Before the District Consumer Dispute Redressal Commission [Central District] - VIII, 5th Floor Maharana Pratap ISBT Building, Kashmere Gate, Delhi
Complaint Case No. 44/19.03.2020
Shri Rakesh Singh
r/o House No. 74, Marwal Market, Singhola,
Delhi-110016 …Complainant
Versus
OP. The Oriental Insurance Co. Ltd. (through its Directors)
Having office at: Oriental House, A-25/27, Asaf Ali Road,
New Delhi-110002
Also at : Service Centre (NRO-2), 4E/14,
Jhandewalan Extension, Ground Floor, Azad Bhawan,
Delhi-110055 ...Opposite Party
Date of filing: 19.03.2020
Coram: Date of Order: 12.11.2024
Shri Inder Jeet Singh, President
Ms Rashmi Bansal, Member -Female
FINAL ORDER
Inder Jeet Singh , President
It is scheduled today for order (item no.1)
1.1 (Introduction to case of parties) – The complainant has grievance of deficiency of services and of unfair trade practice that he got his vehicle bearing Registration No. DL 8CAR0957, Model-SFC 407 Truck (hereinafter referred as the truck or vehicle or subject truck) insured from the OP vide policy No. 242596 valid from 30.01.2019 to 29.01.2020 (hereinafter referred the "insurance policy"). The said subject truck met with an accident because of fault of another vehicle. When the insurance claim for total accident loss was claimed, it was declined by the OP without justify reasons or as if there was breach of provision of Motor Vehicle Act or of insurance policy. But, it was not so.
That is why this complaint for amount of Rs.9,86,378/- being IDV alongwith interest of 18% per annum which comes to Rs.28,700 from the date 10.01.2020 of rejection of claim till filing of the complaint on 09.03.2020, further interest at the rate of 18% per annum from the date of complaint till realization of amount, compensation of Rs.1,00,000/- in lieu of mental agony, harassment and litigation cost of Rs. 50,000/- besides other appropriate relief.
1.2. The OP/insurer opposed the complaint that neither there was deficiency of services nor unfair trade practice but there was violation of provisions of Motor Vehicle Act as the truck was overloaded, the vehicle was being used as commercial vehicle for which insurance policy was issued, since complete facts have not been furnished and there are twisting of the facts. The actual driver of subject vehicle and its driving licence have not been produced. The complaint suffers from mis-joinder and non-joinder of party besides the present Consumer Fora lacks territorial jurisdiction. There is no merit in the complaint, which does not construe deficiency of services..
2.1. (Case of complainant) – On 23.01.2019 the complainant had purchased the vehicle against invoice of Rs.9,20,000/- it was financed by Tata Motors Finance Ltd. The finance amount was around Rs. 10,38,293/- since rate of interest was of 10.5% to 11.5% per annum. The complainant took insurance policy from the OP by paying huge premium of Rs. 27,805. The IDV is Rs. 9,86,378/-.
2.2. On 19.10.2019 at about 3:00 am, the complainant (Rakesh Singh) was driving the subject truck and it met with an accident due to negligence and rush driving of another truck, which was in front of the subject truck. The said other truck was moving ahead to the vehicle of the complainant, that driver of other truck suddenly applied the brakes, due to which the complainant being vigilant also applied the brake to avoid incident but despite his efforts the subject truck could not completely stopped and thereby hit to other vehicle.
Consequently, because of accident/collusion, the subject truck suffered huge damage to the extent of total loss beyond repairs; the two cleaners namely Lalu and Gopal, [who were setting behind the driver seat at the time of accident] died at the spot. The complainant was shocked because of such state of affair. However, an FIR no. 368/2019 dated 19.10.2019 PS Kharkonda was registered against the offending other truck. On 20.10.2019, it was informed in writing to the SHO, PS Kharkonda that the present complainant Rakesh Singh is also known as Sandeep amongst his friends, family, village and at the place of his employment/residence. The author of the FIR is an illiterate person, a poor laborer working with the complainant and he calls the complainant by name Sandeep, which he also mentioned to the police in FIR. The complainant is also not a well educated person and not knowing of consequence of want of his name Rakesh Singh registered. His name Rakesh Singh is mentioned in the Driving License and Personal Identity Card - Aadhar Card. Thus, he obtained certificate from the Sarpanch of the village in Bihar that the complainant Rakesh Singh is also known by name Sandeep.
2.3. On 22.10.2019 he took the vehicle to Shiva Motors authorized service centre of the Tata Motors to ascertain the total loss. The service centre conducted detailed inspection and gave estimate loss bill dated 23.10.2019 of Rs. 14,23,087/- which is more than the purchased value of Rs. 9,20,000/- of the subject truck. Therefore, the OP is under liability to at-least render claim to the extent of the IDV of Rs.9,86,378/-. The complainant lodged motor claim No. 270011/31/2020/00034858 along with requisite documents to recover accident loss suffered and all such claim and relevant documents are with the OP. The complainant, being illiterate person, could not keep copy of such record with him. On 04.02.2020 the complainant requested the OP for copy of such record but it was not considered by the OP.
It shocked the complainant on receipt of rejection letter dated 10.01.2020 that his claim was rejected by the OP, whereas it was valid claim covered under the policy and it was refused on unjust ground, it is deficiency of services. On 04.02.2020 the complainant made a reply that the refusing the claim was unjust and erroneous and OP was requested to reconsider the claim. It is also not the case of OP that the claim was rejected on any fundamental breach of contract of insurance, which may result into repudiation of claim but it was due to accident caused by rush and negligent driving of another truck which was ahead of the subject vehicle of the complainant. The denial of valid claim on such frivolous ground is unfair trade practice and the complainant suffered financially and also otherwise and that is why the present complaint.
2.4 The complaint is accompanied with documents/copies of – registration certificate, invoice, driving license, policy schedule, FIR No. 368/2019, representation/ letter dated 20.10.2019, certificate dated 05.01.2020 issued by Sarpanch, estimate by Shiva Motors, authorised Service Station of Tata Motors, claim rejection letter dated 10.01.2020, request letter dated 04.02.2020 to OP and reply dated 03.02.2020 to the rejection letter.
3.1 (Case of OP) - The OP does not deny the insurance policy issued to the complainant, but allegations of complaint are denied. The complainant came before the Commission without clean hands, by suppressing true and correct fact.
3.2 The alleged accident had happened on 19.10.2019 at about 3:00 am as per FIR no. 368/2019 duly registered on 19.10.2019 at about 20:50 hrs u/s 279/337/304-A IPC with the P.S Kharkhonda, Distt. Sonipat, Haryana; the FIR was registered at the instance of Shatrughan, who was sitting in the rear side of the vehicle no. DL1LAB9632 alongwith the relative (name not mentioned) of driver Sandeep besides two more persons namely as Lalu and Gopal were also sitting in the cabin besides driver Sh. Sandeep. There were total five persons travelling in the vehicle but it was “light goods vehicle” and as per RC & fitness, the permissible seating capacity was three passengers (including driver).
Moreover, as per tax invoice No. 174 dated 18.10.2019 and in e-way bill no 701099071729 dated 18.10.2019, issued by Salasar Stone, the granite was about 1033.16 sq feet having total weight around 41 tones (as per seller) and it was loaded in the subject vehicle, having permitted cubic capacity of 3783 kgs. The vehicle was overloaded and it was plied in contravention of provisions of law and of Motor Vehicle Act.
3.3 The subject truck is registered as goods carrying commercial vehicle, it was being used for transportation of goods throughout NCT Delhi, it is covered under the definition of commercial vehicle, therefore, the complainant is not the consumer under the Consumer Protection Act, 1986 (as amended by Amendment Act 2002). Further, in Economic Transport Corporation Vs Charan Spinning Mills (P) Ltd. I(2010) CPJ 4 (SC), (para 25) it was held that a consumer does not include a person, who avails of such service for any commercial purposes.
3.4. The vehicle was financed by Tata Motors Finance Ltd, the vehicle is under hypothecation with the financer and this is also the case of complainant, however, the complainant has not impleaded the Financer . In addition the issuing office of policy is at Naya Marg, Outside Delhi Gate, Udaipur, Rajasthan, it has also not been impleaded as a party to the complaint. The complaint is bad for non-joinder of Financer, issuing officer of insurance policy as well as mis-joinder of OP. Moreover, since the insurance policy was issued at Delhi Gate, Udaipur, Rajasthan, the accident had occurred in another area, this Consumer For a at Delhi, lacks territorial jurisdiction.
3.5 There is willful suppression of material facts, since the complainant failed to produce driver Sandeep and his driving licence, who was actually on the wheel at the time of alleged accident. In fact, the surveyor/investigator appointed had recorded statement of cleaner Sh. Shatrugan, there are different version in his statetment as given to the police. The OP was constraint to repudiate the claim. The OP had given various opportunities to the complainant vide letter dated 17.02.2020, 18.03.2020 and 29.07.2020 to substantiate his claim but no result vis-à-vis on 04.02.2020 the OP had received reply cum letter dated 03.02.2020.
The OP is a public sector undertaking, it has to act as per the terms and conditions of policy, however, it is a false complaint lodged by the complainant, the complaint has been filed to gain sympathy of this Commission, it is not tenable. The claim was properly repudiated by letter dated 10.01.2020, its receipt was acknowledged by the complainant on 17.01.2020; there was non-compliance and breach of policy condition, therefore, no claim is made out. Complaint is liable to be dismissed.
3.6 The written statement is accompanied with documents/copies of – Insurance policy, terms and conditions, letters dated 17.02.2020, 18.03.2020, 29.07.2020, repudiation letter dated 10.01.2020, particulars subject truck/vehicle, investigator’s report dated 26.12.2019 accompanied with statement/application of Sh. Rakesh Singh, e-way bill, tax invoice, motor survey report dated 12.12.2019, motor claim form and so on.
4.1 (Replication of complainant) –The complainant filed detailed replication, while denying each and every allegation of written statement on the basis of facts narrated in the complaint and document furnished. The claim was lodged in this office of OP and repudiation letter was also issued by same office OP, therefore, not only the present Commission has jurisdiction but also the complaint does not suffer from non-joinder of issuing policy office. The tax invoice does not mention weight of the granite, it is falsely introduced by the OP. The case law cited does not apply since the complainant is a consumer and the claim is valid within the policy. The complainant is known by name Rakesh Singh as well as Sandeep, which was also informed to the police. The complaint is correct.
5.1. (Evidence)- In order to prove the complaint, the complainant Shri Rakesh Singh led evidence by filing detailed affidavit of evidence with documents filed with the complaint.
5.2. Similarly to prove the defense version, the OP also led evidence by filing detailed affidavit of evidence of Ms. Renuka Chaudhary, Deputy Manager with documents filed with written statement.
6.1 (Final hearing)- At this stage, the parties filed their written arguments. The parties were also given opportunity to make oral submissions, then Shri Manan Batra, Advocate for the complainant and Shri Bhupesh Kumar Chandna, Advocate for OP made their respective submissions.
6.2. During the course of arguments. The complainant has relied upon the following cases:
(i) Laxmi Chand Vs Reliance General Insurance Manu/SC/0016/2016 (S/C) - held that while carrying passengers more han seating capacity in the goods vehicle, would not constitute fundamental breach of terms and condition of policy to allow the insurer to eschew from its liability
(ii) ICICI Lombard General Insurance Co Ltd Vs Suresh Mehta and anr. MANU/DE/6382/2017 - held overloading of vehicle cannot be ground for rejection of claim that there is breach of terms of the policy.
(iii) Sethia Oil Limited Vs National Insurance Co Ltd MANU/WB/250/2019 - held that claim shall not be denied unless the ground of breach pleaded is reason for happening of accident and condition, besides onus lies on the insurer to prove it.
6.3 Similarly, the OP has also relied upon -
(a) Economic Transport Corporation Vs Charan Spinning Mills (P) Ltd. I(2010) CPJ 4 (SC), (para 25) - held that a consumer does not include a person, who avails of such service for any commercial purposes.
(b) The New India Assurance Co Ltd Vs Anokhi Devi 2016 STPL 15365 (N/C) that there was breach of conditions and violation of law since vehicle was over-loaded, the driver lost the balance and accident took place, the claim was declined.
7.1 (Findings) - The case of the parties, their contentions and material on record are considered and assessed besides the provisions of law & case law presented. There are many issues on the point of law in reference to the facts and features of the case, it is appropriate to firstly deal with them.
7.2.1 According to OP, the insurance policy was issued Divisional Office situated at no.3, Naya Marg, Outside Delhi Gate, Udaipur, Rajasthan, therefore, the present Consumer Forum lacks the territorial jurisdiction. Whereas, the complainant has juxtaposition plea that insurance claim was lodged with the office of OP at Jhandewalan Extension, Ground Floor and claim was repudiated by the said office, therefore, the present Consumer Forum has territorial jurisdiction to decide the matter.
7.2.2 In this situation the documentary record proved are in favour of complainant. the repudiation letter dated 10.01.2020 is proved by both the sides, it was issued by the impleaded office of OP at Jhandewalan Extension, besides the OP has also proved complainant's claim form submitted with the Jhandewalan office, therefore, when the cause of action has arisen within the area of present DCDRC Central District, the present DCDR Commission has territorial jurisdiction over the matter. This contention is disposed off.
Since the present DCDR Commission, Central District, Delhi has jurisdiction over the subject complaint, therefore, the other issues can be determined by this Commission.
7.3 There is also rival plea regarding non-joinder of parties as well as mis-joinder of parties, both the sides are giving their respective plea and reasons. However, it is held that complaint does not suffer either from non-joinder of the parties or from mis-joinder of the parties for the following reasons:-
(a) The present office of OP has been properly impleaded since repudiation letter was issued by this office at Jhandewalan, therefore, the insurance policy issuing office is not necessary party; the complaint does not suffer from non-joinder of the issuing office of insurance policy.
(b) For the reason (a) given above, the complaint does not suffer from mis-joinder office/branch of Jhandewalan of OP.
(c) The Tata Motors Finance Ltd. is a financer, however, the complainant has grievances of deficiency of services or other short-comings because of want of settlement of claim against the OP, therefore, the financer is not a necessary party and issues can be decided without the financer as a party to complainant, however, in case the complainant succeeds the preferred right of the financer may be protected. Therefore, the complaint does not suffer from non-joinder of the Financer.
7.4.1 The OP has strong objections that the vehicle is commercial in nature and it was being used for commercial purposes besides the insurance policy was also issued for commercial vehicle, therefore, the complainant is not a consumer under the Consumer Protection Act, 1986.. But the complainant has juxtaposition plea that he was using the vehicle by driving himself, he has paying EMI since vehicle is under Finance and he is a consumer.
7.4.2 The circumstances of this case are self-explanatory. The OP had also appointed its investigator/surveyor. The investigator has also furnished his report and it is accompanied with the statement of the complainant. On plain reading of the complaint coupled with documents as well as the report of surveyor inclusive of the narration given by complainant to surveyor, it clearly depicts that subject truck was purchased after having Finance from Tata Motors Finance Ltd. and the insured vehicle was being driven by the complainant himself. It clearly depicts that the vehicle was being plyed to earn livelihood, it is covered within the definition of 'consumer'. Therefore, it is held that complaint filed is valid, since the complainant is a consumer. This contention is also disposed off.
7.5 The other objections taken by the OP is about the identity of driver of the vehicle that complainant Rakesh Singh failed to produce the driver Sandeep, whose name was mentioned to the police by the author of the FIR, but on the other side it is opposed on all counts by the complainant. The following conclusions are culled out from the proved record, it will determine the controversy:-
(i) It is matter of record that Sh. Shatrugan, author of FIR, mentions named of Sandeep as driver at the time of incident but simultaneously, complainant has also proved that the police was immediately informed in writing in that FIR that complainant Rakesh Kumar is also known by name Sandeep..
(ii) The complainant has also proved a brief certificate issued by the Sarpanch of his village that the complainant is known by name Rakesh Singh @ Sandeep with his parentage.
(iii) The OP had appointed investigator as well as surveyor. The surveyor in his motor’ survey report (at page no. 5) reports that as per FIR Sh. Sandeep was driving the subject insured vehicle at the time of accident, he is also known by name Rakesh Singh as mentioned in the claim form. However, the investigator appointed by OP has not done any other independent inquiry with regard to the names of the complainant, investigator has just recorded the report on the basis of contents of documents furnished.
(iv) The matter was also being dealt by police authorities and neither the OP's investigator nor the surveyor had come across any contrary fact from the police that the complainant Rakesh Singh is not Sandeep, in view of facts mentioned in sub-clauses (i) to (iii) above.
Therefore, the preponderance of probabilities and documentary record are in favour of complainant that he is known by name Rakesh Singh alias Sandeep.
Ld. Counsel for OP has rightly pointed out that the driving licence proved by the complainant does not bear signature of name Sandeep but of Rakesh Singh as well as in the present complaint is in name of Rakesh Singh and not in the name of Sandeep. This submission is matter of record, however, it would not demerit the other circumstances discussed or concluded above nor it would non-est the complaint. With this conclusion, the contentions are disposed off.
7.6 The remaining issues are regarding "whether or not there is breach of insurance policy or provisions of Motor Vehicle Act". The rival stand of the parties on such dispute is already mentioned. Its answer lies in the record, therefore, the following conclusions are drawn:-
(a) The OP has objection that the subject vehicle was overloaded as it was carrying granite having weight of 3120 kg, which is opposed by the complainant. The OP has proved e-way bill and tax invoice, it mentions the quantity of 1033.16 sq.ft. of granite but no-where weight is mentioned. Moreover, the OP's motor survey report dated 12.12.2019 (page 2/row no. 7) also records "that weight was not mentioned". Then how OP or surveyor arrived at the weight of 3120 kg to suggest over weight is not acceptable. There is no formula or conversion or criteria mentioned in the report or in the written statement for arriving figure of this weight.
(b) The OP has also proved vehicle particulars of subject truck, it mentions cubic capacity of 3783 and the material of granite having 1033.16 sq.ft. was loaded in the vehicle, it is within the cubic capacity permitted under the registration certificate.
(c) The registration certificate prescribes seating capacity of three (including driver) but there were five persons travelling. However, it would not give any benefit to the OP for the purposes of present complaint, since the incident of accident had not happened because of five persons were seating in the vehicle but incident was for other circumstances for which FIR was registered. There is also no proof of any fact by the OP that the police had challan the complainant but FIR was lodged against other vehicle who was ahead of the subject truck.
(d) Ld. Counsel for OP has also taken an objection that author of the FIR has mentioned timing of incident of around 3 am of 19.10.2019 and the complainant in his version to the surveyor mentions as if the incident had taken place at about 6:30 am. On the face of these record, there is difference of timings, however, the dates are not different vis-à-vis it is appearing that timings are mentioned either of loading of the granite or of making exit there-from and later the vehicle was leading towards the destination. Thus, the marginal differences would not extent any benefit to the OP.
8.1 In view of the above, it stand establish from the evidence and circumstances that there was total accidental loss to the complainant in respect of his insured subject truck during the currency of insurance policy. The surveyor in his motor survey report dated 12.12.2019 had assessed the claim for loss of Rs. 9,13,624/- against estimate of Rs. 14,23,087/-. However, the surveyor has recommended liability of OP of total loss Rs. 9,86,378/- being IDV less Rs. 500/-, and the remaining amount of total loss was concluded as Rs. 9,85,378/- but subject to salvage value of Rs. 1,25,000/- without RC. Therefore, the net claim assessed comes Rs. 8,60,378/-. The complainant is held entitled for reimbursement of Rs. 8,60,378/- in lieu of total accidental loss.
8.2. The complainant also claims interest at the rate of 18% pa from the date repudiation letter of 10.01.2020, however, there is no proof of this rate of interest by the complainant. However, the complainant had taken loan to finance the vehicle besides there triable dispute arisen which lead to investigation and survey by OP, therefore, interest at the rate of 7% pa from the date of complaint till realization would meet both ends of justice.
8.3. The complainant also claims Rs.1,00,000/- as compensation for all trauma and agony faced by him for reimbursement of his valid claim besides costs of litigation of Rs.50,000/-.
In the aforementioned circumstances, the compensation of Rs. 20,000/- is determined and allowed in favour of complainant and against OP besides cost of Rs. 10,000/-in favour of complainant and against OP.
9.1 Accordingly, the complaint is allowed in favour of complainant/insured and against the OP/insurer, while directing OP to pay sum insured amount of Rs. 8,60,378/- along-with interest @7% pa from the date of complaint till realisation of amount, compensation of Rs.15,000/- and cost of Rs. 10,000/- but it is subject to further directions (as given in sub-paragraph below).
9.2 As per complainant's own case that Tata Motors Finance Ltd. is financer of vehicle, thus vehicle was under hypothecation; Tata Motors Finance Ltd. has also first right to receive the amount having insurable interest in hypothecated vehicle, which met with accidental loss. Its rights are to be protected. Thus, the complainant, the OP & the Tata Motors Finance Ltd. will cooperate each other by furnishing within 45 days from the date of this order requisite details, accounts and documents to OP and of balance amount, if any, payable to Tata Motors Finance Ltd.
9.3 Further, directions are given that OP will release the amount to Tata Motors Finance Ltd. which it deserves to receive as outstanding amount, subject to furnishing requisite details including balance amount and documents, which Tata Motors Finance Ltd. will also cooperate in this regard. Then any amount, if any or whatsoever left with OP after payment to Financer, shall be paid by the OP to the complainant forthwith.
9.4 OP is also directed to pay the amount within 45 days from the date of receipt of documents from the other side (the complainant and Tata Motors Finance Ltd.) under acknowledgment. In case amount is not paid within 45 days from the date of such documents, the OP will be liable to pay interest at the rate of 9% per annum (in place of 7%pa) on amount of Rs. Rs.8,60,378/- from the date of filing of complaint till its realization.
9.5 In case complainant and the Tata Motors Finance Ltd. do not furnish further details required of amount and other requisite documents to OP within 45 days from this order, then such period of 45 days or other longer period will be excluded, while computing interest @ 7% pa, or 9% pa as the case may be.
9.6. However, any observation recorded in this final order, based on summary trial procedure under special law of the Consumer Protection Act,. 1986, would not construe any opinion or findings on other matter, if any, pending or to be filed, either civil of nature or otherwise in respect of events of the said cause of action. With this observation the complaint is disposed off.
10. Announced on this 12th day of November, 2024 [कार्तिक 21, साका 1946]. Copy of this Order be sent/provided forthwith to the parties free of cost as per rules for compliances, besides to upload on the website of this Commission.
[Rashmi Bansal]
Member (Female)
[Inder Jeet Singh]
President
[ijs-141]
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