Punjab

Rupnagar

CC/14/154

Raman Kumar - Complainant(s)

Versus

Oriental Insurance Company & Others - Opp.Party(s)

Sh. Manish Dharmani, Adv

05 May 2015

ORDER

ORDER

          MRS. NEENA SANDHU, PRESIDENT

                             Sh. Raman Kumar has filed this complaint under Section 12 of the Consumer Protection Act, 1986 (hereinafter referred to as ‘the Act’ only) against the Opposite Parties (hereinafter referred to as O.Ps.) praying for the following reliefs:-

                             i)       To pay the claim amount of Rs.5,42,000/-,

          ii)      To pay Rs. 4,00,000/- as compensation,

          iii)     To pay Rs.15,000/- as litigation expenses.

 

2.                 In brief, the case of the complainant is that he had got insured his vehicle bearing registration No. HP72-0016, which was purchased by him for his personal use, vide policy bearing No. 231401/31/2015/1042  for the period from 6.5.2014 to 5.5.2015 , from the O.Ps. No. 1 & 2 through their agent i.e. O.P. No. 3. On 26.5.2014, one Julmi Devi, who has friendly relations with him, had taken his vehicle to go to the temple of Jawala Ji, Distt. Kangra, alongwith some other persons, to pay the obeisance. When they were coming back at about 2.00 P.M., a bus bearing registration No.HP67-2286, which was being driven in a rash & negligent manner, came from the side of village Nadaun and struck with his vehicle, due to which Kamaljit, who was driving it, had received many serious injuries. Julmi Devi, Surjit Kumar and Jaswinder had also received injuries. The said accident had taken place solely due to rash & negligent driving of the driver of the said bus. His vehicle had almost damaged due to said strong impact of the accident. FIR No. 90 dated 26.5.2014 was got registered at PS Jawala Mukhi, under Sections 279/337 IPC against the driver of the said bus, namely, Harish Kumar. The complainant had applied for payment of claim amount of the damaged vehicle and submitted all the requisite documents to the O.Ps. No. 1 & 2 through the O.P. No. 3 including the estimate of Rs.5,50,000/-, to be incurred for repair of the vehicle in question. He had time & again approached the O.Ps. to get the claim amount and every time, he was assured that the case was under process and the claim amount would be paid within a short period, but suddenly, he had received letter dated 18.9.2014 from the O.P. No. 1 that the case was investigated and it was found that at the time of accident, the vehicle was being used for hire & reward. It is stated that he had never used the vehicle in question for any taxi service/purpose, except for his personal use. The persons, who were sitting on the said vehicle at the time of accident, have family relations with him. There is nothing on record that the vehicle was used for hire & reward purposes. The O.Ps. have, thus, wrongly & illegally repudiated the claim, due to which he has suffered mental agony, physical harassment and financial loss, for which they are vicariously liable. The vehicle is still lying in the same condition and has not been repaired. Hence, this complaint.

 

3.                On being put to notice, the O.Ps. filed a joint written statement in the shape of affidavit of Sh. A. K. Ahmed, Sr. Divisional  Manager, resisting the complaint taking preliminary objections; that the complainant has no cause of action & no locus standi to file the complaint against the O.Ps. and the same is not maintainable; that there is no deficiency in service on the part of the O.Ps.; that this Forum has no jurisdiction to entertain and try the complaint and accordingly, the same is liable to be dismissed. On merits, the factum of purchase of Tavera vehicle in question bearing No. HP-72-0016, by the complainant and its insurance vide policy No. 231401/31/2015/1042 for the period from 6.5.2014 to 5.5.2015, with the O.Ps. No. 1 & 2 through their agent, O.P. No. 3, is admitted. It is stated that the complainant was plying the said vehicle for carrying passengers on hire, whereas it was insured as a private car, thus, he had violated the terms & conditions of the said insurance policy, according to which it can not be used for hire or reward. On the evening of 25.5.2014, the said vehicle was hired by Sh. Surjeet Kumar, son of Sh. Gurdas Ram r/o village Gag, Tehsil Anandpur Sahib, Distt. Ropar, who was running a Dhaba in Bhanupli in the name of ‘Ajay Dhaba’, for a sum of Rs.3700/-, to go to pay obeisance at Jawalamukhi Mandir. At that time the said vehicle was being driven by Sh. Kamaljit Singh s/o Sh. Bachan Singh of village Brahmpur and on 26.5.2014 at 1.45 P.M. the said vehicle met with an accident with a bus, due to which, said Sh. Surjit Kumar, his sister-in-law, namely Julmi Devi, his nephew Jaswinder Singh and the driver, Kamaljit Singh had sustained injuries. Lateron, the driver Kamaljit Singh succumbed to injuries & died. FIR No. 90 dated 26.5.2014 under Sections 279, 337 IPC against Harish Kumar, the driver of the bus bearing No. HP-67-2286 was got lodged relating to the said accident. It is further stated that the matter was got investigated by the O.Ps. through the investigator, namely, Bee Vee Investigating Agency, Patiala, who submitted its report dated 16.7.2014 alongwith the statements, which were recorded during the said investigation. The O.Ps. had appointed, surveyor, namely, Er. G.S. Riar, the surveyor & Loss Assessor, to assess the loss, who had submitted his report assessing the loss for a sum of Rs.2,30,000/- alongwith the consent of the complainant dated 23.7.2014 to settle the loss for the said amount of Rs.2,30,000/-, but after applying its mind, the competent authority had arrived at a conclusion that he was not entitled to receive the said amount because the insured vehicle in question, at the time accident, was being used on hire basis, in breach of the policy terms & conditions and the complainant was  informed, accordingly, vide registered letter dated 18.9.2014 and nothing is payable to him by the O.Ps. Rest of the allegations made in the complaint have also been denied and a prayer has been made for dismissal of the same with costs.

 

4.                On being called upon to do so, the learned counsel for the complainant tendered affidavits of the complainant, Ex. C1 & C8, affidavit of Smt. Julmi Devi Ex. C2, photocopies of documents Ex. C3 to C7 and closed the evidence. On the other hand, the learned counsel for the O.Ps. tendered affidavit of Sh. A.K. Ahmed, Sr. Divisional Manager, Ex. OP-1, affidavit of Sh. H.S. Bedi, investigagtor, Ex. OP-24, photocopies of documents Ex. OP-2 to OP-23 and closed the evidence.

 

5.                We have heard the learned counsel for the parties and gone through the record of the file, carefully.

 

6.                The very first question that arises for consideration before us is, as to whether the vehicle in question, which was purchased & got registered by the complainant as a private vehicle, was being used for hire & reward at the time of accident?

 

                   Admittedly, the claim has been repudiated by the O.Ps. No. 1 & 2 vide letter dated 18.9.2014 (Ex. C7) on the ground that at the time of accident, the insured vehicle in question was being used for hire & reward, whereas as per Clause 1(a) of Limitations, as to use of the vehicle, as mentioned in the policy, the vehicle cannot be used for hire & reward. The stand of the complainant is that he was using the said vehicle for his personal use and on the date of accident, it was borrowed by Smt. Zulmi Devi, who had friendly relations with him, to go to Sri Jawala Ji Temple, to pay obeisance and it was not being used for hire & reward. To corroborate the said fact, he has placed on record the affidavit of Smt. Julmi Devi as Ex.C2 and that of Surjit Kumar son of Gurdas Ram as Ex. C8. On the other hand, the stand of the O.Ps. is that at the time accident, the vehicle in question, was being used by the complainant on hire basis, in breach of the policy terms & conditions, therefore, he is not entitled to any claim amount. In support of their stand, the O.Ps. have placed on record two statements given by Sh. Surjit Kumar, the one dated 27.6.2014 (Ex. OP4) and the other dated 08.7.2014 (Ex. OP5). Perusal of statement dated 27.6.2014 reveals that he had nowhere stated that he had hired the vehicle in question on hire & reward from the complainant. However, in the statement dated 8.7.2014, he had, interalia, stated that in order to pay obeisance to Sri Jawala Ji Temple, he had hired Tavera No. HP-72-0016 for a sum of Rs.3700/- from Sonu son of Sh. Som Nath resident of village Bhanupli. Therefore, both these statements are contradictory to each other to that effect. Even otherwise the O.Ps. have not made any efforts to clarify the actual & factual position by producing on record the affidavit of said Sonu to the effect that what relation he has with the complainant, Raman Kumar and how & under what circumstances, he was plying the vehicle in question as a taxi, which  is registered under the private number, in the name of the complainant, Raman Kumar. The O.Ps. have also not placed on record the affidavit of Surjeet Kumar to prove that at the time of accident, the vehicle in question was being used for hire &reward, whereas the complainant has filed the duly sworn & attested affidavit of said Sh. Surjit Kumar, as Ex. C8, wherein he has affirmed that since he and his wife, Julmi Devi, have friendly relations with the complainant, therefore, they had taken his Tavera vehicle bearing No. HP-72-0016 to go to Jawala Ji Temple, in order to pay obeisance and he has specifically denied that he had hired the said vehicle of the complainant for a sum of Rs.3700/-. It is a settled principle of law that the document, which is duly supported by the affidavit of the person concerned, will prevail over the document, which is not supported by any affidavit, especially, when there is dispute on any point. Even in the statement dated 6.7.2014 , Ex. OP21, Smt. Raj Kumari, has stated that her husband, namely, Kamaljit Singh, was working as driver for the last 5 years on the vehicle pertaining to Sh. Sonu son of Som Nath. Nodoubt in the said statement the vehicle Number pertaining to said Sh. Sonu has been mentioned as HP-72 0016, but from the documents, it is crystal clear that the owner of the said vehicle is complainant, Raman Kumar and not Sonu, therefore, no reliance can be placed on the said statement. Facing with the situation, we are of the view that the plea of the O.Ps. that the Surjeet Kumar has hired the vehicle in question for a sum of Rs.3700/- is baseless Thus, in the absence of any cogent and convincing evidence, we are of the considered opinion that the O.Ps. have failed to prove their case, that at the time of accident, the insured vehicle in question was being used for hire & reward, and they have committed deficiency in service by wrongly repudiating the claim of the complainant on that ground.

7.                Now the next question for consideration before us is, as to what should be the quantum of the claim amount to be paid to the complainant by the O.Ps.?

                  

          After receipt of the claim lodged by the complainant, the O.Ps. had appointed Er. G.S. Riar, the surveyor & Loss Assessor, to assess the loss, whose report has been placed on record , as Ex.OP-12. The said surveyor has assessed the loss on “Repair Basis” to the tune of Rs.2,96,893.94 and on “Net of Salvage Basis” to the tune of Rs.2,28,000/-  and has recommended that the loss may be settled on “Net of Salvage Basis” for a sum of Rs.2,28,000/-, the same being economical and justified subject to the terms and conditions of the insurance policy. It may be stated that vide consent letter dated 23.07.2014, Ex.OP-20, which is duly signed by the complainant, he had agree to settle the loss on net of salvage basis for a sum of Rs.2,30,000/-, as full and final settlement, subject to the policy conditions and completion of formalities. He had further stated that he will retain the vehicle with him. It is nowhere the case of the complainant that the above said consent letter does not bear his signatures or that he had given the aid consent under any coercion & duress. Taking into consideration the assessment made by the surveyor and the consent letter given by the complainant, we are of the considered opinion that the complainant is entitled to get the claim amount of Rs.2,30,000/- on “Net of Salvage Basis”, towards full & final settlement of the claim and not the sum of Rs.5,42,000/-, as prayed for, in the complaint. However, since the O.Ps. have not paid the claim amount of Rs.2,30,000/- to him till date, therefore, he is also entitled to get the said amount alongwith  interest from the date of repudiation i.e. 18.9.2014 till realization. He is also entitled to get compensation on account of mental agony & physical harassment suffered by him alongwith litigation expenses.

 

8.                In view of the aforesaid discussion, we partly allow the complaint and direct the O.Ps. in the following manner:-

i)       To pay an amount of Rs.2,30,000/- on “Net of Salvage Basis”, alongwith interest @ 9% P.A. w.e.f. 18.9.2014 till realization,

ii)      To pay a sum of Rs.3000/- as compensation,

iii)     To pay a sum of Rs.3000/- as litigation expenses.

 

                    The O.Ps. are further directed to comply with the order within a period of 45 days from the date of receipt of certified copy of this order.

 

9.                The certified copies of this order be supplied to the parties forthwith, free of cost, as permissible under the rules, and the file be indexed and consigned to the Record Room.