State Consumer Disputes Redressal Commission
Chattar Singh vs 1. Iffco Tokyo General Insurance ... on 3 July, 2013
:STATE CONSUMER DISPUTES REDRESSAL COMMISSION, U.T., CHANDIGARH First Appeal No. : 135 of 2013 Date of Institution : 01.04.2013 Date of Decision : 03.07.2013 Chattar Singh son of Sh. Pritam Singh, resident of House No.6, Village Jodhpur, Tehsil Kalka, District Panchkula. Appellant/complainant V e r s u s 1. IFFCO Tokyo General Insurance Company Limited, Sector 28, Chandigarh, through Branch Manager. 2. IFFCO Tokyo General Insurance Company Limited, 4th and 5th Floor, IFFCO Towers, Plot No.3, Sector 29, Gurgaon-122001, through its Authorized Signatory. ....Respondents/Opposite Parties Appeal under Section 15 of the Consumer Protection Act, 1986. BEFORE: JUSTICE SHAM SUNDER (RETD.), PRESIDENT. MR. DEV RAJ, MEMBER.
Argued by: Sh. R.C. Gupta, Advocate for the appellant.
Sh. Ankur Gupta, Advocate for respondents no.1 and 2.
PER JUSTICE SHAM SUNDER (RETD.), PRESIDENT This appeal is directed against the order dated 22.02.2013, rendered by the District Consumer Disputes Redressal Forum-II, U.T., Chandigarh (hereinafter to be called as the District Forum only), vide which, it accepted the complaint, filed by the complainant (now appellant) and directed the Opposite Parties (now respondents), as under:-
In view of the above discussion, the present complaint is allowed and the opposite parties are directed as under :-
(i.) to pay the loss as assessed by the surveyor in his report (ii.) to pay Rs.30,000/- as compensation for mental agony and harassment.
(iii.) To pay Rs.10,000/- as litigations costs.
This order be complied with by the opposite parties, within 45 days from the date of receipt of its certified copy, failing which the amounts at Sr.No.(i) &
(ii) of para 8 above shall carry interest @18% per annum from the date of filing of this complaint till actual payment besides payment of litigation costs.
2. The facts, in brief, are that the complainant being the owner of Maruti Swift Dezire VDI Car, got the same insured from the Opposite Parties, for the period from 08.07.2011 to 07.07.2012, for the insured declared value of Rs.3,73,269/-. The complainant was only supplied Insurance Certificate-cum-Policy Schedule Annexure C-1. It was stated that the terms and conditions of the Insurance Policy, were not supplied to the complainant, by the Opposite Parties. On 18.03.2012 at around 4:30 p.m., the said vehicle met with an accident, due to sudden bursting of tyre, as a result whereof, it was extensively damaged. At that time, the vehicle was being driven by Dr. Sanjeev. DDR Annexure C-3, with regard to the accident was recorded, on 19.03.2012, in Police Post Cheetawalan, District Patiala. The complainant, immediately, telephonically informed Opposite Party No.1, regarding the incident and the claim was lodged. Thereafter M/s Protech Engineers, Surveyor and Loss Assessor was deputed, by the Opposite Parties, which submitted its report, but copy of the same was not provided to the complainant. It was further stated that the complainant kept on communicating with the Opposite Parties, for settlement of his claim, but to no avail. It was further stated that, finally, vide letter dated 25.05.2012 Annexure C-5, the Opposite Parties closed the claim of the complainant as no claim. It was further stated that the aforesaid acts of the Opposite Parties, amounted to deficiency, in rendering service, as also indulgence into unfair trade practice. When the grievance of the complainant, was not redressed, left with no alternative, a complaint under Section 12 of the Consumer Protection Act, 1986 (hereinafter to be called as the Act only), was filed, directing the Opposite Parties, to pay the claim amount, to the tune of Rs.3,74,977/-; compensation, in the sum of Rs.50,000/- for mental agony and physical harassment; interest @18% p.a., on the aforesaid amounts; and cost of litigation, to the tune of Rs.22,000/-.
3. The Opposite Parties, in their joint written version, admitted that the complainant got his Maruti Swift Dezire VDI Car, insured from them, for the period from 08.07.2011 to 07.07.2012, for the insured declared value of Rs.3,73,269/-. It was also admitted that the said vehicle, met with an accident, on 18.3.2012. It was, however, denied that the accident, in question, happened due to the sudden bursting of tyre. It was stated that the vehicle, in question, went out of control, on account of the reason that it was carrying six passengers, against the capacity of five persons. It was also admitted that the Surveyor and Loss Assessor was appointed by them. It was further stated that the complainant was not required to be given a copy of the survey report. It was further stated that the claim of the complainant was rightly repudiated, by the Opposite Parties, because the vehicle was carrying six passengers, instead of five passengers, and, as such, there was a breach of the provisions of the Motor Vehicles Act 1988, as also the terms and conditions of the Insurance Policy. It was further stated that neither there was any deficiency, in rendering service, on the part of the Opposite Parties, nor they indulged into unfair trade practice. The remaining averments, were denied, being wrong.
4. The Parties led evidence, in support of their case.
5. After hearing the Counsel for the parties, and, on going through the evidence, and record of the case, the District Forum, accepted the complaint, in the manner, referred to, in the opening para of the instant order.
6. Feeling aggrieved, the instant appeal, has been filed by the appellant/complainant, for modification of the order impugned, by granting relief, as prayed for, in the main complaint.
7. We have heard the Counsel for the parties, and, have gone through the evidence, and record of the case, carefully.
8. The first question, that falls for consideration, is, as to whether, the terms and conditions of the Policy were supplied to the complainant, at any point of time, or not. In the complaint, in paragraph number 1, it was stated by the complainant, that he had been supplied copy of the Certificate-cum-Policy Schedule Annexure C-1. He specifically stated, in this paragraph, that no other document or enclosures with regard to the terms and conditions etc., had ever been supplied by the Opposite Parties, till the date of filing the complaint. This stand taken up, by the complainant, in the complaint, was duly supported by him, in his affidavit, submitted by way of evidence. In reply to paragraph number 1, on merits, in the written version, the Opposite Parties stated that the contents of paragraph number 1 of the complaint, so far as the address of the complainant etc., needed no reply. It was further stated, in paragraph number 1 of the written version, that rest of the averments, made were incorrect, and, thus denied. It was further stated that the complainant could not wriggle out of the contractual terms, on flimsy grounds. No specific denial was made by the Opposite Parties, in their written reply, to the effect, that the terms and conditions of the Policy were not supplied to the complainant. In case, the terms and conditions of the Policy had been supplied to the complainant, then the Opposite Parties, were required to be in possession of the best evidence, such as acknowledgment receipt, but they failed to produce any such document. In the absence of production of any acknowledgment receipt, to the effect, that the terms and conditions of the Policy were supplied to the complainant, and he received the same, an adverse inference could be drawn, against the Opposite Parties, that such terms and conditions were not supplied. In M/s Modern Insulators Ltd. Vs Oriental Insurance Co. Ltd.I(2000)CPJ1 (SC), the principle of law, laid down, was to the effect, that it is the fundamental principle of insurance law, that utmost good faith, must be observed by the contracting parties, and good faith forbids either party, from non-disclosure of the facts, which the parties knew. The insured has a duty to disclose all the facts, and similarly it was the duty of the Insurance Company, and its agents, to disclose all material facts, in their knowledge, since obligation of good faith applies to both equally. It was, thus, the duty of the Insurance Company/Opposite Parties to disclose all the facts and circumstances, relating to the insurance cover, to the complainant. It was also required of them, to apprise the complainant, of the benefits of the insurance, exclusion clauses, contained therein, and the warranties referred to, in the same. It was, under these circumstances, the utmost duty of the insurer to supply the insurance Policy and the terms and conditions thereof, to the insured, so as to enable him, to go through the same, and understand the clauses contained therein. However, in the instant case, Opposite Parties, as stated above, failed to prove that the terms and conditions of the Insurance Policy were supplied to the complainant. In United India Insurance Co. Ltd. & Anr. Vs S.M.S. Tele Communications & Anr.III(2009)CPJ 246(NC), it was observed that being aware of the existence of the policy, is one thing, and being aware of the contents and meaning of the clauses of the policy, is another. In the instant case, it is not the case of the Insurance Company/Opposite Parties, that the complainant was made known of the meaning of the terms and conditions of the Policy. No affidavit, by way evidence, of the Insurance Advisor or the Agent was placed on record that the complainant, was explained the meaning of all the terms and conditions of the Policy and its exclusion clauses. The principle of law, laid down, in the aforesaid cases, is fully applicable to the facts of the instant case. It is, therefore, held that it was the bounden duty of the Opposite Parties, to supply the terms and conditions of the Policy, to the complainant, immediately, after the premium was paid by him. In this case, neither the terms and conditions same were supplied to the complainant, nor the same, were explained to him, nor exclusion clauses were made known to him. Due to this reason, there was deficiency, in rendering service, on the part of the Opposite Parties.
9. No doubt, the Surveyor was appointed, in this case, but neither the Survey report, was supplied to the complainant, nor produced during the course of evidence, in the District Forum. No plausible explanation was given by the Opposite Parties, as to what prevented them, from supplying a copy of the survey report, to the complainant, and producing the same, during the course of evidence, before the District Forum. Annexure C-5 is the letter dated 25.05.2012, whereby, the claim of the complainant was closed as no claim, on the ground that the registered seating capacity of the subject vehicle is 5 including driver and 6 passengers to be travelling at the material time of accident. This is a violation of the insurance Policy terms and conditions as well as relevant provisions of the Motor Vehicle Act 1988. It was on this ground, that the claim of the complainant was treated as no claim. No evidence was led by the Opposite Parties, that the vehicle was actually carrying 6 passengers, at the relevant time. As stated above, neither the report of the Surveyor, nor his affidavit was produced, on record, to prove this factum. As earlier stated, even the terms and conditions of the Policy were not supplied to the complainant, at any point of time, and, as such, he was not bound by the same. The vehicle, in this case, met with an accident, on account of bursting of tyre, as per the version of the complainant, which was duly supported by him, in his affidavit, submitted by way of evidence. This fact was also corroborated, through Annexure C-3, copy of the DDR, which was lodged by the complainant, immediately, after the occurrence of the accident. No evidence was produced by the Opposite Parties, that carrying of six passengers against the capacity of five passengers contributed to the bursting of tyre resulting into accident. Even otherwise, if it is assumed that 6 passengers were sitting in the vehicle, at the relevant time, though it had the capacity of 5 passengers, such minor alleged violation of the terms and conditions, in our considered opinion, could not be said to be sufficient, to refute the genuine claim of the complainant. We are of the considered opinion, that the claim of the complainant was repudiated on flimsy grounds. In B.V. Nagaraju v. Oriental Insurance Co. Ltd., II (1996) CPJ 28 (SC)=I (1997) ACC 123 (SC)=1996 ACJ 1178, it was held as under:-
It is plain from the terms of the Insurance Policy that the insured vehicle was entitled to carry 6 workmen, excluding the driver. If those 6 workmen when travelling in the vehicle, are assumed not to have increased any risk from the point of view of the Insurance Company on occurring of an accident, how could those added persons be said to have contributed (contributed) to the causing of it, is the poser, keeping apart the load it was not carrying. Here it is nobody's case that the driver of the insured vehicle was responsible for the accident. In fact, it was not disputed that the oncoming vehicle had collided head-on against the insured vehicle, which resulted in the damage. Merely by lifting a persons or two, or even three, by the driver or the cleaner of the vehicle, without the knowledge of owner, cannot be said to be such a fundamental breach that the owner should, in all events, be denied indemnification. The misuse of the vehicle was somewhat irregular though, but not so fundamental in nature so as to put an end to the contract, unless some factors existed which, by themselves, had gone to contribute to the causing of the accident. In the instant case, however, we find no such contributory factor.
The National Commission went for the strict construction of the exclusion clause. The reasoning that the extra passengers being carried in the goods vehicle could not have contributed, in any manner, to the occurring of the accident, was barely noticed and rejected sans any plausible account; even when the claim confining the damage to the vehicle only was limited in nature. We, thus, are of the view that in accord with the Skandia's case, the aforesaid exclusion term of the insurance policy must be read down so as to serve the main purpose of the policy that is indemnify the damage caused to the vehicle, which we hereby do. For the view above taken, this appeal is allowed, the judgment and order of the National Consumer Disputes Redressal Commission, New Delhi is set aside and that of the State Commission is restored in its entirety, but without any order as to costs.
The District Forum was, thus, right in holding that by illegally and arbitrarily, repudiating the genuine claim of the complainant, the Opposite Parties were deficient, in rendering service. The findings of the District Forum, in this regard, being correct, are affirmed.
10. The next question, that falls for consideration, is, as to what amount of indemnification, was required to be paid by the Opposite Parties, to the complainant, on account of extensive damage to the vehicle, caused in the accident, referred to above. The District Forum, directed the Opposite Parties, to pay the amount of loss, to the complainant, as assessed by the Surveyor, in his report. As stated above, neither copy of the survey report was supplied to the complainant, though he asked for the same, and, on the other hand, the stand of the Opposite Parties, in their written version, was that copy of the Survey report was not required to be supplied to him (complainant), nor the same was produced on the record, alongwith Annexures, nor the affidavit of the Surveyor was furnished, during the course of leading evidence, in the District Forum. In the absence of production of a copy of the survey report of the Surveyor, on record, and his affidavit, in support thereof, it is not known, as to how, the District Forum came to the conclusion, that the complainant was required to be paid the amount of loss, as assessed by the Surveyor. In the absence of the report of the Surveyor, having been produced by the Opposite Parties, on the record, the other evidence, which was produced by the complainant, was required to be taken into consideration, for the purpose of coming to the conclusion, as to what amount of indemnification, he (complainant) was entitled. The complainant produced, on record, the estimate of repairs of M/s Berkeley Automobiles Limited, an authorized dealer. This estimate of repairs Annexure C-4, is at pages 65 to 75 of the District Forum file. All the items which required repairs or replacement, were mentioned, in this estimate. Ultimately, the repairer came to the conclusion, that net estimate amount, came to be Rs.6,04,751.54Ps. The insured declared value of the vehicle, in question, as per Annexure C-1, the Certificate-cum-Policy Schedule, was Rs.3,73,269/-. It means that the vehicle was damaged beyond repairs. The damage to the vehicle was more than 75% of the insured declared value. No evidence was produced by the Opposite Parties, to rebut the estimate Annexure C-4, submitted by the complainant, with regard to the damaged parts of the vehicle. Not only this, for the purpose of getting prepared this estimate, the complainant paid a sum of Rs.10,000/-, vide Annexure C-11, to the Berkeley Automobiles Limited. Since, the damage to the vehicle was more than 75% of the insured declared value, the vehicle was required to be treated as a total loss. Under these circumstances, the complainant was required to be paid the insured declared value of the vehicle, by way of indemnification, on account of damage caused to the same. As stated above, the terms and conditions of the Policy were not supplied to the complainant, nor produced by the Opposite Parties, on record, and, as such, the complainant was not bound by the same. Under these circumstances, the direction given by the District Forum, to the Opposite Parties, to pay the amount of loss, as assessed by the Surveyor, being not based on any evidence, on record, is required to be modified. It is, therefore held that the complainant is entitled to the insured declared value of the vehicle, to the tune of Rs.3,73,269/-.
11. For the reasons recorded above, the appeal is partly accepted, with no order as to costs. The order of the District Forum is modified, in the following manner:
(i.) The respondents/Opposite Parties shall pay to the appellant/complainant, the amount of Rs.3,73,269/-, i.e. the insured declared value of the vehicle, by way of indemnification, on account of loss caused to the same, instead of the amount of loss, as assessed by the Surveyor, in his report, which was never produced on record.
(ii.) The other reliefs granted and directions given by the District Forum, in its majority order, shall remain intact.
12. Certified copies of this order, be sent to the parties, free of charge.
13. The file be consigned to Record Room, after completion Pronounced.
July 3, 2013 Sd/-
[JUSTICE SHAM SUNDER (RETD.)] PRESIDENT Sd/-
(DEV RAJ) MEMBER Rg