State Consumer Disputes Redressal Commission
Pyare Lal vs The General Manager, Reliance General ... on 21 October, 2013
2nd Additional Bench
STATE CONSUMER DISPUTES REDRESSAL COMMISSION, PUNJAB
DAKSHIN MARG, SECTOR 37-A, CHANDIGARH
First Appeal No. 143 of 2009
Date of institution: 6.2.2009
Date of Decision:21.10.2013
Pyare Lal aged about 50 years son of Shri Raunak Ram, resident of
Village Sular Gharat, Tehsil Sunam, District Sangrur.
.....Appellant/Complainant
Versus
1. The General Manager, Reliance General Insurance Company,
Registered Office, Reliance Centre, 19, Walchand Hirachand
Marg, Ballard Estate, Mumbai-400038 (Maharashtra).
2. The Manager, Reliance General Insurance Company Ltd.,
Sandhu Complex, SCO 131, 1st Floor, Cabin F6A, Chhoti Bardari,
Patiala, Punjab.
3. M/s Hari Om Motor Finance Limited, Dirba Mandi, Tehsil Sunam,
District Sangrur through its Manager.
.....Respondent/Opposite parties
Argued By:-
For the appellant : None.
For respondents No.1&2 : Sh. P.M. Goyal, Advocate
For respondent No.3 : Ex.-parte.
First Appeal against the order dated
18.12.2008 passed by the District Consumer
Disputes Redressal Forum, Sangrur.
Quorum:-
Shri Gurcharan Singh Saran, Presiding Judicial Member
Shri Piare Lal Garg, Member Shri Jasbir Singh Gill, Member FIRST APPEAL NO. 143 OF 2009 2 Gurcharan Singh Saran, Presiding Judicial Member The appellant/complainant(hereinafter called "the complainant") has filed the present appeal against the order dated 18.12.2008 passed by the District Consumer Disputes Redressal Forum, Sangrur (hereinafter called "the District Forum") in consumer complaint No. 276 dated 6.6.2008 vide which the complaint filed by the complainant was dismissed.
2. The complainant filed the complaint under Section 12 of the Consumer Protection Act, 1986 (in short 'the Act') on the allegations that the complainant got insured his vehicle bearing No. HP-58/1370 with OP No. 1 having one of its office at Patiala by OP No. 2 at the instance of OP No. 3. However, on 20.2.2008 at 7.30 p.m., the said vehicle met with an accident when it was driven by Dharamveer alongwith his friend Manpreet Singh s/o Lal Singh, resident of Sular Gharat when they were coming from his relation from village Kular Khurd. FIR No. 59 dated 21.2.2008 under Sections 279/337/338/427 IPC was registered in the Police Station, Sadar Sangrur. The complainant approached the office of Ops time and again for the claim of damages caused to Tata Sumo No. HP- 58/1370 and also submitted all the necessary papers with respondent No. 2. However, inspite of repeated requests, the opposite party has done nothing regarding the payment of the claim and putting off the matter on one pretext or the other. Accordingly, the complaint with the direction to the opposite party that to pay the amount of estimated value of repair of Tata Sumo as mentioned in the estimate dated FIRST APPEAL NO. 143 OF 2009 3 4.3.2008 and 7.3.2008, pay Rs. 25,000/- on account of mental agony and harassment and Rs. 11,000/- as litigation expenses.
3. The complaint was contested by Ops No. 1 & 2, who filed written statement taking legal objections that Dharamveer Sharma alleged driver of the insured vehicle at the time of accident was not holding valid driving licence to drive the abovesaid vehicle; valid registration certificate and route permit of the insured vehicle, therefore, the claim of the complainant was rightly repudiated vide letter dated 30.4.2008, after investigation and getting report of Er. Rajesh Aggarwal, Surveyor and Loss Assessor, who submitted that the fitness certificate of the vehicle had expired on 24.4.2004; the insured vehicle was being plied as a Taxi and was carrying passenger on hire and reward and violated the terms and conditions of the policy; the liability of the Company is limited to Rs. 25,000/- as per survey report put by Er. Rajesh Aggarwal, who has assessed the loss on net of salvage / cash loss basis for which the insured / complainant has also issued his consent letter as full and final settlement without any coercion; the complaint is not maintainable before the District Forum; the complainant has got no locus-standi or cause of action to file the complaint and the complaint is false, frivolous and vexatious to the knowledge of the complainant, therefore, the same is also liable to be dismissed under Section 26 of the Act. On merits, it has been admitted that the complainant got his vehicle insured vide cover note No. 200700683229 effective from 31.7.2007 to 30.7.2008 and after receipt of the information of accident Mr. Rajesh Aggarwal was appointed to investigate and FIRST APPEAL NO. 143 OF 2009 4 assess the loss, who assessed the same as Rs. 25,000/-, however, the same is not admissible to the complainant in view of the legal objections taken in the written statement, therefore, it was stated that there is no merit in the complaint and the same be dismissed.
4. Respondent No. 3 in his written statement has denied that the vehicle was got insured at the instance of this respondent. Other averments have been denied for want of knowledge and stated that he has wrongly impleaded as a party.
5. The parties were allowed by the learned District Forum to lead their evidence.
6. In support of his allegations, the complainant had tendered into evidence copy of RC Ex. C-1, copy of cover note of ins. Policy Ex. C-2, motor claim form Ex. C-3, copy of FIR Ex. C-4, estimate dated 4.3.2008 Ex. C-5, estimate dated 7.3.2008 Ex. C-6, copy of driving licence of Dharamvir Sharma Ex. C-7, affidavit of the complainant Ex. C-8. On the other hand, opposite party No. 3 had tendered into evidence affidavit of Sanjeev Kumar, Prop. of Hari Om Motors Finance Ex. R-1 and opposite parties No. 1 & 2 had tendered into evidence survey report of Er. Rajesh Aggarwal Ex. R-1, consent letter Ex. R-2, repudiation letter Ex. R-3, cover note Ex. R-4, letter written by Surveyor Ex. R-5.
7. After going through the allegations in the complaint, written statements, evidence and documents brought on the record, the learned District Forum vide impugned order observed that as per the findings recorded by Er. Rajesh Aggarwal, fitness certificate of the Sumo had already expired before the accident and it was valid upto FIRST APPEAL NO. 143 OF 2009 5 24.4.2004 and accident took place on 20.2.2008 and after relying upon the judgment "Aero Flot Soviet Airlines versus United India Insurance Co. Ltd.", 2006 CTJ 952 (NC), it was held that it was a case of violation of the warranty conditions of the policy and violation of Section 39 of the Motor Vehicles Act because no vehicle could be deemed to be validly registered for the purpose of Section 39 unless it carries a fitness certificate. It was further followed in "National Ins. Co. Ltd. Versus Laxmi Narayan Dhut", (2007) CPJ 13 (SC) and ultimately, it was found that there is no merit in the complaint and the same was dismissed.
8. Aggrieved with the order passed by the learned District Forum, the appellant/complainant has filed the present appeal.
9. In the grounds of appeal, it has been contended that only the pleadings of the parties have been referred and that the respondents have admitted in their written statement that as per the investigation conducted by the Surveyor, the complainant is entitled only for Rs. 25,000/- but the same was also declined by the learned District Forum.
10. However, the counsel for the complainant has not stated in the grounds of appeal what is the effect of non-availability of fitness certificate on the date of accident, whereas, counsel for the respondents has relied upon the judgments, which have been referred by the learned District Forum.
11. However, the perusal of the record of the District Forum shows that only the insurance cover was given by the opposite parties to the complainant, the same has been placed as Ex. C-2. FIRST APPEAL NO. 143 OF 2009 6 The terms and conditions were not supplied to the complainant, therefore, in case the terms of the policy have not been issued to the complainant then how the opposite parties can rely upon the terms and conditions and its violation. However, in the latest judgment of the Hon'ble National Commission "New India Assurance Co. Ltd. versus Smt. Malti Bhikhabhai Bhoya", 2013 (2) CPR 462 (NC) wherein it has been observed that if there is any breach of warranty or condition of policy including limitation as to use, the complainant is entitled to get 75% of the admissible claim on non-standard basis and there is another judgment of the Hon'ble National Commission "New India Assurance Company Ltd. versus Konda Srinivasa Rao", 2013(2) CPR 564 (NC) on the same point. In that case, claim repudiated on the ground of overloading - State Commission awarded 75% of the claim on non-standard basis. - Order passed by the State Commission does not suffer from any infirmity on any score." However, the Hon'ble Supreme Court of India in Civil Appeal No. 2703 of 2010 "Amalendu Sahoo Vs. Oriental Insurance Co. Ltd.", decided on 25.3.2010 held in paras No. 12 to 15 as follows:-
"12. Reference in this case may be made to the decision of National Commission rendered in the case of United India Insurance Company Limited v. Gian Singh reported in 2006 CTJ 221 (CP) (NCDRC). In that decision of the National Consumer Disputes Redressal Commission (NCDRC) it has been held that in a case of violation of condition of the policy as to the nature of use of the vehicle, the claim ought to be settled on a non-standard basis. The said decision of the National Commission has been referred to by this Court in the case of National Insurance Company Limited v. Nitin Khandelwal reported in 2008 (7) SCALE 351. In paragraph 13 of the judgment, in the case of Nitin Khandelwal (supra) this Court held:-
"...The appellant 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. The respondent submitted that even assuming FIRST APPEAL NO. 143 OF 2009 7 that there was a breach of condition of the insurance policy, the appellant Insurance Company ought to have settled the claim on non-standard basis.
13. In the case of Nitin Khandelwal (supra) the State Commission allowed 75% of the claim of the claimant on non-standard basis. The said order was upheld by the National Commission and this Court refused to interfere with the decision of the National Commission.
14. In this connection reference may be made to a decision of National Commission in the case of New India Assurance Company Limited v. Narayan Prasad Appaprasad Pathak reported in (2006) CPJ 144 (NC). In that case also the question was, whether the insurance company can repudiate the claims in a case where the vehicle carrying passengers and the driver did not have a proper driving licence and met with an accident. While granting claim on non-standard basis the National Commission set out in its judgment the guidelines issued by the insurance company about settling all such non-standard claims. The said guidelines are set out below:-
Sr. No. Description Percentage of settlement
(i) Under declaration of Deduct 3 years' difference
licensed carrying capacity in premium from the
amount of claim or deduct
25% of claim amount,
whichever is higher.
(ii) Overloading of vehicles Pay claims not exceeding
beyond licensed carrying 75% of admissible claim. capacity
(iii) Any other breach of Pay upto 75% of admissible warranty/condition of policy claim.
including limitation as to use From a perusal of the aforesaid guidelines it is clear that one of the cases where 75% claim of the admissible claim was settled was where condition of policy including limitation as to use was breached."
12. The counsel for the respondents has not been able to rebut the latest judgments of the Hon'ble National Commission. In this way, the complainant/appellant will be entitled to 75% of the claim. The loss assessed by the Surveyor as appointed by the Ops is Rs. 25,000/- and its 75% will come to Rs. 18,750/-, accordingly, the FIRST APPEAL NO. 143 OF 2009 8 appeal of the appellant is allowed with the direction to the Ops to pay Rs. 18,750/-, Rs. 5,000/- as compensation and litigation expenses, within two months from the receipt of copy of the order.
13. The arguments in this appeal were heard on 8.10.2013 and the order was reserved. Now the order be communicated to the parties as per rules.
14. The appeal could not be decided within the statutory period due to heavy pendency of Court cases.
(Gurcharan Singh Saran) Presiding Judicial Member (Piare Lal Garg) Member October 21, 2013. (Jasbir Singh Gill) as Member