State Consumer Disputes Redressal Commission
Vishal Aggarwal Son Of Subhash Chand vs Oriental Insurance Co. Ltd on 11 May, 2011
STATE CONSUMER DISPUTES REDRESSAL COMMISSION, PUNJAB,
S.C.O. NO. 3009-10, SECTOR 22-D, CHANDIGARH.
First Appeal No.1549 of 2006
Date of institution : 11.12.2006
Date of decision : 11.5.2011
Vishal Aggarwal son of Subhash Chand r/o House No.536, Near Bus Stand,
Kharar, District Ropar.
.......Appellant
Versus
Oriental Insurance Co. Ltd. through its Branch Manager, Ropar.
......Respondents
First Appeal against the order dated 24.10.2006 of
the District Consumer Disputes Redressal Forum,
Ropar.
Before :-
Hon'ble Mr. Justice S.N. Aggarwal President.
Mr. B.S. Sekhon, Member.
Present :-
For the appellant : Shri V.K. Gupta, Advocate. For the respondents : Shri D.P. Gupta, Advocate. JUSTICE S.N. AGGARWAL, PRESIDENT:
Vishal Aggarwal appellant was the owner of Toyota Qualis car bearing registration certificate No.PB-12-G-0039. It was insured with the respondents for the period from 23.8.2004 to 22.8.2005 and for the subsequent period from 23.8.2005 to 22.8.2006. This car had met with an accident on 3.11.2005 at about 10.30 P.M. It was being driven by Karamjit Singh at the time of accident. Said Karamjit Singh was holding a valid and effective driving licence. The matter regarding the accident was reported to the police of PS-Assraon at DDR No.17 dated 4.11.2005.
2. It was further pleaded that the Toyota Qualis car had suffered extensive damage in the accident. It was got repaired by the appellant by spending an amount of Rs.2,70,732/-. The insurance claim was repudiated by the respondents. First Appeal No.1549 of 2006. 2 Hence the complaint for insurance claim. Compensation, interest and costs were also prayed.
3. The respondents filed the written statement. It was admitted that the said vehicle was owned by the appellant and it was insured with the respondents for the period from 23.8.2004 to 22.8.2005 and thereafter for the period from 23.8.2005 to 22.8.2006. It was also not denied that the vehicle had met with an accident on 3.11.2005. However the respondents had appointed the surveyor who had assessed the loss at Rs.1,91,032/-.
4. The version of the respondents was that the vehicle was being used as a taxi by the appellant while it was got insured by him as a vehicle for personal use. Since the appellant had committed the breach of the terms and conditions of the insurance policy, therefore, the claim of the appellant was repudiated. The repudiation was legal and valid. Dismissal of the complaint was prayed.
5. The appellant filed his affidavit as Ex.C-1, the affidavit of Surinder Kumar as Ex.C-2 and the affidavit of Karamjit Singh as Ex.C-3. He also proved documents Ex.C-4 to Ex.C-10.
6. On the other hand, the respondents filed the affidavit of B.S. Ahuja, Branch Manager as Ex.R1/A. The respondents also proved documents Ex.R-1 to Ex.R18. The respondents also filed the affidavit of D.S. Chadha, ex-Addl. Deputy Inspector General (Vigilance) Investigator as Ex.R-19.
7. After considering the pleadings of the parties and the affidavits/documents placed on file by them, the learned District Forum accepted the complaint partly with costs of Rs.1,000/- vide impugned judgment dated 24.10.2006 and directed the respondents to make the payment of 75% of the assessed amount of Rs.1,91,032/- and by further reducing a sum of Rs.5,000/- as the value of salvage. The total amount awarded to the appellant towards the insurance claim was Rs.1,43,274/- and the respondents were also directed to pay interest at the rate of 6% per annum from 4.4.2006 till realization.
8. Hence the appeal.
First Appeal No.1549 of 2006. 3
9. The submission of the learned counsel for the appellant was that the vehicle was not being used as a taxi. Therefore the appellant was entitled to the full insurance claim. It was also submitted that the amount assessed by the surveyor was highly inadequate. Therefore it was prayed that the appeal be accepted, the impugned judgment dated 24.10.2006 be modified and the appellant be awarded the balance amount out of Rs.2,70,732/-. It was also prayed that the interest be enhanced to 12% per annum from 6% per annum.
10. On the other hand the submission of the learned counsel for the respondents was that there was no merit in the present appeal and the same be dismissed.
11. Record has been perused. Submissions have been considered.
12. The admitted facts are that the Toyota Qualis car bearing registration certificate No.PB-12-G-0039 was owned by the appellant. Copy of the registration certificate of this vehicle has been proved as Ex.C-4.
13. It is also admitted that the vehicle was insured with the respondents and copies of the insurance policies have been proved as Ex.C-5 for the period from 23.8.2004 to 22.8.2005 and Ex.C-6 for the period from 23.8.2005 to 22.8.2006.
14. It is also proved that the vehicle had met with an accident on 3.11.2005 and a copy of DDR No.17 dated 4.11.2005 PS-Assraon, District Nawanshahr has been proved as Ex.C-8.
15. The appellant had alleged that the car had suffered extensive damage and he had spent an amount of Rs.2,70,731/- for getting the same repaired. He has also proved the repair bill (running into 6 sheets) as Ex.C-7 which reveals that the appellant had made the payment of Rs.2,70,231/- and the car was got repaired from Toyota Quality Services (PIONEER TOYOTA, Phase-1, Industrial Area, Chandigarh).
16. On the other hand, the respondents have proved the report of the surveyor dated 12.1.2006 as Ex.R-6. In the repair bill Ex.C-7, 130 items have been replaced/repaired but the surveyor has counted only 56+24=90 items. No reasons have been given by the surveyor as to why the remaining factors/items numbering First Appeal No.1549 of 2006. 4 40 had not been considered by him. Moreover the estimated costs have been quoted by the surveyor in his report Ex.R-6 as Rs.4,28,604/- but he had assessed the amount at Rs.1,55,377/- besides labour charges. No reasons have been given by the surveyor as to how the amount has been reduced and what ratio or formula had been applied by him to these calculations. Moreover the vehicle was of 2004 Model and the accident had taken place on 3.11.2005. The surveyor had also applied the formula of depreciation although the car was only about 15/16 months old.
17. No doubt it has been settled by the Hon'ble Supreme Court in the judgment reported as "Sri Ventakeshwara Syndicate v. Oriental Insurance Company Limited" II (2010) CPJ 1 (SC)" that the report of the surveyor is an important piece of evidence and cannot be brushed aside without valid reasons but it was held by the Hon'ble Supreme Court in the judgment reported as "New India Assurance Company Limited v. Pradeep Kumar" 2010(1) CPC 387 that the report of the surveyor is not always last and final word for settlement of the claim nor it is binding on the insurer or the insured.
18. In the present case, this is especially so because the surveyor had not given any reasons for excluding the value of some of the items.
19. In view of the reasons given above, we reach the conclusion that the amount assessed by the surveyor is on the lower side. When the appellant had spent an amount of Rs.2,70,731/- for which the bill dated 10.1.2006 (Ex.C7) has been proved, it cannot be held that the amount of repair was only Rs.1,91,032/-. It is, therefore, held that the appellant had spent an amount of Rs.2,70,731/- for the repair of his car.
20. There is no dispute between the parties about the persons who were travelling in this vehicle at the time of accident. One of those persons had made a statement to the surveyor (Ex.R-7) in which he had deposed that he had hired the vehicle when the accident had taken place. Hem Raj another person travelling in the vehicle had also made the statement on 11.11.2005 (Ex.R-8) according to First Appeal No.1549 of 2006. 5 which the vehicle was hired by him from the owner/driver. Another person Sailesh Rohila had made the statement dated 11.11.2005 (Ex.R-9) who had also taken the plea that the hire charges were decided at the rate of Rs.5.50P per kilometer. Sarwan Singh another passenger had also made the similar statement Ex.R-11. It is, therefore, clearly proved that the vehicle was being used as a taxi by the appellant.
21. However at the same time the claim cannot be repudiated alone on the basis that the vehicle was being used as a taxi.
22. In this context, reference can be made to the judgment of the Hon'ble Supreme Court reported as "National Insurance Company Ltd., v. Nitin Khandelwal, IV (2008) CPJ 1 (SC)" in which it was held by the Hon'ble Supreme Court that if there was no nexus between the cause of claim with the breach of the terms and conditions of the policy, then the insured is entitled to insurance claim to the extent of 75% on Non-Standard basis. It was held by the Hon'ble Supreme Court as under : -
"13. In the instant case, the State Commission allowed the claim only on non-standard basis, which has been upheld by the National Commission. On consideration of the totality of the facts and circumstances in the case, the law seems to be well settled that in case of theft of vehicle, nature of use of the vehicle cannot be looked into and the Insurance Company cannot repudiate the claim on that basis.
14. In the facts and circumstances of the case, the real question is whether, according to the contract between the respondent and the appellant, the respondent is required to be indemnified by the appellant. On the basis of the First Appeal No.1549 of 2006. 6 settled legal position, the view taken by the State Commission cannot be faulted and the National Commission has correctly upheld the said order of the State Commission."
23. This judgment was followed in the subsequent judgment of the Hon'ble Supreme Court reported as "Amalendu Sahoo v. Oriental Insurance Co. Ltd., II (2010) CPJ 9 (SC)" in which the law laid down by the Hon'ble Supreme Court in Nitin Khandelwal's case (supra) was reiterated. It was held by the Hon'ble Supreme as under : -
"14. In this connection reference may be made to a decision of National Commissiion in the case of New India Assurance Company Limited v. Narayan Prasad Appaprasad Pathak, reported in II (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. 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
First Appeal No.1549 of 2006. 7
amount, whichever is
higher.
(ii) Overloading of vehicles Pay claims not
beyond licensed carrying exceeding 75% of
capacity admissible claim.
(iii) Any other breach of Pay upto 75% of
warranty/condition of admissible claim.
policy including
limitation as to use
24. The basis in the present case is the accident of the car. Therefore even if the car was insured for personal use and was being used as a taxi by the appellant he is entitled to insurance claim on non-standard basis to the tune of 75%.
25. This appeal is partly accepted and the appellant is held entitled to 75% of the insurance claim of Rs.2,70,731/- which comes to Rs.2,03,048.25P rounded to Rs.2,03,048/- (75% of Rs.2,70,731/-).
26. The rate of interest awarded by the learned District Forum is correct and the same is upheld.
27. Costs are enhanced from Rs.2,000/- to Rs.5,000/-.
28. However the appellant shall complete the formalities in favour of the respondents within a period of three weeks after the receipt of a copy of this order and the respondents would pay the insurance claim immediately thereafter.
29. The arguments in this case were heard on 4.5.2011 and the order was reserved. Now, the order be communicated to the parties.
30. The appeal could not be decided within the statutory period due to heavy pendency of court cases.
(JUSTICE S.N. AGGARWAL)
PRESIDENT
May 11 , 2011 (BALDEV SINGH SEKHON)
Bansal MEMBER
First Appeal No.1549 of 2006. 8