Before the District Consumer Disputes Redressal Forum, Rohtak.
Complaint No. : 413.
Instituted on : 12.11.2014.
Decided on : 17.05.2016.
Rohtas s/o Sh. Tek Ram, resident of V.P.O.-Brahmanvas District-Rohtak.
………..Complainant.
Vs.
- Tata AIG General Insurance Co. Ltd. Address-301-308, Third Floor, Aggarwal Prestige Mall, Plot No.2, Road No.44, Near M2K Cinema, Rani Bagh, Pitampura, through its General Manager, New Delhi-110034.
- Tulsi Lok & Sons, Address-Bhiwani Road, Rohtak, authorized Sale & Service Dealers for-Escort, Farmtrac Tractor, LML Scooter & Bike etc.
……….Opposite parties.
COMPLAINT U/S 12 OF CONSUMER PROTECTION ACT,1986.
BEFORE: SH.JOGINDER KUMAR JAKHAR, PRESIDENT.
MS. KOMAL KHANNA, MEMBER.
SH. VED PAL, MEMBER.
Present: Sh. Mukesh Kumar, Advocate for the complainant.
Sh. Gulshan Chawla, Advocate for the opposite party No.1.
Opposite party no.2 exparte.
ORDER
SH. JOGINDER KUMAR JAKHAR, PRESIDENT :
1. The present complaint has been filed by the complainant with the averments that complainant is owner of a tractor bearing registration No.HR-12X-8331 and the same was insured with the opposite party vide cover note no.12761200 for the period from 11.04.2014 to 10.04.2015 through opposite party no.2. It is averred that the complainant after cutting the crop had no work in the field in the month of May-June 2014 regarding Agriculture and Forestry and other than the complainant has no knowledge of any other work or business also and thus the complainant had started the work with the help of his tractor No.HR-12X-8331 in the field of agriculture and forestry. It is averred that on 20.06.2014 the complainant/insured parked his tractor on road using safety cones for watering the plants planted on the divider of highway with the help of water tanker. Suddenly a truck while being driven rashly hit with the insured tractor, due to which the insured tractor hit with the divider and overturned with upside down thus sustaining number of damages and the tractor of the complainant was badly damaged. It is averred that complainant intimated the opposite party regarding the accident within time and opposite party appointed the surveyor and the complainant submitted all the relevant documents to the surveyor. The surveyor and officials of the opposite party directed the complainant to carry his vehicle for repair. It is averred that the surveyor after taking the photographs of accidental vehicle and inspection of spot and vehicle submitted his report and estimate with opposite party. It is averred that the complainant got his vehicle repaired from one Tulsi Lok & Sons, after spending a huge amount of Rs.128946/- and submitted the bills with the opposite party and thereafter assured the complainant that he will receive the payment after some days. But the opposite party vide its letter dated 02.09.2014 has refused to give the total claim amount to the complainant. It is averred complainant requested the opposite parties to pay the genuine claim and also served a notice but to no effect. It is averred that the act of opposite party is illegal and amounts to deficiency in service. As such it is averred that the opposite parties may kindly be directed to pay the amount of Rs.128946/- plus miscellaneous expenses alongwith interest, compensation and litigation expenses to the complainant.
2. On notice, opposite party no.2 did not appear despite service and as such opposite party no.2 was proceeded against exparte vide order dated 24.12.2014 of this Forum. However opposite party no.1 appeared and filed its written reply submitting therein that the present policy in question is for Agriculture and forestry use only. That as per the version given in the FIR and written statement given by the complainant, the vehicle in question at the time of alleged accident was being plied on contract basis for irrigation of plants on the road side. That the policy purchased by complainant is for agriculture and forestry use only and not for commercial purpose. It is averred that the act of complainant of renting the tractor on contractual terms for watering the plants is covered under Hire or reward which is in violation of policy condition pertaining to “Limitation as to use”. It is averred that the surveyor had assessed the loss amounting to Rs.65633/-subject to fulfillment of terms and conditions of the policy but the same has not been paid to the complainant for violation of terms and conditions of the policy. It is averred that there is no deficiency in service on the part of answering opposite party and dismissal of the complaint has been sought.
3. Both the parties led evidence in support of their case.
4. Complainant in his evidence tendered has tendered his affidavit Ex.CW1/A and documents Ex.C1 to Ex.C30 and has closed his evidence. Ld. counsel for the opposite party No.1 in his evidence has tendered affidavit Ex.RW1/A, documents Ex.R1 to Ex.R9 and closed his evidence.
5. We have heard ld. counsel for the parties and have gone through the material aspects of the case very carefully.
6. In the present case it is not disputed that as per policy schedule Ex.R1, the tractor of the complainant was insured with the opposite party w.e.f. 11.04.2014 to 10.04.2015. It is also not disputed that as per copy of FIR Ex.R7 the alleged vehicle had met with an accident and the surveyor as per his report Ex.R3 has assessed the loss amounting to Rs.65633/- but the same has been repudiated by the opposite party no.1 vide its letter Ex.R4 on the ground that at the time of accident the vehicle was being used in violation of policy conditions related to Limitation as to use. In order to prove its contention opposite party has placed on record terms and conditions of the policy Ex.R2.
7. After going through the file and hearing the parties it is observed that the claim of the complainant has been repudiated by the opposite party no.1 on the ground that the policy was for agriculture and forestry only but at the time of accident, the vehicle was used in violation of terms and conditions of the policy related to limitation as to use. In this regard it is observed that as per the documents placed on record, at the time of accident tractor was being used for watering the plants for earning his livelihood by the complainant, which also comes under the agriculture purpose. Moreover opposite party has not placed on record any document to prove that the alleged terms and conditions were part of the policy and were delivered to the complainant. In this regard we have placed reliance upon 2013(1)CLT 589 titled as New India Asurance Co. Ltd. Vs. Pabbati Sridevi & Others whereby Hon’ble National Commission has held that: “Terms and conditions therein, not communicated to the insured-Whether can be used by Insurance Company-No-Held that the terms and conditions were never issued to the insured-Policy is in the nature of standard, printed documents. There is nothing to show that its contents were part of the policy document issued to the insured-Terms and conditions in insurance policy cannot be rely upon by insurance company”, as per 2015(1)CLT591 titled as Star Health and Allied Vs. Asha & Others, whereby it is held that: “Insurance policy-Exclusion clause-Not explained to insured when cover not was issued-Insurance company cannot derive any benefit from exclusion clause” and as per 2009(3)CLT 184 titled ICICI Lombard General Insurance Co. Ltd. Vs. Gurmeet and another, Hon’ble Punjab State Commission, Chandigarh has held that: “No evidence to prove if the document was either signed by the complainant-insured or if it was an enclosure of the insurance policy or if it was duly communicated to respondent no.1-The insurance Company cannot avail the benefits of these terms and conditions contained in the document”. In view of the aforesaid law which are fully applicable on the facts and circumstances of the case it is observed that the repudiation of claim by the opposite party is illegal and unjustified and the complainant is entitled for the claim amount as per report of surveyor.
8. In view of the facts and circumstances of the case, it is directed that opposite party no.1 shall pay the claim amount of Rs.65633/- (Rupees sixty five thousand six hundred thirty three only) along with interest @ 9% p.a. from the date of filing the present complaint i.e. 12.11.2014 till its realization and shall also pay a sum of Rs.3500/-(Rupees three thousand five hundred only) as litigation expenses to the complainant maximum within one month from the date of decision failing which the awarded amount shall carry further interest @ 12% p.a. from the date of decision. Complaint is disposed of accordingly.
9. Copy of this order be supplied to both the parties free of costs. File be consigned to the record room after due compliance.
Announced in open court:
17.05.2016.
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Joginder Kumar Jakhar, President
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Komal Khanna, Member.
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Ved Pal, Member.
