Haryana

Karnal

405/2012

Ishwar Singh S/o Rishal Singh - Complainant(s)

Versus

National Insurance Company Ltd - Opp.Party(s)

S.S. Moonak

29 Sep 2015

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM KARNAL.

 

                                                          Complaint No.405 of 2012

                                                               Date of instt. 27.08.2012

                                                               Date of decision:19.10.2015

 

Ishwar Singh son of Shri Rishal Singh resident of Biru Colony, near Sector 32, Karnal District Karnal.

                                                   ……….Complainant.

                             Versus

 

National Insurance Company Limited, through its Branch Manager,GT Road, Karnal.

                                                           ……… Opposite party.

 

                    Complaint U/s  12  of the Consumer

                     Protection Act.

 

Before          Sh.K.C.Sharma……. President.

                   Sh.Anil Sharma ………Member.

                   Smt.Shashi Sharma…..Member.     

 

 Present:       Sh.S.S.Moonak Advoate for the complainant.

                   Sh.Parveen Daryal Advocate for the OP.

ORDER:

 

                        This complaint has been filed by the complainant u/s 12 of the Consumer Protection  1986, on the averments that he got insured his  swift car bearing registration No. HR-05/AB-5390  with the Opposite Party ( in short OP) for a sum of Rs.3,94,408/- through Karnal Motors Pvt. Ltd. Karnal from whom the said car was purchased, being authorized dealer of Maruti Udyog Limited.  The OP issued policy No. 95101031116130323003 which was valid  from 16.11.2011 to 15.11.2012. On 8.1.2012 the car met with an accident in the area of Police Station Sadar, Jind and in the said accident the same was totally damaged. Two occupants of the car also died in the accident. The matter was reported to the police and Daily Diary  report was recorded in that regard. Jagvinder Singh son of Shri Kashmiri Lal was driving the said car at the time of accident. The car was brought to the workshop of Modern  Automobiles, Karnal, the authorized dealer of the Maruti car , with the help of crane and complainant paid Rs.5000/- as crane charges. Factum of the accident and damage to the car was brought to the knowledge of the OP immediately. Surveyor was appointed, who surveyed the car and assessed the loss. The car was beyond repairs. Thereafter, complainant submitted claim form alongwith necessary documents to the surveyor of the OP, but the matter was delayed unnecessarily. On enquiry,  he  was told that claim was repudiated,  but no written communication was sent. In this way, there was deficiency in services on the part of OP due to which the complainant suffered mental agony apart from financial loss.

2.                 Notice of the complaint was given to the OP, who appeared and filed written statement controverting the claim of the complainant on various grounds. Objections have been raised that complainant has no loucs standi and cause of action to file the present complaint; that complaint is not maintainable in the present form; that complainant is estopped from filing the present complaint by his own acts and conduct;  that complainant is an abuse of the process of law as the complainant  is taking advantage of his own wrongs; that complicated questions of law and facts are involved,  which may be settled by the civil court or arbitrator and cannot be decided in the summary manner by this Forum and that the complainant has not approached this Forum with clean hands.

                    On merits, it has been submitted that on receipt of information regarding damage to the car, Sh.I.B.Mehta, was appointed as Surveyor to assess the loss to the vehicle, who assessed the liability on net of salvage basis of Rs.2,03,908/-. After going through the investigation reports,  OP wrote letter dated 12.11.2012 regarding gross violation on the part of the driver, who was driving the vehicle under the influence of liquor at the time of accident. This act on the part of the complainant amounted to  violation of the policy condition, therefore, no claim was payable to him. The other allegations made in the complaint have been denied.

3.                 In evidence of the complainant, his affidavit Ex.CW1/A and documents Ex.C1 to Ex.C4 have been tendered.

4.                 In evidence of the OP affidavit of Shri Ravi Goswami Assistant Divisional Manager Ex.OP1 and documents Ex.O2 to Ex.O5 have been tendered.

5.                 We have heard the learned counsel for the parties and have gone through the case file very carefully.

 

6.                 There is no dispute between the parties regarding the fact that insured vehicle of the complainant had met with an accident and the  same was  damaged in the said accident. The insurance company appointed surveyor to assess the loss.  The copy of the surveyor,s report has also been produced by the OP, according to which   liability on the net of  salvage was assessed as Rs.2,03,908/- .Claim of the complainant was repudiated by the OP on the ground that driver, who was driving the vehicle at the time of accident, was  under the influence of liquor.

 

7.                 According to the report of investigation Ex.O2, Jagvinder, Rakesh, Ajay and Gurvinder were travelling in the car and the same was being driven by Jagvinder at the time of accident. As per medico legal reports of Jagvinder and Rakesh there was alcoholic smell. Copy of the medico legal report of Jagvinder is Ex.O3 wherein it has been mentioned that pupils had sluggish reacting  and alcoholic smell was coming and there was loss of consciousness.  Thus, it stands established that Jagvinder, the  driver of the car at the time of accident had consumed alcohol. Copy of the insurance policy Ex.P5 shows that there was exclusion clause II , if the vehicle was being driven by any  person under the influence of alcohol, same was violation of the condition of the policy. Thus,  there was violation of the condition of the policy as the driver, who  was driving the vehicle , had consumed liquor and was under its influence.

 

8.                 Faced with  such situation,  the learned counsel for the complainant vehemently argued that even if there was violation of the condition of the insurance policy, the complainant is entitled to get  compensation  on non standard basis. In support of his contention, he placed reliance upon  Amalendu Shaoo Vs. Oriental Insurance Company Ltd. ii (2010) CPJ 9 (SC)  wherein  the claim was repudiated by the insurance company on the ground that vehicle was being driven on hire, whereas according to the policy terms, such  use was not permitted and the insurance company was not liable to any compensation  for such unauthorized use . Hon’ble Supreme Court discussed the decision  of Hon’ble National Commission in New India Assurance Company Ltd. Versus Narayan Prasad  Apparasad Pathak  2006 (II) CPJ 144(NC) wherein guidelines by the Insurance Company about settling claim on non standard basis were considered. As per guideline(iii) in case of breach of warranty condition of the policy including limitation as to use , percentage of settlement was 75% of the admissible claim. Under those circumstances it was held that insurance company cannot  repudiate the claim in toto. Direction was issued to insurance company to pay consolidated sum of Rs.2,50,000/-  even the compensation claimed was Rs.5.00 lacs.

 

                                      The learned counsel for the complainant also referred to  United India Insurance Company Ltd. Vs.Deen Dayal,  IV(2009) CPJ 218 wherein vehicle meant for carrying goods was carrying  passengers at the time of accident. Keeping in view the guidelines issued by the General Insurance Corporation , the Hon’ble National Commission directed the insurance company to settle the claim on non standard basis and to pay 75% of the loss assessed by the surveyor.

 

9.                                   The proposition of law laid down in the afore discussed authorities squarely cover the facts of the present case as well, wherein there was breach of condition of the policy as the driver of the vehicle had consumed liquor and was under its influence at the time of accident. Therefore, the claim of the complainant is to be settled by the insurance company on non standard basis as per guide lines issued by the General Insurance Corporation.  During the course of arguments, learned counsel for the OP produced copy of report of Surveyor. The surveyor appointed by the OP had assessed the loss as Rs.2,03,908/-, therefore, the claim of the complainant is to be settled on non standard basis i.e. upto 75% of the loss/damages.  Thus, there was deficiency in services on the part of the OP.

 

10.                             As a sequel to the foregoing discussion, we accept the present complaint and direct the OP to make the payment of 75% of  Rs.2,03,908/- to the complainant  within a period of thirty days from the date of receipt of the copy of this order, failing which  the settled amount shall fetch ,interest @ 9% per annum  from  the date of expiry of thirty days  till the date of its actual realization. The complainant shall also be entitled for a sum of Rs.5500/- as compensation for the harassment caused to him and for the litigation expenses.  The parties concerned be communicated of the order accordingly and the file be consigned to the record room after due compliance.

 

Announced
dated:19.10.2015                                                                            

                                                                    (K.C.Sharma)

                                                                   President,

                                                         District Consumer Disputes

                                                          Redressal Forum, Karnal.

 (Anil Sharma)       (Smt.Shashi Sharma)    

   Member.                             Member.

 

 

 

 

Present:        Sh.S.S.Moonak Advoate for the complainant.

                   Sh.Parveen Daryal Advocate for the OP.

 

                   Arguments in part heard.  For remaining arguments, the case is adjourned to  19.10.2015.

 

Announced
dated:05.10.2015                                                                            

                                                                    (K.C.Sharma)

                                                                   President,

                                                         District Consumer Disputes

                                                          Redressal Forum, Karnal.

 (Anil Sharma)       (Smt.Shashi Sharma)     

   Member.                             Member.

 

 

 

Present:        Sh.S.S.Moonak Advoate for the complainant.

                   Sh.Parveen Daryal Advocate for the OP.

 

                   Remaining arguments heard. Vide our separate order of the even date, the present complaint has been accepted. The parties concerned be communicated of the order accordingly and the file be consigned to the record room after due compliance.

 

Announced
dated:19.10.2015                                                                            

                                                                    (K.C.Sharma)

                                                                   President,

                                                         District Consumer Disputes

                                                          Redressal Forum, Karnal.

 (Anil Sharma)       (Smt.Shashi Sharma)    

   Member.                             Member.