Haryana

Karnal

CC/1/2022

Prithvi Raj - Complainant(s)

Versus

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

Rajesh Dhounchak

11 Mar 2024

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, KARNAL.

                                                        Complaint No. 01 of 2022

                                                        Date of instt.03.01.2022

                                                        Date of Decision:11.03.2024

 

Prithvi Raj son of Shri Baesaki Ram, resident of house no.147/12, Saini Mohalla, Indri, tehsil and District Karnal. (aged about 64 years). Aadhar no.300174732609. Mobile no.9813752685.

 

                                               …….Complainant.

                                              Versus

 

The Oriental Insurance Company Limited, Divisional Office Karnal, SCO no.87-88, Mahila Ashram Complex, Behind Bus Stand Karnal through its Divisional Manager.

 

                                                                      …..Opposite Party.

 

Complaint under Section 35 of Consumer Protection Act, 2019.

 

Before   Sh. Jaswant Singh……President.       

      Sh. Vineet Kaushik…….Member

      Dr.  Suman Singh…..Member

 

 Argued by: Shri B.S.Dhaunchak, counsel for complainant.

                    Shri Dheeraj Sachdeva, counsel for the OP.

 

                    (Jaswant Singh President)

ORDER:   

                

                The complainant has filed the present complaint under Section 35 of the Consumer Protection Act, 2019 against the opposite parties (hereinafter referred to as ‘OPs’) on the averments that complainant is the registered owner of vehicle canter bearing registration no.HR-45C-3289 and the said vehicle was duly insured by the complainant with the OP, vide policy no.261403/31/2021/2088, valid from 04.02.2021 to 03.02.2022. The vehicle of complainant being driven by one Naresh Kumar son of Shri Mahender Singh on 26.02.2021, the vehicle of complainant met with an accident within the area of Police Station Israna, though there was no fault of Shri Naresh Kumar in causing the said accident, but the police of Police Station Israna lodged a false criminal case vide FIR no.54 dated 27.02.2021 under section 279/304A/337 IPC in Police Station Israna against the said Naresh Kumar. The vehicle of complainant was damaged in the said accident and it was brought to Luxmi Motors, Karnal for its repair. The complainant has spent an amount of Rs.1,33,058/- in the repair of his vehicle. OP company was duly informed about the aforesaid incident and OP lodged the claim of the complainant, vide claim no.261403/31/2021/00000070. The complainant has also deposited the bill regarding repair of his vehicle in the office of OP and also submitted all the required information and documents, but inspite of that the OP has repudiated the claim of the complainant, vide letter dated 16.07.2021 knowingly and intentionally. Even after repudiation of the claim of the complainant, the complainant approached the OPs and requested to reconsider the claim of complainant and to release the claim but OP flatly refused to admit the claim of complainant on 17.12.2021. In this way there is deficiency in service and unfair trade practice on the part of the OP. Hence this complaint.

 2.            On notice, OP appeared and filed its written version raising preliminary objections with regard to maintainability; locus standi; cause of action and concealment of true and material facts. On merits, it is pleaded that the vehicle in question is commercial vehicle and also registered as commercial vehicle. Same was not used for livelihood and it has also been acknowledged in the complaint that the vehicle was driven by driver Naresh, the said fact clear that the vehicle was used for commercial purpose not for livelihood. It is further pleaded that complainant has sold the vehicle prior to accident to one Mr. Naresh son of Mahinder Singh, resident of Baroda Road, Inder gadi Gohana, District Sonepat for a sum of Rs.1,90,000/- on 28.12.2020 and also the said purchaser Naresh Kumar executed duly attested affidavit regarding confirmation of sale and possession on 28.12.2020. So, complainant has no insurable interest and he is not entitled for claim. It is further pleaded that on receipt of intimation regarding accident, OP appointed a surveyor and surveyor has assessed the net loss to Rs.1,16,846/-. The complainant has no insurable interest at the time of accident, so the claim of the complainant repudiated by the OP as per rules. There is no deficiency in service and unfair trade practice on the part of the OP. The other allegations made in the complaint have been denied and prayed for dismissal of the complaint.

3.             Parties then led their respective evidence.

4.             Learned counsel for the complainant has tendered into evidence affidavit of complainant Ex.CW1/A, copy of tax invoice of Luxmi Motors Ex.C1, copy of repudiation letter Ex.C2, copy of RC Ex.C3, copy of certificate of fitness Ex.C4, copy of insurance policy Ex.C5, copy of permit Ex.C6, copy of driving licence of Naresh Kumar Ex.C7 and closed the evidence on 21.11.2022 by suffering separate statement.

5.             On the other hand, learned counsel for the OP has tendered into evidence affidavit of Ramesh Kumar Ex.RW1/A, affidavit of Deepak Mudgil Surveyor and Loss Assessor Ex.RW2/A, copy of insurance policy Ex.OP1, copy of superdari order dated 04.03.2021 Ex.OP2, copy of FIR Ex.OP3, copy of RC Ex.OP4, copy of driving licence of Naresh Kumar Ex.OP5, copy of survey report Ex.OP6, copy of agreement to sell Ex.OP7, copy of affidavit of Naresh Kumar regarding purchase of vehicle Ex.OP8, power of attorney Ex.OP9, claim repudiation letter dated 16.07.2021 Ex.OP10, copy of survey report by Deepankar Soni Ex.OP11, copy of reply of legal notice Ex.OP12, postal receipt Ex.OP13 and closed the evidence on 25.09.2023 by suffering separate statement.

6.             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.

7.             Learned counsel for complainant, while reiterating the contents of complaint, has vehemently argued that complainant got insured his vehicle with the OP. On 26.02.2021, the said vehicle met with an accident. At the time of accident, the vehicle was being driven by one Naresh Kumar. There was no fault of Naresh Kumar in causing the said accident, but the police lodged a criminal case, vide FIR no.54 dated 27.02.2021 under section 279/304A/337 IPC in Police Station, Israna against the said Naresh Kumar. The vehicle of complainant was badly damaged in the said accident and it was brought to Luxmi Motors, Karnal for its repair. The complainant has spent an amount of Rs.1,33,058/- in the repair of his vehicle. The complainant deposited the bill regarding repair of his vehicle in the office of OP and also submitted all the required information and documents for disbursement of the claim, but inspite of that the OP has repudiated the claim of the complainant, on the false and frivolous ground and prayed for dismissal of the complaint.

8.             Per contra, learned counsel for the OP, while reiterating the contents of written version, has vehemently argued that complainant has sold the vehicle prior to accident to one Mr. Naresh son of Mahinder Singh, for a sum of Rs.1,90,000/- on 28.12.2020 and also the said purchaser Naresh Kumar executed duly attested affidavit regarding confirmation of sale and possession on 28.12.2020. So, complainant has no insurable interest and he is not entitled for claim. He further argued that on receipt of intimation regarding accident, OP appointed a surveyor and surveyor has assessed the net loss to Rs.1,16,846/-. The complainant has no insurable interest at the time of accident, so the claim of the complainant repudiated by the OP as per rules and lastly prayed for dismissal of the complaint.

9.             We have duly considered the rival contentions of the parties.

10.           Admittedly, the vehicle in question met with an accident during the subsistence of the insurance policy.

11.           The claim of the complainant has been repudiated by the OP, vide letter Ex.OP10 dated 16.07.2021 on the ground, which is reproduced as under:-

“In the abovesaid case, as per claim file vehicle met with an accident on 26.02.2021. However, during the spot survey on 26.02.2021, it has been found that at the time of accident, the vehicle in question was used by Mr. Naresh Kumar since last two months and as per affidavit the vehicle was also bought by Mr.Naresh Kumar son of Shri Mahinder Singh on 16.12.2020 but the registration is still showing the registered owner as Prithvi Raj as well as insurance policy not transferred in the name of Transferee before the date of accident. As such you have no insurable interest in the abovesaid vehicle at the time of accident.

Therefore, you are hereby informed that the competent authority has repudiated the abovesaid claim on the basis of no insurable interest and concealment of facts”.

 

12.           The claim of the complainant has been repudiated by the OP on the abovesaid ground. To prove its version, OP has placed on file copy of agreement to sale Ex.OP7 executed between the parties, copy of affidavit of said Naresh Kumar Ex.OP8 and copy of power of attorney Ex.OP9 issued by complainant in favour of Naresh Kumar. All the documents are photocopies, it is not the case of the complainant that he has sold his vehicle to said Naresh Kumar. The abovesaid documents have not been proved and the same are not admissible in the eyes of law. Moreover, the accident took place on 26.02.2021 and complainant has got renewed the insurance policy Ex.C5 on 03.02.2021 for the further period. The registration certificate of the vehicle Ex.C3, certificate of fitness Ex.C4 and permit Ex.C6 are also in the name of complainant. This fact has not been denied by the OP. Hence, it has been proved on file that at the time of accident, the complainant was owner of the vehicle in question.

13.           For the sake of gravity, if it is presumed that complainant has violated the terms and conditions of the insurance policy, in that eventuality, the claim of the complainant cannot be repudiated in toto.  In this regard, we relied upon the case laws 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.

14.           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”.

15.           Keeping in view the ratio of the law laid down in the abovesaid authorities and the facts and circumstances of the present complaint, we are of the considered view that the act of the OP amounts to deficiency in service and unfair trade practice while denying the claim of the complainant in toto. Hence, complainant is entitled to get 75% only of the admissible claim on non-standard basis.

16.           The complainant claimed Rs.1,33,058/- as repair charges but as per surveyor report Ex.OP11 dated 17.05.2021, the loss has been assessed by the surveyor of the OP as Rs.1,16,846/-. 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 is liable to pay the loss assessed by the surveyor alongwith interest, compensation for mental agony and harassment and litigation expenses.

17.           The surveyor of the OP has assessed the loss to the tune of Rs.1,16,846/- as the complainant has violated the terms and conditions of the policy, he is entitled for 75% of the said amount, alongwith interest, compensation for mental agony and harassment and litigation expenses.

18.           In view of the above discussion, we partly allow the present complaint and direct the OP to pay Rs.87,634/- (Rs.eighty seven thousand six hundred thirty four only)  i.e.75%  of the loss assessed by the surveyor of the OP to the complainant alongwith interest @ 9% per annum from the date of repudiation of the claim i.e. 16.07.2021 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 expenses. This order shall be complied within 45 days from the receipt of copy of this order. The parties concerned be communicated of the order accordingly and the file be consigned to the record room after due compliance.

Announced

Dated:11.03.2024                                                                     

                                                                President,

                                                    District Consumer Disputes

                                                    Redressal Commission, Karnal.

 

 (Vineet Kaushik)       (Dr. Suman Singh)

  Member                   Member