BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, KARNAL.

                                                        Complaint No. 528 of 2021

                                                        Date of instt 27.09.2021

                                                        Date of Decision: 17.07.2024

Jyoti Book Depot Private Limited, Ibrahim Mandi Karnal, through its Managing Director Shri Bharat Bhushan Kapoor.

                                                                        …….Complainant.

                                              Versus

The New India Assurance Company Limited, through its Divisional Manager Gagan Building, G.T. Road Karnal.

                                                                …..Opposite Party.

Complaint under Section 35 of Consumer Protection Act, 2019.

Before:  Sh. Jaswant Singh……President.      

      Ms. Sarvjeet Kaur..…..Member

 Argued by: Shri Pankaj Malhotra, counsel for the complainant.

                 Shri Parveen Daryal, counsel for the OP.

                     (Jaswant Singh, President)

ORDER:   

                The complainant has filed the present complaint under Section 35 of the Consumer Protection Act, 2019 against the opposite party (hereinafter referred to as ‘OP’) on the averments that complainant is running a book publication business at Karnal. The vehicle Mahindra Jenio bearing registration no.HR45A-9232, Model 2011 is owned by the complainant and the said vehicle was insured by the complainant with the OP, vide policy no.35360231180100006750, valid from 24.10.2018 to 23.10.2019. The vehicle insured is Light goods Vehicle and was being used for carriage of books. On 30.05.2019, the said vehicle was going to Hisar via Assandh and Safidon to deliver the consignment of books. The said vehicle was being driven by its driver Mahabir son of Ram Kumar alongwith Abhishek and Nitin Gautam. All the occupants were/are the employees of the complainant and other two persons besides the driver were accompanying the consignment for loading and unloading of the consignment. When the vehicle was 5-6 kms before Safidon near village Khera Khemawati at about 8.30 a.m. a truck was seen coming from the opposite direction in rash and negligent manner and in order to avoid impact, the driver of the insured vehicle diverted the vehicle towards extreme left and lost its balance with the result the insured vehicle struck a tree on the left hand side as a result the occupants sustained injuries and the insured vehicle was badly damaged. The matter was reported to the police station Safidon, vide Rapat no.21 dated 02.06.2019. The occupants were removed to the hospital for treatment. The loss of the damaged vehicle was reported to the OP. Claim from alongwith requisite documents was lodged with the OP. The loss was assessed by the surveyor of the OP. Despite repeated reminders the claim was not paid as the surveyor had submitted the report of the total loss of the vehicle. The claim of the complainant was repudiated by the OP, vide letter dated 07.10.2019 on eh ground that three person/two persons were carried in the insured vehicle alleging that there was violation of the terms of the policy. All the occupants including the driver were the permanent employee of the complainant who were travelling for loading and unloading of the consignment and none of them were being carried for hire and reward. So the repudiation of the claim is not only illegal but there is deficiency in service and unfair trade practice on the part of the OP. Hence this complaint.

2.             On notice, OP appeared and filed its written version raising preliminary objections with regard to maintainability; cause of action and concealment of true and material facts. On merits, it is pleaded that on receipt of information, regarding damaged to the vehicle, loss assessor Shri B.B. Chawla  was appointed to assess the loss who assessed the loss subject to terms and conditions of policy. After going through the claim file, it was found that driver was carrying number of persons allowed in addition to himself. As such, the claim of the complainant was repudiated vide letter dated 07.10.2019 as per the terms and conditions of the policy and the complainant informed through registered post. There is no deficiency in service and unfair trade practice on the part of the OP. The other allegations made in the complaint have been denied and prayed for dismissal of the complaint.

3.             Parties then led their respective evidence.

4.             Learned counsel for complainant has tendered into evidence affidavit of complainant Ex.CW1/A, copy of repudiation letter dated 07.10.2019 Ex.C1, copy of insurance policy Ex.C2, copy of registration certificate Ex.C3, copy of fitness certificate Ex.C4, copy of DDR Ex.C5, copy of aadhar card Ex.C6 and closed the evidence on 12.09.2022 by suffering separate statement

5.             On the other hand, learned counsel for the OP has tendered into evidence affidavit of K.K. Sachdeva Regional Manager Ex.OP1/A, copy of DDR Ex.OP1, copy of insurance policy Ex.OP2, copy of surveyor report Ex.OP3, copy of repudiation letter dated 07.10.2019 Ex.OP4 and closed the evidence on 05.07.2023 by suffering separate statement.

6.             We have heard the learned counsel of the parties and perused the case file carefully and have also gone through the evidence led by the parties.

7.             Learned counsel for complainant, while reiterating the contents of the complaint, has vehemently argued that complainant was the owner of Mahindra Jenio vehicle and said vehicle was insured by the complainant with the OP. The vehicle insured is Light goods Vehicle and was being used for carriage of books. On 30.05.2019, the said vehicle met with an accident and badly damaged. All the occupants were the employees of the complainant and other two persons besides the driver were accompanying the consignment for loading and unloading of the consignment. The matter was reported to the police station Safidon. The loss intimation was also sent to the OP. Complainant lodged the claim with the OP and submitted all the required documents for settlement of claim. Complainant requested the OP several times for settlement of the claim but OP did not pay any heed to the request of complainant and repudiated the claim of complainant on the false and frivolous ground and lastly prayed for allowing the complaint.

8.             Per contra, learned counsel for the OP, while reiterating the contents of written version, has vehemently argued that on receipt of information, regarding damaged to the vehicle, loss assessor Shri B.B. Chawla was appointed to assess the loss, who assessed the loss subject to terms and conditions of policy. The claim of the complainant was rightly repudiated by the OP as per the terms and conditions of the policy and lastly prayed for dismissal of the complaint.

9.             We have duly considered the rival contentions of the parties.

10.           Admittedly, complainant got insured his vehicle with the OP. It is also admitted that the vehicle in question met with an accident during the subsistence of the insurance policy. It is also admitted that at the time of accident three persons were travelling. It is also admitted that the insured declared value of the vehicle in question was Rs.2,20,000/-.

11.           The claim of the complainant has been repudiated by the OP, vide repudiation letter Ex.C1/Ex.OP4 dated 07.10.2019 on the ground, which is reproduced as under:-

“As per survey report received and the documents enclosed with the report we found that the number of person allowed as per RC is 2 while the actual number of persons seating at the time of occurrence of the event, in the insured vehicle were 3 which is violation of Policy Terms and Conditions.

So, the claim of this insured vehicle is not maintainable and hence repudiated.”

12.            The claim of the complainant has been repudiated by the OP on the ground that at the time of accident three persons were travelling in the insured vehicle, when the permitted seating capacity of the vehicle as per the registration certificate is only two. The claim cannot be denied if the accident not occurred due to persons travelling beyond the seating capacity. In this regard we relied upon the case law titled as National Insurance Co. Ltd. Versus Pravinbhai D. Prajapati decided on 09.11.2010 wherein Hob’ble National Commission has held that if the number of persons traveling in the vehicle at the time of accident did not have a bearing on the cause of accident, then the mere factum 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 appellant. Further, in the instant case, the OP-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, in case titled as Lakhmi Chand Versus Reliance General Insurance in civil appeal no.49-50 of 2016, date of decision 07.01.2016(S.C), Hon’ble Supreme Court has held that the insurance company is required to establish the  breach by cogent evident. In the event the insurance company fails to prove that there has been breach of conditions of policy on the part of the insured, the insurance company cannot be absolved of its liability.”

13.           If for the sake of gravity, if it is presumed that complainant has violated the terms and conditions of the insurance policy, in that eventuality, the claim of the complainant cannot be repudiated in toto.  In this regard, we relied upon the case laws cited in Revision Petition no.1870 of 2015(NC) decided on 14.08.2018 titled as New India Assurance Co. Ltd. Versus Thirath Singh Brar and authority of our own Hon’ble State Commission in First Appeal no.717 of 2016 decided on 6.4.2017 titled as United India Insurance Company Limited and others Versus Anshul Bansal.  In both judgments it was held that in case of any breach of warranty/condition of the policy the insurer is liable to pay 75% of admissible claim on non-standard basis.

14.           Keeping in view the law laid down in the above judgments and facts of the case, the act of the OP amounts to deficiency in service while repudiating the claim of the complainant in toto.

15.           The complainant has alleged that his vehicle has been badly damaged in the accident and become total damage. The onus to prove this fact was relied upon the complainant but the complainant has miserably failed to prove the same by leading any cogent and convincing evidence. The complainant has not placed on file any surveyor report, rough estimate, photographs of the vehicle and any other documentary evidence from which it can be ascertained that the vehicle of complainant has become total damage and not repairable. The complainant has only placed on file repudiation letter dated 07.10.2019 Ex.C1, copy of insurance policy Ex.C2, copy of registration certificate Ex.C3, copy of fitness certificate Ex.C4, copy of DDR Ex.C5 and copy of aadhar card Ex.C6 but from the said documents it cannot be ascertained that the vehicle in question has been damaged totally.

16.           The OP has placed on file surveyor report Ex.OP3 but said report is illegible and not readable. Furthermore, neither in their written version nor in its evidence, the OP has admitted that the vehicle of the complainant has become total damaged. 

 17.          Thus, without any documentary evidence it cannot be ascertained that to what extent the vehicle of the complainant has been damaged. There is nothing on file that the vehicle of the complainant has been totally damaged and not repairable and thus, it cannot be presumed that the vehicle of the complainant has become total damaged and complainant is entitled for IDV value as claimed by him.

18.           Thus, as a sequel to abovesaid discussion, the present complaint is devoid of merits and same deserves to be dismissed and same is hereby dismissed. No order as to costs. The parties concerned be communicated of the order accordingly and the file be consigned to the record room after due compliance.

Announced

Dated:17.07.2024                                                                    

                                                                President,

                                                   District Consumer Disputes

                                                   Redressal Commission, Karnal.      

(Sarvjeet Kaur)    

               Member