BEFORE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM
SIRMAUR AT NAHAN (H.P.)
Complaint No: 45/2010
Presented On: 9.6.2010
Decided On: 17.3.2015
M/s Dharam Singh Mohar Singh R/o village Pamta, P.O Shawga, Tehsil
Kamraoo, District Sirmour, H.P. Through its Prop. Sh. Dharma Singh .
….Complainant.
Versus.
National Insurance Co. Ltd. near Y Point Paonta Sahib, District Sirmour,
H.P.
…Opposite party
Coram:
Sh. K.S.Chandel, President.
Mrs. Kavita Kashyap, Member.
Sh. Vinod Gupta, Member.
For the Complainant: Sh. J.S.Thakur, Advocate.
For the Opposite party: Sh. V.R.Chauhan, Advocate
O R D E R:
K.S.Chandel ( District Judge) President.
The complainant firm has preferred this complaint
under Section 12 of Consumer Protection Act, 1986 against the
Opposite party (hereinafter referred as the OP for short), claiming
deficiency in service as well as unfair trade practice by the OP. The
complainant has pleaded and claimed that he purchased JCB machine /
vehicle bearing registration No. HP-17B-0475 which was duly insured
with the OP vide policy for the period w.e.f. 6.9.2008 to 5.9.2009 . The
complainant has further pleaded and claimed that this vehicle met with
an accident on 24.8.2009 and was totally damaged while driving by
Ismail Khan who was holding a valid D.L at the time of accident and
FIR No. 303/09 dated 24.8.2009 was registered with police station
Paonta Sahib. The complainant has further claimed that the
information was sent to the OP and thereafter claim was lodged by
submitting all the relevant documents including R.C, D.L, copy of FIR
and original repair bills obtained from authorized dealer, but, OP has


failed to settle the claim and thereafter a legal notice was served to the
OP dated 2.2.2010 . The complainant has further claimed that to deny
the rightful claim of the complainant by the OP amounts to deficiency
in service as well as unfair trade practice and as such, he has sought
direction to the OP to pay Rs. 18,57,202/- estimated repair cost of the
vehicle and compensation for mental harassment including litigation
expenses. The complaint is duly supported with an affidavit of the
complainant.
2. After notice OP appeared to contest the complaint by
filing reply wherein has taken preliminary objections qua
maintainability and has denied any deficiency in service as well as
unfair trade practice on the ground that the claim of the complainant
was processed as per terms and conditions of the insurance policy and
the same was repudiated on the ground that the driver was not holding
valid and effective D.L and over turn risk of the vehicle was not
covered under the policy. On merits, the OP has pleaded and claimed
that the complainant is not a consumer being commercial establishment
and the complainant has not covered risk of overturning as per copy of
insurance policy Annexure OP-1. The OP has further pleaded that the
offer of settlement of claim was given by the complainant vide letter
dated 20.10.2009 Annexure OP-2 and thereafter the complainant has
also given his consent/ offer to settle the claim for Rs. 8,50,000/- to
the OP vide letter dated 11.12.2009 as per Annexure OP-3. The OP has
further pleaded that the claim has been rightly repudiated in pursuance
of terms and conditions of the insurance policy and , as such has sought
for the dismissal of the complaint.
3. In rejoinder the complainant has denied the preliminary
objection taken by the OP as well as on merits the plea of the OP has
been denied since, the complainant has pleaded and claimed that the
D.L of the driver was valid and effective at the time of accident and
the risk was covered as per policy. The complainant has further claimed
that the offer for settlement for the claim is of Rs. 8,50,000/- is
acceptable only in case salvage of the vehicle is handed over the
complainant and thereby has reiterated the plea of complaint.


4. We have heard the ld. Counsel for the parties and considered the
record carefully.
5. The factum of insurance of the vehicle of the complainant by
the OP is not in dispute including the accident of the vehicle and
damages caused to the vehicle as the complainant has submitted the
relevant documents to the OP, copy of D.L of the driver , registration
certificate of the vehicle , copy of FIR and quotation for the repair of
the vehicle . The OP has claimed that the driver was not holding valid
and effective D.L at the time of accident . Moreover, the risk by
overturning was not covered under the policy and further the OP has
claimed that the complainant has sought settlement of claim of Rs.
8,50,000/- vide letter dated 11.12.2007 Annexure OP-3.
6. On bare perusal of policy Annexure C-6 and Annexure OP-1
the liability to the IDV of vehicle to Rs. 13,60,000/- and there is no
mention about the plea of the OP that this policy does not cover the
risk of the overturning as no such premium has been shown to be
paid by the complainant as the OP has brought on record Indian
Motor Tariff Annexure OP-4 in which the OP has relied upon
IMT47 which pertains to package policy and to cover the damage by
overturning the additional premium has been shown to Rs.100/-.
Therefore, the OP has failed to discharge onus to establish that
overturning risk was not covered under policy Annexure C-6 as well
as Annexure OP-1 and, as such, risk of the vehicle of the
complainant is covered under the policy Annexure C-6 as well as
Annexure OP-1 being policy for liability. The driver of the vehicle
was holding D.L Annexure C-5 as per verification report by OP as
per Annexure OP-6 and Annexure C/X . The driver was authorized
to drive the LMV (Non transport) and the vehicle of the complainant
falls under the category of non transport, as such, driver of the
vehicle was holding effective and valid licence at the time of
accident . Therefore, to deny the rightful claim of the complainants
by the OP amounts to deficiency in service as well as unfair trade
practice since the OP has failed even to appoint surveyors despite
information and claim sought by the complainant well in time. The


complainant has not been able to establish on record the cost of
repair of the vehicle, the only quotation to the parts of the vehicle
have been brought on record by the complainant whereas the OP has
brought on record letter of the complainant Annexure OP-3 vide
which he has given consent for full and final settlement of Rs.
8,50,000/- to the complainant as total loss vide his letter Annexure
OP-3 addressed to the OP. Therefore, the complainant is entitled for
claim of Rs. 8,50,000/- as total loss of the vehicle less salvage value
with interest 9% P.A from the date of filing the complaint i.e.
9.6.2010 till realization. The OP is further directed to pay
compensation on account of mental harassment including litigation
expenses of Rs. 25,000/- The OP is directed to pay this amount
within 45 days from the receipt to the copy of the order. Copy of this
order be supplied to the parties free of cost as per rules.
Announced on this 17th day of March ,2015
( K.S.Chandel)
President
(Kavita Kashyap) (Vinod Gupta)
Member Member
(Mahajan)