State Consumer Disputes Redressal Commission
Sarabjit Singh vs M/S Liberty Videcon Gen. Ins. Co. on 21 April, 2017
2nd Additional Bench
STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
PUNJAB, CHANDIGARH
First Appeal No. 387 of 2016
Date of institution : 16.05.2016
Date of decision : 21.04.2017
Sarabjit Singh aged about 39 years son of Resham Singh, R/o
196, Uppal Khalsa, Tehsil Phillaur, District Jalandhar.
....Appellant/Complainant
Versus
1. M/s Liberty Videocon General Insurance Company Ltd., 10th
Floor, Tower-A, Peninsula Business Park, Ganpatrao Kadam
Marg, Lower Parel, Mumbai-400013 through its Authorized
Signatory.
2. M/s Liberty Videocon General Insurance Company Ltd., Unit
No. F.F.-4 A, First Floor, Eminent Mall Complex, 261 Lajpat Nagar,
Guru Nanak Mission Chowk, Jalandhar through its Authorized
Signatory.
3. M/s Raga Motors Pvt. Ltd., GT Road, Paragpur, Jalandhar
through its Authorized Signatory.
....Respondents/Ops
First Appeal against the order dated
21.04.2016 of the District Consumer
Disputes Redressal Forum, Jalandhar.
Quorum:-
Hon'ble Mr. Justice Paramjeet Singh Dhaliwal, President
Mr. Gurcharan Singh Saran, Judicial Member.
First Appeal No. 387 of 2016 2
Present:-
For the appellant : Sh. M.S. Rana, Advocate
For respondents No.1&2: Sh. Rajneesh Malhotra, Advocate
For respondent No.3 : Ex.-parte.
GURCHARAN SINGH SARAN, JUDICIAL MEMBER
ORDER
The appellant/complainant (hereinafter referred as complainant) has filed the present appeal against the order dated 21.04.2016 passed by the District Consumer Disputes Redressal Forum, Jalandhar (hereinafter referred as the District Forum) in consumer complaint No. 221 dated 21.04.2016 vide which the complaint filed by the complainant was dismissed.
2. Complaint was filed by the complainant under the Consumer Protection Act, 1986 (in short 'the Act') against respondents/opposite parties (hereinafter referred as Ops) on the averments that the complainant being owner of vehicle i.e. Mahindra XUV, bearing registration No. PB-08-CW-4000 and was got insured with Op No. 3, which is branch office of Op No. 2, vide policy bearing No. 20000105132 dated 16.2.2013 and was valid upto 29.9.2015. Unfortunately, it met with an accident on 19.1.2015. The vehicle is lying with Op No. 1 and loss assessed is Rs. 3,50,000/-. One DDR was also recorded at P.S. Phillaur, District Jalandhar bearing DDR No. 10 dated 3.2.2015 regarding accident. The complainant approached Op No. 3, which is branch office of Op No. 2 to reimburse the amount of damage to the vehicle but this Op lingered on the matter with one pretext or the First Appeal No. 387 of 2016 3 other. All the necessary documents were supplied to the Op but Op failed to reimburse the amount. Alleging deficiency in service on the part of Op, complaint was filed before the District Forum seeking directions against Op Nos. 2 & 3 to pay a sum of Rs. 3,50,000/- to Op for repairing the vehicle and release the vehicle in favour of the complainant, to pay Rs. 1 Lac as compensation and Rs. 20,000/- as litigation expenses.
3. Complaint was contested by Ops. Op No. 1 in its written reply took the preliminary objections that this complaint is not maintainable against this Op as this Op has been dragged into unwanted litigation and that complainant is not consumer of this Op. On merits, it was admitted that the complainant had purchased this vehicle as detailed in the complaint from this Op. However, it was denied that insurance policy was issued by Op nos. 2 & 3 on the instructions of Op No. 1. The vehicle was brought to this Op for accidental repair. However, it was denied whether the complainant was having valid driving licence at the time of accident. There is no merit in the complaint, it be dismissed.
4. Op Nos. 2 & 3 in its reply took the preliminary objections that as per the intimation received from the complainant, accident took place on 19.1.2015, when the complainant was going for some work and suddenly, a stray calf had came in front of the vehicle and to save the calf it hit into the calf and his friend suddenly hit his hand with the wind screen from inside causing damage to the wind screen and DDR No. 10 dated First Appeal No. 387 of 2016 4 3.2.2015 was recorded in P.S. Phillaur. On receipt of intimation of the loss, Surveyor and Loss Assessor, namely, Manoj Mittal was deputed by Op Nos. 2 & 3 to assess the loss, who inspected the damaged vehicle and found that the reported loss does not match with the actual loss to the vehicle. Vide letter dated 2.2.2015, the complainant was asked to furnish affidavit that there was no 3rd party loss and to furnish photographs of the accidental vehicle. Surveyor and Loss Assessor again wrote a letter dated 16.2.2015 to clarify the mismatch. Then they received letter dated 16.2.2015 from the complainant changing his version that the vehicle was being towed away with Tata 709 after the accident and the towing rope broke, causing damage to the vehicle. Although the surveyor had assessed the loss of Rs. 2,65,352/- and accordingly, the claim was repudiated and intimation was given to the complainant. On merits, the averments stated in the preliminary objections were reiterated. It has been stated that due to mis-match of the incident of accident, the claim of the complainant was repudiated.
5. Before the District Forum, the parties were allowed to lead their respective evidence.
6. In support of his allegations, the complainant had tendered into evidence his affidavit Ex. CA, affidavit of Gurpreet Singh Ex. CB and documents Exs. C-1 to C-11. On the other hand, Op Nos. 1&2 had tendered into evidence affidavit of Anil Sharma Ex. Op-1/A, affidavit of Jitendra Jain Ex. O-A, affidavit of Manoj Mittal Ex. O-B and documents Ex. O-1 to O-11. First Appeal No. 387 of 2016 5
7. After going through the allegations in the complaint, written version filed by the OPs, evidence and documents brought on the record, the complaint was dismissed.
8. Aggrieved with the order passed by the learned District Forum, the appellant/complainant has filed the present appeal.
9. We have heard the learned counsel for the appellant and respondents No. 1 & 2 whereas respondent No. 3 was ex- parte.
10. The only reason for which the claim filed by the complainant was repudiated is that due to the mis-match of the incident in which the damage was caused to the vehicle of the insured/complainant vide letter dated 11.3.2015 (Ex. O-9) that the damage you claimed is not coincide with the cause and nature of loss you stated in the claim form. However, the policy is admitted and that the damage is within the insured period. In case there is some mis-match in the incident whether the entire claim is to be repudiated? 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 has given the guidelines to settle the claim on non-standard basis by holding 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 First Appeal No. 387 of 2016 6 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 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 First Appeal No. 387 of 2016 7 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
warranty/condition of admissible claim.
policy 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."
11. Following the above law, the Hon'ble National Commission also held in "New India Assurance Co. Ltd. versus Smt. Malti Bhikhabhai Bhoya", 2013 (2) CPR 462 (NC) 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. 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."
12. According to the abovesaid judgments, in case mis- match is not material for going to the root of the case then the claim of the complainant can be settled on non-standard basis. Merely because the complainant has not been able to match the First Appeal No. 387 of 2016 8 incident, otherwise, damage to the vehicle is admitted and loss has also been assessed as per the report of the Surveyor, therefore, merely because of mis-match of the incident, the entire claim cannot be denied. Therefore, the claim of the complainant can be settled on non standard basis.
13. In the appeal, the complainant has placed on the record some documents i.e. bill of Op No. 1. According to that he spent a sum of Rs. 2,24,129/-, which is less than the assessment made by the Surveyor, therefore, the claim in this case is allowed 75% of this amount, which comes to Rs. 1,68,097/-.
14. No other point was argued.
15. Sequel to the above, we partly accept the appeal. Impugned order is set-aside. It is held that the complainant will be entitled to claim on non-standard basis i.e. Rs. 1,68,097/- plus Rs. 10,000/- as litigation expenses. The amount is ordered to be paid within 45 days from the date of receipt of copy of the order passed by this Commission, otherwise, it shall carry interest @ 9% p.a. from the date of passing of the order by this Commission till payment.
16. The appeal could not be decided within the statutory period due to heavy pendency of Court cases.
17. Order be communicated to the parties as per rules.
(JUSTICE PARAMJEET SINGH DHALIWAL)
PRESIDENT
April 21, 2017. (GURCHARAN SINGH SARAN)
as JUDICIAL MEMBER
First Appeal No. 387 of 2016 9