Haryana

Karnal

CC/407/2022

Udey Singh - Complainant(s)

Versus

Shriram General Insurance Company Limited - Opp.Party(s)

J.P. Duhan

31 Mar 2023

ORDER

 

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, KARNAL.

 

      Old complaint no.348 of 2020

                                              New complaint no.407/2022

                                        Date of instt.10.02.2020/18.07.2022

                                  Date of Decision 31.03.2023

 

Udey Singh son of Shri Dharampal Singh resident of village Phurlak, District Karnal.

                                                 …….Complainant.

                                              Versus

 

1.    Shri Ram General Insurance Company Ltd. through its Branch  Manager SCO no.21-22, 1^st floor, Mugal Canal, Karnal.

 

2.     Shri Ram General Insurance Company Ltd. through its Branch Manager E & EPIP, RIICO Industrial Area Sitapur, Jaipur (Rajasthan).

                                                                …..Opposite Parties.

 

Complaint under Section 12 of the Consumer Protection Act, 1986 as amended under Section 35 of Consumer Protection Act, 2019.

 

Before   Sh. Jaswant Singh……President.       

      Sh. Vineet Kaushik…….Member

      Dr. Rekha Chaudhary….Member

 

 Argued by: Shri J.P.Duhan, counsel for the complainant.

                    Shri Narender Kumar, counsel for the OPs.

 

                    (Jaswant Singh President)

ORDER:   

             

                The complainant has filed the present complaint under Section 12 of the Consumer Protection Act, 1986 as after amendment under Section 35 of Consumer Protection Act, 2019 against the opposite parties (hereinafter referred to as ‘OPs’) on the averments that complainant is the registered owner of the Tractor bearing Registration no.HR05AD-8367 and the said tractor was fully insured with the OPs, vide policy no.10003/31/18/511752, valid from 12.01.2018 to 11.01.2019. The policy was package/comprehensive. The total IDV of the tractor was Rs.3,27,358/- . On 05.09.2018, the said tractor was being driven with due care and caution by one Gain Chand of village Ghalana while going to nearby village Kuthar, when the tractor reached near Sadna Nala, in the meanwhile a Pick up van came from the opposite side and to save the said vehicle the tractor became unbalanced and turned turtle and fell into the deep Gorge more than 150 mtrs and this accident occurred without any fault or negligence on the part of the driver of the tractor. The vehicle was damaged extensively and it was totally loss beyond its repair. The driver of the said tractor also got injuries in this accident. The matter was reported to the Local Police and DDR no.10 dated 18.09.2018 was recorded with the Police Post Deha (P.S. Theog District Shimla). The abovesaid tractor is still now lying in the said Gorgeat the place of accident. It is not possible to get recovered/removed the tractor from the said Gorge. Thereafter, the matter was reported to the OPs and OPs appointed the surveyor, who conducted the survey of the damaged tractor. Despite submitting all the relevant documents with the OPs, the OPs neither settle the claim nor repudiated and no written intimation was received by the complainant and the matter is prolonged unnecessarily. In this way there was deficiency in service on the part of the OPs. Hence complainant filed the present complaint.

2.             On notice, OPs appeared and filed its written version raising preliminary objections with regard to maintainability; cause of action; mis joinder and non-joinder of necessary parties and concealment of true and material facts. On merits, it is pleaded that the vehicle in question was being driven by one Gian Chand son of Shri Lakshman Dass, who was possessing driving license to drive motorcycle without gear and light motor vehicle only. The surveyor at the time of conducting survey of the vehicle in question asked for driving licence of driver of the vehicle at the time of alleged incident, on this one Shama Nand son of late Shri Laxman Dass submitted the driving license of driver of said vehicle at the time of alleged accident, which was not found to be effective and valid to drive the tractor in question as such this is a clear cut violation of terms and conditions of policy that anybody who is driving the vehicle shall possess a valid and effective driving license at the time of accident. Only this fact oust the liability of insurance company and hence no claim under the policy. It is further pleaded that as per version given by said Shama Nand to the police on the basis of which the DDR was jotted down he averred that he has purchased the vehicle in question on the basis of installments from complainant. He is paying the installment of vehicle in question on behalf of complainant to the financer. This makes amply clear that the vehicle in question has been transferred without endorsement of OPs on the covernote. There is no privity of contract between Shama Nand and OPs, as such any act done by Shama Nand does not bind the OPs and has no liability in whatsoever manner under the policy. The complainant has violated the terms and conditions of the insurance policy as he has imparted the possession of the vehicle with another person without intimation to OPs. It is further pleaded that after taking into consideration of all facts, reminders/notices dated 24.11.2018, 08.12.2018, 30.12.2018 were given to the complainant for supply, complying and provided the below mentioned documents to process the claim:

.       Registration Certificate

.       Fitness Certificate

.       Permit Certificate

.       Certified copy of FIR

.       Kindly Retrieve your vehicle from valley and start the repairing.

 

It is further pleaded that the vehicle in question/under hire purchase with the Shriram Transport finance Co. Ltd., as per the provision of law and terms and conditions of the policy as well as the statutory guidelines laid down by the Insurance Regulatory Development Authority as contained in the Standard terms and conditions and under the IMT clauses as mentioned in the policy of insurance, in case of theft/loss/damage, the claim is only payable to the financer and the insured is not entitled to any claim. As such, the financer is a necessary party to the present complaint. In case any amount is ordered to be paid by the OP, then the same is to be paid to the financer only, being the financer of the vehicle. It is further pleaded that as per version of the complainant and documents submitted by him for processing the claim, it transpired that there is inordinate delay in lodging the FIR and imparting information to the OPs for the incident took place on 06.09.2018. There is delay of around 13 days to the police and a delay of 2 days to the OPs, hence complainant has been guilty of violation of the mandatory terms and conditions of the insurance policy and hence complainant is not entitled to any insurance claim. It is further pleaded that the surveyor of the OPs inspected the vehicle in question and assessed the loss to the tune of Rs.47736/- but the same is not liable to be payable to the complainant being there is gross violation of policy terms and conditions. There is no deficiency in service and unfair trade practice on the part of the OPs. The other allegations made in the complaint have been denied and prayed for dismissal of the complaint.

3.             Parties then led their respective evidence.

4.             Learned counsel for the complainant has tendered into evidence affidavit of complainant Ex.CW1/A, copies of legal notice postal receipts Ex.C1 to Ex.C3, copy of claim form Ex.C4, copy of Registration Certificate Ex.C5, copy of DDR Ex.C6, copy of driving licence Ex.C7, copy of surveyor report Ex.C8, copy of Aadhar card Ex.C9 and closed the evidence on 22.10.2019 by suffering separate statement.

5.             On the other hand, learned counsel for the OPs has tendered into evidence affidavit of Amandeep Sharma, Manager Ex.OP1/A, copy of insurance policy Ex.OP1, policy schedule Ex.OP2, copy of survey report Ex.OP3, copy of motor insurance claim form Ex.OP4, copy of DDR Ex.OP5, copy of driving licence/registration certificate Ex.OP6, copies of letters dated 30.12.2018, 24.11.2018, 08.12.2018 Ex.OP7 to Ex.OP9 and closed the evidence on 10.12.2019 by suffering separate statement.

6.             It is pertinent to mention here that the present complaint had been decided by this Commission on 10.02.2020. The OPs had challenged the order passed by this Commission before the Hon’ble State Consumer Disputes Redressal Commission, Haryana, Panchkula by way of filing the appeal. The Hon’ble State Commission, vide its order dated 13.06.2022 accepted the appeal of the OPs and set aside the order dated 10.02.2020 passed by this Commission and case has been remitted to the District Commission with the direction to decide the matter afresh after submitting reply by the OPs as well as leading both parties evidence.

7.             We have heard the learned counsel for the parties and perused the case file carefully and have also gone through the evidence led by the parties.

8.             Learned counsel for complainant, while reiterating the contents of the complaint, has vehemently argued that complainant got insured his tractor with the OPs. On 05.09.2018, the said tractor was met with an accident and was damaged extensively. The driver of the said tractor also got injuries in this accident. The matter was reported to the Local Police and DDR no.10 dated 18.09.2018 was recorded in the Police Post Deha (P.S. Theog District Shimla). The information was also given to the OPs and on receipt of intimation, OPs appointed the surveyor, who conducted the survey of the damaged tractor. He further argued that despite submitting all the relevant documents with the OPs, the OPs neither settled the claim nor repudiated the same and lastly prayed for allowing the complaint.

9.             Per contra, learned counsel for the OPs, while reiterating the contents of written version, has vehemently argued that the driving license of driver of said vehicle at the time of alleged accident was not found to be effective and valid. He further argued that Shama Nand has suffered his statement to the police and on the basis of which the DDR was lodged, he averred in his statement that he has purchased the vehicle in question from the complainant. There is no privity of contract between Shama Nand and OPs. The complainant has violated the terms and conditions of the insurance policy as he had handed over the possession of the vehicle with another person without intimation to OPs. OPs sent letter and reminders to the complainant for supplying the documents to process the claim but complainant did not submit the same. He further argued that there is inordinate delay in lodging the FIR and imparting information to the OPs for the incident took place on 05.09.2018 and DDR lodged on 18.09.2018 i.e. after delay of 13 and intimation was sent to the OPs after delay of 2 days. The surveyor of the OPs inspected the vehicle and assessed the loss to the tune of Rs.47,736/- but the same is not liable to be payable to the complainant being there is gross violation of policy terms and conditions. He further argued that vehicle in question has not taken out from trench and it goes unproved that the vehicle which is lying in the trench actually belong to the complainant or not. He further argued that the OPs were legally entitled for the salvage which was not handed over by the complainant and lastly prayed for dismissal of the complaint.

10.           We have duly considered the rival contentions of the parties.

11.          The claim of the complainant has been closed by the OPs, vide letter Ex.OP7 dated 30.12.2018 on the ground that the complainant has failed to submit the documents and also has failed to retrieve his vehicle from the valley and start the repair work.

12.           OPs have sought the following documents in letters Ex.OP7 to Ex.OP9, which is reproduced as under:-

1.     Registration Certificate

2.     Fitness Certificate

3.     Permit Certificate

4.     Certified copy of FIR

                and

 also asked the complainant to retrieve his vehicle from valley and start the repairing.

13.           When the complainant has got recorded the DDR no.10 dated 18.09.2018 Ex.C6/Ex.OP5 in Police Post Deha, Theog District Shimla and remaining documents were in the possession of complainant, then as to why an insured whose personal interest is involved for claim amount, will not supply the documents to the insurance company for getting his claim amount and why he will indulge himself in unwanted litigations. Thus, the plea taken by the OPs has no force.

14.           Admittedly, the vehicle in question is lying deeply in more than 150 mtrs. of trench. It is also admitted that the surveyor of the OPs has taken photographs of the vehicle in question from deep trench and has come to the conclusion that caption vehicle is lying in deep trench at spot location. Therefore, the submission made by the learned counsel for the OPs with regard to whether the vehicle is lying in the deep trench belongs to the complainant or not is having no force.

15.           The vehicle in question is lying in the deep trench and there is no possibility to retrieve the same from the valley and thus the question for starting the repair work does not arise at all. Learned counsel for the OPs also submitted that OPs were entitled for the salvage, but complainant had not handed over the salvage to the OPs. The vehicle in question is not retrievable from the valley, thus the question for handing over the salvage by complainant to the OPs does not arise. However, OPs are at liberty to retrieve the vehicle in question from the valley and take the possession of the same for the purpose of salvage.

16.           The next plea taken by the OPs is that the vehicle in question was being driven by one Gian Chand, who was possessing driving license to drive motorcycle without gear and light motor vehicle only. Thus, he was not entitled to drive the vehicle in question. In this regard we are fortified with the observations of judgment of the Hon’ble Supreme Court in case titled as Mukund Dewangan Versus Oriental Insurance Company Ltd. 2017(4) RCR (Civil) page 111 held that when a driver is holding a licence to drive ‘light motor vehicle’, he is competent to drive a ‘transport vehicle’ of that category without specific endorsement to drive the transport vehicle.  Thus, in view of the above judgment there is no force in the version of the OPs.

 17.          The vehicle in question was got surveyed by the surveyor of the OPs, who prepared his final survey report OP3 dated 30.09.2018 and assessed the loss to the tune of Rs.47,736/-. The vehicle in question was lying in the deep trench, the surveyor has failed to explain on what basis he assessed the loss and made the huge deduction, when he has not examined the vehicle  by leading in trench. Thus, the report of the surveyor of the OPs is totally arbitrarily and unjustified. Furthermore, the said deduction is based on presumption and assumption even not supported by any documentary evidence, whereas it has been proved on record that the vehicle is not retrievable from the trench. Thus, the surveyor’s report in this regard is thus arbitrary, unjustified, biased, based on presumptions and assumptions and it cannot be the last word for the determination of actual loss. In this regard, we are also fortified from the judgment of the Hon’ble Supreme Court of India in case titled as New India Assurance Company Limited vs. Pradeep Kumar (2009 (6) SCALE, 253) wherein it was held that “The surveyor’s report is not the last and final word. It is not that sacrosanct that it cannot be debarred from, it is not conclusive. The approved surveyor’s report may be basis or foundation for settlement of a claim by the insurer in respect of the loss suffered by the insured but surely such report is neither binding upon the insurer nor insured.” This proposition of law was followed by the Hon’ble Apex Court in Sikka Papers Limited vs. National Insurance Company Ltd. & Ors. (III (2009) CPJ 90 (SC). The Hon’ble Chhatisgarh State Consumer Disputes Redressal Commission, Raipur in case titled as Oriental Insurance Co. Ltd. & Anr. Versus Pukhraj Bothra, IV (2004) CPJ 615 has held that “it is true that normally the estimate of surveyor regarding loss has to be given due consideration but it cannot be said to be the last word for determination of actual loss”. The above said authorities are fully applicable to the facts and circumstances of the present case. In the present case, we are also of the considered opinion that the surveyor has assessed the loss for favoring the OP and therefore same cannot be given more weightage. Rather it is proved on record, that the vehicle in question was totally damaged.

18.           Further,  Hon’ble Punjab and Haryana High Court in case titled as New India Assurance Company Ltd. Versus Smt. Usha Yadav & others 2008 (3) RCR (Civil) 111, has held as under:-

“It seems that the Insurance Companies are only interested in earning the premiums which are rather too stiff now a days, but are not keen and are found to be evasive to discharge their liability. In large number of cases, the Insurance companies make the effected people to fight for getting their genuine claims. The Insurance Companies in such cases rely upon clauses of the agreements, which a person is generally made to sign on dotted lines at the time of obtaining policy. This is, thus pressed into service to either repudiate the claim or to reject the same. The Insurance Companies normally build their case on such clauses of the policy, but would adopt methods which would not be governed by the strict conditions contained in the policy”.

19.           Keeping in view the ratio of the law laid down in the abovesaid judgments, facts and circumstances of the complaint, we are of the considered view that act of the OPs amounts to deficiency in service and unfair trade practice. 

20.            As per insurance policy Ex.OP2 the insured declared value (IDV) of the tractor in question is Rs.3,27,358/-.  Hence, complainant is entitled for the IDV of the tractor in question alongwith interest, compensation for mental pain and agony and litigation expenses.

21.           Thus, as a sequel to abovesaid discussion, we allow the present complaint and direct the OPs to pay Rs.3,27,358/- (Rs.three lakhs twenty seven thousand three hundred fifty eight only) the insured declared value of the vehicle  to the complainant alongwith interest @ 9% per annum from the date of closing of the claim i.e.30.12.2018 till its realization. We further direct the OPs to pay Rs.15,000/- to the complainant on account of mental agony and harassment suffered by him and Rs.5500/- for the litigation expenses. Complainant is also directed to complete the formalities with regard to transfer of the vehicle in question in favour of the OPs as and when they desired. This order shall be complied within 45 days from the receipt of copy of this order. The parties concerned be communicated of the order accordingly and the file be consigned to the record room after due compliance.

Announced

Dated: 31.03.2023

                                                                        President,

                                                           District Consumer Disputes

                                                           Redressal Forum, Karnal.

 

                     (Vineet Kaushik)     (Dr. Rekha Chaudhary) 

                        Member                       Member