PER SMT. JYOTI IYER - HON’BLE MEMBER :
1) This complaint has been filed by the Complainant alleging the Opposite Party for arbitrarily repudiating her valid and legal motor vehicle insurance claim held under the policy by the Complainant. Thereby holding them guilty of deficiency in service and further for directions to the Opposite Party to pay Rs.1,50,000/- the sum insured under the said policy, Rs.10,000/- towards mental agony, Rs.5,000/- towards expenses incurred for visits to the Opposite Party and Rs.5,000/- towards cost of litigation.
2) In brief facts of the case in a nut shell are as follows –
The Complainant is owner of a Tata Sumo vehicle bearing no.MH-12-AF-2264. The Complainant had purchased the said vehicle in the year 2005 and insured the said vehicle with the Oriental Insurance Company having its address at the above mentioned cause title, and accordingly a policy bearing no.121400/2006/234 w.e.f. 16.50 hrs on 15/04/2005 to Midnight on 14/04/2006 for a sum insured to the tune of Rs.1,50,000/- on payment of total premium of Rs.7,205/- to the said insurance company. Thereafter the said motor vehicle policy was issued in the name of the Complainant. Exhibit-A to the complaint is a copy of the said policy issued by the Oriental Insurance Company (hereinafter, the Oriental Insurance Company for the sake brevity and convenience shall be referred to as Opposite Party).
3) It is the contention of the Complainant that on 02/05/05 her Tata Sumo had met with an accident. The Complainant intimated to the Opposite Party vide her letter/notice dated 05/05/05 and accordingly she lodged her claim (Copy of the said notice dtd.05/05/2005 is at Exhibit-B to the complaint) with the Opposite Party, claiming total damage and further requested them to survey the vehicle and confirmed the policy, despite several follow ups & reminders to the Opposite Party they fail to pay the claim of the Complainant. The Complainant further contends that to her utter surprise she received a letter dated 24/03/2006 from the Opposite Party that her claim in respect of her vehicle under the said policy with the Opposite Party has been rejected. Copy of the said repudiation letter dtd.24/03/06 is at Exhibit-C to the complaint. Thereafter, the Complainant, through her advocate served legal notice upon the Opposite Party, however, none of the requisitions made in the said notice were complied with by the Opposite Party. Copy of the notice dtd.04/07/06 is at Exhibit-D to the complaint. Therefore, the Complainant was constrained to lodge the present complaint for holding the Opposite Party guilty for deficiency in their services and further for the above mentioned reliefs.
4) Pursuance to the issuance of notice of this Hon’ble Forum, the Opposite Party appeared and filed their written statement denying the allegations made against them in the complaint. It is the contention of the Opposite Party that the claim of the Complainant for damage to her vehicle was repudiated on account of breach of policy condition of limitation as to use, in as much as the statement of the driver before the police makes it clear that he had taken the persons from village for hire for getting the expenses of the diesel and thus, the vehicle was running for hire and reward at the relevant time contrary to the policy condition of limitation as to use which specifically provides that the policy overs use other than hire and reward and therefore, the Opposite Party Divisional Manager vide his letter dated 24/03/2006 had rightly repudiated the claim of the Complainant and closed the file as no-claim. Therefore, the Opposite Party is not deficient in their services and that the complaint is liable to the dismissed with compensatory costs.
5) We perused the entire record, so also heard the Ld. Advocate for the Complainant at length. It is seen from the Roznama that the Opposite Party has neither filed written arguments not have appeared before this Forum for a period of about 1 year, despite having notice of the fact that the matter is fixed for the oral argument as pointed by the Ld.Advocate for the Complainant through his notice. Hence, we heard the Ld.Advocate for the Complainant & closed the matter for orders on 04/01/2010. However, on 11/01/2010 the Ld.Advocate for the Opposite Party appeared and filed an application requesting his written argument be taken on record for reason cited therein, in the interest of justice we allowed the said application and took the written argument of the Opposite Party on record and thereafter proceeded to pass orders on the basis of material before us and so also considered the rival contentions raised by both the parties. Our observations, finding, reasons are as follows –
6) Admittedly the Complainant is the registered owner of vehicle Tata Sumo bearing no.MH-12-AF-2264 as reflected in the R.C Book. The said vehicle is insured with the Opposite Party under the policy no.121400/2006/234 w.e.f. 16.50 hrs on 15/04/2005 to Midnight on 14/04/2006 for a sum of Rs.1,50,000/-. Complainant has paid premium of Rs.7,205/- to the Opposite Party towards the said policy. There is also no dispute that the said vehicle belonging to the Complainant met with an accident on 02/05/2005 near Shirpod Gaon, Panvel and at the time of accident one Mr.Kisan Madhukar Matal was driving the said vehicle which was insured with the Opposite Party.
7) The Complainant has hired the services of the Opposite Party for consideration and further more the service rendered by insurance companies is a service within the meaning of section 2(1)(o). As in the present case in hand, the Complainant has paid premium of Rs.7,205/- to the Opposite Party and therefore, the Complainant is a consumer within the ambit of definition 2(1)(d) of the Consumer Protection Act, 1986 and further more definition of the term service U/s 2(1)(o) covers the services of the insurance company under the Consumer Protection Act, 1986 after the judgement delivered by the Hon’ble National Commission M/s.Harsoliya Motors and any deficiency or default in rendering service on the part of service provider would bring them under the preview of the Consumer Protection Act, 1986 for deficiency in service and unfair trade practice, etc.
8) The only issue which requires our consideration in this matter is that whether the Opposite Party was justified in repudiating the claim of the Complainant vide their letter dated 24/03/2006 addressed to Complainant. On perusal of letter dated 24/03/2006 it is clearly reflected that the Complainant had submitted the affidavit of driver Mr.Kishan Madhukar Matal who was driving the said vehicle when the accident occurred i.e. at the relevant time. However the Competent Authority being unable to accept the affidavit of the said driver i.e. Mr.Kishan Madhukar Matal thereafter closed the filed as no claim. The Opposite Party thereafter in their written statement took a stand that the claim of Complainant for damage to her vehicle was repudiated on account of breach of the policy condition of limitation as to use, as the statement given by the driver i.e. Mr.Kishan Madhukar Matal before the police that he had taken the persons from village for hire for getting the expenses of the diesel. The said vehicle was thus running for hire and reward at the relevant time contrary to the policy condition of limitation as to use and exempted from insurance cover if the said vehicle was given for hire and reward. On persual of terms & conditions of the said policy of the Opposite Party under which the Complainant’s vehicle is covered. It is seen that the condition 3(a) under the GENERAL EXCEPTIONS which is reproduced hereunder :-
The Company shall not be liable under this policy in respect of
1…
2…
3 Any accidental loss damage and/or liability caused, sustained or incurred whilst the vehicles insured in herein is :
(a) being used otherwise than in accordance with the ‘Limitation as to use’.
We are of the well considered view that the above referred condition appears to be a blanket condition as it does not specify the limitations as to use and therefore arbitrarily. However, bearing in mind the stand taken by the Opposite Party that the said vehicle was given for hire and reward therefore, it violates the condition referred above under clause 3(a). It is pertinent to note that it is nobody’s case that the said driver Mr.Kishan Madhukar Matal was in employment of the Complainant. On the contrary prior also the said driver Mr.Kishan M.Matal had vide his affidavit dated 16/12/2005 submitted to the Opposite Party reiterated the same stand taken by him in his subsequent affidavit dated 07/03/2008 filed before this Forum. The Complainant and the said driver Mr.Kishan Madhukar Matal have in their respective affidavit’s dated 07/03/2008 categorically stated that the said vehicle was given to Mr.Kishan M.Matal solely on the basis of friendship as he was Complainant’s son very good friend and the sole purpose for which the said vehicle was handed over to Mr.Kishan Matal was for his relatives marriage which was to be held at Matal’s native place and further it is stated that the said vehicle was neither driven by Mr.Kishan M.Matal as an employee nor under any agreement of hire and reward. The driver Mr.Kishan M.Matal further clarified in the said affidavit that due to accident he was under severe stress, fear, mental tension and depression therefore, he had incorrectly stated to the police just to save his skin that he was driving the said vehicle for want of adjusting the diesel expenditure and that no monetary consideration in cash or in kind was received from the fellow travellers traveling with him on his return journey from his native place and that the above statement given to the police on 03/05/2005 is false and incorrect and bears no truthness in it.According to Opposite Party, contention the police statement given by the said driver that he had for getting the expenses of diesel allowed certain person to accompany him in the said vehicle from his village to Mumbai and since on this basis the Complainants claim was repudiated as he had breached the terms and condition of the policy, regarding limitation as to use. Though the driver Mr.Kishan M.Matal has in his statement has given to the police that the said co-passengers were taken from village to Mumbai in his vehicle for adjusting the diesel expenditure. We do not find much substance in the same as the said driver has vide his affidavit dated 16/12/2005 retracted his statement given to the police. It is also pertinent to note that the Opposite Party in para no.6 of their written statement have stated that the police while investigating the offence, recorded the statements of the co-passengers in the said Tata Sumo and also the driver of the Tata Sumo. The said driver in his statement has stated that for getting the expenses of the diesel, he took the persons from the village who were coming to Mumbai i.e. Ramakant Pandurang Ranjane, Subhash Shankar Dhanawade, Raghunath Dandane, Monohar, Jaywant, Mahendra. The Opposite Party has only produced the statement of the driver Mr.Kishan Madhukar Matal which is at Exhibit-‘F’ to their written statement. Though the Opposite Party has sought leave and relied and referred to the said statements of the other co-passengers in their possession traveling in the said vehicle at the time when the said vehicle met with an accident till date no statements of the other co-passengers confirming the contention raised by the Opposite Party that the said vehicle was used for hire and reward and that consideration was paid by the other co-passengers to the said driver is proved. We failed to understand what has refrained the Opposite Party from producing the said statements of the co-passengers in support of their case. There is no documentary evidence on record in the form of statements of the other co-passengers who accompanied the said driver from the village to Mumbai corroborating the version of the Opposite Party that the said vehicle was used for hire and further that the co-passengers had paid consideration to the said driver towards their travel when the vehicle met with an accident nor any other document/agreement that the said vehicle was given for hire and reward.Hence, the contention raised by the Opposite Party is devoid of any merit that the said vehicle was used for hire and reward.
9) In view of the above discussion we are well considered view that the Opposite Party is trying to evade the liability created under the statue and are coming out with flimsy and lame excuses/grounds for repudiating the legal and valid claim of the Complainant. Hence, contention of the Opposite Party that the driver had used the vehicle for hire and reward is not sustainable and untenable in law. Therefore, we are of the well considered view that the Opposite Party is deficient in their service for repudiating the valid and legal claim of the Complainant under the said policy.
10) Looking to the material on record on perusal of Exhibit-‘E’ to the written statement which is a preliminary report dated 28/05/2005 by one Mr.Harshad Parekh, appointed as Surveyor and loss assessor by the Opposite Party. In the said preliminary report it is categorically stated that the subject vehicle is badly damaged from Front, Top, an side end i.e. Entire Body Chassis, Upholstery Glasses, Suspension Parts were found damaged and the liability of the insured is assessed to the tune of Rs.1,10,000/- on repair basis after calculation of salvage, liability on total loss to the tune of Rs.89,000/- and worked out the net liability of the insurer to the tune of Rs.64,000/- It is pertinent to note that the Opposite Party has with their written statement as Exhibit-‘E’ produced the final survey report conducted by Harshad Parekh dated 25/08/2005. On perusal of the said report it is seen that the same stand taken in the preliminary report dated 25/05/2005 has been reiterated in the final report dated 25/08/2005 by the same surveyor and the second opinion taken from Mr.Milind H.Sinkar, the Automobile Surveyor and Loss Assessor has also reiterated the same facts taken by Mr.Harshad Parekh in his report no.12124 dated 25/08/2005. Keeping in view the observation made in the said report regarding badly damaged condition of the vehicle and so also the photographs on records which clearly indicate that the vehicle was badly damaged. We are of the well considered to view that it would be just and reasonable to allow the total loss liability worked out by the surveyor in their above referred reports. There is not the slightest of doubt in our minds that the Complainant must have gone through immense mental agony and torture and till date is going through the same as her legal and valid claim has been repudiated arbitrarily and further that the Complainant was so much constrained that she had to knocked the doors of this Forum for Redressal of her grievances and she needs to be compensate for the same to achieve the need of justice. Hence, we pass the following order -
O RD E R
1.Complaint no.480/2006 is allowed in following terms.
2.Opposite Party is directed to pay an amount of Rs.89,000 (Rs.Eighty Nine Thousand Only) to the Complainant.
3.Opposite Party is directed to pay an amount of Rs.5,000/- (Rs.Five Thousand Only) towards mental agony and torture to the Complainant.
4.Opposite Party is directed to pay Rs.3,000/- (Rs.Three Thousand Only) towards cost of litigation to the Complainant.
5.Opposite Party is directed to comply with this order within 4 weeks from the receipt of the copy of this order. In case of failure to pay aforesaid amount
within stipulated period, then the Opposite Party shall be liable to pay interest on Rs.89,000/- @ 9 % p.a. till realization of entire amount to the Complainant.
6.Certified copies of this order be furnished to the parties.
