Jammu and Kashmir

Jammu

CC/213/2018

SURINDER SINGH - Complainant(s)

Versus

UNITED INDIA INSURANCE - Opp.Party(s)

AJAY SHARMA

21 Jul 2018

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM,JAMMU

(Constituted under J&K Consumer Protection Act,1987)

                                                          .

 Case File  No               35/DFJ           

 Date of  Institution     08-05-2018

 Date of Decision      :    19-07-2018

 

Surinder Singh,

S/O Late S.Jaswant Singh,

R/O 22,Sector 2 Nanak Nagar,

Jammu.

                                                                                                                                Complainant

                          V/S

United India Insurance Company Ltd.

Through its Divisional Manager,

Divisional Office 1,21 C/B Block,

Opposite Convent School, Gandhi  Nagar,

Jammu,J&K.

                                                                                                                                                                Opposite party

CORAM:-

                  Khalil Choudhary              (Distt.& Sessions Judge)   President

                  Ms.Vijay Angral                                                                 Member

                  Mr.Ghulam Sarwar Chauhan                                           Member

 

In the matter of: Complaint under section 10 of J&K Consumer Protection Act 1987.

                                                     

Mr.Ajay Sharma,Advocate for complainant, present.

Mr.Vishnu Gupta,Advocate for OP,present.

 

                                                                ORDER

                              Grievance of complainant, as disclosed in the complaint is that; he being owner of oil tanker bearing registration No.JK02K-4855,got same comprehensively insured with OP under Policy No.1106003110P001512806,covering own damage, third party claims and claims under the Workmen compensation Act,w.e.f.,06-12-2010 to 05-12-2011, for sum of Rs.3,25,000/-and a premium of Rs.10,720/-was paid. According to complainant, the vehicle was involved in an accident with another vehicle coming from the opposite direction, on 10-09-2011 at Asharkund Bridge near Nagrota at 4.30 in the evening, while the vehicle was on its way from Jammu to Srinagar, resultantly, insured vehicle suffered extensive damage and also there was total loss of product being carried in the said vehicle at the time of accident,viz 12 KL of ATF amounting to Rs.5,49,032/-belonging to Indian Oil Corporation Ltd. Allegation of complainant is that he lodged a composite claim with respe4ct to the indemnification of loss suffered by the vehicle and the loss suffered on account of having paid a sum of Rs.5,49,032/-by means of deduction from its transportation bills. That the vehicle in question was surveyed by the surveyor appointed by the company for the assessment of loss, the surveyor inspected the vehicle in question and declared it to be a case of total loss. Complainant further submitted that OP vide letter dated 25-07-2012  repudiated the claim of complainant with respect to damage to the vehicle on the untenable plea that inspite of numerous reminders, the claimant did not provide requisite papers/documents which plea is totally wrong and on another ground that the vehicle in question was carrying  two passengers against permit condition as per Motor Vehicles Act and motor policy terms and conditions and said pleas cannot be the basis for repudiation of claim. Under the terms of the policy, in the event of the loss of the vehicle, the insurance company is bound to indemnify the insured. No violation of the traffic laws can afford a ground to the Op to wriggle out of its contractual liability and repudiate the claim of the insured in respect of the damage to own vehicle. Submission of complainant is that OP without application of mind, arrived at the decision that claim is not payable, while as, under the contract of insurance,OP is bound to indemnify the loss,therefore,failure of Op to indemnify the loss amounts to deficiency in service. In the final analysis, complainant prays for sum of Rs.3,25,000/-,alongwith interest @ 18% from the date of occurrence of loss till its realization and in addition, prays for compensation to the tune of Rs.50,000/-.

                 On the other hand,OP filed written version and while denying the allegation of complainant, went on to submit that vide letter dated,25-07-2012, claim lodged by complainant stands repudiated, on the ground that at the time of accident, insured tanker was carrying two passengers, besides driver, in violation of provision of Motor Vehicles Act, permit conditions and terms and conditions of Insurance Policy, including, limitation as to use, the carrying of passengers the said vehicle was strictly prohibited otherwise also the owner while obtaining the policy had not paid premium for covering the risk of any passenger to be carried in the said vehicle,therefore,claim on account of loss to the vehicle is also not payable and OP bonafidely repudiated the same. In so far as insurance of vehicle and its loss during currency of policy, same are not  disputed by OP.

             Complainant adduced evidence by way of duly sworn evidence affidavit and affidavits of Opinder Singh  and Amrik Singh, respectively. Complainant has placed on record copy of Final Survey Report and copy of certificate.

              On the other hand,OP adduced evidence by way of duly sworn evidence affidavit of R.K.Tikoo,Divisional Manager, United India Insurance Co.Gandhi Nagar,Jammu.

               We have perused case file and heard L/Cs appearing for the parties at length.

                        Briefly stated case of complainant is that; he being owner of oil tanker bearing registration No.JK02K-4855,got same comprehensively insured with OP under Policy No.1106003110P001512806,covering own damage, third party claims and claims under the Workmen compensation Act,w.e.f.,06-12-2010 to 05-12-2011, for sum of Rs.3,25,000/-and a premium of Rs.10,720/-was paid. According to complainant, the vehicle was involved in an accident with another vehicle coming from the opposite direction, on 10-09-2011 at Asharkund Bridge near Nagrota at 4.30 in the evening, while the vehicle was on its way from Jammu to Srinagar, resultantly, insured vehicle suffered extensive damage and also there was total loss of product being carried in the said vehicle at the time of accident,viz 12 KL of ATF amounting to Rs.5,49,032/-belonging to Indian Oil Corporation Ltd. Allegation of complainant is that he lodged a composite claim with respe4ct to the indemnification of loss suffered by the vehicle and the loss suffered on account of having paid a sum of Rs.5,49,032/-by means of deduction from its transportation bills. That the vehicle in question was surveyed by the surveyor appointed by the company for the assessment of loss, the surveyor inspected the vehicle in question and declared it to be a case of total loss. Complainant further submitted that OP vide letter dated 25-07-2012  repudiated the claim of complainant with respect to damage to the vehicle on the untenable plea that inspite of numerous reminders, the claimant did not provide requisite papers/documents which plea is totally wrong and on another ground that the vehicle in question was carrying  two passengers against permit condition as per Motor Vehicles Act and motor policy terms and conditions and said pleas cannot be the basis for repudiation of claim. Under the terms of the policy, in the event of the loss of the vehicle, the insurance company is bound to indemnify the insured. No violation of the traffic laws can afford a ground to the Op to wriggle out of its contractual liability and repudiate the claim of the insured in respect of the damage to own vehicle. Submission of complainant is that OP without application of mind, arrived at the decision that claim is not payable, while as, under the contract of insurance,OP is bound to indemnify the loss,therefore,failure of Op to indemnify the loss amounts to deficiency in service.

                            Specific defence set up by OP is that claim lodged by complainant also stands repudiated vide letter dated,25-07-201209-08-2012, on the ground that the insured tanker(Goods Carriage)at the time of accident was carrying two passengers besides driver though as per M.V.Act,permit conditions and terms and conditions of the insurance policy and limitations as to use the carrying of passengers the said vehicle was strictly prohibited otherwise also the owner while obtaining the policy had not paid premium for covering the risk of any passenger to be carried in the said vehicle. Be it further noted that complainant filed evidence affidavits of Opinder Singh and Amrik Singh,,respectively,but none of the witnesses of complainant deposed that at the time of accident, insured tanker was being not driven in violation of route permit or it was not carrying the passengers, as the defence raised by OP.In our opinion, once complainant was provided opportunity to lead evidence, it was duty bound to rebut the version of OP by leading cogent evidence, on the point that insured tanker was not driven in violation of route permit nor it was carrying passengers in violation of terms and conditions of Insurance Policy at relevant point of time.However,complainant rather acquiesced to the stand of OP,therefore,we have no reason to disbelieve the defence raised by OP that at the time of accident, insured tanker was not driven in violation of route permit and terms and conditions of Insurance Policy, in carrying the passengers.

                        Having held so, still we are of the opinion that law is well settled that if it is found that insured vehicle is being driven in violation of route permit or carrying extra passengers, still claim has to be settled on the basis of 75% of admissible amount.

                  Point involved in the matter is no more res integra,Hon’ble Supreme Court dealt with the issue in Amalendu Sahoo V/S Oriental Insurance Company 2010 ACJ 1250 and Oriental Insurance Company Ltd.V/S Bansi lal 2007(II)SLJ(Con.).

                    We have gone through the case laws relied upon by the learned counsel for complainant. In the case Amalendu Sahoo V/S Oriental Insurance Company,the Hon’ble Supreme Court, has laid down that the 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 and even if it is assumed that there was breach of condition of the insurance policy, the Insurance Company ought to have settled the claim on non-standard basis. So in view of principle of law laid down in the above cited case law, the Insurance Company cannot repudiate the insurance claim in toto raised by complainant regarding loss of the vehicle in question, as well as, to the product which is admittedly insured by OP.The Hon’ble National Commission in the case New India Assurance Company Ltd.versus Narayan Prasad Appaprasad Pathak (2006)CPJ 144(NC),while granting claim on non-standard basis has set out in the judgment, the guidelines issued by the Insurance Company about the settling all such non-standard claims. According to guidelines no,(ii) in case overloading of vehicles beyond licenced carrying capacity, the claims can be settled on non-standard basis by paying 75% of the admissible claim. As per Final Survey Report  dated,10-03-2012,the surveyor had assessed Net Liability on Total Loss basis an amount to the tune of Rs.1,86,500/-.

                    In our view the point involved in the present case is squarely covered by the law laid down by Hon’ble Supreme Court   and Hon’ble National Commission, wherein it has been held that in a case where there is breach of condition of insurance policy by carrying excess passengers, the insurance company should settle the claim on non-standard basis. In the said decision the guidelines have been reproduced and as per said guidelines in case of overloading of vehicles beyond licensed carrying capacity the claim can be settled on non-standard basis by paying insurance of 75% of the admissible claim. The proposition of law laid down by Hon’ble Supreme Court in the said case is applicable in the instant case.

                     Perusal of file shows that surveyor had assessed the loss on Net Liability on Total Loss basis to the tune of Rs.1,86,500/-and as per guidelines laid down by Hon’ble Supreme Court, the complainant is entitled to reimbursement of claim to the extent of 75% of the admissible claim .The OP insurance company should have settled the claim of complainant on non-standard basis by paying 75% out of loss assessed by the surveyor, but in this case the OP has not settled the claim even on non-standard basis also and thus the OP is guilty of deficiency in service and is thus liable to indemnify the loss to the extent of 75% ,out of the assessed loss, which comes to Rs.1,39,875/-                -.

                        Therefore in view of the abovesaid discussion, we are of the view that the repudiation of insurance claim made by OP is improper, unjustified and resorted to by insurance company OP only to defeat the genuine claim of the complainant and it amounts to deficiency in service.

                         The complaint is accordingly allowed and the OP is ordered to indemnify the complainant by paying him Rs.1,39,875/-.It is to be noted that complainant apart from actual expenses incurred on repair of vehicle, has also claimed Rs.50,000/-on account of mental pain, shock and suffering alongwith  interest from the date of filing of claim petition, till its final liquidation..Hon’ble High Court, in Bajaj Allianz General Insurance Co.Ltd.Vs.Narinder Singh, passed in CIMA No.162/2013, decided on, 14-05-2013 in para 7 held as follows:

    “7.The case of the respondent falls within third description,i.e.,any other breach of warranty/condition of policy including Limitation as to use for which the insurer is to pay up to 75% of admissible claim.75% of the admissible claim has been awarded,i.e.Rs.2.50 lac.Same is in consonance with the ratio of the judgment referred. In our view, in the given circumstances, when maximum,i.e.75% of the admissible claim has been awarded, award of interest and litigation charges amounting to Rs.10,000/-shall be impermissible.However,parking expenses charged by the Garage where damaged vehicle was lying since accident are allowable. In total Rs.2.50 lac are worked out to be payable to the respondent.”

    Therefore, in view of law laid down by Hon’ble High Court, complainant is not entitled to over and above the 75% of admissible claim

               This order shall be complied with within one month from the date of receipt of the order. The copy of the order be provided to the parties free of charge. The complaint is accordingly disposed of and the file be consigned to records.

Order per President                                                     Khalil Choudhary

                                                                                     (Distt.& Sessions Judge)

                                                                                            President

Announced                                                           District Consumer Forum

   19-07-2017                                                                       Jammu.

 

Agreed by                                                               

                                                                           

Ms.Vijay Angral                                              

 Member    

 

Mr.Ghulam Sarwar Chauhan

Member