Date of Filing: 23-05-2016
Date of Order:30 -4-2019
BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM – I, HYDERABAD
P r e s e n t
HON’BLE Sri P.VIJENDER, B.Sc. L.L.B. PRESIDENT.
HON’BLE Smt. D.NIRMALA, B.Com., LLB., MEMBER
Tuesday, the 30th day of April, 2019
C.C.No.277 /2016
Between
Mr.Yashpal Sharma,
S/o.Ramcharan Sharma,
Aged about 44 years,
Occ: Business, Indian,
R/o.H.No.2-41-11/7,
Gopal Reddy Nagar,
Kondapur, Hyderabad – 500081 ……Complainant
And
- M/s. HDFC ERGO General Insurance company Ltd.,
Rep. by it’s Claim Manager,
H.No.3-6-180/2, Kuchkulla House,
Himayath Nagar, Hyderabad – 500029
- M/s. HDFC ERGO General Insurance company Ltd.,
Rep. by it’s Chairman & Managing Director,
6th floor, Leela Business Park,
Andheri-Kurla Road, Andheri (East),
Mumbai
Maharashtra State – 400059 ….Opposite Parties
Counsel for the complainant : M/s. K.Visweswara Rao
Counsel for the opposite Parties : Mr.N.Srinath Rao
O R D E R
(By Sri P. Vijender, B.Sc., LL.B., President on behalf of the bench)
This complaint has been preferred under Section 12 of C.P. Act of 1986 alleging that non settlement of claim for an amount of Rs.5,40,000/- having offered to pay same as “Net of Salvation” amounts to unfair trade practice and deficiency of service hence a direction to pay the said amount with interest at 18% P.A from 9-1-2015 to the date of payment and award a sum of Rs.1,000/- per day to the complainant from 9-1-2015 to the date of settlement of the claim, because after sale of the insured vehicle the complainant was deprive of use of the same and to award a sum of Rs.3,00,000/-as compensation for causing mental agony, hardship and serious inconvenience and further sum of Rs.40,000/- towards costs of this complaint.
- The complainant’s case in brief is that he purchased one Hyundai Xcent CRDI SXBBSIV diesel sedan motor car for a sum of Rs.6,81,927/- with financial assistance from HDFC bank Ltd. After the purchase of the car it was registered with RTA vide registration bearing No.TS07DTR5705 and obtained a private car package policy from the opposite parties covering period from 8-01-2015 to 07-01-2016 and policy covers entire damage to the vehicle and driver of it. The premium amount paid for the policy was Rs.20,963/-.
On 9-01-2015 the complainant while proceeding from Hyderabad to Nagpur when he reached the limits of Gandhinagar Siwar within the jurisdiction of Adilabad P.S a lorry came in the opposite direction and the complainant turned left side by applying sudden brakes but he could not control the car, the said lorry went down on the road and hit to a mound and the car turned reversely and fell in rain water nala causing total damage. Soon after the accident the complainant reported it in the police station Echoda who conducted panchanama. Thereafter complainant made a claim with the opposite parties for payment of the amount on the total loss basis.
The opposite parties after registering the claim on 14-01-2015 appointed a surveyor and offered to pay the claim on Net of Salvage basis for sum of Rs.5,48,000/- less policy excess of Rs.1,000/- towards full and final settlement of own damage claim. The opposite parties have got authorization in getting the salvage sold to the best salvage value through the resources available and the salvage shall be handed over to the salvage buyer and that the amount of Rs.5,40,000/- was offered towards the claim on Net salvage basis. Though the complainant was not interested to handed over the salvage to the insurer but in view of the offer of payment of Rs.5,40,000/- expeditiously agreed to the proposal and signed an undertaking on 27-03-2015 expecting the claim amount of Rs.5,40,000/-immediately. The opposite parties having offered Net of salvage at Rs.5,40,000/- did not settle the claim though the salvage was sold and the purchaser of the salvage is utilizing the salvaged car. The opposite parties having offered an amount of Rs.5,40,000/- on net of salvage basis breached the trust and repudiate the claim on 15-04-2015 stating that the surveyor after inspection and verification of the driving license found that the license of the complainant was valid from 31-07-1996 to 18-8-2012 and later it was renewed for the period from 09-03-2015 to 18-08-2022 and as on the date of accident there was no valid license to drive the vehicle hence claim cannot be considered as per the terms and conditions of the policy. The said repudiation of the claim is not tenable because the complainant is having a driving license issued by RTA Ferozabad and it is valid from 31-7-1996 to 18-08-2022. The driving license submitted by the complainant is valid and there was no brake. That apart the opposite parties having offered to pay a sum of Rs.5,40,000/- on Net of Salvage basis without going into technicalities vide their offer undertaking dated 27-03-2015 and after obtaining authorization to sell the salvage and having sold it they are estopped to back out from the said offer and repudiate the claim on flimsy and untenable grounds. If the driving license is not valid the opposite parties should not have offered the amount of Rs.5,40,000/- on Net of salvage basis and should not have sold the salvage. Hence the repudiation of the claim is not tenable either in law or on facts.
The complainant has got all technical skills and expertise in driving the vehicle. The unfortunate accident was on account of lorry coming in opposite direction and taking sudden turn towards left and there was no negligence on the part of the complainant. The complainant approached the opposite parties several times with request to pay the claim offer under Net of salvage basis but there was no response. Hence the present complaint.
- Opposite parties in the common written version while admitting issuance of the policy to the car of the complainant and offering a sum of Rs.5,40,000/- towards full and final settlement of claim under Net of Salvage denied the rest of the complainant’s version.
The case of the opposite parties in the written version is that complainant is the owner of the new car insured the same with the opposite parties in policy bearing No.231120095972940001 for the period covering from 08-01-2015 to 07-01-2016. The said policy was issued subject to the terms, conditions and limitations thereof. Later the complainant made a claim on 14-01-2015 stating that the car met with an accident on 9-1-2015 in the limits of Gandhinagar Village while proceeding from Hyderabad to Nagpur. Though the claim was belated it was entertained and appointed INTECH insurance surveyor private Limited, a registered licensed surveyor to inspect the vehicle and submit report. Accordingly one Mr.Madhu as surveyor inspected the vehicle and during the course of inspection he noticed that the vehicle was completely damaged. Hence the opposite parties offered to settle the claim on Net on salvage basis for an amount of Rs.5,40,000/- towards full and final settlement of the claim. Complainant having agreed for it gave a written consent on 27-3-2015 for the sale of the vehicle for best salvage through available resources. It was understood between the parties that the consent given by the complainant is subject to the terms and conditions of the policy.
During the course of the discussion opposite parties addressed letters on 25-02-2015 and 11-03-2015 to the complainant asking him to produce the copy of driving license , ID proof, address proof etc to process the claim but complainant evaded the same on one or other pretext. Thereafter he furnished driving license particulars purported to have been issued by RTA Firozabad. Same was sent for verification on 25-03-2015 thereafter complainant executed consent letter and believing him opposite parties have put the vehicle for auction on 28-03-2015. In the meantime on 13-04-2015 the opposite parties received the extract of driving license from RTA Firozabad and on verification of the same they have noticed that driver was having valid license from 31-07-1996 to 18-8-2012 it was not renewed after 18-8-2012. An application for renewal was made on 9-3-2015 and it was valid up to 18-08-2022. So it goes to show that as on the date of accident the complainant did not possess a valid driving license which fact was within his knowledge as he himself applied for renewal but did not bring the said fact to the notice of the opposite parties during the discussion. The complainant wanted to take undue advantage and to settle his claim by suppressing the true facts. Soon after receiving information about validity of driving license of the complainant the opposite parties informed the complainant and auction purchaser of the car to stop transaction of salvage lifting and payment. But the complainant and auction purchaser entered into written agreement under which complainant agreed to pay an amount of Rs.3,00,000/- towards repair charges to auction purchaser and take the vehicle back from him. The copy of the said agreement was also forwarded to opposite parities. As per the terms of the said agreement the opposite parties not responsible for transfer of the vehicle. On 15-4-2015 opposite parties sent letter of intimation to the complainant repudiating his claim for not having valid and affective driving license as on the date of accident. After the said letter there was no correspondence between the parties.
The complainant approached before this Forum by suppressing material facts as he did not mention about the execution of agreement between himself and auction purchaser Mr.Md.Majid. As on today the vehicle is with auction purchaser hence he is proper and necessary party to the present complaint. But the complainant did not make him as a party to it. If auction purchaser has made a party the truth would have been come out as such the complaint is not maintainable and liable to be dismissed for non-joinder of necessary party and suppression of material fact.
The repaired vehicle is with the auction purchaser for more than one year as the complainant has not paid agreed amount to him. Complainant having not paid the agreed amount has approached this Forum with the present complaint with untenable allegations. Though the claim was repudiated on 15-04-2015 the present complaint was preferred on 1-6-2016 i.e, after 14 months of repudiation of the claim. No prudent person would wait for 14 months after repudiation of claim and no reasons are forthcoming from the complainant as to why has taken so much time in filing the present complaint before this Forum. The complainant is very much conscious of agreement between himself and auction purchaser and he needs to pay money for getting the vehicle back and since not in position to pay the amount to the auction purchaser filed the present complaint with false allegation of deficiency of service on the part of the opposite parties. Hence the complaint is liable to be dismissed.
In the enquiry stage, the complainant has got filed his evidence affidavit reiterating the material facts of the complaint and to support the same is got exhibited eight (8) documents. Similarly for the Opposite Parties evidence affidavit of one Sri S.Sanjay Kumar stated to be Manager (legal) of opposite party No.1 is got filed. The substance of his affidavit also is in tune with the stand taken in the written version and through him seven (7) documents are exhibited. Opposite parties also got filed a 3rd party affidavit of Md. Sajeed stated to be the auction purchaser of the subject vehicle and his affidavit shows after the purchase of the subject vehicle in the auction conducted by the opposite parties he got it repaired by spending Rs.3,00,000/- and as per the agreement between him and the complainant, the complainant has to pay Rs.3,00,000/- to him but same has not paid as on today, as a result the vehicle is in his possession now. Both sides have filed written arguments and supplemented the same with oral submissions.
The documents got exhibited by both the parties are not in dispute.
On a consideration of material available on record the following points have emerged for consideration .
- Whether the repudiation of the claim by the opposite parties is valid ?
- Whether the complainant is entitled for the amounts claimed in the complaint?
- To what relief?
Point No.1: The admitted facts are that the complainant soon after purchase of a new Hyundai Xcent CRDI SXBSIV car with the loan availed from HDFC bank got it insured with the opposite parties from 8-1-2015 to 7-1-2016 covering entire damage to the vehicle and its driver. The premium paid was Rs.20,963/-. On the 9th day of the purchase of the car and second day of coming to force of the policy, the car met with an accident causing almost total damage to it. After report with the concerned police within whose jurisdiction accident occurred the complainant submitted a claim on 14-1-2015 i.,e on 5th day of accident. Even according to the opposite parties in the written version after registering of the claim submitted by the complainant immediately they have appointed a registered license surveyor firm for inspection of the vehicle and a report of it. As per the written version surveyor by name Mr.P.Madhu inspected the subject vehicle on 15-1-2015 i.e, on the next day of the registration of the claim submitted by the complainant. Basing on the inspection of the damaged vehicle by surveyor Mr.Madhu the opposite parties stated to have offered to settle the claim on Net salvage basis for an amount of Rs.5,40,000/- towards full and final settlement of claim and obtained a consent letter from the complainant on 27-3-2015 for the sale of the vehicle for best salvage. According to the opposite parties the consent letter for the sale of the damaged vehicle is subject to the terms and conditions of the policy. As already said the opposite parties got exhibited seven ( 7) documents in support of his version but the said consent letter obtained from the complainant is not among them. After obtaining the said consent letter from the complainant opposite parties sold the vehicle on 28-03-2015 to Md.Sajeed the auction purchaser. Thereafter opposite parties seems to received the report that the complainant was not holding a valid driving license hence the offered claim was repudiated. So the only reasons for repudiating the offer claim of Rs.5,40,000/- the complainant was not holding a valid and effective driving license as on the date of accident. The learned counsel for the opposite parties in support of the contest that the driver of insured vehicle when not having effective valid driving license amounts violation of the terms and conditions of the policy placed reliance in the case of The Oriental Insurance Company Limited Vs. M/s. Vijay Bus service in F.A No.2018/191 before the Hon’ble Consumer Disputes Redressal Commission. In the above said case after expiry of driving license the driver did not apply for renewal for one month and on the date of accident he was not having a valid and affective driving license . The license of the said driver stated to have expired on 10-10-2013 and he applied for renewal of the same on 20-11-2013 i.e, 40 days after expiry period. It was observed that according to Section 15 (1) of the Motor Vehicles Act, 1988 in any case where the application for a renewal of the license is made more than thirty days after the date of its expiry the driving license shall be renewed with effect from the date of its renewal but in the instant case the application of the complainant for renewal was on 9-3-2015 i.e, to say 1 ½ month after the submitting of the claim.
In the above cited decision the Hon’ble State Commission referred the decision of Hon’’ble National Commission in the case of Mankunwar Sinha and Another Vs. Oriental Insurance Co.Ltd and various other decisions and the essence of the findings in the cases referred is that when there is no valid driving license to driver of the vehicle as on the date of accident amounts to violation of the terms and conditions o f the policy. Hence the repudiation of the claim by the company is justified.
In the present case admittedly the driving license of the complainant was expired on 18-08-2012 and he did not apply for renewal for more than two years. Hence the repudiation of the claim by the opposite parties is certainly valid.
One of the submission made on behalf of the complainant is the opposite parties having offered an amount of Rs.5,40,000/- on Net of Salvage basis without going to the technicalities are estopped to repudiate the claim on the ground of not holding a valid driving license by the complainant as on the date of accident. But as could be seen from Ex.A4 offer made by the opposite parties for settlement is subject to the terms, conditions and provisions of the policy in force at the time of mishap. Since the fact of the complainant was not having a valid driving license as on the date of accident when the offer was made by the opposite parties the complainant cannot claim that the opposite parties are not expected to back out from the offer because any offer made is subject to the terms and conditions of the policy. Though the complainant claimed that he was having a driving license as on the date of accident, the document placed on record by the opposite party in Ex.B3 and B4 clearly shows that he was not having a driving license as on the date of accident. Hence the point is answered infavour of the opposite parties and against the complainant.
Point No.2: In view of the findings that repudiation of the claim by the opposite parties is as per the terms, conditions and provisions of the policy the complainant is not entitled for any claims made in the complaint.
Point No.3: In the result, the complaint is dismissed. No order as to costs.
Dictated to steno, transcribed and typed by her, pronounced by us on this the 30th day of April , 2019
MEMBER PRESIDENT
APPENDIX OF EVIDENCE
Exs. filed on behalf of the Complainant:
Ex.A1-Private car package policy document dated 08-01-2015
Ex.A2- claim application dated 09-01-2015
Ex.A3- report of Panchanama dated 02-02-2015
Ex.A4- claim offer approval dated 27-03-2015
Ex.A5- Repudiation of claim dated 15-04-2015
Ex.A6-Driving license dated 31-07-1996
Ex.A7- certificate of registration (temporary) dated 01-01-2015
Ex.A8-Tax receipt dated 01-01-2015
Exs. filed on behalf of the Opposite parties
Ex.B1-policy along with terms and conditions
Ex.B2- claim form
Ex.B3- driving license
Ex.B4- report of Road transport officer, Firozabad
Ex.B5- Survey report
Ex.B6- agreement between the complainant and Mohd.Sajeed
Ex.B7- Repudiation letter dt.15-4-2016
MEMBER PRESIDENT
