Jammu and Kashmir

Jammu

CC/181/2017

JP ABROL - Complainant(s)

Versus

oriental insurance - Opp.Party(s)

WAHEED CHOUDHARY

19 May 2018

ORDER

             DISTRICT CONSUMER DISPUTES REDRESSAL FORUM,JAMMU

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

                                                          .

 Case File No.                 112/DFJ                

 Date of  Institution   : 14-07-2017               

 Date of Decision       :  07-05-2018

 

JP Abrol,

S/O Late Shri Krishan DassAbrol,

R/O NH 1A Jay Em Garage,

Petrol Pump,Udhampur.

                                                                                                                                          Complainant

                V/S

1.The Oriental Insurance Company Ltd.

   Through Divisional Manager, Jammu.

2.Branch Office Udhampur,

  Through its Branch Manager,

  Oriental Insurance Company Ltd.

                                                                                                                                          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.Waheed Choudhary ,Advocate for complainant, present.

Mr.Varinder Choudhary,Advocate for OPs,present.

 

                                                                 ORDER

                                 Dispute raised by complainant lies in short compass, in that; complainant being owner of tanker No.JK14B-5788,got the same insured with OPs,w.e.f.07-07-2015 to 06-07-2016,(Annexure-A).According to complainant on, 27-10-2015,i.e.during currency of Insurance Policy, insured tanker met with accident and was completely damaged, regarding, which FIR being, No.80/2015 was also registered at Police Station Kargil u/s 379/304-A RPC(Annexure-B).Complainant further submits that he applied for insurance claim of his ill-fated vehicle vide letter dated 28-10-2015 without wasting any time, which was covered under Policy bearing No.26102/31/2016/1329 dated 07-07-2015 and the Ops duly entertained the case of complainant for insurance claim of the vehicle in question and deputed survey team  to assess the loss, who after thorough investigation assessed the loss to the tune of Rs.6,92,000/-and in this behalf the Ops also took a consent form from the complainant, which is available in the records of Ops.Complaint further proceeds on the premise that the Ops kept the insurance claim pending without any reason and finally issued a communication dated 20-03-2017 whereby complainant was provided an opportunity of seven days to reply to a query regarding driving licence of the driver being not valid at the time of accident and this communication dated 20-03-2017 was received by the complainant on 27-03-2017 to which the complainant filed reply on,30-03-2017 (Annexure-C&D).Allegation of complainant is that the Ops vide letter dated 29-03-2017 rejected the claim of complainant on the ground that the driving licence was not valid at the time of accident as endorsement for dhr (Hazardous)had expired (Annexure-E),but it is pertinent to mention that the driver of vehicle in question was duly authorized to drive a goods carriage carrying goods of hazardous and hazardous nature and necessary endorsement to this effect was made in his driving licence which was valid from 27-10-2014 to 26-10-2015  and on the  date when accident took place, the vehicle in question being driven by the driver was not carrying any goods of dangerous and hazardous nature as it was coming back to Udhampur after downloading of the motor spirit at Kargil,therefore, when the accident took place the vehicle was not all loaded with any goods of dangerous and hazardous nature and was empty vehicle, therefore, the ground of rejection of insurance claim of the vehicle in question is highly ill-founded and contrary to the provisions of law in as much as under Motor Vehicle Act and State Rules framed there under does not have any such qualification/requirement of possessing of endorsement over the valid driving licence.In the final analysis, non settling of claim by OPs,according to complainant, amounts to deficiency in service, therefore, complainant prays for sum of Rs.4.40, lacs, alongwith interest @ 24% per annum under different heads.

                      On the other hand,OPs filed version and while denying its liability in toto,went on to submit that tanker No.JK14B-5788 was insured with OPs,w.e.f.07-07-2015 to 06-07-2016 in the name of Sh.Joginder Parkash Abrol,but subject to terms and conditions of the policy. That the D/L of the driver of Tanker bearing registration No.JK14B-5788 was not valid and effective at the time of accident i.e.27-10-2015 which is clear violation of terms and conditions of policy. It is submitted that as informed by the insured that his vehicle i.e. Tanker bearing registration No.JK14B-5788 met with an accident on 27-10-2015 at 8.00pm at Pushkum(Thamthu)Kargil when it was coming from Budkherboo(Leh) the  vehicle went out of control and rolled down in  the side of river, accordingly FIR No.80/2015 lodged at P/S Kargil dated 27-10-2015.The OPS deputed surveyor immediately after the said  accident for on spot inspection of damaged vehicle, but the surveyor could not physically checked at that time the Engine No.and Chassis No.and later on complainant/insured failed to produce damaged vehicle for inspection, as well as, verification while assessing the final survey rather insured submitted fictitious estimates of repair of vehicle to get the claim from the Ops,as per complainant own admission the vehicle i.e. Tanker bearing registration No.JK14B-5788 was already washed away and the vehicle could not be traced, but complainant befooled Ops by producing exaggerated estimates.Further defence of Ops is that complainant has wrongly mentioned that Ops repudiated the claim of complainant on,29-03-2017,but it is admitted that Ops have repudiated the claim on the ground that driver of the vehicle was not having any valid and effective driving licence to drive the tanker,whereas,complainant has wrongly written the following dates i.05-05-2015 in para No.8.Lastly it is prayed that there is no deficiency of service or unfair trade practice on the part of Ops and the complaint is liable to be dismissed.   

                    Complainant adduced evidence by way of duly sworn evidence affidavit and affidavit of Vipin Abrol. Complainant has placed on record copy of policy schedule, copy of FIR No.80 dated 27-10-2015, copy of driving licence and copies of communications exchanged between the parties.

                  On the other hand,Ops adduced evidence by way of duly sworn evidence affidavits of P.S.Thakur Sr.Divisional Manager  OIC Ltd.and Ranjeet Singh,Investigator,respectively.Ops have placed on record policy, copy of FIR, Copy of driving licence and copy of surveyor report.                                         

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

                      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 case 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,OP did not indemnify the loss suffered, therefore, same constitutes deficiency in service. On the other hand, submission of L/C for OPs is that the driver of the vehicle in question at the time of accident was not having any valid and effective driving licence to drive the vehicle because there is no DHR endorsement on the driving licence of the driver.

                 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 total loss due to accident.

            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 due to accident. In order to support his contention that loss to the insured vehicle suffered on account of account, complainant relied upon copy of FIR bearing No.80/2015 dated 27-10-2015.Complainant has also relied upon policy schedule, wherein the total value of the vehicle is shown as Rs.7,54,302/-and the premium to the tune of Rs.28,745/-is paid by the complainant. As per certificate issued by the Driving Institute Udhampur recognized by J&K Govt.wherein it is certified that Mr.Sandhoku Ram S/O Sh.Permu residing at Dhalpar Udhampur is a qualified driver and was enrolled in this institution on,6/6/15 to 7/6/15.He has undergone the course of Education Training in driving of vehicle carrying dangerous and hazardous nature of goods, according to the syllabus and period prescribed satisfactorily. On the other hand,Ops have placed on record copy of surveyor report dated,24-11-2016,whereby net loss assessed to the tune of Rs.6,90,000/-.

              Keeping in view nature of dispute raised in the complaint, in our opinion, same can be adjudicated on the basis of Surveyor Report dated 02-11-2015, wherein cause and nature of accident is given as under:

Cause and Nature of Accident:-

   It was revealed by the owner of the insured’s sons and further confirmed by the police Authorities that on the date and time of accident, the insured driver was coming from Budkherboo Leh towards Kargil after unloading the Petrol at Budkherboo Leh.On reaching near Pushkum Kargil he met with an accident when the vehicle went out of control of the driver and directly over toppled due negligent driving of the vehicle but its deriver. In this incident the vehicle after over topping on the hilly slope rolled down in the side by river.In the accident the driver namely Sandhoku Ram S/O Permu and conductor namely Ajay Kumar R/O Dhalpur Udhampur of the insured vehicle died on the spot. Police report under FIR report no.80/2015 dated 27-10-2015 under section 279,304 A RPC is also registered with Police Station Kargil.

                              We have meticulously perused Motor Survey Report Final dated 24-11-2016, wherein the surveyor has mentioned that the vehicle has been found insured for Rs.754302/-,IDV as per policy after long discussions and arguments, the insured agreed to accept the loss for Rs.6,90,000/-on Total Loss basis for the vehicle which could not be recovered and now it is not even visible in the river. The loss was also discussed with worthy R.M.Tech.Regional Office,Ambala/Divisional Office, Jammu .The insured has submitted the consent letter for Rs.6,90,000/-Total Loss Basis, which in our opinion is very reasonable and economical.

                     Once it has been shown that vehicle was comprehensively insured and it was damaged in an accident 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.

                       Further also to make it more clear, as for as the terms of the policy are concerned reliance can be had to judgment in case titled Indraprastha Gas Ltd.V/S New India Assurance Co.Ltd.& Ors. reported in 1(2015)CPJ 279(NC)wherein the relevant para it is laid down:

        The court has to give material meaning to the document. It is not open to the court to make any addition to or subtraction from the terms and conditions contained in Insurance Policy.

                              Admittedly, as per FIR the accident has occurred, on,27-10-2015 during the validity of Insurance Policy, insuring the vehicle for Rs.7,54,302/-on a premium of Rs.28,745/-.It is also the admitted position that the vehicle had been declared to be a total loss by the surveyor appointed by the company ,though the value of the vehicle on total loss basis had been assessed at Rs.6,90,000/-.

                       It is needful to reproduce the judgment of Honble Supreme Court passed in Oriental Insurance Company Ltd.V/S M/S Ozma Shipping Co.and Anr.2010 AIR SCW 514 wherein it has been held

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.

                     Admittedly, surveyor was deputed by OPs, who assessed the loss. Surveyor report is on the record, whereby total loss is assessed by the surveyor on total loss basis to the tune of Rs.6,90,000/-and same has not been disputed by the complainant, hence loss assessed by the surveyor appears to be quite reasonable and which would commensurate to 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 pay to the complainant an amount of Rs 6,90,000/-alongwith interest @ 7%,per annum, w.e.f.25-01-2017(i.e. two months after surveyor report),till its payment. The complainant is also entitled to compensation of Rs.10,000/-for causing harassment and mental agony and litigation charges of Rs.10,000/-.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

07-05-2018                                          District Consumer Forum

Agreed by                                                     Jammu.                                                                                                                                  

                                                                      

Ms.Vijay Angral          

Member                                                                                                                                 

 

Mr.Ghulam Sarwar Chauhan

Member