DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, FARIDKOT

Complaint No. :      160

Date of Institution:  18.11.2015

Date of Decision :   4.03.2016

Harbans Singh s/o Daleep Singh r/o Village Chandbhan,  Tehsil and District Faridkot.                                                      ...Complainant

Versus

1     Managing Director, Oriental Insurance Company Limited, Jaitu,  District Faridkot.

2  Managing Director, Oriental Insurance Company Limited, Opposite Central Jain, the Mall, District Ferozepur-152002.

3   General Manager, Oriental Insurance Company Limited. Oriental House, A-25/27, Asaf Ali Road, New Delhi-110002.

....OPs

Complaint under Section 12 of the

Consumer Protection Act, 1986.

Quorum: Sh. Ajit Aggarwal, President,

               Smt Parampal Kaur, Member,

               Sh P Singla, Member.

Present: Sh G S Chauhan, Ld Counsel for complainant,

              Sh Vinod Kumar Monga, Ld Counsel for OPs.

(Ajit Aggarwal, President)

                               Complainant has filed the present complaint under Section 12 of the Consumer Protection Act, 1986 against OP seeking directions to OP to make payment of insurance claim amount of Rs.2,00,000/-with interest and for further directing OPs to pay Rs 50,000/- as compensation for harassment, inconvenience, mental agony and litigation expenses of Rs 10,000/-.

2                                     Briefly stated, the case of the complainant is that he got insured his Mahindera Bolero ZLX bearing temporary no. PB-05Q (T) 4082, Engine No. C4M94488, chasis no. DSA23282, from OP-2 for a sum of Rs.6,83,052/-on cash payment of Rs 29,031/-on 9.01.2013 for a period of one year from the date of issuance of Policy. During the subsistence of insurance policy of vehicle, said vehicle met with an accident on 13.12.2013 near Dera Radha Swami, Bathinda Road, Jaitu due to collision with the stray animal and same has been reported by complainant to nearest Police Station, Jaitu vide Rapat No. 20 dt 13.12.2013. Intimation regarding this fact was also given to OP-1, who appointed a Surveyor. Said Surveyor received Rs.2000/-from complainant and issued receipt to this effect and conducted the survey of said vehicle. Complainant took his vehicle to M/s Sheikh Farid Automobiles, Ferozepur for repair, who informed him to charge on plastic parts, chrome parts etc of vehicle, but complainant insisted that he is not bound to pay any single penny for repair works as his insurance policy was a cashless policy and took his vehicle from there and got it repaired privately by spending Rs 2,00,000/-. Vide letter dt 15.05.2014, OP-2 repudiated the claim of vehicle of complainant on the basis of mismatch of date of occurrence mentioned on claim form as 3.01.2014, but intimation regarding accident was given to OP-1 on 13.12.2013. counsel for complainant contended that claim form was filed by employees of Automobile Agency, who mistakenly or inadvertently, mentioned the date of accident as 3.01.2014 on claim form, whereas complainant duly informed OPs about accident date as 13.12.2013 and intimation regarding accident was also given to Police on 13.12.2013 and Rapat No. 20 is also dt 13.12.2013, duly recorded at Police Station, Jaitu. To avoid the claim of complainant, Ops wrongly took the ground of wrong fact regarding date of accident on claim form, which was just a clerical mistake by Automobile Agency. Moreover, OPs further repudiated the claim on the basis of non registration of vehicle, but it was duly informed to OPs by complainant in his reply dt 21.05.2014, that at the time of purchasing the vehicle, the Registration Authority, Faridkot had not issued any new series of registration numbers as complainant wanted to get fancy number for his vehicle and there was no fancy number available with the Registration Authority. Complainant had to wait for fancy number, but unfortunately, his vehicle met with an accident on 13.12.2013. It is further contended that OPs harassed complainant for 5-6 months on assurance that his claim would be released, but they ultimately repudiated the claim of complainant on false, illegal and untenable objections. OPs have nothing to show that complainant has made any violation of Limitations as to use. Complainant made many requests to OPs to make payment of insurance claim for damage of vehicle, but OPs kept putting off the matter and ultimately refused to give the claim. All this amounts to deficiency in service and trade mal practice on the part of OPs and it has caused harassment and mental agony to complainant for which he has prayed for directions to Ops to pay the insurance claim worth Rs 2,00,000/- and Rs 50,000/- as compensation besides Rs.10,000/-as cost of litigation. Hence, the present complaint.

3                              The counsel for complainant was heard with regard to admission of the complaint and vide order dated 23.11.2015, complaint was admitted and notice was ordered to be issued to the opposite party.

4                                    On receipt of the notice, OPs filed written statement taking legal objections that complainant has no right to seek claim for alleged loss of his vehicle as his vehicle was not registered with Registering Authority as per law and no Road Tax was paid, which is a clear cut violation of Section 39 of the Motor Vehicle Act and therefore, present complaint is liable to be dismissed. It is averred that there is no deficiency in service on the part of Ops as claim of complainant was duly considered and complainant was not found entitled for the claim and thus, complaint filed by complainant is not maintainable. However, on merits, OPs have denied all the allegations levelled by complainant being wrong and incorrect and asserted that there is no deficiency in service on the part of answering OPs. It is admitted that complainant got insured his vehicle Mohindera Bolero, model 2013 bearing chassis no. DSA 23282 with Ops for the period from 9.01.2013 to 8.01.2014. It is averred that complainant purchased the said vehicle from Sheikh Farid Auto, Ferozepur, but complainant has not deliberately mentioned the date of purchase. In claim form, complainant has reported the date of accident as 3.01.2014, but in present complaint, he has written the date of accident as 13.12.2014, which is quite contrary. On intimation by complainant, Surveyor      Sh Pawan Kumar Pahwa was appointed, who vide his report dt 4.04.2014 reported the net payable loss to the tune of Rs.34,988/-excluding the cost of Salvage as Rs.750/-. It is further averred that complainant took the vehicle to Sheikh Farid Auto for repair, where he was correctly told about the permissibility of claim of plastic parts and chrome parts and it is denied that policy of OPs is a cashless policy or complainant is entitled for any claim. It is also denied if complainant has ever spent Rs.2,00,000/- on repair of said vehicle. Ops found that said vehicle was being run by complainant without RC, which is a violation of Section 39 of Motor Vehicle Act and there was a discrepancy with regard to date of accident and therefore, vide letter dt 15.05.2014, OPs informed complainant accordingly and asked him to explain his position about the same within seven days but complainant failed to add any explanation with regard to contravention of Section 39 of Motor Vehicle Act and discrepancy with regard to date of accident. Complainant has added wrongful explanation regarding non registration of vehicle at the time of accident. All the other allegations levelled by complainant are denied being wrong and incorrect and it is further reiterated that there is no deficiency in service or unfair trade practice on the part of OPs. The allegations with regard to relief sought too were refuted with a prayer that complaint deserves to be dismissed with costs.

5                                Parties were given proper opportunities to prove their respective case. The complainant tendered in evidence his affidavit Ex.C-1, and documents Ex C-2 to C-13 and then, closed his evidence.

6                  In order to rebut the evidence of the complainant, the opposite party tendered in evidence, affidavit of Sh Vikas Kataria as Ex OP-1 and documents Ex OP-2 to OP-4 and then, closed the evidence.

7.                We have heard the learned counsel for the parties and have very carefully gone through the affidavits and documents on the file.

8                   The Ld. Counsel for complainant argued that complainant is an owner of car bearing temporary no. PB-05 Q (T) 4082 and permanent registration no. PB 043 4686. This car was insured with OP from 09.01.2013 to 08.01.2014 under comprehensive policy. On 13.12.2013, this vehicle met with an accident on Bathinda Road, Jaitu. Complainant immediately gave intimation regarding it to OP, who appointed a Surveyor to conduct spot survey and as per directions of OPs, the said car was sent to Sheikh Farid Automobiles, Ferozepur who informed to complainant that the price of plastic and chrome parts will be charged extra. He objected on it that his vehicle  is fully insured and it is cashless policy and he is not liable to pay anything, but they not agreed on it and complainant took his vehicle from there and got it repaired privately, who charged Rs 2,00,000/- as repair charges. The complainant lodged a claim with OPs by handing over all the bills along with other documents. Copies of the bills are Ex C-9 and C-13. Copy of Insurance Policy is Ex C-2, copy of RC is Ex C-10, copy of DDR dt 13.12.2013 is Ex C-3. At the time of lodging of claim, the car was having temporary number. However, complainant had applied for permanent registration of car and paid lumpsum Road Tax on 17.12.2013. As the complainant wants the fancy number of his choice but there was no fancy number of choice was available in the current series with registering authority, complainant had to wait for new series so, complainant could not get issued the RC of vehicle. Now the complainant got permanent registration no. of vehicle from District Transport Office, Faridkot and he handed over the copy of RC to OP. Complainant approached Op many times for payment of his claim but they kept putting off the matter on one pretext or the other. Complainant received a letter dt 15.05.2013 from OP, vide which complainant was informed that his claim has been decided as no claim as the vehicle was not registered at the time of accident and further on the basis of mismatch of date of occurrence mentioned on claim form as 03.01.2014 and intimation of accident for spot survey was given on 13.12.2013. Copy of said letter is Ex C-8. OP have wrongly declared the claim as no claim as at the time of accident of vehicle, the complainant had already applied for permanent registration number and the vehicle in question met with an accident on 13.12.2013, a DDR regarding it duly entered on the same day with police. The claim form was filled up by employees of workshop who wrongly written it as 03.01.2014 themselves. The OPs have illegally repudiated the claim of complainant. Due to this act of OPs, he has suffered a lot of harassment, inconvenience and mental agony. This act of OP amounts to deficiency in service and trade mal practice and has prayed that OPs may be directed to pay insurance claim and also prayed for compensation and litigation expenses.

9.                To controvert, the arguments of the complainant, Ld. Counsel for the Ops argued that there is no deficiency in service on their part. However, he admitted that the vehicle in question was insured with them but he argued that the complainant has no right to seek claim of the alleged loss of his vehicle as the vehicle in question was not registered as per law with any Registering Authority and no road tax was paid which is clear cut violation of Section 39 of Motor Vehicle Act, the claim of the complainant was duly considered as he was not found entitled for the claim so his claim was repudiated. His vehicle was met with an accident and he gave intimation regarding to OPs who appointed surveyor for spot survey and to assess loss, he gave intimation regarding the accident on 13.12.2013 but in the claim file submitted by the complainant, the date of accident was mentioned as 03.01.2014 which is quite contrary from the intimation letter and which is also mentioned in the complaint. However the Ops appointed surveyor to assess the final loss to the vehicle who gave his survey report dated 04.04.2014 and assess the loss to the tune of Rs.34,998/-. The copy of the survey report is Ex OP-3. It is wrong that the policy in question was cash less policy which cover plastic and chrome part, the complainant is not entitled to get claim of plastic and chrome part as per policy. It is wrong that the complainant spent Rs.2,00,000/- for his vehicle. The complainant produced false bill in evidence It is well settled law that the survey report is an important document to settle the insurance claim and it cannot be ignored unless cogent evidence produced against it, the complainant cannot claim more amount than which is assessed in the survey report, in enquiry it is found that the vehicle in question was not registered under the Motor Vehicle Act at the time of accident and was run without the RC by the complainant in violation of the Section 39 of the Motor Vehicle Act which is violation of the terms and conditions of the policy, so in these circumstances the OPs rightly and legally repudiate his claim vide their letter dated 15.05.2014 and also  asked his to explain his position about the same but complainant failed to give any explanation with regard to contravention of Motor Vehicle Act and discrepancy with regard to accident, so Ops rightly repudiated his claim and complainant suffered no harassment from it, there is no deficiency in service on the part of the Ops and present complaint may be dismissed.

10.               We have heard the arguments of both the parties and also gone through the pleadings and evidence led by both the parties.                         The case of the complainant is that his car was insured with OP, which met with an accident on 13.12.2013 within insurance period and got damaged. He gave information regarding it to OP who appointed Surveyor for assessment of loss. He lodged claim with OP, but they repudiated his claim as ‘No Claim’ on the false grounds. The plea taken by OP is that at the time of accident, the car in question was not registered with Transport Registration Authorities as per provisions of Motor Vehicle Act and as per terms and conditions of Insurance Policy. As per terms and conditions of Insurance Policy, the vehicle must be registered with Registration Authorities under Motor Vehicle Act and there is also contradiction in the date of accident mentioned in intimation of accident and as mentioned in the claim form OP have legally and rightly repudiated the claim of complainant on this ground. There is no deficiency in service on their part.

11.               Ld. Counsel for the complainant argued that there is no violation of terms and conditions of the policy he applied for the registration of the said vehicle with registration authorities within time, the complainant wants a fancy number of his choice but at that time the fancy number of choice of complainant is not available in the current series available with DTO office and new series was not issued by the office so the complainant was not able to get the registration of his vehicle at that time with regard discrepancy in the date of accident he argued that the vehicle in question was met with an accident on 13.12.2012 he duly entered DDR with police on that day and also gave intimation regarding the same to the Ops immediately, he never told the date of accident as 03.01.2014 it is only written by the employees of Sheikh Farid Automobiles in the claim file, as the claim form was filled up by the employees of the said service station and they got only signatures of the complainant on blank papers it is only a clerical mistake on the part of the service station. He argued that if it is presumed that at the time of accident, the car was not registered and it is the violation of terms and conditions of the policy, Insurance Company cannot repudiate the claim of complainant only on this ground. He has placed reliance on the citation 2004 (2) RCR (Civil) 114 Supreme Court titled as National Insurance Co. Ltd Vs Swaran Singh and Others, wherein our Hon’ble Apex Court held that Motor Vehicle Act, 1988, Sections 15, 141 & 149 (2) (a) (ii) and proviso to Sub sections (4) and (5)- Validity of driving license- Defences for insurer – ‘Effective license’-Third party claim – Driving with an un-renewed license and being duly licensed are different terms and may amount to an offense, but not to affect the third party claim in itself – The words ‘duly licensed’ have been used in a past tense – Rule enables renewal of a license even after expiry. He argued that on the same footing, if it is presumed that RC of the vehicle expired during the period of insurance and it is un-renewed, then, Insurance Company cannot run from its liability to compensate the insured. He also put reliance on the citation 2010 (1) Consumer Protection Cases 653 in case titled as Amalendu Sahoo Vs Oriental Insurance Co. Ltd wherein Hon’ble Apex Court held that even where violations of the Policy is found, Insurer should pay 75% of total amount as on non standard basis. He has also placed reliance on citation 2008 (3) CPC 559 Supreme Court of India titled as National Insurance Company Ltd Vs Nitin Khandelwal, wherein Hon’ble Apex Court held that the appellant Insurance Company is liable to indemnify the owner of the vehicle when the insurer has obtained comprehensive policy for the loss caused to the insurer even assuming that there was a breach of condition of the insurance policy. The appellant Insurance Company ought to have settled the claim on non standard basis. He has also placed reliance on the citation 2006 (2) Consumer Protection Cases 33 titled as New India Assurance Company Vs Narayan Prasad Appa Prasad, wherein Hon’ble National Commission held that vehicle at the time of accident was carrying passengers more than permitted by rules – Even driver was not duly licensed – Order of authority below granting payment of full insured amount with cost and compensation cannot be sustained – Appellant directed to settle the claim on non standard basis i.e 75 % of Rs 4,32,000/- with 9% interest. They further held in para no. 4 of the judgment that not having proper valid license to drive a Maxi-cab as also carrying excess passengers than the licensed capacity are violation of the terms and conditions of the policy. It is for covering these contingencies that GIC has issued the guidelines for the Insurance Company for settling the claim on “non standard basis’, which is as follows:

Following types of claims shall be considered as non-standard and shall be settled as indicated below after recording the reasons:

12                         Ld Counsel for complainant argued that if it is presumed that at the time of accident, the vehicle in question was not duly registered with Registering Authority and it is a breach of terms and conditions of Insurance Policy, then in that case also, the Insurance Company cannot repudiate the whole claim of complainant and in that case, it is to be decided on non standard basis and therefore, in the light of above discussion, the complaint in hand is hereby partly allowed. The Opposite Party is directed to settle the claim of complainant on non standard basis and is hereby ordered to pay Rs 26248/- i.e 75% of the total loss of Rs. 34998/-, which was assessed as per Survey Report Ex OP-3 alongwith interest at the rate of 9% per anum from 15.05.2014 i.e date of repudiation of claim of complainant by OP till final realization. OP is also directed to pay Rs 3000/-as litigation expenses to complainant. Compliance of this order be made within one month from the date of receipt of the copy of the order, failing which complainant shall be entitled to proceed under Section 25 and 27 of the Consumer Protection Act. Copy of order be given to parties free of cost under rules. File be consigned to record room.

Announced in Open Forum

Dated : 04.03.2016         

    Member            Member                   President

                      (P Singla)         (Parampal Kaur)      (Ajit Aggarwal)