Haryana

Yamunanagar

CC/251/2013

Bhupinder Singh S/o Shingara Singh - Complainant(s)

Versus

Oriental Insurance Company Ltd. - Opp.Party(s)

Karanjeet Singh

06 Sep 2017

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, YAMUNA   NAGAR AT JAGADHRI.

                                                                                    Complaint No.251 of 2013.

                                                                                    Date of institution:26.3.2013.

                                                                                     Date of decision:6.9.2017.

 

Bhupinder Singh son of Shri Shingara Singh, aged about 48 years, resident of village & P.O. Kharwan, tehsil Jagahdri, District Yamuna Nagar.

 

                                                                                                            …Complainant.

                                    Versus

The Oriental Insurance Co. Ltd. branch office: opp. Hindu Girls Collect 1^st floor, Court Road, Jagadhri, through its Branch Manager..

 

                                                                                                             … Respondent.

BEFORE:       SH.SATPAL, PRESIDENT.

           SH.S.C.SHARMA, PRESIDING MEMBER.      

                       SMT. VEENA RANI SHEOKAND, MEMBER.

 

Present: Sh. Karanjeet Singh, Advocate, counsel for complainant.   

              Sh. Parmod Gupta, Advocate, counsel for OP.

 

ORDER: (SATPAL, PRESIDENT)

                                   

1.              Complainant has filed this complaint Under Section 12 of the Consumer Protection Act 1986 against the respondent (hereinafter the respondent shall be referred as OP).

2.                     Brief facts of present complaint are that the complainant is owner of vehicle No.HR58-B-0665 Tata 2515 which has been used for earning his livelihood.  The above said vehicle was insured with the OP-company vide policy No.261701/31/2012/4715, dated 16.8.2011 valid from 16.8.2011 to 15.8.2012.  On 16.6.2012, the vehicle of the complainant started journey after loading ply boards from Neelgiri Wood Crafts, village Jorian, Distt. Yamuna Nagar to Santosh Timber Traders, Andheri (W) Mumbai through Deepak Transport Company, Yamuna Nagar and bill No.143, dated 14.6.2012 was also issued.  The vehicle was being driven by driver namely Sh.Charan Singh s/o Sh.Paras Ram, resident of village & P.O.Rithal, Distt. Rohtak who was having valid driving licnese No.9476/TV/Z/2011 valid up to 25.7.2014.  On 16.6.2012 vehicle started journey from Yamuna Nagar driven by Sh.Charan Singh and his brother Sh.Ashok Kumar who stayed at their residence in village Rithal and when they started journey on 17.6.2012 and reached at Drain No.8, near Chuchakvas, Distt. Jhajar a Tralla bearing No.HR55-G-4525 came from the front side which was being driven  by  the  driver  in  rash  and negligent manner without caring for the traffic rules in a very high speed and hit the vehicle of the complainant, due to which the driver and his brother received injuries and two other persons, namely Kitabi s/o Sh.Bhay Ram and Kala s/o Sh.Manga r/o village and P.O.Rithal died in the said accident which were traveling in the vehicle.  An FIR No.175 was lodged with the Police Station, Beri, Distt. Jhajjar u/s 279/337/304-A IPC and in this accident the vehicle of the complainant was badly damaged.  Information was given to the OP immediately on the same day on which the OP appointed its surveyor who assessed the loss to the tune of Rs.169111/-.  The complainant also got his vehicle inspected from the Saini Motor Works, Aggarsain Chowk, Jagadhri and from Kaka Singh Body Maker, Saharanpur road, Yamuna Nagar on 19.6.2012 who assessed the loss to the tune of Rs.4,83,900/- (Rs.1,54,150/-+Rs.93,300/-+Rs.1,25,000/-) as the surveyor of the company did not assess the loss factually.   The complainant fulfilled entire formalities as demanded by the company in order to release the claim of the complainant’s vehicle but the OP-company lingered on the same on one pretext or the other.  The complainant received a letter dated 22.12.2012 from the OP-company by which they repudiated the claim of the complainant on flimsy grounds.  Hence, this complaint alleging that there is deficiency in service on the part of the OP and prayed for acceptance of complaint by directing the OP to release the claim amount of Rs.4,83,900/-  along with up to date interest and further to pay Rs.1,00,000/- as compensation for mental agony and harassment as well as Rs.11,000/-as cost proceedings.

3.                     Upon notice the OP appeared and filed their written statement by taking some preliminary objections that a complicated question of law and fact involved in this case, which can not be decided in summarily, so this Forum has got no jurisdiction to entertain and try the present complaint; the complainant has no locus standi to file the present complaint; the complainant is stopped from filing the present compliant; the complainant has no cause of action to file the present complaint; the complainant has not come to the Forum with clean hands and has concealed the true and material facts from this Hon’ble Forum; the complainant lodged an OD claim of truck No.HR-58B-0665 which allegedly met with an accident in the area of P.S.Beri, Distt. Jhajjar and on investigation and after going through the documents it revealed that the complainant has violated the terms and conditions of the policy and has violated the limitation as to use clause by permitting the passengers namely Kitabi son of Bhay Ram caste Nai and Kala Ram son of Sh.Mana, caste Jat and they died in the said accident and moreover the complainant has not disclosed this fact in the claim form and has suppressed the said facts and as such the claim was repudiated rightly and legally as such the complaint is not maintainable.  On merits the OP admitted that the complainant was owner of the vehicle in question.  It has further been submitted that an intimation of accident was received and Sh.Vinod Kumar Wadhwa, Independent Surveyor was appointed, who gave his fact finding report dated 23.8.2013 by which he has assessed the loss of Rs.1,69,111/- subject to terms and conditions of the policy and since the complainant has violated the terms and conditions of the policy and limitation as to use as detailed above, so the claim has rightly, legally and validly repudiated the and intimation to this effect was sent to the complainant on 22.12.2012.  As such there is no deficiency in service on the part of the OP and prayed for dismissal of complaint with costs.  

4.                     To prove his case the complainant tendered into evidence his own affidavit as annexure CW/A, documents such as copy of policy as annexure C.1, copy of fitness certificate as annexure C.2, Form No.47 as annexure C.3 & C.4, copy of bill dated 14.6.2012 of Deepak Transport Co. as annexure C.5, copy of Driving License of Charan Singh as annexure C.6, copy of FIR as annexure C.7, copy of estimate of M/s Saini Motor Works as annexure C.8, copy of estimate of Kaka Singh Body maker as annexure C.9, copy of letter dated 22.12.2012 as annexure C.10, copy of bills dated 7.8.2012 as annexure C.11 & C.12, copy of bill dated 18.6.2012 as annexure C.13, copy of bill for Rs.90,450/- as annexure C.14, copy of bill for Rs.45,000/- as annexure C.15, copy of bill for Rs.99,459/- as annexure C.16, copy of bill for Rs.1,20,159/- as annexure C.17 and copy of body repair bill for Rs.1,25,000/- and closed his evidence.

5.                     On the other hand, the learned counsel for the OP tendered into evidence affidavit of Sh. Abhas Toppo as annexure RW/A, affidavit of Shri Vinod Kumar Wadhwa, Insurance Surveyor as annexure RW/B and documents such as copies of policy as annexure R.1 & R.2, copy of repudiation letter dated 22.12.2012 as annexure R.3, copy of surveyor report as annexure R.4, copy of claim form as annexure R.5 and copy of claim intimation as annexure R.6 and closed the evidence on behalf of the OP.

5.                     We have heard the learned counsel for the parties and gone through the pleadings as well as documents placed on the file.  This fact is admitted that the complainant is owner of the above said truck which was duly insured with the OP-Insurance Company and the said truck met with an accident on 17.6.2012 near Chuchakwas, Distt. Jhajjar.  This fact is also admitted that an FIR with regard to the alleged accident was lodged at Police Station, Beri, Distt. Jhajjar and immediately intimation was given to the OP.  On receiving the intimation, the OP appointed surveyor who assessed the loss to the tune of Rs.1,69,111/-.  The counsel for the complainant argued that the report given by the surveyor is wrong as the complainant had spent Rs.4,83,900/- and even after submission of report by the surveyor the OP repudiated the genuine claim of the complainant on false and frivolous grounds as the persons travelling in the vehicle were not the passengers.  Learned counsel for the complainant draw the attention of this Forum towards authority reported in 2016(1) RCR (Civil) P.794, S.C. titled as Lakshmi Chand vs. Reliance General Insurance Co. wherein it has been held that, “ Section 12-Five persons travelling in goods carrying vehicle which has seating capacity of 1+1-Vehicle met with an accident on account of rash and negligent driving of the offending vehicle by its driver-Insurance company liable to pay compensation for the damage caused to the vehicle”.  i) Company has not produced any evidence on record to prove that the accident occurred on account of the overloading of passengers in the goods carrying vehicle-Further held-ii) For the insurer to avoid his liability, the breach of the policy must be so fundamental in nature that it brings the contract to an end.2004 (2)RCR(Civil) 114(SC)1996(3)RCR (Civil) 304 SC Relied.  It has further been argued that the complainant requested the OP a number of times to release the claim amount to him but of no use, which amounts to deficiency in service on the part of the Op and prayed for acceptance of complaint.

6.                     On the other hand, the learned counsel for the OP argued that no doubt the complainant had lodged OD claim of Truck No.HR-58B-0665 which was allegedly met with an accident for which the surveyor was appointed who submitted his report and assessed the loss of Rs.1,69,111/- but after going through the documents it revealed that the complainant violated the terms and conditions and also violated the limitation as to use clause by carrying the passengers namely Kitabi s/o of Sh.Bhay Ram and Kala s/o Sh.Mana.  Moreover, the complainant did not disclose this fact in his claim form and has suppressed the said facts and draw the attention of this Forum towards authority reported in 2016(1) CLT P.244, titled as M/s BTM Industries Ltd. vs. New India Assurance Co. ltd. wherein it has been held that, “the Court/Tribunal certainly has to take into consideration the conduct of the party which invokes its jurisdiction and if it finds that the litigant has tried to mislead or hoodwink, it must necessarily prevent him from abusing its process by refusing to hear him on merits of the case”.  Further draw the attention towards authority reported in 2017(2) CLT P.185 titled as Oriental Insurance Co. ltd. vs. Dinesh chander, wherein it has been held that, “Insurance Claim-Plea of insurance company that at the time of accident one extra gratuitous person was sitting upon JCB machine-Held-That onus to prove that one extra person was sitting upon JCB was upon insurance company being issue of fact”. Counsel for the OP also draw the attention of this Forum towards authority reported in 2017 (1) CLT P.42 titled as New India Insurance co. Ltd.vs. Parshotam Kumar, wherein it has been held that “The repudiation of the insurance claim on the ground that the truck at the relevant time was being driven with the excessive load beyond the permission quantity-Overloading was direct cause of accident-Repudiation justified. There is no deficiency in service on the part of OP and prayed for dismissal of complaint.

7.                     After hearing the learned counsel for the parties and going through the pleadings as well as documents placed on the file.  It is not disputed that the complainant is the owner of the vehicle in question and the same was insured with the OP.  The first point of controversy between the parties is Whether the repudiation of claim on the ground that the complainant had violated the limitation as to use clause by carrying the unauthorized passengers is justifiable or not? Further, whether the complainant is entitled for the amount of Rs.4,83,900/- or not? Firstly, the question of repudiation of claim on the ground that the complainant violated the limitation as to use clause by permitting the unauthorized passenger is concerned, the OP has to prove that the accident took place due to overloading of passengers but in the present case only two persons were travelling with  driver and conductor and the authority (supra) tendered by the counsel for the complainant is very much identical to the facts and circumstances of the case in hand and it was the duty of the OP to prove that the accident took place due to travelling of more passengers which is not done so by the OP whereas the authorities (supra) tendered by the OP are not disputed but not identical to the facts and circumstances of the case in hand, so the repudiation of the claim of the complainant on the above said ground is not justified and legal and the complainant is entitled for the relief. 

8.                     So, far as the second point of payment of claim of Rs.4,83,900/- is concerned, the complainant has no doubt  produced the bills for Rs.4,83,900/- from the persons from whom he got repaired his vehicle but the same were neither supported by any affidavit of the persons nor the repairers are the authorized service centers.  Whereas  on the other hand, OP had appointed the independent surveyor who assessed the claim to the tune Rs.1,69,111/- and it is settled law that the surveyor is the best person and the report of the surveyor can not be brushed aside on flimsy and frivolous grounds.  Moreover, the complainant has never controverted the report of the surveyor by getting appointed any independent surveyor, hence, the complainant is entitled to the amount as assessed by the surveyor appointed by the OP.

9.                     In view of the facts and circumstances mentioned above, we are of the considered view that the OP Insurance Company has wrongly and illegally repudiated the claim of the complainant on false ground.  So, the complainant is entitled for the relief.

10.                   Resultantly, we partly allow the complaint of the complainant by directing the OP-Insurance Company to pay an amount of Rs.1,69,111/-  (as assessed by the surveyor) on account of damages caused to the Truck of the complainant in the above said accident along with interest @6% p.a. from the date after three months from the date of accident till its realization and also to pay Rs.5500/- as cost of proceedings.  Order be complied within 30 days after preparation of copy of this order failing which complainant shall be entitled to invoke the jurisdiction of this Forum as per law. Copies of this order be sent to the parties concerned free of costs as per rules. File be consigned to the record room after due compliance.

Announced in open court.6.9.2017.   

                                                                                                (SATPAL)

                                                                                                PRESIDENT,

                                                                                                                       

                                    (VEENA RANI SHEOKAND)          (S.C. Sharma)

                                    MEMBER                                           MEMBER.