Punjab

Faridkot

CC/16/118

Gurdev Singh - Complainant(s)

Versus

National Insurance Company - Opp.Party(s)

Amaninder Singh Sekhon

20 Sep 2016

ORDER

 DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, FARIDKOT

 

 

Complaint No. :      118

Date of Institution:  2.05.2016

Date of Decision :  20.09.2016

 

Gurdev Singh s/o Sh Mohan Singh, age 45 years, r/o Ward No. 21, Purani Abadi Sri Ganganagar (Raj.) and now residing in village Arayan Wala Kalan, Tehsil  & District Faridkot.

...Complainant

Versus

1. National Insurance Company Ltd. Divisional Office, above Vijay Bank Bhai Jarnail Singh Complex, Moga through its Divisional Manager.

2. M/s Super New Punjab Engg. Works Talwandi Bhai Tehsil and District Ferozepur.

3. National Insurance Company Ltd. 3464, Ward No. 1, Near Railway Fatak, Maur Road, Sri Muktsar Sahib through its Branch Manager.

4. National Insurance Company Ltd. Office at Sarafan Bazar, Upside Gita Bhawan, Faridkot through its Branch Manager.

.....OPs

Complaint under Section 12 of the

Consumer Protection Act, 1986.

 

 

Quorum: Sh. Ajit Aggarwal, President,

               Sh P Singla, Member.

 

Present: Sh  A S Sekhon, Ld Counsel for complainant,

              Sh Yash Pal Bansal, Ld Counsel for OP-1, 3 & 4,

              OP-2 Exparte.

 

(Ajit Aggarwal, President)

                                         Complainant has filed the present complaint under Section 12 of the Consumer Protection Act, 1986 against OPs seeking directions to OPs to make payment of insurance claim of Rs. 5 lacs and for further directing OPs to pay Rs 3,00,000/- as compensation for harassment, inconvenience, mental agony besides litigation expenses of Rs.25,000/-.

2                               Briefly stated, the case of the complainant is that complainant owns vehicle bearing registration no. RJ-13G/7745 having National Permit for Public Career No.14903/14 issued by State/Regional Transport Authority valid upto 9.11.2019 and complainant got insured the same from OPs vide policy no.401703/ 3114/63 valid till 28.06.2015.It is further submitted that complainant is  engaged in business of transportation/goods carrier of various kinds of goods throughout India from one station to another on demand. Complainant was given consignment of H Trashers by OP-2 from Talwandi Bhai to Nepal vide invoice no.1077 dated 27.02.2015 and complainant left for delivery of consignment to M/s Jaiswal Enterprises-Super New Punjab Engg. Works Nepal. On 9.03.2015, after unloading the goods at Nepal, complainant parked his vehicle at vacated site, where a truck containing filthy material was standing. Due to some unknown reasons, vehicle of complainant caught fire and its major parts got burnt. Vehicle of complainant was heavily damaged in fire, which engulfed his vehicle and it was brought under control with great difficulty with the help of Nepalian authorities. Complainant brought the burnt vehicle to Moga by engaging special  transport equipment by spending Rs.1,00,000/-.Due intimation regarding burning of his vehicle was given to OP-1 on 20.03.2015 and thereafter, complainant made many requests to Ops to process his insurance claim, but all in vain. Complainant got prepared the estimate for repair for Rs.3,98,000/- and complainant also spent Rs one lac in transporting the burnt vehicle from Nepal to Moga. Act of OPs in not clearing the claim of complainant amounts to deficiency in service and complainant has suffered huge loss due to this act of Ops. It is submitted that earlier complainant filed complaint on same cause of action, which was dismissed being premature and complainant was directed to first file his claim before OPs and if he was not satisfied he was free to file it again after decision of OPs pertaining to his claim and as per directions of this Forum, complainant first filed his claim before OPs, but OP-3 repudiated his claim without any cogent reason and without giving any opportunity to complainant of being heard on the ground that the place where accident occurred is not covered under the insurance policy in question and they are not liable for making payment regarding loss or damage caused to vehicle outside the geographical area of India. He has prayed for directing OPs to pay Rs.5,00,000/- as insurance claim and Rs. 3 lacs as compensation alongwith Rs.25,000/- cost of litigation. Hence, the present complaint.

3                              The counsel for complainant was heard with regard to admission of the complaint and vide order dated 6.05.2016, complaint was admitted and notice was ordered to be issued to the opposite party.

4                                    On receipt of the notice, OP-1, 3 & 4 filed written statement taking preliminary objections that alleged accident occurred in Nepal, which is a Sovereign State and it is clear cut violation of terms and conditions of the Policy as policy in question was valid within the geographical area of India and alleged accident occurred outside India and therefore, it is liable to be dismissed. Moreover, the permit to truck Tralla in question was a National Permit, therefore the truck can not be plied outside jurisdiction of India. It is averred that complainant did not lodge any claim with OPs till today and even did not submit any document for processing the claim, therefore, complaint in hand is not maintainable. Alleged accident did not occur in Faridkot and moreover, policy in question is also not issued  in the  jurisdiction of this Forum, therefore, this Forum has no jurisdiction to hear and try the present complaint. It is asserted that there is no deficiency in service on the part of OPs and lengthy procedure is required in this complaint and it should be referred to civil court for proper adjudication. Moreover, complainant is estopped from its own act and conduct. It is also submitted that complainant is not the consumer of OPs and does not come under the definition of CP Act. However, on merits OPs have denied all the allegations and asserted that no cause of action arises against OPs. It is further averred that complainant was not the driver at the time of alleged incidence and as per documents, he is not speaking the truth. He has concealed the material facts from this Forum as documents furnished by complainant do not tally the occurrence. It is further averred that insurance policy in question was valid in the geographical area of India but said accident happened in Nepal and therefore, policy is not valid and no claim is payable. It is also denied if complainant has paid Rs. One lac on transportation of vehicle from Nepal to India. All the other allegations levelled by complainant are denied being wrong and incorrect and it is reiterated that there is no deficiency in service or unfair trade practice on the part of opposite party. The allegations with regard to relief sought too were refuted with a prayer that complaint deserves to be dismissed with costs.

5                           Notice issued to OP-2 did not receive back undelivered and even after expiry of statutory period, OP-2 did not appear in the Forum either in person or through Counsel to pursue the case and therefore, vide detailed order dt 21.07.2016, OP-2 was proceeded against exparte.

6                                               Parties were given proper opportunities to prove their respective case. The complainant tendered in evidence his affidavit Ex.C-1 and documents Ex C-2 to C-30 and then, closed his evidence.

7                                   In order to rebut the evidence of the complainant, ld Counsel for OP-1, 3 and 4 tendered in evidence, affidavit of Sh Ram Kumar Chugh as Ex OP-1,3 & 4/1 and document Ex OP-1,3 & 4/2 and then, closed the same.

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

9                                 Ld Counsel for complainant vehementally argued that complainant owns vehicle bearing registration no. RJ-13G/7745 having National Permit for Public Career No.14903/14 issued by State/Regional Transport Authority valid upto 9.11.2019 and complainant got insured the same from OPs vide policy no.401703/ 3114/63 valid till 28.06.2015.It is further submitted that complainant is  engaged in business of transportation/goods carrier of various kinds of goods throughout India from one station to another on demand. Complainant was given consignment of H Trashers by OP-2 from Talwandi Bhai to Nepal vide invoice no.1077 dated 27.02.2015 and complainant left for delivery of consignment to M/s Jaiswal Enterprises-Super New Punjab Engg. Works Nepal. On 9.03.2015, after unloading the goods at Nepal, complainant parked his vehicle at vacated site, where a truck containing filthy material was standing. Due to some unknown reasons, vehicle of complainant caught fire and its major parts got burnt. Vehicle of complainant was heavily damaged in fire, which engulfed his vehicle and it was brought under control with great difficulty with the help of Nepalian authorities. Complainant brought the burnt vehicle to Moga by engaging special  transport equipment by spending Rs.1,00,000/-.Due intimation regarding burning of his vehicle was given to OP-1 on 20.03.2015 and thereafter, complainant made many requests to Ops to process his insurance claim, but all in vain. Complainant got prepared the estimate for repair for Rs.3,98,000/- and complainant also spent Rs one lac in transporting the burnt vehicle from Nepal to Moga. Act of OPs in not clearing the claim of complainant amounts to deficiency in service and complainant has suffered huge loss due to this act of Ops. He has prayed for accepting the present complaint alongwith compensation and litigation expenses.  

10                                In order to controvert the allegations levelled by complainant, ld counsel for OP-1, 3 & 4 argued that all the allegations levelled by complainant are wrong, incorrect and complaint filed by him is not maintainable in this Forum. It is averred that alleged accident occurred in Nepal, which is a Sovereign State and it is clear cut violation of terms and conditions of the Policy as policy in question was valid only within the geographical area of India and alleged accident occurred outside India and therefore, complaint is liable to be dismissed. Permit to truck Tralla in question was a National Permit, therefore the truck cannot be plied outside jurisdiction of India. It is averred that complainant did not lodge any claim with OPs till today and even did not submit any document for processing the claim, therefore, complaint is not maintainable. Alleged accident did not occur in Faridkot and moreover, policy in question is also not issued in the jurisdiction of this Forum, therefore, this Forum has no jurisdiction to hear and try the present complaint. It is asserted that there is no deficiency in service on the part of OPs and lengthy procedure is required. It is asserted that no cause of action arises against OPs. It is further averred that complainant was not the driver at the time of alleged incidence and as per documents, he is not speaking the truth. He has concealed the material facts as documents furnished by him do not tally the occurrence. It is further averred that insurance policy in question was valid in the geographical area of India but said accident happened in Nepal and therefore, policy is not valid and no claim is payable. It is also denied if complainant has paid Rs.01 lac on transportation of vehicle from Nepal to India. It is reiterated that there is no deficiency in service on the part of OPs and prayer for dismissal of complaint is made.

11                             We have heard the ld counsel for complainant as well as OPs and have also gone through the documents placed on file.

12                                The case of the complainant is that he owns a vehicle having National Permit and for the purpose of some consignment he went to Nepal and after unloading goods, when he parked it at some place, it caught fire and vehicle of complainant was totally burnt and damaged in said accident. Fire was extinguished with the help of Nepal Authorities and then, complainant brought the vehicle to India with great efforts by spending about rupees one lac on transportation. Due intimation regarding accident and processing the claim was given to OPs, but they did not make payment of claim on one pretext or the other. In reply, OPs have taken plea that insurance policy in question is valid only within the jurisdiction of India but said alleged accident has occurred in Nepal, which is outside the jurisdiction of India and therefore, claim of complainant is not payable and complaint is liable to be dismissed on this ground.

13                 Ld Counsel for complainant argued that they duly gave intimation regarding accident to OPs immediately alongwith all required documents and estimated bills on 20.03.2015 and it is received by OPs. The copy of claim intimation form is ExC-2. The claim of complainant was duly processed by the OPs but they did not pay the claim to complainant on false ground of restriction to limitation of use. They are wrongly stating that the policy in question was valid only in the geographical area of India. The complainant alongwith his truck went to Nepal on duly issued permit by the Government of India and Government of Nepal. The copy of permit issued by the Government of India for travelling to Nepal is Ex C-24 and copy of permit issued by Nepal Government is Ex C-21. There is no violation of the terms and conditions of the policy. He further argued that if it is presumed that at the time of accident the truck in dispute was in Nepal and it is violation of the terms and condtions of the policy, then in that case also, the insurance Company can not repudiate the claim of complainant only on this ground. He 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.

14                              He argued that even if it is presumed that at the time of accident the vehicle in question was plying in violation of terms and condtions of the policy regarding limitation of use as beyond the geographical area of India then in that case also the Insurance Company can not repudiate the whole claim of complainant and in that case, it should be decided on non standard basis.

15                                  From the above discussion and in the light of case law produced by the complainant, the complaint in hand is hereby partly allowed. OP-1, 3 and 4 are directed to settle the claim of complainant on non standard basis and to pay 75% of the total claim amount alongwith interest at the rate of 9% per anum from 18.03.2016 when they repudiated the claim of complainant till final realization. Complainant is also directed to submit the required documents, if any necessary for the payment of his claim by the OPs. OP-1, 3 and 4 are further directed to pay Rs.3000/-to complainant as litigation expenses. Complaint against OP-2 stands dismissed. Compliance of this order be made by OP-1, 3 and 4 jointly and severally within one month of 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 under rules. File be consigned to record room.

Announced in Open Forum

Dated : 20.09.2016

                            

                                      Member                         President

(P Singla)                    (Ajit Aggarwal)