Company Limited, Plot No. 39, 2nd floor Opp. Metro Pillar No.1 20, Pusa Road, Karol Bagh, New Delhi, Ex.R-1 – account statement from 14.04.2015 to 18.01.2021, Ex.R1 – RC, Ex.R2 – insurance policy for the period 21.04.2017 to 20.04.2018, Ex.R3 – Nakal Chik, Ex.R4 - Motor Insurance claim Form,, Ex.R5 – Driving licence, Ex.R-6 – Details of driving licence,, Ex,R-7 – Extract of driving licence,, Ex.R-8 - letter date 27.11.2017, Ex.R-9 – Reply to legal notice dated 10.3.2018,, Ex.R-10 – consent letter, Ex.R-11 – claim disbursement.
As per the evidence of opposite party No.2 Ex.RW2/A – affidavit of Sudhir, Legal Manager and authorized representative of M/s. Cholamandalam Investment
7. In this case, the complainant was the registered owner of the vehicle bearing its registration No. HR-38-U-7313 and the said vehicle was insured with the opposite party No.2 vide policy No. 3379/01716182/000/001 valid from 21.04.2017 to 20.04.2018 for the insured sum of Rs.12,70,000/-. The said vehicle was financed from the opposite party No.2 against which complainant was paying the EMI of Rs.39,319/- on monthly basis. On 18.07.2017 at about 10:15pm in the night, the said vehicle No. HR-38-U-7313 of the complainant had been met with road accident and in this occurrence, one person namely Pratap Singh s/o Shri Nain Singh R/o Village Kadal, P.O. Tikkari, P.S.Niyol, District Shimla had died and another person namely Raja Ram S/o Shri Rambabu R/o village Pahladpur, who had received/sustained multiple and grievous injuries on his personal and in this regards, A FIR No. 341 dated 1907.2017 u/s 279/304-B IPC in P.S.Kalsi (Dehradun) had been registered and in the said accident vehicle of the complainant was totally damaged. It is evident from repudiation letter vide Ex.R-8 in which it has been stated that “the driver at the material time of the accident was not holding an effective driving license to drive the captioned vehicle in HILL-ZONE. Hence there had been a serious breach of the driver’s clause contained in the policy apart from violation of the Motor vehicles Act. The applicable policy condition is reproduced for refe4rence:
“Persons or class of persons entitled to drive:
Any person including the insured:
Provided that the person driving, holds an effective driving license at the time of accident and is not disqualified from holding or obtaining such a license.”
The applicable law is reproduced for reference:-
No person shall drive a public service vehicle or a goods vehicle on a hill road unless his license to drive such public service vehicle or goods vehicle has been endorsed by a registering authority with a permission to drive upon hill roads situated within the jurisdiction of such registering authority or in the case of a public service vehicle hired by tourists, by the registering authority of the state with which reciprocal arrangement son the point have been agreed upon.
In view of the facts and documentary evidence, we express our inability to convey that the said claim is no tenable.”
8. After going through the evidence led by the parties, the Commission is of the opinion that the complaint is allowed on non standard basis.
9. For the adjudication of the present complaint and the issue therein, we place reliance on the Supreme Court Authority Amalendu Sahoo Vs. Oriental Insurance Company in Civil Appeal NO. 2703/2010 decided on 25.3.2010.
In Amalendu Sahoo’s case, there was violations of the Terms & conditions of the policy and the insurance benefits were denied by the insurance company. In the above mentioned case, further reliance was placed by the Supreme Court on:
a). New India Assurance Co. Ltd. Vs. Narayan Prasad Appa Prasad Pathak, and
b). National Insurance Company Vs. Nitin Khandelwal
Wherein it was observed by the Apex Court that the claim could have been settled on non standard basis in the event of any breach of condition upto 50%. Once the Insurance Company has insured the vehicle for the loss caused to the insured, the insurance company is liable to indemnify the owner. When there is breach of the condition of the policy, the insurance company ought to have settled the claim on non standard basis.
10. Following the aforesaid guidelines, this Commission is of the opinion that the insurance company cannot repudiate the claim in toto. The complaint is allowed for claim to be settled on non standard basis.
IDV value of vehicle : Rs.12,70,000.00
Less Excess Clause : Rs. 1,000.00
: Rs. 12,69,000.00
Deduction 25% on non standard basis on total : - Rs. 3,17,250.00
Total : Rs. 9,51,751.00
11 The opposite party is directed to pay Rs. 9,51,751/- alongwith interest @ 6% p.a to the complainant from the date of filing of complaint till its realization. The opposite party is also directed to pay Rs.2200/- as compensation on account of mental tension, agony and harassment and Rs.2200/- as litigation expenses to the complainant. This payment will be subject to the condition that the complainant will furnish the subrogation letter, cancellation of RC, affidavit, Form 29,30 and Form 35A. Compliance of this order be made within 30 days from the date of receipt of copy of order. File be consigned to the record room. Copy of this order be sent to the parties concerned free of costs.
Announced on: 17.08.2022. (Amit Arora)
President
District Consumer Disputes
Redressal Commission, Faridabad.
(Mukesh Sharma)
Member
District Consumer Disputes
Redressal Commission, Faridabad.
