Punjab

Ludhiana

CC/21/231

Maha Laxmi Petrolium - Complainant(s)

Versus

United India Insurance Co.Ltd - Opp.Party(s)

Amandeep Singh Adv

16 Jul 2024

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, LUDHIANA.

                                                Complaint No:231 dated 26.04.2021.                                                         Date of decision: 16.07.2024.

 

Maha Laxmi Petroleum, Sherpur Kalan, Focal Point, Ludhiana, through its Proprietor Shri Bharat Bhushan                                                                                                                                                                ..…Complainant

                                                Versus

1. United India Insurance Company Limited, Savitri Complex-I, G.T. Road, Dholewal, Ludhiana through its Branch Manager.
2. United India Insurance company Limited, having its registered and head office at 24, Whites road, Chennai-600014, through its Divisional Manager.                                                                                                                                                                             …..Opposite parties 

Complaint Under Section 35 of the Consumer Protection Act, 2019.

QUORUM:

SH. SANJEEV BATRA, PRESIDENT

SH. MONIKA BHAGAT, MEMBER

 

COUNSEL FOR THE PARTIES:

For complainant             :         Sh. Amandeep Singh, Advocate.

For OPs                          :         Sh. Rajeev Abhi, Advocate.

 

ORDER

PER SANJEEV BATRA, PRESIDENT

1.                Shorn of unnecessary details, the facts of the complaint are that the complainant is running business for earning his livelihood under name and style of Maha Laxmi Petroleum. The complainant, for use of his firm, purchased one vehicle make Bharat Benz bearing registration No.PB-10-FF-2978, which was got insured  from the OPs vide policy No.2010003117P106786459 w.e.f. 11.08.2017 to 10.08.2018. The complainant stated that on 25.05.2018, Sanjeev Kumar, the driver of the vehicle was coming from Raikot Highway where the vehicle met with an accident. According to the complainant, there was no third party loss or third party damage nor any major injury was caused to any person. The claim was lodged with the OPs by the complainant along with required documents, upon which surveyor was appointed by the OPs who inspected the spot and the vehicle. The complainant got repaired the vehicle from Bharat Benz who issued bill of Rs.5,09,062/-  of the vehicle and the OPs were liable to pay the said amount spent on accidental loss of the vehicle. The complainant further stated that he approached the OPs with request to make the payment of claim amount as he has got repaired the vehicle from his own pocket but the respondent lingered on the matter on one pretext or the other. However, on 01.10.2019, the OPs repudiated the claim of the complainant on flimsy ground that the vehicle was insured as GCV Private Carrier and the permit of the vehicle was for goods carriage permit for Hire or Reward i.e. for public carrier. The complainant submitted his reply that  the vehicle was never used as goods carriage permit for Hire or Reward rather the same was used by the complainant for his own use. Even the OPs raised a false plea that the driver Sanjeev Kumar was not having valid driving license whereas the complainant supplied driving license of Sanjeev Kumar with the OPs along with other documents. This act of the OPs amounts to deficiency in service due to which the complainant claimed to have suffered mental harassment, pain and agony for which he is entitled for compensation. In the end, the complainant has prayed for issuing directions to the OPs to pay a sum of Rs.5,09,062/- along with compensation of Rs.1,00,000/- and litigation expenses of Rs.33,000/-.

2.                Upon notice, the OPs appeared and filed written statement by taking preliminary objections that the complaint is not maintainable; the complainant is estopped by his own act and conduct; the complainant has not come with clean hands; suppression of material facts; lack of jurisdiction etc. The OPs stated that immediately on receipt of the intimation regarding the loss to vehicle No.PB-10-FF-2978 dated 24.05.2018, the claim was duly registered, entertained and processed. The complainant has got his Oil Tanker - HGV No.PB-10-FF-2978 insured vide GCV Private Carrier other than 3-wheeler Package policy bearing No.2010003117P10686459 valid from 11.08.2017 to 10.08.2018.  According to the OPs, the complainant did not approached them for spot survey after the accident nor the complainant lodged any FIR/DDR regarding accident and shifted the vehicle from the spot of his own.

                   The OPs further stated that they deputed M/s U.P.S. Sachdeva & Co., an IRDA approved and licensed surveyor was appointed as Surveyor and Loss Assessors to assess the loss who personally inspected the vehicle, took the photographs and the documents and thereafter, prepared his report dated 12.07.2018 and submitted the same with the OPs. The said surveyor also submitted his interim report dated 31.08.2018 with the OPs after inspecting the vehicle on 29.05.2018.

                   The OPs further stated that they appointed Sh. Amar Nath Taneja (Surveyors, Loss Assessors & Investigator) to submit the report regarding the verification of hazardous goods vehicle certificate No.08170 issued by M/s. Om Sai Motor Driving Training School-Sector 10, Noida-201301. The said surveyor got verified the said certificate from Om Sai Motor Driving Training School vide their report dated 04.10.2018 to the said surveyor who thereafter, prepared his report dated 07.10.2018 submitted the same with the OPs stating that this certificate relates to Mr. Sanjeev Kumar son of Shri Nand Lal.

                   The OPs further averred that they appointed the said surveyor Sh. Amar Nath Taneja to verify the genuineness and validity of driving license No.PB0820110218026 with previous driving license No.R-32567/11 purported to have been issued/renewed by RTA, Jalandhar, renewed by RLA, Dehra, District Kangra a/c Mr. Sanjeev Kumar son of Shri Nand Lal in respect to vehicle No.PB-10-FF-2978. The said surveyor had after obtaining the report from RLA, Dehra, District Kangra (HP) had prepared his report dated 07.03.2018 and submitted the same with the OPs stating therein that D/L is not valid for hazard goods please. The said surveyor also verified that permit No.48359/PB-11/GV/2015 a/c vehicle No.PB-10-FF-2978 a/c M/s. Maha Laxmi Petroleum, Prop. Shri Bharat Bhushan by moving an application with RTA, Patiala who after due verification of the records submitted their report on the application moved by the surveyor stating that "Returned in original with the remarks that vehicle No.PB-10-FF-2978 covered with permit No.48359/GV/2015 in the name of M/s Maha Laxmi Petroleum Prop. Bharat Bhushan, Sherpur Kalan, Focal Point, Ludhiana which is valid up till 26.8.2020 as per office record." After the receipt of the report, the said surveyor prepared his report dated 13.08.2018 and submitted the same with the OPs.

                   The OPs further stated that the said surveyor Sh. Amar Nath Taneja was also appointed for verification of fitness of vehicle No.PB-10-FF-2978, who moved an application with District Transport Officer/MVI, Ludhiana for verification of the permit of the aforesaid vehicle. The Motor Vehicle Inspector, Ludhiana after due verification of the record submitted its report on, upon receipt of which, the surveyor prepared his report dated 03.08.2018 and submitted the same with the OPs. Sh. Amar Nath Taneja was further appointed as investigator to investigate the own damage of petrol tanker No.PB-10-FF-2978 a/c Maha Laxmi Petroleum, who made investigation and prepared his report dated 19.01.2019 clearly stating that the proprietor of M/s. Maha Laxmi Petroleum had not cooperated the investigator in conducting the investigation as they have failed to send the replies to the questionnaires sent by the investigator through speed post. The investigator had further stated in his investigation report that he suspected the change of driver and conductor. The OPs further stated that they vide letter dated 13.09.2018 called upon the complainant to show cause within 7 days from the receipt of the letter why your claim be not closed as no claim under the terms and conditions of the policy under Limitation as to Use and Driver's Clause as per the observations of the OPs after going through the observations in the claim file:

• The vehicle has been insured as GVC Private Carrier.
• The permit submitted by you is for goods carriage permit for hire and reward i.e. for public carrier.
• The training certificate for hazardous goods issued by M/s. Om Sai Driving School, Sector 10, Noida has not been got endorsed by the driver concerned from RLAS, Dehra (Kangra) H.P.

The complainant sent the unsatisfactory reply to the queries raised by the investigator directly to the OPs but the complainant did not sent any reply to the show cause notice dated 14.03.2019 till date.

                   The Ops further stated that after receipt of the reports of M/s. UPS Sachdeva & Co. and Sh.Amar Nath Taneja and unsatisfactory reply to the queries raised by the investigator and after scrutinizing the documents placed in the claim file and after due application of mind by the officials of the OPs,  the claim of the complainant was repudiated as no claim vide letter dated 01.10.2019 on the grounds that the vehicle in question was not having a valid permit, driver Sanjeev Kumar was not having valid and effective driving license and that no spot survey of the loss was conducted as the vehicle was shifted from the spot and no chance for spot inspection was given to the insurance company and no FIR/DDR regarding accident was lodged. According to the OPs, the claim of the complainant has been rightly repudiated as no claim on the legal and valid grounds.

                   On merits, the OPs reiterated the crux of averments made in the preliminary objections. The OPs have denied that there is any deficiency of service and have also prayed for dismissal of the complaint.

3.                In support of his claim, Sh. Bharat Bhushan, Proprietor of the complainant firm tendered his affidavit Ex. CA in which he reiterated the allegations and the claim of compensation as stated in the complaint. The complainant also tendered documents Ex. C1 is the copy of insurance certificate, Ex. C2 is the copy of report dated 31.05.2018 of U.P.S. Sachdeva, Ex. C3 is the copy of letter dated 14.01.2019 of the OPs, Ex. C4 is the copy of final investigation report dated 19.01.2019 of Amar Nath Taneja, Ex. C5 is the copy of letter dated 11.05.2019 of the complainant, Ex. C6 is the copy of affidavit of Sanjeev Kumar, Ex. C7 is the copy of certificate of Safe Transportation of Hazardous Goods, Ex. C8 is the copy of driving license of Sanjeev Kumar, Ex. C9 is the copy of Aadhar Card of Sanjeev Kumar, Ex. C10 is the copy of affidavit of Suman Kumar, Ex. C11 is the copy of Aadhar Card of Suman Kumar, Ex. C12 is the copy of repudiation letter dated 01.10.2019, Ex. C13 is the copy of tax invoice dated 14.06.2018 of repair of the vehicle and closed the evidence.

4.                On the other hand, the counsel for the OPs tendered affidavit Ex. RA of Sh. Inderjit Singh, Divisional Manager of United India Insurance co. Ltd., Dholewal Chowk branch, Ludhiana  as well as affidavit Ex. RB of Sh. U.P.S. Sachdeva, Surveyor and Loss Assessor along with documents Ex. R1 to Ex. R81 and closed the evidence.

5.                We have heard the arguments of the counsel for the parties and also gone through the complaint, affidavit and annexed documents and written reply along with affidavit and documents produced on record by both the parties.      

6.                The vehicle Bharat Benz a heavy goods carrier bearing registration No.PB10-FF-2978 (Ex. R49) was insured with the OPs vide policy Ex. C1 = Ex. R80 at the time of the accident on 25.05.2018. As per version of the complainant, it was driven by Sh. Sanjeev Kumar son of Sh. Nand Lal, a holder of valid driving license Ex. C8 = Ex. R3 (Extract of driving license Ex. R35). The vehicle was damaged in the accident, regarding which the claim was lodged with the OPs vide Motor Claim Form-Commercial Vehicle Ex. R47 (Ex. R54). The OPs deputed U.P.S. Sadchdeva of U.P.S. Sachdeva & Co. Surveyors, Loss Assessors and Valuers to conduct the spot survey, who took photographs of the accidental vehicle, inspected the vehicle and estimated the loss of Rs.4,42,000.50/- vide his report Ex. R53 dated 12.07.2018. The OPs and also availed services of Sh. Amar Nath Taneja, Surveyor and Loss Assessor to verify the hazardous goods vehicle certificate No.08170, to verify the genuineness and validity of driving license of Sanjeev Kumar, permit of the vehicle, fitness certificate of the vehicle, who found the same genuine and submitted his report Ex. R30, Ex. R34,  Ex. R38, Ex. R40 respectively. However, Sh. Amar Nath Taneja vide his letters dated 19.10.2018 (Ex. R27) and 25.09.2018 (Ex. R28) asked the complainant to submit certain documents and queries relating to the accident in question but as per the said surveyor, the complainant did not submit any  reply to the queries raised through these letters.

7.                Further the OPs deputed Vinod Kumar & Associates to reinspection of the vehicle, who vide his report dated 24.05.2018 Ex. R43 made the following remarks:-

“The labour charges as allowed in the final survey report were also checked and it was found that all the repairs as allowed in the assessment has been carried out and the vehicle is in perfect roadworthy condition now. Some necessary photographs were arranged during the course of reinspection for the claim records.”

After scrutiny of the reports of the surveyors, the officials of the OPs repudiated the claim vide letter dated 01.10.2019 Ex. C12 = Ex. R1, the operative part of which is reproduced as under:-

“Please refer to your claim intimation email dated 25.05.2018 sent through M/s. Globe regarding the loss to the above said Truck in a road accident occurred on 24.05.2018 at Raikot Highway. It has been noted that during the course of final survey you had not given complete documents pertaining to the claim and also submitted blank claim form to the Final Surveyor without mentioning therein particulars about occurrence of loss. The claim form has been provided to the Insurance Company after the receipt of Final Survey Report by the Company. We have gone through the claim file and papers submitted by you and it has been observed that your claim is not payable on the following grounds:-

1.The insured oil tanker No.PB-10FF-2978 has been insured as GCV Private Carrier other than 3 wheeler Package Policy and the route permit submitted by you is for Goods Carriage Permit for Hire & Reward i.e. the Route Permit was valid for public carrier. Therefore, the vehicle in question was being used for the purpose other than the insured. You have violated the terms & condition of the policy limitation as to use which specified that "The policy covers use only under a permit within the meaning of Motor Vehicles Act, 1988 or such a carriage falling under Sub Section 3 of Section 66 of the Motor Vehicle Act, 1988."

2. It has been observed that Shri Sanjeev Kumar S/o. Shri Nand Lal, who alleged to be driving the vehicle, was holding driving license for LMV - Transport, Transport, LMV only at the time of accident in question and his driving license was not endorsed to drive the Oil Tanker carrying hazardous goods / petroleum oil. The vehicle is meant for carriage of Petroleum productions and therefore, the driver was not authorized to drive the oil tanker. The driving license held by the driver was not endorsed for authorization for carrying of hazardous goods. The training certificate for hazardous goods issued by M/s. Om Sai Driving School, Sector 10, Noida has not been got endorsed by the driver from the Regional Licensing Authority, Dehra (Kangra) HP or any other Licensing Authority authorized to endorse the driving license for carriage of hazardous goods. Section 142 (2) of Motor Vehicle Act envisage that the driver should have a valid driving license to drive a transport vehicle carrying goods of dangerous or hazardous nature which be effective for a period of one year and the renewal thereof shall be subject to the condition that the driver undergoes one day refresher course of the prescribed syllabus. Therefore, as per section 14(2) of the Motor Vehicle Act an endorsement is required to drive hazardous goods vehicle and certificate is required only for renewal of the driving license. In the present case the driver was not authorized to drive the Oil Tanker carrying hazardous petroleum products and driving license was not endorsed for carrying hazardous goods. Therefore, it is clear that the driver Sanjeev Kumar was not holding effective and valid driving license at the time of loss/accident. The claim is, therefore, not payable as per the terms & conditions of policy i.e. persons or classes of persons entitled to drive "Any person including insured provided that a person holds an effective driving license at the time of accident and is not disqualified from holding or obtaining such a license".

3. The accident in question took place at Raikot Highway and you did not approach the insurance company for conducting spot survey of the loss. Further you had also not lodged any FIR / DDR in respect of the accident in question. You at your own shifted the vehicle from the spot and have not given any chance to the insurance company to verify the circumstances/cause of loss. Further, the insurance company had also lost its right to investigate the case to ascertain whether any third party injury/death or property damage loss was involved in the accident.

Keeping in view the above said violations of terms & conditions of the policy, the claim is not payable and is field as No Claim and same is repudiated and this information is hereby given to you absolving our liability.”

 

8.                In this case, the claim of the complainant has been rejected by the OPs on the ground of violating terms and conditions of the policy as the vehicle was used for the purpose other than the insured; driver Sanjeev Kumar was holding driving license for LMV - Transport, Transport, LMV only at the time of accident and the same was not endorsed to drive the Oil Tanker carrying hazardous goods/petroleum oil; no FIR/DDR was lodged regarding the accident.

The counsel for the complainant contended that at the time of accident, the vehicle was empty at the time of the accident, which was duly verified by the OPs through their surveyor vide report Ex. R43. Even the surveyor found the certificate Ex. C7 = Ex. R32  being related to Sanjeev Kumar S/o. Nand Lal. When the genuineness and issuance of the certificate Ex. C7 = Ex. R32 is found to be genuine and correct then objection of the OPs regarding having no endorsement of the driver on the same is not justified. Further the vehicle was empty at the time of accident and the driving of the vehicle was having an effective and valid driving licence to drive such like vehicles. The unladen weight of the vehicle in question as per RC Ex. R49 is 7180 KG and the copy of driving licence Ex. R8 as sell as extract of driving licence Ex. R35 shows the holder of driving licence is authorized to drive the LMV, Transport and LMV-TR vehicles. Meaning thereby the driver was duly competent to drive the vehicle in question. Thus, the OPs have wrongly repudiated the claim of the complainant. These contentions have been refuted by the counsel for the OPs by stating that the claim of the complainant has been rightly on the grounds mentioned in repudiation letter dated 01.10.2019 Ex. R1.

9.                Recently, the Hon’ble Supreme Court of India in Civil Appeal No.4758 of 2023 title as Ashok Kumar Vs New India Assurance Co. Ltd. decided on July 31, 2023 while relying the judgments in National Insurance Company Limited Vs Nitin Khandelwal (2008) 11 SCC 259 and Amalendu Sahoo Vs Oriental Insurance Company Limited (2010) 4 SCC (536) has held that even if there was breach of any clause in the insurance policy, the claim could not have been repudiated in toto and the claim should have been settled on non-standard basis. The Hon’ble Supreme Court made the following observations in Para No.15, 18 and 19 of the said Civil Appeal No.4758 of 2023:-

18) In Amalendu Sahoo (supra), this Court noticed the guidelines issued by the New India Assurance Co. Ltd. in settling claims on non-standard basis. The guidelines read as under:-

Sl. No.	Description	Percentage of settlement
(i)	Under declaration of licensed carrying capacity.	Deduct 3 years' difference in premium from the amount of claim or deduct 25% of claim amount, whichever is higher.
(ii)	Overloading of vehicles beyond licensed carrying capacity.	Pay claims not exceeding 75% of admissible claim.
(iii)	Any other breach of warranty/condition of policy including limitation as to use.	Pay up to 75% of admissible claim."

The above guidelines were followed by this Court in Amalendu Sahoo (supra) as is clear from para 14 of the said judgment. The District Forum and the State Commission have rightly applied Amalendu Sahoo (supra) to the facts of the present case and awarded 75% on non-standard basis.

19) Nitin Khandelwal (supra) and Amalendu Sahoo (supra) lay down the correct formula that where there is some contributory factor, a proportionate deduction from the assured amount would be all that the Insurance Company can aspire to deduct.

We are inclined to accept the plea of the appellant that in the case at hand, on the facts governing the scenario, Clause (iii) of the table set out in para 14 of Amalendu Sahoo (supra) is attracted and the District Forum and the State Commission were justified in awarding the entire 75% of the admissible claim.”

10.              It is not disputed that in this case after the receipt of the claim, a surveyor Sh. U.P.S. Sachdeva was appointed by the OPs who vide his Motor Final Surveyor Report dated 12.07.2018 Ex. R53 assessed the loss at Rs.4,42,000.50. The report Ex. R53 has not been challenged by the complainant on any ground nor any evidence has been led by the complainant to prove that the report is faulty for some reason or the other. So by applying the ratio of the above cited cases, it would be just and appropriate if the claim of the complainant is allowed to the extent of 75% of the amount of Rs.4,42,000/- as assessed by the surveyor in survey report Ex. R53 on non-standard basis.

11.              As a result of above discussion, the complaint is partly allowed with direction to the OPs to reimburse the insurance claim of the complainant to the extent of 75% of the of Rs.4,42,000/- as assessed by the surveyor in survey report Ex. R53 on non-standard basis, within 30 days from the date of receipt of copy of order, failing which the complainant shall be held entitled to interest @8% per annum from the date of order till date of its actual payment. However, there shall be no order as to costs. Copies of the order be supplied to the parties free of costs as per rules. File be indexed and consigned to record room.

12.              Due to huge pendency of cases, the complaint could not be decided within statutory period.

 

(Monika Bhagat)                    (Sanjeev Batra)                      Member                                  President   

 

Announced in Open Commission.

Dated:16.07.2024.

Gobind Ram.