Complaint No: 329 of 2019.
Date of Institution: 07.11.2019.
Date of order:24.11.2023.
Happy Masih aged about 31 years S/o Nazir Masih, R/o Village Mastkot P.O. Dargabad District Gurdaspur.
….....Complainant.
VERSUS
1. The New India Assurance Company Ltd. HO, New India Assurance Building 87, M.G. Road, Fort, Mumbai – 400001, through its M.D.
2. The New India Assurance Company Ltd. Branch Dalhousie Road Pathankot, through its Divisional Manager.
3. The New India Assurance Company Ltd. Branch 1st Floor, Guru Nanak Furniture House G.T. Road Mandi Gurdaspur, through its Branch Manager.
….Opposite parties.
Complaint U/s 12 of Consumer Protection Act.
Present: For the Complainant: Sh.S.S.Aujla, Advocate.
For the Opposite Parties: Sh.Vikrant Mahajan and Sh.Rajeev Sharma, Advocates.
Quorum: Sh.Lalit Mohan Dogra, President, Sh.Bhagwan Singh Matharu, Member.
ORDER
Lalit Mohan Dogra, President.
Happy Masih, Complainant (here-in-after referred to as complainant) has filed this complaint under section 12 of the Consumer Protection Act (here-in-after referred to as 'Act') against The New India Assurance Co. Ltd. Etc. (here-in-after referred to as 'opposite parties).
2. Briefly stated, the case of the complainant is that the complainant is registered owner of Car Swift bearing Registration No.PB-06-AK-0995. It is further pleaded that above said vehicle was fully insured for IDV of Rs.3,88,436/- with the opposite parties. It is further pleaded that this policy was valid from 29.03.2019 to 28.03.2020 Mid Night and the complainant had paid the premium of Rs.15,510/-. It is pleaded that on 16.06.2019, the complainant, along with his wife, minor son, brother, brother's wife and their three minor children were coming from Chandigarh towards his house at Village Mastkot District Grasper and when the complainant reached near Sunnaiya flyover on Batala - Pathankot G.T. Road, a road accident had already occurred. It is further pleaded that so there were some people gathered on accidental spot on the road, due to which some vehicles / bikes were also standing on the road side. It is further pleaded that the vehicles were passing on a very slow speed near the site of accident. It is further pleaded that the complainant also slowed the speed of his vehicle at the spot of that accident and then all of sudden an Innova Car came on very high speed from back side and hit the same with the car/vehicle of the complainant from back side, as a result of which accident occurred and vehicle of the complainant was badly damaged and it was a total loss. It is further pleaded that minor son of the brother of complainant also suffered injuries in this accident. It is further pleaded that regarding this accident the police of P.S. Civil Lines Batala recorded GD No. 022 dated 16.06.2019. It is further pleaded that immediately, after the accident, the complainant gave information to the OP No. 3 and requested for appointing Surveyor for assessing loss at the spot and accordingly the OP No. 3 appointed Mr. Sanjay Sarin Surveyor to assess the loss and submitt his report with the opposite parties. It is further pleaded that the complainant submitted all the documents as required by their surveyor, but the opposite parties lingered the matter on one pretext or the other and ultimately the OP No. 2 has repudiated the claim of the complainant as "No Claim" vide letter dated 08.08.2019 on false and flimsy grounds. It is further pleaded that at the time of accident, the vehicle was being driven by the complainant who is holding a valid driving license issued by the competent authority. It is further pleaded that complainant was not plying the vehicle against the terms and conditions of the Insurance policy or in contravention of the insurance policy rules, nor there any intentional or willful delay on the part of complainant in reporting the matter to the opposite parties. It is further pleaded that the opposite parties by not making payment of the loss assessed by their surveyor to the complainant on fake and baseless observations are trying to back out from their obligations with malafide intention and ulterior motive without any reason or rhyme. It is further pleaded that due to this illegal act and conduct of the opposite parties the complainant has suffered great loss and also suffered mental agony, Physical harassment and inconvenience. It is further pleaded that there is a clear cut deficiency in service on the part of the opposite parties.
On this backdrop of facts, the complainant has alleged deficiency and negligence in service and unfair trade practice on the part of the opposite parties and prayed that necessary directions may kindly be issued to the opposite parties to pay the insured amount i.e. Rs.3,88,436/- along with interest @ 18% P.A. from the date of accident of the vehicle till its actual realization. The opposite parties be further directed to pay Rs.50,000/- as compensation on account of mental agony, physical harassment and deficiency in service on the part of the opposite parties. Litigation expenses to the tune of Rs.25,000/- may also be awarded in favour of the complainant after accepting this complaint, in the interest of justice.
3. Upon notice, the opposite parties appeared through counsel and contested the complaint and filing their written reply by taking the preliminary objections that the present complaint is not maintainable in the present form and is without any merits and without any cause of action. It is pleaded that vehicle No. PB-06-AK-0995 was insured with the answering opposite parties vide policy No. 980000311 80307635000 for the period 29.03.2019 to 28.03.2020 and the complainant submitted intimation letter dated 21.06.2019 intimating the accidental loss of the vehicle. It is further pleaded that the opposite parties had immediately deputed the surveyor and the loss was got assessed and the final survey report was submitted by Mr. Sanjay Sarin, Surveyor and Loss Assessors vide his report dated 31.07.2019. It is further pleaded that the as per the intimation letter submitted by the complainant and the survey report the "nine persons including the driver were travelling in the car of the complainant at the time of accident, against the sitting capacity of five, which is clear cut violation of the terms and conditions of the Insurance policy", as such the claim of the complainant was repudiated by the opposite parties. It is further pleaded that the complainant has failed to set out any deficiency in service or unfair trade practice on the part of the answering opposite parties as. It is further pleaded that it is crystal clear that the complainant has clear cut violated the terms and condition of the insurance policy and as such the complainant is not entitled to any relief. It is further pleaded that the complainant is estopped by his act and conduct from filling this present complaint as he has clear cut violated the terms and conditions of the insurance policy. It is further pleaded that the complainant has filed a false, frivolous and infructuous complaint without any merits and as such the complainant is not entitled to any claim.
On merits, the opposite parties have reiterated their stand as taken in legal objections and denied all the averments of the complaint and there is no deficiency in service on the part of the opposite parties. In the end, the opposite parties prayed for dismissal of complaint with costs.
4. Learned counsel for the complainant has filed an affidavit of Happy Masih, (Complainant) alongwith other documents as Ex.C-1 to Ex.C-10.
5. Learned counsel for the opposite parties has tendered into evidence affidavit of Mr. Charan Dass, (Senior Divisional Manager, Divisional Office, The New India Assurance Co. Ltd, Pathankot) as Ex.OPW-1/A alongwith other documents as Ex.OP-1 to Ex.OP-4.
6. Rejoinder filed by the complainant.
7. Written arguments filed by the opposite parties, but not filed by the complainant.
8. Counsel for the complainant has argued that the car of the complainant which was insured with the opposite parties insurance company met with an accident on 16.06.2019 and claimed was lodged with the opposite parties but claimed lodged by the complainant was repudiated on the ground of overloading vide letter dated 08.08.2019. Since the car of the complainant was total loss as such complainant is entitle to receive IDV of the vehicle and repudiation of the claim amounts to deficiency in service.
9. On other hand counsel for the opposite parties has argued that as per report of surveyor that persons including driver were travelling in the car at the time of accident against sitting capacity of five which is violation of terms and conditions of the policy.
10. We have the Ld. counsels for the parties and gone through the record.
11. To prove the case counsel for the complainant has placed on record affidavit of complainant Happy Masih, copy of R.C. Ex.C1, copy of Driving Licence Ex.C2, copy of Aadhaar Card Ex.C3, copy of policy of insurance Ex.C4, copy of repudiation letter Ex.C5, copy of General Diary Details (GDD) Ex.C6, copy of claim form Ex.C7, copy of representation Ex.C8, copy of grievance letter Ex.C9 and copy of estimate Ex.C10 whereas counsel for the opposite parties has placed on record affidavit of Charan Dass Sr.Divisional Manager Ex.OW-1/A, copy of report of Surveyor Ex.OP-1, copy of claim intimation letter Ex.OP-2, copy of insurance policy Ex.OP-3 and copy of representation of complainant Ex.OP-4.
12. Perusal of evidence on record shows that at the time of accident the car was being driven by the complainant and nine persons were travelling in the car. But a careful perusal of report of surveyor Ex.OP-1 shows that there are four adults i.e. Happy Masih aged 30 years, his wife Smt.Garcia aged 32 years, his brother Sh.Lakhbir Masih aged 35 years, wife of brother Smt.Nisha aged 32 years. Meaning thereby that there were only four adults sitting in the car at the time of accident and besides above there are four minor children in the car i.e. Sonia aged 16 years, Mehak aged 10 years, Anjali aged 13 years, Arun aged 11 years and one son of complainant namely Aln aged 3 years which shows that only four adults were sitting in the car and rest of passengers were minor children who travelling in the car alongwith their parents. Perusal of report of surveyor Ex.OP-1 as well as copy of D.D. No.22 registered at P.S. Civil Lines Batala Ex.C6 shows that the alleged excessive passengers in the car/overloading of the car was not reasons of the accident rather accidental car got struck with ongoing Innova car which was abdructly stopped by its driver due to some accident of motorcycle on the road. Even the surveyor has also not pointed out that the overloading of the car was responsible for the accident in question. Moreover, we are of the view that since the parents were travelling in the car and children are also likely to travelling with their parents in the same car, there is no nexus of accident and alleged over loading of the car, as such the repudiation of the claim is not justified in any manner. The surveyor has further made assessment on net of salvage basis for Rs.4,39,019/-with R/C be made.
13. We have relied upon the judgment of Hon'ble Supreme Court of India in Civil Appeal Nos.49-50 of 2016 decided on 07.01.2016 in case titled as Lakhmi Chand. Vs. Reliance General Insurance wherein it is held as under:-
"Consumer Protection Act, 1986 - Section 23 - Motor insurance - Policy - Breach of - Damage to goods vehicle in accident - Mere factum of carrying more passengers than permitted seating capacity in goods carrying vehicle by insured does not amount to a fundamental breach of terms and conditions of policy so as to allow insurer to eschew its liability towards damage caused to vehicle - Insurance Company, in order to avoid liability must not only establish the defence claimed in proceeding concerned, but also establish breach on part of owner/insured of vehicle for which burden of proof would rest with insurance company - For Insurer to avoid his liability, breach of policy must be so fundamental in nature that it brings contract to an end - Judgment of National Commission set aside and judgment of District Forum restored - Appeals allowed with cost of Rs.25,000/-".
It has been held that there is no nexus between accident and alleged overloading of the vehicle as such claim cannot be repudiated by the insurance company. Accordingly, we are of the view that repudiation of the claim by the opposite parties on the ground of excessive passengers sitting in the car amounts to deficiency in service.
14. Accordingly, present complaint is partly allowed and opposite parties i.e. insurance company is directed to settle and pay the claim as per the assessment arrived at by surveyor vide its report dated 31.07.2019 within 30 days of receipt of copy of this order. However, it is made clear that if order is not complied with within 30 days after receipt of copy of this order, the assessment amount shall carry interest @ 9% P.A. w.e.f. 31.07.2019, the date of report of surveyor till realization. We are of the view that complainant has definitely suffered from mental agony, harassment and in the circumstances narrated above, as such complainant is entitled for cost of Rs.10,000/- including litigation expenses which will payable by the opposite parties. Complainant is also directed to execute letter of subrogation and other formalities as per requirement of the insurance company.
15. The complaint could not be decided within the stipulated period due to heavy pendency of Court Cases, vacancies in the office and due to pandemic of Covid-19.
16. Copy of the order be communicated to the parties free of charges. File be consigned.
(Lalit Mohan Dogra)
President.
Announced: (B.S.Matharu)
Nov. 24, 2023 Member.
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