Jammu and Kashmir

Jammu

CC/251/2017

DEVINDER BAKSHI - Complainant(s)

Versus

oriental insurance - Opp.Party(s)

GS WAZIR

26 May 2018

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM,JAMMU

(Constituted under J&K Consumer Protection Act,1987)

                                                          .

 Case File  No                271/DFJ           

 Date of  Institution    06-10-2016

 Date of Decision      :   22-05-2018

Devinder Bakshi,

S/O Tek Chand Bakshi,

R/O Resham Ghar Colony,

Jammu.

                                                                                                                                                Complainant

                  V/S

1.General Manager,

  Oriental Insurance Company Ltd.

Town Hall,Jammu.

2.Branch Manager,

Oriental Insurance Company Ltd.

Rajouri.

                                                                                                                                                Opposite parties

 

   CORAM:-

                  Khalil Choudhary (Distt.& Sessions Judge)   President

                  Ms.Vijay Angral                                               Member

                  Mr.Ghulam Sarwar Chauhan                             Member

 

In the matter of: Complaint under section 10 of J&K Consumer Protection Act 1987.

                             

Mr.G.S.Wazir,Advocate for complainant, present .

Mr.Jugal Kishore,Advocate  for OP,present.

 

                                                            ORDER

 

                         Facts relevant for the disposal of complaint on hand are that complainant being registered owner of vehicle bearing registration No.JK02AK-9075,got the same insured with OP, w.e.f.,13-07-2014 to 12-07-2015(Annexure-A).According to complainant, during currency of insurance policy, insured vehicle met with accident on,04-09-2014 at Rajpura Bata after taking Barat,i.e.around about 35 Baraties as passengers were in the vehicle(Bus),the driver of the offending vehicle,namely,Lalit Kumar alias Lovely was driving the vehicle also died at the time of accident. According to complainant FIR has been lodged in the concerned Police Station and in the FIR 67 passengers have been mentioned was totally wrong.(Copy of FIR  and certificate of driving licence are annexed as Annexures-B&C). Submission of complainant is that he immediately informed OP about the accident and OP2 immediately appointed surveyor for assessment of damage caused to the vehicle and the surveyor submitted his report for the loss or damage to the vehicle (copy of surveyor report is annexed is Annexure-E).That after submitting the report by the surveyor,namely Bachan Singh Nathyal,the Ops appointed another surveyor i.e. second surveyor,namely,Ravi Kumar Gupta who also submitted his report for the loss of vehicle.(copy of second surveyor report is annexed as Annexure-F).Complainant further submitted that after submitting surveyor reports,OPs asked him to furnish relevant documents of the vehicle in question and complainant submitted all the requisite documents, but the OP has not settled the claim of complainant till date  and this act of OPs constitutes deficiency in service and unfair trade practice. In the final analysis, complainant prays for indemnity to the tune of Rs.4,94,500/-and in addition, prays for compensation to the tune of Rs.1,60,000/-including litigation expenses.

                       On the other hand,OPs filed written version and resisted the complaint on the ground that the claim of complainant having been lodged after 12 calendar months of its repudiation is time barred and merits dismissal. That the answering OP is not liable to indemnify the owner/complainant as complainant/Insured has allowed violation of terms and conditions of policy by allowing 71 persons to travel in the bus against the capacity of 37+1 and this over loading was the cause of accident. That after repudiation of claim, complainant ceases to be a Consumer, as such, complaint under Consumer Protection Act is not maintainable. It is submitted that on receipt of information of accident,OPs as per their practice deputed Mr.Bachan Singh Nathyal to investigate and find out facts about accident of vehicle No.JK02AK-9075,who has submitted report. It is submitted that complainant has not mentioned as to which documents he submitted as such no specific reply can be made.However,since insured was not entitled to the indemnified, as such, his claim was repudiated. It is further submitted that surveyor had assessed the loss on net of salvage for Rs.4,64,500/-subject to terms and conditions of policy.

             Complainant adduced evidence by way of duly sworn evidence affidavits of Jugal Kishore and Vijay Kumar,respectively.Complainant has placed on record copy of policy schedule, copy of schedule of premium, copy of certificate of registration, copy of permit, copy of FIR, copy of certificate issued by ARTO,Rajouri,copy of order passed by this Forum, copies of surveyors report and copy of letter issued by OPs to complainant.

               On the other hand,OPs adduced evidence by way of affidavits of Dr.S.S.Motten Sr.Divisional Manager and Bachan Singh Investigator,respectively.OPs have placed on record copies of affidavits ,copy of policy schedule and copy of policy.

           We have perused case file and heard L/Cs for the parties.

                 After hearing L/Cs for parties and perusing the case file, the point for consideration is, as to whether or not Ops are deficient in service in not settling the claim of complainant.

                      Before heading further, it is to be noted that since parties have lead evidence in the shape of evidence affidavits, which are much or less reproduction of contents of their respective pleadings,therefore,we do not feel it necessary to represent the same again and if need arises, same would be referred hereinafter at appropriate stage.

                            L/C for complainant vehemently argued that despite completion of all requisite formalities,OPs did not indemnify the loss suffered by the complainant, therefore, same constitutes deficiency in service. On the other hand, submission of L/C for OPs is that the OPs are not liable to indemnify the owner/complainant as complainant/Insured has allowed violation of terms and conditions of policy by allowing 71 persons to travel in the bus against the capacity of 37+1 and this over loading was the cause of accident. That after repudiation of claim, complainant ceases to be a Consumer, as such, complaint under Consumer Protection Act is not maintainable. It is submitted that on receipt of information of accident,OPs as per their practice deputed Mr.Bachan Singh Nathyal to investigate and find out facts about accident of vehicle No.JK02AK-9075,who has submitted report. It is submitted that complainant has not mentioned as to which documents he submitted as such no specific reply can be made.However,since insured was not entitled to the indemnified, as such, his claim was repudiated. It is further submitted that surveyor had assessed the loss on net of salvage for Rs.4,64,500/-subject to terms and conditions of policy.

                      Be it noted that in so far as insurance of vehicle in question and its loss during currency of policy is concerned, same are not in dispute. According to complainant, insured vehicle suffered loss. In order to support his contention that loss to the insured vehicle is suffered, complainant relied upon documentary evidence.

                  Once it has been shown that vehicle was comprehensively insured and it was damaged during currency of Insurance Policy, in that event, Ops are not expected to devoid the benefits of Insurance Policy to the insured on technical grounds, which are short of fundamental breach of contract of indemnity.

                 Otherwise also legally speaking it is settled law that the parties are always bound and governed by the terms and conditions of contract and whenever contract is entered into there is proposal made by one party in its unequivocal and unambiguous terms conveyed to the otherside and acted by otherside with the same response and in its understanding and knowledge leaving no scope of any future suspicion and incredibility in mind to come in the way of the said contract afterwards.

                       In a similar case titled The Oriental Insurance Company Ltd.V/S Santokh Singh passed by Honble State Consumer Disputes Redressal Commission, it has been held in para 12 & 13 as under:

                  12.The police report submitted thereby is only in the realm of allegations and not a conclusive proof of guilt of the accused. It has further scrutiny to a judicial finding, which ultimately clinches the issue. If the intention of the legislature was to await final decision of the court then it is not possible for any claimant to file a claim under these circumstances in the absence of a finding by the court. As already stated herein above, the final report which is filed in the court is already in the realm of allegations,therefore,is not a conclusive of the fact that the accused is guilt of negligence.

           13.Therefore,the contention of the appellant that since there is no finding of the court nor final report submitted with respect to the alleged cause of the accident, the claim can not be acceded. What is intended in the policy is that the accident must have caused due to negligence of the driver. The word’negligence’has been used only to ensure that the accident was not caused by any intention but due to casualness of the driver.Thereofre,at this stage when the claim is preferred, the registration of the FIR by itself is sufficient to prove that there was sufficient material to register the case, for which the investigation was launched. It is not necessary that there has to be a finding that he was negligent. It is not in dispute that vehicle has suffered damage due to the accident. This all itself is sufficient that it was due to the negligence that such accident was caused. The determination of the fact whether it was due to negligence of the driver is to be done by the court.Therefore,the findings recorded by the court below that since the accident has taken place on account of the vehicle striking the stone is sufficient to prima facie establish the negligence of the driver.

                        Therefore, in our opinion, complainant successfully brought home the point of deficiency in service, as such,OPs cannot shirk from its liability to reimburse the loss.

                          So in view of recent decision of Hon’ble State Commission delivered in similar facts of the case as compared to the facts of the instant case, we are of the view that the complainant is entitled to the reimbursement of insurance claim to the extent of loss assessed by the surveyor and in the given facts and circumstances of the case, it appears that Insurance Company has arbitrarily rejected the claim of complainant and this act of OPs amounts to deficiency in service.

                       Admittedly, as per surveyor report dated 04-03-2015, which is on record, loss was assessed on net of salvage to the tune of Rs.4,94,500/-,therefore, we hold that complainant is entitled to indemnity to the extent assessed by the surveyor, which under the contract of insurance,Ops were required to reimburse to complainant.

                  It is needful to recall the judgment of Honble Supreme Court passed Oriental Insurance Company Ltd.V/S M/S Ozma Shipping Co.and Anr.2010 AIR SCW 514;

Before parting with this case we would like to observe that the insurance companies in genuine and bona fide claims of the insured should not adopt the attitude of avoiding payments on one pretext or the other. This attitude puts a serious question mark on their credibility and trustworthiness of the insurance companies. Incidentally by adopting honest approach and attitude the insurance companies would be able to save enormous litigation costs and the interest liability.

                       Although complainant prays for sum of Rs.4,94,500/-as loss assessed by the surveyor and same has not been disputed by the complainant, hence loss assessed by the surveyor is only available reasonable basis and documentary, evidence for the loss suffered by the complainant.

                          Therefore, in view of the foregoing reasons the complaint filed by the complainant for redressal of his grievance is allowed and Ops are directed to indemnify the complainant the assessed amount of Rs.4,94,500/-alongwith interest @ 7% per annum w.e.f.04-05-2015(i.e.two months after surveyor report),till its realization. The complainant is also entitled to compensation of Rs.5,000/-for causing unnecessary harassment and mental agony and litigation charges of Rs.5000/-.The OPs shall comply the order within one month from the date of receipt of this order. Copy of this order be provided to both the parties as per requirement of the Act. On deposit of the amount in this Forum, the same shall be paid to the complainant through payees account cheque.The complaint is accordingly disposed of and file be consigned to records after its due compilation.

Order per President                                              Khalil Choudhary

                                                                         (Distt.& Sessions Judge)

Announced                                                              President

22-05-2018                                                   District Consumer Forum

Agreed by                                                                Jammu.

 

Ms.Vijay Angral          

Member        

 

Mr.Ghulam Sarwar Chauhan,

Member