BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, SIRSA.
Consumer Complaint no. 89 of 2012
Date of Institution : 9.5.2012
Date of Decision : 15.9.2015
Rohtash Kumar son of Sh.Leelu Ram, r/o village Nehrana, tehsil and district Sirsa.
….Complainant.
Versus
The Manager, The Oriental Insurance Company Ltd. Opp. Janta Bhawan, Sirsa.
...…Opposite party.
Complaint under Section 12 of the Consumer Protection Act,1986.
Before: SMT.GURPREET KAUR GILL ………PRESIDING MEMBER.
SHRI RAJIV MEHTA ……MEMBER.
Present: Sh.R.S.Bhakar, Advocate for the complainant.
Sh.Rakesh Bajaj, Advocate for the opposite party.
ORDER
In brief, the complainant Rohtash Kumar is registered owner of Bolero HR-24L/8257. Vehicle was duly insured with the respondent-Oriental Insurance Company Ltd. vide policy No. 261503/31/2011/1714 and cover note no. 260000180903 for the period from 22.8.2010 to midnight 21.8.2011. The complainant driven and used the vehicle for his personal affairs and domestic use. He appointed one Sandeep as driver for his own comfort. The driver Sandeep went to Gohana alongwith his real brother on 7.12.2010. After leaving his brother at Gohana, Sandeep returned back with Bolero Jeep for Hisar about 6.00 A.M. When about 7 a.m.he reached near Bansi canal pul/bridge at a distance of 1KM from the bridge, unfortunately, a neel-cow came from the driver side on the road in front of the vehicle. The driver of the jeep applied the breaks and the vehicle turned towards the right hand side. As a result, the neel cow was saved but the jeep struck against the saffeda trees, and suffered heavy damages. A report bearing no.25 dated 7.12.2010 was lodged with police station Lakhan Majara Distt. Rohtak.
2. The complainant lodged the claim for compensation on account of damages to his vehicle. The incident took place during the period of insurance. The complainant also supplied the estimate of repairing expenses amounting to Rs.1,90,000/- for getting the repair of the vehicle. The complainant also supplied the documents/bills etc. as demanded by the respondent. The OP appointed their surveyor and Loss assessor to investigate the matter and to assess the actual loss after proper survey and to submit his detailed survey report. The said surveyor contacted the complainant and collected all the original documents. The complainant waited for long period, but no information was received. He was told that his claim has been referred to the head office for sanction thereof. Ultimately, the respondent repudiated the claim of complainant by taking totally false and baseless ground that Jeep no. HR-24L-8257 was used contrary to the policy, terms and conditions, limitation as to use on the date of accident as well as in routine. Thereafter, the complainant sent a legal notice on 6.3.2012 to respondent, which was received by respondent, but respondent failed to comply with the provisions of notice. Hence, this complaint for a direction to the complainant to pay insured amount of Rs.1,90,000/- alongwith interest @ 18% per annum and also for compensation for damages for harassment, mental tension, humiliation etc. and litigation expenses.
3. Opposite party contested the case by filing reply. It is pleaded that at the time of getting the vehicle insured with the respondent, the complainant had disclosed and claimed that this vehicle is meant for his personal and private use only and shall not be used for commercial purposes and also shall not be used for hire and reward basis. However, the complainant did not use the same for his personal and private use, rather operated the same for hire and reward basis. On the day of alleged accident, the said vehicle was being used on hire and reward basis as the vehicle was carrying passengers, which is in violation of terms and conditions of insurance policy. Moreover, as per report dated 25.12.2010of surveyor Sh.Ashok Kumar Sharma, five persons were sitting in the Bolero at the time of accident. Thereafter, Er.Rajesh Wadhawan, Surveyor and Loss Assessor, Chandigarh was also deputed to conduct the survey of the accidental vehicle, who also gave his report on dt. 8.4.2011 and thereafter, the claim of complainant was got investigated by respondent from Royal Associates, Investigating and Detective Agency, Kurukshetra and during the investigation it was transpired that the complainant was operating the vehicle for hire and reward basis. Hence, in view of the reports of abovesaid surveyors and Loss Assessors, the claim of the complainant was repudiated by the respondent, which is legal and valid.
4. Both the parties have led their evidence in the form of affidavits and documents. The complainant has tendered in evidence Ex.CW1/A-his affidavit; Ex.CW2/A-affidavit of Sandeep; Ex.C1-DDR No.25 dt. 7.12.2010; Ex.C2-repudiation letter dt. 22.2.2012; Ex.C3 to Ex.C5-receipts of payment; Ex.C6-legal notice; Ex.C7-postal receipt; Ex.C8-RC; Ex.C9-DL of Sandeep; Ex.C10-Motor insurance certificate-cum-policy schedule private car package policy, whereas OP has tendered Ex.R1 and Ex.R2-affidavits of Surveyors and Loss Assessors, Ex. R3 affidavit of Sh. S.K.Malhotra, Branch Manager; Ex.R4 to Ex.R6-survey reports; Ex.R7- photo copy of statement of Gobind son of Subhash Chand Goyal; Ex.R8-photo copy of statement of Satpal son of Ami Chand and Ex.R9-motor insurance certificate-cum-policy schedule private car package policy.
5. We have gone through the record of the case carefully and have heard learned counsel for both the parties.
6. We have examined the pleadings and documents of the parties very closely. There is no dispute between the parties that the vehicle of the complainant was insured with the respondent-insurance company and the insurance was valid from 22.9.10 to 21.9.2011. There is also no dispute between the parties that the vehicle of the complainant had turned turtle due to coming of a Neel cow on the road in front of jeep from driver side. Jeep strucked against the Safeda tree on 7.12.2010 while coming from Gohana to Hisar back. Sandeep Kumar driver was driving the vehicle and as a result thereof, the vehicle of the complainant was badly damaged. Ex.C3 is the copy of insurance policy. Ex.C1 is the copy of DDR no.25 dt. 7.12.10 recorded at police station Lakhan Majra distt.Rohtak with respect to the incident in question. There is also no dispute between the parties that the complainant had informed the respondent-company about the accident in question and as a result thereof the respondent initially deputed Sh.Ashok Kumar Sharma of Rohtak Surveyor for getting the spot verification done and, thereafter, another surveyor and loss assessor Sh.Rajesh Wadhawan an independent surveyor was deputed to assess the loss of damage vehicle of the complainant. Ex.R4 is a report of Sh.Ashok Kumar Sharma, Surveyor with respect to the spot verification and Ex.R5 is the report of Sh.Rajesh Wadhawan, Surveyor and Loss Assessor who assessed the loss of vehicle of the complainant at Rs.1,17203.83P. Vehicle was also investigated and recorded statement of witnesses by Royal Associates in their report Ex.R6. It is also not disputed that complainant lodged his claim with the respondent to seek compensation for his damaged vehicle. However, the claim of complainant was repudiated by the respondent-company vide letter dt.22.2.2012 Ex.C2 on the ground that complainant had violated the term and condition of insurance policy by using the vehicle on hire and reward basis.
7. Investigator Royal Associates submitted in his investigation report Ex.R6 that driver was coming from Gohana to Hisar after dropping the passengers. It means there was no passenger in the vehicle at the time of incident except the driver Sandeep. Even, the vehicle having a permit 6+1 passengers. Arguments sake if we considered vehicle was being used for hire and reward basis, but that was not a cause of accident. There is no evidence on the record if there was any connection or nexus of hire and reward of accident. When there was no nexus of hire and reward with the accident in question, act of the respondent company is deficient act to repudiate the claim of complainant simply because of oral versions of hire and reward. Even, all the Surveyors and Loss Assessor found the claim of the complainant to be genuine while submitting their reports. In that view of the things the action of respondent-company in repudiating the claim of complainant vide repudiation 22.2.12 Ex. C2 speaks nothing but shown deficiency in service on the part of respondent and the complaint of complainant deserves acceptance by setting aside the repudiation letter. Surveyor recorded the statements of two persons but these have no evidentory value. Ops have not produced the affidavits of these two persons nor they come in the Forum as a witness. So, there is no authenticity of their statements in the eyes of law. If the vehicle hired and met with an accident but there is no injury has been attributed to any of the passenger or no FIR/DDR has been lodged by the passenger. In these circumstances this version is not believable. Rather from the perusal of all the documents produced by the Ops themselves it appeared that only driver Sandeep was on the vehicle at the time of accident.
8. Complainant is demanding Rs.1,90,000/- but the surveyor approved to the extent of Rs. 1,17203.83P( Minus Rs.2500/-as salvage amount)= 1,14,703.83P. Complainant produced only cash memos of Rs.1,90,000/- but failed to proved it with any other supporting evidence. No doubt, report of surveyor is valuable piece of evidence and the compensation to the complainant should be awarded only on the basis of the report of Surveyor. In the judgment of Hon’ble State Commission, Haryana, Chandigarh dt.20.4.2005 passed in appeal no.1754 of 2002, it was held by their lordships that the Commission has taken a consistent view that the District Forum ought not to award the compensation more than the loss assessed by the surveyor. In view the case law cited as He also produced an another authority Ajay Gupta, Proprietor, M/s Punjab Plywoods Vs.Manager, Allahabad Bank and others 2001, JRC 462, it was held by the Hon’ble National Commission that the surveyor is best person to assess the loss and that the repudiation of the claim of insurance policy ignoring the report of the surveyor could not be justified. We find no reason to disagree with the report of the approved surveyor and loss assessor appointed by the Ops. As such it is held that complainant is entitled for compensation for damage to his vehicle for a sum of Rs.1,14,703.83P.
9. For the reasons and findings recorded above, we accept the complaint of the complainant with costs of Rs.2000/-; set aside the repudiation letter and award a sum of Rs.1,14,703.83P to the complainant in lieu of compensation for the loss and damage to his jeep with interest @ 9% per annum from the date of repudiation dt.22.2.12, till actual payment. Compliance of this order be made within a period of one month. A copy of this order be supplied to the parties free of cost. File be consigned to record room after due compliance.
Announced in open Forum. Presiding Member,
Dated: 15.9.2015. Member. District Consumer Disputes
Redressal Forum, Sirsa.
Rohtash Vs. The Oriental Insurance Company
Present: Sh.R.S.Bhakar, Advocate for the complainant.
Sh.Rakesh Bajaj, Advocate for the opposite party.
Arguments heard. For order to come up on 15.9.2015.
Presiding Member,
Member D.C.D.R.F,Sirsa.
10.9.2015
Present: Sh.R.S.Bhakar, Advocate for the complainant.
Sh.Rakesh Bajaj, Advocate for the opposite party.
Order announced. Vide separate order of even date, complaint has been allowed. File be consigned to record room after due compliance.
Announced in open Forum. Presiding Member,
Dated:15.9.2015. Member. District Consumer Disputes
Redressal Forum, Sirsa.
