State Consumer Disputes Redressal Commission
The Oriental Insurance Company Ltd. vs M/S Vardhman Concrete on 24 October, 2017
STATE CONSUMER DISPUTES REDRESSAL COMMISSION UTTARAKHAND, DEHRADUN
FIRST APPEAL NO. 167 / 2015
The Oriental Insurance Co. Ltd.
Divisional Office, Railway Road
Opposite Jwalapur Post Office, Jwalapur
Thorough The Oriental Insurance Co. Ltd.
Divisional Office: Ist Floor, 4-B, Sachdeva Colony
Opp. Nainital Bank Ltd. Haridwar Road, Dehradun
Through its Senior Divisional Manager
......Appellant / Opposite Party
Versus
M/s Vardhman Concrete
354, Rampur Pawti, M.I.E.T. College, Meerut
Head Office: C-45, Sharda Nagar, Railway Road, Jwalapur, Haridwar
Through its Director Sh. Rajat Jain S/o Late Mukesh Jain
R/o C-45, Sharda Nagar, Railway Road, Jwalapur, Haridwar
.......Respondent / Complainant
Sh. M.K. Kohli, Learned Counsel for the Appellant
Sh. S.S. Rana, Learned Counsel for Respondent
Coram: Hon'ble Mr. Justice B.S. Verma, President
Mr. D.K. Tyagi, H.J.S., Member
Mrs. Veena Sharma, Member
Dated: 24/10/2017
ORDER
(Per: Mr. D.K. Tyagi, Member):
This appeal, under Section 15 of the Consumer Protection Act, 1986, has been preferred by the appellant-Insurance Company against the order dated 24.06.2015 passed by the District Forum, Haridwar in consumer complaint No. 288 of 2013, whereby the District Forum has allowed the consumer complaint against the opposite party-Insurance Company. The District Forum has directed the Insurance Company to pay Rs. 1,92,356.71ps. assessed by the Surveyor and Rs. 10,000/- for compensation to the complainant, within a month from the date of order.2
2. Briefly stated the facts of the case as mentioned in the consumer complaint are that the complainant-Sh. Rajat Jain S/o Late Mukesh Jain, R/o C-45 Sharda Nagar, Railway Road, Jwalapur, Haridwar is the director of M/s Vardhman Concrete had purchased a vehicle Transit Mixture from Ashok Leyland Company. The registration number of the vehicle is UP15-AT-8988, which is registered in the name of company-M/s Vardhman Concrete. It was purchased for company use. This vehicle was insured with the opposite party-The Oriental Insurance Co. Ltd. with policy No. 252900/31/2013/2027 for the period from 01.09.2012 to 31.08.2013. It was a comprehensive policy for which the complainant had paid a premium of Rs. 20,052/-. This premium of insurance had included the loss of the vehicle. That on 05.10.2012, the vehicle got damaged at the time of unloading concrete, when heap of clay at site was fell down. In the said incident machine Transit Mixture / vehicle was badly damaged. The opposite party was intimated within no time and the opposite party registered the claim at claim No. 252900/31/2013/030108 and a Surveyor was appointed to assess the loss. The Surveyor inspected the site and assessed the loss and on the direction of Surveyor, the vehicle was taken to the authorised garage T.V. Sundram Liner and Sons Ltd., Delhi Road, Meerut, where the said vehicle was repaired. An amount of Rs. 3,54,981/- was spent on the repair of aforesaid vehicle / machine. Original bills of repair as well as registration certificate, permit, insurance and driving licence etc. were given to the Insurance Company alongwith claim form. Due to accident as well as repair work, this vehicle / machine could not be used for about 4 months, for which the complainant suffered loss. The opposite party-Insurance Company repudiated the claim of the complainant unlawfully without mentioning any reason vide letter dated 07.03.2013, thereby committed deficiency in service. Due to non-payment of claim amount, the complainant sent a legal registered notice dated 01.05.2013 through his advocate to the opposite party-Insurance Company, which was never replied by the opposite party. This vehicle / machine was insured by the opposite party-Insurance Company with comprehensive insurance 3 cover. The incident covered through currency of insurance, therefore, complainant is entitled to get an amount of Rs. 3,54,981/- on account of repair with interest @ 10% as well as compensation for mental agony and financial loss. The complainant resides at District Haridwar and the opposite party-Insurance Company is also working in District Haridwar, therefore, District Forum Haridwar has got jurisdiction to hear and decide the matter.
3. The opposite party-The Oriental Insurance Co. Ltd. has filed written statement before the District Forum and has pleaded that the answering opposite party has issued insurance policy for the purpose of commercial use. Due to commercial use of the vehicle in question, the complaint is not maintainable before the District Forum and is liable to be dismissed. It is denied that the mixture / machine / vehicle was purchased for personal use, rather the complainant is a company and there is no personal use in the company, therefore, this vehicle was being used for commercial purpose and the complainant does not come under the category of 'consumer'. The answering opposite party has not committed any deficiency in service. The complaint does not come within the purview of Consumer Protection Act, 1986. It is wrong to say that the vehicle in question was got damaged on 05.10.2012 at the time of unloading of concrete at Modi Rubber, Meerut. Actual fact is that the complainant informed the answering opposite party after a delay of 25 days' on 01.11.2012 and answering opposite party appointed a Surveyor Sh. Pawan Kumar, who had filed final surveyor report dated 29.01.2013. It is denied that an amount of Rs. 3,54,981/- was spent on repair of the vehicle. Actual fact is that the claim form as well as final survey report reveals that the vehicle in question was over turned by slip at the time of unloading of concrete at Modi Rubber, Meerut and got damaged. The complainant did not take risk cover for over turning by payment of extra premium. Moreover, permit of the vehicle was valid from 06.10.2012, whereas the incident took place on 05.10.2012, therefore, permit of the vehicle was not valid on the date of incident, i.e. 05.10.2012 4 and the vehicle was being driven by violating the terms and conditions of the insurance policy. The Surveyor Sh. Upendra Kumar submitted his report on 05.03.2013 and during survey, it was found that fitness of the vehicle was also not valid at the time of incident and there was no valid permit on the date of incident and this fact was also mentioned in the survey report by the Surveyor Sh. Upendra Kumar. It is wrong to say that the claim was wrongly repudiated by the Insurance Company, rather the complainant was informed by the answering opposite party by letter dated 07.03.2013 about the violation of terms and conditions of the insurance policy and again through a letter dated 24.03.2013, the complainant was informed and finally through letter dated 03.07.2013, the complainant was informed as his claim was repudiated as 'No Claim'. There is no unfair trade practice or deficiency in service or any unlawful act done by the answering opposite party. The complainant is not entitled to get any claim amount from the answering opposite party.
4. The District Forum, on an appreciation of the material on record, allowed the consumer complaint vide impugned order dated 24.06.2015 in the above terms. Aggrieved by the said order, the opposite party-Insurance Company has filed the present appeal.
5. We have heard Sh. M.K. Kohli, learned counsel for the appellant and Sh. S.S. Rana, learned counsel for respondent and have gone through the entire record of the District Forum. We have also perused the material placed on record.
6. Learned counsel for the appellant-opposite party has submitted before this Commission that the order of the District Forum is against law, facts and merits of the case. The District Forum has not considered the written statement and evidence filed by the appellant. The court below has wrongly held that the claim of the respondent-complainant cannot be repudiated on the ground that on the date of the accident, the vehicle was not having a valid and effective permit. It was clearly proved on record 5 that on the date of accident, the vehicle was not having a valid permit. The respondent has committed breach of the provisions of the Motor Vehicles Act, 1988, as well as the terms and conditions of the insurance policy. The court below has not considered Section 66 of the Motor Vehicles Act, 1988, which deals with the necessity for permits. The court below has not considered that in the insurance policy, it was specifically provided that, "the policy covers use only under a permit within the meaning of the Motor Vehicles Act, 1988 or such a carriage falling under sub-section 3 of Section 66 of the Motor Vehicles Act, 1988. The court below has not considered that no extra premium was paid by the respondent for covering the risk of overturning of the vehicle. The accident in question took place on account of overturning of the insured vehicle. Since there was breach of the terms and conditions of the policy on the part of the respondent, the claim was not payable and was rightly repudiated by the appellant. The court below has not considered that the respondent has given the consent for settlement of the claim for sum of Rs. 1,92,356/- less 10% depreciation, as would be evident from the consent letter dated 25.01.2013. There was no deficiency in the services of the appellant.
7. Respondent-complainant has filed documents relating to the registration, permit, certificate of fitness, insurance policy, driving licence of the driver and also filed copy of the repudiation letter dated 07.03.2013. Sh. Rajat Jain-Director of M/s Vardhman Concrete, the complainant- respondent has also filed an affidavit (paper Nos. 13/1 to 13/2 on the District Forum's record). In the said affidavit, the respondent has deposed in para No. 7 that permit of the vehicle is filed, which is annexure-13 and at the time of accident of the vehicle, this permit annexure-13 was valid for the duration from 10.10.2011 to 09.10.2016. Similarly, certificate of fitness annexure-14 has been filed, which was also valid at the time of accident. We have gone through the documents National Permit For Goods Carriage annexure-13 as well as certificate of fitness annexure-14 filed on the record of the District Forum and have reached the conclusion that the 6 vehicle in question was having valid permit, which was valid from 10.10.2011 to 09.10.2016 and this vehicle was having a certificate of fitness from 30.09.2011 to 30.09.2013. So far, commercial purpose of this vehicle is concerned, we have gone through the case M/s Harsolia Motors vs. M/s National Insurance Co. Ltd. decided on 03.12.2004. In this case, the Hon'ble National Commission has held that when a person takes insurance policy to cover the envisaged risk, he does not take it for commercial purpose. Policy is only for indemnification and actual loss. It is not intended to generate profit. So, consumer complaint for deficiency on the part of the insurance company can lie in the Consumer Fora though complainant company may be engaged in some sort of business. In the light of said judgment, the plea of the appellant-insurance company that the complainant does not fall under the purview of Consumer Fora is liable to be rejected. This ruling persuade us to hold that the complaint as filed by the complainant alleging deficiency in service on the part of the insurance company, is maintainable and on the ground of 'commercial purpose', it cannot be thrown out of this Commission. Therefore, the stand taken by the insurance company-opposite party has no force. This citation is fully applicable in this case. The complainant though is a firm, who purchased the insurance policy for their vehicle and ofcourse the company is engaged in some sort of commercial activities, even then the complainant falls under the category of consumer and consumer complaint is maintainable before the District Forum.
8. So far, overturning of the vehicle is concerned, the complainant has categorically stated in the affidavit (paper Nos. 13/1 to 13/2 on the District Forum's record) that the vehicle in question was not slipped and overturned, rather it was damaged at the time of unloading of concrete, when soil or mud was embedded. The appellant has not filed any cogent evidence before this Commission that the vehicle in question was slipped and overturned, therefore, there was no question of payment of extra premium for such type of accident like overturning etc. 7
9. So far as the quantum of compensation is concerned, we have gone through the impugned judgment and order passed by the District Forum, Haridwar. The Surveyor and Loss Assessor of the appellant-Insurance Company has filed survey report (paper Nos. 14/4 to 14/8 on the District Forum's record). In the survey report, the Surveyor and Loss Assessor has assessed the loss of vehicle as Rs. 2,14,808.81ps. and after deducting depreciation of Rs. 22,452.09ps., net amount recommended as loss assessed is Rs. 1,92,356.71ps. Learned counsel for the appellant submitted before us that before the District Forum, the respondent-complainant has given the consent for settlement of the claim for a sum of Rs. 1,92,356/- less 10% depreciation, as consent letter dated 25.01.2013. We have gone through the consent letter dated 25.01.2013 (paper No. 22) filed by the appellant-Insurance Company. In this letter, one Ankur Jain has signed over it and in the consent letter it is stated that he accepted Rs. 1,92,356/- towards labour, including towing and site labour, plus cost of parts, mention on the reserve, with sales tax whatever applicable and less 10% depreciation (50% depreciation on rubber & fiber parts) as recommended by Surveyor Mr. Pawan Kumar in full and final settlement of the claim to the entire satisfaction. The Fora below has passed the impugned judgment and order regarding quantum of compensation on the basis of surveyor's report of the appellant-Insurance Company. There is no illegality and infirmity in the impugned judgment and order passed by the Forum below. Therefore, we are of the view that the appeal of the appellant-Insurance Company deserves to be dismissed.
10. For the aforesaid reasons, the appeal is dismissed. Impugned judgment and order dated 24.06.2015 passed by the District Forum, Haridwar is hereby confirmed. No order as to costs.
(MRS. VEENA SHARMA) (D.K. TYAGI) (JUSTICE B.S. VERMA)