Haryana

Karnal

CC/402/2021

Amar Singh - Complainant(s)

Versus

The Oriental Insurance Company Limited - Opp.Party(s)

Karambir Kashyap

08 Sep 2022

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, KARNAL.

 

                                                       Complaint No. 402 of 2021

                                                        Date of instt.13.08.2021

                                                        Date of Decision:08.09.2022

 

Amar Singh aged about 36 years son o Shri Charan Singh, resident of Sanjay Nagar, village Barsat, District Karnal. Aadhar no.5164-5456-2804.

                                                                  …….Complainant.

 

                                         Versus

 

1.     The Oriental Insurance Co. Ltd. Divisional Office at Mahila Ashram Complex, behind Bus Stand Karnal, through its Divisional Manager.

2.     Metro Motors Pvt. Ltd., # Siwah, Panipat, through its proprietor/partner.

                                                                      …..Opposite Parties.

 

Complaint Under Section 35 of Consumer Protection Act, 2019.

 

Before   Sh. Jaswant Singh……President.       

      Sh. Vineet Kaushik…….Member

      Dr. Rekha Chaudhary……Member

          

 Argued by: Shri Ram Kumar Kashyap, Adv. for the complainant.

                           Shri Naveen Khetarpal, counsel for the OP no.1.

                    Shri  Rajesh Gupta, counsel for the OP no.2.

                    (Jaswant Singh President)

ORDER:   

                

                The complainant has filed the present complaint Under Section 35 of Consumer Protection Act, 2019 against the opposite parties (hereinafter referred to as ‘OPs’) on averments complainant is registered owner of truck bearing registration no.HR-45-C-2811, which is being plying by the complainant for earning his livelihood on rent basis from one place to another place and for this purpose the complainant, fulfilled all the formalities with respect to permit, insurance and other necessary documents. The complainant got insured his aforesaid vehicle from OP no.1, vide policy no.242596/31/2020/ TMC/3489, valid from 15.05.2019 to 14.05.2020. On 03.05.2020 the said truck of the complainant had met with an accident in the area of near Chandvaji, Rajasthan and in that accident the aforesaid truck of the complainant badly damaged and thereafter the complainant had brought said vehicle in the premises of OP no.2 through crane for repairing. Thereafter, complainant also intimated about the said accident to the office of the OP no.1. On receipt of intimation, OP appointed a surveyor for investigating the matter. Thereafter, complainant lodged the claim with the OP no.1 and completed all the formalities, but OP no.1 has not disbursed the amount of insurance claim in favour of the complainant. Complainant had approached to the OP no.2 for repairing the abovesaid vehicle and under the instruction of the complainant, OP no.2 had started repairing said vehicle and after repairing when OP no.2 started demanding an amount of Rs.4,50,000/- from the complainant, then complainant said to OP no.2 that the complainant would give aforesaid amount to the OP no.2 after disbursing the claim amount by the OP no.1. Thereafter, complainant visited the office of OP no.1 several times and requested for disbursement of the amount of Rs.4,50,000/- in his favour, but OP no.1 did not pay the same and lingered the matter on one pretext or the other. Non-receipt of insurance claim, the OP no.2 is not ready to deliver the possession of the truck to the complainant on account of which complainant is unable to earn for his livelihood and is facing starvation as except the aforesaid truck the complainant is not having any other alternative source of income. It is further averred that since the date of accident i.e. 03.05.2020 the vehicle is lying in the premises of the OP no.2. Due to non-disbursing the claim amount, complainant is suffering a lot of mental harassment, humiliation as well as financial loss and loss of his earning. In this way there is deficiency in service and unfair trade practice on the part of the OPs. Hence this complaint.

2.             On notice, OP no.1 appeared and filed its written version raising preliminary objections with regard to maintainability; cause of action and concealment of true and material facts. On merits, it is pleaded that the claim submitted by the complainant on the basis of accident occurred on 03.05.2020 is not maintainable as per the terms and conditions of the insurance policy and settled proposition of law. The vehicle was being driven at the time of accident by Shri Shyam Kumar who is not having valid driving licence to drive the vehicle in question at the time of accident, which amounts to gross violation of the terms and conditions of the policy. It is further pleaded that the complainant does not fall under the definition of consumer as the vehicle in question is being used by the complainant for commercial purpose as the same has also been written on the Registration Certificate of the vehicle –“Commercial Vehicle”. Registration Certificate of the vehicle clearly shows that the vehicle is of commercial nature and the business done by the vehicle is also commercial so the complaint of complainant may kindly be dismissed on this score. There is no deficiency in service on the part of the OP. The other allegations made in the complaint have been denied by the OP and prayed for dismissal of the complaint.

3.             OP no.2 filed its separate written version raising preliminary objection with regard to maintainability. On merits, it is pleaded that complainant brought the accidental repair vehicle at the  workshop of OP no.2 and after completing the repair works, the charges were made of Rs.4,50,000/- and the complainant is legally bound to pay the same to OP no.2. The complainant has not taken the possession of the vehicle even after completing the repairing work and even after sending registered letters and reminders thereof, thus the complainant has become liable for parking charges as well for the cost of repairs and maintenance charges to care and maintain the parked vehicle standing at the risks and cost of the complainant as the complainant avoiding to take the delivery of the vehicle knowingly and intentionally, as the condition of the vehicle is deteriorating day by day due to his own negligence. It is further pleaded that OP no.2 is nowhere liable to deliver the Accidental Repaired Truck without payment because the payment was to be made by the complainant or by OP no.1, hence there is no question of any negligence and fault of OP no.2, which is an admitted fact because the OP no.1 has not released the repair charges to OP no.2 i.e. the service provider. Hence there is no deficiency in service or fault of the OP no.2 and prayed for dismissal of the complaint qua OP no.2.

4.             Parties then led their respective evidence.

5.             Complainant has tendered into evidence his affidavit Ex.CW1/A, copy of Aadhar card of complainant Ex.C1, copy of permit of truck in question Ex.C2, copy of receipt of payment of permit Ex.C3, copy of insurance policy Ex.C4, copy of driving licence of Shyam Kumar Ex.C5, copy of Aadhar card of Shyam Kumar Ex.C6, copy of R.C. of vehicle Ex.C7, copy of letter dated 07.11.2020 Ex.C8, copy of affidavit of Amar Singh (complainant) Ex.C9, copy of reminder dated 13.06.2020 Ex.C10, copy of affidavit of Amar Singh Ex.C11, copy of letter dated 09.07.2020 Ex.C12 and closed the evidence on 14.02.2022 by suffering separate statement.

6.             On the other hand, learned counsel for OP no.1 has tendered into evidence affidavit of Sanjiv Madan, Senior Divisional Manager Ex.OP1/A, affidavit of Sanjeev Chhabra Surveyor Ex.OP2/A, copy of claim form Ex.OP1, copy of driving licence of Shyam Kumar Ex.OP2, copy of online driving licence verification Ex.OP3, copy of letter to insured dated 07.11.2020 Ex.OP4, copy of email to Metro Motors Ex.OP5, copy of surveyor report Ex.OP6, copy of insurance policy Ex.OP7, copy of letter to Licensing Authority  dated 28.10.2021 Ex.OP8, copy of postal receipt Ex.OP9 and closed the evidence on 23.02.2022 by suffering separate statement.

7.             Learned counsel for OP no.2 has tendered into evidence affidavit of Abhimanu-Manager Ex.RW1/A, Tax Invoice Ex.R1, copy of email regarding request for work approval of the vehicle in question Ex.R2, copy of email dated 25.09.2020 Ex.R3, copy of letter to Amar Singh dated 07.11.2020 and 20.04.2021 Ex.R4 and Ex.R5 and closed the evidence on 14.02.2022 by suffering separate statement.

8.             We have heard the learned counsel of the parties and perused the case file carefully and have also gone through the evidence led by the parties.

9.             Learned counsel for complainant, while reiterating the contents of the complaint, has vehemently argued that complainant got insured his vehicle from OP no.1. On 03.05.2020 the truck of the complainant had met with an accident, and in that accident the said truck was badly damaged and the complainant had brought said vehicle in the premises of OP no.2 for repairing. The intimation was sent to OP no.1. On receipt of intimation, OP appointed a surveyor for investigating the matter. The complainant lodged the claim with the OP no.1 and completed all the formalities, but OP no.1 has not disbursed the amount of insurance claim. OP no.2 demanded an amount of Rs.4,50,000/- from the complainant, then complainant said to OP no.2 that the complainant would give aforesaid amount to the OP no.2 after disbursing the claim amount by the OP no.1. Thereafter, complainant visited the office of OP no.1 several times and requested for disbursement of the amount of Rs.4,50,000/- in his favour, but OP no.1 did not pay the same. Non-receipt of insurance claim, the OP no.2 is not ready to deliver the possession of the truck to the complainant. Due to non-disbursing the claim amount, complainant is suffering a lot of mental harassment and humiliation and lastly prayed for allowing the complaint.

10.           Per-contra, learned counsel for OP no.1, while reiterating the contents of written version, has vehemently argued that the vehicle was being driven at the time of accident by Shri Shyam Kumar who was not having valid driving licence to drive the vehicle in question at the time of accident, which amounts to gross violation of the terms and conditions of the policy. He further argued that complainant does not fall under the definition of consumer, as the vehicle in question was being used by the complainant for commercial purpose. Thus, OP has rightly repudiated the claim of the complainant and lastly prayed for dismissal of the complaint.

11.           Learned counsel for OP no.2 while, reiterating the contents of complainant has vehemently argued that the accidental vehicle is lying at the  workshop of OP no.2 and after completing the repair works, the charges was made Rs.4,50,000/- and the complainant was legally bound to pay the same.  Complainant has not taken the delivery of the vehicle and lastly prayed for dismissal of the complaint qua OP no.2.

12.           We have duly considered the rival contention of the parties.

13.           Admittedly, the vehicle in question was insured with the OP no.1 for the period of 15.05.2019 to 14.05.2020. It is also admitted that the vehicle in question was met with an accident on 03.05.2020 i.e. during subsistence of the insurance policy. It is also admitted that the loss has been assessed by the surveyor of the OP no.1 and OP no.2 for the tune of Rs.4,29,880/-.

 14           The claim of the complainant has been denied by the OP no.1, on the ground that driver of the vehicle in question was not  having valid driving licence to drive the vehicle at the time of accident and vehicle in question was being used for commercial purpose at that time.

15.           The OP no.1 has taken a plea the vehicle in question was being used for commercial purpose and thus this Commission has no jurisdiction to try and entertain the present complaint.

15.           The onus to prove its version lies upon the OP no.1, but OP  has miserably failed to prove its version by leading any cogent and convincing evidence. Rather, complainant in his complaint has specifically mentioned that the vehicle in question was being plied by him for earning his livelihood. In this regard we are relying upon the authority case titled as M/s Prabhu Dayal Trilok Chand Versus Oriental Insurance Company Limited and Anr. in consumer case no.908 of 2016 decided on 24.05.2022 of Hon’ble National Commission in which Hon’ble National Commission held that   

“A contract of insurance is a contract of indemnity and, therefore, there is no question of commercial purpose in obtaining insurance coverage. The complainant is a consumer and the complaint is maintainable”.

Further in M/s Paramount Digital Color Lab and Ors etc. Versus M/s Agfa India Pvt. Ltd. and Ors. etc. in civil appeal nos. 2109-2110 of 2018 decided on 15.02.2018 in which the Hon’ble Supreme Court held that

“if person purchases goods for commercial purpose and such commercial purpose is for earning livelihood by means of self employment-Such person will come within definition of consumer-Appellant purchased machine for self employment- Quality of ultimate production of machine depends upon skill of person who uses machine-In case of exigencies, if person trains another person to operate machine so as to produce final product based on skill and effort in matter of photography and development, same cannot take such person out of definition of consumer”.

                  In view of the ratio of the law laid down in the aforesaid judgments, facts and circumstances of the case, the present complaint is maintainable before this Commission.  Hence, plea taken by the OP no.1 has no force

16.           The next plea taken by the OP no.1, is that the driver of the vehicle, namely Shyam Kumar was not having a valid driving licence at the time of accident.

17.           It s evident from the affidavit of complainant Ex.C9, at the time of accident the vehicle in question was driven by Shyam Kumar. It is also evident from the driving licence Ex.C5 of said Shyam Kumar was having a driving licence. It is also evident from Ex.OP3 i.e. online DL verification that said licence was issued by Jharkhand Licensing Authority for motorcycle LMV only.  It is also evident from Ex.R2 i.e. request for work approval of the accident vehicle, surveyor of the OP no.1 had asked to OP no.2 to start the repairing of the vehicle with cashless facility. It is also evident from the Ex.R3 i.e. status of the vehicle, the approval has been given for repairs the vehicle by the surveyor of the OP no.1 to the OP no.2. It is also admitted facts that vehicle in question is lying in the workshop of OP no.2. It is also evident from the tax invoice Ex.R1, OP no.2 has assessed the loss to the tune of Rs.4,59,549/-. It is also evident from the surveyor report Ex.OP6 that surveyor of the OP no.1 has assessed the loss to the tune of Rs.4,29,880/-. The claim of the complainant has been denied by the OP no.1 on the ground of invalid driving licence of the driver. No doubt, complainant has violated the terms and conditions of insurance policy as alleged by the OP, in that eventuality, the claim of the complainant cannot be denied/repudiated in toto.  In this regard, we are relying upon the authority cited in Revision Petition no.1870 of 2015(NC) decided on 14.08.2018 titled as New India Assurance Co. Ltd. Versus Thirath Singh Brar,  and authority of our own Hon’ble State Commission in First Appeal no.717 of 2016 decided on 6.4.2017 titled as United India Insurance Company Limited and others Versus Anshul Bansal.  In both judgments it was held that in case of any breach of warranty/condition of the policy the insurer is liable to pay 75% of admissible claim on non-standard basis.

18.           Further,  Hon’ble Punjab and Haryana High Court in case titled as New India Assurance Company Ltd. Versus Smt. Usha Yadav & others 2008 (3) RCR (Civil) 111, has held as under:-

                “It seems that the Insurance Companies are only interested in earning the premiums which are rather too stiff now a days, but are not keen and are found to be evasive to discharge their liability. In large number of cases, the Insurance companies make the effected people to fight for getting their genuine claims. The Insurance Companies in such cases rely upon clauses of the agreements, which a person is generally made to sign on dotted lines at the time of obtaining policy. This is, thus pressed into service to either repudiate the claim or to reject the same. The Insurance Companies normally build their case on such clauses of the policy, but would adopt methods which would not be governed by the strict conditions contained in the policy”.

 19.          Keeping in view the ratio of the law laid down in aforesaid judgments, facts and circumstances of the present complaint, we are of the considered view that act of the OP no.1 while denying the claim of the complainant in toto amounts to deficiency.

20.           As per the survey report Ex.OP6 dated 23.10.2020, the loss has been assessed by the surveyor of the OP no.1 to the tune of Rs.4,29,880/-but complainant has claimed Rs.4,50,000/- and OP no.2 has claimed Rs.4,59,549/-, it appears that OP no.2 had charged the amount on higher side. Hence, the report of the surveyor will prevail. In this regard we are relying upon the authority 2(2008) CPJ paged 182 (NC), United India Insurance Co. Vs. Maya, wherein it has been held that a surveyor report should not be dismissed summarily as the surveyor is independent and qualified person under the relevant provision of Insurance Act, 1938. In view of this authority as well as the facts and circumstances of the case, we are of the considered view that the OP no.1 is liable to pay the loss assessed by the surveyor alongwith interest, compensation for mental agony and harassment and litigation expenses.

21.           In view of the above discussion, we partly allow the present complaint and direct the OP to pay Rs.3,22,410/- (Rs. three lakhs twenty two thousand four hundred ten only) i.e.75% of the loss assessed by the surveyor of the OP no.1 alongwith interest @ 9% per annum from the date of denying/repudiating of the claim till its realization. We further direct the OP to pay Rs.20,000/- to the complainant on account of mental agony and harassment suffered by him and Rs.11,000/- for the litigation expense. This order shall be complied within 45 days from the receipt of copy of this order. It is to be made clear that complainant shall liable to pay of Rs.4,29,880/- to the OP no.2 as per tax invoice Ex.R1. It is further made clear that on receipt of said amount, OP no.2 shall handover the vehicle in question to the complainant in its proper running condition. The parties concerned be communicated of the order accordingly and the file be consigned to the record room after due compliance.

Announced

Dated:08.09.2022                                                                       

                                                                  President,

                                                     District Consumer Disputes

                                                     Redressal Commission, Karnal.

 

(Vineet Kaushik)        (Dr. Rekha Chaudhary)

                          Member                      Member