Punjab

Faridkot

CC/17/121

SUKHDEV SINGH - Complainant(s)

Versus

UNITED INDIA INSURANCE - Opp.Party(s)

ANIL KUMAR CHAWALA

03 Apr 2019

ORDER

 DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, FARIDKOT

 

C. C. No. :             121 of 2017

Date of Institution:     6.04.2017

Date of Decision :       3.04.2019

 

Sukhdev Singh  aged about 52 years, son of Hari Singh, r/o House No. 350, Shaheed Bhagat Singh Chowk, Kotkapura.

...Complainant

Versus

United India Insurance Company Ltd Kotkapura, through its Branch Manager.

.....Opposite Parties

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 worth

 

 

 

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Rs.4,00,000/- and for further directing OPs to pay Rs.70,000/- 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 complainant is the registered owner of Oil Tanker bearing registration no. RJ-13G-7087 and said tanker was fully insured with OPs vide Insurance Policy bearing no.2012023113p105193359 valid from 7.11.2013 to 6.11.2014 for a sum of Rs. 4 lacs. It is submitted that on 26.05.2014, said tanker was filed with oil for supply to Army from Bathinda to Abohar and in the way near HBN Hotel, its tyre was punctured. On removing the stipney, it was found that ring of stipney was cracked. It is submitted that on same day, a minister was to pass from that way and on asking of Police, complainant moved the said truck from that place to an ahata adjoining the shop of tyres near HBN Hotel. Said shopkeeper started welding the ring of stipney tyre, but suddenly due to sparking, tanker caught fire in which driver of tanker was totally burnt and was taken to hospital and proprietor of the shop died. In said fire,  tanker alongwith all documents was completely destroyed. Complainant immediately lodged DDR to this effect with Police and also duly informed the OPs regarding this fire incident and thereafter, complainant completed all the formalities and submitted requisite documents with OPs for obtaining the insurance claim but vide letter dated 4.12.2015, OPs repudiated the claim of complainant on vague grounds.

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Complainant approached OPs many times and made several requests to OPs to make payment of his genuine insurance claim, but all in vain, which amounts to deficiency in service and has caused great harassment and mental agony to him. He has prayed for seeking direction to Ops to make payment of his 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 17.04.2017, 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 complaint in hand is not maintainable in the present form as complainant is not the consumer of answering OPs as he was using the said vehicle for commercial purpose. Moreover, complainant has violated the terms and conditions of the policy as at the time of alleged accident complainant was not having effective driving license to drive the transport having hazardous goods as required under the Motor Vehicle Act and Motor Vehicle Rules.  Even vehicle in question was not having Route Permit for plying the vehicle in the area of Punjab though at the time of alleged incident, it was being plied in the area of Punjab transporting 12000 litres of HS Diesel from IOC Bathinda to Abohar. Thus, having valid

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route permit at the time of loss  is a pre-requisite condition, which is violated by the complainant. It is further submitted that present complaint involves lengthy and voluminous evidence which is not permissible in the summary procedure of this Forum. However, on merits OPs have denied all the allegations of complainant being wrong,  incorrect and false and reiterated that there is no deficiency in service on the part of answering OPs.                   

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-7 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 N Bansal Ex OP-1 and documents Ex OP-2 to Ex OP-10  and then, closed the same on behalf of OPs.

7                                              The ld Counsel for complainant argued that oil tanker of complainant bearing no. RJ 13G-7087 was fully insured with OPs vide Insurance Policy bearing no.  2012023113 p1051 93359 valid from 7.11.2013 to 6.11.2014 for Rs. 4 lacs.  On 26.05.2014, said tanker was filed with oil for supply to Army from Bathinda to Abohar and in the way its tyre got punctured as ring of stipney was cracked.  On the same day, a minister was to pass from that way and on

 

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asking of Police, he moved the his tanker from that place to an ahata adjoining the shop of tyres near HBN Hotel and when said shopkeeper started welding the ring of stipney tyre, tanker caught fire due to sparking in which driver of tanker was totally burnt and was taken to hospital and proprietor of the shop died. Said tanker alongwith documents was completely destroyed. DDR to this effect was got recorded with Police and due intimation was also given to OPs regarding this fire incident and thereafter, complainant completed all the formalities and furnished  requisite documents to OPs for clearing the insurance claim, but OPs repudiated the same vide letter dated 4.12.2015. Grievance of the complainant is that despite repeated requests OPs did not pay any heed to listen to his 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-7.

8                                        To controvert the arguments of ld counsel for complainant, ld counsel for OPs argued that complaint filed by complainant is frivolous and also denied all the allegations of complainant being incorrect and false and reiterated that there is no deficiency in service on the part of answering OPs. It is argued that  complainant has violated the terms and conditions of the policy as at the time of accident complainant was not having the effective driving license to transport hazardous substances and even tanker was not having valid route permit. Moreover, tanker in question was being  used

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for commercial purpose and complainant is not their consumer. All the other allegations are denied being wrong and incorrect and 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                                            The case of complainant is that his vehicle was insured with OPs, which caught fire on 26.05.2014. Due intimation regarding accident was given to Police as well as OPs. He lodged claim with OPs but they wrongly repudiated his claim on the false grounds. On the other hand plea taken by OPs is that in said incident driver was not having legal and valid driving license to transport the hazardous substances required under Motor Vehicle Act.  Even the vehicle had no valid route permit. As per Ops complainant has violated the terms and conditions of the policy in question and therefore, they have rightly repudiated his claim and there is no deficiency in service on their part. As per OPs no such incident ever occurred and all the allegations of complainant are false.

 11                                       To prove his pleadings, ld counsel for complainant has placed on record copy of  DDR dated 26.05.2014, said tanker caught fire near HBN Hotel in which proprietor of shop who was welding the vehicle died away and driver of said tanker got severe burns. Allegation of OPs that said alleged incident has never happened, has no

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legs to stand upon in the light of DDR dated 26.05.2014  Ex C-2, which is  got recorded by complainant to Police as there is no reason for complainant to get recorded a false DDR. Further Ex C-3 is copy of repudiation letter issued by OPs to complainant vide which they repudiated the claim of complainant on the grounds that Makhan Singh, driver of vehicle was not having effective and valid driving license to transport hazardous substances and vehicle was being plied without route permit. Ex C-4 is copy of insurance policy wherein it is clearly mentioned that vehicle of complainant was fully insured with OPs against all kinds of risks for the period from 7.11.2013 to 6.11.2014 for a sum assured of Rs. 4 lacs.

12                                        Ld counsel for complainant has brought our attention towards document Ex C-5 that is copy of Certificate issued by Indian Oil Corporation Limited Indane Bottling Plant in favour of Makhan Singh driver wherein it is clearly mentioned that said driver had undergone driving training in the motor driving of hazardous goods vehicle and he has been declared successful in theoretical and practical tests conducted  by Indian Oil Corporation Limited Indane Bottling Plant and thus he was authorized to drive the vehicle containing hazardous substances. Document Ex C-7 is copy of letter issued by Indian Oil Corporation Limited, Bathinda which reveals the fact that complainant was under agreement with Indian Oil Corporation to deliver the hazardous substances like petrol, diesel from its depot  to its vendors.

 

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13                        On the fateful day, he loaded his tanker from the IOC Bathinda for defence supply point Abohar. Ld Counsel for complainant argued that without valid route permit, no vehicle can enter into an agreement with IOC for supplying its load to its vendors. The OPs wrongly and illegally repudiated the claim of complainant on false grounds that driver was not competent to drive the vehicle with hazardous substances and the vehicle in question was not having valid route permit. Ld Counsel for complainant further argued that if it is presumed for the sake of arguments that driver of the vehicle was not having effective driving license to drive the hazardous substances and the vehicle in question was not having valid route permit 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

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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 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

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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 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.

 

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

15                                                  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, driver of the vehicle was not having valid driving license for driving the vehicle with hazardous substances or vehicle was not having valid route permit 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. Ops are directed to settle the claim of complainant on non standard basis and are directed to pay Rs.93,750/- i.e 75% of Rs.1,25,000/-as loss assessed by the Surveyor appointed by the Insurance Company alongwith interest at the rate of 9% per anum from 6.04.2017 i.e the date of filing the present complaint till final realization. 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

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within 30 days from the date of receipt of copy of order, 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 : 3.04.2019         

 

(Parampal Kaur)                      (Ajit Aggarwal)

           Member                                   President