Jammu and Kashmir

Jammu

CC/319/2017

DILAWAR KHAN - Complainant(s)

Versus

RELIANCE GENERAL INSURANCE - Opp.Party(s)

SUNEEL MALHOTRA

24 Oct 2018

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM,JAMMU

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

                                                          .

 Case File  No.                362/DFJ           

 Date of  Institution   :    14-12-2016

 Date of Decision      :      23-10-2018

 

Dilawar Khan,

S/O Sh.Munshi Ram,

R/O Mohra Janglano,

Kotraka,at present H.No.56-A

Sector-2 Ganga Nagar Bantalab,

Jammu.

                                                                                                                Complainant

             V/S

1.Reliance General  Insurance  Co.Ltd.,

5^th Floor,Hotel TRG Building Opposite,

Bahu Plaza Rail Head Conmplex,Jammu.

2. Reliance General  Insurance  Co.Ltd.,

570 Naigaum Cross Road Next Royal

 Industrial Estate Wadala West Mumbai.

 

                                                                                                                  Opposite parties

CORAM

                  Khalil Choudhary              (Distt.& Sessions Judge)  President

                  Ms.Vijay Angral                                                               Member

                  Mr.Ghulam Sarwar Chouhan                                       Member

 

In the matter of: Complaint under section 10 of J&K Consumer

                              Protection Act 1987.

      

 Mr.Suneel Malhotra,Advocate for complainant, present.

Mr.Vishnu Gupta,Advocate for OP,present.

                                                          

                                                        ORDER

                     Facts relevant for the disposal of complaint are that the complainant being registered owner of vehicle Tata 207 Pick Up Van  bearing registration No.JK-11-A-7879(copy of registration certificate annexed as Annexure-AThe complainant had purchased the said vehicle on,26-04-2014.That the vehicle is a light goods vehicle category which does not require permit, the vehicle had valid fitness certificate(Annexure-B) got the same comprehensively insured with OP for a period commencing from 07-05-2015, to  06-05-2016 and the complainant had paid premium to the tune of Rs.21,4764,53326009.Complainant further submitted                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                            that the premium was paid at Jammu and the proposal form was filled, signed and handed over at Jammu to OP1 and OP1 accordingly issued cover note and policy schedule and the vehicle was insured for Rs.4,53,150/-which is IDV/insured declared valuecopy of policy schedule is annexed as Annexure-C)That the complainant had handed over the vehicle to driver Mohd.Shakoor S/O Abdul Rashid  who is having valid and effective driving licence to drive transport vehicle(copy of driving licence is annexed as Annexure-DThat unfortunately the vehicle of complainant met with an accident  on,24-11-2015 within the jurisdiction of Police Station Budhal as the road due to the continuous heavy rains in the area had become a slippery, hence the vehicle of complainant fell in deep George and the vehicle at the relevant time of accident was loaded with Karyana items and was going towards Targain from Kotranka and the vehicle of complainant suffered total loss. The concerned Police had registered a FIR No.81/15 in this regard and the concerned police thereafter challaned the  driver under offence 279 RPC and the Ld.Judicial Magistrate Ist Class Budhal imposed fine of Rs,700/-on the driver,namely.Mohd.Shakoor(copy of FIR and the receipt of fine are annexed as Annexures-E&F)  According to complainant, he immediately lodged an intimation of loss with the OP and few photographs of the vehicle depicting he damage/total loss of vehicle are annexed as Annexure-G with the complaint. That OP deputed surveyor who visited the spot ad obtained documents from the complainant and all the vehicular documents viz R.C.Fitness,Insurance Cover, FIR with English translation,etimate prepared by Tata Fair Deal authorized dealer of TATA vehicles etc.were provided to the surveyor who assessed the loss to the vehicle to the tune of IDV value of the vehicle i.e.Rs.4,53,150/-and the surveyor submitted his report to the OP company and the complainant requested OP to provide the same, but was refused for unknown reasons. Allegation of complainant is that he had been regularly visiting the office of OP1 to know about the payment of claim, the Manager at the office of OP1 conveyed him that since the claim of vehicle exceeds financial authority of said officer, hence the claim file has been sent to OP2 i.e. their corporate office completed all the formalities as mentioned in the letter, but nothing was done by OP.Complainant further submitted that he as and when visited was always conveyed that his claim is genuine and payable, the delay is occurring in the settlement of payment of claim amount only  due to the fact that the office which is the authority is at Mumbai i.e.OP2.The complainant had conveyed and requesting the OPs that since the vehicle of complainant  are  commercial vehicle, the complainant is being deprived of its earnings, as the complainant depends upon the earning from the vehicle to meet the day to day and family living expensesearning from the vehicle to meet the day to day   deprived hehe made a representation to OP on,07-05-2013 highlighting his grievance that the vehicle in question was total loss due to accident and he has to pay the outstanding loan amount of State Bank of India,Kud and concerned bank is pressing hard for the liquidation of loan amount (copy of representation is annexed as Annexure-IV).Constrained by the act of OP,complainant served a legal notice through advocate on the OP,in response to which the OP intimated him that since he had already sold the vehicle to one Rakesh Kumar vide sale deed dated 23-05-2012 and thereafter the said vehicle remained under the control and ownership of Rakesh Kumar, as such the claim stands repudiated by OP vide let4ter dated 02-07-2013 (copy of reply notice dated 06-11-2013 is annexed as Annexure-VI)That the claim of complainant in respect of his total loss vehicle has been wrongly and illegally repudiated by OP on the ground of sale allegedly to one Rakesh Kumar and remaining of vehicle in possession of alleged purchase after the date of sale i.e.23-05-2012 is misconceived, therefore, this act of OP amounts to deficiency in service and unfair trade practice, hence the complaint. In the final analysis, complainant prays for reimbursement of Rs.6.00 lacs alongwith interest on the amount of award from the date of accident i.e.17-09-2012.

               On the other hand,OP filed written version and resisted the complaint on the ground that the complaint deserves outright dismissal as the complaint shows neither any deficiency nor any undue denial of service on the part of OP as per the terms and conditions of insurance policy, India Motor Tariff and M.V.Act. That the complaint deserves dismissal as no valid consumer dispute as envisaged under J&K Consumer Protection Act has arisen requiring any adjudication by this Forum. That the complaint deserves outright dismissal as the claim of the complainant has been bonafidely considered in the light of gross breach of policy conditions,M.V.Act ,India Motor Tariff, registration certificate and photocopy of driving licence and R.C.as submitted to the OP by the complainant and after bonafide consideration of all the facts, documents and legal position stands repudiated by registered letter dated 17.02.2016 which was received by the complainant and has been annexed with the complaint as Annexure-H.That the complaint has been filed by concealment and sup-pression of true facts that the complainant was guilty of gross breach of policy conditions,R.C.,India Motor Tariff and M.V.Act by carrying 1125 kg as load against permitted load of 861 kg and by plying vehicle through Driver Dilawar Khan who was neither licensed nor competent to drive transport vehicle.The OP left with no option than to repudiate the claim. It is completely wrong that the accident took place due to heavy rains and edge of road gave way. From the copy of the Fir and conviction of the driver by Learned Judicial Magistrate Budhal,it is apparent that the accident if any had been caused due3 to rash and negligent driving of the driver and also by carrying excess load in the vehicle. It is completely wrong that the vehicle suffered total loss. It is submitted that the On being intimated immediately requested IRDA Licensed Independent Surveyor Sh.Gaurav Sood to conduct survey and assess the loss if any. The summary of assessment of loss of Sh.Gaurav Sood is annexed as Annexure-RA.It is completely wrong that surveyor found the vehicle as total loss and assessed the loss to the tune of insured declared value of Rs.4,53,150/The surveyor had assessed the net loss at Rs. 1,98,164/-on repair basis by his survey report dated 19.01.2016.It is totally wrong that complainant had ever requested for copy of survey report. Rest of the contents of complaint are denied by OP.

                   Complainant adduced evidence by way of duly sworn evidence affidavit and affidavits of Anwar Shah, Mohd.Sageer and Mohd.Shakoor,respectively.Complainant has placed on record copy of certificate of registration, copy of fitness certificate, copy of policy schedule, copy of driving licence,copy of FIR, copy of receipt, copies of photographs of damaged vehicle and copy of repudiation letter issued by OP to complainant.

                On the other hand,OP adduced evidence by way of duly sworn evidence affidavits of Suryadeep Singh, Assistant Manager, Reliance Gen.Ins.Co.and Gaurav Sood IRDA Licensed Surveyor and Loss Assessor,respectively.

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

                 The point which requires consideration is that as to whether,OPs were justified in repudiating the claim in toto for carrying excess load than its permitted capacity.

                     In so far as accident of insured vehicle during currency of policy and carrying of excess load against its permitted capacity are concerned, same are not in dispute.

            Parties have supported their rival contentions by way of duly sworn evidence affidavits, which are corroborative of the facts of their respective contentions, therefore, need no reiteration.

                 It is also to be noted that OPs deputed surveyor who assessed loss and submitted final survey report, whereby loss is assessed to the tune of Rs.1,98,164as Net Assessed amount.

 

                    We have gone through the case laws relied upon a case Amalendu Sahoo V/S Oriental Insurance Company 2010 ACJ 1250 and Oriental Insurance Company Ltd.V/S Bansi lal 2007(II)SLJ(Con.In the case Amalendu Sahoo V/S Oriental Insurance Company,the Honble Supreme Court, has laid down that the 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 and even if it is assumed that there was breach of condition of the insurance policy, the Insurance Company ought to have settled the claim on non-standard basis. So in view of principle of law laid down in the above cited case law, the Insurance Company cannot repudiate the insurance claim in toto raised by the complainant regarding loss of the vehicle in question which is admittedly insured by the OP.The Hon’ble National Commission in the case New India Assurance Company Ltd.versus Narayan Prasad Appaprasad Pathak (2006)CPJ 144(NC),while granting claim on non-standard basis has set out in the judgment, the guidelines issued by the Insurance Company about the settling all such non-standard claims. According to guidelines noii) in case overloading of vehicles beyond licenced carrying capacity, the claims can be settled on non-standard basis by paying 75% of the admissible claim. The surveyor in this case in his report has assessed the loss to the tune of Rs.1,98,164/

                    In our view the point involved in the present case is squarely covered by the law laid down by Honble Supreme Court and Honble National Commission, wherein it has been held that in a case where there is breach of condition of insurance policy by carrying excess passengers, the insurance company should settle the claim on non-standard basis. In the said decision the guidelines have been reproduced and as per said guidelines in case of overloading of vehicles beyond licensed carrying capacity the claim can be settled on non-standard basis by paying insurance of 75% of the admissible claim. The proposition of law laid down by Honble Supreme Court in the said case is applicable in the instant case.

                     Perusal of file shows that surveyor had assessed the loss on Net Liability on Net Assessed Amount to the tune of Rs.1,98,164/and as per guidelines laid down by Honble Supreme Court, the complainant is entitled to reimbursement of claim to the extent of 75% of the admissible claim .The OP insurance company should have settled the claim of complainant on non-standard basis by paying 75% out of loss assessed by the surveyor, but in this case the OPs have not settled the claim even on non-standard basis also and thus the OPs are guilty of deficiency in service and is thus liable to indemnify the loss to the extent of 75% out of the assessed loss, which comes to Rs.1,48,623/                                  

               Therefore in view of the abovesaid discussion, we are of the view that the repudiation of insurance claim made by OPs is improper, unjustified and resorted to by insurance company OPs only to defeat the genuine claim of the complainant and it amounts to deficiency in service.

                         The complaint is accordingly allowed and the OPs are ordered to indemnify the complainant by paying him Rs.1,48,623.It is to be noted that complainant apart from actual expenses incurred on repair of vehicle, has also claimed Rs.2.00 lacs on account of mental pain, shock and suffering alongwith  interest from the date of filing of claim petition, till its final liquidation.Honble High Court, in Bajaj Allianz General Insurance Co.Ltd.Vs.Narinder Singh, passed in CIMA No.162/2013, decided on, 14-05-2013 in para 7 held as follows:

The case of the respondent falls within third description,i.e.,any other breach of warranty/condition of policy including Limitation as to use for which the insurer is to pay up to 75% of admissible claim.75% of the admissible claim has been awarded,i.e.Rs.2.50 lac.Same is in consonance with the ratio of the judgment referred. In our view, in the given circumstances, when maximum,i.e.75% of the admissible claim has been awarded, award of interest and litigation charges amounting to Rs.10,000/-shall be impermissible.However,parking expenses charged by the Garage where damaged vehicle was lying since accident are allowable. In total Rs.2.50 lac are worked out to be payable to the respondent.

                         Therefore, in view of law laid down by Hon’ble High Court, complainant is not entitled to over and above the 75% of admissible claim

               This order shall be complied with within one month from the date of receipt of the order. Copy of the order be provided to the parties free of charge. The complaint is accordingly disposed of and the file be consigned to records.

Order per President                                                     Khalil Choudhary

                                                                                     (Distt.& Sessions Judge)

                                                                                            President

Announced                                                           District Consumer Forum

   23-10-2018                                                                       Jammu.

Agreed by                                                               

 

Ms.Vijay Angral                                              

 Member    

 

Mr.Ghulam Sarwar Chauhan

Member