State Consumer Disputes Redressal Commission
Jagtar Singh C/O H.R. Developers Pvt. ... vs Shri Ram General Insurance Co. Ltd. on 4 June, 2013
STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
PUNJAB, DAKSHIN MARG, SECTOR 37-A, CHANDIGARH.
Consumer Complaint No.82 of 2011
Date of institution : 18.10.2011
Date of decision : 04.06.2013
Jagtar Singh C/o H.R. Developers Pvt. Ltd., Chhotti Baradari, Narain
Continental, Patiala (Punjab).
.......Complainant
Versus
1. Shri Ram General Insurance Co. Ltd., Corporate Office :
E-8EPIPR-11 Co. Sitapur, Jaipur-302 022 (Rajasthan) through
its Divisional Manager.
2. Shri Ram General Insurance Co. Ltd., SCO 178, Sector 38-C,
Chandigarh through its Manager.
......Opposite Parties
Consumer Complaint under Section 17 of
the Consumer Protection Act, 1986.
Quorum:-
Hon'ble Mr. Justice Gurdev Singh, President.
Shri Baldev Singh Sekhon, Member.
Present:-
For the complainant : Shri R.K. Shukla, Advocate. For the opposite parties : Shri Sanjeev Goyal, Advocate. JUSTICE GURDEV SINGH, PRESIDENT :
The complainant, Jagtar Singh, has filed this complaint for issuance of following directions to the opposite parties:-
a) to pay Rs.21,72,531/- for damage to the vehicle;
b) to pay Rs.10,00,000/- on account of loss of income etc.; Consumer Complaint No.82 of 2011. 2
c) to pay Rs.5,00,000/- as compensation for mental tension and agony etc.; and
d) to pay Rs.21,000/- as litigation expenses.
He averred therein that he purchased one trailer (hereinafter referred to as "the vehicle") by obtaining loan from Punjab National Bank for earning his livelihood, for a total sum of Rs.23,12,000/-, vide invoice dated 26.2.2010. He got the vehicle insured with the opposite parties on 10.4.2010 for Rs.21,96,400/- by paying a premium of Rs.55,390/-. The insurance policy was issued to him, which was valid from 10.4.2010 to 9.4.2011. The vehicle met with an accident on 8.12.2010 at about 6.00 A.M. near Goraya on Jalandhar highway while the same was brought from Pathankot after loading the same with crushed stones (Bajri). After the accident it caught fire and was fully burnt resulting in total damage to the vehicle. The information about the accident was given to the opposite parties, who appointed the surveyor to conduct the survey. Investigating officer was also appointed by them. Information was also given to the police, vide DDR No.14 dated 9.12.2010, which was registered in PS-Goraya. The fire was extinguished by the Fire Brigade, which was called to the spot by mobile patrolling police. This accident took place as a result of the sudden coming of a stray cattle in front of the vehicle as a result of which the driver turned the vehicle to one side to save the animal resulting in the loss of control due to which the vehicle overturned and the diesel tank was burst as a result of which the vehicle got fire. The Consumer Complaint No.82 of 2011. 3 opposite parties failed to settle his claim for a long time in spite of repeated reminders sent by him and after the expiry of six months he served a legal notice upon them through his counsel on 30.6.2011. The claim was repudiated by them, vide letter dated 10.8.2011 by alleging that at the material time of accident the vehicle was found to be grossly overloaded. That contention of the opposite parties is wrong as the vehicle was carrying the weight as per the specifications and there was no overloading. After the accident he could not deposit the instalments of loan due to loss of income, which resulted in the accumulation of the interest. He had been earning Rs.50,000/- per month by plying the vehicle and he used to pay the loan instalments and meeting the expenses of the vehicle. The loss to the vehicle is estimated at Rs.21,72,531/- and the financial loss suffered by him comes to Rs.10,00,000/-.
2. In the written reply submitted by the opposite parties they admitted that the complainant was the owner of the vehicle, which was insured with them and the insurance policy was valid from 10.4.2010 to 9.4.2011. They also admitted that they were informed about the accident upon which Mohan Inder Singh approved Surveyor and Loss Assessor was appointed for assessing the loss caused to the vehicle. They also admitted that the claim was submitted by the complainant, which was repudiated, vide letter dated 10.8.2011 on the ground mentioned therein. They denied the other contentions of the complainant and averred that the complainant is a consumer as defined Consumer Complaint No.82 of 2011. 4 under the Consumer Protection Act, 1986 as the vehicle was being used by him for commercial purposes. The complaint is liable to be dismissed on that ground alone. The complainant did not get conducted the spot survey from the surveyor so appointed and removed the accidental vehicle along with the overloaded crushed stones with a mala fide intention. The surveyor visited at H.R. Vehicles, Patiala for assessing the loss and that loss was assessed to the tune of Rs.17,71,367/- as per the terms and conditions of the policy on repair basis and to the tune of Rs.21,96,400/- on total loss basis. The value of the salvage was assessed at Rs.3,25,000/- plus minus ten per cent of the vehicle. They demanded the documents from the complainant for assessing the claim but he failed to provide those documents intentionally. The vehicle was overloaded at the time of accident, which is apparent from the loading challan No.3770 dated 7.12.2010 issued by M/s Baba Dhana Singh Ji Stone Crusher in which the load of crushed stone is mentioned. During the investigation by their investigator statement of the owner of the stone crusher was recorded, who disclosed that the vehicle was loaded with 64 tonnes of crushing stone. Satnam Singh driver of the vehicle also made a similar statement. According to the driver, he could not control the vehicle due to overloading of the vehicle and soft soil. It was found that the accident had taken place due to overloading as the vehicle was loaded with 64000 kilograms of crushed stone against the laden weight of 40200 kilograms and unladen weight of 17400 kilograms. The delay Consumer Complaint No.82 of 2011. 5 in repudiating the claim was on account of the negligence of the complainant himself, who failed to supply the requisite documents despite the issuance of letters dated 26.1.2011, 8.4.2011, 18.4.2011, 19.5.2011, 7.6.2011, 14.6.2011 and 18.7.2011. By overloading the vehicle the complainant violated the terms and conditions of the policy disentitling himself to any such claim. As the vehicle was got financed and hypothecated with Punjab National Bank, so that bank is a necessary party and the complaint is bad for its non-joinder. In case any order is made by this Commission to pay any such amount the same is to be paid to the financer in whose favour the vehicle is lying hypothecated. Complicated questions of law and fact are involved, which require oral as well as documentary evidence, examination and cross-examination of witnesses, which is not possible in the Consumer Foras and, as such, only the Civil Court has the jurisdiction to try and decide the present complaint. The complainant has no locus standi nor any cause of action to file this complaint. The same is not maintainable and is liable to be dismissed; being false, frivolous, vague and vexatious in nature.
3. For proving the averments made in the complaint the complainant proved on record his own affidavit Ex.C-A, Retail Invoice of the Vehicle Ex.C-1, Registration Certificate thereof Ex.C-2, Certificate-cum-Policy Schedule Ex.C-3, DDR No.14 dated 9.12.2010 Ex.C-4, fire report issued by the Fire Brigade, Phagwara Ex.C-5, photographs Ex.C-6 to Ex.C-14, reminder dated 28.5.2011 sent by the Consumer Complaint No.82 of 2011. 6 complainant to Claim Manager Ex.C-15, legal notice Ex.C-16, repudiation letter Ex.C-17 and additional affidavit of the complainant as Ex.C-18.
4. For rebutting that evidence and for proving the averments as taken up in the written reply, the opposite parties proved on record the affidavit of Vivek Sharma, Authorized Signatory Ex.RA, letters dated 26.1.2011, dated nil, dated 8.4.2011, dated 18.4.2011, dated 19.5.2011 written by the opposite parties to the complainant Ex.R-1 to Ex.R-5, letter dated 28.5.2011 written by the Punjab National Bank to the opposite parties Ex.R-6, letters dated 7.6.2011, dated 14.6.2011, dated 18.7.2011 Ex.R-7 to Ex.R-9, letter dated 22.7.2011 written by H.R. Developers and Promoters Pvt. Ltd. to the opposite parties Ex.R-10, letter dated 10.8.2011 written by the opposite party to H.R. Developers Pvt. Ltd. Ex.R-11, duly filled up claim form Ex.C-12, reply to the notice dated 17.8.2010 Ex.R-13, retail invoice dated 7.12.2010 issued by M/s Baba Dhanna Singh Ji Stone Crusher Ex.R-14, Statement of Satnam Singh Ex.R-15, Statement of Jagtar Singh Ex.R-16, Report of Mohan Inder Singh, Surveyor and Loss Assessor Ex.R-17, Certificate- Cum-Policy Schedule Ex.R-18, Commercial Vehicles Package Policy Ex.R-19 and power of attorney executed by the opposite parties Ex.R20.
5. We have carefully gone through the averments of the parties, the evidence produced by them and have heard learned counsel on their behalf.
Consumer Complaint No.82 of 2011. 7
6. According to the learned counsel for the complainant, the claim was illegally repudiated by the opposite parties on the ground, which never existed. There was no overloading of the vehicle and it was carrying goods within the permissible capacity. From the evidence produced by the complainant it stands proved that the accident had taken place as a stray cattle came in front of the vehicle and to save that cattle the driver steered the vehicle on one side, lost the control, as a result of which the vehicle overturned and caught fire. Even if it is assumed that the vehicle was overloaded, the same was not the cause of the accident. Therefore, the claim of the complainant could not have been repudiated by the opposite parties on the ground that the same was overloaded. Even in that eventuality 75% of the insured amount is admissible on non-standard basis as per I.R.D.A. Regulations.
7. On the other hand, it was submitted by the learned counsel for the opposite parties that as per the registration certificate the unladen weight of the vehicle was 17460 kilograms and the gross weight was 40200 kilograms. From the evidence produced by the opposite parties, which includes the invoice of the Stone Crusher bearing endorsement regarding the weight of the crushed stone, it stands proved that at the time of accident 64000 kilograms of crushed stone was loaded therein. From the evidence, which was collected during the investigation by the investigator of the opposite parties and which has also been produced in the complaint, it stands proved that the sole cause of the Consumer Complaint No.82 of 2011. 8 accident was overloading thereof and the story propounded by the complainant and disclosed in the complaint and the DDR is false. That false story was coined only in order to get the claim. Once it is concluded that overloading of the vehicle was the only cause of the accident, the complainant is not entitled to even 75% of the permissible claim on non-standard basis. His claim was correctly repudiated by the opposite parties. He supported his submissions by the following judgments:-
(i) S.G. Shivamurtheppa v. Reliance General Insurance Co.
Ltd. [2012(2) CPC 171 (NC).
(ii) NATIONAL INSURANCE CO. LTD. & ANR. v.
SURESH BABU & ANR. [I(2007) CPJ 23 (NC)].
8. The first point for determination is, whether the vehicle was overloaded at the time of the accident? The complainant in his affidavit Ex.CA specifically stated in para no.7 that the vehicle was not overloaded and was carrying the weight as per the specifications. He did not depose as to what were those specifications and what was the weight of crushed stone loaded on the same? On the same aspect it was specifically deposed by Vivek Sharma in his affidavit Ex.R-8 that the laden weight of the vehicle was 40200 kilograms and the unladen weight was 17460 kilograms whereas at the time of alleged accident the same was loaded with 64000 kilograms of crushed stone. This deposition of Vivek Sharma finds corroboration from the documentary Consumer Complaint No.82 of 2011. 9 evidence produced on the record, which is the best evidence for determining this point.
9. As per the registration certificate of the vehicle Ex.C-2, the unladen weight of the vehicle was 17460 kilograms and the gross vehicle weight was 40200 kilograms. Thus the permissible weight of the goods, which could have been loaded in the vehicle, comes to 22740 kilograms. As per the averments made by the opposite parties, which have not been denied, the crushed stone was loaded in this vehicle at Ms/ Baba Dhanna Singh Ji Stone Crusher. The retail invoice of that concern has been proved on the record as Ex.R-14. As per the endorsement made on this invoice by that Stone Crusher 1600 square feet of 20 mm of crushed stone, weight of which was 64 tonnes, was loaded in the vehicle on 7.12.2010. Thus, crushed stone beyond the permissible limit was loaded in the vehicle and the same was much more than overloaded. This point is, therefore, decided against the complainant and in favour of the opposite parties.
10. The second point for determination is, whether the overloading of the vehicle was the only cause of the accident? The complainant tried to prove the averments made in the complaint by means of his affidavit Ex.CA and the DDR Ex.C-4, which was lodged with the police on the next day of the accident. That evidence stands rebutted by the evidence produced by the opposite parties and which consists of the statements of Satnam Singh, who was the driver of the truck and the complainant himself, Ex.R-16, which were recorded by the Consumer Complaint No.82 of 2011. 10 investigator of the opposite parties. We are of the opinion that more weight is given to the evidence so produced by the opposite parties as the complainant failed to examine Satnam Singh driver in his evidence, who was the best witness to depose as to how the accident took place. The story so propounded by the complainant about the accident does not appeal to reasoning. According to him, the driver of the vehicle had steered the vehicle abruptly to one side after the stray cattle came in front of it. No sensible drive will abruptly steer the vehicle when it is loaded with such a weight. The truth came out when the statements of that driver and the complainant were recorded by the investigating officer. No doubt, they come up with the version that a stray animal had come in front of the vehicle but according to the driver, he tried to save that animal but as one car was going on by the side of the vehicle, so the vehicle went out of control and as a result of the soft soil and, on account of the drain by the side of the road, which was under construction, and overloading the vehicle turned turtle. It appears that the soft soil could not bear the weight of the overloaded vehicle, which resulted in the accident. Had the vehicle been loaded within the permissible limits, this accident could have been avoided.
11. The next point for determination is, whether the claim of the complainant was correctly repudiated by the opposite parties? As per the repudiation letter Ex.C-17, the claim was repudiated on the ground that the vehicle was used otherwise than in accordance with the 'Limitations as to Use' and it was found that overloading was the Consumer Complaint No.82 of 2011. 11 reason for the alleged accident warranting forfeiture of the benefits under the policy.
12. In S.G. Shivamurtheppa's case (supra) as per the conditions the vehicle could not have carried more than 12 passengers but at the time of accident 16 passengers were being carried in the same, which was in violation of the conditions of the insurance policy. The claim of the insured was repudiated by the Insurance Company on that ground. It was held therein that the repudiation of the claim was justified. Similarly in Suresh Babu's case (supra) there was overloading of the vehicle beyond reasonable limits, which amounted to gross violation of the policy and the legal provisions by the insured. It was held therein that the insurer was not liable.
13. As per the IRDA Regulations the following types of claims shall be considered as non-standard and shall be settled as indicated below after recording the reasons:-
Sr. Description Percentage of
No. settlement
(i) Under declaration of Deduct 3 years'
licensed carrying difference in
capacity premium from the
amount of claim or
deduct 25% of claim
amount, whichever
is higher.
(ii) Overloading of Pay claims not
vehicles beyond exceeding 75% of
licensed carrying admissible claim.
capacity
(iii) Any other breach of Pay upto 75% of
warranty/condition of admissible claim.
policy including
limitation as to use
Consumer Complaint No.82 of 2011. 12
14. In Suresh Babu's case (supra) it was held that where the overloading was beyond reasonable limits directing the insurer to pay non-standard claims would be unjustified. The ratio of that judgment fully applies to the facts of the present case. In the present case the vehicle was overloaded, which was almost twice the permissible weight. In these circumstances, we are of the opinion that even claim not exceeding 75% is also not admissible to the complainant under non-standard claims of the said Regulations.
15. From our decision on above said points and the findings so recorded, we conclude that there was no deficiency in service on the part of the opposite parties, who repudiated the claim of the complainant on valid ground. Therefore, the complainant is not entitled to any such insurance amount, compensation or litigation costs. The complaint is dismissed accordingly
16. The arguments in this case were heard on 27.5.2013 and the order was reserved. Now, the order be communicated to the parties.
17. The complaint could not be decided within the statutory period due to heavy pendency of court cases.
(JUSTICE GURDEV SINGH)
PRESIDENT
June 04, 2013 (BALDEV SINGH SEKHON)
Bansal MEMBER
Consumer Complaint No.82 of 2011. 13