Before the District Consumer Disputes Redressal Commission, Rohtak.

Consumer Complaint No. 10

Instituted on:  05.01.2022

Decided on:  12.11.2024

Anil (aged 26 years) Son of OmParkash resident of H.No. 176, Village Matan Tehsil Bahadurarh, District Jhajjar.

                                                                                      ….Complainant

Vs

1. The New India Assurance Co. Ltd., DO 122200, New India Centre, 1^st Floor, 17-A Cooperage Road, Mumbai (Maharashtra)-400001 through its Managing Director.
2. The New India Assurance Co. Ltd., 1652-D, Kath Mandi, Rewari through its Sr. Branch Manager.
3. The New India Assurance Co. Ltd., Rohtak through its Branch Manager.
4. Tata Motors Finance Ltd., Rohtak through its Manager.

……Opposite Parties

COMPLAINT UNDER CONSUMER PROTECTION ACT.

BEFORE: SH. NAGENDER SINGH KADIAN, PRESIDENT.

                   DR. TRIPTI PANNU, MEMBER.

                   DR. VIJDENER SINGH, MEMBER.

Present:       Sh. Kuldeep Singh, Advocate for the complainant.

                   Sh. K.K. Luthra, Advocate for the opposite party no.1 to 3.

                   Sh. Naveen Chaudhary, Advocate for opposite party no.4.

                                      ORDER

SH. NAGENDER SINGH KADIAN, PRESIDENT:

1.                Brief facts of the present complaint, according to the complainant, are thathe is a registered owner of a vehicle Tata Goods Carrier-TR bearing registration no. HR-63D-9656 and the same was hypothecated with opposite party no.4. The alleged vehicle was insured with opposite parties no.1 to 3 vide policy no. 12220031180150106724 valid for a period from 06.03.2019 to 05.03.2020 for Insured Declared Value (IDV) of Rs.24,00,000/-. On 01.10.2019, the said vehicle met with an accident near R.E.D School, Talav, District Jhajjar and information of the same was given to the opposite parties and an FIR no.306 dated 01.10.2019 was got registered at P.S.Jhajjar. The opposite parties asked the complainant to get the vehicle repaired first and thereafter they will pay the claim amount.The complainant got repaired his vehicle from Sai Motors at Bahadurgarh which is authorized service station of Tata Motors and spent Rs.8,50,072/- on the repair. The surveyor was appointed and survey was conducted. The complainant submitted the claim form to the opposite parties and requested to pay the claim amount but the opposite party no.2 has repudiated the claim of complainant vide their letter dated 23.09.2020 wrongly and illegally. The act of opposite parties is illegal and amounts to deficiency in service. Hence this complaint and it has been prayed that opposite parties may kindly be directed to pay the claim amount of Rs.8,50,072/- alongwith interest, compensation and the litigation expenses to the complainant, besides any other relief, for which the complainant is found entitled.

2.                 Upon notice, the opposite parties appeared and filed their written statements. Opposite party no.1 to 3 filed their joint written statement submitting therein on receiving the information and the documents submitted by the complainant, the opposite parties observed that two persons namely Vikramand Dharmender were travelling as gratuitous passengers in insured vehicle at the time of accident. The insured’s vehicle is a “Goods Carriage” vehicle, vide goods carrying commercial vehicle package policy,which is only for carrying goods not the passengers. The complainant has plied the insured vehicle for carrying gratuitous passengers and as per the contract of insurance, the insured is not indemnified if the vehicle is used or driven otherwise than in accordance with the schedule. The complainant has violated the policy clause “Limitation as to use”. So, the claim of complainant being not payable has been rightly repudiated vide letter dated 23.09.2020 and thus, the opposite party Nos. 1 to 3 prayed for dismissal of complaint against the opposite parties.

3.                Opposite party no.4 in its written reply has submitted that on 31.01.2018, the complainant obtained a loan facility of Rs.23,49,444/- from the opposite party by financing his truck Tata bearing registration no. HR-63D-9656. The total contract value was Rs.28,42,321/- including interest of Rs.4,92,877/- and in this regard loan cum hypothecation cum guarantee agreement was executed by the complainant in the favour of opposite party. The complainant did not adhere to the financial discipline and consequently, the opposite party appointed Arbitrator who passed the award dated 21.02.2019 and since the arbitration award has already been passed, therefore, this Commission has got no jurisdiction to try and decide the present complaint. The vehicle in question was allegedly insured with opposite party nos.1 to 3, hence, the opposite partyNo.4  has nothing to do with the claim. The amount, if any, is to be paid by opposite parties no.1 to 3 being the insurer of the vehicle. Therefore, the present complaint is liable to be dismissed. On merits of the case, It is submitted that as the amount has already been received by the opposite party and the contract stands terminated, therefore, at present, the vehicle is not hypothecated. There is no deficiency in service and unfair trade practice on the part of opposite party. The complainant is not entitled to get any amount from the opposite party. The amount of claim, if any, is to be released by Op no.1 to 3 being the insurer of the vehicle. Thus, dismissal of the complaint has been sought by the opposite party no.4.

4.                Learned counsel for the complainant in his evidence has tendered affidavit Ex. CW1/A, documents Ex. C-1 to Ex. C-14 and closed the same on dated 31.08.2023. On the other hand, the learned counsel for the opposite party no. 1 to 3 in his evidence has tendered affidavit Ex.RW1/A, documents Ex. R-1 to Ex.R-10 and closed the same on dated 20.08.2023. Learned counsel for the Opposite party no.4 failed to conclude his evidence despite availing several opportunities and thus the evidence of opposite party no.4 was closed by court order on dated 08.08.2024.

5.                We have heard learned counsel for the parties and have gone through material aspects of the case very carefully.

6.                In the present case, the respondent’s counsel has submitted that this Commission has no jurisdiction to try and entertain the present case. He further submitted that the complainant is resident of District Jhajjar and ‘No claim letter’ has been issued by branch office, Rewari. Moreover, the claim of the complainant has been repudiated by the opposite partyvide its letter dated17.06.2020 placed on record as Ex.C7 on the ground that: “With reference to your above claim, it has been observed that you have breached the policy condition no.2 of your policy “Limitation as to use”. At the time of accident there were two unauthorised passengers travelling in your above said vehicle out of which one unauthorised passenger died during accident resulting in third party loss”.  Opposite party also sent letter Ex.C9/Ex.R8 dated 23.09.2020 submitting therein that the complainant had plied the insured vehicle for carriage gratuitous passengers whereas the vehicle of the complainant is Good carriage vehicle. First letter of repudiation is dated 17.06.2020 placed on record by the complainant as Ex.C7, 2^nd letter is issued by the opposite party on dated 23.09.2020 placed on record as Ex.C9/Ex.R8. Opposite parties no.1 to 3 have placed on record affidavit of Ms. Anjana Mistry, Incharge Legal Hub, New India Assurance Company,   FR report u/s 173 of Cr.P.C. Ex.R1, Ex.R2 is the application to SHO Jhajjar regarding the accident, Ex.R3 is the statement of Sh. Arjun, Ex.R4 is copy of FIR, Ex.R5 is the copy of statement of complainant, Ex.R6 is the reply of legal notice, Ex.R7 is copy of RC, Ex.R8 is the copy of repudiation letter, Ex.R9 is copy of investigation report and Ex.R10 is goods carrying vehicle policy certificate. On the other hand, contention of ld. counsel for the complainant is that the vehicle in question was fully insured with the opposite parties, hence the whole claim of the complainant cannot be repudiated.

7.                We have minutely perused the documents placed on record by both the parties.Regarding the jurisdiction of this Commission, respondent no.1 to 3 themselves placed on record an investigation report Ex.R9 conducted by  Sh. InderjeetSingh Mehra Advocate. This report has been submitted with the insurance company on 04.11.2019 with the Senior Divisional Manager, New India Insurance company Rohtak. Meaning thereby the investigation of this case has been conducted by the Divisional Office, Rohtak. So partly investigation has been conducted or the claim of the complainant has been assessed by the Divisional office, Rohtak. So as per our opinion, this Commission has jurisdiction to entertain the case. Regarding the breach of policy conditions, ld. counsel for the complainant has placed reliance upon the judgment of Hon’ble Supreme Court of India in Civil Appeal Nos. 49-50 of 2016 titled as Lakhmi Chand Vs. Reliance General Insurance  whereby Hon’ble Supreme Court has held that : i)“Company has not produced any evidence on record to prove that the accident occurred on account of the overloading of passengers in the goods carrying vehicle. Further held that ii)For the insurer to avoid his liability, the breach of the policy must be so fundamental in nature that it brings the contract to an end”. Reliance has also been placed upon the judgment of Hon’ble Supreme Court of India in Civil appeal no.2703 of 2010 titled as AmalenduSahoo Vs. Oriental Insurance Co. Ltd. , in which it was observed that : “Car was not used for personal use, but was used by way being hired which violated terms of insurance policy-and the Hon’ble Supreme Court of India has held that Insurance company cannot repudiate the claim in toto- Insurance company ought to settle the claim on non-standard basis”.  The aforesaid case laws are fully applicable on the facts and circumstances of the case. As such repudiation of whole claim by the opposite party No.1 to 3  amounts to deficiency in service and opposite party No.1 to 3 are liable to pay the claim amount to the complainant on non-standard basis. We have also observed that the assessment of loss has not been mentioned either in the written statement or in the affidavit Ex.RW1/A by the opposite parties. The perusal of investigation report Ex.R9also shows that loss has not been mentioned in this report. So we are believing the complainant that he has suffered the loss of Rs.392073/- + Rs.450000/- as per the Tax Invoice issued by Tata Motors, placed on record as Ex.C5& Ex.C6 respectively. It is also observed that as per copy of R.C. placed on record as Ex.C1, the vehicle in question is hypothecated with Tata Motors Fin. However, as per written statement filed by opposite party no.4, opposite party in preliminary objection no.2 of its reply has submitted that the contract has already been terminated, therefore present complaint is not maintainable. Hence it is observed that as the loan amount has been repaid by the complainant to the opposite party no.4, hence the opposite party No.1 to 3 are liable to pay the claim amount to the complainant. As per policy Ex.C2, the IDV of the vehicle is Rs.2400000/- but as per the complainant, he has demanded an amount of Rs.850072/- the loss suffered by him in his vehicle. Hence he is entitled for 75% claim i.e Rs.637554/-.

8.                In view of the facts and circumstances of the case we hereby allow the complaint and direct the opposite party No.1 to 3 to pay the amount of Rs.637554/-(Rupees six lac thirty seven thousand five hundred and fifty four only) alongwith interest @ 9% p.a. from the date of filing the present complaint  i.e. 05.01.2022 till its realisation, also to pay a sum of Rs.5000/-(Rupees five thousand only) as compensation on account of deficiency in service and Rs.5000/-(Rupees five thousand only) as litigation expenses to the complainant. Order shall be complied  within one month from the date of decision.

8.                Application(s) pending, if any, stand disposed of in terms of the aforesaid judgment.

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:

12.11.2024.

                                                          ........................................................

                                                          Nagender Singh Kadian, President

                                                          ..........................................

                                                          TriptiPannu, Member.

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                                                          Vijender Singh, Member.