Chandigarh

DF-II

CC/916/2017

Harkirat Singh - Complainant(s)

Versus

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

Gaurav Bhardwaj Adv.

28 Feb 2019

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-II, U.T. CHANDIGARH

======

Consumer Complaint  No	:	916 of 2017
Date  of  Institution	:	05.12.2017
Date   of   Decision	:	28.02.2019

 

 

 

 

Harkirat Singh s/o Swaran Singh, Village Mastgarh, Post Office Mullanpur, Tehsil Kharar, District Mohali.

 

             ……..Complainant

 

Versus

 

1]  Oriental Insurance Company Ltd., SCO No.47, Sector 47-D, Chandigarh through its Branch Manager.

2]  Oriental Insurance Company Ltd., SCO 109-111, Sector 17-D, Chandigarh through its Regional Manager.

 

………. Opposite Parties

 

BEFORE:  SH.RAJAN DEWAN            PRESIDENT

SMT.PRITI MALHOTRA        MEMBER

            SH.RAVINDER SINGH         MEMBER

 

Argued By: Sh.Gaurav Bhardwaj, Adv. for complainant.

Sh.R.K.Bashamboo, Adv. for OPs.

 

PER PRITI MALHOTRA, MEMBER

 

         Briefly, the case of the complainant is that he got his Toyota Etios Car bearing Regd.No.PB-01-A-3700 insured with the OPs vide insurance policy Ann.C-3 valid from 6.2.2016 to 5.2.2017.  It is averred that the said vehicle was being used as Taxi with OLA Company. Unfortunately, the said car met with an accident on 14.1.2017, when a car going in front of the complainant’s car suddenly turned and in order to save himself, the driver of the complainant’s car turn it to left and after getting imbalanced, it fell in a ditch and got badly damaged.  The matter was reported to the police and a DDR No.8, dated 14.1.2017 was recorded (Ann.C-4). The insurance company was also informed, who appointed a Surveyor to assess the loss and the Surveyor after conducting survey & inspecting vehicle, declared it as Total Loss (Ann.C-5). It is submitted that a claim was lodged with the OPs, but the same was repudiated vide letter dated 13.10.2017 on the ground that the complainant was not having the valid permit on the date of accident and he has not reported the matter to Registering Authority regarding the vehicle being incapable of plying on the road as per M.V. Act (Ann.C-6).  It is stated that the Ops have illegally repudiated the claim inspite of the fact that the complainant was having a contract carriage permit, which was valid till 9.3.2020 and he was also having Tourist Permit from 10.3.2016 to 9.3.2017 though the same was issued on 25.1.2017 but the same cannot be a ground for repudiation of the claim because he was already having a valid contract carriage permit (Ann.C-7).  It is also stated that the driver of the complainant was not plying the vehicle without permit because he was returning to his home after finishing his work and there is no requirement of route permit for returning home and the home of the driver is at Khuda Lohara, Chandigarh. Alleging the said repudiation as illegal and deficiency in service, hence this complaint has been filed.

 

2]       The OPs have filed joint reply and while admitting the factual matrix of the case, stated that after the claim was lodged, the OPs processed the claim and found that the vehicle in question was being plied without valid permit and that the road tax was only paid upto 31.12.2015 whereas the present accident took place on 14.1.2017. It is also stated that the complainant also failed to inform the Registration Authorities within 14 days from the date of accident that the vehicle has become incapable of being used and instead road tax was wrongly deposited.  It is further stated that the vehicle in question was being plied without valid permit at the time of accident.  It is submitted that the permit has been obtained by the complainant by misrepresentation of facts.  It is also submitted that there is clear cut violations of terms & conditions of the policy as well as that of M.V.Act., so the company is not liable for any loss and the claim has rightly been repudiated. It is further submitted that the vehicle was got surveyed and it was found to be a case of Total Loss.  It is asserted that without admitting the liability, in any case, the total liability is Rs.4,74,500/- and that too subject to terms & conditions of the policy. Pleading no deficiency in service and denying other allegations, the OPs have prayed for dismissal of the complaint.  

 

3]       Parties led evidence in support of their contentions.

 

4]       We have heard the ld.Counsel for the parties and have perused the entire record.

 

5]       There is no dispute regarding issuance of the insurance policy covering vehicle in question for the period from 6.2.2016 to 5.2.2017.  Further, the accident of the vehicle in question occurred on 14.1.2017, lodging of DDR with the concerned Police Station vide DDR No.8, dated 14.1.2017 and filing of due claim with the Opposite Parties under the policy for indemnification of loss to the vehicle and its repudiation, is also admitted & well proved on record. 

 

6]       The OPs in their reply justifying the repudiation of the claim submitted that the vehicle was not having valid permit on the date of accident as well the road tax was also not deposited, amounting to the violation of the provisions of Motor Vehicles Act as well the terms & conditions of the insurance policy.  Though the contentions raised by the OPs in regard to the insured vehicle not having valid permit on the date of accident and also non-deposit of road tax, are right, but the Surveyor, appointed by the Opposite Parties to assess the loss, in its Report dated 04.03.2017 (Ann.R-4) has recorded that “R.C. & Permit checked & found the same in order” and has commented that the “damages occurred have complete similarity with the nature and cause of accident.”   The Surveyor has also recommended as under:-

“It is, therefore, recommended that the claim in question be settled on Total Loss Basis for Rs.5,24,500/-(Rupees Five Lac Twenty Four Thousand and Five Hundred Only). Which the insurance company may pay after getting the R.C. of subject vehicle cancelled, from the concerned authority under the provisions of Section 50 & 55 of Motor Vehicle Act, 1988, to avoid misuse of R.C. of the vehicle.”

 

7]       It has been held in catena of judgments of Hon’ble National Consumer Disputes Redressal Commission, New Delhi that the Surveyor’s Report is an important document and it cannot be brushed aside unless any contrary is proved on record.

 

8]       However, it has also been settled by the Hon’ble Apex Court that the violations of the policy conditions, which are not material/germane to the policy, the claim should not be repudiated in toto and be allowed on non-standard basis.  This has been so held the Hon’ble Supreme Court of India in the case of Amalendu Sahoo Vs. Oriental Insurance Company Ltd., II (2010) CPJ 9 (SC), wherein it has been held as under: -

 

12.             Reference in this case may be made to the decision of National Commission rendered in the case of United India Insurance Company Limited v. Gian Singh, reported in II (2006) CPJ 83 (NC)=2006 CTJ 221 (CP) (NCDRC). In that decision of the National Consumer Disputes Redressal Commission (NCDRC) it has been held that in a case of violation of condition of the policy as to the nature of use of the vehicle, the claim ought to be settled on a non-standard basis. The said decision of the National Commission has been referred to by this Court in the case of National Insurance Company Limited v. Nitin Khandelwal, reported in IV (2008) CPJ 1 (SC)=2008 (7) SCALE 351. In paragraph 13 of the judgment, in the case of Nitin Khandelwal (supra) this Court held:

 

“......The appellant Insurance Company is liable to indemnify the owner of the vehicle when the insurer has obtained comprehensive policy for the loss caused to the insurer. The respondent submitted that even assuming that there was a breach of condition of the insurance policy, the appellant Insurance Company ought to have settled the claim on non- standard basis.”

 

13. In the case of Nitin Khandelwal (supra) the State Commission allowed 75% of the claim of the claimant on non-standard basis. The said order was upheld by the National Commission and this Court refused to interfere with the decision of the National Commission.

 

14. In this connection reference may be made to a decision of National Commission in the case of New India Assurance Company Limited v. Narayan Prasad Appaprasad Pathak, reported in II (2006) CPJ 144 (NC). In that case also the question was, whether the insurance company can repudiate the claims in a case where the vehicle carrying passengers and the driver did not have a proper driving licence and met with an accident. While granting claim on non-standard basis the National Commission set out in its judgment the guidelines issued by the insurance company about settling all such non-standard claims. The said guidelines are set out below:

 

Sr. No.	Description	Percentage of settlement
(i)	Under declaration	Deduct 3 years’ differene in premium
	of licensed	from the amount of claim or deduct
	carrying capacity	25% of claim amount, whichever is higher.
(ii)	Overloading of vehicles	Pay claims not exceeding 75% of
	beyond licensed carrying	admissible claim.
	capacity
(iii)	Any other breach of warranty/	Pay upto 75% of
	condition of policy including	admissible claim.
	limitation as to use.

 

9]       It has also been observed that the violations as objected by the Opposite Parties are not at all violations of any material conditions of the policy, rather are the violations of the provisions of Motor Vehicles Act, which also contains the penalty provisions for such violations.

10]      We also put reliance on the judgment of Hon’ble National Commission, New Delhi in case New India Assurance Co. Ltd. Vs. Ajay Bharti, R.P.No.3286 of 2018, decided on 10.1.2019. 

11]      In the case referred above, the claim of the claimant was allowed and repudiation of the claim was held to be unjustified for the clear reason that there was no nexus between the intoxication of the driver and the theft of the stationary vehicle.

12]      In the same manner having no valid permit at the time of accident has no nexus with the damage caused to the vehicle as the OPs in their turn failed to prove on record that the vehicle at the relevant time of accident was being plied for any commercial purpose.  It is the duly sown contention of the complainant that the driver of the vehicle was on his way to home and this contention has not been rebutted by OPs anywhere in the complaint. 

13]      There is no iota of evidence on record which points that the vehicle at the time of accident was being plied for any commercial usage mandating the requirement of route permit.  The averment of the complainant that he (Driver) was on his way to his home town, when the accident took place, goes unrebutted and thus proved. 

14]      From the above observations, it is clear enough that complainant on the minimal side is fully entitled for his claim at least for 75% of the sum insured in view of formula set out by the Hon’ble Apex Court in case Amalendu Sahoo Vs. Oriental Insurance Company Ltd., II (2010) CPJ 9 (SC), referred to above.  Marching one step ahead, it is pertinent to mention that in view of the latest pronouncement of the Hon’ble National Commission, New Delhi in case New India Assurance Co. Ltd. Vs. Ajay Bharti, R.P.No.3286 of 2018, decided on 10.1.2019, the complainant is entitled for the full claim as has been assessed by the Surveyor. 

15]      In view of the above findings, we are of the opinion that the Opposite Parties have illegally and unjustifiably repudiated the genuine claim of the complainant, which should have been settled as per the assessment made by the Surveyor and as such, rendered deficient services. Therefore, the present complaint is partly allowed against the OPs with directions to pay an amount of Rs.4,74,500/-  (Rs.5,24,500/-minus the wrack value of Rs.50,000/-) as has been assessed by the Surveyor), to the complainant. The Opposite Parties shall also pay compensatory cost and litigation expenses, which is assessed compository to the tune of Rs.15,000/-.

         This order shall be complied with by the OPs within a period of 45 days from the date of receipt of copy of this order, failing which the Opposite Party shall also be liable to pay an additional compensatory cost of Rs.20,000/- apart from the above relief.

         The certified copy of this order be sent to the parties free of charge, after which the file be consigned.

Announced

28^th February, 2019                                                                Sd/-

                                                                   (RAJAN DEWAN)

PRESIDENT

 

Sd/-

 (PRITI MALHOTRA)

MEMBER

 

Sd/-

(RAVINDER SINGH)

MEMBER