PER:

Charanjit Singh, President

1        The complainant has filed the present complaint by invoking the provisions of Consumer Protection Act under Section 12 and 13 against the opposite parties on the allegations that the complainant Palwinder Singh is registered owner of a Vehicle i.e. Truck having registration No. PB02-BE-9811, Engine No. 6258216, Chassis No. 2390F08986 of Tata Motors / LPT 2518, Model 2009, Type of Body Modular. The complainant was using the above said vehicle for his livelihood. The complainant got insured his above said vehicle from opposite parties No. 1 and 2 w.e.f. 19.1.2019 up to 18.1.2020 after paying the premium of insurance policy to the tune of Rs. 50,460/- and the value of the said vehicle of the complainant was assessed by the opposite parties for a total sum of Rs.5,50,000/-. The complainant paid the premium of the above said insurance policy to the opposite parties to get insured his above said vehicle from opposite parties and as such, he is beneficiary of the services provided by opposite parties. In the month of March 2019, the complainant Palwinder Singh alongwith his cleaner Rashpal Singh son of Rattan Singh resident of village Burj Gill (Sub Tehsil Jhabal Tehsil and District Tarn Taran) went to Jodhpur (Rajasthan) and thereafter, to Ahmedabad (Gujrat). On 19.3.2019, in the morning 4.00 A.M the above mentioned vehicle of the complainant burnt completely, near Umiya Weighbridge against the showroom of Hyundai Company on the way to Narol due to which all the parts of the said vehicle except metal, were burnt and thereafter the matter was reported to the concerned police of P.S. Narol in the city of Ahmedabad, (Gujrat). The truck of the complainant damaged beyond repair on account of the above said incident. Thereafter, the complainant approached the concerned authorities of opposite parties with the request to disburse the whole amount of sum assured to the insured as per the insurance policy but the opposite parties did not put ears to the request of the complainant and on 23.9.2019 repudiated the claim of insurance by taking a wrong objection of overloading. The said objection is not a tenable objection while repudiating the claim of the complainant as the complainant has never violated any terms or conditions as the same were never explained/ supplied to the complainant at the time of inception of the policy and the insurance claim cannot be repudiated on the ground of alleged term and condition and if there is any alleged clause in the policy even then the same is unexplained and is not bound upon the insured/ complainant. The complainant approached the opposite parties for settlement of the claim but the opposite parties are not interested for settlement of the claim and they are finding ways to decline the insurance claim of the complainant on one false pretext or the other. The incident of burning the truck of the complainant took place during the operation of the insurance policy and as such, the complainant is entitled to insurance claim. The opposite parties are guilty of fault, imperfection, abort coming and inadequacy in the quality, nature and manner of performance of service, hence are guilty of deficiency in services. The complainant has prayed that the opposite parties may kindly be directed to pay the whole some assured amount to the tune of Rs. 5,50,000/- to the complainant and Rs. 20,000/- as compensation and Rs. 11,000/- as litigation expenses.   Alongwith the complaint, the complainant has placed on record his affidavit Ex. C-1, self attested copy of R.C. Ex. C-2, Self attested copy of Insurance Policy Ex. C-3, Self attested copy of Police report/ request report in Gujrati language Ex. C-4, Self attested copy of translated copy of request report Ex. C-5, Self attested copies of letters dated 23.9.2019 and 25.9.2019 Ex. C.6 and Ex. C-7, Self attested copy of Adhar Card Ex. C-8.

2        Notice of this complaint was sent to the opposite parties and opposite parties appeared through counsel and filed written version by interalia pleadings that the complainant has violated the basic terms and conditions of insurance policy in question and hence the present claim is not payable. The GVW as per policy and RC is 25000 Kg. the unload weight of the vehicle is 9000 kg and the vehicle was permitted to carry load only up to 16000 kg whereas the load carried at the time of alleged occurrence was 19,930 kg which clearly proves that vehicle was overloaded by 3930 kg which is more than the permissible load as per guidelines the opposite party. Therefore, the opposite parties repudiated the claim on merits vide repudiation letter dated 25.9.2019 which was sent to the complainant stating that the claim was not payable. As such, the present complaint is not maintainable.  The complainant has got no cause of action to file the present complaint against the opposite parties. As per G.R. 281 dated 16.3.2019 and invoice No. 341 dated 16.3.2019 of Mahesh lime Industries, the load carried at the time of alleged occurrence was 19,930 kg. The said fact has been mentioned in spot survey report dated 21.3.2019 of Sh. Anil S Patel and has also been upheld in the investigation report dated 4.5.2019 of Sh. Bhavin Jani. As such, it is clearly evident that the claim is not payable as the complainant overloaded his vehicle in clear violation of the basic term and conditions of the insurance policy in question.  In this regard, it is submitted that loss assessed by the surveyor and the findings of the investigator are best piece of evidence and same have to be taken as correct one. This view has been held that the surveyor/ investigator is the best person to assess/ investigate the loss and the commission cannot assume role of surveyor. The loss assessed by the surveyor is to be taken as final one.  The complainant has not approached this commission with clean hands and has tried to conceal the material facts. The complainant is estopped by his own act and conduct from filing the present complaint. The loss having occurred due to manufacturing defect and faulty design is not payable under the present insurance policy. If this commission comes to the conclusion that the complainant is entitled to any compensation in the present case, the same is to be manufacturer of the vehicle, since the alleged loss pertains to a mechanical defect and has not occurred due to an accident and/ or external factor.  The complainant has himself violated the basic condition of the policy i.e. “Duty to Care”  and failed to take reasonable care of her vehicle. It is the duty of the insured person to take all reasonable steps to save the vehicle from loss or damage and maintain it in efficient condition. But in sheer negligence, the complainant has violated the basic condition of the insurance Policy. As such, the complainant is not entitled to get the present claim. The contract of the insurance is based on utmost faith and in this regard it is submitted that by producing fake documents and/or by misrepresentation, it is apparent that the insured has used fraudulent means for getting wrong claim. Hence, as per general conditions of the contract of insurance, it has been clearly held that the insurance co. will not be liable to pay any claim if the claim is found to be in any respect fraudulent or if any false declaration be made or used in support thereof or if any fraudulent means or devices are used by the insured or any one act is done on his behalf to take benefit under the policy, all the benefits under the said policy shall be forfeited.  As the claim already stands repudiated, therefore, no consumer dispute survives. The claim repudiated by the opposite party is perfectly correct and in accordance with law. The complainant has no right to file the present complaint. On account of repudiation made on merits by the competent authority, there is no question of any delay or deficiency on the part of the opposite party insurance co. Hence the relief of damages and costs in present complaint is not payable. In this regard, it is submitted that there is no such provision to grant any such relief either under the Consumer Protection Act nor there is any agreed clause in the contract of insurance to pay any such claim. The opposite party has denied the other contents of the complaint and prayed for dismissal of the same. Alongwith the written version, the opposite party has placed on record affidavit of Satpal Ex. OP1,2/1,  affidavit of Anil S. Patel Surveyor Ex. OP 1,2/2, attested copy of G.R. No. 281 Ex. OP1,2/3, Affidavit of Bhavin Jani Investigator Ex. OP 1,2/4,  attested copy of Insurance Policy Ex. OP 1,2/5, Copy of surveyor Report Ex. OP1,2/6, Copy of Investigation Report Ex. OP 1,2/7.

3        The complainant has filed rejoinder to the written version and pleaded that the said alleged terms and conditions was never explained/ supplied to the complainant at the time of inception of the policy and the insurance claim cannot be repudiated on the ground of alleged terms and conditions and if there is any alleged clause in the policy even then the same is unexplained and is not bound upon the insured/ complainant. The complainant has denied the other contents of the written version and reiterated the stand as taken in the complaint and prayed that the present complaint may be allowed.

4        We have heard the Ld. counsel for the complainant and opposite parties and have carefully gone through the record placed on the file.

5        Ld. counsel for the complainant contended that the complainant is registered owner of a Vehicle i.e. Truck having registration No. PB02-BE-9811, Engine No. 6258216, Chassis No. 2390F08986 of Tata Motors / LPT 2518, Model 2009, Type of Body Modular vide Registration Certificate Ex. C-2. The complainant got insured his above said vehicle from opposite parties No. 1 and 2 w.e.f. 19.1.2019 up to 18.1.2020 after paying the premium of insurance policy to the tune of Rs. 50,460/- vide insurance policy Ex. C-3 and the value of the said vehicle of the complainant was assessed by the opposite parties for a total sum of Rs.5,50,000/-. In the month of March 2019, the complainant Palwinder Singh alongwith his cleaner Rashpal Singh son of Rattan Singh resident of village Burj Gill, Sub Tehsil Jhabal Tehsil and District Tarn Taran went to Jodhpur (Rajasthan) and thereafter, to Ahmedabad (Gujrat). On 19.3.2019, in the morning 4.00 A.M the above mentioned vehicle of the complainant burnt completely, near Umiya Weighbridge against the showroom of Hyundai Company on the way to Narol due to which all the parts of the said vehicle except metal, were burnt and thereafter the matter was reported to the concerned police of P.S. Narol in the city of Ahmedabad, (Gujrat) and police report is Ex. C-4. The truck of the complainant damaged beyond repair on account of the above said incident. Thereafter, the complainant approached the concerned authorities of opposite parties with the request to disburse the whole amount of sum assured to the insured as per the insurance policy but the opposite parties did not put ears to the request of the complainant and on 23.9.2019 repudiated the claim of insurance by taking a wrong objection of overloading. The said objection is not a tenable objection while repudiating the claim of the complainant as the complainant has never violated any terms or conditions as the same were never explained/ supplied to the complainant at the time of inception of the policy and the insurance claim cannot be repudiated on the ground of alleged term and condition and if there is any alleged clause in the policy even then the same is unexplained and is not bound upon the insured/ complainant. The complainant approached the opposite parties for settlement of the claim but the opposite parties are not interested for settlement of the claim and they are finding ways to decline the insurance claim of the complainant on one false pretext or the other and prayed that the present complaint be allowed.

6        Ld. counsel for the opposite party contended that the complainant has violated the basic terms and conditions of insurance policy in question and hence the present claim is not payable. The GVW as per policy and RC is 25000 Kg. The unload weight of the vehicle is 9000 kg and the vehicle was emitted to carry load only up to 16000 kg whereas the load carried at the time of alleged occurrence was 19,930 kg which clearly proves that vehicle was overloaded by 3930 kg which is more than the permissible load as per guidelines the opposite party. Therefore, the opposite parties repudiated the claim on merits vide repudiation letter dated 25.9.2019 which was sent to the complainant stating that the claim was not payable. As per G.R. 281 dated 16.3.2019 Ex. OP1, 2/3 and invoice No. 341 dated 16.3.2019 of Mahesh lime Industries, the load carried at the time of alleged occurrence was 19,930 kg. The said fact has been mentioned in spot survey report dated 21.3.2019 Ex. OP1,2/6 of Sh. Anil S Patel and has also been upheld in the investigation report dated 4.5.2019 of Sh. Bhavin Jani. As such, it is clearly evident that the claim is not payable as the complainant overloaded his vehicle in clear violation of the basic term and conditions of the insurance policy in question and prayed that the present complaint be dismissed.

7        In the present case, insurance is not disputed between the parties and it is also not disputed between the parties that the vehicle was damaged due to fire. But the opposite party has denied the claim of the complainant on the ground that the complainant has violated the terms and conditions of the policy as the vehicle was permitted to carry load only up to 16,000/- K.G. only whereas the load carried at the time of occurrence was 19,930/- Kg. On the other hands, it is the case of the complainant that terms and conditions have not been supplied to the complainant and the opposite parties cannot deny the claim of the complainant on the ground of alleged terms and conditions, which are never supplied or explained to the complainant at the time of inception of insurance policy. He placed reliance on citation 2001(1)CPR 93 (Supreme Court) 242 titled as M/s Modern Insulators Ltd Vs The Oriental Insurance Company Ltd, wherein Hon’ble Apex Court held that clauses which are not explained to complainant are not binding upon the insured and are required to be ignored. Furthermore, It is usual with the insurance company to show all types of green pastures to the customer at the time of selling insurance policies, and when it comes to payment of the insurance claim, they invent all sort of excuses to deny the claim. In the facts of this case, ratio of the decision of Hon’ble Apex Court in case of DharmendraGoel Vs. Oriental Insurance Co. Ltd., III (2008) CPJ 63 (SC) is fully attracted, wherein it was held that, Insurance Company being in a dominant position, often acts in an unreasonable manner and after having accepted the value of a particular insured goods, disowns that very figure on one pretext or the other, when they are called upon to pay compensation.  This ‘take it or leave it’, attitude is clearly unwarranted not only as being bad in law, but ethically indefensible.  It is generally seen that the insurance companies are only interested in earning the premiums and find ways and means to decline claims. In similar set of facts the Hon’ble Punjab & Haryana High Court in case titled as New India Assurance Company Limited Vs. Smt.UshaYadav& Others 2008(3) RCR (Civil) Page 111 went on to hold as under:-

“It seams that the insurance companies are only interested in earning the premiums and find ways and means to decline claims. All conditions which generally are hidden, need to be simplified so that these are easily understood by a person at the time of buying any policy.        The Insurance Companies in such cases rely upon clauses of the agreement, which a person is generally made to sign on dotted lines at the time of obtaining policy. Insurance Company also directed to pay costs of Rs.5000/- for luxury litigation, being rich.

Moreover, as per version of the opposite party the vehicle got fire when it was parked. As such, the opposite party has failed to prove on record that the vehicle got fire due to overloading of the said vehicle and the opposite party has failed to establish the nexus of fire and overloading of the vehicle. Hence, the repudiation of claim by the complainant on this ground is not digestible.

8        In light of the above discussion, the complaint succeeds and the same is hereby allowed with costs in favour of the complainant. The opposite Parties are directed to make the payment of Rs. 5,50,000/- to the complainant subject to fulfilling  the necessary requirement for the transfer of the vehicle in question in the name of Opposite Party (Insurance Company) and filing the subrogation letter and other necessary compliance. The complainant has been harassed by the opposite parties unnecessarily for a long time. The complainant is also entitled to Rs.15,000/- as compensation on account of harassment and mental agony and 11,000/- as litigation expenses. Opposite Parties are directed to comply with the order within one month from the date of receipt of copy of the order, failing which the complainant is entitled to interest @ 9% per annum, on the awarded amount, from the date of complaint till its realisation.  Case could not be disposed of within the stipulated period due to heavy pendency of the cases in this Commission and due to COVID-19. Copies of the order be furnished to the parties as per rules. File is ordered to be consigned to the record room.

Announced in Open Commission

15.02.2023