DISTRICT CONSUMER  DISPUTES  REDRESSAL FORUM,  PATIALA

                                      Consumer Complaint No. 420 of 03/10/2016

                                                           Decided on:              26/10/2018

Balbir Singh aged 52 years S/o Sh. Daulat Singh, R/o H. No.444/6, Jujhar Nagar, Patiala.

                                                                   …………...Complainant

                                      Versus

1.       United India Insurance Ltd. Sai Market Lower Mall, Patiala through  Its Divisional Manager.

2.       United India Insurance Co. Ltd. Registered & Head Office 24, Whites Road, Chennai-600014 through its CMD.

3.       M/s Hemant Goyal Motors (P) Ltd Rajpura Road, Patiala agent of OP No.1 & 2 through its Proprietor/ Partner.

                                                                      …………Opposite Parties

                                      Complaint under Section 12 of the

                                      Consumer Protection Act, 1986.

QUORUM

                                      Sh. M. P. Singh Pahwa, President

                                      Smt. Neelam Gupta, Member

                                      Sh. Kanwaljeet Singh, Member        

ARGUED BY

                                      Sh. K. S. Sidhu Advocate, counsel for complainant.

                                      Sh. D. P. S. Anand Advocate, counsel for OPs No.1& 2.

                                      Sh. Gulshan Kumar Auth. representative for OP No.3.

 ORDER

                                    SH. M. P. SINGH PAHWA, PRESIDENT

1.                 This is the complaint filed by Balbir Singh complainant against United India Insurance Co. Ltd. and others (hereinafter referred to as the OPs) u/s 11 to 14 of the Consumer Protection Act.

2.                 Briefly, case of the complainant is that  he has purchased one  Tata Indigo car bearing registration No.PB-11-BH-2357 for domestic use and got the car comprehensively insured with OP No.1 vide policy No.020900311 50110031065 for the period 22/01/2016 to 21/01/2017. He paid Rs.6113/- as premium for the sum insured of Rs.3,51,673/-. At the time of insurance, the representative of the OP inspected the vehicle along with documents. On 22/02/2016 Mr. Amit Gupta,  who is friend of complainant, requested him to go to Gidderbaha to attend the funeral of his uncle on 23/02/2016. On 23/02/2016 complainant started journey along with Amit Gupta and his wife and son in early morning. The car met with an accident at about 6.30AM near village Bir Kalan on Sunam- Mansa Road within the  jurisdiction of P.S. Cheema, District Sangrur. The car was totally damaged. Complainant and son of Amit Gupta received injuries. Amit Gupta and his wife expired due to grievous Injuries. The matter was reported to P. S. Cheema and claim was lodged with OPs, who deputed the surveyor and Investigator.  Complainant completed all the formalities as desired by the OPs, surveyors and investigator.  All the original claim papers are in custody of OPs. Surveyor has not assessed the loss adequately and attitude of the investigator was not fair at the time of investigation.  Thereafter complainant visited the office of OP for settlement of his claim but ultimately OP refused to pay the claim on flimsy and technical grounds vide letter dt. 23/08/2016 with the reason that vehicle was being used otherwise then in accordance with limitation as to use, as per policy terms, conditions and exceptions.

3.                It is further pleaded that after receiving no claim letter, complainant visited OP No.1. He explained that he has gone with his friend and has never used the car as Taxi but OP No.1 refused to listen him and did not pay any amount.  

4.                On this backdrop of the facts, the complainant has alleged deficiency in service on the part of OPs. It is also prayed that due to this deficiency, he has suffered harassment, mental agony. For these sufferings, he has claimed  compensation to the tune of Rs.55,000/- in addition to Rs.3,51,673/- (IDV of the vehicle) with interest @ 18% and Rs.33000/- as costs of the complaint. Hence this complaint.     

5.                Upon notice, OPs appeared through their respective counsels. OPs No.1 & 2 in their joint written versions raised preliminary objections that complaint is not maintainable. The claim of the complainant has already been repudiated on the ground  that the insured car was being used otherwise then in accordance with the limitation as to use as per terms and conditions of the policy. The car was being plied as taxi.  The complainant was intimated vide letter dt. 23/8/2016. That the complainant has not qualified the ingredients of a valid complaint as envisaged in section 2 (1) (C ) of the Consumer Protection Act.   There is not a single allegation which leads the OP to deficiency of service or unfair trade practice.  Simply averments have been made of not paying for wrong policies. Hence complaint is liable to be dismissed. That the complicated question of law and facts are involved in the complaint which can only be decided by the Civil Court. That the complainant has not pleaded / alleged  any cause of action  to file the complaint.

6.                On merit, it is denied that complainant purchased the car for domestic use. It is further mentioned that OP No.1 has issued Private Car Package Policy for car No.PB-11-BH-2357 for the period 22/01/2016 to 21/01/2017 for a sum of  Rs.3,51,673/- however the liability is denied.  It is denied that representative of OPs No.1 & 2 had inspected the car along with documents. It is denied that complainant has used the car for himself rather it was being  used as taxi. Vehicle was purchased after taking loan from the bank. It is denied that  Amit Gupta  was friend of the complainant. It is denied that car met with an accident on 23/02/2016 at  6.30AM near village Bir Kalan on Sunam – Mansa Road and was damaged totally. It is further mentioned that on receipt of intimation of loss on 12/3/2016, OPs No.1 & 2 immediately deputed  Sh.  Jaspreet  Singh Mehta IRDA approved  Surveyor and Loss assessor to assess the loss, who in his report dt.10/05/2016 assessed the loss to the tune of Rs.2,75,673/- and recommended to repudiate the claim as the car was being used for hire and reward.  OPs No.1 & 2 also deputed Dr. J S Madhok, Investigator to investigate the matter. He in his report dt. 25/04/2016, found that the car was being used a taxi which was being hired  by Amit Gupta for his family to go to Gidderbaha to attend a funeral of his relation. The investigator has also  recommended to repudiate the claim as the car was being used for hire and reward. All the other averments of the complainant are denied.  It is reiterated  that the claim has been repudiated rightly as the complainant has violated the terms and conditions of the policy. In the end OPs No.1 & 2 prayed for dismissal of the complaint.

7.                OP No.3 in its reply stated that complaint is not maintainable as complicated question of law and facts are involved.  The occupants of the car died  and claim was rejected by the OP as per information dt.6/7/2016. That there is no deficiency of service or unfair trade practice. Complaint is not maintainable. Vehicle is lying in the premises of the OP since February 2016 and that complainant is liable to pay the parking and other charges. On merits, OP No.2, has also denied all the averments and prayed for dismissal of the complaint.  

8.                Parties were afforded opportunity to produce their evidence.

9.                 Complainant tendered into evidence his affidavit Ex.CA, copy of RC Ex.C1, Copy of DL Ex.C2, Copy of renewed DL Ex.C3, copy of  insurance policy Ex.C4, copy of  FIR Ex.C5, Copy of claim intimation Ex.C-6,  estimates Ex.C-7, claim form Ex.C-8, Copy of letter dt.23/08/2016 Ex.C9.

10.               OPs No.1 & 2 tendered into evidence affidavit of Smt. Kanta Devi, Dy. Manager Ex.OPA, affidavit of Sh. J S Madhok, Surveyor Ex.OPB, copy of intimation Ex.OP1, copy of repudiation letter Ex.OP-2, copy of investigation report Ex.OP-3,  copy of survey report Ex.OP-4, PAN card of Balbir Singh Ex.OP-5, pre-inspection report Ex.OP-6, Insurance policy with conditions Ex.OP-7, FIR Ex.OP-8 and closed the evidence.

11.              OP No.3 tendered in evidence his affidavit Ex.OPC, copy of no claim form  Ex.OP-9 and closed the evidence.

12.              We have heard the ld. counsel for the parties and have also gone through  the record of the case, carefully.

13.               Ld. counsel for the complainant has reiterated his stand as taken in the complaint. It was further submitted by the ld. counsel for the complainant that it is not disputed that the vehicle was insured from 22/1/2016 to 21/1/2017. It is also not disputed that the vehicle met with an accident within the covered period. The OP appointed Surveyor. Report of the surveyor is also on the file as Ex.OP-4. As per this report the loss assessed was Rs.2,75,673/- IDV of the vehicle is Rs.351673/-. Therefore, the loss assessed was more than 75% of the IDV. As such it is to be treated as a case of total loss. The complainant was entitled to claim of Rs.3,51,673/- i.e. IDV but the OP has repudiated the claim vide letter dt.23/8/2016 (Ex.C-9). In this letter it is simply stated that vehicle was being used otherwise than in accordance with the limitations as to use as per policy terms conditions and exceptions. The complainant was not intimated regarding any breach of particular terms and conditions. In the written version, OPs No.1 & 2 has pleaded that vehicle was being used for hire and reward. Therefore, the OP was to prove that the vehicle was being used for hire and reward.  The observation of the surveyor and investigator are based on conjectures and surmises. No evidentiary value can be attached to such type of observations which are not based on any evidence. Therefore, the repudiation of the claim is unjustified. It is liable to be set aside. Complainant is liable to the reliefs claimed for.

                   To support its submissions, Ld. Counsel for the complainant has cited “National Insurance Co. Ltd. versus Sanjay Shivhare IV (2007) CPJ 366 (NC)”, “Monjay Das versus Oriental Insurance Co. Ltd. & Ors. IV (2014) CPJ 458 (NC)”, “Vishnu Singh versus Iffco Tokio General Insurance Co. & Anr. III (2014) CPJ 546 (NC)”, “ New India Assurance Co. Ltd. versus Chandu Lal Ronak Ram & Anr. III (2012) CPJ 421 (NC)”,  “National Insurance Company Ltd. versus Hardeep Pal Singh & Anr. I (2012) CPJ 377 (NC)”, “National Insurance Company Ltd. and others versus Munni Lal Yadav 2001 (2) CLT 168” and “Ridhi Gupta  versus National Insurance Co. Ltd. III (2008) CPJ 459”.

14.              On the other hand ld. Counsel for the OP has submitted that claim is based on policy, copy of which is Ex.C-4. Limits of liability are mentioned in this very document. It is clearly stated that the policy covers use of the vehicle for any purpose other than Hire or reward.

15.              After receipt of the intimation regarding the accident, OP appointed investigator as well as surveyor. Report of the investigator is Ex.OP-3. The investigator has categorically concluded that on the material time of accident, the vehicle was running for Hire and reward purpose. He has also briefed the reasons to arrive at this conclusion. Similarly the report of the surveyor is Ex.OP-4. Surveyor has also recommended that the car was being used for Hire and reward purpose. Therefore, it is proved that the complainant breached the fundamental terms and conditions of the policy, as such OP was justified to repudiate the claim.

                   To support their contentions, OP has relied upon “Sanjay Kumar Versus  Reliance General Insurance and others 2018 (2) CLT 254”, “Rajesh Kumar versus National Insurance Company Limited &Ors passed in Revision Petition No.3045 of 2015”,“National Insurance Company Vs. Meena Aggarwal 2009 (2) SCC 523”,“Suraj Mal Ram Niwas Oil Mills Private Limited Vs. United India Insurance company Limited & Anr. 2010 (10) SCC 567”.  

16.              We have given careful consideration to the rival submissions and gone through the case law. The admitted facts are that complainant being owner got his car insured. The insurance was valid from 22/1/2016 to 21/1/2017. The car met with an accident on 22/02/2016 which is within the covered period. Complainant lodged the claim which has been repudiated vide letter dt. 23/08/2016 ( Ex.C-9). As per this letter, the claim was repudiated on the ground that vehicle was being used otherwise than in accordance with the limitations as to use, as per policy terms, conditions and exceptions. In this letter the specific conditions allegedly breached by the complainant is not mentioned but in written statement, it is pleaded that vehicle was being used for hire and reward. The complainant has also pleaded  in the complaint  that on  his enquiry, he was intimated that the vehicle was being used as Taxi. Therefore, complainant was also aware of the ground of repudiation of the claim. The complainant has denied use of car as taxi.

17.              Therefore, the entire controversy revolves around the fact that whether the vehicle was being used for personal use or for hire and reward. As the OP has repudiated the claim on the ground of breach of condition, therefore, onus was upon the OP to establish this fact. The conclusion of the OP is based on report of the investigator and surveyor. The report of the Investigator is on the file as Ex.OP-3. Investigator has not collected any direct evidence to the fact that vehicle was being used for Hire and reward. From the perusal of the report, it is inferred that the investigator has observed that complainant is having meager source of income and that  having car for personal use is a remote likelihood. It is also observed that there does not appear to be any personal relations between the deceased family and complainant. Deceased has a life style which is affluent due to having established business. On the basis of this enquiry the investigator has also observed that complainant has mis-stated the fact that he was working at the service station opposite to the shop of Mr. Amit Gupta where as he never worked at that place.

18.              Therefore, it is observed that the investigator has not collected any direct evidence to prove that the vehicle was being used for Hire and reward. These observations are based on conjectures and surmises. Similarly the surveyor has remarked that as per investigation report, the insured was using car for hire and reward purpose. There is no independent inquiry by the surveyor. He has just referred the report of the Investigator. 

19.              Net conclusion is that OP has failed to prove that the vehicle was being used for hire and reward. Therefore, the repudiation of the claim is not sustainable as the OP has failed  to prove that the vehicle was being used for hire and reward. The case law relied upon by the ld. Counsel for the OP is also not applicable  due to distinction of the facts.

20.              Now coming to the amount for which the complainant is held entitled. Admittedly IDV of the vehicle is  Rs.351673/-. The surveyor has assessed net loss of Rs.2,75,673/-, which is certainly more than 75% of the IDV of the vehicle as 75 % of the IDV becomes Rs.2,63,755/-. In these circumstances, the vehicle is treated as total loss and complainant is entitled to the IDV of the vehicle. The OP has repudiated the claim illegally. Therefore, complainant is also held entitled to interest @ 9 % from the date of repudiation i.e. 23/08/2016.

21.              Complainant will be liable to hand over the damaged vehicle/ salvage and will execute documents as required for transfer of the ownership of the vehicle in the name of the OP.

22.              For the reasons recorded above, the complaint is partly accepted with costs of Rs.10,000/- to be paid to the complainant by OPs No.1 & 2 and dismissed against OP No.3. OPs No.1 & 2 are directed to pay the due amount within a period of 45 days from the date of the receipt of the certified copies of this order. Certified copies of this order be sent to the parties free of cost under the Rules. Thereafter, file be indexed and consigned to the Record Room.  

ANNOUNCED

DATED: 26/10/2018      

      Kanwaljeet Singh              Neelam Gupta             M. P. Singh Pahwa

                Member                                 Member                                      President