Haryana

Yamunanagar

CC/321/2010

Munshi S/o Kutbudeen - Complainant(s)

Versus

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

R.C.Verma

14 Jul 2015

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, YAMUNA NAGAR

 

                                                                                             Complaint No. 321 of 2010.

                                                                                             Date of institution: 6.4.2010.

                                                                                             Date of decision:14.7.2015.

Munshi son of Shri Kutubudeen, resident of village Kalesar, Tehsil Chhachhrauli, District Yamuna Nagar.  

                                                                                                                                      …Complainant.

                                                                Versus

 

The Oriental Insurance Company Limited, Court road, Opp. Hindu Girls College, Jagadhri, District Yamuna Nagar through its Manager.                                                                                                                                                  

                                                                                                                                        …Opposite party.

 

Before:            SH. ASHOK KUMAR GARG…………….. PRESIDENT.

                        SH. S.C.SHARMA………………………….MEMBER.

 

Present:  Sh. R.C.Verma, Advocate, counsel for complainant.   

               Sh. Rajiv Gupta, Advocate, counsel for OP.         

             

ORDER

 

1.                     Complainant Sh. Munshi has filed the present complaint under section 12 of the Consumer Protection Act. 1986, praying therein that respondent                  ( hereinafter referred as OP) be directed to make the payment of Rs. 1,93,767/-  on account of repair of truck bearing No. HR-55B-5795 which was damaged in a roadside accident.

2.                     Brief facts of the complaint, as alleged by the complainant, are that he is the registered owner of truck TATA LPT bearing registration No. HR-55B-5795, Model 2003 which was insured with the OP vide policy bearing No. 261701/31/2010/6109 valid from 17.10.2009 to 16.10.2010 for a sum assured of Rs. 4,00,000/- and a premium of Rs. 11594/- was paid in this regard to the OP. Hence there is a relationship of consumer and supplier between the complainant and OP. It has been further alleged that when on 29.11.2009 the driver of the said truck namely Dawood was taking the abovesaid truck after loading the Gutkha stone from Sataun Himachal to Hoshiarpur, according to permit capacity and when the said truck reached at Samrala Chowk, Ludhiana then suddenly a tractor came in front of the truck and driver of truck tried to save the tractor, the truck turned turtle upon divider and badly damaged. It has been further alleged that due to the damages the complainant has suffered loss of Rs. 1,93,767/- and regarding this, claim was lodged with the OP immediately but the OP put off the matter on one pretext or the other. Hence, there is a great deficiency on the part of OP.

3.                     Upon notice, OP appeared and filed its written statement by taking some preliminary objections such as complaint not maintainable, has not come to this Forum with clean hands, no negligence or deficiency in service on the part of OP and on merit it has been mentioned that an intimation was received by the OP company on 29.11.2009 and immediately Sh. U.P.S. Sachdeva and Company, Independent Surveyors and Loss Assessors was deputed to conduct the spot survey who submitted report on 3.12.2009 after visiting the site of accident and noted down the damages at spot. It has been further stated that the abovesaid surveyor and Loss Assessor has specifically mentioned in the said report at page No.2 that “ As per GR No.762 dated 28.11.2009 issued by M/s Gurunanak Transport, Sattaun, District Sirmour (H.P), the vehicle was loaded with 21200 Kg. C/Stones at the time of accident” which indicates that the vehicle in question was overloaded. It is a special condition of the policy in question that “ at no time the gross laden weight of the vehicle exceeds the gross vehicle weight mentioned in the schedule of the policy”. Further It has been stated that another Surveyor & Loss Assessor Bansal and Company was deputed to conduct the final survey of the vehicle, who submitted his report on 13.3.2010 in which an amount of Rs. 55000/- was assessed on net loss on repair basis after applying the relevant depreciation clause further subject to terms and conditions of the insurance policy. It has been further stated that on receipt of the said reports of the Surveyor & Loss Assessor, the claim of the complainant was duly processed and it was found that unloaded weight of vehicle in question is 6800 Kg. and gross vehicle weight is 16200 Kg has been shown in R.C. However, as per GR No. 762 dated 28.11.2009 issued by M/s Guru Nanak Transport Co. Sirmour, the truck bearing No. HR-55B-5795 was carrying a load of 21200 Kg. in utter violation of the terms and conditions of the insurance policy. Hence, there was a violation of terms and conditions of the insurance policy on the part of complainant. So, the claim of the complainant has been rightly repudiated by the OP vide letter dated 14.5.2010. As such, there is no deficiency in service on the part of OP.

4.                     To prove his case, counsel for complainant tendered into evidence affidavit of complainant as Annexure CX and documents such as Photo copy of Insurance Cover Note as Annexure C-1, Photo copy of Insurance policy as Annexure C-2, Photo copy of Survey fees as Annexure C-3, Photo copies of repair bills Annexure C-4 to Annexure C-10 and closed the evidence on behalf of complainant.

5.                     On the other hand, counsel for the OP tendered into evidence affidavit of Sh. R.S.Kalra, Divisional Manager, Oriental Insurance Company Ltd. Yamuna Nagar as Annexure RX and Affidavit of Upinder Pal Singh Sachdeva and Co. & Vijay Bansal & Company, Surveyors & Loss Assessor as Annexure RY& RZ and documents such as Photo copy of Surveyor Report of U.P.S. Sachdeva & Company as Annexure R-1, Photo copy of Surveyor Report of Bansal & Co. as Annexure R-2, Photo copy of RC as Annexure R-3, Photo copy of Fitness Certificate  on Form No.38 as Annexure R-4, Photo copy of repudiation letter dated 14.5.2010 as Annexure R-5, Photo copy of Insurance policy alongwith terms and conditions as Annexure R-6, Photo copy of letter dated 15.4.2011 as Annexure R-7, Certificate issued by Excise & Taxation Inspector, M.P.B. Rajban as Annexure R-8, Photo copy of Guidelines for charging goods tax Annexure R-9 and closed the evidence on behalf of OP.

6.                     We have heard the counsels of both the parties and have gone through the pleadings as well as documents placed on the file carefully and minutely. The counsel for the complainant reiterated the averments mentioned in the complaint and prayed for its acceptance whereas the counsel for OPs reiterated the averments made in the reply and prayed for dismissal of complaint.

7.                      It is admitted fact that the complainant is registered owner of TATA truck bearing registration No. HR-55B-5795, which was insured with the OP vide comprehensive policy bearing No. 261701/31/2010/6109 valid from 17.10.2009 to 16.10.2010 for a sum of Rs. 4,00,000/-. It is further not disputed that surveyor and loss assessor Bansal & Co. was deputed and Rs. 55000/- was assessed on “Net Loss on Repair Basis” after applying the relevant depreciation clause and subject to terms and conditions of the insurance policy in question as Annexure R-6.

8.                     The only plea of the OP is that the truck bearing registration No. HR-55B-5795 was carrying load of C/Stone 21200 Kg. against passed/permissible load of 9400 Kg. ( Gross vehicle weight of truck 16200 Kg. less 6800 kg. unladed weight = 9400 Kg. ) as per registration certificate Annexure R-3 at the time of accident. To prove this contention learned counsel for the OP draw our attention towards condition mentioned in the policy “ warranted that at no time the gross laden of weight of the vehicle exceeds the gross vehicle weight mentioned in the schedule of the policy.” Further draw our attention towards goods tax receipt issued by Excise & Taxation Department, Rajban Annexure R-8 and Guidelines for charging tax Annexure R-9 in which Rs. 742/- was charged ( i.e. Rs. 35/- per ton x 21200 Kg. = 742/-) Lastly it was argued that as the truck in question was being plied in violation of terms and conditions of the insurance policy, hence the claim of the complainant has been rightly repudiated.

9.                     On the other hand, counsel for the complainant argued that the OP failed to file the copy of GR No. 762 dated 28.11.2009 issued by M/s Guru Nanak Transport Company for transporting the C/Stone in the abovesaid truck. Learned counsel for the complainant also argued that complainant has spent Rs. 1,93,767/- on the repair of truck but the opposite party has passed only Rs. 55000/-.  The contention of the complainant that he has spent Rs. 1,93,767/- on repair of the truck is not tenable to our mind as it is settled proposition of the law that credence should be given to the surveyor report and the complainant also failed to point out any discrepancy or ambiguity in the surveyor report. The complainant failed to file any report of expert surveyor to prove the amount of Rs. 1,93,767/- whereas OP has filed surveyor report Annexure R-2 from which it is clear that there was loss to the tune of Rs. 55000/-.

10.                    Lastly learned counsel for the complainant argued that if it is assumed that the truck was overloaded even then also the OP cannot repudiate the claim of the complainant as a whole and referred the case law titled as Amalendu Sahoo Versus Oriental Insurance Co. Ltd. 2010(1) CPC page 653 and Nitin Khandelwal’s case 2008 (3) CPC page 559, S.C. even where violations of policy is found, Insurer should pay 75% of total amount as Non Standard Basis.

11.                   In the present case, it is clear from the receipt regarding charges of Rs. 742/- on account of goods tax charges issued by Excise & Taxation Department, Rajban Ex. R-8, that the truck of the complainant was carrying C/Stone 21200 Kg. i.e. was overloaded. The OP submitted that there was violation of terms and condition of the insurance policy as such the complainant is not entitled to any claim whereas the Hon’ble Supreme Court in above referred case has held that the Insurance Company cannot repudiate the claim in toto.  Hence, the complainant is entitled for relief on Non Standard Basis.

12.                   Consequently, keeping in view the above noted facts and law cited by complainant, this Forum is of the considered opinion that opposite party has  not paid the claim amount to the complainant which amounts to deficiency in service on the part of the opposite party. Hence, we partly allow this complaint and direct the opposite party  to pay Rs. 41250/- being 75% of the claim amount of Rs. 55,000/- on Non Standard Basis to the complainant alongwith interest at the rate of 7% per annum from the date of filing of complaint till realization and also to pay a sum of Rs. 2000/- as litigation expenses. Order be complied within 30 days from the date of communication of this order. Copies of this order be sent to the parties concerned free of costs as per rules. File be consigned to the record room after due compliance.

Announced in open court.

Dated: 14.7.2015.               

                                                                                    (ASHOK KUMAR GARG )

                                                                                    PRESIDENT,

                                                                                     

 

                                                                                    (S.C.SHARMA )

                                                                                     MEMBER.