Haryana

StateCommission

A/555/2017

M/S LALLY AUTOMOBILE - Complainant(s)

Versus

ORIENTAL INSURANCE CO.LTD. - Opp.Party(s)

AFTAP SINGH

21 Nov 2018

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION HARYANA, PANCHKULA

                                                                                 

                                                         First Appeal No.555 of 2017

                                                 Date of Institution: 11.05.2017

                                                               Date of Decision: 21.11.2018

 

M/s Lally Automobiles, 117/8 KM Milestones GT Road, Karnal through its authorized Signatory Mr.Hamraj Singh, Service Manager, Karnal Branch, Karnal.

…..Appellant

Versus

 

The Oriental Insurance Company Ltd., Mohali (Punjab) through its Divisional Manager, Karnal.

                   …..Respondent

CORAM:             Mr. Ram Singh Chaudhary, Judicial Member.

Present:              Shri Aftab Singh Khara, Advocate for appellant.

                              Mr.D.C.Kumar, Advocate for the respondent.

                                                   O R D E R

RAM SINGH CHAUDHARY, JUDICIAL MEMBER:

          Delay in filing the appeal is condoned for the reasons stated in the application filed for condonation of delay.

2.      The present appeal No.555 of 2017 has been filed against the order dated 11.01.2017 of the District Consumer Disputes Redressal Forum, Karnal (In short “District Forum”) in complaint case No.27 of 2012, which was dismissed.

3.       The brief facts of the case as per the complainant-appellant are that the complainant firm was doing the business of sale and service of Honda City cars at its showroom know as Courtesy Honda. The firm got insured the car with opposite party vide policy bearing No.231400/31/2011 dated 18.04.2010.  The vehicle  met with an accident.  FIR was lodged on 19.08.2010.  The employee sitting in the vehicle suffered injuries and the vehicle was badly damaged.  Intimation about accident was given to O.P.  Surveyor was appointed, who inspected the vehicle and submitted survey report. The complainant spent Rs.8,85,593/- on repair of the vehicle. Claim was lodged with the O.P., but,  insurance company did not settle the claim despite legal notice dated 26.07.2011.  Thus there was deficiency in service on the part of the O.P.

4.      In its written version, apart from raising preliminary objections, regarding the maintainability of the complaint, territorial jurisdiction, estoppal, accruing cause of action, commercial purpose etc. were also raised and requested to dismiss the complaint.

5.      On merits, it was alleged that the Mohali office of O.P. had given the Motor Trade Road risk Class F package policy to the complainant for the period 18.04.2010 to 17.04.2011 covering 5 Trade certificates for total amount of Rs.48,43,567/- including trade certificate No.0116 for Rs.7,77,136/- in addition to basic OD cover. The OP also gave risk basic own damage beyond Rs.25000/-.  As per terms and conditions of the policy, the complainant was only entitled to Rs.1,51,176/-.  The accident took place on 14.08.2010, whereas the intimation was received by the office of the OP on 27.09.2010 after the delay of 43 days. The policy waspurchased  by the complainant from Mohali Branch and the accident took place within the area of Police Station Barauda Distt. Sonepat. The vehicle was being used by the complainant for commercial purpose.    Thus there was no deficiency in service on the part of the O.P.

6.      After hearing both the parties, the learned District Forum, Karnal dismissed the complaint vide order dated 11.01.2017.

7.      Feeling aggrieved therefrom, complainant-appellant has preferred this appeal.

8.      This argument have been advanced by Sh.Aftab Singh Khara, the learned counsel for the appellant as well as Sh.D.C.Kumar, the learned counsel for the respondent. With their kind assistance the entire records as well as the original record of the District Forum including whatever the evidence has been led on behalf of  both the parties had also been properly perused and examined.

9.      It is not disputed that the vehicle was insured with the opposite party.  It is also not disputed that the insured value of the vehicle was Rs.7,77,l36/-.  It is also not disputed that the estimate value of the repair work was Rs.8,85,593/-. It is also not disputed that the surveyor assessed the loss  on cash loss basis for Rs.4,25,000/-.

9.      It has been argued by Sh.D.C.Kumar,  the learned counsel for the respondent that the complainant used the vehicle for commercial purpose as the vehicle was demo car and as such, the complainant was not consumer as per Consumer Protection Act, 1986. Another contention was that the complainant was not having territorial jurisdiction as complainant purchased the policy from Mohali Branch and accident took place within the area of  Police Station Barauda Distt.Sonepat, as such, the complaint be dismissed as prayed for.

10.    Contrary to it, the learned counsel for the appellant-complainant vehemently argued that the vehicle was damaged and as per surveyor report, he was entitled to Rs.4,25,000/- on cash loss basis. Learned counsel for the appellant-complainant has placed on record judgement of  Hon’ble National Commission in case titled Harsolia Motors vs National Insurance Company Limited  2005 (1) CPC 53 and Mahendra Construction Vs. Oriental Insurance Co. ltd. 2016 (4) CPR 668, wherein it has been observed that even if commercial policy is taken for indemnity for loss suffered due to various perils, no question of trading in insurance policies by insured.  It is made evidently clear that services may be for any connected commercial activity yet it would be within the purview of the Consumer Protection Act,1986.

11.    As far as the question of territorial jurisdiction is concerned, the learned counsel for the appellant-complainant stated that the insured name is M/s Lally Automobiles Private Limited and the insured was at Karnal, therefore the present complaint is maintainable at Karnal.

12.  Learned  counsel for the respondent further vehemently argued that the insurance company has received less premium, so the complainant is not entitled for any claim.

13.    Contrary to it, the learned counsel for the appellant-complainant has argued that as per the order of Hon’ble National Commission in United India Insurance Co. Ltd. Vs. Lanco Rani Joint Venture & anr.  2013 (2) C.P.J. 428, wherein it was held that  insurance company cannot unilaterally alter terms of contract to disadvantage of consumer by taking shelter behind tariff as if same were sacrosanct and cemented.  The insurance company cannot put this weapon upon the complainant.

14.    Even otherwise, as per the policy, the remark of the manager that wrong premium has been charged by the underwriter officer to the complainant, therefore, the claim cannot be paid more than Rs.1,51,176/- of the IDV value i.e.Rs.7,77,136/-.    Since the premium was calculated by the official of the insurance company itself and the accident of the insured vehicle took place and the intimation regarding wrong calculation was not informed to the complainant, it came to the knowledge of the insured and the insurer after the claim was filed. So, therefore this ground for charging less premium by the insurance company cannot be burdened upon the gullible consumer.  Since the premium was deposited by the complainant to the opposite party. Thus, the complainant is entitled indemnification for total loss i.e. Rs.7,77,136/-.

12.    In D.N.Badoni Vs. Oriental Insurance Co. Ltd. 1 (2012) CPJ 272 (NC) Hon’ble National Commission held that surveyor’s report has significant evidentiary value unless, it is proved otherwise.

13.    There is no evidence contrary to the report of the surveyor and therefore due weightage has to be given to it. So, it is held that the insurance company is liable to pay Rs.4,25,000/- to the appellant-complainant.

12.              As a sequel to above discussion, the present appeal is hereby accepted, the opposite party-respondent is directed to pay the 4,25,000/- to the complainant-appellant alongwith interest @ 12%  per annum from the date of loss till the date of actual payment.   In case, there is a breach in making payment within the stipulated period  of  three months, in that eventuality, the complainant would further be entitled to get the interest @ 18% per annum, for the defaulting period.   The complainant is also entitled  of Rs.1,00,000/- for compensation of mental agony and physical harassment.  In addition, the complainant is also entitled of Rs.21,000/-  as litigation charges.  It is also made clear that for non-compliance, the provisions enshrined under section 27 of the C.P.Act  would also be attractable. 

 

November  21st, 2018                                       Ram Singh Chaudhary,                                                                          Judicial Member                                                                                       Addl.Bench                 

S.K.