Punjab

Ludhiana

CC/20/182

Manjeet Kaur - Complainant(s)

Versus

M/s Magma HDI General Insurance Company Ltd - Opp.Party(s)

S.P.Sharma Adv.

22 Sep 2023

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, LUDHIANA.

                                                Complaint No:182 dated 11.09.2020.                                                         Date of decision: 22.09.2023.

 

Manjeet Kaur wife of Surinder Singh, being a legal heir and nominee of her son namely Harjot Singh (deceased), resident of House No.B-33/2029, New Aman Nagar, Near Jalandhar Bye Pass, Ludhiana.                                                                                                                                           ..…Complainant

                                                Versus

1. M/s. Magma HDI General Insurance Company Limited, Development House, 24, Park Street, Kolkata-700016.
2. The Branch Manager of M/s. Magma HDI General Insurance Company Limited, 2^nd Floor, Dada Motor Limited, Savitri Complex, Dholewal Chowk, G.T. Road, Ludhiana.                                                                                                                                                  …..Opposite parties 

Complaint Under section 12 of the Consumer Protection Act, 1986.

QUORUM:

SH. SANJEEV BATRA, PRESIDENT

SH. JASWINDER SINGH, MEMBER

MS. MONIKA BHAGAT, MEMBER

 

COUNSEL FOR THE PARTIES:

For complainant             :         Ms. Nisha Bharti, Advocate.

For OPs                          :         Sh. Vyom Bansal, Advocate.

 

ORDER

PER SANJEEV BATRA, PRESIDENT

1.                Briefly stated, the facts of the case are that Harjot Singh (now deceased) son of the complainant was owner of commercial vehicle bearing registration No.PB-01-B-6266 which was insured with opposite parties vide policy No.P0020400002/4103/101794 on premium of RS.20,649/- having validity from 15.05.2019 to midnight of 14.05.2020. The said vehicle was being used for Taxi purpose and was having Tourist Permit and National Permit from the office of State Transport Authority. The complainant stated that while returning from Delhi Airport to Ludhiana, the said vehicle met with an accident on 20.08.2019 near Mayur Dhaba, Karnal, Haryana, being driven by Harjot Singh who died at the spot in the said accident. The vehicle was got totally damaged. Intimation was given to police and on the statement of Surinder Kumar son of Malkiat Ram, resident of 73, Bhora Colony, Jalandhar Bye Pass, Ludhiana, an FIR No.890 dated 20.08.2019 under Section 304-A, 279 IPC was registered by the police of Police Station Karnal Sadar, District Karnal (Haryana). Harjot Singh was having a valid and genuine driving license at the time of accident. The complainant further stated that she being nominee of Harjot Singh informed the opposite parties and also lodged a claim regarding total loss of the vehicle and for compensation of death of Harjot Singh vide claim No.C1204103105399 and she also submitted the requisite documents and competed all the formalities for settlement of the claim but the opposite parties have failed to settle the claim despite her repeated requests. The complainant several times approached the Ludhiana office of opposite parties with request to settle the claim where she was asked to talk with Claim Officer Dinesh Kumar on his contact No.85588-77252. The complainant also requested the claim officer over telephone to settle the claim but he lingered on the matter on one pretext or the other. According to the complainant, the opposite parties have illegally withheld her legitimate claim due to which she has suffered great mental pain and agony on account of deficiency in service on the part of the opposite parties. The complainant got served a legal notice dated 07.08.2020 through her counsel upon the opposite parties but to no effect. Hence this complaint whereby the complainant has prayed for issuing direction to the opposite parties to make payment of Rs.3,00,000/- as loss suffered to the vehicle in accident and also to pay compensation of Rs.5,00,000/- on account of mental pain. The complainant further prayed to pay Rs.15,00,000/- as death claim of Harjot Singh besides litigation expenses of Rs.22,000/-.

2.                Upon notice, the opposite parties appeared and filed written statement and by taking factual submission/preliminary objections, assailed the complaint on the ground of maintainability of the complaint; lack of cause of action; non-joinder of Magma Fincorp Limited as party; lack of jurisdiction etc.  The opposite parties stated that the TATA Bolt Car bearing registration No.PB-01B-6266 was insured in the name of Harjot Singh for the period from 15.05.2019 to 14.05.2020 vide policy No.P0020400002/4103/101794 for Commercial Vehicle Class (PCV) Package Policy as per terms and conditions of the policy mentioned in Policy Schedule. The benefits under the policy are governed by the terms and conditions of the policy and liability of the opposite parties is limited to the insured perils occurring within the policy period subject to conditions and exceptions as mentioned in the terms and conditions of the policy. The oppsotie parties further stated that upon receipt of the claim from the complainant for the damages to the vehicle on 20.08.2019, they duly registered the claim and deputed IRDA licensed and independent surveyor Mr. Jagdish Kumar Sharma to assess the loss to the vehicle, who collected the documents from the complainant, got filled the claim form, inspected the vehicle and clicked photographs and issued letters dated 18.09.2019 & 12.10.2019 to the complainant. The opposite parties also appointed M/s. B&T Associates (Insurance Investigator) to investigate the accident and verify the vehicle documents who submitted his report dated 18.10.2019 along with RC verification and permit of the vehicle. Thereafter, a letter dated 21.10.2019 was issued by the insurance company to the complainant for providing documents/information. Upon receipt of the documents, the authorized official of insurance company applied their mind and found the material violations, which are reproduced as under:-

a.       The insurance policy was issued in the name of Late Harjot Singh registration certificate of the vehicle was not transferred in the name          of Late Harjot Singh at the time of accident. The date of accident is 20.08.2019 and date of transfer of registration certificate is 06.09.2019 which is after the accident date.

b.       As per surveyor report, the permit authorizations had expired on 13.03.2018 and permit was not valid for Haryana State. The vehicle in question was plying in Haryana State at the time of loss.

The opposite parties have mentioned the provisions of Section 39 as well as Section 66 of the Motor Vehicle Act to establish its case. The opposite parties further stated that due to said reasons the claim of the complainant was found not payable in terms of the Condition No.8 of the Policy Terms and the same was repudiated, which was intimated to the complainant vide letter dated 31.10.2019. Condition No. 8 of the policy is reproduced as under:-

“Condition 8 - The due observance and fulfillment of the terms, conditions and endorsement of this policy in so far as they 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.”

The opposite parties further averred that the claim of the complainant has been rightly closed through application of mind and in terms of the coverage under the policy.

                   On merits, the opposite parties reiterated the crux of averments made in the preliminary objections. The opposite parties denied any deficiency in service on their part and in the end, prayed for dismissal of the complaint.

3.                In support of her claim, the complainant tendered her affidavit Ex. CA in which she reiterated the allegations and the claim of compensation as stated in the complaint. The complainant also tendered documents Ex. C1 is the copy of death certificate of Harjot Singh, Ex. C2 is the copy of driving license of Harjot Singh, Ex. C3 is the copy of registration certificate No.PB01-B-6266, Ex. C4 is the copy of insurance policy, Ex. C5 is the copy of Tourist Permit, Ex. C6 is the copy of FIR No.890 dated 20.08.2019, Ex. C7 is the copy of legal notice dated 07.08.2020, Ex. C8 and Ex. C9 are the postal receipts and closed the evidence.

4.                On the other hand, counsel for the opposite parties tendered affidavit Ex. RA of Sh. Harbhajan Singh, Assistant Manager (Legal) of Magma HDI General Insurance Co. Pvt. Ltd. at SCO-75, 2^nd Floor, Phase-9, Mohali along with documents Ex. R1 is the copy of insurance documents, Ex. R2 is the copy of motor insurance claim form, Ex. R3 and Ex. R4 are the copies of letters dated 18.09.2019 and 12.10.2019 of the surveyor to the complainant, Ex. R5 is the copy of letter dated 21.10.2019 to the complainant, Ex. R6 is the copy of investigation report of B&T Associates, Ex. R7 is the copy of vehicle history report, Ex. R8 is the copy of Tourist permit, Ex. R9 is the copy of repudiation letter dated 31.10.2019 and closed the evidence.

5.                We have heard the arguments of the counsel for the parties and also gone through the complaint, affidavit and annexed documents and written reply along with affidavit and documents produced on record by both the parties. We have also gone through written arguments submitted by the complainant.

6.                One Harjot Singh (now deceased), son of the complainant was the owner of one Commercial vehicle i.e. Tata Bolt car No.PB01B-6266 and he obtained an insurance policy Commercial Vehicle Class (PCV) Package Policy , Ex. C4 = Ex. R1 from the opposite parties having validity from 15.05.2019 to 14.05.2020 by paying a premium of Rs.20,649/-.  Unfortunately, on 20.08.2019, an accident took place in the area near mayor Dhaba, Karnal, Haryana and Harjot Singh died at the spot regarding which an FIR No.890 dated 20.08.2019 was got registered at Police Station Karnal Sadar, District Karnal (Haryana). Being nominee and mother of Harjot Singh, the complainant submitted formal claim with the opposite parties vide claim form Ex. R2 along with documents and intimation of death of her son with request to settle the claim. The opposite parties deputed Er. J.K. Sharma, Chartered Valuer/Engineer/Surveyor to assess the loss, who collected the documents from the complainant, inspected the vehicle and took photographs of the vehicle. The said surveyor issued letters dated 18.09.2019 and 12.10.2019 to the complainant to produce certain documents. As per letter dated 18.09.2019 and 12.10.2019, the surveyor demanded following documents from the complainant:-

          1. Registration certificate in original

          2. DL copy

          3. Taxi permit

          4. FIR or police report

          5. MLC/Post mortem

          6. Estimate for the repairs/claim form duly filled up and signed by    Nominee.

          7. Any other information regarding/supporting the claim.

The surveyor further vide his letter dated 12.10.2019 demanded the following information from the complainant:-

1. The claim form duly filled up and signed by the nominee with authorization.
2. The permit authorizations expired on 13.03.2018, whether it was renewed or not? Permission for Haryana State is available with your good self send the details. Please inform immediately.
3. After going through the policy details it seems that the date of Transfer is 06.09.2019 and the occurrence of mishap is 20.08.2019 prior to the transfer.
4. Please clarify whether the RC was transferred on 06.09.2019 or issued on this date.
5. You were asked to submit a tentative repair estimate for the lying car but till date nothing is available. Please follow the claim accordingly so that we may pursue the same. Your early action will be help us to serve you. 

The opposite parties further appointed B&T Associates, Insurance Investigator to investigate the matter who submitted its report dated 18.10.2019 vide which the investigator concluded that the insurer are not at liability to entertain the claim as the ownership of the insured vehicle was transferred after the date of accident on 17.09.2019. However, the opposite parties vide letter dated 21.10.2019 demanded the following documents from the complainant:-

1. Duly filled and signed claim form by the nominee with authorization.
2. The permit authorizations expired on 13.03.2018, whether it was renewed further or not? If yes, please provide copy of permit authorization.
3. After going through the RC copy, it has been observed that the date of Transfer of Registration Certificate is 06.09.2019 and the occurrence of mishap is 20.08.2019 prior to the ownership transfer, please clarify whether the RC was transferred on 06.09.2019 or issued on this date.
4. Kindly submit tentative repair estimate for loss assessment.
5. Copy of legal heir certificate.
6. Pan and Aadhar card copy of legal heir/nominee.

Thereafter, vide letter dated 31.10.2019, the opposite parties informed the complainant stating therein that her claim is not tenable and does not fall under the purview of the policy. The opposite parties in that letter enlisted violation of following terms and conditions of the policy:-

1.       The insurance policy was issued in the name of Late Harjot Singh registration certificate of the vehicle was not transferred in the name          of Late Harjot Singh at the time of accident. The date of accident is 20.08.2019 and date of transfer of registration certificate is 06.09.2019 which is after the accident date.

2.       As per surveyor report, the permit authorizations had expired on 13.03.2018 and permit was not valid for Haryana State. The vehicle in question was plying in Haryana State at the time of loss.

The opposite parties further invoked the provisions of Section 39 and 66 of the Motor Vehicle Act, 1988 in the said letter.

7.                Perusal of Terms and Conditions as stipulated Commercial Vehicle Class (PCV) Package Policy Ex. R1 shows that Section 1 provides 10 instances where the opposite parties are bound to indemnify  the insured against loss or damage to the vehicle and/or its accessories. Section 1 is reproduced as under:-

SECTION I : LOSS OF OR DAMAGE TO THE VEHICLE INSURED. The company will indemnify the insured against loss or damage to the vehicle insured hereunder and/or its accessories whilst thereon

1. by fire explosion self ignition or lightning;
2. by burglary housebreaking or theft;
3. by riot and strike;
4. by earthquake (fire and shock damage)
5. by flood typhoon hurricane stork tempest inundation cyclone hailstorm frost;
6. by malicious act;
7. by terrorist activity;
8. whilst in transit by road rail inland-waterway lift elevator or air;
9. by landslide rockslide.

8.                There is no word of denial in the said repudiation letter with regard to indemnification of the loss and damage caused to the insured vehicle at the time of said accident. Admittedly, neither the complainant placed any estimate of the damage nor the opposite parties took any effective steps to appoint and depute any IRDA surveyor to assess the loss of the insured vehicle. Further when the opposite parties have seized of the matter, they are under legal obligation to adjudicate the claim fully. Further the officials/agents of the insurance companies are required to provide careful and diligent assistance to customers while dealing with their claim application as well. However, in evidence, the complainant submitted copy of registration certificate as Ex. C3, which shows the class of vehicle as Motor Cab and the same was transferred in the name of Harjot Singh deceased on 06.09.2019, however, the accident took place on 20.08.2019 in which Harjot Singh died. As such, the transfer of the vehicle was conducted within stipulated period of 30 days. Moreover, the opposite parties issued the insurance cover note in favour of Harjot Singh at the time when the vehicle in question was not transferred in the name of Harjot Singh and the opposite parties did not raise any issue in this regard at the time of issuance of the policy. In 2022 LiveLaw (SC) 937 in M/s. Texco Marketing Pvt. Ltd. Vs TATA AIG GIC Ltd. and others passed by the Hon’ble Supreme Court of India, appellant secured a Standard Fire & Special Perils policy which was meant to cover a shop situated in the basement of the building. However, exclusion clause of the contract specifies that it does not cover the basement. The appellant continued to pay the premium promptly. The shop met with fire accident for which the appellant raised a claim. The claim was repudiated by respondent No.1  taking the umbrage under the exclusion clause. The Hon’ble Supreme Court partly allowed the appeal and observed in para No.37 of the judgment:-

 “37.Once it is proved that there is a deficiency in service and that respondent No. 1 knowingly entered into a contract, notwithstanding the exclusion clause, the consequence would flow out of it. We have already discussed the scope and ambit of the provisions under the Indian Contract Act, 1872. Even as per the common law principle of acquiescence and estoppel, respondent No. 1 cannot be allowed to take advantage of its own wrong, if any. It is a conscious waiver of the exclusion clause by respondent No. 1.”

 

9.                Further the opposite parties took a ground for rejection of the claim that the vehicle was not having a valid permit at the time of accident. Both the parties produced copy of permit as Ex. C5 = Ex. R8 on the record, which shows the date of expiry of permit as 13.03.2022 i.e. before the date of accident when the vehicle was being driven by deceased Harjot Singh. Hence, the vehicle was having a valid permit at the time of accident. As such, this ground for repudiation of the claim on the part of the opposite parties is not tenable.

10.              Recently, the Hon’ble Supreme Court of India in Civil Appeal No.4758 of 2023 title as Ashok Kumar Vs New India Assurance Co. Ltd. while relying the judgments in National Insurance Company Limited Vs Nitin Khandelwal (2008) 11 SCC 259 and Amalendu Sahoo Vs Oriental Insurance Company Limited (2010) 4 SCC (536) has held that even if there was breach of any clause in the insurance policy, the claim could not have been repudiated in toto and the claim should have been settled on non-standard basis. The Hon’ble Supreme Court made the following observations in Para No.18 and 19 of the said Civil Appeal No.4758 of 2023:-

“18) In Amalendu Sahoo (supra), this Court noticed the guidelines issued by the New India Assurance Co. Ltd. in settling claims on non-standard basis. The guidelines read as under:-

Sl. No.	Description	Percentage of settlement
(i)	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.
(ii)	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 up to 75% of admissible claim."

The above guidelines were followed by this Court in Amalendu Sahoo (supra) as is clear from para 14 of the said judgment. The District Forum and the State Commission have rightly applied Amalendu Sahoo (supra) to the facts of the present case and awarded 75% on non-standard basis.

19) Nitin Khandelwal (supra) and Amalendu Sahoo (supra) lay down the correct formula that where there is some contributory factor, a proportionate deduction from the assured amount would be all that the Insurance Company can aspire to deduct.

We are inclined to accept the plea of the appellant that in the case at hand, on the facts governing the scenario, Clause (iii) of the table set out in para 14 of Amalendu Sahoo (supra) is attracted and the District Forum and the State Commission were justified in awarding the entire 75% of the admissible claim.”

It is evident that the parties hereto have contributed to the non-settlement of claim qua the loss and damages to the vehicle. Further the Commercial Vehicle Class (PCV) Package Policy Ex. R1 shows that the IDV value of the vehicle is Rs.3,00,000/-. So in the given set of peculiar facts and circumstances, it would be appropriate if the claim of the insurance of the complainants is allowed to the extent of 75% of the insured value of the vehicle. The insured vehicle would be delivered by the complainant to opposite parties after completing all the formalities regarding transfer of the vehicle in the name of the opposite parties within 30 days and thereafter, the opposite parties shall pay the claim of the insurance of the complainant to the extent of 75% of the insured value of the vehicle within 15 days after receiving the vehicle from the complainant.

11.              Similarly, Section IV provides the personal accidental cover for owner/driver and also provides scale of compensation  depending upon death or loss of limbs etc., which is reproduced as under:-

                   “Section IV – Personal Accident Cover for Owner-Driver.

Subject otherwise to the terms exceptions conditions and imitations of this policy, the Company undertakes to pay comepnsation as per the following scale for bodily injury/death sustained by the owner-driver of the vehicle in direct connection with the vehicle insured or whilst mounting into/dismounting from or traveling in the insured vehicle as a co-driver, caused by violent accidental external and visible means which independent of any other cause shall within six calendar months of such injury result in:

Nature of injury	Scale of compensation
(i) Death	100%
(ii) Loss of two limbs or sight of two eyes or one limb and sight of one eye.	100%
(iii) Loss of one limb or sight of one eye	50%
(iv) Permanent total disablement from injuries other than named above	100%

1. Compensation shall be payable under only one of the items (i) to (iv) above in respect of the owner-driver arising out of any one occurrence and the total liability of the Company shall not in the aggregate exceed the sum of Rs.15 Lakhs during any one period of insurance.
2. No compensation shall be payable in respect of death or bodily injury directly or indirectly wholly or in part arising or resulting from or traceable to (a) intentional self injury suicide or attempted suicide physical defect or infirmity or (b) an accident happening whilst such person is under the influence of intoxicating liquor or drugs.
3. Such compensation shall be payable directly to the insured or to his/her legal representatives whose receipt shall be the full discharge in respect of the injury to the insured.
4. This cover is subject to

1.  the owner-driver is the registered owner of the vehicle insured herein;
2.  the owner-driver is the insured named in the Policy.
3.  the owner-driver holds an effective driving license, in accordance with the provisions of Rule 3 of the Central Motor Vehicles Rules, 1989, at the time of the accident.”

The complainant has specifically made a prayer of payment of Rs.15,00,000/- as compensation on account of death claim of the policy holder Harjot Singh. Perusal of written version and affidavit of the opposite parties would reveal that these documents are silent about the preferring, processing and settlement of personal accident claim of Harjot Singh. There is no specific denial to the prayer of Rs.15,00,000/- as compensation on the part of the opposite parties. Although the surveyor, investigator were appointed and all the documents were requisitioned and examined by the representatives/officials of the opposite parties but they maintained a stoic silence with regard to settlement of personal accidental claim. So it will be in the fitness of things if the complainant is directed to submit the claim afresh with regard to personal accident claim within 15 days from the date of receipt of copy of order and further the opposite parties will settle and reimburse the said claim within 30 days from the date of receipt of copy of order.

12.              As a sequel of above discussion, the complaint is partly allowed with direction to the complainant to deliver the insured vehicle to the opposite parties after completing all the formalities regarding transfer of the vehicle in the name of the opposite parties within 30 days and thereafter, the opposite parties shall pay the claim of the insurance of the complainant to the extent of 75% of the insured value of the vehicle within 15 days after receiving the vehicle from the complainant. The complainant is further directed to submit the claim afresh with regard to personal accident claim within 15 days from the date of receipt of copy of order and further the opposite parties will settle and reimburse the said claim within 30 days from the date of receipt of copy of order. In case the opposite parties fail to reimburse the settled amounts to the complainant within the respective stipulated period(s), then the opposite parties shall pay an interest @8% per annum to the complainant from the date of order till its actual payment. The opposite parties shall also pay a composite costs of Rs.10,000/- (Rupees Ten Thousand only) to the complainant within 30 days from the date of receipt of copy of order. Copies of order be supplied to parties free of costs as per rules. File be indexed and consigned to record room.

13.              Due to huge pendency of cases, the complaint could not be decided within statutory period.

 

(Monika Bhagat)          (Jaswinder Singh)                     (Sanjeev Batra)

Member                         Member                                       President         

Announced in Open Commission.

Dated:22.09.2023.

Gobind Ram.