Haryana

Kurukshetra

124/2018

Naveen Kumar - Complainant(s)

Versus

NIA - Opp.Party(s)

Jasvinder Pal Singh

27 Mar 2019

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, KURUKSHETRA.

                                                     Complaint Case No.124 of 2018.

                                                     Date of institution: 1.06.2018.

                                                     Date of decision: 27.03.2019.

 

Naveen Kumar son of Shri Har Narayan, resident of House No.1032, Gali No.1, Sidharth Nagar Panipat- Haryana.

                                                                        …Complainant.

                        Versus

The New India Assurance Company Limited, Dr. Sahni Nursing Home Pipli Road, Kurukshetra, Tehsil Thanesar, District Kurukshetra through its Branch Manager.

….Opposite party.

Before:      Smt. Neelam Kashyap, President.

                Ms. Neelam, Member.

                Sh. Sunil Mohan Trikha, Member.

 

Present:     Sh. Jasvinder Pal Singh, Advocate, for the complainant.   

                Sh. R.K. Singhal, Advocate for opposite party.

ORDER

                This is a complaint under Section 12 of the Consumer Protection Act, 1986 moved by complainant Naveen Kumar against the New India Assurance Company Limited, the opposite party.

2.            Brief facts of the present complaint are that complainant purchased one insurance policy for his Tavera vehicle No.HR-06-AG-7093 vide policy No.31040031150150002561 from the opposite party for the value of Rs.3,64,000/-. That the said vehicle met with an accident due to rash and negligent driving of driver of another vehicle Truck bearing No.PB-11AV-7507 as without blowing horn and violating all the traffic rules he at once turned the same towards the vehicle No.HR06-AG-7093 due to which the Tavera vehicle dashed behind the truck. The impact of this accident was so high that all the occupants of Tavera vehicle received injuries and the vehicle was totally damaged. All original documents were submitted to the op to get claim but the op vide letter dated 31.3.2017 has refused to give claim which is illegal and null and void. That the complainant requested the op several times to pay insured amount to the complainant but op flatly refused to pay the same to the complainant.  It is further averred that complainant had filed an application under Section 22 C of the Legal Service Authority Act, 1987 before the permanent Lok Adalat but the op refused to settle the matter amicably and so application could not be decided on merits and complainant withdrew the same. Hence, this complaint seeking direction to the op to pay insured amount of Rs.3,64,000/- alongwith interest and also to pay an amount of Rs.1,00,000/- as compensation for harassment and mental agony and Rs.11,000/- as litigation expenses.  

3.            Upon notice, the OP appeared before this Forum and contested the complaint by filing reply raising certain preliminary objections that this Forum has no jurisdiction to entertain and try the present complaint as policy of insurance was issued from Delhi and that complaint is not maintainable at all and the same is liable to be dismissed with costs as complainant had filed an application before Permanent Lok Adalat (Public Utility Services) Kurukshetra regarding the same matter and said application was dismissed as withdrawn on 27.4.2018. Other preliminary objections regarding locus standi, involvement of complicated questions of law and facts, mis joinder and non joinder of necessary parties, estoppal and suppression of true and material facts have also been taken. It is submitted that true and material facts are that immediately on receipt of the intimation regarding the accident in question, the surveyor was deputed and the vehicle was inspected. On perusal of the documents and the FIR, it was revealed that 10 persons were travelling at the time of accident whereas the seating capacity of the vehicle as per registration certificate was seven, which is clear violation of rules and regulations of Motor Vehicle Act and violation of terms and conditions of policy of insurance. Since, the claim was not payable, the same was repudiated by the competent authority after considering all the relevant facts and after applying its mind. It is further submitted that due intimation was given to the complainant through registered letter dated 31.3.2017 regarding repudiation of claim and thus there is no deficiency in service on the part of answering op. Remaining contents of complaint have also been denied and prayer for dismissal of complaint has been made.

4.             Learned counsel for complainant tendered affidavit Ex.CW1/A and documents Ex.C1 to Ex.C5. On the other hand, ld. Counsel for op tendered affidavit Ex.RW1/A and documents Ex.R1 to Ex.R7.

5.             We have heard learned counsel for the parties and have perused the case file carefully.

6.             Undisputedly the vehicle of the complainant bearing registration No.HR-06-AG-7093 was insured with the opposite party from 5.8.2015 to 4.8.2016 for the sum insured of Rs.3,64,000/-. It is also an admitted fact that the vehicle in question of the complainant met with an accident on 19.6.2016 and was totally damaged. The claim was lodged with the opposite party by the complainant but the op vide letter dated 31.3.2017 Ex.C3 repudiated the claim of the complainant on the ground that ten occupants were travelling at the time of accident whereas sitting capacity as per R.C. is seven which is clearly violation of rules and regulations of Motor Vehicle Act and violation of terms and conditions of the insurance policy. But the opposite party has not produced any evidence on record to prove that the accident occurred on account of the overloading of passengers in the vehicle. In this regard, we are also fortified with the observations of the Hon’ble Supreme Court in case titled as Lakhmi Chand Versus Reliance General Insurance, CA Nos.49-50 of 2016 decided on 7.1.2016 relied upon by learned counsel for complainant wherein it has been held as under:-

“It becomes very clear from a perusal of the above mentioned case law of this Court that the insurance company, in order to avoid liability must not only establish the defence claimed in the proceeding concerned, but also establish breach on the part of the owner/ insured of the vehicle for which the burden of proof would rest with the insurance company. In the instant case, the respondent- company has not produced any evidence on record to prove that the accident occurred on account of the overloading of passengers in the goods carrying vehicle. Further, as has been held in the case of B.V. Nagaraju (supra) that for the insurer to avoid his liability, the breach of the policy must be so fundamental in nature that it brings the contract to an end. In the instant case, it is undisputed that the accident was in fact caused on account of the rash and negligent driving of the offending vehicle by its driver, against whom a criminal case vide FIR No.66 of 2010 was registered for the offences referred to supra under the provisions of the IPC. These facts have not been taken into consideration by either the State Commission or National Commission while exercising their jurisdiction and setting aside the order of the District Forum. Therefore, the judgment and order of the National Commission dated 26.4.2013 passed in the Revision Petition No.2032 of 2012 is liable to be set aside, as the said findings recorded in the judgment are erroneous in law.”  

7.             The above said authority is fully applicable to the facts and circumstances of the present case. So, we are of the opinion that op has caused deficiency in service towards the complainant by not paying the insured amount for the damage to the insured vehicle in question of complainant.                   

8.             In view of the above, we allow the present complaint and direct the opposite party to pay the insured amount of Rs.3,64,000/- to the complainant within a period of 45 days from the date of receipt of copy of this order, failing which the complainant will be entitled to interest @9% per annum from the date of order till actual realization. We also direct the op to further pay a sum of Rs.5000/- as compensation for harassment including litigation expenses to the complainant. The complainant will complete all the required formalities for transfer of vehicle in favour of op. A copy of said order be supplied to the parties free of cost.  File be consigned to record-room after due compliance.           

Announced in open Forum:

Dt.: 27.03.2019.                                                  (Neelam Kashyap)

                                                                        President.

 

(Sunil Mohan Trikha),           (Neelam)       

Member                             Member.