BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM; FATEHABAD.
C.C.No.169 of 2015.
Date of Instt.:21.08.2015.
Date of Order: 25.01.2017.
Balbir Singh son of Harwinder Singh resident of village Chando Khurd Tehsil Ratia District Fatehabad.
..Complainant.
Versus
1.Jaivir Lamba Mobile No.97298-73633 c/o Raja Hundai G.T.Road, Fatehabad District Fatehabad.
2,The Oriental Insurance Company Limited Divisional Office, 4501 First Floor Bank Bazaar, Bhatinda 151001 through Divisional Manager.
..Opposite parties.
Complaint under Section
12 of the Consumer Protection Act, 1986
Before: Sh.Raghbir Singh, President.
Smt.Ansuya Bishnoi. Member
Present: Sh.N.S.Malik, counsel for the complainant.
OP No.1 exparte.
Sh.U.K.Gera, counsel for the OP No.2.
ORDER
The complainant has filed the present complaint under Section 12 of the Consumer Protection Act, 1986 against the opposite parties (hereinafter to be referred as OPs).
2. Brief facts of the present complaint are that the complainant had purchased a car Accent having engine No.146318 chasis No.025236 from Raja Hundai, Fatehabad and the car was allotted temporary registration No.1978. It has been further averred that the complainant got the car in question insured with OP No.2 through OP No.1 vide cover note No.260990 dated 26.06.2014 and policy No.233200/31/2015/2112 for the period from 26.06.2014 to 25.06.2015. On 25.10.2014, the complainant alongwith his friends was going to Gurdaspur (Punjab) from Ratia for some personal work in the above said vehicle. At about 7.30 A.M. a canter bearing registration No.PB13P-8189, which was coming from the side of Mahal Kalan and was being driven in a rash and negligent manner by its driver, struck into our car near liquor vend situated near bus stand of village Sahejra. Due to this impact the car got badly damaged from front side and the complainant and other occupants sustained injuries. It has been further averred that the canter driver drove his vehicle away and could not be arrested at the spot. However, the police of P.S. Mahal Kalan District Barnala registered a case under Sections 279/337/427 IPC vide FIR No.59 of 25.10.2014. The complainant intimated the OPs about the accident and also completed all the formalities as required by them but the Op No.2 vide letter dated 21.07.2015 repudiated the claim of the complainant on the ground that the car was being driven for hire and reward whereas the car ws registered and insured as a private vehicle. It has been further averred that repudiation of the claim by the OPs is based on wrong facts as the car was being used for personal use. The complainant requested the OPs to make the payment of the claim but to no avail. The OPs did not make the payment of the insurance claim and due to the refusal of OPs, the complainant has cause of action to file the present complaint. Due to the act and conduct of the OPs the complainant has to face mental agony and harassment besides financial loss which amounts to deficiency in service on their part. Hence, this complaint. In evidence, the complainant has tendered his affidavits as Ex.CW1/A, and Ex.C3, affidavit of Jaspal Singh as Ex.C2, affidavit of Manoj Kumar as Ex.C4, affidavit of Satpal as Ex.C5 and documents Annexure C1 to Annexure C6.
3. Notice was issued to the Ops but OP No.1 did not appear and was proceeded against exparte vide order dated 28.09.2015. OP No.2 contested the complaint by filing its reply wherein it has taken several preliminary objections such as cause of action, estoppel and locus standi etc. It has been further submitted that the vehicle in question was insured with the OP No.2 and it had met with an accident but the claim lodged by the complainant was rightly repudiated by the OP No.2 as the vehicle in question was being plied for hire and reward at the time of alleged accident as is admitted by the complainant and one of the passengers in their statements made before investigator. It has been further submitted that however, after receiving an intimation about accident a surveyor was appointed who in his report dated 24.04.2015 assessed the loss to the tune of Rs.3,75,264 after deduction the depreciation as per terms and conditions of the policy but when the complainant himself has violated the policy conditions by plying the car for hire and reward, therefore, his claim has rightly been repudiated. There is no deficiency in service on the part of OP No.2- insurance company. Other allegations made in the complaint have been controverted and prayer for the dismissal of the complaint has been made. In evidence the appearing Op has tendered affidavit of Madan Goyal, Advocate as Annexure RW1, affidavit of Sushil Kumar, officiating DM as Annexure RW2.
4. Heard. The counsel for the complainant reiterated the averments made in the complaint and prayed for its acceptance whereas the counsel for appearing OP has reiterated the averments made in the reply and prayed for its dismissal.
5. It is not disputed that the vehicle in question was insured with the OP No.2 and the alleged accident had taken place during the subsistence of the policy as is evident from Annexure C1 i.e. copy of FIR and Annexure C3 i.e. copy of certificate of insurance. The sole ground as aruged by learned counsel for the OP-insurance company is that the vehicle was being plied for hire and reward therefore, the complainant is not entitled for any claim and thus the claim has rightly been repudiated by the insurance company. In support of his argument learned counsel for the OP-insurance has relied upon statements of complainant and Manoj Kumar which were recorded by the investigator during investigation and argued that in their statements the complainant and said Manoj Kumar had admitted that the vehicle was being plied as taxi. The plea taken by the learned counsel for the OP-insurance company is not tenable because there is no document/evidence on the case file which could show that the vehicle was being plied for hire and reward basis and in the said statements it has nowhere stated that any transaction/fare of vehicle had taken place. Therefore, use of private car without payment of charges could not be imagined as a taxi. Moreover, even if the vehicle was being plied as a taxi then also the insurance company cannot be deny the claim of the complainant in toto. On this point reliance can be taken from case law titled as Hukum Chand Vs. United India Insurance Co. Limited decided by Hon’ble National Commission on 07.10.2013 in Revision Petition No.3650 of 2008 wherein it has been held that Insurance Theft of vehicle-Violation of conditions of policy-Claim repudiated-Alleged deficiency in service-District Forum dismissed complaint-State Commission allowed appeal-Hence, revision-Vehicle of complainant was insured with OP as private vehicle and during subsistence of insurance policy vehicle was stolen-Vehicle was used as taxi as per FIR-Violation of terms and conditions of policy-Petitioner is entitled to 75 % of IDV value on non-standard basis. Reliance on this point can also be taken from case law titled as Amalendu Sahoo Vs. Oriental Insurance Company Ltd. CPJ 2010 (II) (SC).
6. Going through the whole record available on file and following the law laid down in Amalendu Sahoo Vs. Oriental Insurance Company Ltd. and Hukum Chand Vs.United India Insurance Co. Limited (supra), it transpires that the complainant has been able to prove deficiency in service on the part of OP No.2-insurance company, therefore, we allow the complaint directing the OP No.2-insurance company to pay 75 % of the amount assessed by the surveyor i.e. Rs.3,75,264/- alongwith interest @ 9% from the date of filing of complaint till realization. Order of this Forum be complied within 30 days from the date of receipt of copy of order. Copy of this order be supplied to both the parties free of cost. File be consigned after due compliance.
Announced: 25.01.2017 (Raghbir Singh)
President
District Consumer Disputes Redressal Forum, Fatehabad.
(Ansuya Bishnoi)
Member
