Haryana

Kaithal

294/19

Balvinder Singh - Complainant(s)

Versus

The Oriental Insurance Co. - Opp.Party(s)

Sh.M.K Nirwani

17 Aug 2023

ORDER

         

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, KAITHAL.

                                                     Complaint Case No.294/2019

                                                     Date of institution: 09.09.2019.

                                                     Date of decision:16.08.2023.

 

Balvinder Singh son of Balbir Singh resident of Derabhag Singh Ward No. 16, Cheeka, Kaithal, Haryana.

                                                                        …Complainant

                        Versus

1. The Oriental Insurance Company limited Hafed Road, Cheeka Kaithal, Haryana.
2. The Oriental Insurance Company Limited, Oriental House, P.B. No. 7037, A-25/27, Asaf Ali Road, New Delhi-110002.

….OPs.

        Complaint under Section 12 of the Consumer Protection Act

CORAM:     SMT. NEELAM KASHYAP, PRESIDENT.

                SMT. SUMAN RANA, MEMBER.

                SH. SUNIL MOHAN TRIKHA, MEMBER.

       

Present:     Sh. M.K. Nirwani, Advocate for the complainant.

                Sh. M.R. Miglani, Advocate for the OPs.

 

ORDER

NEELAM KASHYAP, PRESIDENT

       Balwinder -Complainant has filed this complaint under Section 12 of Consumer Protection Act, 1986 (hereinafter referred to as ‘the Act’) against the OPs.

1. In nutshell, the facts of present case are that the complainant is the owner of the truck bearing registration number PB13Y-9776 and is in the business of transportation. On 24^th May, 2018 he had undertaken to deliver sand from Sh. Joginder Singh. On 24.05.2018 at about 8-9 AM when he was going from Pehowa to Cheeka  then on Cheeka Road, near Dhaba Radhe Radhe due to bad condition of Road  truck went into ditch and turned over on the Road. The truck was being driven by Raj Kumar. After sometime the first surveyor of insurance company came and took the bill of sand and also took some photographs thereafter with the help of crane truck was carried back to the workshop for the necessary repairs.   On 25.05.2018 second surveyor of Insurance company came and took the photographs of the truck before the repairs and stated estimated cost of repairs for damaged truck around Rs.3,18,900/- and thereafter repair work was carried out. After repairs of said truck, the original bills costing around Rs.3,04,705/- which were received by the complainant were further handed over to surveyor of the insurance company. On 15.04.2019 he received a repudiation letter from the Oriental Insurance Company stating that your claim is not allowed and it stands rejects.  So, it is a clear cut case of deficiency in service on the part of OPs and prayed for acceptance of complaint.     

 2.            Upon notice, the OPs appeared before this Commission and contested the complaint by filing their written version. OPs filed the written version raising preliminary objections regarding maintainability; cause of action; that this commission has got no jurisdiction to entertain and try the present complaint; that due to over loading, wheel of truck was pressed down and wheel of left portion rammed into earth and truck become unbalanced and turned on left side and caused damaged. The truck was loaded with sand and surveyor demanded bill sand and tax invoice of sand. The complainant had not supplied the bill to the surveyor but surveyor found that near about 20 tons sand was loaded in the tuck so truck was rammed due to over load.  On merits, the objections raised in the preliminary objections are reiterated and so, prayed for dismissal of complaint.                 

3.             To prove his case, the complainant tendered into evidence affidavit Ex.CW1/A alongwith documents Annexure-C1 to Annexure-C23 and thereafter, closed the evidence.

4.             On the other hand, the OPs tendered into evidence affidavits Ex.RW1/A & Ex. RW2/A alongwith documents Annexure-R1 and Annexure R2 and closed the evidence. 

5.             We have heard both the parties and perused the record carefully.

6.             Ld. counsel for the complainant has argued the complainant is the owner of the truck bearing registration number PB13Y-9776 and is in the business of transportation. On 24^th May, 2018 he had undertaken to deliver sand from Sh. Joginder Singh. On 24.05.2018 at about 8-9 AM when he was going from Pehowa to Cheeka  then on Cheeka Road, near Dhaba Radhe Radhe due to bad condition of Road truck went into ditch and turned over on the Road. The truck was being driven by Raj Kumar. After sometime the first surveyor of insurance company came and took the bill of sand and also took some photographs thereafter with the help of crane truck was carried back to the workshop for the necessary repairs.   It is further argued that on 25.05.2018 second surveyor of Insurance company came and took the photographs of the truck before the repairs and stated estimated cost of repairs for damaged truck around Rs.3,18,900/- and thereafter repair work was carried out. After repairs of said truck, the original bills costing around Rs.3,04,705/- which were received by the complainant were further handed over to surveyor of the insurance company. On 15.04.2019 he received a repudiation letter from the Oriental Insurance Company stating that your claim is not allowed and it stands rejects.  So, it is a clear cut case of deficiency in service on the part of OPs.

7.             On the other hand, ld. counsel for the OPs has argued that due to over loading, wheel of truck was pressed down and wheel of left portion rammed into earth and truck become unbalanced and turned on left side and caused damaged. It is further argued that the truck was loaded with sand and surveyor demanded bill sand and tax invoice of sand. The complainant had not supplied the bill to the surveyor but surveyor found that near about 20 tons sand was loaded in the tuck so truck was rammed due to over load. Ld. counsel for the OPs has placed reliance upon the case law titled as Shiv Villas Resorts Pvt. Ltd. Vs. UII 2018(1) CLT 508 decided by Hon’ble National Commission; NIA Vs. Anokhi Devi decided by Hon’ble National Commission on 28.09.2016 ands OIC Vs. M/s. Dubey Travels decided by Hon’ble Chhattisgarh State Commission on 17.07.2013   

8.             We have considered the rival contentions of both the parties. The OPs have repudiated the claim of complainant on the ground that the complainant had not supplied the original bill bearing No.25418 dt.24.05.2018 within ten days as demanded by the OPs from the complainant vide letter dt. 15.04.2019 as per Annexure-C3.  Ld. counsel for the OPs has vehemently contended that the surveyor found near about 20 tons sand was loaded in the tuck so truck was rammed due to over load.  He has drawn our attention towards the terms and conditions of the policy as per Anneuxre-R1, wherein at Sr.No.5 of page No.3, it is mentioned that “Where the excess load is beyond 12.5% of the GVW-Claim to be repudiated”.  Ld. counsel for the OPs has contended that in view of aforesaid condition, the claim of complainant was repudiated due to overload of sand in the vehicle.  To rebut the said contention of OPs, ld. counsel for the complainant has vehemently contended that the original record relating to bill No.25418 dt. 24.05.2018 was not found and in this regard, he has drawn our attention towards Annexure-C4, wherein it is reported by Sh. Joginder Singh, B-16, North Block, Gumthala, District Yaumuna Nagar to the effect that on 24.05.2018 vide truck bearing No. PB13Y-9776, 15 ton sand was loaded and there is no old record available and the said bill is original bill issued by them.  The said report is duly signed by Sh. Joginder Singh and he has also written his mobile No.9416000082.  In the interest of justice, if we presume that the complainant has violated the terms and condition No.5 mentioned at page No.3 as per policy Annexure-R1 then despite violation, there would have been no justification for the OPs for denying the claim of complainant in its entirely only for such violation of terms and condition.  In this regard, reliance can be made to authority titled as United India Insurance Co. Ltd. Vs. Gian Singh reported in II(2006) CPJ page 83 (NC), wherein, it has been held by Hon’ble National Commission that in case of violation of condition of policy as to nature of use of the vehicle, the claim ought to be settled on non-standard basis.  We can also rely upon the authority titled as NIC Vs. Nitin Khandelwal, 2008(3) RCR (Civil) page 193 (SC), wherein it has been held by Hon’ble Supreme Court that Car insured for personal use, but used as taxi-Theft of car-Insurance company cannot reject the claim on the ground of breach of contract.

9.             The above authorities are fully applicable to the facts of instant case, whereas, the case law relied upon by the ld. counsel for the OPs are not distinguishable but the same are not applicable to the present case.  Hence, we are of the considered view that the claim in respect of vehicle in question should have been settled by the OPs on the basis of the guidelines of non-standard settlement. Therefore, the OPs have wrongly repudiated the claim of complainant in toto.  In the present case, the surveyor Mr. Deepankur Soni has assessed the loss of the damaged vehicle for the sum of Rs.1,50,774/-.  The surveyor is an independent person and the report of surveyor, Annexure-R2 is placed on the file.  So, this report of surveyor is taken into consideration for deciding the compensation amount in the complaint. 

10.            Thus, in view of above discussion, we allow the complaint partly and direct the OPs to settle the claim of complainant on non-standard basis i.e. 75% of Rs.1,50,774/- (as assessed by the surveyor) which becomes Rs.1,13,080/- to the complainant within 45 days from today.  The OPs are further directed to pay Rs.5,000/- as lump sum compensation on account of physical harassment and mental agony as-well-as litigation charges to the complainant.  However, it is made clear that if the OPs are failed to pay the awarded amount of Rs.1,13,080/- to the complainant within stipulated period, then they shall be liable to pay interest @ 7% p.a. from the date of this order till its realization. 

11.            In default of compliance of this order, proceedings against respondents-OPs shall be initiated under Section 72 of Consumer Protection Act, 2019 as non-compliance of court order shall be punishable with imprisonment for a term which shall not be less than one month, but which may extend to three years, or with fine, which shall not be less than twenty five thousand rupees, but which may extend to one lakh rupees, or with both.  A copy of this order be sent to both the parties free of cost.  File be consigned to the record room after due compliance.     

Announced in open court:

Dt.:16.08.2023.

                                                                (Neelam Kashyap)

                                                                President.

 

(Sunil Mohan Trikha),           (Suman Rana),          

Member.                            Member.

 

Typed by: Sanjay Kumar, S.G.