UNITED INDIA INSURANCE COMPANY LIMITED vs Nand Lal Chandel

THIS appeal has been filed against the order dated 2.9.2005 passed by the District Consumer Disputes Redressal Forum -II,U.T., Chandigarh in Complaint Case No. 945 of 2004. The relevant facts in brief are as under.

THE respondent/complainant Sh. Nand Lal Chandel was the registered owner of Swaraj Mazda Truck bearing number HP -64 -1186. The respondent/complainant averred that all the taxes payable upto 31.3.2004 were paid and a fitness certificate was issued for the period 3.2.2003 to 2.2.2005. The respondent/complainant further got the vehicle insured with the appellant/OP United India Insurance Company Limited which assessed the value of vehicle at Rs. 6,11,000. The respondent/complainant has averred that when the insurance policy in question was taken, the development officer/agent of OP got the proposal form signed from him but the registered laden weight was not mentioned on that document. The insurance policy mentioned the gross vehicle weight at 6000 kgs, copy of the policy has been brought on record vide Annexure C -2. On 19.3.2003, the aforesaid vehicle, was badly damaged in an accident which occurred near Datyar, District Solan. The respondent reported the accident to the insurer and all the requisite formalities were completed. It has also been averred by the complainant that the Insurance Company deputed Sh. Subhash Kumar as the Surveyor who after detailed survey told him that the loss has been assessed at Rs. 2,12,000. The respondent has also alleged that aforesaid Surveyor got a blank claim form signed from him and assured to get the payment from the Insurance Company. However in the survey report dated 12.5.2003 mentioned the loss of Rs. 1,49,629.65 paise (Annexure C -5) but inspite of repeated visits, no money was paid to him by the Insurance Company. The respondent also approached the Permanent Lok Adalat (Public Utility Services) but there also since the claim was not settled by the appellant, the application from Lok Adalat was withdrawn and the complaint in the District Forum was instituted. The respondent has alleged that this there was gross deficiency and negligence on the part of Insurance Company as his claim has been unduly delayed without any valid reason. He incurred financial losses by way of payment of additional interest as the vehicle in question was hypothecated to ICICI Bank. In the prayer clause, the respondent/complainant has prayed for a sum of Rs. 4,53,500 with interest @ 18% p.a and the costs of litigation. In the written reply filed on behalf of United India Insurance Company Limited, the preliminary objections taken are that the complainant has no locus standi to file the complaint and is guilty of getting the vehicle driven in gross violation to the condition of insurance policy and Motor Vehicles Act. However, the claim was processed as per norms by the Competent Authority of the Insurance Company and it was rejected as being not payable after due application of mind, hence no deficiency can be alleged and no complaint can lie against the insurer. A plea of lack of territorial jurisdiction has also been taken as the complainant is resident of Kalka, the policy in question was taken from Parwanoo Branch situated in Himachal Pradesh, the accident having occurred in Solan (H.P), hence, the Forum at Chandigarh lacks the requisite territorial jurisdiction in the dispute.

IN reply on merits, it has been stated that the occurrence of accident in the manner as stated in the complaint has not been proved as the respondent/complainant failed to attach the required documentary proof. Further the Insurance Company has pleaded that it is obliged to settle the claim only if there is compliance of the conditions of the insurance policy and Motor Vehicles Act, 1988, which in the instant case were violated as the vehicle in question was driven by a driver who was not duly licenced to drive the same. Further the loss assessed by the Surveyor could be paid only after consigning the salvage to the insurer and fulfilment of conditions of contract of insurance. Since there was total violation of the important terms of policy, the claim was not settled. Other averments in the complaint have been denied in toto and it is stated that even if the loss is assessed at Rs. 2,12,000 it was subject to the adjustment of salvage. The respondent/complainant has also submitted that the consequential losses or damages cannot be taken congnizance by the redressal agencies set up under the Consumer Protection Act, 1986, hence claim of losses by way of interest to ICICI is not maintainable. The appellant/OP has reiterated the complaint have been filed with the ulterior motives as the same is unsustainable and the company is not obliged to settle the claim as there was violation of contract of insurance policy.

IN evidence, the complainant i.e. Sh. Nand Lal Chandel filed his detailed affidavit along with Annexures C -1 to C -5 whereas Sh.Vinod Kashyap, Divisional Manager of United India Insurance Company Limited has filed his affidavit. In support of the case , the appellant has cited the following case law. 1. I (2004) CPJ 22 (NC)=2002 (1) CPC 274 titled ''Hemant Kumar Chhabra v. The Oriental Insurance Company Limited.'' 2. III (1999) CPJ 5 (SC)=2000 (1) CPC 14 titled, Ashok Gangadhar Maratha v. Oriental Insurance Company Limited.'' 3. III (2003) CPJ 125 (NC)=2003 (2) CPC 568 titled ''Prabhakar Transporters v. National Insurance Company Limited.''

IN support of the case , the respondent has cited the following case law. 1. I (2004) ACC 1 (SC)=2004 ACJ 1, National Insurance Company Limited v. Swaran Singh and Others.''

THE District Forum allowed the complaint and directed the OPs to pay Rs. 1,39,529.50 paise with interest @ 6% p.a w.e.f. 12.5.2003 till realisation. The litigation costs quantified at Rs. 2,500 were also awarded and direction was given to the Insurance Company to comply with the order within two months from the date of receipt of certified copy of the order. Aggrieved against the order of the District Forum, this appeal was filed by the OP Insurance Company pleading inter alia that the impugned order is illegal and erroneous on the ground that there was clear violations of terms and conditions of the policy and Motor Vehicles Act due to factum of vehicle having been driven by a driver who did not possess a valid driving licence to drive the type of vehicle in question. Further the loss assessed by the Surveyor/Loss Assessor could become payable only after deduction of salvage and compliance with the terms and conditions of the insurance policy. The District Forum failed to appreciate that the appellant -Insurance Company had never written the weight of vehicle as 6,000 kgs. in the proposal form issued at the time of giving the policy. The order of the District Forum has also been assailed on the ground wherein it directed them to pay the amount but the Forum failed to appreciate that the claim was repudiated by the appellant as it was not substantiated by any cogent evidence. The District Forum failed to notice that though in the proposal form placed on record the registered laden weight of the vehicle was mentioned as 6,000 kgs. and in the policy issued, the weight of vehicle was stated as 6,000 kgs. and in the copy of driving licence of the driver Bant Ram it was stated that the holder of the licence was competent to drive LMV throughout India. The appellant has also averred that above facts have been wrongly noted by the District Forum as the Forum has held in the impugned order that no evidence on behalf of the appellant was led to prove that the driver was not holding the licence to drive LMV at the time of accident and no evidence regarding negligence in driving was brought on record by the insurance company, hence no breach of conditions of driving as alleged by the OP. The appellant has stated that these findings of the District Forum are illegal and perverse and it failed to take into consideration the material evidence on record as proposal form was filled by the complainant/respondent and if any misrepresentation in the proposal form was made, the appellant Insurance Company is not liable and were well within their right to repudiate the claim. Further the District Forum failed to take note of the fact that the complainant/respondent did not produce the original R.C and the Forum ought to have drawn an adverse inference against the complainant. Further since the photocopy of original R.C. was on record and the District Forum could have taken the same into consideration. The appellant has contended that as per R.C. book, the vehicle in question had a laden weight of 8,800 kgs. The driver having a licence to drive LTV vehicles was not competent to drive the vehicle in question and was required to possess an HGV/HTV licence. Since the licence in question possessed by the driver of the vehicle was invalid , the appellant was not liable to pay the claim and repudiation of the same by the Insurance Company was proper and in accordance with the law applicable hence no deficiency could be alleged on the part of appellant. The order of the District Forum holding them liable to pay the amounts as awarded in the impugned order are erroneous. The appellant has prayed to set aside the impugned order and accept the appeal with costs.

AS for the claim allowed in the impugned order, we concur with the finding recorded by the District Forum that there is no cogent evidence that the Surveyor Sh. Subhash Kumar Garg had assured the respondent/complainant (as averred by him in the complaint) that Rs. 2,12,000 would be paid to him or for that matter he had assessed the loss at that amount, since there is no basis/proof for this assumption by the respondent/complainant. The prayer of the complainant for this amount was rightly rejected by the District Forum.

ADVERTING to the merit of the appeal, we are of the considered opinion that since in the proposal form and also in the temporary registration number and further in the insurance policy bearing No. 111683/31/82/0862 brought on record vide Annexures C -1 and C -2 respectively, the laden weight of the vehicle is clearly mentioned as 6,000 kgs and premium of Rs. 14,155 was accepted with reference to details given in the above policy the appellant -Insurance Company cannot justifiably contend that proposal form was filled by the complainant himself or the class of vehicle given on the temporary registration certificate mentioning it as ''LCV'' was wrongly stated by the registration authority concerned. Since, the policy issued with reference to vehicle in question has mentioned, the laden weight as 6,000 kgs, the Surveyor appointed by the appellant -Insurance Company had considered the validity of the claim in his detailed survey report and allowed the claim to the amount of Rs. 1,49,629 subject to deduction of salvage quantified at Rs. 10,000, the District Forum was justified in relying upon the report in writing submitted by the Surveyor to the appellant and directing the Insurance Company to be liable to pay Rs. 1,39,529.50 paise with interest @ 6% p.a. It is pertinent to mention that even if there was any discrepancy mentioned in the laden weight of the vehicle on the proposal form or on temporary R.C. and also on the insurance policy, nowhere before the filing of the claim, this issue (wrong mentioning of laden weight of the vehicle) was ever raised by the Insurance Company. It is only after the claim was filed that these issues were raised at the time of payment in the face of the fact that all the requisite documents, the occurance of the accident, the genuineness of the claim etc. were duly considered by the Surveyor and after consideration his claim was allowed only to the extent of Rs. 1,39,529.50 paise with interest of @ 6% p.a. The contention of appellant that vehicle was driven in gross violation of conditions of insurance policy and Motor Vehicles Act has not been proved by any cogent evidence, is a bald averment only and was rightly rejected by the District Forum in view of law laid down by Supreme Court in the case of National Insurance Company Limited v. Swaran Singh and Others (supra). Further the claim was filed in March, 2003 the Surveyor submitted his report on 12.5.2003 but the letter intimating the repudiation of the claim was sent to the complainant on 30.9.2004 shows an inordinate delay on the part of insurer to settle the claim in the absence of any cogent evidence regarding alleged breach of conditions and clearly amounts to deficiency in service. The District Forum was also justified in awarding interest @ 6% p.a to the respondent/complainant for this period as the complainant was deprived of this amount. In conclusion , we uphold the findings of the District Forum and hold that the District Forum has appreciated the facts of the case in the light of law applicable on the point and the impugned order does not call for any interference and the same is upheld in toto. The appeal is dismissed. The appellant -Insurance Company is directed to comply with the order within one month from the date of receipt of copy of this order. Appeal dismissed.

COPIES of this order be sent to the parties, free of charge. Appeal dismissed.