Punjab

Ludhiana

CC/20/151

Davinder Singh - Complainant(s)

Versus

United India Insurance Company Limited - Opp.Party(s)

G.S.Sandhar

06 Jun 2024

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, LUDHIANA.

                                                Complaint No:  151 dated 20.08.2020.                                                       Date of decision: 06.06.2024. 

 

Davinder Singh aged about 42 yrs S/o. Charan Singh, R/o. Village Lubangarh, Tehsil Samrala, Distt. Ludhiana. Mob. 98153-00964.

                                                                                      ..…Complainant

                                                Versus

1. United India Insurance Company Ltd., branch office G.T. Road, Khanna through Branch Manager.
2. United India Insurance Company Ltd., Divisional Office, Feroze Gandhi Market, Ludhiana-141001.                                                                                                                                                …..Opposite parties 

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

QUORUM:

SH. SANJEEV BATRA, PRESIDENT

MS. MONIKA BHAGAT, MEMBER

 

COUNSEL FOR THE PARTIES:

For complainant             :         Sh. G.S. Sandher, Advocate.

For OPs                          :         Sh. Rajneesh Lakhanpal, Advocate.

 

ORDER

PER SANJEEV BATRA, PRESIDENT

1.                Shorn of unnecessary details, the facts of the case are that the complainant for earning livelihood for himself and his family members, in August 2018, he purchased vehicle Tata LPK 2518 bearing No.PB-10GX-2295 for supply of sand on labour/fare basis in the market. The complainant availed insurance policy from the OPs for covering his vehicle vide policy No.2006033119P102717660 having validity from 11.06.2019 to 10.06.2020 against premium of Rs.58,762/-. The said vehicle was registered with office of Vehicle Registering Authority, Ludhiana and also got fitness certificate valid up to 22.07.2020. The complainant also obtained goods permit having validity from 21.08.2018 to 20.08.2023. The complainant further stated that he regularly hired services of the OPs since date of purchase of vehicle. Unfortunately on 05.10.2019 at about 08.30 AM, the said vehicle met with a road side accident at Village Barisian Rahon, Distt. SBS Nagar (Nawanshahr). The vehicle was being driven by driver Major Singh S/o. Dalip Singh who was holding a valid driving license when he was going to unload the sand having 500cft (net weight 7500 Kg) weight, which was loaded from JBB Suppliers on 05.10.2019 vide GR invoice No.906. The complainant immediately informed OP1 regarding accident, upon which OP1 sent Surveyor Navjot Singh, who took photographs of the accidental vehicle, inspected the vehicle and estimated the loss of Rs.12,65,982/-. As per directions of the OPs, the complainant got repaired the vehicle from authorized workshop of Tata Motors i.e. Dashmesh Automobiles, Village Balion, Tehsil Samrala, District Ludhiana who charged Rs.7,83,881/- vide invoice dated 02.12.2019. Beside that the complainant also paid some amount to Sangat Auto Spares, Ludhiana and Auto Electric Works, Machhiwara for repair of the vehicle i.e. Rs.3456/- and Rs.2100- respectively. The complainant further stated that he submitted claim with the OPs and the OPs appointed Mr. A.S. Kapoor to survey the repair charges bill and submitted his report in which he found that the repair carried on the vehicle is in accordance with those allowed by us in our captioned survey report vide report dated 12.12.2019. The complainant provided all the documents to the OPs for assessment of his claim but the OPs repudiated the claim on 28.02.2020 on the basis of allegation of overloading the vehicle. According to the complainant, the vehicle was under permissible load at the time of accident and even Jagroop Singh, the surveyor and loss assessor of the OPs submitted verification report regarding the load of the vehicle who has not mentioned a single word in his report regarding overloading of the vehicle in question. The complainant further stated that the OPs are liable to pay the entire repair expenses and to pay the loss amount to him. However, the OPs did not inform the complainant regarding fate of his case for which the complainant filed RTI with OP2 seeking information regarding fate of his case and OP2 supplied the information regarding repudiation of his claim vide letter dated 19.03.2020. Due to rejection of his claim on the illegal grounds, the complainant has suffered mental pain, agony, monetary loss which amounts to deficiency in service on the part of the OPs. In the end, the complainant has prayed for issuing directions to the OPs to pay the claim amount of Rs.7,89,437/-  along with compensation of Rs.2,00,000/- as well as litigation expenses of Rs.30,000/-.

2.                Upon notice, the OPs appeared and filed written statement and assailed by complaint by taking preliminary objections on the grounds of maintainability; suppression of material facts; the complainant being stopped by its own act and conduct etc. The OPs stated that the claim of the complainant was repudiated after giving due consideration to all the relevant facts, aspects, terms and conditions of the insurance policy as well as circulars issued by the Head Office from time to time. The OPs further stated that during the scrutiny and processing the claim file, the DCC called the clarification from the Surveyor Sh. A.S. Kapoor and after receiving the clarification, it was confirmed that the vehicle bearing No.PB-10GX-2295 was overloaded at the time of accident. As per circular HO:MOT:OD:CIR:02-18 dated 22.06.2018, the OPs could only given the relaxation of 10% overloading but not exceeding 15% but 500 CFT sand was exceeding the permissible weight, which comes to 22653.90 KG as confirmed by the surveyor whereas the permissible laden weight of the vehicle was 13857 KG and GVW of the vehicle is 25000 KG, therefore, the weight carried at the time of accident was more than 15% of the GVW which is clear cut violation of the said circular which resulted in repudiation of claim of Rs.5,75,000/- assessed  by the surveyor AS. Kapoor being let loss vide his report dated 12.12.2019 submitted with the OPs.

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

3.                In evidence, the complainant tendered his affidavit as Ex. PA and reiterated the averments of the complaint. The complainant also placed on record documents Ex. P1 is the copy of insurance policy w.e.f. 11.06.2019 to 10.06.2020, Ex. P2 is the copy of claim form, Ex. P3 is the copy of RC, Ex P4 is the copy of Vehicle Registration Status, Ex. P5 and OP6 are the copies of  verification report of RC and Fitness permit by Ravish Talwar, Ex. P7 is the copy of Goods Permit, Ex. P8 the copy verification of permit by Ravish Talwar, Ex. P9 is the copy of survey fee bill of Ravish Talwar, Ex. P10 is the copy of Tax Receipt of Transport Department, Ludhiana, Ex. P11 is the copy of driving license of Majar Singh,  Ex. P12 is the copy of Email dated 23.12.2019, Ex. P13 is the copy of Extract of Driving License of Majar Singh, Ex. P14 is the copy of tax invoice dated 02.12.2019 of Dashmesh Automobiles, Ex. P15 to Ex. P18, Ex. P33, Ex. P34 are the copies of bills/invoices, Ex. P19 is the copy of Survey Report (Re-inspection) dated 12.12.2019 of A.S. Kapoor, Surveyor, Ex. P20 to Ex.P26 are the photographs of accidental vehicle, Ex. P27 is the copy of Final Survey Report dated 12.12.2019, Ex. P28 is the copy of Details of Assessment dated 12.12.2019, Ex. P29 is the copy of Email dated 10.07.2019, Ex. P30 is the copy of Survey Charges Bill dated 12.12.2019, Ex. P31 is the copy of Survey Charges Bill (Re-Inspection) dated 12.12.2019, Ex. P32 is the copy of verification of GR No.906 dated 05.10.2019 of vehicle  by Jagroop Singh, Surveyor, Ex. P35 is the copy of Fee Bill dated 17.01.2020 of Jagroop Singh Surveyor, Ex. P36 is the copy of surveyor Navjot Singh, Ex. P37 is the copy of cancelled cheque, Ex. P38 is the copy of Certificate under Section 64 VB of Insurance Act, Ex. P39 is the copy of letter dated 30.01.2020 of the OPs, Ex. P40 is the copy of claim note, Ex. P41 is the copy of Miscellaneous Collection cum Invoice dated 11.03.2020, Ex. P42 is the copy of repudiation letter dated 28.02.2020, Ex. P43 is the copy of letter dated 17.02.2020 of the OPs regarding repudiation of claim, Ex. P44 is the copy of repudiation letter dated 28.02.2020, Ex. P45 is the copy of reply to RTI application, Ex. P46 is the copy of Aadhar Card of the complainant and closed the evidence.

4.                On the other hand, the counsel for the OPs tendered affidavit  Ex. RA of Ms. Lipi Moitra, Assistant Manager of the OPs along with documents Ex. R1 is the copy of Email dated 07.10.2019, Ex. R2 and Ex. R3 are the copies of bills/invoices, Ex. R4 is the copy of Motor Claim Intimation, Ex. R5 is the copy of Motor Claim Form-Commercial Vehicle, Ex. R6 and Ex. R7 is the copy of Motor Survey Report-Spot dated 06.10.2019, Ex. R8 and Ex. R9 is the copy of Goods  Permit, Ex. R10 is the copy of verification of RC by Ravish Talwar, Ex. R11 is the copy of verification of RC book of vehicle by Ravish Talwar, Ex. R12 is the copy of RC of the vehicle, Ex. R13 is the copy of decision of DCC dated 17.02.2020, Ex. R14 is the copy of Final Survey Report of A.S. Kapoor dated 12.12.2019, Ex. R15 is the copy of verification of GR of vehicle by Jagroop Singh, Ex. R16 is the copy of Email dated 11.02.2020, Ex. R17 is the copy of repudiation letter dated 28.02.2020 and closed the evidence. 

                   During the proceedings, the OPs filed application for leading additional evidence, which was allowed vide order dated 20.10.2023. The OPs tendered affidavit Ex. RB of Er. Avtar Singh Kapoor, Surveyor and Loss Assessor, Ludhiana along with documents Ex. R18 is the copy of insurance policy, Ex. R19 is the copy of Endorsement Schedule of the policy, Ex. R20 is the copy of Terms and Conditions of Commercial Vehicle Package Policy, Ex. R21 is the copy of policy certificate cum schedule cum receipt, Ex. R22 is the copy of guidelines related to overloading of goods carrying vehicles issued by the OPs and closed additional 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 statement along with affidavit and documents produced on record by both the parties.                 

6.                The vehicle Tata LPK 2518 CR BS-IV HD goods carrying vehicle bearing registration No.PB-10GX-2295 (Ex. P3 = Ex. R12) which was comprehensively insured with the OPs vide policy Ex. P1 = Ex. R18 at the time of the accident on 05.10.2019 near village Barisian Rahon, Distt. SBS Nagar (Nawanshahr). As per version of the complainant, it was driven by Sh. Driver Majar Singh S/o. Dalip Singh, a holder of valid driving licence (extract of driving licenceEx. P13). At the time of accident the vehicle was loaded with 500 cft (net weight 7500 Kg) sand loaded by JBB Suppliers vide GR invoice No.906 dated 05.10.2019. The vehicle was damaged in the accident, regarding which the claim was lodged with the OPs vide claim form Ex. R5. The opposite parties deputed Navjot Singh, Surveyor to conduct the spot survey, who took photographs of the accidental vehicle, inspected the vehicle and estimated the loss of Rs.12,65,982/- vide his report Ex. R4 dated 09.10.2019. The OPs and also availed services of Sh. Ravish Talwar, Surveyor and Loss Assessor to verify the registration certificate of the vehicle, permit of the vehicle, verification of registration book of the vehicle who found the same genuine and submitted his report Ex. P5, Ex. P8 respectively. Further Sh. Ravish Talwar vide Motor Survey Report-Spot dated 06.10.2019 Ex. R6 found the genuineness of the accident and damage to the vehicle as correct. The OPs also deputed Sh. Jagroop Singh, Surveyor and Loss Assessor for verification of GR of vehicle who verified the same vide his report Ex. P32.

7.                The OPs deputed Sh. A.S. Kapoor, Surveyor & Assessor, Valuer and Investigator for re-inspection of the vehicle, who submitted his Motor Surveyor Report (Final) dated 12.12.2019 Ex. P27 = Ex. R14. Sh. A.S. Kapoor assessed net loss to be Rs.5,75,000/-. After scrutiny of the reports of the surveyors, the OPs put the matter before their DCC who passed its decision dated 17.02.2020 Ex. R13, the operative part of which is reproduced as under:-

“On going through the file DCC observed and that the said vehicle involved in this accident was overloaded at the time of accident. DCC called the clarification from the Shri A.S. Kapoor surveyor after receiving the clarification from the surveyor DCC confirmed that the vehicle was overloaded at the time of accident. As per our circular HO:MOT:OD:CIR:02-18 dated 22/06/2018 we can give the relaxation up to overloading 10% but not exceeding 15% (deducted 25% of the admissible claim amount but 500 CFT sand was exceeding the permissible weight and it comes to 22653.90KG as confirmed by the surveyor, however, the permissible laden weight of the vehicle is 13857 Kgs. And GVW of the vehicle is 25000 KG, therefore the weight carried is more than 15% of GVW hence violation of the said circular.

Keeping in view of the facts of overloading claim is hereby repudiated by the DCC members with advised to BO to inform the insured accordingly through Regd. Letter under intimation to us.”

 

Complying the decision of DCC Ex. R13, the OPs repudiated the claim of the complainant vide repudiation letter dated 28.02.2020 Ex. P44 = Ex. R17, the operative part of which reads as under:-

“On the basis of documentary verification, it has been established that your vehicle was overloaded at the time of accident. As per our company guidelines, we can give relaxation of overloading up to 10% but not exceeding 15% by deducting 25% of the admissible claim amount. You vehicle was loaded with 500 cft sand, thus exceeding the permissible weight and it works out to 22653.90kg as confirmed by the surveyor whereas the permissible laden weight of the vehicle is 13857 kg and GVW of the vehicle is 25000, therefore the weight carried is more than 15% of the GVW of the vehicle.

In view of the above, your claim stands REPUDIATED by the competent authority and we absolve ourselves from any future liabilities, arising out of this claim, which please note.”

 

8.                In this case, the claim of the complainant has been rejected by the OPs on the ground of overloading of the vehicle at the time of accident. The counsel for the complainant contended that at the time of accident, the vehicle was loaded with 500 cft sand vide GR No.906 dated 05.10.2019, which was duly verified by the OPs through their surveyor vide report Ex. P32 = Ex. R15 and found the weight of the sand to be 7500 Kg. 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 repudiated keeping in view the circular Ex. R22. He also produced weight calculation of sand derived from internet and stated that the complainant is not entitled to any claim due to violation of rules.

9.                The main reason of repudiation of the claim of the complainant is that the vehicle was overloaded at the time of accident. 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. A.S. Kapoor was appointed by the OPs who vide his Motor Surveyor Report (Final) dated 12.12.2019 Ex. P27 = Ex. R14 assessed the loss at Rs.5,75,000/- The report Ex.P27 = Ex. R14 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.5,75,000/- as assessed by the surveyor in survey report Ex.P27 = Ex. R14 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.5,75,000/- as assessed by the surveyor in survey report Ex.P27 = Ex. R14 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:06.06.2024.

Gobind Ram.