DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, ROPAR

                                                          Consumer Complaint No.172 of 2022

                                                          Date of Decision:       07.07.2023

Pardeep Airy son of Sukhdev Dutt, resident of VPO Ajauli, Tehsil & District Una (HP)                                                                                                                                                                                      …..Complainant

                                                 Versus

United India Insurance Company Limited, through its Branch Manager Naya Nangal, Tehsil Nangal, District Rupnagar   

…..Opposite Party

(Complaint under the provisions of Consumer Protection Act)

QUORUM:

                   RANVIR KAUR, MEMBER

RAMESH KUMAR GUPTA, MEMBER

ARGUED BY:

For complainant:   Sh. Sharanjit Singh Rattan Advocate

For OP        :                 

ORDER

PER   RAMESH KUMAR GUPTA, MEMBER

1. The present complaint has been filed by the complainant on the averments that the complainant is registered owner of tanker bearing No.HP-19-B-0937 and earn his livelihood from the said tanker. The said tanker was insured vide policy No.2016003119P111134100 dated 22.11.2019 to 21.11.2020 with United India Insurance Company Limited. On 26.10.2020, the tanker of the complainant met with an accident in area of Village Bhagwanpura (Uttrakhand) and due which tanker of the complainant was damaged up to huge extent and in this regard DDR No.16 dated 26.10.2020 was registered by the Police of PS Bhagwanpura. After the said accident, complainant informed insurance company and then surveyor was sent at the spot for complete verification and inspection of the damaged tanker of the complainant. Whenever any document demanded by insurance company then the complainant provided all the required documents along with damage estimated charges. Thereafter, the complainant personally met officials of the OP where upon official assured him that his claim will passed shortly. When there is no response from the side of the OP then the complainant again visited the OP but there is no satisfactory response was given by the OP. He further averred that due to negligence and impertinent behaviour of the OP, the entire business of the complainant has come to an end and he suffered huge financial loss due to non payment of the insurance amount by the OP. The complainant has requested the OP a number of times to admit his claim but the OP postponed from one day to other day, which has necessitated the filing of instant complaint.  Vide this complaint, the complainant has sought the following reliefs against the OP:-
   1. To pay Rs.9,41,283/- as claim amount for accidental tanker
   2. To pay Rs.2,00,000/- as compensation on account of mental agony and physical harassment.
   3. Any other appropriate relief, as this Court deem fit and proper may also be awarded to the complainant

That complainant filed original complaint under section 36 but filed amended application Dated 23.12.2022 under section 35 for directing the OP to pay Rs. 5, 00,000/- as claim amount.

2. Upon notice, the learned counsel for the OP has filed written reply taking preliminary objections as under:-

1. that the complaint is neither maintainable in law, that no cause of action has arisen in favour of the complainant; that this Hon’ble Commission has no jurisdiction to entertain and try the present complaint; that the OP has not received any kind of intimation from the insured against the alleged accidental loss immediately.
2. That the answering OP specifically denies that there is any cause of

action to file the present complaint, since the answering OP specifically denies the factum of above said accident as alleged by the complainant in the complaint.

3. That there is no deficiency in service on the part of the answering OP because the answering OP had not received any intimation from the insured immediately of the alleged accident which is clearly an abusive violation of the Terms and Condition of insurance policy. That as per one of the most important condition of the contract of insurance is “it is obligatory duty on the part of the insured that insured will immediately inform the insurance company in writing about accidental loss or damage if any caused to insured vehicle”. In the absence of such intimation, or failure of insured to perform his own part, the contract of insurance will not shelter and will not provide any advantage of indemnify the insured in such circumstances, if insured fails to inform immediately to the insurance company if any loss or damage caused to insured vehicle. But in the present complaint, the insured informed the OP about the occurrence on 18.11.2022 via filing the claim intimation form at the office of OP with the delay approximately 23 days and complainant/insured failed to explain the satisfactory reason that why he did not comply one of the most important condition of the contract of insurance.
4. That even, the driver of the vehicle in question did not possess and hold a valid and effective driving license to drive the subject vehicle as a hazardous carriage carrying goods vehicle at the time of accident. As per the GR No.6715 issued to subject vehicle bearing No.HP-19-B-0937 dated 26.10.2020 at the time of accident was being carried SODA CAUSTIC LYE which falls in the class of hazardous and horrendous goods/substance under the head of Corrosive as mentioned under table II of the Centre Motor Vehicle Rules 1989 which is very hazard and dangerous goods to human life and circle.
5. That From the verification of the DL, the OP has noticed that the driver was authorized to drive only MCWG, LMV, LMV-TRANS/TRANS and was not authorized to drive hazardous vehicle and at the time of accident, driver was not authorized to drive the vehicle in question as there was no endorsement on his DL which legally authorized and permit him to drive such hazardous goods carrying carriage vehicle.

On merits”-

6. The whole story is after thought only to get the wrong, fake compensation from the OP.
7. That In the absence of Original Insurance policy and its verification, it is denied that the vehicle in question was insured with the OP. It is pertinent to mention that the complainant mentioned the risk covering period under contract of Insurance from 22-11-2019 to 21-11-2020 which is not acceptable. The fact regarding the covering period of risk is totally wrong and malicious No contract had ever been made between complainant and respondent/OP covering such risk period against Insured vehicle.
8. That In the reflection of above said facts and circumstances, hence, It is prayed that the Present complaint may kindly be dismissed with heavy costs in the Interest of Justice. 

3. In order to prove the case, the learned counsel for the parties have placed on record the affidavits and certain documents in the shape of evidence and have closed their evidence, respectively.
4. The complainant, in support of his claim, tendered into evidence duly sworn affidavit of complainant Ex.CW1/A, along with documents Ex.C-2 to Ex.C-28. The opposite parties, in support of their defence, tendered documents original insurance policy No. 2016003119P111134100 as Ex.OP1 along with documents as Ex-OP 2 to OP-6.
5. We have heard learned counsel for the appellants/opposite parties and carefully gone through the records of the case.
6. That the learned counsel for the complainant made prayer that, purchased one insurance policy (Ex-C19) No. 2016003119P111134100 relating to tanker bearing registration No. HP-19-B-0937 for the period from dated 22.11.2019 to 21.11.2020 with United India Insurance Company Limited. On 26.10.2020, the tanker of the complainant met with an accident in area of Village Bhagwanpura (Uttrakhand) and due which tanker of the complainant was damaged up to huge extent and in this regard DDR No.16 dated 26.10.2020 was registered with the Police of PS Bhagwanpura. After the said accident, complainant informed insurance company and then surveyor was sent at the spot for complete verification and inspection of the damaged tanker of the complainant. Whenever any document demanded by insurance company then the complainant provided all the required documents along with damage estimated charges.  The complainant has requested the OP a number of times to admit his claim but the OP postponed from one day to other day, which has necessitated the filing of instant complaint.
7. That the learned counsel for the OP made prayer that, driver was not having endorsement to drive dangerous and hazardous goods but the driver on the date of accident was driving the vehicle with hazardous goods.  He also argued that at the time of accident, the driver of the vehicle was not having valid driving license to drive the transport vehicle. The complainant never informed to the insurance company about the alleged accident immediately and the intimation was given by the complainant to the OP on 18.11.2022 via filing the claim intimation form at the office of OP with the delay approximately 23 days and complainant/insured failed to explain the satisfactory reason that why he did not comply one of the most important condition of the contract of insurance. OP further averred that the complainant mentioned the risk covering period under contract of  Insurance from 22-11-2019 to 21-11-2020 which is not acceptable. The fact regarding the covering period of risk is totally wrong and malicious No contract had ever been made between complainant and respondent/OP covering such risk period against Insured vehicle. Lastly prayed to dismiss the complaint.
8. That OP having branch at Naya Nangal (Ropar), Punjab and the Tanker was insured with the OP.  On 26.10.2020, the tanker of the complainant met with an accident in area of Village Bhagwanpura (Uttrakhand) and due which tanker of the complainant was damaged up to huge extent and in this regard DDR No.16 dated 26.10.2020 was registered by the Police of PS Bhagwanpura. Complainant applied for claim of the damage under insurance Policy, However OP repudiated the claim of the complainant. So, it is a consumer dispute and this forum has territorial jurisdiction.
9. Now the first question before us is that whether at the time of accident, the driver of the vehicle was having valid and effective driving license or not?. On perusal of materials available on record, it is found that the Driving License Ex.C-28  issued by the Licensing Authority was for Light Motor Vehicle and Transport Vehicle, but there was no endorsement made permitting for driving vehicle for the purpose of transporting hazardous goods. Though, the driver had obtained one certificate Ex.-C27 upon three days training course on “Safe Transportation of Hazardous Goods” as per rule 9 of the Central Motor Vehicle Rules 1989 from 06.02.2020 to 08.02.2020 valid upto 02-02-2023 endorsed by the competent authority but it was not incorporated in the license of the driver.  It is evident from the extract of Driving License that the Driver had valid license to drive transport vehicle with having certificate for “Safe Transportation of Hazardous Goods” though it was not incorporated on the driving license. The certificate for transporting hazardous goods was obtained during the policy period of the insured vehicle. This fact clearly shows that driver had underwent training and was authorized to drive the hazardous goods. In the absence of such endorsement the insurance company repudiated the claim of the OP on the ground of violation of the policy condition.
10. That from above we have noted that complainant was having insurance policy in force on the date of accident of the said vehicle. Driver of the vehicle was having valid License with certificate of “Safe Transportation of Hazardous Goods” of the competent authority and hence there is no violation of any rule on the part of the driver.  This fact clearly shows that driver had underwent training and was authorized to drive the hazardous goods.
11. We have noted above controversial point in the present complaint is squarely covered by the order/judgment of the Hon’ble Punjab & Haryana High Court, Chandigarh, in FAO No.1210 of 2014 titled as National Insurance Company Limited Vs Harbans Kaur, decided on 26.3.2018, wherein it has been observed as under:-

“The question that now arises would be whether such a breach of not having obtained necessary endorsement as required under Sub Rule (3) of Rule 9 of the Rules, is so fundamental as to have contributed to the cause of accident. The answer, at the outset, appears to be in the negative. It is nobody’s case that the accident took place because of dangerous or hazardous substance being carried in the vehicle. On the contrary, there is no challenge to findings of the Tribunal that the accident occurred due to negligence in driving the offending tanker. In the given scenario, carrying or non carrying of dangerous or hazardous substance has no nexus with the cause of accident that occurred due to rash and negligent driving of the vehicle by its driver. In this view of the matter, it can safely be held that the breach complained of by the insurer is not so fundamental as is found to have contributed to the cause of accident.

       This apart, perusal of Rule 9 of the Rules would make it evident that before a driver can file an application for obtaining necessary endorsement as required under sub rule (3) of Rule 9 of the Rules, he is to undergo some training for a period of two to three days but the same does not deal with the professional skill of driving. With regard to professional skill of driving, it has already been clarified by the licensing authority at the time of granting license to the driver authorizing him to drive a transport vehicle. When the facts and circumstances of the present case are examined in the light of judgment of Hon’ble Apex Court in Swaran Singh’s case (Supra) coupled with the discussion made hereinbefore, I am inclined to agree with what has been held by the Division Bench of thee Madhya Pradesh High Court in Beghelkhand Filling Station and Another’s case (supra). This court in Rajesh Singh’s case (Supra) has neither adverted to judgment of Hon’ble Supreme Court in Swaran Singh’ case nor judgments by the High Courts of Madhya Pradesh and Gujrat. In this view of the matter, insurance company can neither escape its liability to pay compensation nor press for right of recovery merely for want of endorsement required under rule 9(3) of the Rules on the license held by driver of the offending vehicle”.

12. Now the Second question before us is  that OP repudiated the claim of the complainant on the condition that the insured informed the OP about the occurrence of incidence  on 18.11.2022 via filing the claim intimation form at the office of OP with the delay approximately 23 days and complainant/insured failed to explain the satisfactory reason that why he did not comply one of the most important condition of the contract of insurance.
13. We have given our thoughtful consideration to the contentions raised by the learned counsel for the OP. For proper appreciation of the matter, the relevant Condition No.1 of the Insurance Policy, Ex.OP-1, invoked by the OP, is

Reproduced below:-

"1. Notice shall be given in writing to the Company immediately upon the occurrence of any accidental loss or damage and in the event of any claim and thereafter the insured shall give all such information and assistance as the Company shall require. Every letter claim writ summons and/or process or copy thereof shall be forwarded to the Company immediately on receipt by the insured. Notice shall also be given in writing to the Company immediately the insured shall have knowledge of any impending prosecution, inquest or fatal injury in respect of any occurrence which may give rise to a claim under this policy. In case of theft or criminal act which may be the subject of a claim under this policy the insured shall give immediate notice to the police and co-operate with the Company in securing the conviction of the offender."

A bare perusal of this condition shows that in case of "accidental loss or damage" to the vehicle, the notice was required to be given in writing to the opposite parties.

14. It also needs to be emphasized that Insurance Regulatory and Development Authority (in short, "IRDA") issued Circular to all life-insurers and non- life insurers dated 20.9.2011 regarding delay in claim intimation/documents submission with respect to all life insurance contracts and all non-life individual and group insurance contracts. The same is reproduced here under:-

"INSURANCE REGULATORY AND DEVELOPMENT AUTHORITY

Ref. IRDA/HLTH/MISC/CIR/216/09/2011 Dated:20.09.2011 CIRCULAR     To All life insurers and non-life insurers.

Re: Delay in claim intimation/documents submission with respect to i. All life insurance contracts and ii. All Non-life individual and group insurance contracts. The Authority has been receiving several complaints that claims are being rejected on the ground of delayed submission of intimation and documents. The current contractual obligation imposing the condition that the claims shall be intimated to the insurer with prescribed documents within a specified number of days is necessary for insurers for effecting various post claim activities like investigation, loss assessment, provisioning, claim settlement etc. However, this condition should not prevent settlement of genuine claims, particularly when there is delay in intimation or in submission of documents due to unavoidable circumstances. The insurer's decision to reject a claim shall be based on sound logic and valid grounds. It may be noted that such limitation clause does not work in isolation and is not absolute. One needs to see the merits and good spirit of the clause, without compromising on bad claims. Rejection of claims on purely technical grounds in a mechanical fashion will result in policyholders losing confidence in the insurance industry, giving rise to excessive litigation.

Therefore, it is advised that all insurers need to develop a sound mechanism of their own to handle such claims with utmost care and caution. It is also advised that the insurers must not repudiate such claims unless and until the reasons of delay are specifically ascertained, recorded and the insurers should satisfy themselves that the delayed claims would have otherwise been rejected even

if reported in time. The insurers are advised to incorporate additional wordings in the policy documents, suitable enunciating insurers' stand to condone delay on merit for delayed claims where the delay is proved to be for reasons beyond the control of the insured. Sd/- J. Harinarayan CHAIRMAN."

15. Furthermore, the Hon'ble Supreme Court in case Om Prakash v. Reliance General Insurance and Anr. 2018(1) CPR 907 (SC), wherein the truck was stolen and there was delay in giving intimation to the Insurance Company, while allowing the appeal, observed in Para-11 as under:-

"11. It is true that the owner has to intimate the insurer immediately after the theft of the vehicle. However, this condition should not bar settlement of genuine claims particularly when the delay in intimation or submission of documents is due to unavoidable circumstances. The decision of the insurer to reject the claim has to be based on valid grounds. Rejection of the claims on purely technical grounds in a mechanical manner will result in loss of confidence of policy-holders in the insurance industry. If the reason for delay in making a claim is satisfactorily explained, such a claim cannot be rejected on the ground of delay. It is also necessary to state here that it would not be fair and reasonable to reject genuine claims which had already been verified and found to be correct by the Investigator. The condition regarding the delay shall not be a shelter to repudiate the insurance claims which have been otherwise proved to be genuine. It needs no emphasis that the Consumer Protection Act aims at providing better protection of the interest of consumers. It is a beneficial legislation that deserves liberal construction. This laudable object should not be forgotten while considering the claims made under the Act."

12. Ratio of the aforesaid circular issued by the IRDA and the judgment of the Hon'ble Supreme Court is that the condition regarding the delay shall not be a shelter to repudiate the insurance claims, which have been otherwise proved to be genuine.

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Hon'ble Supreme Court also reiterated that the Consumer Protection Act aims at providing better protection of the interest of consumers and it is a beneficial legislation that deserves liberal construction. This laudable object should not be forgotten, while considering the claims made under the Act.

   13. Noticing that there was a conflict between the decisions of the Bench of the two Judges of the Hon'ble Supreme Court in Om Parkash's case (supra) and in the case of "Oriental Insurance Co. Ltd. v. Parvesh Chander Chadha" 2009(1) CLT 552, on the question, as to whether delay in informing the occurrence of the theft of the vehicle to the Insurance Company, though the FIR was registered immediately, would disentitle the claimant of the insurance claim, the Bench of two Judges of the Hon'ble Supreme Court, vide order dated 9.1.2018 referred the matter to a three Judges Bench. The said three Judges Bench of the Hon'ble Supreme Court in Civil Appeal No.653 of 2020 (arising out of S.L.P. (C) No.24370 of 2015)  (GURSHINDER SINGH v. SHRIRAM GENERAL INSURANCE CO. LTD. & ANR), after duly considering the judgments passed in the above said two cases, observed in

  Para No.20 in its judgment dated 24.01.2020 as under:-

20. We, therefore, hold that when an insured has lodged the FIR immediately after the theft of a vehicle occurred and when the police after investigation have lodged a final report after the vehicle was not traced and when the surveyors/investigators appointed by the insurance company have found the claim of the theft to be genuine, then mere delay in intimating the insurance company about the occurrence of the theft cannot be a ground to deny the claim of the insured."

In view of the law settled by the Hon'ble Supreme Court in the above noted case, the delay in lodging the FIR and in informing the opposite parties about the theft of the vehicle cannot be a ground to deny the claim of the insured. Therefore, the repudiation of the claim on the above referred ground is not tenable.

16. We have noted that complainant purchased one insurance policy (Ex.C-19 or Ex-OP1) No. 2016003119P111134100 relating to tanker bearing registration No. HP-19-B-0937 for the period from dated 22.11.2019 to 21.11.2020 with United India Insurance Company Limited. which was in force on the date of accident i.e. on 26.10.2020 with IDV Rs. 11,00,000/-. The tanker of the complainant met with an accident in area of Village Bhagwanpura (Uttrakhand) on 26.10.2020 and damaged up to huge extent and in this regard DDR No.16 dated 26.10.2020 (Ex.C-15)  was registered with the Police of PS Bhagwanpura. After the said accident, complainant informed insurance company and then surveyor was sent at the spot for complete verification and inspection of the damaged tanker of the complainant. Driver of the vehicle was having valid License with certificate Ex.C-28 of “Safe Transportation of Hazardous Goods” of the competent authority and hence there is no violation of any rule on the part of the driver.
17. We have also noted that the complainant in his original complaint sought relief of             Rs. 9,41,283/- from OP, but in the amended complaint Dated 23-12-2022 complainant requested for directing the opposite party to pay Rs. 5,00,000/- as claim amount for accidental tanker.
18. In view of the above discussion and aforesaid circular issued by the IRDA and law laid down by the judgment of the Hon'ble Supreme Court and the law laid down by the Hon’ble Punjab and Haryana High Court, we are of the opinion that when an insured has lodged the FIR immediately after the accident of a vehicle occurred and when the surveyors/investigators appointed by the insurance company to assess the damage, then mere delay in intimation to the insurance company about the occurrence of the accident cannot be a ground to deny the claim of the insured and the Insurance Company cannot be exonerated from its liability to the pay the genuine claim of the complainant. So the letter dated 25.08.2021 written by the Insurance Company to the complainant vide which Insurance Company has repudiated his claim is not as per law and the complainant is entitled for the claim and the present complaint deserves to be allowed with the following directions to the OP:-

1. To pay the amount of Rs. 5,00,000/-  along with interest @ 7% per           annum from the date of repudiation i.e. 25.08.2021 till actual           realization. 
2. To pay Rs. 10,000/- as compensation.
3. To pay Rs. 2500/- as litigation expenses.
4.  The OP is further directed to comply with the order within the     period of 30 days from the date of receipt of certified copy of this      order. Free certified copies of this order be sent to the parties, as per        rules. The file be indexed & consigned to the Record Room.

Dated:- 07.07.2023

                   (Ramesh Kumar Gupta)                                                                      (Ranvir Kaur)

                                      Member                                                                                              Member