Complainant Gagandeep Singh had filed the present complaint U/s 12 of the Consumer Protection Act against the opposite parties and praying that the directions may kindly be issued to the opposite parties to honour the claim of the complainant and make the payment of repair amount Rs.6,35,000/- to him immediately in terms of the Insurance Policy alongwith interest @ 18% P.A. from the date of accident of the vehicle till actual realization. Complainant further prayed that Rs.1,00,000/- may also be awarded to him as compensation besides the amount in question on account of mental agony, physical harassment and deficiency in service on the part of the opposite parties including Rs.10,000/- as litigation expenses, in the interest of justice.
2. The case of the complainant in brief is that he is the registered owner of Truck Tipper bearing registration No.PB-11-BU-2143 and the same was got insured by him with the opposite parties vide policy/cover note number 40150631166300006777 for Rs.15,00,000/- which was valid from 21.09.2015 to 20.09.2016. It was pleaded that on 15.07.2016 at about 12.30 P.M. the sad vehicle was met with an accident a little ahead of Begowal town near GS Plaza Restaurant while going towards Kapurthala due to arrival of a stray animal in front of the vehicle and while applying brakes of the vehicle. In this accident cabin of the vehicle was badly damaged and complainant reported the matter to the police of P.S. Begowal, and DDR No.32 dated 20.07.2016 was recorded by the police on the statement of Ranjit Singh son of Lakhwinder resident of Vill. Dulluana Tehsil and Distt. Gurdaspur who was the driver of the said vehicle. It was further pleaded that information regarding the accident was given by the complainant to the opposite parties and requested them to appoint surveyor for assessing loss suffered by him and the surveyor prepared statement regarding loss. Complainant repaired the above said vehicle from M/s Motor Gallary Jalandhar on the instructions of the opposite parties and spent Rs.6,35,000/- including spare parts and other charges. It was also pleaded that claim was submitted by the complainant with the opposite parties by supporting the surveyor report and bills issued by the workshop but the same was repudiated by the opposite parties vide letter dated 29.06.2017 on the fake observations of the vehicle that the same was over loaded and asked the complainant to send his request for settlement of claim on non-standard basis @ 50% deduction of the net claim amount but this act of the opposite parties was illegal, null and void as vehicle was not over loaded as alleged by the opposite parties and if there is any report of over loading the same is illegal, forged and fabricated and is not binding upon the complainant. Complainant further stated that vehicle was driven by the driver who was having valid driving license and the same was not driven in contravention to the terms and conditions of insurance policy. It was next pleaded that opposite parties did not pay the insured amount to the complainant on bogus and baseless observations and tried to back out from their pious obligation with malafide intention and ulterior motive without any reason or rhyme which was clear cut deficiency and gross negligence in service and unfair trade practice on their part, hence this complaint.
3. Upon notice opposite parties appeared through their counsel and filed their written reply by taking the preliminary objections that the complainant has no cause of action to file the present complaint; that complainant does not fall within the definition of consumer as provided under the CPA; that the insurance is a contract between the two parties and both are bound with the terms and conditions of the policy, the policy alongwith terms and conditions duly provided to the complainant and the scope of the terms and conditions cannot be widen; that there is no deficiency in service on the part of the opposite parties. As per the guidelines of the company the said claim comes under non-standard basis @ 50% deduction of the net claim and request was also made to the complainant regarding it and he was asked to send his consent for settlement of the claim on non-standard basis as early as possible so that the claim file may be sent to higher office for their approval but he failed to give his consent and that even otherwise the vehicle had been duly surveyed by the surveyor and the liability if any then it is only as per the surveyor report and there is no liability of the insurance company due to breach of terms and conditions of policy and of provisions of Motor Vehicle Act. On merits, it was submitted that surveyor was duly appointed who verified each and every part and also submitted his detailed report. It was stated that vehicle was met with an accident on 15.07.2016 as per intimation letter submitted by the complainant and the same was got repaired at M/S Gupta Motors, Jalandhar which was overloaded at the rate of 43.63 percentage from its registered laiden capacity (The detail regarding it, is mentioned in sub para of para No.6 of the complaint) as the same was loaded with wet sand and this fact is clear from photos which was taken by the surveyor at the spot. It was further stated that as per new guidelines dated 14.03.2018 related to overloading of goods carrying vehicle, the claim was repudiated vide letter dated 19.03.2018 as the overloading percentage is beyond 12.5% of gross vehicle weight. All other averments made in the complaint have been denied and prayed for dismissal of the complaint.
4. Complainant to prove his case had filed his duly sworn affidavit with copies of documents Ex.C1 to Ex.C18 and closed his evidence.
5. On the other hand counsel for the opposite parties had filed affidavit of Parveen Chadha Branach Manager with copies of documents Ex.OP-1 to Ex.OP-28 and closed the evidence on behalf of opposite parties.
6. Written arguments filed by the complainant but not filed by the opposite parties.
7. We have carefully examined all the documents/evidence produced on record for its contained statutory merit and have also judiciously considered and perused the arguments duly put forth by the learned counsels for the parties.
8. From the over all circumstances as enumerated in respective pleadings of the parties, it reveals that the complainant got his Truck Tipper bearing registration No.PB-11-BU-2143 insured with the opposite parties vide policy number 40150631166300006777 for Rs.15,00,000/- which was valid from 21.09.2015 to 20.09.2016 which is Ex.C5. Thereafter on 15.07.2016 at about 12.30 P.M. the said vehicle was met with an accident a little ahead of Begowal town near GS Plaza Restaurant while going towards Kapurthala due to a stray animal. In this accident cabin of the vehicle was badly damaged and a DDR No.32 dated 20.07.2016 has been registered on the statement of driver Ranjit Singh son of Lakhwinder resident of Vill. Dulluana Tehsil and Distt. Gurdaspur which is Ex.C2. Thereafter information regarding the accident was given by the complainant to the opposite parties, and opposite parties appointed a surveyor and Loss assessor to assess the loss of the vehicle in question. The vehicle was got repaired at M/s Gupta Motors, Jalandhar by the complainant. But the claim has been repudiated by the opposite parties vide letter dated 29.06.2017 which is placed at Ex.C4, on the ground that the truck in question was over loaded at the time of accident and asked the complainant to send his request for settlement of claim on non-standard basis @ 50% deduction of the net claim amount.
9. The Ld. counsel for the complainant argued that opposite parties did not pay the claimed amount to the complainant on bogus and baseless observations and tried to back out from their pious obligation with malafide intention and ulterior motive without any reason or rhyme which was clear cut deficiency and gross negligence in service and unfair trade practice on their part. The Ld counsel for the complainant shown reliance on the decision of Hon’ble National Commission titled as New India Assurance Co. Ltd. Vs Anil Sharma 2020(3) CPJ wherein it was held that Even if a vehicle is overloaded the claim can be settled on non Standard basis upto 75%.Similarly The Hon’ble Supreme Court in the case of Amalendu Sahoo vs. Oriental Insurance Co.(2010) 4SCC 536 has observed that is some conditions of the policy has been violated, then the claim under the motor insurance can be settled as follow:-
Sr.No. | Description | Percentage of settlement |
(i) | Under the 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 upto 75% of admissible claim |
On the other hand Ld. counsel for the opposite parties argued that there is no liability of the insurance company due to breach of terms and conditions of policy and of provisions of Motor Vehicle Act and further argued that as per new guidelines dated 14.03.2018 related to overloading of goods carrying vehicle, the claim was rightly repudiated as the overloading percentage is beyond 12.5% of gross vehicle weight.
10. It has been observed by this Commission that Insurance policy for the said vehicle was in existence for the period from 21.09.2015 to 20.09.2016, at the time of accident, as such, the policy was valid. Further, as per security sheet of National Insurance Company Ltd. Placed at Ex.OP-17 para (i) loss was assessed by Mr. Vivek Naryan Surveyor & Loss Assessor to the tune of Rs.2,88,846/- which was recommended non standard basis with 25% deduction, however the whole survey report has not been placed on file merely a page has been placed on file which shows recommendation on non standard basis which is Ex.OP-17 . In this regard a letter dated 22.09.2017 has been sent by opposite parties to the complainant which is Ex.C3.
11. Therefore, as a sequel of the above discussion, facts and circumstances of the case this commission is of considered opinion that in case of breach of terms and condition of the insurance policy, the claim can be settled on Non Standard basis upto 75%. So the complainant deserves due relief.
12. In view of the above the present complaint is partly allowed by directing the opposite parties to pay Rs.2,88,846/- to the complainant alongwith interest @ 6% per annum from the date of filing of the present complaint i.e. 10.08.2017 within 45 days from the date of receipt of copy of this order, failing which opposite parties shall pay the amount alongwith interest @ 9% P.A. till its realization. In addition to this the Opposite parties are directed to pay Rs.5000/- on account of deficiency in service and litigation expenses to the complainant.
13. The complaint could not be decided within the stipulated period due to heavy pendency of Court Cases, vacancies in the office and due to pandemic of Covid-19.
14. Copy of the order be communicated to the parties free of charges. After compliance, file be consigned to record room.
(Kiranjit Kaur Arora)
President
Announced: (B.S.Matharu)
April 06, 2023 Member
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