Chandigarh

DF-II

CC/1193/2019

Harraj Singh Sidhu - Complainant(s)

Versus

National Insurance Company Limited - Opp.Party(s)

Adv. Sukaam Gupta

13 Feb 2023

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION-II,

U.T. CHANDIGARH

 

Consumer Complaint  No	:	1193 of 2019
Date  of  Institution	:	23.12.2019
Date   of   Decision	:	13.02.2023

 

 

 

 

 

Harraj Singh Sidhu s/o Sh.Swaran Singh Sidhu, R/o #656, Phase 3A, S.A.S.Nagar, Mohali

 

            …..Complainant

 

Versus

 

National Insurance Company Limited, S.C.O. No.305-306, Sector 35-B, Chandigarh through its Branch Manager/Authorised Signatory.

    ….. Opposite Party

 

BEFORE:  MR.AMRINDER SINGH SIDHU,       PRESIDENT

MRS.PRITI MALHOTRA             MEMBER 

                MR.B.M.SHARMA                 MEMBER

                               

Argued by  : Ms.Nilakshi Joseph, Counsel of complainant

   Sh.J.P.Nahar, Counsel of OP

 

ORDER BY AMRINDER SINGH SIDHU, M.A.(Eng.),LLM,PRESIDENT

   

         The complainant filed present complaint pleading that he is the owner of the Tanker bearing Regd.No.UP-70ET-8397 and Tanker was insured with OP under Policy No.420101311710002598 for a period from 13.09.2017 to 12-09-2018 for an IDV value of Rs.4,80,000/-. The copy of registration certificate of the vehicle is Ann.C-1 and copy of insurance policy is Ann.C-2.  He further mentioned that at the time of issuing the insurance policy, the OP neither supplied copy of the policy containing terms & conditions nor terms and conditions were explained to the complainant. He further pleaded that on the intervening night of 17/18.3.2018 the said vehicle was being driven by driver from Nabha to Una and when said vehicle reached near Machhiwara, a stray cow came across and in order to save it, the driver applied breaks but the tanker became out of control and overturned, as a result of which the tanker in question was damaged badly.  The matter was reported to Police Station Machhiwara, District Khanna, Punjab and on the statement of driver Rakesh Kumar, a DDR was registered vide G.D.No.020 on 18.03.2018.  The OPs were intimated regarding the accident of the vehicle and upon receiving the intimation, the OP appointed Surveyor namely Didar Singh Ruprai who conducted the spot survey on 22.3.2018. The copy of the Spot Survey Report was obtained through RTI, which was annexed as   Ann.C-4. Thereafter the OP appointed one more Surveyor namely Ravinder Kumar Goyal, who assess the loss of the vehicle to the tune of Rs.5,98,500/-. He waited patiently but nothing was disbursed by the OP and then OP sent a letter dated 10.10.2018 wherein the OP raised an unnecessary query while disputing the physical presence of the driver on wheels at the spot as on date of accident. The OP vide those letters raised an objection that driver namely Rakesh Kumar was undergoing training at Baroda on 17.03.2018 and how he came present at Nabha and started the journey from Nabha on 17.03.2018 at 8:30 P.M. The said query was duly explained by the complainant to the OP that the said driver has already done his training and thereafter completing the training in advance, he resumes duty at Nabha. The OP also raised an objection that in affidavit it is submitted that no bodily injury occurred to the driver and in the complaint wherein as per the contents of DDR, driver on wheel along with cleaner received injuries on their body. Regarding this, the complainant clarified the OP that the driver and cleaner did not suffered any major injury but minor injuries and a formal medical aid was provided to the driver by the doctor and there is also not third party loss and hence, it is submitted by the complainant that no injury was caused to the driver or the cleaner.  When the matter was not resolved by the OP, then the complainant sent a legal notice dated 1.1.2019 to the OP.  The OP neither settled the claim of the complainant nor replied to the legal notice.  The OP arbitrarily & illegally withheld the genuine claim of the complainant, which amounts to deficiency in service and adoption of unfair trade practice by the OP, as the genuine claim of the complainant is pending since 6.8.2018.  Lastly the complainant prayed for directions to the OP to pay the claim amount of Rs.5,98,500/- as assessed by the Surveyor along with interest @18% p.a. from the date of loss till its actual payment by the OP and also seek compensation and litigation expenses.

        The complainant mentioned in his complaint that earlier a similar complaint was filed before District Commission-I, UT, Chandigarh vide CC No.1034 of 2019 but the same was withdrawn by the complainant with liberty to file fresh.  Hence, the present complaint is filed.

 

2]      After the service of summons upon the OP, the OP appeared before this Commission and filed its written version taking defence that the complaint is defective due to non-joinder of necessary parties as the complainant is not impleaded HDFC Bank Limited as OP being financer of the above said vehicle of the complainant.

        On merits, the OP denied all the allegations made against them and taken the objection that it is not possible for the driver to reach at Machhiwara at 12:15 AM on 18.3.2018 when he started the journey from Nabha at 8:30 PM because the Tanker was to be loaded with LPG Gas Cylinders, which are to be taken from Indian Oil corporation Depot.  Further the OP stated that the Surveyor namely Didar Singh Ruprai submitted Spot Survey Report dated 22.3.2018 wherein it is stated that the driver Rakesh Kumar had produced the Driving License which was valid for Transport Vehicle upto 23.7.2018 but at Column 5(h) of the report, it is clearly mentioned that “Training Certificate for Explosive : To be Verified”.  It means that at the time of accident, the Training Certificate for Explosive was not available with the driver, which is mandatory as per Rule 9 of the Motor Vehicles Rules, 1989.  As the driver had no Training Certificate for Explosives, which is mandatory under rule 9 of the Motor Vehicles Rule, 1989, so the Training Certificate for Explosives was procured from M/s Swami Seva Associates, Vadodara.  The driver was allegedly undergone the training from 15.3.2018 to 17.3.2018 as per Training Certificate, so as per Rule 9 of the Motor Vehicles Rules, the driver has to undergo 3 days training at the institute recognized by the State Government.  In the present case, the driver license has been issued by State Government of J & K and the certificate produced is from alleged institute of State Government of Gujrat.  Secondly, the driver shall made an application in writing on a plain paper alongwith his driving license and the relevant certificate to the Licensing Authority in whose jurisdiction he resides for making necessary entries in his driving license.  After the endorsement of the same, the driver is authorized to drive a goods carriage carrying goods of dangerous or hazardous nature to human life.

 

        The OP stated that alleged Training Certificate from 15.3.2018 to 17.3.2028 was procured from M/s Swami Seva Associates, Vadodara was not in possession of the driver Rakesh Kumar otherwise he could have given to the Sport Surveyor, who has written at Column 5(h) of the Survey Report that “Training Certificate for Explosives: To be Verified.”  When the complainant realized that Driving License is not valid for carrying hazardous goods and the claim might be repudiated, the driver of the complainant procured the Training Certificate from M/s Swami Seva Associates, Vadodara. The OP raised objection that when the complainant completed his training on 173.2018, then how he is able to reach at Nabha to start his journey at 8:30 PM after loading the Tanker with LPG Gas Cylinders.  The OP further took objection that Surveyor has assessed the loss of Rs.5,98,500/- but the Insured Declared Value of the said vehicle was Rs.4,80,000/- only and the assessment of loss is subject to terms & conditions.  The OP raised objection that Training Certificate of driver was not submitted to the Surveyor, who did Spot Survey but to the Surveyor who conducted the Final Survey for simple reason that it was not in the possession of driver on the date of accident and he procured it subsequently.  The OP raised further objection that the distance between Vadodara to Nabha is about 1176 KMs and would require 20 hours journey to cover the same distance, but driver of the complainant reached much earlier to that place i.e. within 10½ hours.  It is also denied that the OP has withheld his genuine claim but stated that OP had repudiated the claim of the complainant vide letter dated 20.12.2018 and intimated about the same to the complainant at his Mohali address as well as at Chandigarh address by registered post.  Lastly the OP stated that the claim was rightly repudiated vide letter dated 20.12.2018 and prayed for dismissal of the complaint with cost.

 

3]      Replication has also been filed by the complainant thereby controverting the assertions of OP made in its heir reply.

 

4]      Parties led evidence in support of their contentions.

5]      We have heard the Counsel for the parties and have gone through the entire record.

 

6]      The main issues involved in the present complaint are that whether the driver of the complainant has obtained Training Certificate for Explosive is procured by him without attending actual training or not ?  Second issue involved is whether the complainant after attending Training at Vadodara can reach at Nabha to start the journey on 17.3.2018 at 8.30 PM ?

 

7]      In order to find answer to first issue involved in the present complaint, there are mere allegations of the OP that the Training Certificate is procured by the driver of the vehicle without attending the same, without any substantial evidence to that effect.  So when it is produced on file as Annexure OP-4 that he has undergone Training from 15.3.2018 to 17.3.2018, then the presumption is that he has attended such training and obtained Training Certificate for Explosive and in the absence of any rebuttal to that effect, cannot be discarded on mere allegation of the OP.  

 

8]      In order to find out answer to second issue involved in the present complaint whether the driver of the complainant can reach Nabha to start journey at 8.30 PM after obtaining Training from Vadodara on 17.3.2018.  The OP alleged that as it is a journey of 20 hours and the driver of the complainant cannot reach at Nabha in such short period of time. The said query was duly explained by the complainant to the OP that the said driver has already done his training and thereafter completing the training in advance, he resumes duty at Nabha.

 

9]      It is further observed that the driver of the vehicle received minor bodily injuries as per DDR which was also got registered by him.  So it is quite obvious that the driver of the complainant was present at the time of accident and he was driving the vehicle and the Cleaner also received minor bodily injuries in the above said accident and even they got First Aid treatment from Civil Hospital, Machhiwara. Moreover, the question of reaching at Nabha to start journey is not material as there may be various reasons like coming from Vadodara well in advance as explained by the complainant or by other means of transport.  The material fact is that minor bodily injuries, First Aid Treatment from Civil Hospital, Machhiwara and registration of DDR by the driver himself are enough proof to prove that he was present on the spot and driving the vehicle in question at the time of accident.

 

10]     It is important to mention here that Regulation 9 of Insurance Regulatory and Development Authority (Protection of Policyholders’ Interests) Regulations, 2002, stipulates as under:-

 

9.       Claim procedure in respect of a general insurance policy. -

(1)     An insured or the claimant shall give notice to the insurer of any loss arising under contract of insurance at the earliest or within such extended time as may be allowed by the insurer. On receipt of such a communication, a general insurer shall respond immediately and give clear indication to the insured on the procedures that he should follow. In case where a surveyor has to be appointed for assessing a loss/claim, it shall be so done within 72 hours of the receipt of intimation from the insured.

(2)     Where the insured is unable to furnish all the particulars required by the surveyor or where the surveyor does not receive the full co-operation of the insured, the insurer or the surveyor as the case may be, shall inform in writing the insured about the delay that may result in the assessment of the claim. The surveyor shall be subjected to the code of conduct laid down by the Authority while assessing the loss, and shall communicate his findings to the insurer within 30 days of his appointment with a copy of the report being furnished to the insured, if he so desires. Where, in special circumstances of the case, either due to its special and complicated nature, the surveyor shall under intimation to the insured, seek an extension from the insurer for submission of his report. In no case shall a surveyor take more than six months from the date of his appointment to furnish his report.

(3)     If an insurer, on the receipt of a survey report, finds that it is incomplete in any respect, he shall require the surveyor under intimation to the insured, to furnish an additional report on certain specific issues as may be required by the insurer. Such a request may be made by the insurer within 15 days of the receipt of the original survey report: Provided that the facility of calling for an additional report by the insurer shall not be resorted to more than once in the case of a claim.

(4)     The surveyor on receipt of this communication shall furnish an additional report within three weeks of the date of receipt of communication from the insurer.

(5)     On receipt of the survey report or the additional survey report, as the case may be, an insurer shall within a period of 30 days offer a settlement of the claim to the insured. If the insurer, for any reasons to be recorded in writing and communicated to the insured, decides to reject a claim under the policy, it shall do so within a period of 30 days from the receipt of the survey report or the additional survey report, as the case may be.

 

          However, the OP despite receiving the Survey Report dated 6.8.2018 from the Surveyor, kept the claim of the complainant pending beyond the stipulated period and as such violated the above regulations of IRDA, which amounts to deficiency in service on its part. 

 

11]     The repudiation made by the OP-Insurance Company regarding genuine claim of the complainant have been made without application of mind. It is usual with the insurance company to show all types of green pastures to the customer at the time of selling insurance policies, and when it comes to payment of the insurance claim, they invent all sort of excuses to deny the claim. In the facts of this case, ratio of the decision of Hon’ble Apex Court in case of Dharmendra Goel Vs. Oriental Insurance Co. Ltd., III (2008) CPJ 63 (SC) is fully attracted, wherein it was held that, Insurance Company being in a dominant position, often acts in an unreasonable manner and after having accepted the value of a particular insured goods, disowns that very figure on one pretext or the other, when they are called upon to pay compensation.  This ‘take it or leave it’, attitude is clearly unwarranted not only as being bad in law, but ethically indefensible.  It is generally seen that the insurance companies are only interested in earning the premiums and find ways and means to decline claims. In similar set of facts the Hon’ble Punjab & Haryana High Court in case titled as New India Assurance Company Limited Vs. Smt.Usha Yadav & Others 2008(3) RCR (Civil) Page 111 went on to hold as under:-

    “It seems that the insurance companies are only interested in earning the premiums and find ways and means to decline claims. All conditions which generally are hidden, need to be simplified so that these are easily understood by a person at the time of buying any policy.  The Insurance Companies in such cases rely upon clauses of the agreement, which a person is generally made to sign on dotted lines at the time of obtaining policy. Insurance Company also directed to pay costs of Rs.5000/- for luxury litigation, being rich.

 

12]     In view of the above discussion, we hold that the OP-Insurance Company has  wrongly and illegally rejected the claim of the complainant. Accordingly, the repudiation letter dated 20.12.2018 (Ann.OP-8) is set aside. Consequently, the present complaint deserves to be partly allowed and the same is accordingly partly allowed against the OP. The OP is directed to

1. pay Insured Declared Value (IDV) of the vehicle i.e. Rs.4,80,000/- to the complainant along with interest @ 9% p.a. from the date of filing the complaint in this Commission i.e. 23.12.2019 till the date of its actual realization.
2. pay Rs.7,000/- as compensation to the complainant on account of mental tension and harassment.
3. pay Rs.7,000/- as litigation expenses.

        This order be complied with by the OP within 60 days from the date of receipt of its certified copy.

13]     The pending application(s) if any, stands disposed of accordingly.

        Certified copy of this order be sent to the parties, as per rules. After compliance file be consigned to record room.

Announced

13^th Feb.,2023                                                                            

Sd/-

 (AMRINDER SINGH SIDHU)

PRESIDENT

 

 

Sd/-

(PRITI MALHOTRA)

MEMBER

 

Sd/-

(B.M.SHARMA)

MEMBER