Punjab

Faridkot

CC/18/127

Satpal Dhingra - Complainant(s)

Versus

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

Anil Kumar Chawla

09 Apr 2019

ORDER

 DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, FARIDKOT

 

C. C. No. :             127 of 2018

Date of Institution:   31.07.2018

Date of Decision :       9.04.2019

 

1. Sat Pal Dhingra  aged about 77 years, son of Sunder Singh, r/o Labhu Ram Street, Kotkapura, Tehsil Kotkapura, District Faridkot.
2. Anju Bala wife of Kulbhushan Kataria resident of House No.20/21, Street No. 7, Ferozepur Cantt.

...Complainant

Versus

United India Insurance Company Ltd B.O. Giani Zail Singh Market, Kotkapura, through its Branch Manager.

.....Opposite Party

Complaint under Section 12 of the

Consumer Protection Act, 1986.

 

Quorum: Sh. Ajit Aggarwal, President,

               Smt Param Pal Kaur, Member.

 

Present: Sh Anil Chawla, Ld Counsel for Complainant,

              Sh Sandeep Sharma, Ld Counsel for OPs.

 

ORDER

(Ajit Aggarwal, President)

                                                            Complainant has filed the present complaint under Section 12 of the Consumer Protection Act, 1986 against OPs seeking directions to OPs to make payment of insurance claim on account of death of owner/driver of the car in accident and for

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further directing OPs to pay Rs.2,00,000/- as compensation for deficiency in service, harassment, inconvenience, mental agony alongwith litigation expenses of Rs.20,000/-.

2                                    Briefly stated, the case of the complainant is that Barjinder Kumar Dhingra was the owner of car bearing no.PB04W-2570 which was duly insured with OP vide policy no.20122023116P104257539 effective from 8.07.2016 to 7.07.2017 for Rs.5,02,430/- for car and insurance of driver. It is submitted that on 1.06.2017, said Barjinder Kumar was coming from Faridkot to Kotkapura on his car, but suddenly car got out of control and fell into Sirhind Feeder due to which car was fully damaged and said Barjinder Kumar died by drowning. DDR to this effect was got recorded on 2.06.2017 in Police Station City Kotkapura and OPs were also duly informed about said incident. Thereafter, complainants completed all the formalities and submitted requisite documents to OPs for processing the claim on account of death of Barjinder Singh, but OPs repudiated the claim of complainants vide letter dated 16.03.2018 on false ground that RC and Driving License are not produced by complainants. It is further submitted that complainants approached OPs and submitted that RC and driving license have been lost in said accident in canal, but OP did not pay any heed to their genuine  requests and refused to consider their claim. All this amounts to deficiency in service and has caused great harassment and mental agony to them for which they have prayed for

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seeking directions to OP to make payment of genuine insurance claim alongwith compensation for harassment and for litigation expenses besides the main relief. Hence, the present complaint.

3                                              The counsel for complainant was heard with regard to admission of the complaint and vide order dated 1.08.2018, complaint was admitted and notice was ordered to be issued to the opposite parties.

4                                               On receipt of the notice, the opposite party filed written statement taking preliminary objections that this Forum has no jurisdiction to hear and try the present complaint and there is no deficiency in service on their part. It is averred that complaint in hand is not maintainable in the present form as it involves complicated questions of law and facts and requires voluminous evidence that is not possible in summary proceedings of this Forum. It is further averred that complainant is not the consumer of answering OP. It is asserted that liability of answering OP is limited up to Rs.4,79,000/- subject to the conditions that insured would transfer the ownership of car in favour of insurance company salvage/wreckage of the car would remain with the Insurance Company. He would submit affidavit, subrogation letter and other documents in favour of Insurance Company and only after that, amount would be paid to the insured as assessed by the Surveyor. OP appointed Surveyor, who assessed the loss to the tune of Rs.4,79,000/- subject to terms and conditions of policy. He also took opinion of wreck

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value of car with registration to Rs. One lac and without registration to the tune of Rs.50,000/-. Said Surveyor gave report on 25.08.2017 and assessed loss to the tune of Rs.4,79,000/-, but complainants themselves did not fulfil the terms and conditions of the insurance policy and did not furnish the driving license of Barjinder Kumar and Registration Certificate of car. Vide letters dated 7.03.2018 and 16.03.2018, complainants were asked to provide RC of car and Driving License of Barjinder Kumar, but they neither gave reply to their letters nor supplied the requisite documents and therefore vide letter dated 23.03.2018 claim of complainants was closed as ‘No Claim’ and now, complainants are not entitled for insurance claim on account of death of owner cum driver. It is further averred that complainants have filed false and frivolous complaint and they have no locus standi to file the present complaint. However, on merits OP have denied all the allegations of complainant being wrong,  incorrect and false and it is reiterated that there is no deficiency in service on the part of answering OP.                   

5                                               Parties were given proper opportunities to prove their respective case. The complainant tendered in evidence his affidavit Ex.C-1, and documents Ex C-2 to C-10 and then, closed his evidence.

6                                               In order to rebut the evidence of the complainant, the Ld Counsel for OPs tendered in evidence affidavit of R

 

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N Bansal Ex OP-1 and documents Ex OP-2 to Ex OP-57  and then, closed the same on behalf of OPs.

7                                              The ld Counsel for complainant argued that car of Barjinder Kumar Dhingra  was duly insured with OP against policy in question effective from 8.07.2016 to 7.07.2017 for Rs.5,02,430/- for car and insurance of driver. On 1.06.2017, while coming from Faridkot to Kotkapura, car got out of control and fell into Sirhind Feeder. Car became fully damaged and owner Barjinder Kumar died by drowning. DDR to this effect was got recorded on 2.06.2017 and due intimation was given to OPs. Despite completion of all formalities and submission of requisite documents, OPs repudiated the claim of on pretext that RC and Driving License are not produced. It is submitted that RC and driving license have been lost in said accident in canal, but OPs refused to consider their claim. Grievance of the complainant is that despite repeated requests OPs did not pay any heed to listen to their genuine requests,  which amounts to deficiency in service and trade mal practice and it has caused great harassment and mental agony to him. He has prayed for accepting the complaint and stressed on documents Ex C-1 to C-10.

8                                        To controvert the arguments of ld counsel for complainant, ld counsel for OPs argued that on receipt of intimation regarding alleged accident, they appointed Surveyor, who assessed the loss to the tune of Rs.4,79,000/- subject to terms and conditions of

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policy. Opinion in respect of wreck value of car with registration to Rs. One lac and without registration to the tune of Rs.50,000/- was also taken. Said Surveyor gave report on 25.08.2017 and assessed loss to the tune of Rs.4,79,000/-, but complainants themselves did not fulfil the terms and conditions of the insurance policy and failed to furnish the driving license of Barjinder Kumar and Registration Certificate of car. Vide letters dated 7.03.2018 and 16.03.2018, complainants were asked to provide RC of car and Driving License of Barjinder Kumar, but they neither gave reply to their letters nor supplied the requisite documents and therefore vide letter dated 23.03.2018 claim of complainants was closed as ‘No Claim’ and thus, complainants are not entitled for insurance claim on account of death of owner cum driver. All the other allegations are denied being incorrect and false and reiterated that there is no deficiency in service on the part of OP. Prayer for dismissal of compliant is made.

9                                           We have heard the learned counsel for the parties and have very carefully gone through the affidavits and documents on the file.

10                                                  To prove his pleadings, ld counsel for complainant has placed on record copy of  DDR dated 2.06.2017 wherein it is clearly stated the deceased Barjinder Kumar Dhingra son of complainant died due to drowning because of falling of his car in canal . Ex C-3 and Ex C-4 are copies of letters dated 23.03.2018  and 7.03.2018

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vide which OP repudiated the claim of complainant on the ground that he did not submit requisite documents. ExC-5 is copy of policy that shows that car of Barjinder Singh was fully insured with Opposite Party. Ex C-8 is copy of driving license of Barjinder Kaumr and Ex C-9 is copy of verification of Renewal D/L  that it was valid till 1.08.2014. It is admitted case of the parties that car in question was insured with Opposite Party and Barjinder Kumar owner of the car died in said drowning accident. There is also no denial of the fact that due intimation regarding said accident was given to OP. Objection raised by opposite party is that complainants did not furnish driving license to them for processing the claim and due to failure to submit requisite document, claim of complainants was closed as no claim. Ld counsel for complainant has placed on record copy of driving license of deceased Barjinder Kumar, but from the careful perusal of same, it is clear that said driving license has not been renewed by owner of the car.

11                                   The Ld Counsel for complainant argued that Barjinder Kumar had a valid driving license and OPs have wrongly and illegally repudiated the claim of complainant on false grounds that Barjinder Kumar deceased was not having valid driving license. The copy of Driving License is ExC-8 and copy of Verification Report is Ex C-9, which is duly verified by the Investigator of Ops in a previous case and that Driving License was valid uptill 1.08.2014. The said Driving License of the Barjinder Kumar deceased was attached with a criminal case and that is why, it could not be got renewed in time by the Barjinder

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Kumar deceased.  Ld Counsel for complainant further argued that if it is presumed for the sake of arguments that deceased Barjinder Kumar owner/ driver of the vehicle was not having effective driving license at the time of accident, then, in that case also, the Insurance Company cannot repudiate the claim of complainant in toto on this ground. He placed reliance on citation : 2004 (2) RCR 114 Supreme Court of India in case titled as National Insurance Co. Ltd Vs Swaran Singh and Ors wherein Hon’ble Apex Court held that Motor Vehicle Act, 1988, Section 149 (2) (a) (ii) and proviso to Sub Sections (4) and (5)-Disqualification of driver - Validity of driving license-Insurer is entitled to raise all defence available u/s 149 (2) of the Act-However, mere absence, fake or invalid at the relevant time are not the defences available to insurer against the insured or third parties- To avoid its liability towards the insured also the insurer has to prove the insured to be guilty of negligence and failure to exercise reasonable care in compliance of conditions of Policy-Burden is on the insurer to establish breach of Policy by leading cogent evidence – Mere non production of license or evidence by the insured cannot be considered as discharge of burden of insurer. The Hon’ble Apex Court further held that Learning Driving License – Breach of policy– Disqualification of driver – Validity of learner’s driving license – Learner’s driving license is a valid driving license under the Rules – The insurer cannot take it as defence to avoid its liability. It is argued that Insurance Company has failed to prove that there is any negligence or failure to exercise any reasonable care in

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driving of the vehicle or in compliance of the conditions of the Policy and the Learning driving license is a valid driving license. He also put reliance on the citation 2010 (1) Consumer Protection Cases 653 in case titled as Amalendu Sahoo Vs Oriental Insurance Co. Ltd wherein Hon’ble Apex Court held that even where violations of the Policy is found, Insurer should pay 75% of total amount as on non standard basis. He has also placed reliance on citation 2008 (3) CPC 559 Supreme Court of India titled as National Insurance Company Ltd Vs Nitin Khandelwal, wherein Hon’ble Apex Court held that the appellant Insurance Company is liable to indemnify the owner of the vehicle when the insurer has obtained comprehensive policy for the loss caused to the insurer even assuming that there was a breach of condition of the insurance policy. The appellant Insurance Company ought to have settled the claim on non standard basis. He has also placed reliance on the citation 2006 (2) Consumer Protection Cases 33 titled as New India Assurance Company Vs Narayan Prasad Appa Prasad, wherein Hon’ble National Commission held that vehicle at the time of accident was carrying passengers more than permitted by rules – Even driver was not duly licensed – Order of authority below granting payment of full insured amount with cost and compensation cannot be sustained – Appellant directed to settle the claim on non standard basis i.e 75 % of Rs 4,32,000/- with 9% interest. They further held in para no. 4 of the judgment that not having proper valid license to drive a Maxi-cab as also carrying excess passengers than the licensed capacity are violation of the terms and conditions of the

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policy. It is for covering these contingencies that GIC has issued the guidelines for the Insurance Company for settling the claim on “non standard basis’, which is as follows:

Following types of claims shall be considered as non-standard and shall  be settled as indicated below after recording the reasons:

 

Sr No.	Description	Percentage of Settlement
1.	Under declaration of licensed carrying capacity	Deduct 3 years difference in premium from the deduct 25% of claim amount, whichever is higher.
2.	Overloading of vehicles beyond licensed carrying capacity	capacity  Pay claims not exceeding 75% of admissible claim.
3.	Any other breach of warranty/condition of policy including limitation as to use.	Pay upto 75% of admissible amount.

 

12                                         He further argued that in the light of own rules and guidelines of Insurance Companies and judgments of Higher Courts, if it is presumed that there is violation of terms and conditions of the policy then, in that case also, the Insurance Companies cannot

 

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repudiate the claim, rather it should be decided on the basis of non standard basis.

13                                                  We have thoroughly gone through file and case law produced by the complainant and from the perusal of all documents placed on record and in view of above discussion, we come to the conclusion that if it is presumed that at the time of accident, deceased owner /driver of the vehicle was not having valid driving license for driving the vehicle and it is in violation of terms and conditions of the insurance policy, then in that case also, Ops cannot repudiate the whole claim of complainant and it is to be decided on non standard basis and therefore, in the light of above facts and circumstances, complaint in hand is hereby partly allowed. Opposite Party is directed to settle the claim of complainant on non standard basis and are directed to pay Rs.3,59,250/- i.e 75% of Rs.4,79,000/- as loss assessed by the Surveyor appointed by the Insurance Company. OPs are directed to pay the claim on account of death of owner driver Barjinder Kumar in the accident as per terms of the Insurance Policy subject to transfer of Registration Certificate and other relevant documents in the name of Company. OPs are further directed to pay Rs.5,000/-to complainant as consolidated compensation for harassment and mental agony suffered by him as well as for litigation expenses. Compliance of this order be made within 30 days from the date of receipt of RC and

 

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other relevant documents in the name of OPs, failing which complainant shall be further entitled to interest at the rate of 9% per anum on award amount from the date of order till final realization. Compliance of this order must be made within prescribed period failing which complainant shall be entitled to proceed under Section 25 and 27 of the Consumer Protection Act. Copy of order be given to parties free of cost. File be consigned to record room.

Announced in Open Forum

Dated : 9.04.2019         

 

(Parampal Kaur)                      (Ajit Aggarwal)

           Member                                   President