Haryana

Ambala

CC/167/2012

PARVEEN KUMAR SHARMA - Complainant(s)

Versus

THE NEW INDIA ASSURANCE COMPANY - Opp.Party(s)

V.P KHUSHAL

07 Dec 2016

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, AMBALA.

 

            Complaint Case No.    : 167 of 2012

Date of Institution       : 29.05.2012

           Date of Decision         : 07.12.2016

Parveen Kumar Sharma S/o Sat  Parkash R/o 64, Parshu Ram Nagar behind Karan Palace,Sector-10, Ambala City.                                                                                               

                                                                                                                                                  ……Complainant.

                                                                                    Versus

The New India Assurance Company Ltd. branch office at 6269,  Nicholson Road,

Ambala Cantt through its Branch Manager.

                                                                                    ……Opposite Party.

Complaint Under Section 12 of the Consumer Protection Act

BEFORE:       SH. D.N. ARORA,  PRESIDENT.

                        SH. PUSHPENDER KUMAR, MEMBER.                       

Present:          Sh. V.P.Kaushal, Adv.  for complainant.

                        Sh. Nikhilesh Bhagi, Adv.  for Ops.

ORDER.

                        In nutshell, brief facts of the complaint are that vehicle Tata Spacio bearing regn. No.HR37-B-1650 owned by complainant was comprehensively insured with the Op for the period from 14.12.2009 to 13.12.2010.  It has been submitted that the vehicle met with an accident on 17.10.2010 and vehicle got damaged badly.  The OP insurance company was immediately informed. Upon which, OP asked complainant to take the vehicle to Metro Motors and to get estimate of the loss which came to Rs. 3,78,388/-.  Then OP deputed a surveyor who inspected the vehicle and took photographs etc.  Thereafter, OP asked the complainant to deposit copy of R.C. of vehicle, D.L., estimate and insurance policy etc. and accordingly complainant submitted the same with OP and also completed all the formalities and Op assured that his claim will be released very soon. But the Op did not release the claim and because of which the vehicle remained parked with the dealer for several days.  So, a legal notice dated 25.04.2012 served upon the OP but of no avail. Thus the complainant has prayed that the OP is deficient and negligent in providing proper services to him.  Hence, the present complaint seeking relief as per prayer clause.

2.                     Upon notice, OP appeared through counsel and filed written statement raising preliminary objections qua maintainability of complaint, locus standi, cause of action and suppression of material facts. On merits, it has been admitted that the vehicle in question was insured with them and the vehicle met with an accident in the area of P.S. Mullana.  It has been submitted that the investigator Sh. A.S. Vaish met with Smt. Purni Devi, Sarpanch of village Jamitgarh  Block Ghanaur, Patiala who gave her statement on 18.02.2011 to the effect that  marriage of her son was fixed on  17.10.2010 and she had hired one bus and nine oher vehicles for taking the Barat from Jamitgarh to village Dushain, District Yamunanagar and when the Barat was returning , the vehicle in question  met with an accident near village Manka Manki.  The investigator submitted his report dated 22.02.2011 to the Senior Branch Manager, Ambala Cantt, hence, as per statement of the Sarpanch that the vehicle was being plied for hire and reward at the time of accident whereas the vehicle was insured  as private car and the vehicle as per R.C. is registered for a private car. Hence, the Op has legally repudiated the claim vide letter dated 03.03.2011 on the ground that the vehicle was being plied  for hire & reward at the time of accident and as such risk is not covered under the terms & conditions of the policy and therefore the complainant is not entitled to any claim from the OP.  Sh. Baljinder Singh Surveyor/Loss Assessor was appointed to assess the loss of the vehicle, who assess loss to the tune of Rs.2,34,000/- on total loss basis and has also mentioned  in the said report that damaged vehicle with R.C. will fetch Rs.75,000/- + 10% on sale but  the assessed loss is not payable since the vehicle in question was being plied for hire and reward  at the time of accident  and hence, the OP is not liable in any manner as per terms & conditions of the policy. It has been submitted that complainant has obtained a false estimate of Rs.3,78,388/- from the dealer.  As such, a prayer for dismissal of complaint with cost has been made.

3.                     To prove his version, complainant tendered his affidavit as Annexure CX alongwith documents as Annexures C-1 to C-7 and closed his evidence on 24.07.2013.  On the other hand, counsel for OP tendered affidavits as Annexures RX, RY & RZ alongwith documents as Annexures R-1 to R-8 and closed the evidence on 12.01.2015.

4.                     We have heard learned counsel for the parties and gone through the case file very carefully.  Case of the complainant is that the vehicle Tata Specio bearing registration no.HR-37B-1650 owned by complainant met with an accident on 17.10.2010 and the vehicle got damaged and caused loss to the tune of Rs. 3,78,388/- but despite making all the formalities OP insurance company has wrongly repudiated the claim of complainant on the ground that it was being plied in violation of terms and conditions of insurance policy.

                        On other hand, arguments of the counsel for OP is that the vehicle in question was registered as a private vehicle at the time of accident and it was being hired for carrying passengers of a Barat.  Counsel for OP to substantiate his case has argued that as per statement of Surpanch of Village Jamitgarh, District Patiala recorded on 18.02.2011 by investigator that marriage of her son was fixed on 17.10.2010 and she had hired the vehicle of complainant including ten other vehicles for taking the barat to village Dushain, District Yamuna Nagar and while returning back the accident occurred. As such the vehicle was being driven in contravention of the policy conditions.

5.                     The complainant has placed on record copy of FIR (Annexure C-1) to  prove the factum of accident occurred on 17.10.2010.  He has also placed on record copy of registration certificate of the vehicle as Annexure C-2 and has also placed on record copy of DL in the name of Pritam Singh as Annexure C-3. The vehicle got damaged and loss caused to it to the tune of Rs.3,78,388/- has been shown through Annexure C-7.  On the other hand, Op has placed on record report of loss assessor to the tune of Rs.2,24,248.55p. (Annexure R-3), Statement of Purni Devi, Sarpanch of village Jamitgarh (Annexure R-4), Claim repudiation letter as (Annexure R-5)   and report of Investigator as (Annexure R-7).  Counsel for OP has placed reliance on case laws rendered by Hon’ble High Court of Punjab & Haryana in FAO No.3338/2012 (O&M) titled as Parveen Kumar Vs. Suman Rani & others  decided on 09.04.2014 wherein it has been held that that “As per the Insurance Policy, EX.R1, the seating capacity of the offending vehicle, Tata Spacio/Sumo is 8+1. However, as per the survey report, Ex. R4, more than 9 persons were sitting therein at the time of  the accident. Furthermore, the vehicle  was only for private use but at the time of the accident, it was  carrying the passengers of a marriage party having been hired by Smt. Purni Devi on account of the marriage of her son. The appellant-owner did not appear in the witness box to rebut the same. In the circumstances, the court has no hesitation to hold that the offending vehicle was being plied in violation of the terms & conditions of the insurance policy at the time of the accident, and therefore, the respondent-Insurance Company has rightly been absolved of its liability. The case law cited by the learned counsel is distinguishable on facts. Consequently the appeals preferred by the appellant owner, are hereby dismissed”.  Further, we observed that the present complainant has also filed the claim before the Motor Accident Claims Tribunal, Ambala  of the same accident and  the Tribunal passed the award against the owner and driver and insurance company has been absolved of its liability  and owner of the offending vehicle filed appeal against the judgment delivered by MACT, Ambala dated 22.02.2012 wherein order passed by the Tribunal has been upheld by Hon’ble High Court vide judgment dated 09.04.2014 holding that the offending vehicle was being plied with terms and conditions of the policy  and vehicle was only for private use but at the time of accident  it was carrying  passenger of a marriage party meaning thereby the vehicle in question was used for commercial purpose.  As such, the above said judgment is fully applicable in the present case  and helpful to the OP.  Another case law titled New India Assurance Co. Ltd.  Vs. A. Mohamad Yasin  III (1995) CPJ 50 NC has also been submitted by OP wherein it has been held that “Consumer Protection Act, 1986 Section 19-Appeal-Section 2(1)(g)-Deficiency in service-Insurance Breach of condition of policy-Goods Carriage vehicle-Carrying passengers unauthorized –Repudiated- Whether amounts to ‘deficiency in service?-No. Held: As at the time of the loss to the vehicle it was carrying unauthorized persons in violation of the terms & conditions of the policy as well as of the permit, the appellant was not liable to indemnify the complainant against the loss caused to the vehicle.

6.                     The Op insurance company has repudiated the claim of complainant on the ground that the vehicle was being plied for hire & reward whereas insurance covered and R.C. is for private vehicle.  Perusal of Registration Certificate of Vehicle in question (Annexure R-1) reveals that seating capacity in the vehicle was for 9+1 persons and the vehicle has been registered as private vehicle whereas as per FIR Annexure R-2, the vehicle Tata Spacio, at the time of accident was carrying 12 persons which itself is violation of Motor Vehicles Act  as well as  violation of terms & conditions of the  insurance policy.  The case laws submitted by counsel for the OP Parveen Kumar Vs. Suman Rani & others   and New India Assurance Co. Ltd.  Vs. A. Mohamad Yasin (supra) are fully applicable to the facts and circumstances of the present case. 

                        In view of the above discussion, we are of the view that the vehicle was being driven in contravention of the Motor Vehicles Act, terms & conditions of the insurance policy as well as the vehicle was being plied for commercial purposes. As such, the Op insurance company has rightly repudiated the claim of complainant. Accordingly, the complaint is dismissed with no order as to costs.  Copies of the order be sent to the parties concerned, free of costs, as per rules.  File after due compliance be consigned to record room.

ANNOUNCED ON:  07.12.2016                                                           Sd/-

                                                                                                  (D.N. ARORA)

                                 PRESIDENT                

                                                                                                      Sd/-

       (PUSHPENDER KUMAR)

                                                                                                            MEMBER