BEFORE THE DISTRICT CONSUMER DISPTUES REDRESSAL FORUM, KAITHAL.
Complaint no.253/14.
Date of instt.: 04.12.2014.
Date of Decision: 08.01.2016.
Sukhvinder S/o Sultan Singh, age 38 years, r/o VPO Munna Rehri, Distt. Kaithal.
……….Complainant.
Versus
United India Insurance Co. Ltd., Karnal Road, Opp. I.G.College Kaithal through its Branch Manager.
..……..Opposite Party.
COMPLAINT UNDER SEC. 12 OF CONSUMER PROTECTION ACT, 1986.
Before: Sh. Jagmal Singh, President.
Sh. Rajbir Singh, Member.
Smt. Harisha Mehta, Member.
Present : Sh. Surjit Dhiman, Advocate for complainant.
Sh. M.R.Miglani, Advocate for the opposite party.
ORDER
(JAGMAL SINGH, PRESIDENT).
The complainant has filed the present complaint under Section 12 of Consumer Protection Act, 1986, with the averments that he got insured his vehicle canter Marka Ashokha Layland Eronet 1212 bearing registration No.HR-64-7208 with the Op. It is alleged that on 18.12.2013, the complainant and his cleaner Krishan Kumar was coming from Alewa to Village of complainant VPO Munna Rehri and the complainant was driving the above-said canter at about 08.00 p.m. and when they crossed the village Mohna, a truck bearing registration No.HR-45A-3495 was parked between the road, which was parked without any dipper, reflector or any light by the negligence of his driver. It is further alleged that the canter of the complainant strucked on the back side of the truck to which the front part of the canter was fully broken and danted. It is further alleged that the complainant and his cleaner received multiple injuries on their person and the vehicle of complainant was damaged due to said accident. It is further alleged that the complainant lodged the claim with the Op and submitted all the necessary documents but the Op repudiated the claim of complainant. This way, the Op is deficient in service. Hence, this complaint is filed.
2. Upon notice, the opposite party appeared before this forum and filed written statement raising preliminary objections with regard to maintainability; cause of action; locus-standi; estoppel; that the claim of complainant has already been repudiated on the ground that four persons were traveling in the canter in question. As per Registration Certificate and insurance policy, only two persons driver and conductor are authorized to travel in the goods vehicle. So, the insured has willfully violated the terms and conditions of insurance policy as-well-as Section 66 of Motor Vehicle Act in which it is clearly mentioned that no owner of Motor Vehicle shall use the vehicle in contravention of permit in nay public place. The vehicle in question is only meant for goods only and not for carrying passengers. So, the vehicle in question was being driven in violation of terms and conditions of insurance policy as-well-as Motor Vehicle Rules. So, the insurance company is not liable for any claim. There is no deficiency in service on the part of answering Op. On merits, the contents of complaint are denied and so, prayed for dismissal of complaint.
3. In support of his case, the complainant tendered in evidence affidavits Ex.CW1/A & Ex.CW2/A and documents Ex.CA to Ex.CS and closed evidence on 03.09.2015. On the other hand, the Op tendered in evidence affidavit Ex.RW1/A and documents Ex.R1 to Mark R2 and closed evidence on 16.11.2015.
4. We have heard ld. counsel for both the parties and perused the case file carefully and minutely and have also gone through the evidence led by the parties.
5. From the pleadings and documents placed on the file, we found that it is not disputed that the complainant got insured his vehicle canter Marka Ashokha Layland Eronet 1212 bearing registration No.HR-64-7208 with the Op. It is also not disputed that the said vehicle met with an accident on 18.12.2013 in the area of Village Mohna. The dispute between the parties is that four persons were traveling at the time of alleged accident, whereas only two persons driver and conductor were allowed to traveling in the goods vehicle and on the said ground, the claim of complainant was repudiated by the Op. Despite of violation of terms and conditions of insurance policy, we are of the considered view that the complainant should not be denied his claim in it’s entirety. It is, therefore, quite just and fair that the claim is in respect of vehicle must be settled on the basis of the guidelines of non-standard settlement. In this regard, we can rely upon the authority titled as NIC Vs. Nitin Khandelwal, 2008(3) RCR (Civil) page 193 (SC), wherein it has been held by Hon’ble Supreme Court that Car insured for personal use, but used as taxi-Theft of car-Insurance company cannot reject the claim on the ground of breach of contract. We can also rely upon the authority titled as Shakeel Ahmed Vs. National Insurance Co. Ltd. & others, reported in 2015(2) CLT page 255 (NC), wherein it has been held that Non-standard basis-Goods vehicle-Claim repudiated on the ground that the vehicle authorized to carry only goods, carrying passengers at the time of accident-Held-Once it is found that the vehicle was being used predominantly for carrying passengers despite its being authorized to carry only goods-It would be a clear-cut breach of the terms and conditions-Insurance company would be entitled to repudiate the claim-Irrespective of whether the carrying of the passengers by itself leads to the accident or not-Had it been used primarily for carrying goods and the carrying of the passengers been only incidental-There would have been no justification for altogether rejection of the claim-Insurance Company would have been obliged to settle the claim on non-standard basis. The said authorities are fully applicable to the present case. So, we are of the considered view that the Op has repudiated the claim of complainant in toto wrongly which amounts to deficiency in service on the part of Op. In the present case, the surveyor Mr. Chawla has assessed the loss of the damaged vehicle for Rs.1,98,260/-. The surveyor is an independent person and the report of surveyor, Ex.R2 is placed on the file. So, this report of surveyor is taken into consideration for deciding the compensation amount in the complaint. In this regard, we rely upon a judgment 2(2008) CPJ page 182 (NC), United India Insurance Co. Vs. Maya, wherein it has been held that a surveyor report should not be dismissed summarily as the surveyor is independent and qualified person under the relevant provisions of Insurance Act, 1938.
6. Thus, in view of above discussion, we allow the complaint partly and direct the Op to settle the claim of complainant on non-standard basis i.e. 75% of Rs.1,98,260/- (as assessed by the surveyor)= Rs.1,48,695/- to the complainant. No order as to costs. Let the order be complied with within 30 days, failing which, the complainant shall be entitled interest @ 8% p.a. from the date of commencement of this order till its realization. A copy of this order be sent to both the parties free of costs. File be consigned to the record room after due compliance.
Announced.
Dt.08.01.2016.
(Jagmal Singh),
President.
(Harisha Mehta), (Rajbir Singh),
Member. Member.