Oriental Insurance Company Limited V/S Manoj Kumar S/o Bhartu Ram - Consumer Court Case

Haryana

Karnal

294/2012

Manoj Kumar S/o Bhartu Ram - Complainant(s)

Versus

Oriental Insurance Company Limited - Opp.Party(s)

Sanjeev Aneja

27 Jan 2016

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM KARNAL.

Complaint No.294 of 2012

Date of instt.: 6.06.2012

Date of decision: 29.01.2016

Manoj Kumar son of Sh.Bhartu Ram resident of village Urlana Kalan tehsil Madlauda district Panipat and now residing at Ward No.15, Shiv Colony, Safidon district Jind.

. ……..Complainant.

Vs.

1.The Oriental Insurance Company Ltd. through its Office In-charge, Oriental House, Ashaf Ali Road, New Delhi – 110002.

2.The Oriental Insurance Company Ltd. through its Branch Manager, Karnal.

3.Mahindra & Mahindra Finance Company Services Ltd. through its Branch Manager, office at Sector 11-12, Panipat.

……… Opposite Parties.

Complaint u/s 12 of the Consumer

Protection Act.

Before Sh.K.C.Sharma……….President.

Sh.Anil Sharma…….Member.

Present:- Sh.Sanjeev Aneja Advocate for the complainant.

Sh.Rohit Gupta Advocate for the Opposite Party No.1 and 2.

Sh.Vineet Rathore Advocate for the Opposite Party no.3.

ORDER:

This complaint has been filed by the complainant u/s 12 of the Consumer Protection Act 1986, on the averments that he got insured his car Indigo Manga Aura Qjet-III bearing registration No. HR-06U-9103 with the Opposite Party No.1 for the period of 4.2.2010 to 3.2.2011, vide cover note No.137272. On 3.4.2010 the car met with an accident at Safidon and was totally damaged. The same was shifted to Rohtak with the help of crane. Agent of the Opposite Party no.1 and 2 namely Rajesh Kakkar was informed about the accident on the same day. Thereafter, Opposite parties no.1 and 2 appointed Shri B.D.Dhillon as surveyor, who inspected the damaged vehicle at Rohtak. Opposite party no.1 and 2 further appointed M/s Royal Associates, investigating agency, Kurukshetra and representative of the said investigating agency visited his house on 31.3.2011. He told the real facts to the investigator that the vehicle was used by him for personal use and at the time of accident, his cousin Balvinder son of Raj Kumar was sitting in the car alongwith driver and he suffered injuries in the accident. Narender driver also received injuries in the accident. Investigator, obtained his signatures and signatures of Karambir, Narender and Balvinder on some papers and promised that he will submit the report and then the claim would be paid to him. Lateron, the investigator filed false report regarding use of the car for passengers, though the same was used by him for personal use. It has further been alleged that the complainant visited the office of Opposite Party No.1 and 2, a number of times for payment of his claim, but the matter was delayed on one pretext or the other.The Opposite Party no.3, who financed the purchase of car started calculating interest and harassing him. Ultimately, he served legal notice dated 7.6.2011 upon the Opposite parties and then on 15.6.20121 the Opposite Party No.1 and 2 repudiated his claim illegally. The act of Opposite party no.1 and 2 amounted to deficiency in services, which caused him mental harassment apart from financial loss.

2. Notice of the complaint was given to the Opposite Parties. The Opposite Paty no.1 and 2 filed joint written statement controverting the claim of the complainant. Objections have been raised that complainant has got no locus standi and cause of action to file the present complaint; that complicated questions of law and facts are involved in the present case which cannot be decided by this Forum in summary manner; that the complaint is not maintainable in the present form and that there was no deficiency in services on the part of Opposite Party no.1 and 2.

On merits, it has been submitted that Mr.B.S.Dhillon, Surveyor and Loss Assessor who conducted the survey, assessed the loss to the tune of Rs.5,98,924/- on total loss basis subject to terms and conditions of the insurance policy. Royal Associates, Kurukshetra, was appointed as investigator. During investigation, it transpired that vehicle of the complainant was insured as a private vehicle, but in utter disregard to the terms and conditions of the policy, the same was being used for commercial purposes in routine. In fact, the vehicle was being plied on hire as taxi and on the date of accident also, the same was being used for commercial purpose. Therefore, the claim of the complainant was rightly repudiated, vide letter dated 25.5.2011 and the same was conveyed to him. The other allegations made in the complaint have been specifically denied.

3. The Opposite Party no.3 filed written statement. It has been submitted that the complainant was financed an amount of Rs.4.00 lacs for purchasing of tata Indigo Manga Aura Qjet-III bearing registration No. HR-06U-9103 and the loan agreement was executed between the parties regarding the same. The complainant had stopped paying installments and did not adhere to the repayment schedule, therefore, the Opposite Party no.3 is entitled to recover the outstanding loan amount and it has first right to get insurance claim.

4. In evidence of the complainant, his affidavit Ex.CW1/A and documents Ex.C1 to Ex.C23 have been tendered.

5. On the other hand, in evidence of the Opposite Parties, affidavit of Pankaj Rana Ex.OP1/A and documents Ex.OP1/B to Ex.OP1/C and Ex.OP2/B to Ex.OP2/J have been tendered.

6. We have appraised the evidence on record, the material circumstances of the case and the arguments advanced by the learned Counsel for the parties.

7. There is no dispute between the parties regarding the fact that car of the complainant was insured with the Opposite Party no.1 for the period of 4.2.2010 to 3.2.2011 and the same was totally damaged on account of accident which took place on 3.4.2010.The claim of the complainant was repudiated by the Insurance Company on the ground that the car was being plied on hire as taxi in routine and on the date of accident also the same was being used for commercial purpose. The insurance company relied upon the report of investigator and the statements of complainant, Narender Kumar and Karambir recorded during investigation, the copies of which are Ex.OP2/B to Ex.OP2/F.

8. The learned counsel for the complainant vehemently argued that the car was purchased by the complainant for his personal use and was never plied as taxi and for commercial purpose. Even on the date of accident, no passenger on hire was being taken in the car, rather the same was being driven by driver Narender and his cousin Balvinder was sitting with him. It has further been contended that the investigator had obtained signatures of the complainant, Karambir, Narender and Balvinder on some papers on the pretext that he would submit report in his favour and the claim would be paid to the complainant very soon, but lateron he misused those papers and prepared false report. Even the Opposite parties have not got proved the report of investigator, therefore, the report of the investigator and statements allegedly recorded by him cannot be relied upon.

9. To wriggle out of the aforesaid contentions, the learned counsel for the Opposite Parties contended that the complainant has not disputed the fact that the investigator had investigated the matter and recorded the statements of complainant, Karambir and Narender. They have not denied their signatures on the statements. Therefore, the report of investigator and the statements recorded by him during investigation cannot be discarded. It has further been argued that as per hospital record, Naresh and Balvinder were given treatment in the hospital and Narender the driver of the car did not get any treatment which shows that there were three persons in the car at the time of accident. This fact also indicates that the car was being plied as taxi for commercial purpose at the time of accident, therefore, the claim of the complainant was rightly repudiated.

10. The complainant , Karambir and Narender have not disputed their signatures on their statements recorded by the investigator. The affidavits of Karambir, Narender Kumar Ex.C22 and Ex.C23respectively are to the effect that they told the surveyor that the complainant was using the car for his personal use, but the surveyor assured that if they would make the statements that the car was being used for passengers then the claim would be passed. It is not the case of the complainant that his signatures and signatures of Karambir and Narender were obtained on blank papers. The affidavits of Karambir and Narender also lend support to the plea of the Opposite parties that they had made the statements before the investigator , the copies of which are Ex.OP2/E to Ex.OP2/F. Under such circumstances, the plea of the complainant that statements were got signed on the false assurance given by the investigator is an afterthought and as such cannot be accepted. The report of investigator, was based upon the enquiries made by him from police, hospital and the statements recorded during investigation. Therefore, there is no reason to discard the report of the investigator, according to which car was being used by the complainant on hire as taxi and even at the time of accident, the same was being used for commercial purpose.

11. Faced with such situation, the learned counsel for the complainant put a great thrust on the contention that even if there was violation of condition of the insurance policy, the complainant is entitled to compensation on non standard basis. In support of his contention, he placed reliance upon Amalendu Shaoo Vs. Oriental Insurance Company Ltd. ii (2010) CPJ 9 (SC) wherein the claim was repudiated by the insurance company on the ground that vehicle was being driven on hire, whereas according to the policy terms, such use was not permitted and the insurance company was not liable to any compensation for such unauthorized use . Hon’ble Supreme Court discussed the decision of Hon’ble National Commission in New India Assurance Company Ltd. Versus Narayan Prasad Apparasad Pathak 2006 (II) CPJ 144(NC) wherein guidelines by the Insurance Company about settling claim on non standard basis were considered. As per guideline(iii) in case of breach of warranty condition of the policy including limitation as to use , percentage of settlement was 75% of the admissible claim. Under those circumstances it was held that insurance company cannot repudiate the claim in toto. Direction was issued to insurance company to pay consolidated sum of Rs.2,50,000/- even the compensation claimed was Rs.5.00 lacs.

The learned counsel for the complainant also referred to United India Insurance Company Ltd. Vs.Deen Dayal, IV(2009) CPJ 218 wherein vehicle meant for carrying goods was carrying passengers at the time of accident. Keeping in view the guidelines issued by the General Insurance Corporation , the Hon’ble National Commission directed the insurance company to settle the claim on non standard basis and to pay 75% of the loss assessed by the surveyor.

12. The proposition of law laid down in the aforediscussed authorities squarely covers the facts of the present case as well, wherein there was breach of condition of the policy as the car of the complainant which was insured as a private vehicle was being used for commercial purpose for carrying passengers. Therefore, the claim of the complainant is to be settled by the insurance company on non standard basis as per guide lines issued by the General Insurance Corporation. As per the report of surveyor Ex.OP2/G, he recommended loss on total loss basis at Rs.5,98,924/-.The copy of the insurance policy Ex.PW2/J shows that the value of the vehicle was mentioned as Rs.5,99,242/-.The claim of the complainant is to be settled on non standard basis i.e. 75% of the loss. The repudiation of the claim of the complainant altogether by the Opposite Parties amounted to deficiency in services on their part.

13. As a sequel to the foregoing discussion, we accept the present complaint and direct the Opposite Parties no.1 and 2 to pay 75% of Rs.5,98,924/-( on non standard basis) to the complainant alongwith interest @ 9% per annum from the date of filing of the present complaint i.e.6.6.2012 till its actual realization. The Opposite Parties no.1 and 2 shall make the compliance of this order within a period of thirty days from the date of receipt of the copy of this order. The parties concerned be communicated of the order accordingly and the file be consigned to the record room after due compliance.

Announced
dated:29.01.2016

(K.C.Sharma)

President,

District Consumer Disputes

Redressal Forum, Karnal.

(Anil Sharma )

Member.