Haryana

Ambala

CC/267/2020

Sunil Kumar - Complainant(s)

Versus

Reliance General Insurance Co Ltd - Opp.Party(s)

Daljit Singh Chhilar

11 Jan 2024

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, AMBALA.

Complaint case no.	:	267 of 2020
Date of Institution	:	06/11/2020
Date of decision	:	11.01.2024

Sunil Kumar son of Sh. Bhagwant Ram, H.No.525 Dashmesh Nagar, Barara, Tehsil Barara, District Ambala.

.……. Complainant

Versus

1. Reliance General Insurance Co. Ltd. Through its Manager, SCO 147-148. Sector 9C, Madhya Marg, Chandigarh. (Insurer of car Hyundai i-20 bearing no. HR 54E 6274, bearing policy number 991491923740046040)

 

Second Address:-

General Manager, Reliance Centre 19, Walchand Hiachand Maerg. Ballard Estate, Mumbai 400001.

 

2. Branch Manager. Reliance General Insurance Co. Ltd. SCO no.97, 2nd Floor, Prem Nagar, Ambala City, Ambala, Haryana 134003. (Office Phone 1-0171- 3202887)
3.  

 

3. Axis Bank Limited, through its Manager, Hisar Road, Ambala City.

 

….…. Opposite Parties.

 Before:      Smt. Neena Sandhu, President.

                             Smt. Ruby Sharma, Member,

          Shri Vinod Kumar Sharma, Member.           

 

Present:      Shri D.S. Chhillar, Advocate, counsel for the complainant.

                    Shri Mohinder Bindal, Advocate, counsel for OPs No.1 and 2.

                    Shri Rahul Vig, Advocate, counsel for OP No.3 

Order:        Smt. Neena Sandhu, President.

1.                Complainant has filed this complaint under Section 35 of the Consumer Protection Act, 2019 (hereinafter referred to as ‘the Act’) against the Opposite Parties (hereinafter referred to as ‘OPs’), praying for issuance of following directions to them to pay a sum of Rs.20,00,000/- as compensation alongwith interest @ 12% per annum for repudiating the claim of the complainant and for causing financial loss, mental shock, pain and agony etc. in the interest of law, justice and equity or any relief which this Commission deems fit, in view the facts and circumstances of the complaint.

2.             Brief facts of this case are that the complainant had purchased car bearing registration no.HR 54 E 6274, make Hundai i-20, model 2019 from Samta Motors, Near Kalka Chowk, Vita Milk Plant Lane, Ambala City. The said vehicle was insured by the OP No.1, vide policy number 991491923740046040 valid for from the period 8-11-2019 to 7-11-2020 for which he paid premium of Rs. 31,894/-.  The brother of the complainant Romi Kumar is employed with the contractor, M/s. M.S Enterprises, who had taken the contract at Vita Milk plant, Ambala. The complainant had taken the vehicle in question on loan from Axis Bank Limited, Barara Branch, through its Manager, Hisar Road, Ambala City, and the complainant is maintaining his account bearing no. 20150375988, IFSC Code SBIN0050219. The vehicle in question was being driven by his brother Romi Kumar and when Romi Kumar was on his duty, the vehicle met with an accident, and was badly damaged. After the accident the complainant towed the vehicle in question to SAMATA MOTORS, Ambala City and intimation of the same was sent to OP No.1 on 15-05-2020, qua the accident.  OP No.1, from the very beginning was bent upon to reject the claim of the vehicle and ultimately repudiated the claim of the complainant on the ground that the vehicle of the complainant was plying without E-pass in lockdown 1.0 from one district to another district and as such cannot process the claim due to breach of "limitation as of use' clause of the motor insurance company. There is no such condition in the policy that the complainant cannot ply the vehicle from one state to another state. Chief Executive Officer, Vita Milk Plant, Ambala had issued Pass to all the employees of Vita Milk plant who were working under the contractor, M.S Enterprises. Romi Kumar was involved in the services of providing essential services i.e. Milk and milk products, as such the claim of the complainant cannot be repudiated on this ground. If the policy is not applicable for plying of vehicle during the lockdown period, then the company is bound to return the premium of such period to all the consumers / customers of the relevant period of lockdown, when the government had banned the plying of vehicles.  Hence, the present complaint.
3.           Upon notice, OPs No.1 and 2 appeared and filed written version wherein they raised preliminary objections to the effect that the complainant has not approached this Commission with clean hands and has suppressed the material facts;  the subject vehicle is hypothecated with the financer namely Axis Bank and the financer is a necessary and proper party in the proceedings and required to be impleaded as a party in the matter, hence the complaint  deserves to be dismissed for non-joinder of necessary party; OPs No.1 and 2  does not have any branch office at Ambala; the complaint is not maintainable; the complainant has not specifically averred in the complaint that he was alone using the vehicle exclusively for the purpose of earning his livelihood and on the other hand mentioned in the complaint that the vehicle was used for supply of milk i.e. for a commercial purpose and that he was not driving or using the vehicle himself  and his brother only operated the vehicle, therefore the complainant is not a consumer etc. On merits, it has been stated that the complainant has purchased the policy in question after understanding and being satisfied with the policy features, benefits, terms and conditions and exclusions. The subject vehicle is not a transport vehicle and was used by the complainant for carriage/transportation of goods, which is not permitted as per law. Under limitation of use clause under the policy, it is mentioned that the policy covers use of the vehicle for any purpose other than (1) Hire or Reward, (2) Carriage of Goods (other than samples or personal luggage), (3) Organized Racing. (4) Pace Making. (5) Speed Testing (6) Reliability trials (7) Any purpose in connection with motor trade. The complainant had filed a claim for accident of his vehicle which was registered by OPs No.1 and 2. Upon scrutiny of the claim and submitted documents, more particularly the complainant's statement, it was observed that the subject vehicle i.e. private vehicle was used by the complainant's brother for services of essential services of milk supply. Thus the complainant has violated the law and also the terms and conditions of the subject policy and hence the claim is not payable as per policy terms and conditions. Although the reported claim of the complainant was out rightly liable to be rejected being intimated late i.e. on 15.05.2020 after a delay of 45 days of the alleged accident and loss to his car bearing registration no. HR-54E-6274 but without going into the maintainability of the claim, one surveyor/investigator M/s Perfect Investigators an independent IRDA licensed and approved surveyor was immediately deputed to give his fact finding report. The said surveyor visited the premises of workshop M/s Samta Hyundai, Ambala and has detail discussion with the complainant. After scrutinizing and elaborating the whole facts, position of the vehicle in question and the evidence, the said surveyor/investigator submitted his detailed report dated 15.06.2020 to treat the said claim subject to terms and conditions of the insurance policy and approval by the competent authority. Without prejudice to the submission that the claim is not payable under the policy, the liability of the Insurance Company does not exceed the liability of the Insurance Company as quantified by the Surveyor in the Survey Report i.e. Rs.3,47,850./-. The complainant was thereafter asked to furnish the copy of permission to ply his car from one district to other district and state in the period of complete lockdown for the relevant period. The complainant failed to give any explanation or proof and thus his said claim was repudiated by the competent authority. The complainant was apprised about the fate of his claim and the legal position vide letter dated 02.07.2020 but inspite of all these facts and even very much aware about the fate of his claim he in order to put undue pressure filed this false complaint by exploiting the process of law. Even though the complainant failed to provide any E Pass as allegedly being issued by the Vita but as per his own submission, the alleged pass was issued to move from his village Brara to Vita Plant, Ambala but at the time of accident, his brother had taken the car to village Manjoli (Punjab) as per complainant's statement from where he was returning so admittedly he was not on the permitted route even so committed breach of law and terms of the policy. Rest of the averments of the complainant were denied by OPs No.1 and 2 and prayed for dismissal of the present complaint with costs.
4.           Upon notice, OP No.3 appeared and filed written version wherein numerous objections were taken to the effect that the present complaint is not maintainable, as OP No.3 is third party to the Insurance which is purely a contract between the complainant and the Insurance Company; the present complaint is bad for mis-joinder of OP No.3 as party to it etc. On merits, it has been stated that OP No.3 is Bank and is engaged in the banking Business and not related to transaction of Insurance Policy obtained by the complainant as alleged in the complaint.  The complainant himself out of his own sweat free will has obtained the Policy from the Insurance Company. Nothing has been claimed against OP No.3. There is no fault or deficiency on the part of OP No.3 and it is to work as per the instructions of their consumer for doing banking business.  Rest of the averments of the complainant were denied by OP No.3 and prayed for dismissal of the present complaint with special costs.
5.           Learned counsel for the complainant tendered affidavit of the complainant and affidavit of Romi Kumar, now working as Supervisor, Vita Milk Plant, Ambala now under the Contractor, M/s Sona Enterprises, Panchkula as Annexure C-A and C-B respectively alongwith documents as Annexure C-1 to C-12 and closed the evidence on behalf of the complainant. On the other hand, learned counsel for OPs No.1 and 2 tendered affidavit of Suryadeep Thakur, Area Manager (Legal)-cum Authorized Signatory of OPs No.1 and 2- Company-Reliance General Insurance Co. Ltd., Registered Office, Chandigarh and of Shri Ameer Khan, Surveyor and Loss Assessor, Chandigarh as Annexure OP-X and OP-Y respectively alongwith documents as Annexure OP-1 to OP-7 and closed the evidence on behalf of the OPs No.1 and 2. Learned counsel for the OP No.3 tendered affidavit of Sh.Laxmi Pal, Manager/Authorized Signatory of OP No.3-Bank-Axis Bank, New Grain Market, Ambala City as Annexure OP-3/A and closed the evidence on behalf of the OP No.3.
6.           We have heard the learned counsel for the complainant and learned counsel for the OPs No.1 to 3 and have also carefully gone through the case file.
7.           Learned counsel for the complainant submitted that by repudiating the genuine claim filed by the complainant on the bald ground of limitation as to use, OPs No.1 and 2 have committed deficient in providing service.
8.           On the contrary, the learned counsel for the OPs No.1 and 2 while reiterating the objections taken in the written reply submitted that the claim of complainant was rightly repudiated because firstly the vehicle in question was used against the provisions of “limitation to use”; secondly it was used as a commercial vehicle and thirdly there was delay in intimation of the said accident to the insurance policy.
9.           Learned counsel for the OP No.3 while reiterating the objections taken in the written version submitted that it has no role whatsoever with the claim repudiated by the insurance company.
10.           The moot question which falls for consideration is, as to whether, the claim filed by the complainant was rightly repudiated by the OPs No.1 and 2 or not. It may be stated here that we have gone through the repudiation letter 02.07.2020, Annexure OP-1 and found that the claim of the complainant was repudiated on the ground that it was observed that at the time of accident, vehicle was being plied without E-pass in lockdown 1.0 from one District, Ambala, Haryana to another District Patiala, Punjab which is breach of limitation to use. It may be stated here that it was not the prerogative of OPs No.1 and 2 to see, whether the vehicle in question was plying alongwith E-pass in lockdown or not and on the other hand, it was the duty of the Administration or the Police Officers/Officials concerned of that State who could have taken action in case the vehicle in question was allegedly being plied without E-pass. Even if for the sake of arguments it is assumed that the vehicle in question was being plied without E-pass, then there is no nexus with the accident and  alleged non-holding of E-pass at the time of plying the vehicle at the time of accident. It is not the proved case of OPs No.1 and 2 that there was any fundamental breach of terms and conditions of the policy in question, the driver was not holding a driving licence; the vehicle was not fit for plying etc. and lastly in the Survey Report Annexure OP-7 there is nothing on record that there was any fundamental breach of terms and conditions on the part of the insured qua “Limitation as to Use” and on other hand has been clearly written as “Accidental Loss”.
11.           Taking all these facts and circumstances into consideration, we are of the opinion that OPs No.1 and 2 were not justified in repudiating the claim of the complainant. It is significant to mention here that in the Survey Report Annexure OP-7, it has been clearly opined that the net payable amount towards liability of the insurance company came to Rs.3,47,850/-. Thus, OPs No.1 and 2 are liable to pay the said amount alongwith interest. They are also liable to compensate the complainant for the mental agony and physical harassment suffered by him alongwith litigation expenses. 
12.           Since no deficiency in providing service has been proved on the part of OP No.3 as such the complaint filed by the complainant against OP No.3 is liable to be dismissed.
13.           In view of the aforesaid discussion, we  hereby dismiss the present complaint against OP No.3 and allow the same against OPs No.1 & 2 and direct them, in the following manner:-  
    1. To pay the assessed amount of Rs.3,47,850/- to the complainant alongwith interest @6% p.a. from the date of repudiation of claim i.e. 02.07.2020, Annexure OP-1, till its realization.
    2. To pay 5,000/-, as compensation for the mental agony and physical harassment suffered by the complainant.
    3. To pay Rs.3,000/- as litigation expenses.    

The OPs No.1 & 2 are further directed to comply with the aforesaid directions within the period of 45 days, from the date of receipt of the certified copy of the order, failing which the OPs No.1 & 2 shall pay interest @ 8% per annum on the awarded amount, from the date of default, till realization. Certified copy of this order be supplied to the parties concerned, forthwith, free of cost as permissible under Rules. File be indexed and consigned to the Record Room.  

   Announced:- 11.01.2024

 

(Vinod Kumar Sharma)	(Ruby Sharma)	(Neena Sandhu)
Member	Member	President