Haryana

Ambala

CC/193/2018

Chaman Lal - Complainant(s)

Versus

NIA - Opp.Party(s)

20 Mar 2019

ORDER

 

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM AMBALA

                                                                      Complaint case no.        : 193 of 2018

                                                                      Date of Institution         : 11.06.2018

                                                                       Date of decision           :  20.03.2019

 Chaman Lal aged  about 85 years son of Shri Babu Ram, resident  of Village Adhoya, Tehsil Barara, District Ambala, now resident of Mangla  Enterprises, Opposite Vita Milk Plant, Baldev Nagar Road, Ambala City.

    ……. Complainant.

The New India Assurance Co. Ltd. SCO-19, Municipal Shopping Complex, Ambala City.

 .…. Opposite Party.

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

Before:        Ms. Neena Sandhu,  President.                                               

                   Ms. Ruby Sharma, Member,                

 

Present:        Sh. Gopal Krishan Gupta, counsel for complainant.

 Sh. Mohinder Bindal, counsel for OP.

 

Order:         Smt, Neena Sandhu, President

Complainant has filed this complaint under Section 12 of the Consumer Protection Act, 1986 (hereinafter referred to as ‘the Act’) against the Opposite Party (hereinafter referred to as ‘Op’) praying for issuance of  following directions to them:-

1. To pay Rs. 6,23,207/- as estimated by the repairers  alongwith interest @ 18% per annum from the date of accident.
2. To pay Rs. 25,000/- as compensation for the mental agony and physical harassment suffered by him.
3. To pay Rs. 11,000/- as litigations charges. 

                   In nutshell, brief facts of the present complaint are that the complainant is the registered owner of Escorts Tractor-Trolley bearing Registration No. HR-01W-1557. He got it insured with the OP vide Policy No.35350231100100003257 (standard-commercial vehicle package policy) valid up to 16.07.2010 to 15.07.2011. Unfortunately, on 01.03.2011, the said tractor trolley met with an accident and got totally damaged.   Intimation was given to the OP stating all the facts that one car driver received fatal injuries in the said accident and the tractor trolley was taken in possession by the police and was released on superdari after a long delay. After getting the said tractor trolley released on superdari, complainant got assessed the cost of repairs from S.B.Trading Company and  Jagdev Steel Works and the total estimate cost of repair was of Rs. 6,23,207/-. Complainant lodged the claim with the OP but it did not settle the claim as such he filed a complaint bearing no.263 of 30.08.2012 before this Forum which was disposed of on 08.03.2017, directing the complainant to deposit all the claim documents with OP within one month and thereafter the OP shall decide the complaint within two months. In pursuance of the said order, the complainant again submitted all the documents with the OP on 20.03.2017, but the orders of this Hon’ble Forum was not complied with by the OP. Thereafter, complainant filed a  misc. application before this  Hon’ble Forum and during pendency of the said application, the OP repudiated  the claim vide letter dated 16.05.2018, by stating that the complainant  has violated  the terms and conditions  of the policy as the vehicle was being  used for other than agricultural  purposes.  By repudiating the genuine claim of the complainant, the OP has committed deficiency in service and has caused mental agony and physical harassment to the complainant. Hence, the present complaint.

2.               Upon notice, OP appeared through counsel and tendered written version, raising preliminary objections qua complaint is not maintainable, no cause of action, no jurisdiction and complaint is ex-facie misconceived, vexatious. On merits, it is stated that the complainant himself, is responsible for the non-payment of the claim as he failed to supply the estimate of repair inspite of receipt of letters 20.06.2011, 24.08.2011, 02.11.2011 and 17.01.2011. Even he did not produce the tractor trolley for survey and never informed about  the condition and fate of the tractor. Thus under these circumstances, the OP had no option but to close the file as “No claim”. The earlier complaint was disposed of with the direction to the complaint to submit the required documents. After  going through the complete set of documents submitted by the complainant and  considering  the claim again according  to the terms and conditions  of the insurance policy  by the competent authority, the same  was repudiated as the tractor was being used for commercial purposes,  in violation of terms and conditions of the insurance policy and in contravention of the Motor Vehicle Act as the same was registered and insured only for agricultural purposes. Thus, the reported claim of the complainant was again considered and repudiated in the light of investigation conducted by the investigator, who confirmed that at the time of said alleged loss, the said tractor trolley was being used in the business affairs. Thus, there is no deficiency in service on the part of the Op and prayed for dismissal of the present complaint.

3.                To prove his version counsel for the complainant tendered his affidavit as Annexure C-A & C-B along with documents as annexure C-1 to C-21 and closed his evidence. On the other hand, Counsel for the OP tendered affidavit as Annexure R-X alongwith documents as Annexure R-1 to R-3 and closed their evidence.

4.                We have heard both the counsel of the parties and carefully gone through the case file.

5.                The learned counsel for the complainant has argued that the duly insured tractor trolley in question met with an accident and got totally damaged, due to which complainant had suffered a huge loss. But the OP instead of indemnifying the complainant for the loss suffered by him had repudiated his claim on the flimsy ground that it was being used for business purpose and not for agriculture purpose. But in the absence of any documentary evidence the OP has failed to prove the said fact. By repudiating the genuine claim of the complainant the OP has deficient in service.  

On the contrary the learned counsel for the OP has vehemently argued that the tractor trolley in question was insured only for agriculture purpose but the same was being used for some other purpose. Even, the complainant has not produced the tractor trolley before the surveyor for assessment of the loss. For that reasons referred to above, the OP has rightly repudiated the claim vide letter dated 16.05.2018. The complaint filed by the complainant is devoid on merits and same may be dismissed with cost.

6.                Admittedly, the tractor trolley in question was duly insured with the OP, for the period from 16.07.2010 to 15.07.2011 vide policy documents Annexure C-2. From the FIR dated 03.03.2011 Annexure C-4, it is apparent that the said tractor trolley met with an accident on 01.03.2011. From the perusal of the repudiation letter dated 16.05.2018 Annexure C-14, it is revealed that  the OP has repudiated the claim of the complainant on the ground that the tractor trolley in question was being used exclusively by the son of the complainant for  business purpose in his Firm M/s Mangla Sales Enterprises for carrying/supplying cement etc.   Even complainant had failed to produce the tractor trolley for survey, for assessment of the loss. In the repudiation letter, it is stated that the OP repudiated the claim after perusal of the documents and on the basis of investigation report. However, no investigation report has been placed on record by the OP. Even no other document has been produced by the OP to prove that the tractor trolley in question was being used for the purpose other than agriculture. Thus, in the absence of any cogent and convincing evidence, the OP has failed to prove that the impugned tractor trolley was being used for some other purpose. From the copy of the judgment dated 02.01.2015 of the JMIC, Dera Bassi, Annexure C-20, it is apparent that the impugned tractor trolley was taken in possession by the police after the accident. The OP should have directed the surveyor/investigator, so appointed by it, to conduct the survey/investigation of the tractor trolley at police station with the permission of police authorities and to assess the loss. But it did not do so. The OP for its own fault, cannot blame the complainant for non survey of the said tractor trolley. Taking all these facts and circumstances into consideration, we are of the view that the Op was not right in repudiating the claim of the complainant and is liable to indemnify the complainant for the loss suffered by the him as per the policy. Now, the question which arises for consideration is what should be the quantum of indemnification. The plea of the complainant is that since it was a total loss, therefore, the insurance company is liable to pay repair charges of Rs.6,23,207/-, as assessed by S.D. Trading Corporation. This plea of the complainant that OP is liable to indemnify to him to extent of Rs. 6,23,207/- is not tenable because the insurance company is not liable to indemnify the insured more than IDV of vehicle. From the perusal of the policy documents it is revealed that the IDV of the impugned tractor trolley is of Rs. 2,85,000/-, therefore, the insurance company/OP is liable to pay the said amount of Rs.2,85,000/- to the complainant alongwith interest. The Op is also liable to compensate the complainant for the mental agony and physical harassment caused to him alongwith litigation expenses.

7.                In view of the aforesaid discussion we hereby allow the present complaint and direct the Op in following manner:-

1. To pay Rs. 2,85,000/- to the complainant along with interest @ 7% per annum w.e.f. 16.05.2018 i.e. the date of repudiation of the claim till its realization.
2. To pay Rs. 5,000/- as compensation.
3. To pay Rs. 3,000/- as  litigation expenses.

The Op is further directed to comply with the order within the period of 30 days from the date of receipt of the certified copy of this order, failing which OP shall pay interest @9% per annum on the awarded amount besides litigation cost for the period of default. Copy of the order be sent to the parties concerned as per rules free of costs. File be indexed and consigned to the record room.

Announced on : 20.03.2019

 

 

 

                      (Ruby Sharma)                      (Neena Sandhu)

                             Member                           President