Punjab

Faridkot

CC/16/74

Harnek Singh - Complainant(s)

Versus

New India Assurance Company Limited - Opp.Party(s)

Vinod Kumar Monga

27 Jul 2016

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, FARIDKOT

 

Complaint No. :      74

Date of Institution:  14.03.2016

Date of Decision :   27.07.2016

 

Harnek Singh s/o Sh Karnail Singh r/o Bathinda Road, Jaitu, District Faridkot.

                                                                  ...Complainant

Versus

The New India Assurance Company Ltd.  Mall Godam Road, Kotkapura through its Branch Manager.

....OP                      

 

Complaint under Section 12 of the

Consumer Protection Act, 1986.

 

Quorum: Sh. Ajit Aggarwal, President,

               Sh P L Singla, Member.

 

Present: Sh Vinod Monga, Ld Counsel for complainant,

              Sh Yash Pal Bansal, Ld Counsel for OP.

 

(Ajit Aggarwal, President)

1                                              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 Rs 1,14,000/-as insurance claim and for further directing OPs to pay Rs 30,000/- as compensation for harassment and mental agony besides litigation expenses of Rs.20,000/-

 2                                         Briefly stated, the case of the complainant is that complainant being the registered owner of car bearing registration no. PB-03J-6741 got insured the same with OPs vide policy no.71050131150100179813 for the period from 29.05.2015 to 28.05.2016. On 7.09.2015 in the area of village Seda Singh Wala, said car met with an accident and was badly damaged. Complainant immediately informed OP and got registered FIR No. 125 dt 9.10.2015 in Police Station Bajakhana. On intimation by complainant, OPs appointed a Surveyor, who inspected the vehicle and as per directions of OP, sent the car for repairs to Bhagat Ford Bathinda. 2^nd surveyor Er Gurjinder Singh, appointed by OP also inspected the vehicle. It is contended that complainant paid Rs.1,14,000/-on repair of car to Bhagat Ford/AB Motors, Bathinda vide bill no. 1713 dated 7.12.2015. Thereafter, complainant submitted all the documents and bills with Ops and filed claim but despite repeated visits and requests made by complainant, OP has not made payment of genuine insurance claim of complainant. Complainant also served legal notice dated 27.02.2016 to OP, but all in vain. All this amounts to deficiency in service and trade mal practice and has caused harassment and mental tension to him for which he has prayed for directing the OPs to pay Rs.30,000/- as compensation alongwith litigation expenses incurred by him besides the main relief of Rs.1,14,000/-. Hence, the complaint.

3                         The counsel for complainant was heard with regard to admission of the complaint and vide order dated 18.03.2016, complaint was admitted and notice was ordered to be issued to the opposite parties.

4                    On receipt of the notice, the OPs filed written statement taking preliminary objections that this Forum has no jurisdiction to hear and try the present complaint and vehicle in question was not road worthy at the time of alleged accident. The registration of vehicle is dated 11.09.2015, but alleged accident occurred on 7.09.2015 and as per law using the vehicle on road without registration is not only an offence but it is also a breach of the terms and conditions of the insurance contract. It is averred that no immediate information was given to OP by complainant and information regarding same was given only on 19.10.2015. It is further averred that complainant is not the consumer of OP and there is no deficiency in service on the part of answering OP. Complaint filed by complainant is false, frivolous and vexatious and is liable to be dismissed. Complaint involves complicated questions of law and facts requiring detailed evidence, which is not permissible in the Consumer Protection Act. Complainant has violated the insurance terms and conditions as accident took place on 7.09.2015 and claim was intimated on 19.10.2015 and registration of vehicle was issued on 11.09.2015 and thus, at the time of accident, vehicle was not road worthy. Complainant was issued letter dt 29.12.21015, which was not replied by complainant. However, on merits, OP admitted that vehicle of complainant was insured with OP, but denied all the other allegations. It is asserted that complainant gave intimation to OP on 19.10.2015 after a long gap of accident and thereafter, Surveyor was appointed, who assessed the loss to the tune of Rs1,03,184/- subject to the terms and conditions of the Policy, but complainant is not entitled for this claim amount, as vehicle of complainant was not road worthy at the time of accident as registration of vehicle is dated 11.09.2015and alleged accident took place on7.09.2015. Complainant has violated the terms and conditions of the policy and       complainant was duly informed about repudiation of claim vide letter dt 19.10.2015, but complainant did not give any reply to that. All the other allegations have been denied being wrong, incorrect and false and it is reiterated that there is no deficiency in service or unfair trade practice on the part of opposite parties. The allegations with regard to relief sought too were refuted with a prayer that complaint deserves to be dismissed with costs.

5                                           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-9 and then, closed the evidence.

6                                     In order to rebut the evidence of the complainant, the opposite party tendered in evidence, affidavit of Deen Dyal, Divisional Manager as Ex OP-1 and documents Ex OP-2 to OP-5 and then, closed the evidence.

7                  Ld Counsel for complainant vehementally argued that complainant got insured his car bearing registration no. PB-03J-6741 with OPs vide policy no.71050131150100179813 for the period from 29.05.2015 to 28.05.2016. During the period of insurance on 7.09.2015 in the area of village Seda Singh Wala, his car met with an accident and was badly damaged. Complainant immediately informed OP and also got registered FIR No. 125 dt 9.10.2015 in Police Station Bajakhana. It is contended that on intimation by complainant, OPs appointed a Surveyor, who inspected the vehicle and as per directions of OP, complainant sent his car for repairs to Bhagat Ford Bathinda. 2^nd surveyor appointed by OP also inspected the vehicle. It is further contended that complainant paid Rs.1,14,000/-for repair of car to Bhagat Ford/AB Motors, Bathinda vide bill no. 1713 dated 7.12.2015 and then, lodged claim with OP by submitting all documents and completed all formalities but despite repeated visits and requests made by complainant, OP has not made payment of genuine insurance claim of complainant. Complainant also served legal notice dated 27.02.2016 to OP, but all in vain. All this amounts to deficiency in service and has caused harassment and mental tension to him for which he has prayed for accepting the complaint.

8                                         To controvert the allegations levelled by complainant, ld counsel for OP argued that this Forum has no jurisdiction to hear and try the present complaint .The registration of vehicle is dated 11.09.2015, but alleged accident occurred on 7.09.2015 and as per law using the vehicle on road without registration is not only an offence but it is also a breach of the terms and conditions of the insurance contract. It is averred that complainant did not inform OP about alleged accident immediately on same day and information regarding same was given only on 19.10.2015. It is further averred that complainant is not the consumer of OP and there is no deficiency in service on the part of answering OP. Complaint filed by complainant is false, frivolous and vexatious and is liable to be dismissed. Complainant has violated the insurance terms and conditions as accident took place on 7.09.2015 and claim was intimated on 19.10.2015 and registration of vehicle was issued on 11.09.2015 and thus, at the time of accident, vehicle was not road worthy. Complainant was issued letter dt 29.12.21015, which was not replied by him. OP admitted that vehicle of complainant was insured with OP, but denied all the other allegations. It is asserted that complainant gave intimation to OP on 19.10.2015 after a long gap of accident and thereafter, Surveyor was appointed, who assessed the loss to the tune of Rs.1,03,184/- subject to the terms and conditions of the Policy, but complainant is not entitled for this claim amount, as vehicle of complainant was not road worthy at the time of accident as registration of vehicle is dt 11.09.2015 and alleged accident took place on 7.09.2015. Complainant has violated the terms and conditions of the policy and complainant was duly informed about repudiation of claim vide letter dated 19.10.2015, but complainant did not give any reply to that. All the allegations levelled by complainant have been refuted with prayer to dismiss the complaint.

9                                              We have heard the arguments of both the parties and also gone through the pleadings and evidence led by both the parties.              

10                                    The case of the complainant is that his vehicle was insured with OP, which met with an accident on 7.09.2015 within insurance period and got damaged. He gave information regarding it to OP who appointed Surveyor for assessment of loss. He lodged claim with OP, but they repudiated his claim as ‘No Claim’ on the false grounds. The plea taken by OP is that at the time of accident, the vehicle in question was not registered with Transport Registration Authorities as per provisions of Motor Vehicle Act and as per terms and conditions of Insurance Policy. As per terms and conditions of Insurance Policy, the vehicle must be registered with Registration Authorities under Motor Vehicle Act. The complainant had failed to provide immediate information regarding the accident to OP as the accident took place on 7.09.2015 and information to OP was given only on 19.10.2015, which is a violation of terms and conditions of the Insurance Policy.  Therefore, OP have legally and rightly repudiated the claim of complainant on this ground. There is no deficiency in service on their part.

11.                               Ld. Counsel for the complainant argued that there is no violation of terms and conditions of the policy he applied for the registration of the said vehicle with registration authorities within time. The complainant immediately informed regarding the incident to Police and Insurance Company. He argued that 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.

 

12                         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 and therefore, in the light of above discussion, the complaint in hand is hereby partly allowed. The Opposite Party is directed to settle the claim of complainant on non standard basis and is hereby ordered to pay Rs.77,388/- i.e 75% of the total loss of Rs.1,03,184/-, which was assessed as per Survey Report Ex OP-5 alongwith interest at the rate of 9% per anum from 29.12.2015 i.e date of repudiation of claim of complainant by OP till final realization. OP is also directed to pay Rs 3000/-as litigation expenses to complainant. Compliance of this order be made within one month from the date 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 : 27.07.2016                 

 

             Member                              President

                                        (P Singla)                         (Ajit Aggarwal)