BEFORE THE DISTT.CONSUMER DISPUTES REDRESSAL FORUM; FATEHABAD.
C.C.No.69 of 2016.
Date of Instt.: 29.02.2016.
Date of Decision:11.04.2017
Darshan Singh son of Farid Ram, resident of Jakhan Dadi Tehsil Ratia District Fatehabad.
..Complainant
Versus
1.TATA AIG General Insurance Company Limited 301-308, Third Floor, Aggarwal Prestige Mall Plot No.2 Road No.144 Near M2K Cinema Rani Bagh, Pitampura, New Delhi 110034 through its Manager.
2. M/s Garg Motors Mahendera, Opposite Shobhraj Batra Dharampal GT Road, Fatehabad Tehsil & District Fatehabad through its proprietor/partner.
..Opposite Parties
Complaint U/S 12 of the CP Act, 1986
Before: Sh.Raghbir Singh, President. Smt.Ansuya Bishnoi, Member. Sh.R.S.Panghal, Member.
Present: Sh.Dayanand Siwach, Advocate for complainant. Sh.V.K.Mehta, Advocate for OP No.1. Sh.Jagmohan Dhariwal, Advocate for OP No.2.
ORDER
The complainant has filed the present complaint under Section 12 of the Consumer Protection Act, 1986 against the opposite parties (hereinafter to be referred as ‘OPs’) with the averments that he had purchased vehicle Mahindra Bolero Maxi Truck bearing temporary No.HR99-QB-Temp-09B02 from OP No.2 vide invoice No.INV14B000181 dated 10.02.2014 for a sum of Rs.4,45,961/- and the said vehicle was allotted registration No.HR62-7993 by the Registering Authority, Fatehabad. It has been further averred that he got the said vehicle insured vide policy No.0100925131 having validity from 07.02.2014 to 06.02.2015 with Op N.1. It has been further averred that on 12.06.2014 the vehicle of the complainant met with an accident and got badly damaged. He intimated about the accident to the OP No.1 and as per its instructions took the damaged vehicle to the premises of Op No.2 where the surveyor had inspected the vehicle, clicked the photographs of the same and thereafter assessed the loss. The complainant got the said vehicle repaired from Op No.2 by spending Rs.53,000/- and also submitted the bills thereof with Op No.1 through Op No.2. It has been further averred that the complainant requested the OP No.1 to make the payment but it lingered on the matter on one pretext or the other and further repudiated the same vide letter dated 17.10.2014 wrongly and illegally on the ground that at the time of accident 5 persons were travelling in the vehicle which was beyond the limitation of its usage. The act and conduct of the OPs clearly amounts to deficiency in service on their part. In evidence the complainant has tendered his affidavit Annexure CW1/A and also tendered documents Annexure C1 to Annexure C3.
3. On notice, OPs appeared and contested the complaint of the complainant by filing separate replies. OP No.1 in its reply has submitted that the maximum passengers carrying capacity including the driver was only two for the insured vehicle but at the time of alleged accident five passengers were travelling in the goods carrying vehicle which was against the terms and conditions of the insurance policy and violation of MV Act also, therefore the claim submitted by the complainant was rightly repudiated by the insurance company vide repudiation letter dated 17.10.2014 and the relevant clause qua Limitation as to use of the vehicle is as under :
The company shall not be liable under the policy in respect of:-
1.Any accidental loss damage and/or liability caused sustained or incurred whilst the vehicle insured herein is
2.Being used otherwise than in accordance with the “Limitation as to use”
Which reads as “….. used for carrying passengers in the vehicle, except employees (other than the driver) not exceeding the number permitted in the registration document and coming under the purview of Workmen’s Compensation Act, 1923.
It has been further submitted that the complainant has not only violated Section 66 (3) of the MV Act but also violated the condition No.8 of the policy which is reproduced as under:
“The due observance and fulfillment of the terms, conditions and endorsements of this policy in so far as they relate to anything to be done or complied with by the insured shall be conditions precedent to any liability of the company to make any payment under the policy”.
It has been further submitted that on receiving of intimation qua loss of the vehicle the insurance company had deputed its surveyor who after inspection assessed the loss to the tune of Rs.43113/- but when there was violation of terms and conditions of the policy, therefore, the claim was rightly repudiated. Other pleas made in the complaint have been controverted and prayer for dismissal of the complaint was made.
4. OP No.2 in its reply has taken many preliminary objections such as cause of action, maintainability, suppression of material facts from this Forum and the complainant does not fall within the ambit of consumer etc. It has been further submitted that complainant had approached to OP No.2 it with accidental vehicle and also intimated that the vehicle in question is insured with OP No.1. The surveyor of the insurance company had inspected the vehicle and after preparation of estimate, vehicle in question was repaired and the cost of the repair, spare parts, labour etc. had come to Rs.79,385/-. It has been further submitted that the insurance company had repudiated the claim of the complainant but he had only paid cost of the spare parts, therefore, rest of amount to the tune of Rs.28090/- is still recoverable from him. There is no deficiency in service on its part and other averments made in the complaint have been controverted. Lastly, prayer for dismissal of the complaint has been made. In evidence the OPs have tendered affidavit of Sh.Ravinder Goyal, as Annexure R5, affidavit of Sh.Mohd.Azhar Wasi as Annexure R7, affidavit of Sh.Ravi Aggarwal, Surveyor as Annexure R8 and documents Annexure R1 to Annexure R4, Annexure R6, Annexure R9 to Annexure R14.
4. Heard. The counsel for the complainant reiterated the averments made in the complaint and prayed for its acceptance whereas the counsel for OPs reiterated the averments made in the replies and prayed for dismissal of the complaint.
5. There is no dispute that vehicle of the complainant had met with an accident for which the insurance had been obtained. It is also not disputed that the Op No.2 had repaired the damaged vehicle of the complainant. The grouse of the complainant is that the OP No.1 had wrongly and illegally repudiated the genuine claim despite the fact that carrying more passengers than the permitted seating capacity in the goods carrying vehicle does not amount to a fundamental breach of the terms and conditions of the policy. In support of his arguments he has placed reliance of case law titled as Lakhmi Chand Vs. Reliance General Insurance Company Limited 2016 ACJ page 551 wherein Hon’ble Apex Court has held that Damage to vehicle- Repudiation of Claim- Damage to goods vehicle in accident due to negligence of driver of another vehicle- Insurance company repudiated the claim on the ground that there was contravention of terms and conditions of the policy because 5 persons were travelling through seating capacity of the vehicle as registration certificate is 1+1 District Forum under Consumer Protection Act found that mere presence of more persons in the vehicle had no bearing on the cause of accident, it would not disentitle the insured from claiming compensation towards repair charges and directed insurance company to settle the claim on non-standard basis upto 75 per cent of amount spent for repairs- State Commission in appeal and National Commission in revision dismissed the complaint- No evidence that accident occurred on account of overloading of passengers in goods vehicle and breach of policy is so fundamental in nature that it brings the contract to an end- Whether claim was arbitrarily rejected by the insurance company- Held : yes; order of District Forum Restored.
6. In the present case the number of passengers travelling in the vehicle at the time of accident did not have a bearing on the cause of accident. There is no evidence that the accident has occurred on account of overloading of passengers in the goods vehicle. Therefore, in view of the judgment of Hon’ble Apex Court as discussed above, the mere fact of the presence of more persons in the vehicle would not disentitle the insured claimant from claiming compensation under the policy towards the repair charges of the vehicle paid by the complainant. In the present case the breach of terms and conditions of the policy is not so fundamental in nature that it brings the contracts to an end.
7. In view of the factual and legal position as discussed above, the present complaint is partly allowed against OP No.1 and dismissed against Op No.2. The OP No.1 is directed to settle the claim of the complainant on non-standard basis up to 75 % of the loss assessed by the surveyor along with interest @ 8 % per annum from the date of filing of the present complaint till realization. The Op No.1 is further directed to pay Rs.10,000/- for rendering deficient service, harassment, mental agony and litigation expenses incurred by the complainant. Order be complied within a period of one month. Copy of this order be supplied to the parties free of costs. File be consigned to record after due compliance.
Announced: Dt.11.04.2017
(Raghbir Singh)
President
District Consumer Disputes
Redressal Forum, Fatehabad.
(Ansuya Bishnoi) (R.S.Panghal)
Member Member
