Punjab

Faridkot

CC/15/59

Rimpy Monga - Complainant(s)

Versus

Pankaj Motor Ltd. - Opp.Party(s)

Ashu Mittal

30 Sep 2015

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, FARIDKOT

 

Complaint No. :      59

Date of Institution: 16.04.2015

Date of Decision :   30.09.2015

 

Rimpy Monga d/o Mangat Ram r/o SBS College Road, Near Ashoka Model School, Kotkapura, District Faridkot.

                                                                    ...Complainant

Versus

1. Pankaj Motors Ltd, Bypass Talwandi Road, Faridkot through Branch Manager.

2. ICICI Lombard, Branch Office, SCF 12-13, Improvement Trust, Shopping Area, GT Road, Moga, Tehsil and District Moga through Branch Manager.

3. ICICI Lombard General Insurance Co. Ltd. ICICI Lombard House 414, Veer Savarkar Marg, Near Sidhi Vinayak Temple, Prabhadevi, Mumbai 400025.

 ....OPs

 

Complaint under Section 12 of the

Consumer Protection Act, 1986.

 

Quorum: Sh. Ajit Aggarwal, President,

               Smt Parampal Kaur, Member,

               Sh P L Singla, Member.

 

Present: Sh Ashu Mittal, Ld Counsel for complainant,

              Sh Atul Gupta, Ld Counsel for OP-1,

   Sh Neeraj Maheshwary, Ld Counsel for OP-2 and 3.

 

 

(Ajit Aggarwal, President)

1                                                         Complainant has filed the present complaint under Section 12 of the Consumer Protection Act, 1986 against OPs seeking directions to OPs to make payment of Rs 3,13,500/- as insurance amount alongwith toeing charges worth Rs 2,500/- and for further directing OPs to pay Rs 1 lac as compensation for harassment and mental agony besides litigation expenses.

2                                         Briefly stated, the case of the complainant is that complainant purchased a car make Maruti Suzuki model ALTO K10 VXI, engine No. K100M4699287 from OP-1 on 25.09.2014 and got insured the same from OP-2 and 3 through OP-1 and paid the insurance amount at Faridkot. OP-2 and 3 issued only cover note and vide this cover note, insurance was valid from 25.09.2014 to 24.09.2015. On 4.10.2014, car of complainant met with an accident and was badly damaged in it. Complainant informed OP-1 immediately and on receiving information regarding accident, OP-2 and 3 sent a Surveyor, who took photographs and made inspection and found that car was badly damaged. On instructions of OPs, Surveyor asked complainant to take the damaged car at Moga in the office of OP-2, where OP-2 after inspecting the vehicle demanded the driving license of the person, who was driving the car at the time of accident and on this, complainant handed over the driving license of Ramesh Kumar s/o Babu Ram and also completed other formalities. Thereafter, OP-2 assured complainant that investigation would take about 60 days and thereafter, insurance claim of complainant would be settled, but did not make the payment of insurance claim. Complainant visited the office of OP-2 many times, but kept lingering on the matter on pretext that investigation is under process and then, complainant received a letter dt 5.03.2015 from OP-1  informing him that his claim under insurance is made as no claim and also instructed complainant to remove his damaged vehicle. On receiving the said letter, complainant visited the office of OP-2 where he was told that OP-1 is directed not to repair the said vehicle as the repair liability exceeds the Insured Declared Value (IDV) and his insurance claim would be settled within few days and handed over the Survey Report to complainant and OP-2 took signatures of complainant on some documents. Thereafter, complainant visited the OPs many times, but they kept delaying the matter on one pretext or the other. All this amounts to deficiency in service and trade mal practice and it has caused harassment and mental tension to him for which he has prayed for directing the OPs to pay Rs 3,13,500/- as insurance amount alongwith toeing charges of Rs 2,500/- and Rs 1 lac as compensation besides litigation expenses incurred by him. Hence, the complaint.

3                                        The counsel for complainant was heard with regard to admission of the complaint and vide order dated 20.04.2015, complaint was admitted and notice was ordered to be issued to the opposite parties.

4                                    On receipt of the notice, the OP-1 filed written statement taking legal objections that present complaint is not maintainable as there is a dispute between complainant and ICICI Lombard General Insurance Company and OP-1 has been unnecessarily dragged in the litigation and complaint is liable to be dismissed as complainant is not the consumer of OPs. However, on merits, ld counsel for OP-1 has denied all the allegations levelled by complainant being wrong and incorrect and asserted that said car was never purchased from Pankaj Motors ltd, rather it was purchased from Pankaj Automobiles Pvt Ltd and complainant is not the consumer of OP-1. It is also asserted that insurance claim of complainant was declined by Op-2 and 3 and therefore, OP-1 served letter dt 5.03.2015 to complainant. It is averred that OP-1 is not the Insurance Company to pay the alleged insurance claim, rather after the initial survey is conducted by Insurance Company, then, on the written advice, the repair of vehicle is conducted. It is further averred that OP-2 and 3 never gave written instruction to OP-1 to repair the said vehicle, so if complainant still wants to get his car repaired, then, Pankaj Auto Mobiles Pvt Ltd. Moga is ready to do it at the cost of complainant. It is further averred that there is no deficiency in service on the part of answering OP. The allegations with regard to relief sought too were refuted with a prayer that complaint deserves to be dismissed with costs.

  5                               OP-2 and 3 also filed written reply taking preliminary objections that complaint involves complicated questions of law and facts requiring detailed evidence, which is not permissible in the Consumer Protection Act and bare perusal of the complaint clears that complainant has concealed material facts from the Ops as well as from this Forum as at the time of alleged accident, said car was not being driven by Ramesh Kumar s/o Babu Ram, rather it was being driven by Amandeep Bajaj, who is husband of complainant and got the said car in his marriage. Complainant has concocted a false story by changing the name of actual driver to cover up her own wrongs and to get compensation one way or the other. It is further averred that vehicle in question was being driven by husband of complainant, who also suffered injuries in his right leg and villagers took him to Dr Ramandeep at Malawala for first aid and thereafter to Ranjit Hospital, Amritsar where he remained under treatment and was discharged on 7.10.2014. It is asserted that no person by the name of Ramesh Kumar was there in the said vehicle at the time of alleged occurrence. Amandeep Bajaj had no Driving License at the time of accident and complainant has tried to change the driver and planted Ramesh Kumar as driver by concocting a false story and therefore, insurance claim of complainant was rightly repudiated vide letter dt 12.02.2015. During investigation, statement of complainant was got recorded and statement of Sarpanch of village Dhanna Shaheed was also recorded. It is settled law that in case attempt is made to change the driver, the complainant is not entitled to any relief and all these circumstances clearly show that at the time of alleged accident, said vehicle was not being driven by complainant and complainant is not the consumer of OPs. It is asserted that complainant has no locus standi to file the present complaint and this Forum has no territorial jurisdiction to hear and try the present complaint as no cause of action arises at Faridkot. However, on merits, OP-2 and 3 have taken the same pleadings as in preliminary objections and refuted all the allegations levelled by complainant being wrong and incorrect and further reiterated that there is no deficiency in service on the part of answering OPs. The allegations with regard to relief sought too were refuted with a prayer that complaint deserves to be dismissed with costs.

6                                             Parties were given proper opportunities to prove their respective case. The complainant tendered in evidence his affidavit Ex.C-1, affidavit of Gurmeet Singh as Ex C-5, Gurjeet Singh as Ex C-6, and affidavit of Amandeep Bajaj as Ex C-7, affidavit of Ramesh Kumar as Ex C-8 and documents Ex C-2 to C-4, 9 and 10 and then, closed his evidence.

7                                In order to rebut the evidence of the complainant, the ld counsel for OP-1 tendered in evidence, affidavit of Pankaj Bansal as Ex OP-1/1 and letter Ex Op-1/2 then, closed the evidence. Ld Counsel for OP-2 and 3 tendered in evidence affidavit of Meenu Sharma as Ex OP-2,3/1, affidavit of Jagjit Singh Purba, Surveyor as Ex OP-2,3/2, affidavit of A P Singh as Ex OP-2, 3/3 and documents Ex OP-2,3  /4 to 8 and then, closed the evidence on behalf of OP-2 and 3.

8                                   We have heard the learned counsel for the parties and have very carefully gone through the affidavits and documents on the file.

9                             Ld Counsel for complainant argued that on 25.09.2014, complainant purchased a car make Maruti Suzuki model Alto K10 from OP-1 and got it fully insured from OP-2 and 3 through OP-1. OP-2 and 3 issued cover note regarding insurance valid from 25.09.2014 to 24.09.2015. Copy of the cover note is Ex C-2. On 4.10.2014, the said car met with an accident and was badly damaged. Complainant informed OPs regarding accident immediately. OP-2 and 3 sent Surveyor, who after inspection of the said car found that the car was badly damaged and on the instructions of OP-2, he told complainant to take the damaged vehicle at Moga. After inspection of car, OP-2 told complainant to stall the car at service station of Maruti Suzuki/OP-1 and demanded the Driving License of the person who drove the car at the time of accident. Complainant handed over the driving license of Ramesh Kumar s/o Babu Lal who drove the car at the time of accident. His DL is Ex C-9 and also completed all the formalities for the settlement of claim.OP-2 assured that investigation would take about 60 days and thereafter, claim would be settled. Complainant visited the office of OPs many times, but every time, he was put off by Ops by saying that investigation is under process. In the month of March 2015, complainant received a letter from OP-1 that OP-2 and 3 informed him that the claim of the vehicle of the complainant is made as ‘No Claim’ and instructed to remove the damaged vehicle. Copy of the letter is Ex C-4. Complainant immediately visited the office of OP-2, who told him that Pankaj Automobiles Pvt Ltd/OP-1 has been directed not to repair the vehicle as the repair liability exceeds insured declared value of the vehicle and the claim of the complainant would be settled within few days on total loss basis and handed over the Survey Report to the complainant and also took signatures of complainant on some documents. Copy of Survey Report dt 8.12.2014 is Ex C-3. Thereafter, complainant approached OPs many times for settlement of insurance claim but they put off the matter on one pretext or the other. All these acts of OPs amount to deficiency in service and trade mal practice on the part of OPs, who unlawfully are not releasing the insurance claim of the complainant with interest. Due to it, complainant has faced inconvenience, mental agony and financial loss and complainant is entitled to get insurance claim for his damaged vehicle alongwith interest and compensation and prayed for accepting the present complaint.

10                                         In reply to the arguments of complainant, ld counsel for OP-1 argued that the present complaint is not maintainable against OP-1 as there is no dispute between complainant and OP-1 and complainant has not claimed any relief against OP-1. It is correct that complainant brought car for repair at the service station of OP-1, but no direction was given by OP-2 and 3 to repair the vehicle, rather OP-2 and 3 informed OP-1 that the claim of the complainant is declined and they never gave any written instruction to repair the car and therefore, OP-1 did not repair the vehicle and informed complainant vide letter dt 5.03.2014 regarding it. However, if complainant still wants to get repaired his car, then, OP-1 is ready to do so at the cost of complainant. There is no deficiency in service on the part of OP-1 and present complaint deserves to be dismissed against OP-1.

11                                  Ld Counsel for OP-2 and 3 argued that complainant is not the consumer of OPs. There is no locus standi to file the present complaint. The complainant has concealed the true and material facts from this Forum. It is concealed that the vehicle in question was being driven by Amandeep Bajaj husband of complainant and not by Ramesh Kumar s/o Babu Lal as alleged by the complainant at the time of accident. Complainant had concocted a false story by changing the name of driver in order to cover her wrongs and to get compensation. The said vehicle was given to complainant in her marriage on 26.09.2014 and the same was being driven by Amandeep Bajaj at the time of alleged accident, who also suffered injuries and the villagers took him to Dr Ramandeep at Malawala and then to Ranjit Hospital, Amritsar, where he remained under treatment and was discharged on 7.10.2014. At the time of accident, there was no person of the name of Ramesh Kumar in the vehicle. Amandeep Bajaj had no driving license at the time of accident, so, the complainant has tried to changed the driver and planted Ramesh Kumar as driver for getting insurance claim. On intimation given by the complainant regarding accident, OP-2 and 3 deputed Mr Jasjeet Singh Purba as Surveyor, to conducted survey and assess loss, who vide his report assessed the loss to the vehicle more than the insured value and recommended the case of total loss. OP-2 never told complainant to took his car at Moga and stall the car at service station of Maruti Suzuki. OP-2 never assured complainant that investigation would take 60 days and thereafter, his claim would be settled. The claim of the complainant has to be determined on the basis of terms and conditions of Insurance Policy. OP-2 and 3 appointed Mr A P Singh, to investigate the insurance claim of the complainant, who thoroughly investigated the case and recorded statement of complainant, who in her statement before Investigator admitted that at the time of accident, the car was being driven by Amandeep Bajaj her husband and not by Ramesh Kumar as stated by her in her insurance claim. Investigator also recorded statement of Sarpanch of village Dhanna Shaheed where accident took place, who also gave statement that car was being driven by Amandeep Bajaj and not by Ramesh Kumar. Copy of Investigation Report is Ex OP-2, 3/8 as at the time of accident, the car was not driven by Ramesh Kumar as alleged in the insurance claim or by the complainant and it was being driven by Amandeep Bajaj, who had no Driving Licence. Therefore, claim of the complainant is legally repudiated by OP-2 and 3 vide their letter dt 12.02.2015 Ex OP-2, 3 /4 as complainant had tried to change the driver to get the insurance claim. As per terms and conditions of the policy if the vehicle is not driven by a person having valid and effective license then, in that case, the insured is not entitled to get any claim. Therefore, claim of the complainant is rightly and legally repudiated. There is no deficiency in service or trade mal practice on the part of OP-2 and 3 and prayed for dismissal of the present complaint.

12                            The case of the complainant is that his car was insured with OP-2 and 3, which met with an accident during the insurance period and was badly damaged. At the time of accident, his car was driven by Ramesh Kumar but the Insurance Company wrongly and illegally repudiated the claim. OP-2 and 3 argued that at the time of accident, car was not driven by Ramesh Kumar, but by Amandeep Bajaj, who had no valid driving license at that time. So as per terms and conditions of the Insurance Policy, they repudiated the claim of the complainant lawfully.

13                                     Ld counsel for complainant argued that if it is presumed that at the time of accident the vehicle in question was driven by Amandeep Bajaj, then Amandeep Bajaj was also having effective valid Learner Driving License at that time. Copy of the same is Ex C-10 and learner driving license is a valid driving license to drive the vehicle and the Insurance Company cannot repudiated the claim on this ground. He put reliance on the case citation 2004 (2) RCR 114 Supreme Court of India in case titled as National Insurance Co. Ltd Vs Swaran Singh and Ors wherein Hon’ble Apex Court held that Motor Vehicle Act, 1988, Section 149 (2) (a) (ii) and proviso to Sub Sections (4) and (5)-Disqualification of driver - Validity of driving license-Insurer is entitled to raise all defences available u/s 149 (2) of the Act-However, mere absence, fake or invalid at the relevant time are not the defences available to insurer against the insured or third parties- To avoid its liability towards the insured also the insurer has to prove the insured to be guilty of negligence and failure to exercise reasonable care in compliance of conditions of Policy-Burden is on the insurer to establish breach of Policy by leading cogent evidence - Mere non production of license or evidence by the insured cannot be considered as discharge of burden of insurer. The Hon’ble Apex Court further held that  Learning Driving License – Breach of policy – Disqualification of driver – Validity of learner’s driving license – Learner’s driving license is a valid driving license under the Rules – The insurer cannot take it as defence to avoid its liability. It is argued that Insurance Company has failed to prove that there is any negligence or failure to exercise any reasonable care in driving of the vehicle or in compliance of the conditions of the Policy and the Learning driving license is a valid driving license. He also put reliance on the citation 2010 (1) Consumer Protection Cases 653 in case titled as Amalendu Sahoo Vs Oriental Insurance Co. Ltd wherein Hon’ble Apex Court held that even where violations of the Policy is found, Insurer should pay 75% of total amount as on non standard basis. He has also placed reliance on citation 2008 (3) CPC 559 Supreme Court of India titled as National Insurance Company Ltd Vs Nitin Khandelwal, wherein Hon’ble Apex Court held that 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 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. He has also placed reliance on the citation 2006 (2) Consumer Protection Cases 33 titled as New India Assurance Company Vs Narayan Prasad Appa Prasad, wherein Hon’ble National Commission held that vehicle at the time of accident was carrying passengers more than permitted by rules – Even driver was not duly licensed – Order of authority below granting payment of full insured amount with cost and compensation cannot be sustained – Appellant directed to settle the claim on non standard basis i.e 75 % of Rs 4,32,000/- with 9% interest. They further held in para no. 4 of the judgment that not having proper valid license to drive a Maxi-cab as also carrying excess passengers than the licensed capacity are violation of the terms and conditions of the policy. It is for covering these contingencies that GIC has issued the guidelines for the Insurance Company for settling the claim on “non standard basis’, which is as follows:

Following types of claims shall be considered as non-standard and shall be settled as indicated below after recording the reasons:

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

 

14                                    The ld Counsel for complainant argued that even if it is taken that at the time of accident vehicle was driven by Amandeep Bajaj, who had a valid learner Driving License at the time of accident, then, in that case also, the Insurance Company cannot repudiate the whole insurance claim of the complainant and in that case, it should be decided on the basis of non standard basis.

15                                       We have thoroughly gone through the file and case law produced by the complainant and from the perusal of all documents placed on record and in view of above discussion, we have come to the conclusion that if it is presumed that vehicle was driven by Amandeep Bajaj who had only a learner driving license at that time and it is a breach of terms and conditions of the Insurance Policy, then in that case also, the Insurance Company cannot repudiate the whole claim of the complainant and it is to be decided on non standard basis and therefore, in the light of above discussion, the complaint in hand is hereby partly allowed. The OP-2 and 3 are directed to settle the claim of complainant on non standard basis and are ordered to pay Rs 2,35,125/- i.e 75% of Rs 3,13,500/-the insured value of the vehicle alongwith interest at the rate of 9% per anum from 12.05.2015 i.e date of repudiation of claim of complainant by OP-2 and 3 till final realization. OP-2 and 3 are also directed to pay Rs 5000/-as litigation expenses to complainant incurred by him. As there is no deficiency in service on the part of OP-1, therefore, complaint against OP-1 stands dismissed. OP-2 and 3 are directed to comply with the order jointly and severally within one month from the date of receipt of the copy of the order, failing which complainant shall be entitled to proceed under Section 25 and 27 of the Consumer Protection Act. Copy of order be given to parties free of cost under rules. File be consigned to record room.

Announced in Open Forum

Dated : 30.09.2015                 

 

  Member            Member                   President

                      (P Singla)         (Parampal Kaur)      (Ajit Aggarwal)