Complaint No: 42 of 2023.
Date of Institution: 14.02.2023.
Date of order: 05.02.2023.
Paramjit Kaur Wife of Maninder Singh, resident of 1260, Mukhrji Park, Jagadhari, Jaroda, District Yamuna Nagar (Haryana). Pin Code – 135001.
…......Complainant.
VERSUS
1. The Oriental Insurance Company Ltd., Branch office G.T. Road Batala District Gurdaspur, through its Manager. Pin Code – 143505.
2. The Oriental Insurance Company Ltd., Divisional office Dalhousie Road, Pathankot, through its Divisional Manager. Pin Code – 145001.
...Opposite parties.
Complaint U/s 35 of Consumer Protection Act.
Present: For the Complainant: Sh.Raman Kumar, Advocate.
For the Opposite Parties: Sh.S.J.S.Bajwa, Advocate.
Quorum: Sh.Lalit Mohan Dogra, President, Sh.Bhagwan Singh Matharu, Member.
ORDER
Lalit Mohan Dogra, President.
Paramjit Kaur, Complainant (here-in-after referred to as complainant) has filed this complaint under section 35 of the Consumer Protection Act (here-in-after referred to as 'Act') against The Oriental Insurance Co. Ltd. Etc. (here-in-after referred to as 'opposite parties).
2. Briefly stated, the case of the complainant is that the complainant is Registered owner of vehicle i.e. Car make i-20 Magna 1.2 BS IV bearing Registration No.HR-51-AK-6678. It is pleaded that the above said vehicle is fully insured with the opposite parties Insurance Company through the OP No. 1 Vide Policy / Cover No. 233905/31/2022/446 valid from 05.06.2021 to midnight of 04.06.2022. The policy is comprehensive and covers all risks. As such the complainant is consumer of the opposite parties. The insured value of the above said vehicle is Rs.2,02,500/-. Even incharge Fire Station Municipal Council Batala has also assessed loss to the vehicle to the tune of Rs.2,00,000/- vide Fire Call report dated 05.05.2022. It is further pleaded that on 30.04.2022 brother of the complainant namely Gurpreet Singh son of Darshan Singh resident of Kot Kuljas Rai near Gurudwara Singh Sabha Batala was coming from Ludhiana to Batala and he himself was driving this vehicle. At about 07.30 P.M, when he reached in area of village Purian Khurd Tehsil Batala, the land owners adjoining to the road has put fire in their fields due to which were was heavy smoke on the road and visibility became very poor all of sudden due to heavy smoke, as a result of which the brother of the complainant applied brakes of the Car, but he lost control over the above said vehicle. It is further pleaded that the vehicle turned towards side of the road and entered into fields where fire was already burning and Car also caught fire immediately. It is further pleaded that brother of the complainant saved his life with great difficulties, but during this process, he suffered grievous burn injuries on his hands in the above said incident. It is further pleaded that Brother of the complainant made phone call to Fire Brigade and vehicle of the Fire Brigade came at the spot and put off the fire. Matter was also reported to the police and the police recorded GD No. 49 dated 30.04.2022 P.S. Rangar Nangal on the statement of brother of the complainant. It is further pleaded that matter was reported to the OP No. 1 by the complainant and the OP No. 1 deputed its Surveyor who visited the spot and assessed the loss to the vehicle to the tune of “TOTAL LOSS”. It is further pleaded that the complainant was not plying the vehicle against the terms and conditions of the Insurance policy or in contravention of the insurance policy rules, nor there was any intentional or willful delay on the part of the complainant in reporting the matter to the opposite parties. It is further pleaded that thereafter the complainant lodged her claim with the opposite parties supported by all the requisite documents for payment on account of the loss suffered by him. But to the utter surprise of the complainant, the opposite parties have repudiated the claim of the complainant vide letter dated 02.08.2022 with false, baseless and frivolous observations. It is further pleaded that above said observations raised by the opposite parties are totally false, baseless and having no ring of truth in the same. It is further pleaded that it is the duly authorized representative of the opposite parties who checked the vehicle, all relevant documents and after satisfying from all corners vehicle of the complainant was insured. It is further pleaded that complainant never concealed any fact from the opposite parties while taking the insurance policy in question. It is further pleaded that the OP No. 1 by not making payment of full insured amount of Rs.2,02,500/- on account of total loss of the vehicle to the complainant on fake and baseless observations are trying to back out from their obligations of making payment of the sum assured to the policy holder / complainant with malafide intention and ulterior motive without any reason or rhyme. It is further pleaded that due to this illegal act and conduct of the opposite parties the complainant has suffered great loss and also suffered mental agony, Physical harassment and inconvenience. It is further pleaded that there is a clear cut deficiency in service on the part of the opposite parties.
On this backdrop of facts, the complainant has alleged deficiency and unfair trade practice on the part of the opposite parties and prayed that necessary directions may kindly be issued to the opposite parties to honour the claim of the complainant and make the payment of Total Loss suffered by the complainant i.e. Rs.2,02,500/- due to Total Loss in terms of the Insurance policy along with interest @ 18% P.A. from the date of accident of the vehicle till actual realization. It is further prayed that compensation to the tune of Rs.1,00,000/- may also be awarded to the complainant besides the amount in question on account of mental agony, physical harassment and deficiency in service on the part of the opposite parties. Litigation expenses to the tune of Rs.10,000/- may also be awarded in favour of the complainant after accepting this complaint, in the interest of justice.
3. Upon notice, the opposite parties appeared through counsel and contested the complaint and filing their written reply by taking the preliminary objections that Sh. Gurpreet Singh who was driving the car alleged to be damaged in fire was not holding driving license for driving Light Motor Vehicle (L.M.V.). According to verification report, he was having valid driving license only for two wheelers at the time of alleged accident. The complaint of the complainant is not maintainable and is liable to be dismissed, as the complainant was plying the car in violation of the terms and conditions of the insurance policy. It is further pleaded that the matter of fact is that the vehicle alleged to be involved in the accident was insured with the answering opposite parties and was private car package policy and insured value of the vehicles was Rs.2,02,500/- as per policy. It is further pleaded that Surveyor appointed by the Company assessed the net loss of Salvage basis to the tune of Rs.1,77,500/- without RC basis. It is further pleaded that Gurpreet Singh who driving the Car was not holding Light Motor Vehicle (L.M.V.) driving license to drive Car at the time of alleged accident. It is further pleaded that Driving License produced by him was only valid to drive two wheelers. The answering opposite parties has got verification report from the concerned L.A. Batala which proves that the driving license was only valid for two wheelers. It is further pleaded that alleged accident if any proved on file occurred due to rash and negligent driving of the car by Gurpreet Singh who was driving the said car at the time of alleged accident. The complainant was plying the vehicle against the terms and conditions of the insurance policy and motor vehicle Act. It is further pleaded that before repudiating the claim of the complainant, the complainant was informed by the Company vide letter dated 02.06.2022 and 18.07.2022, in this regard and asked her to clarify by way of reply within 7 days, otherwise her claim will be repudiated, but the complainant neither given reply nor produce valid driving license of Gurpreet Singh for L.M.V. It is further pleaded that the claim of the complainant was rightly and legally repudiated by the Insurance Co. vide letter dated 02.08.2022 as the complainant was plying the Car in violation of the terms and conditions of the insurance policy. It is further pleaded that the complainant could not produce valid driving license of Gurpreet Singh authorizing him to drive Car i.e. L.M.V. It is further pleaded that the complainant is not entitled any insured amount assessed by the Surveyor. The complainant is also not entitled for any compensation as alleged.
On merits, the opposite parties have reiterated their stand as taken in legal objections and denied all the averments of the complaint and there is no deficiency in service on the part of the opposite parties. In the end, the opposite parties prayed for dismissal of complaint with costs.
4. Learned counsel for the complainant has tendered into evidence affidavit of Paramjit Kaur, (Complainant) as Ex.CW-1/A alongwith other documents as Ex.C-1 to Ex.C-6.
5. Learned counsel for the opposite parties has tendered into evidence affidavit of Sh. Harbans Lal, (Senior Divisional Manager, Oriental Ins. Co. Ltd., Pathankot) as Ex.OP-1/A alongwith other documents as Ex.OP-1,2/A to Ex.OP-1,2/Q alongwith reply.
6. Rejoinder not filed by the complainant.
7. Written arguments not filed by the parties.
8. Counsel for the complainant has argued that the car of the complainant which was insured with the opposite parties was damaged in the fire which took place on 30.04.2022 when brother of the complainant Gurpreet Singh was driving the car and on the way to Batala at about 7.30 P.M. when reached village Purian Khurd. The land owners had put their fields on fire, due to which there was heavy smoke on the road and visibility became very poor and resultantly the vehicle entered the fields and the vehicle was burnt in the fire. It is further argued that the surveyor deputed by the opposite parties had assessed the loss to the vehicle on total loss basis. However, claimed lodged by the complainant was repudiated on the ground that the driver Gurpreet Singh was not having a valid license to drive the car. It is further argued that the loss to the vehicle was not accidental but due to the fire due to which the car was burnt and not due to fault on the part of the driver of the car. Counsel for the complainant has also relied upon judgment of Hon'ble Supreme Court of India in Civil Appeal No.4647 of 2003 (arising out of SLP (C) No.21910 of 2001, D/d. 17.07.2003 titled as Jitendra Kumar Versus Oriental Insurance co. Ltd. and others in which it has held as under:-
"Motor Vehicles Act, 1988, Section 149 - Liability of insurer – Fire caused damage to the vehicle occurred due to mechanical failure and not due to any fault or act, or omission of the driver- Claim cannot be repudiated on the ground that driver did not have valid license. (Paras 9 and 10) Motor Vehicles Act, 1988, Section 149 - Liability of insurer - Fire caused damage to the vehicle occurred due to mechanical failure and not due to any fault or act, or omission of the driver- Claim cannot be repudiated on the ground that driver did not have valid license".
9. On the other hand counsel for the opposite parties has argued that the loss to the vehicle is admitted and the surveyor deputed by the opposite parties had vide report Ex.OP-1,2/F assessed the loss for Rs.1,77,500/- on net of salvage basis without R.C. However, since the driver was not holding a valid license to drive the car as such the claim was rightly repudiated and complaint is liable to be dismissed.
10. We have heard the Ld. counsels for the parties and gone through the record.
11. To prove her case complainant has placed on record her duly sworn affidavit Ex.CW-1/A, copy of policy of insurance Ex.C1, copy of GD No.49 Ex.C2, copy of fire call report Ex.C3, copy of driving license of Gurpreet Singh Ex.C4, copy of repudiation letter Ex.C5 and copy of Aadhaar Card Ex.C6 whereas opposite parties have placed on record affidavit of Harbans Lal Senior Divisional Manager Ex.OP-1/A, copy of letter dated 01.05.2022 Ex.OP-1,2/A, copy of letter dated 02.08.2022 Ex.OP-1,2/B, copy of policy Ex.OP-1,2/C, copy of letter dated 02.06.2022 Ex.OP-1,2/D, copy of letter dated 18.07.2022 Ex.OP-1,2/E, copy of report of surveyor Ex.OP-1,2/F, copy of letter dated 02.06.2022 Ex.OP-1,2/G, copy of affidavit of Sar Daman Bhalla Investigator Ex.OP-1,2/H, copy of Statement of Paramjit Kaur Ex.OP-1,2/J, copy of Aadhaar Card of Paramjit Kaur Ex.OP-1,2/K, copy of statement of Gurpeet Singh Ex.OP-1,2/L, copy of driving licence Ex.OP-1,2/M, copy of report of newspaper Ex.OP-1,2/N, copy of report of fire brigade Ex.OP-1,2/O, copy of medical report of Gurpreet Singh Ex.OP-1,2/P, copy of report of investigator Ex.OP-1,2/Q except document Ex.OP-1,2/I.
12. It is admitted fact that complainant is registered owner of car No.HR-51AK-6678 and the said car was insured with the opposite parties vide policy of insurance valid from 05.06.2021 to 04.06.2022. It is further admitted fact that the car of the complainant got burnt on 30.04.2022 while being driven by Gurpreet Singh. It is further admitted fact that Gupreet Singh was holding a driving license valid for two wheelers only. It is further admitted fact that the claim lodged by the complainant was repudiated by the opposite parties vide letter dated 02.08.2022. The point for adjudication is whether the repudiation of the claim for want of driving license is justified.
13. Perusal of DD No.49 dated 30.04.2022 Ex.C2 shows that the car owned by the complainant got burnt while being driven by Gurpreet Singh as the road was engulfed with smoke and the driver had applied breaks and the car entered into the fields which were already on fire and ultimately the car was burnt, meaning thereby it is proved on record that the loss of the car was not accidental but due to the fire in which the vehicle was trapped as such we are of the view that since it is proved on record that loss to the vehicle was not accidental and the driver of the car had not made any contribution in causing the loss to the vehicle, as such we are of further view that the opposite parties were not empowered to repudiate the claim lodged by the complainant for damages to the vehicle which occurred due to acts to which the driver has not contributed in any manner.
14. We have also placed reliance upon the judgment of Hon'ble Supreme Court of India in "Jitendra Kumar" case referred above which is also on identical facts. Similarly in the cited case law it was held that damage to the vehicle took place due fire for which driver did not contribute in any manner and loss was not accidental one.
15. In the present complaint also there is no evidence on record that the vehicle was burnt due any fault on the part of the driver, but rather on the contrary, it is addmitted fact that vehicle was damaged dueto fire which took place due to entry of vehicle in the field on fire on account of non visibility of road due to smoke, as such repudiation of the claim on the ground of driving lience is not justified.
16. As far as payment of compensation is concerned. The surveyor deputed by the opposite parties has vide his report Ex.OP-1,2/F assessed the loss and recommended settlement of net of salvage basis for Rs.1,77,500/- without R.C. and we do not find any reason or justification to depart from the report of the surveyor.
17. Accordingly, by relying upon the facts, evidences and case law referred above we are of the view that repudiation of the claim by the opposite parties is totally unjustified and amounts to deficiency in service.
18. Accordingly, present complaint is partly allowed and opposite parties are directed to settle and pay the claim to the complainant on net of salvage basis for Rs.1,77,500/- without R.C. as assessed by the surveyor and Complainant is also directed to complete the requirements for the settlement of the claim. It is further clear that if the claim is not settled and paid by the opposite parties to the complainant as per report Ex.OP-1,2/F within 30 days from the date of receipt of copy of this order the amount of Rs.1,77,500/- assessed by the surveyor shall carry interest @ 9% P.A. from the date of loss to the vehicle i.e. 30.04.2022 till realization.
19. Copy of the order be communicated to the parties free of charges. File be consigned.
(Lalit Mohan Dogra)
President.
Announced: (B.S.Matharu)
Feb. 05, 2024 Member.
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