Complainant Naveen Mahajan vide the present complaint filed U/S 12 of the Consumer Protection Act, 1986 (hereinafter for short The Act) for issuance of the necessary directions to the titled opposite party to make payment of Rs.35,513/- alongwith interest @ 18% P.A. from the date of filing the claim till its realization. Opposite party be further directed to pay Rs.20,000/- for physical and mental harassment and Rs.10,000/- for deficiency in service alongwith Rs.11,000/- as litigation expenses, in the interest of justice.

2.       The case of the complainant in brief is that he is registered owner of tractor No.PB-58-B-2107. The said vehicle was his personal vehicle and insured as Agriculture Tractor with the opposite party vide policy no.36160031130100000905 for the period 08.05.2013 to 07.05.2014. He owns Agriculture land in village Azizpur. Driver Surjit Singh son of Late Chattar Singh was employed as Tractor Driver. The said Tractor met with an accident on 28.02.2014 at about 9 p.m. Near Pangoli Chowk, Pathankot while carrying fire wood for home use. The claim was lodged with the opposite party for indemnify the loss but the same was repudiated vide their letter dated 5.3.2015 on the plea that the vehicle was used for commercial purpose. The position was clarified to the Insured company vide letter dated 14.01.2015 in response to letter of the opposite party dated 19.12.2014 but even after clarification, the claim was rejected.  Legal heir of Driver Surjit Singh filed claim for compensation under Workmen compensation Act before the Commissioner, at Gurdaspur in which they implead M/s.R.K.Plywood factory as opposite party no.1 and complainant as party no.2, opposite party insurance company as opposite party no.3. He has no concern with M/s.R.K.Plywood Factory, in which he is neither owner nor partner, therefore use of Tractor for commercial purpose does not arise, therefore, the report of its surveyor is false and fabricated and the same procured by the opposite party just to reject his claim. He has next pleaded that the repair of the Tractor was carried out by M/s.Rahul Motors, Authorized Dealer of Mahindra Tractors, who charged Rs.35,513/- by way of Four Bills. Due to illegal act and conduct of the opposite party, he has suffered great financial loss and also suffered mental harassment. It is case of clear cut deficiency in service and unfair trade practice on the part of the opposite party. Hence this complaint.

3.       Upon notice, the opposite party insurer appeared through its counsel and filed its written version taking the preliminary objections that the present complaint is not maintainable as the complainant has filed this complaint against the terms and conditions of the insurance policy and hence, the same is liable to be dismissed; the complaint is without any cause of action, hence liable to be dismissed and all allegations made in the complaint, which are not specifically denied herein, are denied being false and baseless. The complaint is absolutely false and frivolous. On merits, it was submitted that the tractor no.PB-58-B-2107 alongwith trolly was attached with the R.K.Plywood factory VPO Gho Tehsil and Distt.Pathankot and the managing director of R.K.Plywood factory is the father of Naveen Mahajan complainant. On 28.2.2014 deceased was going on tractor-trolly to Gho factory as per direction of his employer opposite party no.2 after taking ply and Gatta from Khanpur Chowk factory and when he reached at about 8.30 pm in the area of village Chawk Madho Singh turn on his Arjun Mohindra Tractor bearing no.Pb-58-b-2107, then one motor cycle suddenly came from Chowk Madho Singh side and to save him deceased turn his tractor to left side of road and due to this tractor became uncontrolled and struck in the tree and due to which the deceased sustained serious injuries and had subsequently succumbed to death due to injuries caused in the accident and later on the local police officials of the concerned police station who carried out the legal proceeding under section 174 Cr. PC were initiated at P.S.Shahpur Kandi, vide rapat no.8 dated 1.3.2014 and got conducted the post mortem of the dead body of the deceased by the medical officer on duty of the concerned hospital. Moreover the above mentioned facts are also corroborated by the contents of DDR No.8 dated 1.3.2014 lodged by the brother of the deceased of driver Surjit Singh. So it was well established that the vehicle Tractor Bearing No.PB-58-B-2107 was used for the commercial purpose at the time of alleged accident whereas it was insured as agriculture Tractor. So from the above mentioned facts it is a clear cut case of breach of the terms and conditions of the policy by using the Tractor Bearing No.PB-58-B-2107 for commercial purpose at the time of alleged accident whereas it was insured as agriculture tractor. The opposite party has rightly repudiated the claim of the complainant as per policy conditions. All other averments made in the complaint has been vehemently denied and lastly prayed that the complaint may be dismissed with costs.

4.       Complainant tendered into evidence his own affidavit Ex.C1 and of Sanjay Sehgal Ex.C2 along with the other documents exhibited as Ex. C3 to Ex.C15 and closed the evidence.

5.        On the other hand, the opposite party tendered into evidence affidavit of Shiv Lal Manager Ex.OP1, of Rajiv Mahajan Surveyor Ex.OP-2 and of Sanjiv Gupta Surveyor Ex.OP3, alongwith the other documents Ex.OP4 to Ex.OP16 and closed the evidence.

6.        We have duly heard the learned counsels for both the sides on the points of law and have also thoroughly examined the records with requisite care & caution on the points of fact, as placed before us. We find that the OP insurers have disallowed the impugned Accident Insurance Claim vides their repudiation letter Ex.C4/Ex.OP4 dated 05.03.2015 alleging that the Tractor at the time of accident was being used/driven otherwise than in accordance with the schedule of the Policy and/or permission of the authorities. We, further find that the OP insurers have failed/omitted to produce (on records of the proceedings) the Policy schedule (with its violated specific terms etc) that however has been placed on records as Ex.C6 titled Policy Schedule cum Certificate of Insurance issued as Commercial Vehicle Package Policy for providing insurance cover to the commercial vehicle falling under the Sub-Type of Agricultural Tractors with its details ditto-matching with the accidented Tractor and comprehensively insured for an IDV of Rs.70,000/-. We find that the policy schedule provides no bar/prohibition of commercial use of the insured vehicle rather the package policy has been specially designed for commercial vehicles. It is the sub-type (under the type of commercial vehicle) only that indicates the insured commercial vehicle to be belonging to the class of ‘Agricultural Tractors’ and that does not indicate that the commercial vehicle is insured to be used/driven for purposes other than ‘commercial’. The OP insurers have not produced any cogent evidence proving that the Tractor in question was not registered and/or not insured for use as ‘commercial’ vehicle. We find that the OP insurers after having once insured the Tractor under the ‘Commercial Vehicle Package Policy’ have no ‘locus-standi’ to repudiate the insurance accident claim on the ground of ‘commercial use’ of the insured commercial Tractor. The OP insurers are estopped to plead the defense of commercial use with the sell-out of commercial package policy as it clearly amounts to an unfair trade practice coupled with deficiency in service. Under the circumstances, the orders of the Hon’ble Chhattisgarh State Consumer Disputes Redressal Commission, Raipur; in FA # 775 of 2012 titled: Neelmani Sahu vs. ICICI Lombard Gen. Insurance; as cited by the learned counsel of the OP insurers shall be of no support to the opted defense of commercial use in case of the Commercial Vehicle Package Policy. On the other hand the complainant side gets a good support from the legal proposition as held out by the Hon’ble Punjab State Consumer Disputes Redressal Commission, Chandigarh; vide its orders in 2007(2) CPJ 489 titled: National Ins. Co. Ltd., vs. Gurbachan Singh; Held, Contract for insurance is simple contract – It has nothing to do as to how and for what purpose the truck was being used. As such, the OP insurers are held liable to pay/reimburse the repair costs as incurred by the complainant. Finally, we hold the OP insurers guilty of infringement of complainant’s consumer rights through ‘unfair trade practice’ amounting to ‘deficiency in service’ and that makes them liable to an adverse award under the Act.

7.       In the light of the all above, we partly allow the present complaint and thus ORDER the OP insurers to pay the impugned Claim in question as per the incurred costs of repairs in terms of the related Policy to the complainant besides to pay him Rs.5,000/- as compensation (inclusive of cost of litigation) within 30 days of the receipt of the copy of these orders otherwise the full awarded amount shall attract interest @ 9% PA form the date of filing of the complaint till actual payment.  

8.       Copy of the order be communicated to the parties free of charges. After compliance, file be consigned to record.      

          (Naveen Puri)

                                                                             President   

Announced:                                                     (Jagdeep Kaur)

December 11, 2015                                                  Member

*MK*