Punjab

StateCommission

CC/207/2018

M/s Balbir Singh and Co. - Complainant(s)

Versus

The Oriental Insurance co. Ltd. - Opp.Party(s)

Navdeep Singh

05 Mar 2019

ORDER

                                                               FIRST ADDITIONAL BENCH

 

STATE CONSUMER DISPUTES REDRESSAL COMMISSION,           PUNJAB

          SECTOR 37-A, DAKSHIN MARG, CHANDIGARH.

 

 

                   Consumer Complaint No.207 of 2018

 

 

                                                          Date of Institution   : 20.03.2018         

                                                          Order Reserved on :27.02.2019        

                                                          Date of Decision     : 05.03.2019

 

M/s Balbir Singh & Co., House No. 174, Green Avenue, Amritsar c/o Bhullar Cement Corporation, Agampur Road, Anandpur Sahib, District Ropar through its Partner Sh. Parvinder Singh Bhullar

 

IInd Address : M/s Balbir Singh & Co. C/o Bhullar Cement Corporation, Agampur Road, Anandpur Sahib, District Ropar (Punjab) through its Partner Sh. Parvinder Singh Bhullar.                                                                                                                                                                                                                                                                                                                                                       ….Complainant

 

                                      Versus

 

1.       The Oriental Insurance Company Limited, Branch Office, 205, Railway Road, Nangal, District Ropar through its Branch Manager.

2.       HDFC Bank Limited, Agampur Chowk, Anandpur Sahib, District Ropar through its Branch Manager.

                                                                             ….Opposite parties

 

 

Consumer Complaint U/s 17(1)(a) of the Consumer Protection Act, 1986 (as amended up to date).

 

Quorum:-

          Shri J. S. Klar, Presiding Judicial Member.

              Shri. Rajinder Kumar Goyal, Member.

Present:-For the complainant    :  Sh.N.S Nayyar, Advocate

          For opposite party no.1    :  Sh.S.S Sidhu, Advocate

          For opposite party no.2    :  Ms. Ramandeep Kaur, Advocate

         

J. S. KLAR, PRESIDING JUDICIAL MEMBER:-

                                     

                    The complainant/M/s Balbir Singh & Company a firm through its partner Sh. Parvinder Singh Bhullar has filed this complaint U/s 17(1) (a) of the Consumer Protection Act 1986 (in short the "Act) against opposite parties (in short OP) on the allegations, that it is owner of Bharat Benz Heavy Goods Vehicle (Truck) bearing registration no. PB-02-CR-5315. Parvinder Singh Bhullar is one of the partners of the complainant firm and above vehicle was got insured by it from OP no.1  for the period 13.02.2016 to 12.02.2017 by paying premium of Rs.44,654/- for insured declared value of Rs.21,00,000/-. OP no.1 issued policy no. 231401/31/2016/10730 to the it with insured declared value of the insured vehicle as Rs.21 lac. OP no.2 is the financer of the insured vehicle. There is relationship of consumer and service provider between complainant and opposite party no.1 for this contract of insurance. The insured vehicle met with an accident in the area of Kurala Bridge on Jalandhar-Pathankot Road in PS Tanda  District Hoshiarpur due to sudden busting of left front tyre of it on 19.06.2016. It struck against a road side tree and was damaged therewith. Maghar Singh son of Kashmir Singh resident of Village Sarhali Khurd P.OS Sakhira PS Sadar District Tarn Taran  was driving the insured vehicle at the time of accident and he was holding a valid driving license of the insured vehicle of this accident. DDR no. 28 dated 20.06.2018  was lodged at police station PS Tanda District Hoshiarpur about this accident. The complainant lodged the a insurance claim for this accident of insured vehicle with OP no.1 for damage of the vehicle in the above referred accident. It completed all the necessary formalities with submission of requisite documents in this regard. OP no.1 appointed a surveyor to assess the loss caused to the insured vehicle in the accident. The surveyor submitted report to OP no.1/insurer  that vehicle was a case of total loss. OP no.1 sent notice dated 15.02.2017 to complainant apprising it that insured truck was heavily overloaded with cement bags and was carrying 45400 kg  of cement bags against permitted capacity of 20800 Kg at the time of accident and clarification was sought from the complainant in this regard by the insurer. The complainant gave detailed reply on 22.11.2106 to  OP that 300 cement bags weighing 15000 kg were got loaded in it from ACC Limited Anandpur Sahib Ropar, which were to be delivered at Pir Panchal Construction Private Limited Jammu.  The complainant also furnished the tax invoice  and GR receipt to OP no.1 showing loaded weight of 15000 kg of the vehicle. OP no.1 repudiated the claim of the complainant by virtue of letter dated 16.11.2017 on the ground that truck was loaded with 45400 kg of cement bags against its permitted capacity of 20800 kg at the time of accident and bursting of tyre was the proximate cause of accident and hence there is breach of condition no.5 of the terms and conditions of the policy by insured.  Maghar Singh driver of the insured vehicle at the time of accident also filed an application for compensation under Employee’s Compensation Act before the Commissioner Hoshiarpur, wherein OP no.1 appeared as respondent no.2 and contested the said petition and sought discharge of its liability on the ground of breach of policy condition due to overloading of the insured vehicle at the time of accident. The Commissioner rejected the plea of OP no.1 and decided the said application in favour of Maghar Singh driver holding that the insurance company has failed to prove any breach in the policy conditions  and was liable to pay compensation, vide his order dated 10.11.2017. In compliance of the order of Commissioner, insurance company/OP no.1 deposited the awarded amount of compensation with Commissioner at Hoshiarpur and Maghar Singh driver received the same after taking no objection from counsel for insurance company/OP no.1. The complainant challenged the rejection of its legal and genuine claim by OPs on the above referred baseless grounds. The complainant prayed for below noted reliefs against OP no.1 :-

1. OP no.1 be directed to pay Rs.21,00,000/- being IDV of the insured vehicle.
2. OP no.1 be directed to pay interest @10% per annum on Rs.21 lac from the  date of repudiation i.e. 16.11.2017 till its actual payment.
3. OP no.1 be directed to pay Rs.2 lac as compensation for mental harassment and Rs.2 lac as cost of litigation.

2.                Upon notice, OP no.1 appeared and filed written reply and contested the complaint of the complainant by raising preliminary objections that this Forum has no jurisdiction to try the complaint. The complainant has not approached this Forum with clean hands. On merits, it was admitted by OP no.1 that truck bearing registration no.PB 02 CR 5315 was registered in the name of M/s Balbir Singh and Company and same was insured vide policy no.231401/31/2016/10730 for the period 13.02.2106 to 12.02.2017 for IDV of Rs.21 lac. It was averred that intimation dated 23.06.2016 was received of this accident on 19.06.2016 by it. Claim form, Registration Certificate, Driving license, General receipt and invoice dated 18.06.2016 were submitted to insurer, but complete documents of load of truck were not submitted for the reasons that truck was carrying the load much beyond its carrying capacity. On receipt of intimation, Sukhwinder Singh Notra surveyor and loss assessor was deputed for spot survey to conduct the survey on 20.06.2016 by OP no.1 and he submitted his report on 27.06.2016. The permitted laden weight as per permit was 20800 kg.  The gross vehicle weight which includes the laden weight, as per the registration certificate of the truck was 31000 kgs. Mr. Kailash Chander Surveyor and loss assessor was further deputed for the assessment of the loss by insurer, who submitted his survey report dated 29.09.2016. The surveyor in his survey report has given his expert opinion on the cause of accident.  He mentioned therein that tyre of the vehicle could burst all of a sudden, if it was overloaded beyond capacity. OP no.1 deputed Sh. Subash Chander Sharma investigator to investigate the matter with regard to the load of vehicle, who submitted his report dated 12.08.2016. He has also obtained the details pertaining  to truck no.PB02 CR 5315 for the period 01.06.2016 to 12.07.2016 from Toll Plaza situated on Chandigarh Hoshiarpur Road. The details were provided by Toll Plaza  on 12.07.2016 to investigator Sh. Subhash Chander Sharma. According to this document, the vehicle was carrying the laden weight of 45400 kgs as against the carrying capacity of 20800 kgs per permit and gross weight of the vehicle was more than 24660 kgs than 31000 kgs as per registration certificate. The vehicle was thus overloaded by more than 100% at the time of accident.  The accident had taken place due to bursting of tyre, which was direct cause of accident. Rest of the averments of the complainant were denied by OP no.1 and it prayed for dismissal of the complaint.

3.                OP no.2 has not filed any written reply in this case, as no relief is claimed against it by complainant, vide statement dated 12.06.2018.

4.                The complainant tendered in evidence affidavit of Parvinder Singh Bhullar as Ex.C-A along with copies of documents Ex.C-1 to Ex.C-15 and closed the evidence. As against it; OP no.1 tendered in evidence affidavit of Ms. Indu Khurana Deputy Manager  of OP no.1 as Ex.OP-1/A along with copies of documents Ex.OP-1/1 to Ex.OP-1/12 and closed the evidence.

5.                We have heard learned counsel for the parties and have also examined the record of the case.

6.                There is no dispute of this fact that complainant is a firm and it has obtained insurance policy no. 231401/31/2016/10730  of the vehicle no.PB-02-CR-5315 from OP no.1 for insured declared value of Rs.21 lac by paying premium of Rs.44,654/- The policy was operative from 13.02.2016 to 12.02.2017 and Ex.C-2 is insurance policy on the record to this effect. The complaint has been filed by one of the partners of the complainant-firm and partner of the firm has implied authority as well as express authority to file the complaint for the firm because firm is not a juristic person under law like a corporate body. The insurance vehicle is in the name of Balbir Singh and Company, vide Ex.C-1 and GVW is recorded is as 31000 and unladen weight 10200  in registration certificate Ex.C-1 of this vehicle. Copy of partnership deed of complainant firm is Ex.C-3 on the record. Ex.C-4 is resolution by the Firm, although this resolution is required to be passed by a corporate body only to authorize the person to do the acts on its behalf, as corporate bodies always act through its resolution.  The resolution in the matter of firm is not required  by law, as the partner thereof has implied authority to file the res matter on behalf of the firm. The insured vehicle met with an accident on 19.06.2016 being driven by Maghar Singh son of Kashmir Singh resident of Village Sarhali Khurd P.OS Sakhira PS Sadar District Tarn Taran its driver. It sustained damage in the accident and police report Ex.C-5, vide general diary no. 28 dated 20.06.2016 was lodged at police station Tanda about it. The complainant intimated loss of the insured vehicle in the accident to OP no.1/insurance company on 23.06.2016, which fact is established on record, vide Ex.C-6. OP no.1 through its Branch Manager wrote letter to complainant on 15.02.2017 vide Ex.C-7 seeking clarification or comments of the complainant that vehicle was overloaded with cement bags at the time of accident,  as it was carrying 45400 kgs bags of cement, which was against its permitted capacity of 20800 kg. The complainant sent letter dated 22.11.2016 , vide Ex.C-8 to OPs that the insured vehicle is a case of total loss and required documents were submitted by it to the insurance company. Ex.C-9 is the tax invoice  of ACC Cement to the effect that insured vehicle was to carry above ACC Cement bags from 17.06.2016 to 18.06.2016 to Jammu of the value of 70,500/-. Ex.C-10 is the service tax liability lying upon consigner (ACC Ltd) to the tune of Rs.462.04. OP no.1 insurer sent letter to complainant dated 16.11.2017, vide Ex.C-11 repudiating the insurance claim of the complainant on the ground that vehicle was loaded with 45400 kgs of cement bags against its permitted capacity of 20800 kg and surveyor reported that its tyre busted , which was the direct cause of accident due to overload in it. The insurer violated condition no. 5 of the insurance policy  as relied upon in repudiating letter dated 16.11.2017, vide Ex.C-11 by OP no.1.

7.                The case was contested by OP no.1 only. Ex.OP-1/1 is copy of the insurance policy, which has been marked in duplicate as complainant has also placed this insurance policy on the record. Ex.OP-1/2 is the survey report submitted by the Engineer Sukhvinder Singh Notra , which was appointed by insurance company to look into the matter. He carried out inspection of the vehicle and observed that the damage of the vehicle would be assessed at the time of final survey of the insured vehicle. Motor Claim Form lodged by complainant with OP no.1 is Ex.OP-1/3. Ex.OP-1/4 is Goods Carriage Permit for Hire or Reward of the vehicle issued by Regional Transport Authority concerned. Photocopy of registration certificate of the insured vehicle is Ex.OP-1/5. Ex.OP-1/6 is survey report of Kailash Chandra , who found total loss of the vehicle as Rs.19,48,500/-, which is more than 70% of the IDV of the insured vehicle. Ex.OP-1/7  is the report of Subhash Chander Sharma Investigator  that the tyre of insured vehicle burst due to overload in the insured vehicle at the time of accident. He collected toll plaza report Ex.OP-1/8 pertaining to this vehicle with regard to its weight more than the sanctioned capacity. Rest of the documents of OP are only leading to repudiation of the claim.

8.                From evaluation of the above-referred evidence on the record and hearing respective submissions of counsel for the parties, we proceed to decide this complaint. The only contention raised by counsel for insurance company/OP no.1 is that the vehicle was overloaded at the time of accident, which was the direct cause of bursting of its tyre leading to occurrence of accident. The insurance company/OP no.1 repudiated the claim of the complainant on account of violation of condition no.5 of the insurance policy in this case. The submission of counsel for the insurance company is that in the insurance policy, the gross weight of the vehicle is 31000 kgs. He further submitted in the registration certificate of the vehicle Ex.OP1/5, the gross weight of the vehicle is 31000 kgs and unladen weight is 10200 kgs.

9.                The sheet-anchor of the case of the insurance company is Ex.OP-1/8 copy of toll plaza to the effect that insured vehicle was carrying overload than its permitted capacity as and when it passed through toll plazas on different occasions. The counsel for the complainant controverted Ex.OP-1/8 document of toll plaza by contending that there is no affidavit of Manager of Toll plaza to this effect nor there is any certificate on it as required by Section 65-B of Evidence Act, when it is photocopy or scanned copy taken out from computer. There is no certificate appended on it, as required by Section 65-B of Evidence Act to make it admissible in evidence, it is for the insurance company /OP no.1 to prove this fact that vehicle was overloaded than its permitted weight, which became the direct cause of this accident by bursting of its tyre . Other than this photocopy of Toll plaza taken from computer without certificate under Section 65-B of Evidence Act on it, there is no evidence aliunde on the record to instantiate it on the record.

10.               The counsel for OP no.1 relied upon law laid down by National Commission in “Delhi Assam Roadways Corporation Ltd., versus United India Insurance Co. Ltd.,” reported in 2013(4) CPJ 334, “New India Assurance Co. Ltd.. versus    Parshotam Kumar” reported in 2016(1) CPJ 381 by National Commission, “Oriental Insurance Co. Ltd. Versus B.A Nagesh” reported in 2010(3) CPC 389 by National Commission. The repudiation of the claim on breach of terms and conditions of the policy by insurance company/OP no.1 is held justified in the cited authority. The counsel for OP no.1 further referred to law laid down by Apex Court in “Paramjit Bhasin and others versus Union of India and others” reported in 2006 AIR (SC) 440, wherein Apex Court has held in the matter arising under Motor Vehicle Act that it violates Section 113 of the Motor Vehicles Act. The above authorities would not be applicable, once violation of condition no.5 has not been established by OP no.1 in this case.

11.               The sole document relied upon by OP no.1 is Ex.OP-1/8 photocopy of Toll plaza report. In the absence of any affidavit either of the Manger of Toll Plaza or recording the statement of the employee of Toll Plaza or Manager by investigating officer as part of his investigation report that it is genuine document, we are not able to rely upon it when it contains no such certificate regarding its authenticity as mandated by  Section 65-B of Evidence Act. The complainant has denied this fact that vehicle was overloaded at the time of accident of this accident by way of bursting of its tyre. The onus is on the  insurance company to prove violation of condition no.5 leading to repudiation of the insurance claim , which has not been established on record by it. The photocopy of Toll plaza report Ex.OP-1/8 is found of no consequence without a certificate of it under Section 65 B of Evidence Act. As per report of surveyor, loss is more than 75% of the vehicle and it has to be considered as a case of total loss to the insured vehicle under rules. The  insured declared value of the vehicle is Rs.21,00,000/-, hence insurance company/OP no.1 is bound to reimburse the insurance claim of Rs.21,00,000/- to the complainant.

12.               As a result of our above discussion, we accept the complaint of the complainant against OP no.1 and direct it to pay Insured declared value (IDV) of Rs.21,00,000/- to the complainant with interest @ 7% per annum from the date of repudiation  of the claim till actual payment. The complainant is also held entitled to composite amount of Rs.40,000/- as compensation and cost of litigation from OP no.1. OP no.1 shall firstly pay this amount to OP no.2/HDFC Bank for clearance of the loan on the insured vehicle and OP no.2/bank shall thereafter pay the balance amount, if any, to the complainant. The complaint is, thus, accepted and disposed of accordingly.

13.               Arguments in this complaint were heard on 27.02.2019 and the order was reserved. Certified copies of the order be communicated to the parties under rules.

14.               The complaint could not be decided within the statutory period due to heavy pendency of court cases.

                                                                          (J. S. KLAR)

                                                             PRESIDING JUDICIAL MEMBER

                               

                                                              (RAJINDER KUMAR GOYAL)

                                                                                MEMBER

March  5, 2019                                                               

(ravi)