Jammu and Kashmir

Jammu

CC/382/2017

GURUCHARAN KOUR - Complainant(s)

Versus

NEW INDIA ASSURANCE - Opp.Party(s)

PS PAWAR

26 May 2018

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM,JAMMU

(Constituted under J&K Consumer Protection Act,1987)

                                                          .

 Case File  No.:                 92/DFJ           

 Date of  Institution   :  25-05-2016

 Date of Decision      :   24-05-2018

 

1.Gurcharan Kour

W/O Late Gurcharan Singh,

2.Prithpal Singh.

3.Raman Deep Singh

Both sons of Late Gurcharan Singh,

All residents of Ward No.5 H.No.24,

R.S.Pura,Distt.Jammu.

                                                                                                                                                Complainants

                  V/S

The New India Assurance Company,

Branch Office Near Satwari Chowk,

Jammu Cantt.Jammu.

                                                                                                                                                Opposite party

   CORAM

                  Khalil Choudhary (Distt.& Sessions Judge)  President

                  Ms.Vijay Angral                                                Member

                  Mr.Ghulam Sarwar Chauhan                            Member

 

In the matter of: Complaint under section 10 of J&K Consumer

                              Protection Act 1987.

 

Mr.P.S.Pawar,Advocate for complainants, present .

Mr.Jugal Kishore,Advocate  for OP,present.

 

                                          ORDER

             

                         Facts relevant for the disposal of complaint on hand are that father of complainants was the owner of vehicle(Truck),bearing registration No.JK02AA-9275,got the same insured with OP,vide Policy No.35250231130100007693 w.e.f.,20-03-2014 to 19-03-2015 and apart from this the driver of the vehicle was also insured under the said policy (copy of insurance policy cover, registration certificate, permit fitness certificate and driving licence are annexed as Annexures-C-1).According to complainants, on the fateful day of 27-11-2014 father of complainants while driving his truck bearing registration No.JK02AA-9275 was on its way from Srinagar to Jammu, when reached Toldy Morh National Highway near Udhampur at about 3 PM another truck coming from the opposite side i.e. from Jammu to Srinagar bearing registration No.JK02AB-6645 driven by its driver, namely,Sham Lal S/O Sain Dass R/O  Camp Gole Gujral,Talab Tillo,Jammu rashly and negligently and at a very high speed hit the said truck of father of complainant, resultantly, the truck fell in deep George and was totally damaged and the father of complainants sustained sever bodily injuries and was taken to District Hospital,Udhampur,wherefrom he was shifted to G.M.C.Jammu(copy of admission card is annexed as Annexure-C-2).Complainant further submitted that FIR was registered in Police Station,Udhampur vide FIR No.438/2014 dated 27-11-2014 and ultimately challan under section 279/338 RPC was presented before Judicial Magistrate Ist Class Udhampur(Copy of challan is annexed as Annexure-C3) and the driver of the offending vehicle,namely,Sham Lal confessed his guilt and was sentenced with fine. That the father of complainants remained hospitalized and ultimately succumbed to his injuries on,10-04-2015 in Super Specialty Hospital Jammu(Copy of death certificate is annexed as Annexure-C4).Submission of complainant is that a claim with respect to total loss of vehicle was sought from OP vide claim No.31/40/0340,but the OP Company has repudiated the said claim on the ground that “at the time of accident there were two unauthorized persons carried in the vehicle whereas there is sitting capacity of only two persons”(Copy of repudiation letter is annexed as Anenxure-C5).Allegation of complainants is that the OP company has committed deficiency in service by repudiating the claim of complainants. Complainants further submitted that at the time of accident total value of the vehicle was assessed at Rs.4,20,000/-for which the deceased had paid premium and apart from this the deceased had his personal insurance under the capacity of driver/owner of the vehicle,i.e.PA to the owner for which the OP Company had received premium on both counts, but at the time of settling the claim,OP out rightly rejected the claim of said vehicle on the basis of illegal ground and this act of OP constitutes deficiency in service and unfair trade practice. In the final analysis, complainant prays for indemnity to the tune of Rs.4,20,000/-against total loss of vehicle in question and also Rs.2.00 lacs as PA to owner i.e. total Rs.6,20,000/-alongwith interest over the said claim amount @ 24% per annum from the date it was due to complainants till its realization and in addition, prays for compensation to the tune of Rs.2.00 lacs/-.

                 On the other hand,OP filed written version and while admitting the insurance of vehicle in question and its accident during currency of insurance policy, went onto submit that the insured vehicle at the time of accident was being driven in violation of the provisions of M.V.Act and the terms and conditions of the insurance policy, Registration certificate and Route Permit of the insured vehicle. The insured vehicle was carrying passengers unauthorized in the insured vehicle at the time of accident and therefore, the complainant had violated the terms and conditions of insurance policy. That the claim of complainants has been rightly rejected by the Op company and the present complaint against the rejection of claim by assigning reasons and after due application of mind, is not maintainable under Consumer Protection Act and the complaint as such is liable to be dismissed. It is submitted that a claim was lodged with the OP company with respect to damage to the insured vehicle in an accident on,27-11-2014.The company immediately after receipt of claim intimation, deputed Mr.Daljeet Singh Sangral(B.E.)Surveyor and Loss Assessor for the motor spot survey report. The surveyor inspected the insured vehicle on the spot of accident and submitted his report dated 04-01-2015.In the report submitted by the spot surveyor Mr.Daljeet Singh Sangral,it was observed that apart from the driver and conductor, two other persons were also travelling in the insured vehicle at the time of accident. The company after receipt of spot survey report, deputed Mr.Mukesh M.Purdani,another independent Insurance Surveyor,Valuer and Loss Assessor for making assessment of loss to insured vehicle in the aforesaid accident. The final surveyor also inspected the damaged vehicle at the residence of complainants and submitted his survey report dated 06-03-2015 to OP company wherein the net loss of Rs.2.99 lacs on net of salvage basis was assessed by the surveyor which was subject to the terms and conditions of insurance policy and acceptance of liability by the insurance company and on the transfer of registration certificate in the name of company. The vehicle was declared as total loss basis and the surveyor on the basis of market value of the insured vehicle which was of 2005 model had assessed the loss and the consent was also given by the complainants to the assessment made by the surveyor.

           Complainants adduced evidence by way of duly sworn evidence affidavits of Prithpal Singh.Complainants have placed on record copy of policy schedule, copy of collection receipt cum adjustment voucher, copy of certificate of fitness, copy of driving licence of Deceased Gurcharan Singh, copy of FIR, copy of challan,copy of death certificate, copy of letter issued by OP to Ranjeet Singh and copy of ration card.

            On the other hand,OP adduced evidence by way of duly sworn evidence affidavit of G,S.Bali Divisional Manager New India Assurance Co.Ltd.Gandhi Nagar Jammu.OP has placed on record copy of FIR, copy of challan,copy of certificate of registration, copy of permit, copy of surveyor report, copy of consent/acceptance letter and copy of policy schedule.

                         We have perused case file and heard L/Cs for the parties at length.

                           To be brief facts of the case are that father of complainants was the owner of vehicle(Truck),bearing registration No.JK02AA-9275,got the same insured with OP,vide Policy No.35250231130100007693 w.e.f.,20-03-2014 to 19-03-2015 and apart from this the driver of the vehicle was also insured under the said ,however, on the fateful day of 27-11-2014 father of complainants while driving his truck bearing registration No.JK02AA-9275 was on its way from Srinagar to Jammu, when reached Toldy Morh National Highway near Udhampur at about 3 PM another truck coming from the opposite side i.e. from Jammu to Srinagar bearing registration No.JK02AB-6645 driven by its driver, namely,Sham Lal S/O Sain Dass R/O  Camp Gole Gujral,Talab Tillo,Jammu rashly and negligently and at a very high speed hit the said truck of father of complainant, resultantly, the truck fell in deep George and was totally damaged and the father of complainants sustained sever bodily injuries and was taken to District Hospital,Udhampur,wherefrom he was shifted to G.M.C.Jammu.Complainants further submitted that FIR was registered in Police Station,Udhampur vide FIR No.438/2014 dated 27-11-2014 and ultimately challan under section 279/338 RPC was presented before Judicial Magistrate Ist Class Udhampur and the driver of the offending vehicle,namely,Sham Lal confessed his guilt and was sentenced with fine. That the father of complainants remained hospitalized and ultimately succumbed to his injuries on,10-04-2015 in Super Specialty Hospital Jammu.Submission of complainant is that a claim with respect to total loss of vehicle was sought from OP vide claim No.31/40/0340,but the OP Company has repudiated the claim.

                     On the other hand, stand of OP is that the insured vehicle was carrying passengers unauthorizedly at the time of accident and therefore, the complainant had violated the terms and conditions of insurance policy. That the claim of complainants has been rightly rejected by the Op company and the present complaint against the rejection of claim by assigning reasons and after due application of mind, is not maintainable under Consumer Protection Act and the complaint as such is liable to be dismissed.

                    Be it noted that admittedly, although at the time of accident, vehicle in question was being driven in violation of terms and conditions of Insurance Policy, in our opinion OP in rejecting the claim in its entirety has grossly erred, because as per settled preposition of law,OP was required to settle the claim on non standard basis.

                          Point involved in the matter is more res integra,Hon’ble Supreme Court dealt with the issue in, Amalendu Sahoo V/S Oriental Insurance Company 2010 ACJ 1250 and Oriental Insurance Company Ltd.V/S Bansi lal 2007(II)SLJ(Con.).

                    We have gone through the case laws relied upon by the learned counsel for complainant. In the case Amalendu Sahoo V/S Oriental Insurance Company, the Hon’ble Supreme Court, has laid down that the Insurance Company is liable to indemnify the owner of the vehicle when the insured has obtained comprehensive policy for the loss caused to the insured and even if it is assumed that there was breach of condition of the insurance policy, the Insurance Company ought to have settled the claim on non-standard basis. So in view of principle of law laid down in the above cited case law, the Insurance Company cannot repudiate the insurance claim in toto raised by the complainant regarding loss of the vehicle in question which is admittedly insured by the OP1.

                        Perusal of file shows that the complainants have claimed the loss of vehicle to the tune of Rs.4,20,000/-,which is also substantiated by the original bills on record produced by the complainants themselves and as per guidelines laid down by Hon’ble Supreme Court, the complainants are entitled to reimbursement of claim to the extent of 75% of the admissible claim. Since as per own pleading and proof of the loss suffered by the vehicle of complainants are proved to the amount of Rs.4,20,000/-and this has not been rebutted by the OP,therefore, the OP insurance company should have settled the claim of complainant on non-standard basis by paying 75% out of loss as per documents produced by the complainant, but in this case the OP has not settled the claim even on non-standard basis also and thus the OP is guilty of deficiency in service and is thus liable to indemnify the loss to the extent of 75% ,out of the loss proved by the complainant, which comes to Rs.2,24,250/ .

                        Therefore in view of the abovesaid discussion, we are of the view that the repudiation of insurance claim made by OP is improper, unjustified and resorted to by insurance company OP only to defeat the genuine claim of the complainants and it amounts to deficiency in service.

                    The complaint is accordingly allowed and the OP is ordered to indemnify the complainants by paying him Rs.2,24,250/-.It is to be noted that complainants have also claimed Rs.2,00,000/on account of mental pain, shock and suffering alongwith  interest from the date of filing of claim petition, till its final liquidation. In this respect, there is no gainsaying that ill fated vehicle bearing registration No.JKO2AA-9275,was driven in breach of condition of policy, however, it is only because of law laid down by Hon’ble Supreme Court and National Commission, complainant is held entitled to 75% of admissible claim, therefore, in case apart from 75% of admissible claim any compensation granted, it would be over and above the admissible claim and we afraid that would be in breach of guidelines laid down by Hon’ble Supreme Court, therefore, we are of the opinion that same is impermissible, hence prayer of complainant for awarding compensation apart from 75% of admissible claim is turned down. We are fortified in  our view by the judgment of Hon’ble High Court, titled Bajaj Allianz General Insurance Co.Ltd.Vs.Narinder Singh passed in CIMA No.162/2013 decided on 14-05-2013,para 7 whereof is reproduced herein below:

      7.The case of the respondent falls within third description,i.e.,any other breach of warranty/condition of policy including Limitation as to use for which the insurer is to pay up to 75% of admissible claim.75% of the admissible claim has been awarded,i.e.Rs.2.50 lac.Same is in consonance with the ratio of the judgment referred. In our view, in the given circumstances, when maximum, i.e.75% of the admissible claim has been awarded, award of interest and litigation charges amounting to Rs.10,000/- shall be impermissible. However, parking expenses charged by the Garage where damaged vehicle was lying since accident are allowable. In total Rs.2.50 lac are worked out to be payable to the respondent.

                      The complaint is accordingly allowed and OP is ordered to indemnify the complainants by paying them Rs.2,24,250/-.This order shall be complied with within one month from the date of receipt of the order. The copy of the order be provided to the parties free of charge. The complaint is accordingly disposed of and the file be consigned to records.

 Order per President                                   Khalil Choudhary

                                                                (Distt.& Sessions Judge)

Announced                                                     President

24-05-2018                                           District Consumer Forum

Agreed by                                                      Jammu.

                                                             

  Ms.Vijay Angral          

  Member                                                                                              

.               

 Mr.Ghulam Sarwar Chauhan

Member