Complaint No: 256 of 2017.
Date of Institution: 09.05.2017.
Date of order: 03.10.2023.
1. Sukhdeep Kaur widow of Gurnam Singh
2. Manpreet Kaur minor son of Gurnam Singh
3. Jobanpreet Singh minor son of Gurnam Singh
minors through her mother Sukhdeep Kaur as next friend and natural guardian.
All residents of Village Pandori, Tehsil and District Gurdaspur.
…....Complainants.
VERSUS
United India Insurance Company Limited, SCO 26-27, Sukha Singh, Mehtab Singh Chownk, Jalandhar Road, Batala.
….Opposite party.
Complaint U/S 12 of the Consumer Protection Act.
Present: For the Complainants: Sh.G.S.Pannu, Advocate.
For the Opposite Party: Sh.Pranav Sharma, Advocate.
Quorum: Sh.Lalit Mohan Dogra, President, Sh.Bhagwan Singh Matharu, Member.
ORDER
Lalit Mohan Dogra, President.
Sukhdeep Kaur etc., Complainants (here-in-after referred to as complainants) has filed this complaint under section 12 of the Consumer Protection Act, (here-in-after referred to as 'Act') against United India Insurance Co. Ltd. (here-in-after referred to as 'opposite party).
2. Briefly stated, the case of the complainant is that the husband of the complainant No.1 and father of the complainant No.2 and 3 had taken comprehensive Insurance Policy from the opposite party, who died in the motor vehicle accident on 14.06.2015 and the complainant No.1 had lodged a claim for the damage of the vehicle bearing No. PB-06-S-8483 with the opposite party hence the complainant falls under the definition of consumer. It was submitted that at the time of accident the husband of the complainant was possessing a valid driving license and was driving his own Car bearing No.PB-06-S-8483 and after the said accident the complainant has lodged a claim to the tune of Rs.4,55,996/- as duly estimated by J.S. Grover Auto private Limited Authorized dealer for Mahindra and Mahindra, Dalhousie Road, Mamoon Chownk, District Pathankot with the opposite party which was duly processes by the opposite party. It was alleged that the complainant has submitted all the documents to the opposite party as demanded by opposite party but to the utter surprise of the complainant No.1, the claim of was rejected vide notice No.PK-MP-2017/98 dated 17.04.2017 on the ground that due to violation of terms and conditions of the policy as the vehicle was used for hire and reward, whereas it was insured as private / Car. It was further alleged that the grounds taken by the opposite party is vague, false and baseless as the vehicle bearing No.PB-06-S-8483 was never used for hire and reward. It is further pleaded that there was no document with the opposite party that the vehicle bearing No.PB-06-S-8483 was used for hire and reward as Taxi at the time of alleged accident. It is further pleaded that even in the report registered in Police station Bhogpur it was nowhere mentioned that the alleged vehicle was used as Taxi at the date of alleged accident. It is further pleaded that the complainant has already suffered great loss on the account of death of her husband and moreover the complainant had also lost the love and affection and source of income of her husband. It is further pleaded that due to this illegal act and conduct of the opposite party the complainant has suffered great loss and also suffered mental agony, Physical harassment and inconvenience. It is further pleaded that there is a clear cut deficiency in service on the part of the opposite party.
On this backdrop of facts, the complainant has alleged deficiency and negligence in service and unfair trade practice on the part of the opposite party and prayed that necessary directions may kindly be issued to the opposite party to pay the amount of Rs.4,55,996/- alongwith the interest @ 9% per annum from the date of filing to the court till realization, in the interest of justice.
3. Upon notice, the opposite party appeared through counsel and contested the complaint and filing their written reply by taking the preliminary objections that the present complaint is not maintainable in the present form and the complainant had concealed and suppressed true facts from the Ld. Commission with regard to the fact that the vehicle was being used as Taxi for Hire and reward where as it was insured as a private car, thus there being breach and violation of terms and conditions of the Insurance Policy. It is further pleaded that thus the claim was found not payable to claimant was duly informed vide letter dated 17.04.2017, the same was duly received by her, but she thereafter had filed a false, frivolous, baseless & a bogus complaint, thus the complaint is not maintainable and is liable to be dismissed. It is further pleaded that the complainants are not entitled to any claim for the damages to the vehicle XYLO bearing Regd No. PB-06-S-8483 in name of Gurnam Singh (Insured) who was owner cum-Driver of the vehicle and he was himself using/plying it as a Taxi, where as it was Insured as a Private CAR and insured had obtained Policy as of private car from opposite party and as such thus there being breach & violations of the terms and conditions of the Insurance policy, thus in view of same no claim was found payable and the opposite party had rejected the claim being not payable, had rightly & validly Repudiated the claim. It is further pleaded that complaint as such is not legally sustainable and maintainable and the claim is time Barred as occurrence had taken place on 14.06.2015 when the claim was lodged with opposite party and thus complaint is Time-Barred. It was pleaded that the Car/XYLO Mahindra bearing Regd No. PB-06-S-8483 was reported to have met with an accident and own damage claim with regard to damage to the vehicle on 14.6.2015 while returning back from Delhi Airport after dropping passenger as due to short-nap of Driver Gurnam Singh (Insured) while driving the vehicle which went out of his control and struck against a Tree after hitting divider as per the DDR which was recorded on statement of one of occupants / passenger who was traveling in the vehicle at the time of occurrence on 14.6.2015. It was further pleaded that after the accident MACT claim was lodged and also (OD) claim for loss to the vehicle was also lodged with opposite party to the tune of Rs.4,55,996/- under the policy by the claimants, since the owner who was driving vehicle as Taxi had died in occurrence along with other person. It is further pleaded that it is made clear after receiving information on damage claim the company as per provisions and guide lines had conducted Spot Survey by Sh. Rajesh Soni and Surveyor for loss assessor was also carried by Er Avinash Vyas who as per his Final claim report dated 24.9.2015 had assessed loss to the tune of Rs.1,83,699/- as final claim on Cash loss basis and had also even submitted consent letter of the claimant Sukhdeep Kaur who had agreed and satisfied to
receive as Rs.1,83, 699/- as loss and agreed to claim assessed by Er Avinash Vyas. It was further pleaded that it is made clear the loss as assessed by surveyor is not final or is binding on the insurance company /opposite party but is always subject to other condition and is subject to the terms and conditions in the Insurance policy. It was further pleaded that the company had also got the matter Investigated by Investigator of Universal Detective Associates (Regd) and Investigator, Mr. Dutta had submitted his detailed report on 31.8.2015 after collecting record , documents and statements of the occupants Sh. Jarnail Singh S/o Puran Singh R/o Village Bahadur, Smt. Harminder Kaur W/o Tarlok Singh R/o Bahadur, of vehicle who were traveling as a passenger on the day of accident on 14.06.2015 and had given specific statements to investigator and even Sukhdeep Kaur had also given her own statement to the Investigator and had submitted all the record along with his report after investigation and concluding that the vehicle was being used for Hire and Reward or being used as Taxi by insured Gurnam Singh who was plying/using it as Taxi as reported by Investigator. It was further pleaded that when the claim file along with reports of surveyors and investigator mentioned above was submitted for approval to the competent authority, who after going through the entire contents of claim file and reports and report of the Investigator and keeping in view terms and conditions of Insurance Policy and after due application of mind had Repudiated the claim as the vehicle in question was being used by Insured Gurnam Singh for Hire and reward/ Taxi , there thus being breach and violation of terms and conditions of the insurance policy as such claim was found not payable and hence claim was duly and validly repudiated on 17.04.2017 vide letter PIR-MP-2017/98 and informed complainant who after receiving the letter had filed the present complaint but the same is not maintainable and liable to be dismissed.
On merits, the opposite party have reiterated their stand as taken in legal objections and denied all the averments of the complaint and there is no deficiency in services on the part of the opposite party. In the end, the opposite party prayed for dismissal of complaint with costs.
4. Learned counsel for the complainants has tendered into evidence affidavit of Sukhdeep Kaur, (Complainant No.1) as Ex.C-1 alongwith other documents as Ex.C-2 to Ex.C-8.
5. Learned counsel for the opposite party has tendered into evidence affidavit of Sh. Chattar Singh Thakur, (Senior Divisional Manager, United India Insurance Company Ltd, Pathankot) as Ex.OP-1 alongwith other documents as Ex.OP-2 to Ex.OP-17.
6. Rejoinder not filed by the complainant.
7. Written arguments not filed by both the parties.
8. Counsel for the complainants has argued that Gurnam Singh who was owner-cum-driver of the car No.PB06-S-8483 met with an accident on 14.06.2015 and claim was lodged with the opposite party regarding loss to the vehicle as assessed by J.S.Grover Auto Private Limited i.e. Rs.4,55,996/-. Complainants had submitted all the documents with the opposite party but claim was rejected by the opposite party on 17.04.2017 on the ground that vehicle was being used for hire and reward. It is further argued that failure to pay the claim amounts to deficiency in service on the part of the opposite party.
9. Counsel for the opposite party has argued that the vehicle was being used as taxi for hire and reward whereas it was insured as private car and there was breach of violation of terms and conditions of the policy of insurance and as such claim was not payable. Accordingly, there is no deficiency in service on the part of the opposite party and complaint is liable to be dismissed.
10. We have heard the Ld. counsels for the parties and gone through the record. To prove the case counsel for the complainants has placed on record affidavit of Sukhdeep Kaur complainant No.1 Ex.C1, copy of DDR Ex.C2, copy of policy of insurance Ex.C3, copy of driving licence of Gurnam Singh Ex.C4, copy of post mortem report Ex.C5, copy of repudiation letter Ex.C6, copies of estimates Ex.C7 and Ex.C8. whereas on the other hand counsel for the opposite party has placed on record affidavit of Sh.Chattar Singh Thakur Sr.Divisonal Manager Ex.OP-1, copy of spot report Ex.OP-2, copy of report of surveyor and loss assessor Ex.OP-3, copy of policy Ex.OP-5, copy of R.C. Ex.OP-6, copy of driving licence Ex.OP-7, copy of photographs Ex.OP-8, copy of report investigator Ex.OP-11 and copy of consent letter Ex.OP-16. It is admitted fact that Grunam Singh was owner-cum-driver of car No.PB06-S-8483 as per Ex.C4. It is further admitted fact that said car met with an accident on 14.06.2015 and DDR Ex.C2 was registered at Policy Station Bhogpur. It is further admitted fact that Gurnam Singh also died in the said accident while driving the said car which is also proved from copy of post mortem report Ex.C5. It is further admitted fact that claim lodged by the complainants has been repudiated by the opposite party vide letter Ex.C6 on the ground of violation of terms and conditions of the policy. The only disputed point for adjudication before this Commission is whether the repudiation by the opposite party on the ground of violation of terms and conditions was valid or not. The opposite party has repudiated the clam of the complainant by relying upon the report of investigator Ex.OP-11 as per which, it has been reported that Gurnam Singh was using the said vehicle at the time of accident as taxi and has also relied upon the statement of complainant No.1 recorded by investigator as per which it has been mentioned that deceased was carrying passengers in the car at the time of accident. We have carefully gone through the copy of DDR Ex.C2 as per which it has been mentioned that the Mahindra XYLO No. PB06-S-8483 was being used by the said family for going to Newzeland via Delhi and statement of complainant No.1 also shows that Gurnam Singh had gone to Delhi with passengers but we are of the view that the said car was insured with the opposite party vide policy of insurance Ex.C3 and as per which premium of Rs.14,702/- has been accepted by the opposite party and as such since the deceased Gurnam Singh was having valid driving licence to drive the car and as such the use of the car for hire and reward cannot be said to be fundamental breach of the policy to deny the benefit of insurance to the complainants.
11. We have placed reliance upon the judgment of Hon'ble National Consumer Disputes Redressal Commission, New Delhi reported in 2016(2) CLT 148, Revision Petition No.3001 of 2015. D/d. 22.2.2016 in case titled as Vijay Kumar Digambarappa Khanpure. Vs. Manager, Bajaj Allinaz General Insurance Co. Ltd. & Anr. as per which it is held as under:-
"Consumer Protection Act, 1986 Section 2(1) (G) Insurance of vehicle - Claim - Vehicle registered as private car - Insured vehicle met with an accident while plying as Taxi - Violation of terms and conditions of Insurance - Use of a vehicle registered as a private car for reward or hire cannot be said to be fundamental so as to entitle the insurer to wholly deny the benefit of the insurance to insured in a case of accident - This is not a case where the vehicle was plied on road without fitness or registration - No bar on using vehicle at a public place, though having been registered as a private car it could not have been used as a taxi - Insured got the vehicle registered and insured as a taxi, the insurer could have charged a higher premium but could not have refused to insure the vehicle - Such a breach of the terms of the insurance policy cannot be said to be fundamental so as to permit the insurer to repudiate the claim in its entirety - Therefore, the claim in such cases ought to be settled on a non- standard basis - Impugned order set aside - Revision allowed". (Paras 8 and 9).
12. We have also placed reliance upon the judgment of Hon'ble National Consumer Disputes Redressal Commission, New Delhi reported in 2014(3) C.P.J. 546 : 2014(86) R.C.R.(Civil) 705 Revision Petition No.4456 of 2012 in First Appeal No.1522 of 2011. D/d. 1.8.2014 in case titled as Vishnu Singh. Vs. IFFCO Tokio General Insurance Co. and another as per which it is held as under:-
" Consumer Protection Act, 1986 Section 2(1) (g), 14(1)(d) and 21(b) Insurance - Accident of Vehicle - Total loss - Surveyor appointed - Claim repudiated - District Forum allowed the complaint - Order reversed by State Commission - Revision against - Car was badly damaged and was not repairable - Report of mechanic is not necessary - Report of surveyor that car was being used as 'taxi' on hire and reward was hearsay evidence and totally based on presumptions - Complainant is entitled to an amount euql to 75% of the Insurance amount as compensation along with interest @ 6% p.a. form date of accident - Reivision allowed". (Paras 7 and 10).
13. As such by relying upon the judgments of Hon'ble National Commission we are of the view that repudiation of the claim by the opposite party amounts to deficiency in service and was unjustified. The second point is quantum of compensation to which the complainants are entitled. Perusal of complaint shows that complainants have made prayer for amount of Rs.4,55,996/-. However, we have gone through the report of surveyor Ex.OP-3 as per which the loss has been assessed as Rs.1,83,699.4 and complainant No.1 had also given consent Ex.OP-16 to accept the said amount from the opposite party.
14. Accordingly, we partly allow the present complaint and opposite party is directed to pay Rs.1,83,699/- on non standard basis after deducting 15% from the total amount of Rs.1,83,699/- to the complainants as per the assessment of the surveyor alongwith interest @ 9% P.A. from the date of filing of the complaint till realization and also pay Rs.10,000/- on account of mental tension and harassment and Rs.5,000/- as cost of litigation within 30 days from the date of receipt of copy of this order.
15. The complaint could not be decided within the stipulated period due to heavy pendency of Court Cases, vacancies in the office and due to pandemic of Covid-19.
16. Copy of the order be communicated to the parties free of charges. File be consigned.
(Lalit Mohan Dogra)
President.
Announced: (B.S.Matharu)
Oct. 03, 2023 Member.
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