Punjab

Ludhiana

CC/19/84

Ravinder Yadav - Complainant(s)

Versus

National Insurance Co. Ltd. - Opp.Party(s)

S.S Heer

17 Aug 2023

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, LUDHIANA.

                                                Complaint No:84 dated 06.02.2019.                                                 Date of decision: 17.08.2023.

 

1. Ravinder Yadav age about 54 years son of Late Sh. Bishan Nath Yadav,
2. Gainti Devi age about 50 years w/o. Sh. Ravinder Yadav, both residents of H. No.1250/26, Ward No.18, New Friends Colony, Ludhiana East, Ludhiana-141010.                                                                                                                                                                  ..…Complainants

                                                Versus

1. National Insurance Company Limited, Branch office at Mehtab House, Dhurkot Road, Ahmedgarh, District Sangrur through its Branch Manager.

Insurance Policy No.39010231176202883877 policy period 11.10.2017 to 10.10.2018.

2.  National Insurance Company Limited, 803-A, 8^th Floor, Konnectus Tower, Tower No.3, Opposite New Delhi Railway Station, Bhav Bhuti Marg, New Delhi-110002 through its Managing Director.                                                                                                                  
3. M/s. Kalsi Motors through its proprietor/partners, B-21-14885, Gandhi Nagar, Dholewal Road, Ludhiana.                                                                                                                                …..Opposite parties 

Complaint Under Section 12 & 14 of the Consumer Protection Act.

QUORUM:

SH. SANJEEV BATRA, PRESIDENT

SH. JASWINDER SINGH, MEMBER

 

COUNSEL FOR THE PARTIES:

For complainants            :         Sh. S.S. Heer, Advocate.

For OP1 and OP2          :         Sh. Gurjeet Singh Kalyan, Advocate.

For OP3                         :         Complaint against OP3 not admitted vide order                                           dated 09.05.2019

 

ORDER

PER SANJEEV BATRA, PRESIDENT

1.                Briefly stated, the facts of the complaint are that on 11.11.2017, late Sh. Sonu Yadav, son of the complainants purchased Splendor Motorcycle from opposite party No.3 vide invoice No.10008BJ17S1343 for Rs.50,142/-. The said motor cycle insured vide policy No.39010231176202883877  having validity from 11.10.2017 to 10.10.2018 by paying premium of Rs.1884/-. The total insured value of the vehicle was Rs.47,635/-. A provisions registration certificate No.PB-10-GN-2949 was supplied by opposite party No.3. Unfortunately, Sonu Yadav died on 11.11.2017 while he was going to Naina Devi along with his friend Raju Thakur son of Sh. Kamlesh Thakur, R/o. New Friends Colony, Sherpur, Ludhiana on his motor cycle No.PB-10-GN-2949 being driven by Sonu Yadav himself. When they reached near Santosh Kumar Da Dhaba, Near Lodhi Fatak, Shri Anandpur Sahib, District Rupnagar, the deceased Sonu Yadav suddenly fell down on the road and was badly insured on 10.11.2017 and became unconscious  due to multiple grievous injuries on his head. Raju Thakur took Sonu Yadav to Civil Hospital, Shri Anand Sahib where he was given first aid and was referred to P.G.I., Chandigarh. Sonu Yadav was admitted in PGI, Chandigarh on 10.11.2017 and was operated for head injury after his operation, Sonu Yadav died on 11.11.2017 due to severe injuries on his head. The complainants intimated the accident of their son to P.S. Anandpur Sahib who lodged a GDD No.25 dated 11.11.2017. Intimation of damage to the vehicle was given to opposite party No.3 by supplying post mortem report, death certificate, UID card etc. as per demand of opposite party No.3 who lodged claim with opposite party No.1. The complainants stated that they surprised to receive letter dated 26.11.2018 from opposite party No.1 wherein it was stated that due to not complied with the terms and conditions of the policy, the claim of the complainants have been repudiated. The complainants further received another letter dated 20.12.2018 from opposite party No.1 whereby they repeated the same language. The complainants replied the said letters through counsel Sh. S.S. Heer and Sh. Maninder Heer, Advocates on 15.01.2019 vide which they informed the opposite parties that the complainants had already supplied the requisite documents to opposite party No.3 and the vehicle in question is not in condition of repairs. The complainants further stated that the repudiation letters are illegal, null and void and against the terms and conditions of the policy which amounts to adoption of unfair trade practice and deficiency in service on the part of the opposite parties for which the complainants are  entitled to compensation. In the end, the complainants prayed for directing the opposite parties to pay the value of the damaged vehicle to the tune of 47,635/-, compensation to the tune of Rs.50,000/- and Rs.11,000/- as litigation expenses.

2.                Before admitting the complaint, the complainants field application for amendment of the complaint by adding Smt. Gainti Devi as class-I legal heir of deceased Sonu Yadav. The said application was allowed vide order dated 26.04.2019. However, the complaint as against opposite party No.3 was not admitted vide order dated 09.05.2019.

3.                Upon notice, opposite parties No.1 and 2 appeared and filed joint written statement by taking preliminary objections that the complaint is not maintainable and is without any cause of action; the complainant has not come to the court with clean hands and has concealed the material facts; this Commission has got no territorial jurisdiction etc. Opposite parties No.1 and 2 averred that the claim intimation was received vide letter dated 20.08.2018 by the complainant and after scrutinized the claim documents, they found that no information for own damage claim was received from the insured/representative nor the claim was lodged at any of Hero aligned dealers for repair of vehicle. Thereafter, the officials of opposite parties No.1 and 2 applied their mind and repudiated the claim vide letter dated 20.12.2018, on the grounds reproduced as under:-

“With reference to our previous letter dated 26.11.2018 and 20.12.2018 regarding the above said claim, we again remind you that as per claim paper as submitted by you have not complied following terms and conditions of the policy:-

5)      You had not reported the claim to the office immediately after occurrence of accident. This delay is a breach of Condition No.1 of the Motor Insurance Policy.

6)      You have not repaired the damaged vehicle as per motor terms and conditions of the policy.

7)      In this connection, the condition No.9 of the policy states:-

In the event of the death of the sole insured, this policy will not immediately apse but will remain valid for a period of three months from the date of the death of insured or until the expiry of this policy (whichever is earlier). During the said period, legal heir(s) of the insured to whom the custody and use of the Motor Vehicle passes may apply to have this policy transferred to the name(s) desire(s) to apply for transfer of this policy or obtain a new policy for the vehicle such heir(s) should make an application to the company accordingly within the aforesaid period. 

8)      As per General Dairy Details No.025 dated 11.11.2017 issues by the Police Station Anandpur Sahib, in which mentioned cause of death of the insured had been suddenly/naturally due to brain problems.

Hence, your claim under P.A. owner death is “not maintainable” under the policy since only accidental death/injury is covered. We are closing the file as “Repudiated” as claim does not fall within terms and conditions of the Motor Insurance Policy.”

Opposite parties No.1 and 2 further stated that there is no deficiency in service on their part in any manner at any stage.

                   On merits, opposite parties No.1 and 2 reiterated the crux of averments made in the preliminary objections. Opposite parties No.1 and 2 have denied that there is any deficiency of service and have also prayed for dismissal of the complaint.

4.                In support of their claim, complainant No.1 Sh. Ravinder Yadav tendered his affidavit Ex. CA in which he reiterated the allegations and the claim of compensation as stated in the complaint. The complainants also tendered documents Ex. C1 is the copy of tax invoice dated 11.10.2017, Ex. C2 is the copy of Form 22, Ex. C3 is the copy of payment receipt dated 11.10.2017, Ex. C4 is the copy of insurance policy, Ex. C5 is the copy of endorsement schedule, Ex. C6 is the copy of provisional registration certificate, Ex. C7 is the copy of General Diary Details No.25 dated 11.11.2017, Ex. C8 is the copy of medical certificate of cause of death of PGI, Chandigarh, Ex. C9 is the copy of death certificate of Sonu Yadav, Ex. C10 is the copy of repudiation letter dated 26.11.2018, Ex. C11 is the copy of repudiation letter dated 20.12.2018, Ex. C12 is the copy of reply dated 15.01.2019 sent by the complainants, Ex. C13 and Ex. C14 are the copies of postal receipts and closed the evidence.

5.                On the other hand, the counsel for opposite parties No.1 and 2 tendered affidavit Ex. RA of Sh. Ravinder Sidana, Divisional Manager, National Insurance Co. Ltd., DO-I, Ludhiana along with documents Ex. R1 is the copy repudiation letter dated 20.12.2018, Ex. R2 is the copy of repudiation letter dated 26.11.2018, Ex. R2 is the copy of letter dated 20.08.2018 written by the complainants to insurance company, Ex. R4, Ex. R7 is the copy of death certificate of Sonu Yadav, Ex. R5 is the copy of claim form, Ex. R6 is the copy of medical certificate of cause of death of PGI, Chandigarh, Ex. R8 is copy of insurance policy, Ex. R9 is the copy of endorsement schedule, Ex. R10 is the copy of Aadhar card of Sonu Yadav, Ex. R11 is the copy of passbook of the complainants with Canara Bank, Ex. R12 is the copy of Aadhar card of Ravinder Yadav, Ex. R13 is the copy of registration certificate No.PB10-GN-2949, Ex. R14 is the translated copy of GDD No.25 dated 11.11.2017, Ex. R15 is the copy of GDD No.25 dated 11.11.2017, Ex. R16 is the copy of Two Wheeler Package Policy terms and conditions and closed the evidence.

6.                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.      

7.                One Sonu Yadav (now deceased), son of the complainants purchased one motorcycle make Splendor for a sum of Rs.50,142/- on 11.11.2017 vide invoice ex. C1 and obtained an insurance policy Two Wheeler Certificate-cum-Policy Schedule (comprehensive Package) Ex. C4 = Ex. R8 from opposite parties No.1 and 2 having validity from 11.10.2017 to 10.10.2018 by paying a premium of Rs.1884/-. Temporary registration No.PB10-GN-2949 was allotted vide provisional certificate Ex. C6. Unfortunately, on 11.11.2017, an accident took place in the area near Santosh Kumar Da Dhaba, Near Lodhi Fatak, Shri Anandpur Sahib, District Rupnagar and Sonu Yadav succumbed to injuries at PGI, Chandigarh on 11.11.2017. Ex. R6 is the copy of medical certificate reflecting cause of death. GDD No.25 dated 11.11.2017 was registered at Police Station Anandpur Sahib as per statements of the complainant Ravinder Yadav.

8.                On 20.08.2018 i.e. more than 10 months after the incident, the complainant Ravinder Yadav submitted formal letter Ex. R3 along with documents and intimation for death of his son Sonu Yadav and requested opposite parties No.1 and 2 to take necessary action. Opposite party No.1 and 2 vide letter dated 26.11.2018 Ex. R2 informed the complainant Ravinder Yadav stating therein that the claim under P.A owner death is not maintainable under the policy since only accidental death/injury is covered and opposite parties are closing the file as “Repudiated” as claim does not fall within terms and conditions of the Motor Insurance Policy. Opposite parties No.1 and 2in that letter enlisted violation of following terms and conditions of the policy:-

1)      You had not reported the claim to the office immediately after occurrence of accident. This delay is a breach of Condition No.1 of the Motor Insurance Policy.

2)      You have not repaired the damaged vehicle as per motor terms and conditions of the policy.

3)      In this connection, the condition No.9 of the policy states:-

In the event of the death of the sole insured, this policy will not immediately apse but will remain valid for a period of three months from the date of the death of insured or until the expiry of this policy (whichever is earlier). During the said period, legal heir(s) of the insured to whom the custody and use of the Motor Vehicle passes may apply to have this policy transferred to the name(s) desire(s) to apply for transfer of this policy or obtain a new policy for the vehicle such heir(s) should make an application to the company accordingly within the aforesaid period. 

4)      As per General Dairy Details No.025 dated 11.11.2017 issues by the Police Station Anandpur Sahib, in which mentioned cause of death of the insured had been suddenly/naturally due to brain problems.

9.                Subsequent to repudiation letters dated 26.11.2018 Ex. C10 = Ex. R1 and 20.12.2018 Ex. C12 = Ex. R2 were addressed to the complainant Ravinder Yadav and contents of the previous repudiation letter were reiterated in both letters. The complainant sent a legal notice Ex. C12 to the contesting opposite parties.

10.              Perusal of Terms and Conditions as stipulated Two Wheeler Package Policy Ex. R16 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.

11.              Similarly, Section 3 provides the personal accidental cover for owner/driver and also provides scale of compensation  depending upon death or loss of limbs etc. Close scrutiny of repudiation letters would reveal that opposite parties No.1 and 2 had denied the personal accidental claim only by invoking the terms and conditions as contained in Section 3 of the policy Ex. C6. There is no word of denial in the said repudiation letters with regard to indemnification of the loss and damage caused to the insured motor cycle at the time of said accident. Clause 9 of Section-I squarely entitles the complainants to seek settlement of the claim of loss or damage resulted to the said vehicle. Admittedly, no regular claim was lodged by the complainant. Neither the complainants placed any estimate of the damage nor the contesting opposite parties took any effective steps to appoint and depute any IRDA surveyor to assess the loss of the insured vehicle. Further when the contesting opposite parties have seized of the mater, 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.

12.              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.15, 18 and 19 of the said Civil Appeal No.4758 of 2023:-

“15) It is an admitted position in the Repudiation Letter and the Survey Report that the theft did happen. What is alleged is that the Claimant was negligent in leaving the vehicle unattended with the key in the ignition. Theft is defined in Section 378 of the IPC as follows:-

"378. Theft.-Whoever, intending to take dishonestly any moveable property out of the possession of any person without that person's consent, moves that property in order to such taking, is said to commit theft."

As will be seen from the definition, theft occurs when any person intended to take dishonestly any moveable property out of the possession of any person without that person's consent, moves that property in order to such taking. It is not the case of the Insurance Company that the Claimant consented or connived in the removal of the vehicle, in which event that would not be theft, in the eye of law. Could it be said, as is said in the repudiation letter, that the theft of the vehicle was totally the result of driver Mam Chand leaving the vehicle unattended with the key in the ignition? On the facts of this case, the answer has to be in the negative. It is noticed in the repudiation letter that the driver Mam Chand had, after alighting from the vehicle, gone to enquire about the location of Mittal's Farm and that after he went some distance, he heard the sound of the starting of the vehicle and it being stolen away. The time gap between the driver alighting from the vehicle and noticing the theft, is very short as is clear from the facts of the case. It cannot be said, in such circumstances, that leaving the key of the vehicle in the ignition was an open invitation to steal the vehicle.

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. Since the considerable time has already been elapsed so it is not possible to follow the regular process of lodging and settling the claim. 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 complainants to opposite parties No.1 and 2 after completing all the formalities regarding transfer of the vehicle in the name of opposite parties No.1 and 2 within 30 days and thereafter, opposite parties No.1 and 2 shall pay the claim of the insurance of the complainants to the extent of 75% of the insured value of the vehicle within 15 days after receiving the vehicle from the complainants.

13.              As a sequel of above discussion, the complaint is partly allowed with direction to the complainants to deliver the insured vehicle to opposite parties No.1 and 2 after completing all the formalities regarding transfer of the vehicle in the name of opposite parties No.1 and 2 within 30 days and thereafter, opposite parties No.1 and 2 shall pay the claim of the insurance of the complainants to the extent of 75% of the insured value of the vehicle within 15 days after receiving the vehicle from the complainants. However, there shall be no order as to costs. Copies of order be supplied to parties free of costs as per rules. File be indexed and consigned to record room.

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

 

(Jaswinder Singh)                      (Sanjeev Batra)                            Member                                          President         

 

Announced in Open Commission.

Dated:17.08.2023.

Gobind Ram.

 

 

 

Ravinder Yadav Vs New India Insurance Co. Ltd.                              CC/19/84

Present:       Sh. S.S. Heer, Advocate for complainants.

                   Sh. G.S. Kalyan, Advocate for OP1 and OP2.

                   Complaint against OP3 not admitted vide order dated 09.05.2019.

         

                   Arguments heard. Vide separate detailed order of today, the complaint is partly allowed with direction to the complainants to deliver the insured vehicle to opposite parties No.1 and 2 after completing all the formalities regarding transfer of the vehicle in the name of opposite parties No.1 and 2 within 30 days and thereafter, opposite parties No.1 and 2 shall pay the claim of the insurance of the complainants to the extent of 75% of the insured value of the vehicle within 15 days after receiving the vehicle from the complainants. However, there shall be no order as to costs. Copies of order be supplied to parties free of costs as per rules. File be indexed and consigned to record room.

 

(Jaswinder Singh)                      (Sanjeev Batra)                            Member                                          President         

 

Announced in Open Commission.

Dated:17.08.2023.

Gobind Ram.