Punjab

Moga

CC/16/141

Major Singh - Complainant(s)

Versus

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

Sh. Ashwani Majithia

08 Feb 2017

ORDER

THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, MOGA.

 

 

                                                                                      CC No. 141 of 2016

                                                                                      Instituted on: 24.08.2016

                                                                                      Decided on: 08.02.2017

 

Major Singh s/o Payara Singh, resident of House no.28, V & P.O. Kishanpura Sayad, Tehsil Dharamkot, District Moga.

                                                                                ……… Complainant

 

Versus

New India Assurance Co. Ltd., 7 Gulabi Bagh, G.T. Road, Moga, through its Divisional Manager.

                                                                           …….. Opposite Party

 

 

Complaint U/s 12 of the Consumer Protection Act, 1986.

 

 

Quorum:    Sh. Ajit Aggarwal,  President

                   Smt. Vinod Bala, Member

                   Smt. Bhupinder Kaur, Member

 

Present:       Sh. Ashwani Majithia, Advocate Cl. for complainant.

                   Sh. Jasvinder Singh, Advocate Cl. for opposite party.

 

ORDER :

(Per Ajit Aggarwal,  President)

 

1.                Complainant has filed the instant complaint under Section 12 of the Consumer Protection Act, 1986 (hereinafter referred to as the "Act") against New India Assurance Co. Ltd., 7 Gulabi Bagh, G.T. Road, Moga, through its Divisional Manager (hereinafter referred to as the opposite party) directing them to make the payment of requisite claim amount.

2.                Briefly stated the facts of the case are that complainant is owner of Swift Car no.PB29R-0309. The said car was insured with opposite party vide insurance cover no.36110031140300006919 commencing from 12.02.2015 to 11.02.2016. The abovesaid car met with an accident on 17.05.2015 and accordingly FIR no.83 dated 17.05.2015 was lodged. The car in question at the relevant time was driven by Satnam Singh son of Sh.Payara Singh. The complainant informed the opposite party regarding the accident in question and loss occurred to the car. Accordingly, the opposite party prepared claim for the said loss approximately to the extent of Rs.3 lacs. But the said claim of the complainant was rejected vide its letter dated 02.03.2016 on the ground that wrong name of the driver of the car was given by the complainant to opposite party. The said Satnam Singh was driving the said car and he was challaned by the police and criminal case was also lodged against him. The name of the driver was mistakenly mentioned by the complainant as Gurtej Singh. The opposite party cannot wriggle out of its liability by simply levelling such allegation because both Gurtej Singh and Satnam Singh are holders of valid driving license and opposite party cannot avoid its liability. The opposite party is not making payment of the requisite claim, as such, there is deficiency in service on their part. The opposite party is liable to make the payment of claim. All the bills and estimates concerning the repair of the car in question are in possession of opposite party. The aforesaid act of opposite party amounts to deficiency in service and unfair trade practice on their part. Hence this complaint.

3.                Upon notice, opposite party appeared through counsel and filed written reply taking preliminary objections that the complaint is not maintainable; that the complainant has got no locus-standi; that no deficiency in service has been attributed to the opposite party and from the allegations in the complaint no deficiency in service is made out; that the complaint is absolutely false and frivolous; that complicated questions of law and facts are involved in the present complaint. Moreover lengthy examination-in-chief and cross examination of the parties/witness are required in the complaint. So, the complaint is required to be decided by the civil court and as such this Forum has got no jurisdiction to entertain, try and dispose of the complaint; that the complainant has not approached the Forum with clean hands, rather he has wilfully concealed the material and patent facts from this Forum while filing the present complaint which ipso-facto disentitles the complainant to seek any relief against opposite party. The real facts of the case are that the complainant has given false information in the claim intimation and concealed the material facts about the accident. The complainant has falsely given the name of one Gurtej Singh son of Major Singh as the driver of the insured car no.PB-29R-0309. Whereas as per the report of investigator, Satnam Singh was driving the vehicle at the time of alleged accident and the police has filed challan against Satnam Singh in the criminal case FIR no.83 dt. 17.05.2015, registered in P.S. Dharamkot, which was against and un-known driver, but said Satnam Singh was acquitted by the Court vide judgement dt. 17.03.2016 as he was not identified by the witnesses. Thus, there is no proof that said Satnam Singh was driving the insured vehicle at the time of alleged accident. The complainant had placed on record two affidavits dt. 22.12.2015 of Gurtej Singh and Satnam Singh which are also contradictory to the stand of insured Major Singh taken in the claim form and his letter. Thus, from the above, it is clear that insured made a false declaration in the claim form and violated the terms and conditions of the insurance policy. Therefore, the claim of the complainant was filed as 'no claim' as the same was not maintainable as per terms and conditions of the policy and due to the false declaration made by the insured/complainant in the claim form. This fact was also explained to the complainant, vide letter dt. 02.03.2016, vide which, he was informed that the claim file of the complainant regarding the alleged accident has been filed as 'no claim'. The complaint is false, frivolous, baseless, vague, malicious and unmeritorious, therefore in the event of dismissal of the complaint the opposite party is entitled to special costs. On merits, it is admitted correct to the extent that FIR no.83 dt. 17.05.2015 was registered against an unknown driver in P.S. Dharamkot. It is denied that Satnam Singh was driving the said car at the time of alleged accident. As per declaration of Major Singh/Insured in the claim form it was Gurtej Singh son of Major Singh who was driving the car, but the police filed the challan against one Satnam Singh who was later acquitted by the court. The complainant gave false declaration regarding the driver of the insured car at the time of alleged accident. However, the loss of the vehicle had been assessed, but the same is not payable as per terms and conditions of the policy. The complainant is not entitled to any claim or compensation for the reason mentioned above. All other allegations made in the complaint have been denied and a prayer for dismissal of the complaint with costs has been made.

4.                In order to prove the case, complainant tendered in evidence his duly sworn affidavit Ex.C-1 alongwith copies of documents Ex.C-2 to Ex.C-9 and closed the evidence. 

5.                On the other hand, opposite party tendered in evidence duly sworn affidavit of Sh. Lalit Mahawar, Authorized Signatory, New India Assurance Co. Ltd. Regional Office, Ludhiana Ex.OP-1 alongwith copies of documents Ex.OP-2 to Ex.OP-23 and closed the evidence.

6.                We have heard ld. counsel for the parties and have very carefully gone through record placed on file.

7.                Ld. counsel for the complainant argued that the complainant is owner of Swift Car no.PB29R-0309, which was insured with opposite party for the period from 12.02.2015 to 11.02.2016. The said vehicle met with an accident on 17.05.2015 and FIR no.83 dated 17.05.2015 was lodged. The car in question at the relevant time was driven by Satnam Singh son of Sh.Payara Singh. The complainant informed the opposite party regarding the said accident and loss occurred to the car. Accordingly, the opposite party prepared claim for the said loss approximately to the extent of Rs.3 lacs. But the claim of the complainant was rejected on the ground that wrong name of the driver of the car was given by the complainant to opposite party. The name of the driver was mistakenly mentioned as Gurtej Singh by the complainant. However, Satnam Singh was driving the said car at the time of accident and he was challaned by the police and criminal case was also lodged against him. The opposite party cannot wriggle out of its liability by simply levelling such allegation because both Gurtej Singh and Satnam Singh are holder of valid driving license. For not making payment of the claim, amounts to deficiency in service on the part of opposite party. Hence the present complaint may be accepted and opposite party may be directed to make the payment of claim. The opposite party is liable to make the payment of claim.

8.                On the other hand, ld. counsel for opposite party argued that the complainant has not approached the Forum with clean hands, rather he has wilfully concealed the material and patent facts from this Forum. He argued that the complainant has given false information in the claim intimation and concealed the material facts about the accident. The complainant has falsely given the name of one Gurtej Singh son of Major Singh as the driver of the insured car no.PB-29R-0309. Whereas as per the report of investigator, Satnam Singh was driving the vehicle at the time of alleged accident and the police filed challan against Satnam Singh in the criminal case and FIR no.83 dt. 17.05.2015, registered in P.S. Dharamkot, which was against and un-known driver, but said Satnam Singh was acquitted by the Court vide judgement dt. 17.03.2016 as he was not identified by the witnesses. Thus, there is also no proof that said Satnam Singh was driving the insured vehicle at the time of alleged accident. The complainant had placed on record two affidavits dt. 22.12.2015 of Gurtej Singh and Satnam Singh which are also contradictory to the stand of insured Major Singh taken in the claim form and his letter. Thus, it is clear that insured made a false declaration in the claim form and violated the terms and conditions of the insurance policy. Therefore, the claim of the complainant was filed as 'no claim'. This fact was also explained to the complainant, vide letter dt. 02.03.2016. The complaint being false, frivolous, baseless, vague, malicious and unmeritorious deserves to be dismissed with costs.

9.                The case of the complainant is that his car was insured with OP, which met with an accident during the insurance period and was badly damaged. At the time of accident, his car was driven by Satnam Singh, but in claim form, the complainant inadvertently mentioned the name of the driver as Gurtej Singh and insurance company repudiated the claim on this ground, which is altogether wrong and illegal. OP argued that at the time of accident, the vehicle was not driven by Gurtej Singh as mentioned in claim form, but by Satnam Singh as revealed in investigation and police also filed challan against Satnam Singh. The complainant gave wrong information to opposite party. So, as per terms and conditions of the insurance policy, they repudiated the claim of the complainant lawfully. Ld. counsel for complainant argued that if it is presumed that at the time of accident the vehicle in question was driven by Satnam Singh, then Satnam Singh was also having effective and valid driving license at that time. Copy of the same is Ex.C-4 and the insurance company cannot repudiate the claim on this ground. He put reliance on the citation 2004 (2) RCR 114 Supreme Court of India in case titled as National Insurance Co. Ltd. Vs Swaran Singh and Ors wherein Hon'ble Apex Court held that Motor Vehicle Act, 1988, Section 149 (2) (a) (ii) and proviso to Sub Sections (4) and (5)- Disqualification of driver - Validity of driving license - Insurer is entitled to raise all defences available u/s 149 (2) of the Act - However, mere absence, fake or invalid at the relevant time are not the defences available to insurer against the insured or third parties- To avoid its liability towards the insured also the insurer has to prove the insured to be guilty of negligence and failure to exercise reasonable care in compliance of conditions of Policy- Burden is on the insurer to establish breach of Policy by leading cogent evidence- Mere non production of license or evidence by the insured cannot be considered as discharge of burden of insurer. The Hon'ble Apex court further held that Learning Driving License - Breach of policy - Disqualification of driver - Validity of learner's driving license - Learner's driving license is a valid driving license under the Rules- The insurer cannot take it as defence to avoid its liability. It is argued that insurance company has failed to prove that there is any negligence or failure to exercise any reasonable care in driving of the vehicle or in compliance of the conditions of the policy and the Learning driving license is a valid driving license. 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 put 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.

 

                   Ld. counsel for complainant argued that even if it is taken that at the time of accident vehicle was driven by Satnam Singh, who had a valid driving license at the time of accident and not by Gurtej Singh, then in that case also, the insurance company cannot repudiate the whole insurance claim of the complainant and in that case, it would be decided on the basis of non standard basis.

10.              We have thoroughly gone through the file and case law produced by the complainant and from the perusal of all documents placed on record and in view of the above discussion, we have come to the conclusion that if it is presumed that vehicle was driven by Satnam Singh at the time of accident, who had a valid driving license at that time and not by Gurtej Singh and it is a breach of terms and conditions of the insurance policy, then in that case also, the insurance company cannot repudiate the whole claim of the complainant and 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 and opposite party is directed to settle the claim of the complainant on non standard basis and they are further ordered to pay Rs.1,97,760/- i.e. 75% of Rs.2,63,679/- as assessed by the surveyor vide his survey report Ex.OP-14 and Loss Assessment Sheet Ex.OP-15 alongwith interest at the rate of 9% per annum from 02.03.2016 i.e. date of repudiation of claim of complainant by opposite party till final realization. Opposite party is further directed to pay Rs.5000/-(Five thousand only) as litigation expenses to complainant incurred by him. Compliance of the order be made within 30 days from the receipt of copy of this order, failing which, complainant shall be entitled to initiate proceedings under section 25 & 27 of the Consumer Protection Act. Copy of the order be supplied to the parties, free of costs. File be consigned to record room.

Announced in Open Forum.

Dated: 08.02.2017.

 

                               (Bhupinder Kaur)                 (Vinod Bala)         (Ajit Aggarwal)

                                           Member                              Member                President