Punjab

Faridkot

CC/19/25

Amrik Singh - Complainant(s)

Versus

The New India Assurance co. - Opp.Party(s)

Amit Kumar Mittal

16 Oct 2019

ORDER

 DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, FARIDKOT

 

C. C. No. :                25 of 2019

Date of Institution:    24.01.2019

Date of Decision :      16.10.2019

 

Amrik Singh  aged about 35 years, son of Balwinder Singh, r/o Village Rameana, Tehsil Jaitu, District Faridkot.

...Complainant

Versus

1. The New India Assurance Company Limited through its Branch Manager, Branch Kotkapura.
2. The New India Assurance Company Limited through its Manager / Director/ Authorized Person, Ghatkopar D.O. 3^rd Floor, Jyoti Chamber, JV Road, Khot Lane, Ghatkopar (West) Maharashtra-400086.
3. Hira Automobiles Limited, Bhai Complex , Malout Road, Sri Muktsar Sahib, through its Proprietor/Manager/Owner.

.....Opposite Parties

Complaint under Section 12 of the

Consumer Protection Act, 1986.

 

Quorum: Sh  Ajit Aggarwal, President,

               Smt Param Pal Kaur, Member.

 

Present: Sh Amit Mittal, Ld Counsel for Complainant,

              Sh Yash Pal Bansal, Ld Counsel for OP-1 and OP-2,

              OP-3 Exparte.

cc  no. 25 of 2019

ORDER

(Ajit Aggarwal, President)

                                      Complainant has filed the present complaint under Section 12 of the Consumer Protection Act, 1986 against OPs seeking directions to OPs to make payment of insurance claim of his car bearing no. PB04AA-2428 and for further directing OPs to pay Rs.2,00,000/- as compensation for deficiency in service, harassment, inconvenience, mental agony alongwith litigation expenses of Rs.50,000/-.

2                                              Briefly stated, the case of the complainant is that complainant is the owner of car bearing no.PB04AA-2428 make Maruti Suzuki Dzire which was duly insured with OPs vide policy no.14060031170100011438 effective from 18.05.2018  to 29.11.2018. It is submitted that on 18.09.2018 at about 5.40 P.M. his car met with and an accident and at that time, it was being driven by Jaskaranjot Singh son of Gurpreet Singh. In that accident Jaskaranjot Singh died and car of complainant was totally damaged. It is submitted that at the time of accident, said Jaskaranjot Singh was having valid and effective driving license. During said accident, wallet of Jaskaranjot Singh containing his driving license and adhar card was lost. Gurpreet Singh father of Jaskaranjot Singh informed Police about said accident and also informed regarding  death  of  Jaskaranjot  Singh  and  about  his  lost       particulars. Complainant duly informed OP-1 and OP-2 and also sent his damaged car to OP-3 for repair purpose. Opposite Party No-3 told

 

cc  no. 25 of 2019

complainant that his car has been totally damaged and is not repairable. Surveyor of OP-1 and 2 conducted survey and complainant also furnished all requisite documents regarding his insured car to him for processing the claim, but OP-1 and OP-2 kept insisting for driving license of deceased Jaskaranjot Singh and till now, Insurance Company/OP-1 and OP-2  have not cleared the claim of complainant. Complainant approached OP-1 and 2 several times and made requests to them to pass his genuine claim, but all in vain. He also served legal notice dated 29.11.2018 to them, but that also served no purpose. It is further submitted that complainant approached OPs and submitted that in accident occurred on 18.09.2018, wallet of Jaskaranjot Singh containing his driving license and adhar card was lost and due intimation regarding same was given to OPs as well as Police, but OPs did not pay any heed to his  genuine  requests for passing his claim. All this amounts to deficiency in service and has caused great harassment and mental agony to him for which he has prayed for seeking directions to OP-1 and OP-2 to make payment of genuine insurance claim alongwith compensation for harassment and litigation expenses besides the main relief. Hence, the present complaint.

3                                                        The counsel for complainant was heard with regard to admission of the complaint and vide order dated 30.01.2019, complaint was admitted and notice was ordered to be issued to the opposite parties.

 

cc  no. 25 of 2019

4                                                         On receipt of the notice, the opposite parties no.1 and 2 filed written statement taking preliminary objections that this Forum has no jurisdiction to hear and try the present complaint and there is no deficiency in service on their part. It is averred that complaint in hand is not maintainable in the present form as it involves complicated questions of law and facts and requires voluminous evidence that is not possible in summary proceedings of this Forum. It is further averred that complainant is not the consumer of answering OPs. It is asserted that liability of answering OP is limited up to Rs.1,91,000/- without registration of the car, but this liability is denied as complainant has violated the terms and conditions of the policy in question as at the time of alleged accident, driver of the car was not having any driving license. Moreover, he is stopped from his own act and conduct and is not entitled for any relief as sought by him. However, on merits OP-1 and 2 have denied all the allegations of complainant being wrong,  incorrect and false and it is reiterated that there is no deficiency in service on the part of answering OPs. It is totally denied that car of complainant met with an accident. It is also denied that said Jaskaranjot Singh was having any driving license at the time of alleged accident. It is averred that father of said Jaskaranjot Singh got recorded false report before Police regarding lost of wallet containing adhar card and driving license of Jaskaranjot Singh. It is further averred that on receipt of intimation regarding said accident,  answering Ops appointed a Surveyor, who conducted survey of

cc  no. 25 of 2019

damaged car and assessed loss to the tune of Rs.1,91,000/-subject to cancellation of RC and fulfilment of all terms and conditions of the policy and vide letter dated 7.12.2018 asked complainant to furnish original Driving License of driver, copy of RC, Insurance Policy, Aadhar Card and copies of Police report, but complainant neither gave any reply to that letter nor submitted documents required for processing the claim and therefore, claim of complainant was closed as no claim. Claim of complainant has been rightly repudiated as he has violated the terms and conditions of the policy and therefore, nothing is payable to him. It is reiterated that there is no deficiency in service on the part of answering OPs and prayed for dismissal of complaint with costs.                   

5                                              Registered Cover containing notice and copy of complaint alongwith relevant documents was sent to OP-3, but it did not receive back undelivered. Acknowledgment might have been mislaid in transit and it was presumed to be served. Despite repeated calls, no body appeared in the Forum on behalf of OP-3 on date fixed either in person or through counsel to defend the allegations levelled by complainant against them and therefore vide order dated 26.03.2019 OP-3 was proceeded against exparte.

6                                                  Parties were given proper opportunities to prove their respective case. Counsel for complainant tendered in evidence

 

cc  no. 25 of 2019

affidavit of complainant Ex.C-1, and documents Ex C-2 to C-15 and then, closed the same.

7                                               In order to rebut the evidence of the complainant, the Ld Counsel for OP-1 and Op-2 tendered in evidence affidavit of Din Dayal Aggarwal Ex OP-1, affidavit of Surveyor Ex OP-7 and documents Ex OP-2 to Ex OP-6 and then, closed the same on behalf of OP-1 and OP-2.

8                                             We have heard the learned counsel for complainant and opposite parties and have very carefully gone through the affidavits and documents placed on the file by respective parties.

9                                            From the careful perusal of record and evidence and documents placed on record by complainant as well as OPs and from the arguments and pleadings put forward by parties, it is observed that it is admitted case of the parties that car in question was insured with Insurance Company and Jaskaranjot Singh driver of said car died in said accident. There is also no denial to the fact that due intimation regarding said accident was given to them. Grievance of the complainant is that despite completion of all formalities and submission of all requisite and relevant documents, OPs have not cleared the genuine claim for his damaged car which was fully insured with them, which amounts to deficiency in service. To prove his pleadings, ld counsel for complainant has placed on record copy of  DDR dated 8.10.2018 got recorded by

cc  no. 25 of 2019

Gurpreet Singh in Police Station Rorikpura PSOC Jaitu, Faridkot regarding lost of driving license and adhar card of Jaskaranjot Singh in accident dated 18.09.2018. Ex C-9 copy of Policy Schedule further proves the pleading of complainant that his car Maruti Swift Dzire was insured with Insurance Company for the period from 18.05.2018 to 29.11.2018 and accident of car of complainant occurred during the subsistence of policy in question. On the other hand, objection raised by OP-1 and OP-2 is that complainant did not furnish driving license of Jaskaranjot Singh to them for processing the claim and due to failure to submit requisite document, claim of complainant was closed as no claim. Ld counsel for complainant stressed mainly on the point that driving license of Jaskaranjot Singh alongwith his adhar card was lying in his wallet which was lost during accident occurred on 18.09.2018 and father of complainant duly got recorded his statement before the Police regarding lost articles which included Driving License and Adhar Card of Jaskaranjot Singh.

10                                   The Ld Counsel for complainant argued that driving license of Jaskaranjot Singh was lost in said accident and OPs have wrongly and illegally repudiated the claim of complainant on false grounds that Jaskaranjot Singh deceased was not having valid driving license. Ld Counsel for complainant further argued that if it is presumed for the sake of arguments that deceased Jaskaranjot Singh driver of said vehicle was not having effective driving license at the time of accident,

cc  no. 25 of 2019

then, in that case also, the Insurance Company cannot repudiate the claim of complainant in toto on this ground. He placed reliance on citation : 2004 (2) RCR 114 Supreme Court of India in case titled as National Insurance Co. Ltd Vs Swaran Singh and Ors wherein Hon’ble Apex Court held that Motor Vehicle Act, 1988, Section 149 (2) (a) (ii) and proviso to Sub Sections (4) and (5)-Disqualification of driver - Validity of driving license-Insurer is entitled to raise all defence available u/s 149 (2) of the Act-However, mere absence, fake or invalid at the relevant time are not the defences available to insurer against the insured or third parties- To avoid its liability towards the insured also the insurer has to prove the insured to be guilty of negligence and failure to exercise reasonable care in compliance of conditions of Policy-Burden is on the insurer to establish breach of Policy by leading cogent evidence – Mere non production of license or evidence by the insured cannot be considered as discharge of burden of insurer. The Hon’ble Apex Court further held that Learning Driving License – Breach of policy– Disqualification of driver – Validity of learner’s driving license – Learner’s driving license is a valid driving license under the Rules – The insurer cannot take it as defence to avoid its liability. It is argued that Insurance Company has failed to prove that there is any negligence or failure to exercise any reasonable care in driving of the vehicle or in compliance of the conditions of the Policy and the Learning driving license is a valid driving license. He also put reliance on the citation 2010 (1) Consumer Protection Cases 653 in case titled as

cc  no. 25 of 2019

Amalendu Sahoo Vs Oriental Insurance Co. Ltd wherein Hon’ble Apex Court held that even where violations of the Policy is found, Insurer should pay 75% of total amount as on non standard basis. He has also placed reliance on citation 2008 (3) CPC 559 Supreme Court of India titled as National Insurance Company Ltd Vs Nitin Khandelwal, wherein Hon’ble Apex Court held that the appellant Insurance Company is liable to indemnify the owner of the vehicle when the insurer has obtained comprehensive policy for the loss caused to the insurer even assuming that there was a breach of condition of the insurance policy. The appellant Insurance Company ought to have settled the claim on non standard basis. He has also placed reliance on the citation 2006 (2) Consumer Protection Cases 33 titled as New India Assurance Company Vs Narayan Prasad Appa Prasad, wherein Hon’ble National Commission held that vehicle at the time of accident was carrying passengers more than permitted by rules – Even driver was not duly licensed – Order of authority below granting payment of full insured amount with cost and compensation cannot be sustained – Appellant directed to settle the claim on non standard basis i.e 75 % of Rs 4,32,000/- with 9% interest. They further held in para no. 4 of the judgment that not having proper valid license to drive a Maxi-cab as also carrying excess passengers than the licensed capacity are violation of the terms and conditions of the policy. It is for covering these contingencies that GIC has issued the guidelines for the Insurance

 

cc  no. 25 of 2019

Company for settling the claim on “non standard basis’, which is as follows:

Following types of claims shall be considered as non-standard and shall  be settled as indicated below after recording the reasons:

 

Sr No.	Description	Percentage of Settlement
1.	Under declaration of licensed carrying capacity	Deduct 3 years difference in premium from the deduct 25% of claim amount, whichever is higher.
2.	Overloading of vehicles beyond licensed carrying capacity	capacity  Pay claims not exceeding 75% of admissible claim.
3.	Any other breach of warranty/condition of policy including limitation as to use.	Pay upto 75% of admissible amount.

 

11                                         He further argued that in the light of own rules and guidelines of Insurance Companies and judgments of Higher Courts, if it is presumed that there is violation of terms and conditions of the policy then, in that case also, the Insurance Companies cannot repudiate the claim, rather it should be decided on the basis of non standard basis.

cc  no. 25 of 2019

12                                                  We have thoroughly gone through file and case law produced by the complainant and from the perusal of all documents placed on record and in view of above discussion, we come to the conclusion that if it is presumed that at the time of accident, deceased Jaskaranjot Singh driver of the car of complainant was not having valid driving license for driving the vehicle and it is in violation of terms and conditions of the insurance policy, then in that case also, Ops cannot repudiate the whole claim of complainant and it is to be decided on non standard basis and therefore, in the light of above facts and circumstances, complaint in hand is hereby partly allowed against OP-1 and OP-2 Insurance Company. Both Opposite Party No.1 and 2 are directed to settle the claim of complainant on non standard basis and are directed to pay Rs.1,43,250/- i.e 75% of Rs.1,91,000/- as loss assessed by the Surveyor appointed by the Insurance Company on net of salvage basis without RC alongwith interest at the rate of 9% per anum from the date of filing the present complaint till final realization. OP-1 and 2 are further directed to pay Rs.5,000/-to complainant as consolidated compensation for harassment and mental agony suffered by him as well as for litigation expenses.  Complainant is directed to execute necessary documents in favour of Insurance Company for the payment of claim amount if any. Compliance of this order be made within 30 days from the date of receipt of order, failing which complainant shall be entitled to proceed under Section 25 and 27 of the Consumer Protection Act. Complaint against

cc  no. 25 of 2019

OP-3 stands hereby dismissed as OP-3 has no role in making payment of insurance claim to complainant. Copy of order be given to parties free of cost. File be consigned to record room.

Announced in Open Forum

Dated : 16.10.2019                 

 

(Parampal Kaur)                      (Ajit Aggarwal)

           Member                                   President