DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, LUDHIANA
Complaint No.418 of 10.07.2015.
Date of decision: 06.09.2016.
Manohar Singh son of Diwan Singh, resident of Plot No.32, Gobindpuri, Bahadurke Road, Ludhiana. …..Complainant.
Versus
- United India Insurance Company Ltd., Link Road, Near Partap Chowk, Ludhiana through its Branch Manager/Head.
- United India Insurance Company Ltd., Surya Tower, 108, The Mall, Ludhiana trough its Branch Manager/Head.
.....Opposite parties.
(Complaint U/s. 12 of the Consumer Protection Act, 1986)
QUORUM:
SH.G.K.DHIR, PRESIDENT
SH.KARNAIL SINGH, MEMBER
COUNSEL FOR THE PARTIES:
For complainant : Sh. Harbans Singh, Advocate
For Ops : Sh. Rajeev Abhi, Advocate
PER G.K DHIR, PRESIDENT
1. Complaint under Section 12 of the Consumer Protection Act (hereinafter referred as Act) filed by complainant, owner of Tipper bearing registration No.PB-13-AA-9589 by claiming that the same was insured with Ops vide policy No.2011023113P106053766 for period from 23.12.2013 to midnight of 22.12.2014. Premium was duly paid. On 22.04.2014, one concern named as M/s. Nayyar & Company loaded sand in the said vehicle of complainant for the purpose of transportation vide GR No.21 dated 22.04.2014. However, when complainant was unloading the sand at the destination, then all of a sudden the said tipper turned turtle and stood damaged. Intimation of this damage was given to Ops, who referred the complainant to Raj Agro Aids for the purpose of repair of the vehicle. Complainant got the said vehicle repaired from said concern by spending Rs.2,71,309/- through invoice No.169 dated 16.06.2014. Thereafter, complainant got lodged claim with Ops by submitting all the requisite documents and complying with the formalities, but said claim was repudiated by letter dated 15.11.2014 on the ground that the vehicle was overloaded because GR No.21 dated 22.04.2014 was showing weight of the sand as 300ft. The alleged delivery receipt No.10210 dated 23.04.2014 alleged to be procured by Ops themselves. That receipt alleged to be false and fake document. It is also claimed that at the time of issuing of the policy, there was no such terms or condition mentioned in the policy and as such, Ops are estopped by their act and conduct from repudiating the claim of complainant. By pleading deficiency in service on the part of Ops, prayer made for reimbursement of the claim of Rs.2,71,309/- along with interest @12% per annum. Compensation for mental harassment of Rs.1,00,000/- and litigation expenses of Rs.11,000/- more claimed.
2. In joint written statement filed by Ops, it is pleaded, interalia, as if complaint barred in view of Section 26 of Consumer Protection Act (hereinafter referred as Act); complainant is not a consumer within meaning of the Act; complainant is estopped by his act and conduct from filing the complaint because he has not approached the Forum with clean hands; complicated questions of law and facts requiring elaborate evidence involved due to which Civil Court of competent jurisdiction alone can decide the matter. Besides it is claimed that as allegation of false, fake and wrong documents leveled and as such, this Forum has no jurisdiction to try and decide the present complaint. It is pleaded that after receipt of the claim on 23.04.2014, the same was duly entertained and registered and thereafter, for processing the same M/s. Vinod Kumar and Associates, an IRDA licensed surveyor and loss assessor, was appointed. Said surveyor personally inspected the vehicle, took the photographs and other documents and thereafter, prepared his report dated 08.08.2014 under his signatures for assessing the loss at Rs.1,14,000/- subject to the terms and conditions of the policy. Final approval of the insurance was required. As cause of accident disclosed that while off loading the sand, rear wheel settled down in the loose earth and as such, it was found that there was violation of terms and conditions of the policy. Rather surveyor reported remarks that damage took place in accident caused in the processing of off loading the sand from the vehicle. Jack failed and caused the vehicle to overturn on the right side of its body resulting in damage also were the remarks recorded by the surveyor. At the time of loss, tipper was laden with 943 cft. sand, being transported from Pathankot to Ludhiana as made out from the weighment slip, delivery receipt No.10210 dated 22.04.2014 of M/s. A S & Co. Approximately weight of the goods was more than 40 tonns, despite the fact that carrying capacity of the vehicle was 19270 Kgs. Report from DTO, Ludhiana for verification of the driving licence even was got by the appointed surveyor M/s. Vinod Kumar and Associates. M/s. B.S. Narang & Associates appointed as investigator to verify the genuineness of fitness certificate of the vehicle in question and he got due verification of the same. Report of this investigator even was submitted regarding genuineness of the registration certificate and fitness certificate. Report regarding genuineness of route permit of the vehicle in question obtained by the appointed surveyor and loss assessor from concerned Regional Transport Authority. The report got by Sh. Sandeep Kumar, appointed surveyor. After receipt of all these reports of surveyor and loss assessor as well as investigator and after due application of mind by officials of Ops, claim of complainant was repudiated as no claim vide letter dated 15.11.2014 on the ground that the vehicle was carrying approximately 40 tonns of sand, which was much more than the carrying capacity of the vehicle which is 19270 Kgs, mentioned in the registration book of the vehicle. Besides the repudiation took place on the ground that the complainant concealed the facts due to submission of wrong GR. Fraudulent means and devices for getting claim were adopted by the complainant and that is why the claim was repudiated. Complainant submitted GR No.21 dated 22.04.2014 of M/s. Nayyar & Co. showing the weight of the sand as 300 ft., whereas in the delivery receipt No.10210 dated 23.04.2014 of M/s. A S Trading Co., the laden weight of tipper was shown as 943 cft. i.e. approximately 40 tonns. It is claimed that there is no deficiency in service and negligence on the part of Ops because the claim has been repudiated as per terms and conditions of the insurance policy. Each and every other averment of the complaint denied.
3. Complainant to prove his case, tendered in evidence his affidavit Ex. CA along with documents Ex. C1 to Ex. C5. Complainant failed to produce evidence that is why evidence of complainant was closed by order dated 19.02.2016.
4. On the other hand, counsel for Ops tendered in evidence affidavit Ex. RA of Sh. R.R. Sethi, Senior Divisional Manager of Ops; affidavit Ex. RB of Sh. Vinod Kumar of M/s. Vinod Kumar & Associates, IRDA licensed Surveyor and Loss Assessor; Ex. RC of Sh. B.S. Narang of M/s. B.S. Narang & Associates, Insurance Investigator and Tracer and Ex. RD of Sh. Sandeep Kumar, Surveyor and Loss Assessor along with documents Ex. R1 to Ex. R31 and then closed evidence.
5. Written arguments submitted by Ops and not by complainant. Oral arguments also heard and record gone through carefully.
6. Insurance policy cover note Ex. C2=Ex. R1 produced by both parties. So from this document, it is established that vehicle No.PB-13-AA-9589 was insured by complainant with Ops for period from 23.12.2013 to midnight 22.12.2014. Insurance policy to be construed strictly as per its terms and conditions because the contract of insurance is binding between the parties and nothing can be added or subtracted by giving different meaning to the words mentioned in the policy. In holding this view we are fortified by law laid down in Ind Swift Limited Vs New India Assurance Co. Ltd. and others IV (2012) CPJ 148 (NC); United India Insurance Co. Ltd. Vs Harchand Rai Chandan Lal IV (2014) CPJ 15 (SC), Deokar Exports Pvt. Ltd. Vs New India Assurance Company Ltd. I (2009) CPJ 6 (SC); New India Assurance Co. Ltd. Vs Panchsheel Jewellers I (2013) CPJ 38 (NC). So certainly submission advanced by counsel for Ops has force that rights and obligations arising from the terms of the contract Ex. C2 = Ex. R1 to be governed by the terms and conditions thereof and nothing can be added or subtracted thereto. If that be legal position, then certainly we will have to find out as to whether repudiation of the claim through letter Ex. C3 = Ex. R31 is in accordance with terms and conditions of the contract of insurance or not.
7. After going through Ex. C3 = Ex. R31, it is made out that after obtaining reports of surveyor/investigator and finding that the laden weight of the tipper at the time of its tilting was more than 40 tonns as compared to the carrying capacity of 19270 kgs., the claim was repudiated. Besides second ground for repudiation of the claim was that wrong GR was submitted by complainant for concealing the facts and that is why claim was treated as no claim. Copy of the driving licence of Narinder Singh produced on record as Ex. C1 = Ex. R21. Report of verification of this driving licence Ex. R20 was obtained by the appointed surveyor Vinod Kumar and Associates. Report of genuineness of RC even was obtained from DTO, Sangrur by B.S. Narang & Associates, Investigator is a fact borne from the perusal of documents Ex. R22 to Ex. R24. Copy of certificate of the registration of the vehicle in question produced on record as Ex. R25 as well as Ex. R27 along with that of the certificate of fitness Ex. R26 and report of verification of the permit obtained is a fact borne from contents of Ex. R28 and Ex. R29. Copy of the route permit produced on record as Ex. R29A and there is no dispute regarding obtaining of these reports by the appointed investigator/surveyor. The vehicle in question is HGV i.e. heavy goods vehicle. It is borne from the above reports and documents of RC, route permit etc. Gross vehicle weight of the vehicle in question is 25000 Kg, but unladen weight of same is 5730 Kg is a fact borne from contents Ex. R24, Ex. R23 as well as Ex. R25 and Ex. R27 as well as Ex. R4 (claim form submitted by complainant). Keeping in view these facts in mind, the carrying capacity of vehicle in question found as 19270 Kg as per versions of affidavit Ex. RA, Ex. RB and contents of report Ex. R3 of Vinod Kumar & Associates. That is made a ground for repudiation of the claim. Certainly the laden weight of 25000 Kg and unladen weight of 5730 Kg to be kept in mind for finding out the carrying capacity of vehicle in question. So Laden weight comes to 25000-5730=19270 Kg.
8. Through report Ex. R3, it has been found by the surveyor that the tipper was having laden weight of more than 40 tonns because it was having 943 Cft. of sand loaded in it. Formula worked out is quite appropriate. Photographs of the damaged tipper produced on record as Ex. R6 to Ex. R13 and as such, same shows as if surveyor named Vinod Kumar and Associates submitted report after inspecting the vehicle in question. Cause of accident mentioned in report Ex. R3 of the surveyor contains remarks, “On going through circumstances and considering the damages in which the said accident took place, we can very well say that while offloading the sand from the vehicle, its jack failed and caused the vehicle to overturn on the right side of its body.” Even in the claim form Ex. R4, it is stated by complainant himself that earth from one side sagged (settled down) at the time when the sand was being offloaded, resulting in turning the tipper turtle. So the accident took place at the time when sand was being offloaded. Over loading of the tipper in question was described as cause of turning turtle of the vehicle in report Ex. R3 because the surveyor on the basis of receipt Ex. R14 of A.S. Trading Company found the laden weight of the sand as 943 Cft. = more than 40 tonns. No material produced on record to show that the laden weight worked out by the surveyor through report Ex. R3 is incorrect.
9. Counsel for complainant vehemently contends that receipt Ex. R14 is forged and fabricated one because in fact as per receipt Ex. R15 of Nayyar and Company, 300 ft. of sand was loaded in the vehicle at the time of accident i.e. on 22.04.2014. Allegations of forgery and fraud has to be proved, particularly when there is nothing on record to suggest that surveyor Vinod Kumar and Associates was having any ill will or malice against complainant in submitting false report.
10. In case title as Mangal Engg. Works Vs Oriental Insurance Company Limited II (2015) CPJ 124 (NC), it has been held that there cannot be any reason for investigator to forge a letter prejudicial to the interest of complainant by obtaining signature of its partner on blank letter head of petitioner firm. This is more so when petitioner does not claim any enmity with investigator. Same is the position before us and as such, report Ex. R3 based on receipt Ex. R14 cannot be said to be forged because no enmity or motive or malice attributed to surveyor in this case before us. So reliance on Ex. R3 has to be placed for finding laden weight of vehicle at the time of accident. The formula laid in report Ex. R3 for determining the carrying capacity of the vehicle as 19270 Kg is appropriate because in case titled as National Insurance Co. Ltd. Vs Mali Ram Jat IV (2009) CPJ 76 (Rajasthan State Consumer Disputes Redressal Commission, Jaipur), it has been held that carrying capacity of the vehicle to be adjudged by keeping in view the gross vehicle weight and the unladen weight of the vehicle. In the reported case, as per registration certificate the unladen weight of the vehicle was 6700 Kg, but gross vehicle weight was 16200 Kg that is why carrying capacity was found as 9500 Kg. In the reported case, it was found that in case the vehicle at the time of accident carried weight of 17830 Kg. against permissible carrying capacity of 9500 Kg., then in view of overloading to extent of 87% of the permissible capacity, the claim liable to be repudiated because of the breach of the terms and conditions of the policy and violation of provisions of Motor Vehicle Act. Section 194 of Motor Vehicle Act provides that a vehicle carrying load in excess of the permissible carrying capacity liable to be challaned and punishment for the same provided therein. In this case before us also as permissible carrying capacity of the vehicle was 19270 Kg, but the vehicle was carrying sand of load of more than 40 tonns i.e. double of the amount of permissible carrying capacity and as such, certainly offence under Section 194 of the Motor Vehicle Act was committed in this case in addition to breach of terms and conditions of the insurance policy. Even in case of New India Assurance Company Ltd. and another Vs Sanjeev Kathuria I (2012) CPJ 195 (Haryana State Consume Disputes Redressal Commission, Panchkula), it has been held that if from the documents produced on record, it is proved that complainant has loaded truck beyond its authorized capacity resulting in overturn of the vehicle and consequence damage, then in view of violation of terms and conditions of policy, insurance company cannot be held liable to pay compensation. Same is the preposition of law laid down in cases titled as National Insurance Company Ltd. Vs Usha Devi IV (2011) CPJ 267 (NC); Oriental Insurance Co. Ltd. Vs G. Velkumar II (2014) CPJ 647 (NC); New India Assurance Co. Ltd. Vs Ishwar Singh Rathore II (2015) CPJ 28 (NC). As parking of the tipper in question at the time of accident was not at appropriate place and even the tipper was overloaded by twice of the permissible weight capacity and as such, virtually the accident in question took place due to negligence on the part of the driver of the vehicle in question. If the vehicle was overloaded double than the permissible loading capacity, then it was duty of driver to ensure the vehicle parked at the time of off loading of the sand at a place, where settling down of the earth does not take place. Had precaution of parking of double overloaded tipper at appropriate place (where there was no loose earth) was taken by the driver, then certainly the vehicle in question would not have turned turtle. Whatever is not done with due care and caution, same is to be deemed to be done in a rash and negligent manner. In view of this, virtually the complainant staking claim of insurance for enjoying the fruit of insurance policy without bothering about compliance of its terms and conditions as well as violation of Section 194 of the Motor Vehicle Act. As complainant or his driver was at fault in not taking due care and caution of parking the overloaded tipper at appropriate place and as such, certainly in view of violation of the breach of terms and conditions of the policy, repudiation of the claim is quite appropriate.
11. Even as per law laid down in cases titled as H.S. Saxena Vs New India Assurance Co. Ltd. & another I (2012) CPJ 420 (NC) and Ankur Surana Vs United India Insurance Co. Ltd. and others I (2013) CPJ 440 (NC) as well as Oriental Insurance Co. Ltd. Vs B. Ramareddy II (2006) CPJ 339 (NC), report of surveyor appointed under provisions of law is an important document and cannot be brushed aside without any compelling evidence to the contrary. If the report of the licensed surveyor to be disbelieved or discarded, cogent reason has to be recorded because just production of bills or estimate cannot be the basis for discarding the report of surveyor, is the law laid down in cases titled as Khimjibhai & Sons Vs New India Assurance Co. Ltd. IV (2011) CPJ 458 (NC); Bhim Singh Vs National Insurance Company Limited and another I (2009) CPJ 106. Ratio of these cases fully applicable to the facts of present case, particularly when the due reasons recorded by surveyor Vinod Kumar & Associates in report Ex. R3 for finding the carrying capacity and actual weight of sand loaded in the tipper in question at the time of accident. As report Ex. R3 based on due evaluation by keeping in view the produced documentary evidence and there is no material produced on record to show that the said report is false or deliberately prepared for favouring Ops or harming the interest of complainant and as such, reliance on this report Ex. R3 must be placed, even if cash credit memo Ex. R15 and Ex. R5 being produced by OPs shows that weight of sand as 300 ft. Complainant has not produced on record these receipts Ex. R5 or Ex.R15, but those are produced with report and as such, these receipts even taken into consideration while preparing report Ex. R3. Receipt Ex. R14 pertains to the weighment of the sand got done after accident on 23.04.2014 and sometimes the bills/cash credit memos qua purchase does not disclose the exact quantity for evading tax payment and as such, actual quantity of weight mentioned in Ex. R14 duly taken into consideration by the surveyor.
12. After going through clause No.2 of Section 1 at page 4 of insurance cover note Ex.R1, it is made out that insurance company not liable to make any payment in respect of consequential loss, if the breakage or damage caused by overloading or strain of the insured vehicle etc. In this case, loss to the vehicle in question caused due to its going turtle on account of overloading or earth under the vehicle could not bear its weight and as such, insurance company cannot be made liable in insurance claim in view of this clause 2 (a) of Section 1 of Ex. R1 (mentioned at page no.4 of Ex. R1). So repudiation of the claim is fully justified.
13. Counsel for complainant has placed reliance on law laid down in case New India Assurance Co. Ltd Vs Hameed Mehendibhai Nathani 2015(2) C.P.J. 324 (NC) for arguing that overloading of truck is not the ground for repudiating the claim. However, after going through ratio of this case, it is made out that if overloading was not the cause of turning the vehicle turtle, then the claim of insurance liable to be accepted. After going through para no.3 of the cited case, it is made out that the vehicle in the reported case was having capacity of carrying eight persons as per registration certificate, but it was carrying 11 passengers. In these circumstances, it was held that it is not a case of overloading, resulting in going the vehicle turtle or of turning off. That is not the position in the case before us because here due care of parking the vehicle at appropriate place was not taken, despite the fact that it was carrying double the load than that of the carrying capacity. Even in case of New India Assurance Company Ltd. Vs Kotlu Brahamana, Ex-Servicemens Transport Cooperative Society Ltd. 2012(1) C.P.J. 262 (NC), it has been held that if overloading was not prime cause of accident, then insurance company could not repudiate the claim. However, in the case before us, accident caused due to excess loading of the vehicle and as such, benefit from ratio of above cited case not available to complainant. As repudiation of claim is justified and as such, there is no deficiency in service on the part of Ops.
14. As a sequel of above discussion, complaint dismissed by leaving the parties to bear their own costs. Copies of order be supplied to parties free of costs as per rules. File be indexed and consigned to record room.
(Karnail Singh) (G.K.Dhir)
Member President
Announced in Open Forum.
Dated:06.09.2016
Gobind Sharma.
