Punjab

Moga

CC/16/23

Suman Rani - Complainant(s)

Versus

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

Sh. Amandeep Passi

03 May 2016

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, MOGA.

 

                                                                                                                                            CC No. 23 of 2016

                                                                                                                                           Instituted on : 07.01.2016

                                                                                                                                           Decided on: 03.05.2016

 

Suman Rani, aged about 45 years wife of Late Surinderpal son of Jagdish Rai resident of village Smalsar, District Moga.

 

                                                                                                                                                           ……… Complainant

 

                                 Versus

 

1.National Insurance Co.Ltd., through authorized officer r/o Div. No. 10, Flat No. 101-106, N-1, BMC House, Connaught Palace, New Delhi-110001, through dealing hand.  

2.National Insurance Co. Ltd., through its Branch Manager, Ferozepur Road, Moga.

                                                                                                                                                        ……….. Opposite Parties

 

          Complaint u/S 12  of the Consumer Protection Act, 1986.

 

 

Coram : Sh. Ajit Aggarwal,  President,

              Smt. Vinod Bala, Member,

              Smt. Bhupinder Kaur, Member.

 

Present: Sh. Amandeep Passi, Adv. Cl. for complainant. 

              Sh. P.K. Sharma, Adv. Cl. for the opposite parties no.1 & 2.

 

ORDER :

 

(Per Ajit Aggarwal,  President)

 

 

1.       Complainant has filed the instant complaint under Section 12 of the Consumer Protection Act, 1986 (hereinafter referred to as the "Act") against National Insurance Co. Ltd., through authorized officer r/o Div. No. 10, Flat No. 101-106, N-1, BMC House, Connaught Place, New Delhi-110001, through dealing hand and another  (hereinafter referred to as the opposite parties) for directing them to pay Rs. 3,77,003/- to the complainant on account of damage of vehicle along with interest @ 2% per month from the date of accident till realization of the payment and also  for directing the opposite parties to pay Rs. 50,000/- on account of mental and physical harassment and legal expenses of this complaint or any other relief which this Forum may deem fit and proper.    

2.       Briefly stated, the facts of the case are that the husband of the complaint namely Late Surinderpal was the owner of the vehicle Swift VDI Car bearing registration No. PB29R-3764 and the said vehicle was fully insured with the OP insurance company vide insurance Cover Note No. 35101031136134285894 and said policy was valid from 27.01.2014 to 26.01.2015. That on 14.6.014 at about 9.45 PM Surinderpal along with complainant and Ashwani Kumar s/o Sadhu Ram and Rajwinder Kaur w/o Sukhwinder Singh rs/o Thathi Bahai were going to Ludhiana to attend the sanskar ceremony of his close relative and when they reached just ahead  village Chowkiman then from front side one Bus bearing registration No. PB05-S-9564 driven by Baljinder Singh r/o Malapur Syal negligently came from front side and he struck his bus into car driven by Surinderpal, due to which Surinderpal died at the spot and Swift car was badly damaged. On the  statement of Arun Joshi, FIR No. 118 dated 14.6.2014 u/S 304-A/279/337/338/427 IPC was got registered at PS Dakha. The said car was got repaired from Pankaj Motors, Moga by the complainant and she spent huge amount of Rs. 3,77,003/- on repair of this vehicle. Thereafter, the complainant approached the OP insurance company and submitted the documents relating to accident.  Again, complainant requested the OP to release the claim, but instead of giving any satisfactory reply, they used to linger on the matter on one pretext or the other and ultimately they refused to admit the rightful claim of the complainant.  Hence, this complaint.

3.       Upon notice, opposite parties filed written statement  by taking certain preliminary objections, inter alia, that the complaint is not maintainable; that the complainant is estopped by her own act and conduct; that the complainant has not complied with the terms and conditions of the insurance policy; that there is no deficiency of service on the part of the OP, thus the complaint may be dismissed on this score; and that the complainant has not come to the Forum with clean hands. She has concealed, suppressed and misstated the material facts from this Forum.  The true facts are that Late Sh. Surinderpal purchased a Maruti Swift Vdi car on 27.01.2014 and got it insured with the opposite parties. The said vehicle was covered under policy No. 35101031136134285894 for the period from 27.01.2014 to 26.01.2015 subject to policy terms and conditions. The Engine number of the said vehicle was 2303832 and Chassis number was 589347 and temporary registration number of the vehicle i.e. PB-29H/temp/2014/6915 was issued which was valid till 26.02.2014 for Maruti Swift Vdi purchased by late Sh. Surinderpal. After that on 18.08.2014, Mrs. Suman Rani w/o late Sh. Surinderpal filed an accident claim form and stated that on 14.06.2014, the car Maruti Swift Vdi met with an accident in which the car was damaged. The opposite parties immediately appointed the surveyor and loss assessor who after inspection and investigation found that the registration number of Maruti Swift Vdi in the name of Sh.Surinderpal was PB 29 R 3764 (temporary no. PB 29 H 6915), and the registration date of which was 17.7.2014. The vehicle was purchased on 27.01.2014 and accident took place on 14.06.2014 and the vehicle was registered on 17.07.2014.  It means that at the time of accident the said vehicle was not registered with the Registering Authority which is against the guidelines as well as fundamental breach of terms and conditions of insurance policy.  The opposite parties vide their letters dated 12.05.2015, 29.05.2015 and 13.10.2015 asked from the complainant/nominee regarding non-registration of said vehicle at the time of accident, but no satisfactory reply was given. As per law and under Section 192 of Motor Vehicles Act "using a vehicle on public place without registration is an offence" and also it is a fundamental breach of the terms and conditions of the insurance policy.  Hence, on the basis of above facts the opposite parties repudiated the claim of complainant as not maintainable vide their letter dated 20.01.2016.  Also it is one of the terms and conditions of the insurance policy that the accident of vehicle should be informed to the insurer without any delay. However, in this case the information of the accident of vehicle was given almost about delay of two months.  Hence, it is also a violation of terms and conditions of insurance policy.  Thus, the claim is not payable and OP repudiated the claim on the above mentioned grounds. Therefore, there is no deficiency of service on the part of the OP and the claim was repudiated after thorough investigation. The complainant is not entitled to any claim. On merits, the claim put forth by the complainant has been denied. However, it is stated that the surveyor and loss assessor assessed the loss to the extent of Rs. 2,91,200/-.  Other allegations made in the complaint have been denied.   

4.        In order to prove her case, the complainant tendered in evidence her affidavit Ex. C-1  along with copies of documents Ex. C-2 to Ex. C-5 and closed the evidence.

5.        In order to rebut the case of the complainant, the opposite parties tendered in evidence affidavit of Kamaljit Singh, Divisional Manager, National Insurance Co., Moga - Ex. OP1, 2/1 along with copies of documents Ex. OP1, 2/2 to Ex. OP1, 2/11 and closed the evidence.

6.     We have heard the learned counsel for the parties and have very carefully gone through the affidavits and documents placed on the file.

7.       Ld Counsel for complainant vehemently contended that husband of complainant namely Surinderpal Singh was the owner of Swift VDI car bearing registration no. PB-29R-3764 and said car was fully insured with OPs for a period from 27.01.2014 to 26.01.2015. It is submitted that on 14.06.2014, complainant alongwith her husband and some relatives was going to Ludhiana to attend the cremation of some relative, unfortunately, when their car reached just ahead of village Chowkiman, a bus bearing registration no. PB05-S-9564 being driven by Baljinder Singh hit the car of husband of complainant. Car of complainant was being driven by her husband. Bus driver was driving so negligently and rashly and due to said collision of bus and car, husband of complainant died on the spot and car was also damaged. FIR no 118 to this effect was registered on 14.06.2014. Complainant got repaired the said car from Pankaj Motors, Moga by paying Rs 3,77,003/-. It is contended that complainant approached OPs and submitted all the requisite documents with OPs and requested them to make payment of insurance claim of her car, but they did not make any payment, rather lingered on the matter on one pretext or the other. Complainant made many requests to OPs, but later on they flatly refused to admit the genuine claim of complainant. All this has caused great harassment and mental tension to complainant, which entitles her to compensation and litigation expenses besides the main relief. He has stressed on documents Ex C-1 to Ex.C-5 and has prayed for accepting the complaint with compensation and litigation expenses.

8.       To controvert the allegations leveled by complainant, ld counsel for OPs argued that car in question of complainant was got insured by late husband of complainant vide policy no. 35101031136134285894 for the period from 27.01.2014 to 26.01.2015 subject to terms and conditions of the Insurance Policy. It is averred that temporary registration number of said car was PB 29/H/temp/2014/6915. It is further averred that on 18.08.2014, complainant filed an accident claim and stated that on 14.06.2015, their car met with an accident. OPs immediately appointed the Surveyor and Loss Assessor, who after inspection and investigation found that registration no. of said car was PB 29 R 3764 (temporary no. PB 29 H 6915) having date of registration 17.07.2014. Ld Counsel for Ops brought before the Forum that said car was purchased on 27.01.21014, accident took place on 14.06.2014 and it was  registered on 17.07.2014, meaning thereby that at the time of alleged accident, said car was not registered with Registration Authority and this fact is totally against the terms and conditions of policy and is violation and fundamental breach of its conditions. It is further contended that OPs issued many letters to complainant asking him to explain about the non registration of said vehicle. Ld counsel for OPs asserted that as per Motor Vehicle Act, ‘using a vehicle on public place without registration is an offence’ and it is a fundamental breach of terms and conditions of the Insurance Policy. Moreover, complainant did not inform the OPs immediately, rather intimation regarding it was given after two months of delay. Therefore, Ops have rightly repudiated the claim of complainant and there is no deficiency in service on the part of Ops. He further argued that it is well settled law that the survey report is an important document to settle the insurance claim and it cannot be ignored unless cogent evidence produced against it, the complainant cannot claim more amount than which is assessed in the survey report, in enquiry it is found that the vehicle in question was not registered under the Motor Vehicle Act at the time of accident and was being run without the RC by the complainant in violation of the Section 39 of the Motor Vehicle Act which is violation of the terms and conditions of the policy, so in these circumstances the OPs rightly and legally repudiate his claim. Vide their letters dated 12.05.2015, 29.05.2015 and 13.10.2015 also  asked him to explain position about the same but complainant failed to give any satisfactory explanation regarding contravention of Motor Vehicle Act, so Ops rightly repudiated her claim and complainant suffered no harassment from it, there is no deficiency in service on the part of OPs. All the other allegations leveled by complainant are repelled with prayer to dismiss the complaint.

9.       From the careful perusal of documents placed on file, it is observed that from the face of document Ex C-2, it is clear that husband of complainant got insured his vehicle with Ops and is consumer of OPs. ExC-3 is the copy of First Information Report depicting the fact that husband of complainant died in that accident. Ex C-4 is Estimation detail dt. 30.07.2014. Ex C-5 is Job Card Retail Invoice issued by Pankaj Motors to complainant for repairing the car damaged in said accident. All these documents are cogent and sufficient to prove the pleadings of complainant. Moreover, authenticity of document Motor Survey Report Ex OP-1,2/9, placed on record by Ops themselves can also not be ignored which clears that Surveyor of Ops estimated the loss to the tune of Rs2,91,200/-. There is no doubt that vehicle of complainant was insured with Ops and this fact is admitted by Ops also in their written reply. Moreover, as per ld Counsel for complainant if it is presumed that at the time of accident, the car was not registered and it is the violation of terms and conditions of the policy, Insurance Company cannot repudiate the claim of complainant only on this ground. He has placed reliance on the citation 2004 (2) RCR (Civil) 114 Supreme Court titled as National Insurance Co. Ltd Vs Swaran Singh and Others, wherein our Hon’ble Apex Court held that Motor Vehicle Act, 1988, Sections 15, 141 & 149 (2) (a) (ii) and proviso to Sub sections (4) and (5)- Validity of driving license- Defences for insurer – ‘Effective license’-Third party claim – Driving with an un-renewed license and being duly licensed are different terms and may amount to an offense, but not to affect the third party claim in itself – The words ‘duly licensed’ have been used in a past tense – Rule enables renewal of a license even after expiry. He argued that on the same footing, if it is presumed that RC of the vehicle expired during the period of insurance and it is un-renewed, then, Insurance Company cannot run from its liability to compensate the insured. He also put reliance on the citation 2010 (1) Consumer Protection Cases 653 in case titled as Amalendu Sahoo Vs Oriental Insurance Co. Ltd wherein Hon’ble Apex Court held that even where violations of the Policy is found, Insurer should pay 75% of total amount as on non standard basis. He has also placed reliance on citation 2008 (3) CPC 559 Supreme Court of India titled as National Insurance Company Ltd Vs Nitin Khandelwal, wherein Hon’ble Apex Court held that 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 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. He has also placed reliance on the citation 2006 (2) Consumer Protection Cases 33 titled as New India Assurance Company Vs Narayan Prasad Appa Prasad, wherein Hon’ble National Commission held that vehicle at the time of accident was carrying passengers more than permitted by rules – Even driver was not duly licensed – Order of authority below granting payment of full insured amount with cost and compensation cannot be sustained – Appellant directed to settle the claim on non standard basis i.e 75 % of Rs 4,32,000/- with 9% interest. They further held in para no. 4 of the judgment that not having proper valid license to drive a Maxi-cab as also carrying excess passengers than the licensed capacity are violation of the terms and conditions of the policy. It is for covering these contingencies that GIC has issued the guidelines for the Insurance Company for settling the claim on “non standard basis’, which is as follows:

Following types of claims shall be considered as non-standard and shall be settled as indicated below after recording the reasons:

Sr No.          Description                                       Percentage of Settlement
(i)	Under declaration of licensed carrying capacity	Deduct 3 years difference in premium from the 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 upto 75% of admissible amount.

 

Ld Counsel for complainant argued that if it is presumed that at the time of accident, the vehicle in question was not duly registered with Registering Authority and it is a breach of terms and conditions of Insurance Policy, then in that case also, the Insurance Company cannot repudiate the whole claim of complainant and in that case, it is to be decided on non standard basis.

10.     Keeping the view the facts and aforementioned circumstances of the case, this Forum is of considered opinion that OPs have harassed complainant by repudiating her genuine claim, which amounts to deficiency in service and trade mal practice. Hence, complaint in hand is hereby partly allowed with direction to Ops to make payment of Rs 2,18,400/- i.e 75% of the total loss of Rs. 2,91,200/-, which was assessed as per Survey Report Ex OP-9 alongwith interest at the rate of 9% per anum from the date of filing the present complaint till final realization. Ops are further directed to pay Rs 5000/-as compensation and Rs3000/-as litigation expenses to complainant. Compliance of this order be made within one month of the receipt of the copy of the order, failing which complainant shall be entitled to proceed under Section 25 and 27 of the Consumer Protection Act. Copy of order be given to parties free of cost as per rules. File be consigned to record room.

Announced in Open Forum

Dated : 03.05.2016

                     (Bupinder Kaur)           (Vinod Bala)                     (Ajit Aggarwal)

                           Member                     Member                     President