PER
Sh. Charanjit Singh, President
1 The complainant has filed the present complaint by invoking the provisions of Section 34 and 35 of the Consumer Protection Act against the opposite party on the allegations that the complainant is owner of truck No. PB02-DN-3506 make Ashok Layland, which was insured with O.P. for a sum of Rs. 26,00,000/- vide policy No. VGC0734433000100 effective from 23.4.2021 till midnight on 22.4.2022. Opposite Party charged Rs. 55,572/- for the insurance of the vehicle in question. Though the vehicle of the complainant was in very good condition, and was having market value much more than Rs.26,00,000/- for which it was insured, but O.P insured the vehicle for Rs.26,00,000/- only. No term and condition of the policy was ever supplied by O.P with regard to the policy in question nor the same was brought to the notice of the complainant at the time of issuing the insurance policy or subsequently. Copy of Adhaar Card of the complainant is Ex.C-2, Copy of registration certificate of the vehicle is Ex.C-3 and Copy of insurance policy issued by O.P with regard to insurance of the said vehicle is Ex.C- 4. The said vehicle was being used by the complainant exclusively for self-employment and earning his livelihood with the help of one Mr. Prabhjit Singh, who in case of need used to help the complainant as driver as well. On 24.05.2021, in the evening, when there was lockdown everywhere due to Covid-19, since the vehicle was to be loaded with wheat at Amarkot Grain Market, and since it was already very late in the evening as the driver had already unloaded the wheat at Randhawa Godown at Tarn Taran, and after reaching at Amarkot Grain Market, the Ahrtiya told the driver to bring the vehicle over there in the morning as the labour who were to load the vehicle had already left. Thus, the driver took the vehicle to Grain Market, Patti and parked and properly locked the vehicle in one of the sheds over there as many other vehicles were already parked over there. This was informed by the driver to the complainant as well at that over there, the driver informed the complainant and went to his relative's place over there for the night. In the morning when he came back to take the vehicle, the same was not there. Therefore, he informed the complainant who reached over there and both started searching the vehicle with the help of others, but in vein. Accordingly, on 25.5.2021, the same was informed to the police at P.S. City Patti as per letter dated 25.05.2021, copy of which is Ex.C-5 on the basis of which General Dairy with G.D.No.026 was lodged, copy of which is Ex.C-6 and the matter was tagged with similar other matter as per FIR No.0266 dated 17.11.2020, copy of which is Ex.C-7. Even site plan was drawn by the police, copy of which is Ex.C-8. Claim was lodged with O.P and all the documents as and when demanded by O.P was submitted to them, even un-trace report was supplied to O.P, copy of which is Ex.C-9 and Copy of report issued by police U/s.173 Cr.P.C. issued by Judicial Magistrate at Patti is Ex.C-10. Vide letter dated 28.04.2022, copy of which is Ex.C-11, O.P settled the genuine claim of the complainant conditionally to 75% of IDV less Policy Excess on non-standard basis on the arbitrary ground of breach of condition No.5 of the goods vehicle policy stating that the vehicle was left unattended without watch or ward and no proper precautions taken to safeguard the vehicle from loss. The said act of O.P of declining proper claim of the complainant is gross deficiency in service causing financial loss, as well as harassment and mental agony to the complainant, making complainant entitled for compensation for such deficient act of O.P as the said contention of O.P of breach of condition No.5 of the policy is arbitrary, as neither the policy issued to the complainant had any term and condition annexed with it, nor the same was brought to the notice of the complainant at that time, or even subsequently, nor any narration of condition No. 5 has been mentioned or reiterated in the letter dated 28.04.2022 declining full claim. Furthermore, the vehicle was admittedly parked by the driver after properly locking the vehicle over there in the shed inside the market courtyard where other vehicles are also parked in the night under that very shed, and it cannot be said that proper precautions were not taken by the driver at the time of parking the vehicle to safeguard the same and the same was not parked at any isolated place or the vehicle was not abandoned in dangerous zone. The complainant has prayed that the opposite party be directed to remove the said deficiency and further directed to settle the claim and to;-
- Pay Rs. 26,00,000/- as per insurance policy, with interest @18% from the date of loss till its payment;
- Pay compensation to the complainant to the tune of Rs. 1,00,000/- for harassment as well as mental agony as well;
- Pay cost of complaint to the tune of Rs. 33,000/-/
2 Notice of this complaint was sent to the opposite party and opposite party appeared through counsel and filed written version by interalia pleadings that the complainant has not approached the Commission with clean hands and he had suppressed material facts from this Commission as the present complaint is not maintainable in this Commission as the alleged vehicle in question is not used by the complainant exclusively for self employment and for earning his livelihood as the vehicle in question is a commercial vehicle and used for commercial purpose for earning profit and award and further complainant has deputed one driver Prabhjit Singh who was getting salary and the reward from the complainant as such the present complaint relates to a commercial vehicle as such the present complainant is not maintainable before this Commission. The truck bearing registration No. PB02-DN-3506 as mentioned in the complaint is not insured with the opposite party i.e. Royal Sundram General Insurance Company Ltd. The incident occurred due to gross negligence and malafide intention of the Driver Parabjit Singh, who has acted with a gross negligence and having a careless approach while parking the alleged truck in an open Area, without any valid parking or caretaker, neither there is watchman in the area and above all the driver has not left anybody in the alleged truck nor any helper to look after the alleged truck, further when he informed regarding the alleged truck parked in an open space to the owner Bhupinder Singh, despite that owner Bhupinder Singh has not taken any safeguard steps to ensure the safety and care of the said truck which was left in open space, which is not a valid parking. The alleged story put forward by the driver & owner is a concocted one and created by the owner/complainant along with the driver, as the main purpose of the complainant party is grab the valuable money of the insurance company/opposite party. The complainant if accrued such a big loss why independent FIR was not registered in this case, as the same was clubbed with some other cases and above no investigation was conducted in the matter by the police officials, to trace out the truck in question. The alleged FIR No.266 was registered on 17-10-2020 in PS City Patti under Section 379 IPC in District Tam Taran on the statement of one Ranjit Singh son of Jaimal Singh r/o H.No.717/11, Guru Nanak Colony, Patti, Tarn Taran against some unknown person. The alleged FIR No.266 was regarding theft of alleged motor cycle bearing no. PB-38-C-0599 only. The complainant Bhupinder Singh has lodged complaint in this case after 2 days delay in the alleged occurrence and thereafter no efforts were made by the complainant and police to Register the FIR in this case and only Rapat was lodged vide DDR no.26 dated 25-05-2021. The mala fide intention of the complainant is clear that he and his driver waited for 2 days in which they can easily dispose of the vehicle, so that vehicle may be sent to some other state far away as police will not be able to trace out the same in-connivance with them they will have monetary benefits from this whole incident. The complainant as well as driver Prabhijit Singh along with complainant friend has submitted in the complaint moved to SHO PS City Patti that driver Prabhjit Singh has locked all the original documents in the truck and locked the same with proper care and if all the documents were in truck then from where the complainant has produced these documents now, when the vehicle was stolen alongwith the documents as submitted by the complainant party. The complainant party has misled and withheld material facts from this Commission and presented a concocted story just in order to have only monitory benefits. Neither the complainant party has submitted any mandatory documents neither they have supplied any record, above all no record of police proceedings to prove their alleged submission i.e. Rapat or any other documents are not attached or forwarded even till today. The opposite party is not liable for misleads an unethical acts of complainant and hence the present complaint be dismissed with heavy costs. The ad-volerm court fees has not been affixed on the complaint by the complainant as such it is not maintainable. This Commission has no jurisdiction to try and entertain this complaint. The alleged truck bearing registration no. PB02-DN-3506 as mentioned in the complaint is not insured with the opposite party i.e. Royal Sundram General Insurance Company Ltd. The opposite party has denied the other contents of the complaint and prayed for dismissal of the same. Alongwith the written version, the opposite party has placed on record affidavit of manager Ex. OP1, self attested copy of insurance Policy Ex. OP-2, Self attested copy of reminder 1 for pending documents Motor claim CV00071112 dated 28.9.2021 Ex. OP-3, Self attested copy of reminder 3 for pending document Motor Claim CV00071112 dated 11.2022.
3 We have heard the Ld. counsel for the parties and have also carefully gone through the documents on the file.
4 From the combined and harmonious reading of documents and pleading on file is going to prove that the complainant is owner of truck No. PB02-DN-3508( wrongly written as PB02-DN-3506) make Ashok Layland, and same was insured with O.P. for a sum of Rs. 26,00,000/- vide policy No. VGC0734433000100 effective from 23.4.2021 till midnight 22.4.2022. The complainant paid Rs. 55,572/- as a consideration for the insurance of the said truck. Copy of registration certificate Ex. C-3 as well as copy of insurance issued by the opposite party is Ex. C-4 which clearly prove that the registration Number of the said vehicle is PB02-DN-3508 instead of PB02-DN-3506. As per the contentions the said truck was stolen on dated 24.5.2021, as it was parked at Grain Market Patti, and the said truck was properly locked in one of the shed of grain market with the other vehicles . But unfortunately on the said night, it was stolen from the parking. The said fact was immediately informed to the Police station Patti as per letter dated 25.5.2021. Copy of the same is Ex. C-5. On the basis of which DDR was lodged as GD No. 026 which is Ex. C-6. Thereafter, the said matter was tagged with similar other matter as per FIR No. 0266 dated 17.11.2020, copy of the said FIR is Ex. as C-7. The said truck was never traced out and as such an untraced report was prepared by the police under Section 173 Cr.P.C. issued by Judicial Magistrate at Patti Ex. C-10. Further, the opposite party settled the claim of the complainant conditionally to 75% of IDV, less policy excess on non-standard basis, on the arbitrary ground of breach of condition No. 5 of the goods vehicle policy stating that the vehicle was left unattended without watch or ward and no proper precaution taken to safe guard the vehicle from loss. However, the complainant has prayed for the full IDV Value i.e. Rs. 26,00,000/- because as per the contentions of the complainant that the opposite party has never supplied the terms and conditions of the policy, as well as has never explained the terms and conditions of the said policy. As such, the claim calculated on the non standard basis is arbitrary, illegal and void.
5 On the other hands, the contentions of the opposite party are that the said truck was being used for commercial purpose for profits. As such, this complaint is not maintainable before this commission. Further the truck bearing registration No. PB02-DN-3506 as mentioned in the complaint is not insured with the opposite party i.e. Royal Sundram General Insurance Co. Ltd. Further contended that the incident occurred due to gross negligence and malafide intention of the driver Prabhjit Singh who has acted with the gross negligence and having the careless approach while parking the alleged truck in the open area without any valid parking or care taker. The alleged story put forward by the driver and owner is concocted one and created by the owner/ complainant alongwith the driver just to grab the money. Further contended that as there was the big loss, why an independent FIR was not registered in this case. The alleged FIR No. 266 was regarding theft of alleged motorcycle bearing No. PB38-C-0599 only. There was the delay of 2 days in intimating the police authority. The opposite party further contended that if the documents of the truck were in the truck, then how the complainant has submitted the said documents with the opposite party with the claim form.
6 The opposite party has taken the specific objection that the said truck was used for commercial purposes by employing one driver, but we are not agreed with the contention of the opposite party as the complainant has specifically pleaded in the complaint that the said truck is being used for his livelihood. Further, the complainant has employed only one driver for the said purpose and it does not mean that he is using the said track for commercial purpose only.
7 The other objection raised by the opposite party is that they have never insured the above mentioned truck i.e. PB02-DN-3506, but, in the rejoinder the complainant has categorically stated that infact the truck is bearing its registration No. PB02-DN-3508 and while drafting the complaint wrong registration Number of the vehicle was mentioned as PB02-DN-3506, however, this fact is very much clear from the registration certificate as well as Insurance certificate, the said fact has never been contradicted by the opposite party. Furthermore, as per Ex. C-11, the opposite party after admitting the ownership of complainant qua truck, after admitting the consumer to complainant and after admitting the valid insurance qua truck in question has given the offer of 75% i.e. on Non Standard Basis. As such, the above said contention of the opposite party supported the version of the complainant regarding the controversy of vehicle Number.
8 The opposite party has taken the specific objection that there is delay in lodging police complaint qua the theft of the said truck. But from the record it has been observed that on the very next day, information to the Police authority was lodged. However the opposite party has also taken the objection hat why a separate FIR was not lodged and FIR which is registered as 0266 which pertains to theft of some motorcycle. But we are not agree with the contention of the opposite party as the police authority at various point of times clubbed the FIRs of similar nature cases with each other and in this matter the police authority has clubbed the theft of vehicle in question with FIR No. 0266.
9 The opposite party has taken other objection as per Ex. C-11 that the vehicle was left unattended without watch or ward and no proper precaution were taken to safeguard the vehicle from loss. As such, the clarification given by you inconsistence, which is breach of condition No. 5 of the Goods Carrying Vehicle Policy. However, based on the benefit of doubt we offered our liability to process the claim on non standard basis i.e. 75%of our liability (IDV) less policy excess. It is very much clear that the claim of the vehicle was settled on non standard basis on the ground that the complainant has breached the condition No. 5 of the goods carrying vehicle policy. But the complainant has specifically pleaded that no terms and conditions were ever supplied to the complainant. Further, at the time of issuance of policy, the terms and conditions were never explained to the complainant. As such, we are not agreed with the opposite party that on the breach of condition No. 5 of the policy, they have settled the claim on non standard basis. Further, the said vehicle was admittedly parked by the driver but after properly locking the vehicle and said vehicle was parked inside the market yard with other vehicles. So, it cannot be said that proper precautions were not taken by the driver at the time of parking. The said vehicle was not parked at any isolated place as well as abandoned place. The opposite party has not placed on record any cogent document which proves that terms and conditions were ever supplied to the complainant. No affidavit of the concerned manager or any agent who has explained the terms and conditions of the policy to the complainant at the time of issuance of policy has been placed ion record. Even subsequently nor any narration of condition No. 5 has been mentioned or reiterated n the letter dated 28.4.2022 declining full claim.
10 The terms and conditions were not supplied to the complainant and refusal of full claim under the garb of breach of condition No. 5 of the non supply of terms and conditions as was held in matter of Ashok Sharma Vs National Insurance Co. Ltd. 2016(2) CLT 143NC that the condition relied by the insurance company for repudiation of the claim was never brought to the knowledge of the insured, therefore, the insurance company was not justified in repudiating the insurance claim on the basis of said condition. In 2001(1)CPR 93 (Supreme Court) 242 titled as M/s Modern Insulators Ltd Vs The Oriental Insurance Company Ltd, Hon’ble Apex Court held that clauses which are not explained to complainant are not binding upon the insured and are required to be ignored. Furthermore, It is usual with the insurance company to show all types of green pastures to the customer at the time of selling insurance policies, and when it comes to payment of the insurance claim, they invent all sort of excuses to deny the claim. In the facts of this case, ratio of the decision of Hon’ble Apex Court in case of DharmendraGoel Vs. Oriental Insurance Co. Ltd., III (2008) CPJ 63 (SC) is fully attracted, wherein it was held that, Insurance Company being in a dominant position, often acts in an unreasonable manner and after having accepted the value of a particular insured goods, disowns that very figure on one pretext or the other, when they are called upon to pay compensation. This ‘take it or leave it’, attitude is clearly unwarranted not only as being bad in law, but ethically indefensible. It is generally seen that the insurance companies are only interested in earning the premiums and find ways and means to decline claims. In similar set of facts the Hon’ble Punjab & Haryana High Court in case titled as New India Assurance Company Limited Vs. Smt.UshaYadav& Others 2008(3) RCR (Civil) Page 111 went on to hold as under:-
“It seams that the insurance companies are only interested in earning the premiums and find ways and means to decline claims. All conditions which generally are hidden, need to be simplified so that these are easily understood by a person at the time of buying any policy. The Insurance Companies in such cases rely upon clauses of the agreement, which a person is generally made to sign on dotted lines at the time of obtaining policy. Insurance Company also directed to pay costs of Rs.5000/- for luxury litigation, being rich.
11 Perusal of Insurance policy certificate Ex. OP2 shows the insured Declared Value (IDV) as Rs. 26,00,000/-.
12 In light of the above discussion, the complaint succeeds as discussed above and is allowed with costs in favour of complainant and against Opposite Party. The opposite party is directed to pay Rs. 26,00,000/- as IDV of the vehicle to the complainant as insurance claim, subject to fulfilling the necessary requirement for the transfer of the vehicle in question in the name of Opposite Party (Insurance Company) and filing the subrogation letter and other necessary compliance. The complainant is also entitled to Rs. 25000/- as compensation on account of harassment and mental agony. The complainant is also awarded Rs15000/- as costs of litigation from the Opposite Party. Opposite Party is directed to pay the awarded amount to the complainant within one month from the date of receipt of copy of the order failing which the complainant is entitled to interest @ 9% per annum, on the awarded amount, from the date of complaint till its realization. Case could not be disposed of within the stipulated period due to heavy pendency of the cases in this Commission and due to COVID-19. Copies of the order be furnished to the parties as per rules. File is ordered to be consigned to the record room.
Announced in Open Commission.
14.06.2023
