Before the District Consumer Disputes Redressal Forum, Mandi, H.P.
Complaint Case No.54/2009
Date of Institution 20-2-2009
Date of Decision 31-10-2009
Sh. Parkash Chand Rana son of Sh.Gulab Singh Rana C/O. D.D. Nag ,Opposite Honeymoon Hotel Aleo Manali, District Kullu, H.P.
…Complainant
Vs
National Insurance company, Moti bazar , Mandi through its Senior Manager Mandi, District Mandi, HP
…..Opposite party
For the complainant Sh. Bimal Sharma , ,Advocate
For the opposite party Smt. Kiran Narula, Advocate
Complaint under Section 12 of the
Consumer Protection Act, 1986.
ORDER.
This order shall dispose of a complaint under Section 12 of the Consumer Protection Act, 1986(hereinafter referred to as the “Act”) instituted by the complainant against the opposite party. The case of the complainant is that he is registered owner of vehicle No. HP-66-1442 purchased by him on 4-10-2008 which was insured with the opposite party. The vehicle in question met with an accident on 3-11-2008 and got badly damaged at place Malana as a big boulder fell on the cabin of conductor side and caused the damage . The complainant averred that he sustained loss of Rs.78,396/- on account of repair of the vehicle . The complainant further averred that he had informed the opposite party about the accident and loss and the opposite party deputed surveyor who had inspected the vehicle and assessed the loss and submitted the final survey report to the opposite party. The complainant alleged that despite lapse of more than three months the opposite party has not made the payment of the claim which amounts to deficiency in service. With these averments , the complainant had sought a direction to the opposite party to pay Rs.78,396/-. Apart from this , a sum of Rs.10,000/- has also been claimed as compensation for harassment and Rs.3000/- as costs of complaint.
2 The opposite party resisted the complaint and raised preliminary objections that the complaint is not maintainable , that the complainant has committed the breach of the terms and conditions of the insurance policy as the vehicle in question was neither having registration certificate nor any permit nor any passing certificate, nor fitness certificate nor any route permit nor any receipt showing payment of goods tax on the date of alleged accident i.e. 3-11-2008, that the complainant is estopped due to his acts and conduct from filing the complaint, that he has suppressed the material facts from this forum and that the opposite party has requested the complainant to submit the proper justification and requisite documents from the concerned authority regarding the breaches but he has failed to submit the same and hence the claim has been closed as “No claim” on 29-1-2009 and he was also communicated vide registered letter, that there is no deficiency in service on the part of the opposite party, and that complex question of law and facts triable by the civil court is involved in the complainant which requires elaborate evidence and cannot be decided in summary proceedings. On merits , the opposite party had admitted the insurance The opposite party contended that the impugned vehicle was neither having registration nor was having any requisite papers to ply the same on the road. The opposite party further averred that on receipt of the information of accident , independent surveyor was deputed to conduct survey who has assessed the loss at Rs.59,069/- subject to the terms and conditions of the insurance policy. It has been denied that the complainant had sustained loss of Rs..78,396/- as alleged by him . The opposite party further averred that the complainant was asked to submit the requisite documents in respect of the alleged accident but he has failed to submit the same , hence the opposite party had no option but to close the claim as “No claim” on 29-1-2009. The opposite party had denied the charge of deficiency in service on its part and prayed for dismissal of the complaint.
3. The complainant had filed rejoinder reiterating the contents of the complaint and denying those contrary to the complaint.
4 We have heard the ld. counsel for the parties and have carefully gone through the entire record. It has not been disputed by the opposite party that the vehicle in question was insured with it and the same met with an accident on 3-11-2008. The ground on which the claim of the complainant has been repudiated is that at the time of the accident the vehicle was not having registration certificate, permit ,passing certificate, fitness certificate, route permit , and any receipt showing payment of goods tax required under the law and according to the opposite party since the complainant had breached the terms and conditions of the insurance policy, he is not entitled to be indemnified by the insurer .
5. Now the question for consideration by this Forum is as to whether at the time of the accident , the vehicle was being plied by the complainant in contravention of the terms and conditions of the policy or not . As per the complainant , he purchased the vehicle on 4-10-2008. In the rejoinder he has stated that the vehicle was a new vehicle and it met with an accident when the vehicle was under process of getting the formalities completed. Further case of the complainant is that since the vehicle was a new vehicle , it was fit to be driven on road and there was no breach of the terms and conditions of the insurance policy. Conversely the case of the opposite party is that the vehicle met with an accident when it was loaded with bajri . In this respect the opposite party has placed reliance upon Rapat Rojnamcha No.15 dated 4-11-2008 entered in Police Post Jari, District Kullu wherein it has been mentioned that at the time of accident the vehicle was loaded with Bajri and aforesaid report was lodged by the driver of the vehicle in question. No evidence to the contrary has been placed on record by the complainant with respect to the fact that the vehicle was not loaded with bajri at the time of the accident and the vehicle was being plied for getting the formalities completed. It is admitted case of the complainant that at the time of the accident the vehicle was not having any registration certificate, permit , passing certificate , fitness certificate and route permit. Therefore, in view of the material placed on record it can safely be said that the vehicle was being driven in violation of the terms and conditions of the policy at the time of accident .
6 Now the next question which arises for determination by this Forum is as to whether the opposite party was justified in repudiating the claim of the complainant as a whole on the aforesaid ground . In our opinion the breach committed by the complainant was not a fundamental breach and the same had no nexus with the cause of the accident because admittedly the accident was caused as boulders fell on the vehicle and caused damage as is evident from the copy of Rapat Rojnamcha filed by the opposite party. The Hon’ble National Commission in its various decisions had held that if the vehicle is used contrary to the terms and conditions of the policy, the insurance company has to treat the claim as per the guidelines applicable for settlement of non standard claims and the percentages are also duly indicated in clause 10 of the Procedural Manual of Motor Claims . In the case titled National Insurance Company vs
vs Muni Lal Yadav 2001(2) CPR-1( NC), the vehicle was insured as private vehicle but used as public vehicle at the time of accident. Hon’ble National Commission after relying upon the observations of Hon’ble Supreme Court in the case of B.V. Nagaraju vs M/S Oriental Insurance Company ltd II(1996)CPJ-18(SC) and M/S Skandia Insurance company ltd vs Kokilaben Chaudravadan 1987(2) SCC-654 had held that the claim is to be settled in accordance with Skandia’s case approved in B.V. Nagaraju case and according to Motor Claims guidelines applicable for settlement of non standard claims. In the present case also , the claim of the complainant is covered under clause 10 of the Procedural Manual of Motor Claims which provides that for “ any other breach of warranty/ condition of policy including limitation as to use” the claim shall be settled as non standard claim and pay up to 75% of the admissible claim”. Therefore, in view of the aforesaid decisions of Hon’ble Apex Court as well as of the Hon’ble National Commission and also in view of the Motor Claims guidelines, it will be appropriate to direct the opposite party to treat the claim of complainant as non standard claim and to pay 75% of the compensation to which he is entitled.
7 Now the next question which arises for consideration before this Forum is as to what amount the complainant is entitled on account of loss suffered by him due to accident of the vehicle . The complainant in his complaint had claimed Rs. 78,396/- as the amount spent for repair of the vehicle and had adduced in evidence bill of M/S Supreme Automobiles but not filed any receipt of payment of this much amount. On the other hand ,the opposite party has adduced in evidence Surveyor report dated 26-11-2008of. Er. Deepak Sood ,Surveyor and Loss Assessor which shows that he had assessed the liability in the sum of Rs.59,069/- subject to deposit of salvage value of which has been assessed at Rs.4500/-.The report of Surveyor is an important document and it cannot be brushed aside without sufficient reasons. The Hon’ble National Consumer Disputes Redressal Commission in United India Insurance company vs Jadhav Kirana Store , III (2005)CPJ-79(NC) has held that the Surveyor report is an important document and it should not be shunned without sufficient reasons. Therefore, in the absence of any satisfactory evidence to the contrary , we accept the report of Surveyor dated 26-11-2008 and in view of the same , we hold that the loss suffered by the complainant with respect to the damage caused to the vehicle is at Rs 59,069/- subject to deposit of salvage , the value of which had been assessed at Rs. 4500/-and he is entitled to 75 % of this amount which comes to Rs.44,301/- subject to the deposit of salvage.
8 In the light of above discussion, the complaint is partly allowed and the opposite party is directed to pay to the complainant a sum of Rs.44,301 /- subject to deposit of salvage alongwith interest at the rate of 9% p.a. from the date of filing of the complaint till realization. In case, the complainant fails to deposit the salvage within a period of one month from the date of receipt of this order, the opposite party is at liberty to deduct Rs.4500/- on account of salvage . In the facts and circumstances of the case the parties are left to bear their own costs.
9 Copy of this order be supplied to the parties free of cost as per Rules.
10 File, after due completion be consigned to the Record Room.
Announced
31-10-2009 (Sushil Kukreja ) President
DKM
( Lal Singh ) ( Alkananda) Members