Haryana

StateCommission

A/941/2019

NATIONAL INSURANCE COMPANY - Complainant(s)

Versus

VISHAL SAINI - Opp.Party(s)

SUKHDARSHAN SINGH

27 Feb 2023

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION HARYANA, PANCHKULA

                                                                               

                                                         First Appeal No.941 of 2019

                                                Date of Institution: 29.10.2019

                                                        Date of Final Hearing: 27.02.2023

Date of pronouncement: 27.03.2023

 

National Insurance Company 3, Middleton Street Prafulla Chandra Sen Sarani, Kolkata, West Bengal 700071.

…..Appellant

Versus

1.    Vishal Saini aged 25 years S/o Sh.Sheesh Ram Saini R/o H.No. 481/5, Mohan Nagar, Kurukshetra.

2.    Maruti Insurance Broking Pvt. Ltd. Nelson Mandela Road, Vasant Kunj, New Delhi-110070.

3.    Karnal Motors Pvt. Ltd., Maruti Suzuki Dealer, Plot No.156-157, Industrial Area, Sector-2, Kurukshetra 136118.

4.    Chamunda Road Side Assistance VPO Nagar,Tehsil& Distt. Kullu.

…..Respondents

CORAM:    S.P.Sood, Judicial  Member

                   Suresh Chander Kaushik, Member

                  

Present:-    Mr.Sukhdarshan Singh, Advocate for theappellant.

                   Mr.Sachin Bansal, Advocate for the respondent No.1.

                   Service of respondent Nos.2 to 4 already dispensed with vide order dated 25.03.2022.

 

                                                ORDER

 

S P SOOD, JUDICIAL MEMBER:

          Delay of 27 days in filing the appeal is condoned for the reasons stated in the application for condonation of delay.

2.      The present appeal No.941 of 2019 has been filed against the impugned order dated 13.09.2019/16.09.2019 of the District Consumer Disputes Redressal Forum, Kurukshetra (In short “District Forum”) in complaint case No.191 of 2018, which was allowed.

3.      The brief facts of the case are that on 25.06.2017, the complainant purchased New DZireZxi from opposite party (OP) No.3. The vehicle was insured with opposite party No.1, which was valid from 25.06.2017 to 24.06.2018.   The policy was purchased from OP No.1 via OP No.3.  On 30.05.2018, the vehicle met with an accident. The vehicle was badly damaged. Intimation was sent to OP Nos.1 and 2.  The vehicle was brought from Manali to Kurukshetra. Upon the assurance of the OPs, towing charges of Rs.33000/- paid by the complainant.  He submitted the towing bills to OP No.3 who conducted repair of vehicle at their address.    On 30.08.2018, he requested the surveyor for toe charges from Manali to Kurukshetra but to no avail.  Thus there was deficiency in service on the part of the OPs, hence the complaint.

4.      OP No.1 filed reply and submitted that the car was insured with the answering OP from 25.06.2017 to 24.06.2018 and the intimation about incident was received on 05.06.2018 and the claim was processed  as per the terms and conditions of the policy of insurance.  The complainant had claimed the towing charges of Rs.33000/- which was not payable. As per terms and conditions of the insurance policy, the maximum towing charges were allowed upto 1500/- and the said amount has already been paid to him. Thus there was no deficiency in service on the part of the OPs and prayed for dismissal of the complaint.

5.      After hearing both the parties, the learned District Commission, Kurukshetrahas allowed the complaint vide order dated 13/16.09.2019.  Relevant portion of the judgement is reproduced as under:-

“Thus, as a sequel of above discussion, we allow the complaint and direct the OPs to pay Rs.31,500/- to the complainant within a period of 45 days from the date of receipt of copy of this order, failing which the complainant will be entitled to interest @ 9% per annum from the date of  order till actual realization.”

6.      Feeling aggrieved therefrom, opposite party No.1-appellant has preferred this appeal.

7.      This argument have been advanced by Sh.Sukhdarshan Singh, learned counsel for the appellant as well as Sh.Sachin Bansal, learned counsel for the respondent No.1.With their kind assistance entire records including that of the District Commission led on behalf of  the parties has also been properly perused and examined.

8.      The sole dispute in this case is whether the complainant is entitled for towing charges or not?

9.      It is not disputed that the during the subsistence of the policy, the vehicle met with an accident  and vehicle was extensively damaged.  It is also not disputed that towing charges from Manali to Kurukshetra was paid by the complainant.  It is also not disputed that whatever amount was assessed by surveyor being payable for repair that amount has been received by the complainant.  The plea of the appellant-opposite party was that the complainant was not entitled for towing charges of Rs.33000/- as the insurance company would pay only Rs.1500/- to any insured as towing charges as per terms and conditions of the insurance policy. The relevant portion of the policy is as under:-

“In the event of the vehicle being disabled by reason of loss or damage covered under this policy the company will bear the reasonable cost of protection and removal to the nearest repairer and redelivery to the insured but not exceeding in all Rs.1500/- in respect of any one accident.”

10.    However the above condition is not found to be relevant because the complainant has paid Rs.33,000/- as towing charges from Manali to Kurukshetra, where the repair of the damaged vehicle was carried out.  However, the surveyor has already added Rs.1500/- as towing charges payable to the complainant, which of course waswrongly assessed by the surveyor and not according to the terms and conditions of the policy. Especially in view of the fact that no evidence was led by appellant that ere were any other place also nearer to Kurukshetra where the damaged vehicle belonging to complainant could be repaired. So the said clause of policy was not applicable in this case.

11.    Moreover, it is a matter of common experience, insurance companies often repudiate claims on grounds of non-disclosure of material information by the consumer. However they conveniently forget that there is an even greater statutory obligation cast on them to give full information to the consumer about the products they sell.

The responsibilities of the insurer towards full disclosure is even more because (a) the Insurance Regulatory and Development Authority’s (IRDA) Regulation on the protection of Policyholders’ Interests’ specifically mandates this and (b) the contracts of insurance, which are ‘Adhesion Contracts’ or ‘Standard Form Contracts’ are drawn up unilaterally by the dominant party-the insurer. The consumer, being the weaker party has no bargaining power, nor knowledge of the terms of the contract. So, the apex court has often said that these contracts, therefore, demand a very high degree of fairness, good faith and disclousure on the part of the insurer.

          Here are two cases where the Supreme Court has reminded insurers of their obligation in this regard and warned them against violations. The two cases also show-case the kind of unfair practices indulged in by insurers.

          In Texco Marketing Pvt. Ltd. Vs TATA AIG General Insurance (CA No. 8249 of 2022, date of judgment: November, 9, 2022), for example the insurance company insured after due inspection, a shop loacated in a basement under the Standard Fire and Special Perils Policy, despite the fact that the policy specifically excluded basements. Subsequently, following a fire, when the policyholder made a claim, the insurer repudiated it on the basis of the exclusion clause!

          While ruling in favour of the consumer, the apex court observed that first and foremost, the insurer did not bring the exclusion clause to the notice of the consumer. And then, despite having knowledge of the exclusion clause, it insured the basement and received the premium benefits. After this, repudiating the policyholder’s claim on the basis of the exclusion clause was certainly an unfair trade practice. “This view is fortified by the finding that the exclusion clause is an unfair term, going against the very object of the contract, making it otherwise un-executable from its inception,” the apex court said.

          Some of the observations of the court in this case would go a long way in upholding the rights of the policyholders. For example, the court made it clear that an exclusion clause, if not brought to the notice of the consumer by the insurer or agent, would not be binding on the consumer. Similarly, an unfair term in an insurance contact would be un-executable. The Supreme Court also reminded insurers that an exclusion clause “is not a leverage or safeguard for the insurer, but is meant to be pressed into service on a contingency, being a contract of speculation”.

          Said the court: “Before we part with this case, we would like to extend a word of caution to all the insurance companies on the mandatory compliance of Clause (3) and (4) of IRDA Regulation, 2022. Any non-compliance on the part of the insurance companies would take away their right to plead repudiation of contract by placing reliance upon any of the terms and conditions included thereunder”.

12.      The complainant has not violated the terms and conditions of the insurance policy.Hence this question is answered in affirmative.  Learned District Commission rightly allowed the claim of the complainant.

13.    Resultantly, the contentions raised on behalf of the present appellant stands rejected as rendered no assistance and found to be untenable and the order passed by the learned District Commission does not suffer from any illegality or perversity and is well reasoned and accordingly stands maintained for all intents and purposes.Hence, appeal stands dismissed on merits.

14.    The statutory amount of Rs.15750/- deposited at the time of filing the appeal be refunded to the complainant-respondentNo.1-Vishal Sainiagainst proper receipt and identification in accordance with rules, after the expiry of period of appeal/revision, if any.

15.       Applications pending, if any stand disposed of in terms of the aforesaid judgment.

16.       A copy of this judgment be provided to all the parties free of cost as mandated by the Consumer Protection Act, 1986/2019. The judgment be uploaded forthwith on the website of the commission for the perusal of the parties.

17.      File be consigned to record room.

 

 

Date of pronouncement   (Suresh Chander Kaushik)          (S. P. Sood)

27.03.2023                            Member                                             Judicial Member

S.K (Pvt. Secy.)

                       

 

S.K

(Pvt. Secy.)