Dr. Sadhna Shanker, Member
1. This revision petition has been filed under section 21(b) of the Consumer Protection Act, 1986 in challenge to the Order dated 06.11.2018 of the State Consumer Disputes Redressal Commission, Himachal Pradesh (hereinafter referred to as the 'State Commission') in appeal no. 241 of 2017 arising out of an order dated 28.07.2017 of the District Consumer Disputes Redressal Commission, Shimla (hereinafter referred to as the 'District Commission') in consumer complaint no. 96 of 2015.
2. Brief facts of the case are that the respondent I complainant (hereinafter referred to as the 'complainant') obtained an insurance policy in respect to his vehicle bearing registration No. HP-63B-0339 for the period from 10.08.2013 to 09.08.2014 from the petitioner I New India Assurance Co. Ltd. (hereinafter referred to as 'the insurance company'). It is alleged that on 21.12.2013, the vehicle met with an accident, resulting which, the driver of the vehicle succumbed to injuries and Other two passengers also sustained serious injuries. It is also alleged that the vehicle also suffered damage. The intimation of the said accident was given to the insurance company, who appointed a surveyor to assess the loss. The claim was submitted with the insurance company. The insurance company vide its letter dated 01.10.2014 closed the complainant's claim as 'NO Claim' on the ground that the complainant had not sent the documents after repair of the vehicle.
3. The complainant filed a complaint before the District Commission, claiming an amount of Rs.4,85,000/- towards repair or purchase of new goods carrier vehicle along with interest thereon at the rate of 18%, Rs. 1,00,000/- towards loss, injury, harassment, mental agony arid Rs. 10,000/- towards cost of the proceedings.
4. The District Commission, vide its impugned Order dated 28.07.2017, dismissed the complaint on the ground that there was violation of the terms and conditions of the policy, specifying the 'limitation as to use' and Section 66(1) of the Motor Vehicles Act, 1988.
5. Being aggrieved by the said Order dated 28.07.2017 of the District Commission, the complainant filed an appeal before the State Commission.
6. The State Commission, vide its Order dated 06.11.2018, allowed the appeal partly and directed the insurance company to pay an amount of Rs.2,84,000/- alongwith interest at the rate of 9% per annum from the date of institution of the complaint and Rs.20,000/- towards compensation for mental harassment as also Rs. 10,000/- as litigation costs, to the complainant.
7. Being aggrieved by the order dated 06.11.2018 of the State Commission, the insurance company has filed the instant revision petition before this Commission.
8. Learned counsel for the insurance company has argued that since the complainant has breached the terms and condition (Limitation as to Use") of the policy, by carrying two persons as gratuitous passengers, the insurance company shall not be liable under the policy in respect of any accidental loss and damage and or liability caused. In support of this contention, he placed reliance on the decisions in the case of M S. Middle High School vs. HDFC Ergo General Insurance Co. Ltd. in SLP © 31406 of 2017 decided on 22.11.2017, Lakhmi Chand vs. Reliance General Insurance (2016) 3 SCC 100 and Sher Singh Thakur vs. New India Assurance Co. Ltd. 2017 SCC Online NCDRC 823. He further argued that the insurance Company vide its letters dated 21.08.2014 and 23.09.2014 asked the complainant to get the vehicle repaired and to submit the bills but the complainant failed to submit the same and having no other option, the insurance company closed the Claim as 'NO claim'. Therefore, the insurance company is not liable to indemnify the loss to the complainant. He further argued that the State Commission erred in observing that there was no direct nexus between overloading and the accident, therefore, the order dated 06.11.2018 Of the State Commission is liable to be set aside.9. Learned counsel for the complainant .reiterated the facts of the case and has argued that there was no breach of policy conditions and the passengers travelling in the vehicle were within the seating capacity of the vehicle. He further argued that the State Commission has passed a well-reasoned order and the revision petition is liable to be dismissed.
10. We have heard learned counsel for the insurance company and the learned counsel for the complainant and perused the record including the Order dated 28.07.2017 of the District Commission, the impugned order dated 06.11.2018 of the State Commission and the petition.
11. In our view, both the learned fora below had unnecessarily gone into the above mentioned aspects of the matter as the controversy could not have arisen in the first place. We say so because it is a matter of record that the claim of the respondent/complainant had been "closed" on account of his alleged inaction in complying with the directions to having his vehicle repaired and sending the documents to the insurer.
12. Consequently, no other ground for rejecting the claim could have been raised before the Learned fora below.
13. Therefore, the matter has to be examined on the basis of repudiation letter dated 01.10.2014, which reads as under:
"Date : 01.10.2014
Mr. Vivek Sharma S/o Ashok Sharma,
VPO Angi, PO Chailly, Tehsil & Dist. Shimla (HP)
Re: Your Motor Claim of vehicle number HP-63B-0339
Sir,
With reference to our earlier letters elated 21.08.2014 & 23.09.2014, you were asked to get your vehicle repaired and send the documents of the same to us. But till date you have not done the same. We presume that you are no more interested in the claim. Hence, we are closing your file as NO Claim.
This is for your information please.
Thanks.
Sd/-
Sr. Divisional Manager"
14. It is necessary to quote the letters dated 21.08.2014 and 23.09.2014 of the insurance company, which are reproduced as under:
Letter dated 21.08.2014
"Dated 21.08.2014
Mr. Vivek Sharma S/O Sh. Ashok Sharma
VPO Angi, P O Chailly,
Tehsil & District Shimla (HP)
RE: Your Motor Claim Vehicle No HP-63B-0339
Sir,
We are in receipt of your legal notice on the above said Motor claim in which you have asked for the claimed amount. In this regards, we wish to inform you that the Final Surveyor Mr Kuldeep Singh has recommended the claim to be settled on Repair basis and same has been conveyed to you are requested to get the vehicle repaired and submit the final bill enabling us to settle the claim.
Further as per Policy Condition No. 9 of Commercial Vehicle Policy, The company may at its own option reinstate or replace the vehicle or part thereof and/or its accessories or may pay in cash the amount of the loss or damage and the liability of the Company shall not exceed for partial losses actual and reasonable costs of repair and/or replacement of parts lost/damaged subject to depreciation as per limits specified.
So you are once again requested to get your vehicle repaired enabling us to proceed further in the claim.
Thanks & Regards
Sd/-
Sr. Divisional Manager
The New India Assurance Co Ltd.
SCO 104-106 Sector 34A, Chandigarh"
Letter dated 23.09.2014
"Dated 23.09.2014
Mr. Vivek Sharma S/o Sh. Ashok Sharma
VPO Angi, P O Chailly,
Tehsil & District Shimla (HP)
RE: Your Motor Claim Vehicle No HP-63B-0339
Sir,
We are in receipt of your legal notice on the above said Motor claim in which you have asked for the claimed amount. In this regard, we wish to inform you that the Final Surveyor Mr Kuldeep Singh has recommended the claim to be settled on Repair basis and same has been conveyed to you. Thus you are requested to get the vehicle repaired and submit the final bill enabling us to settle the claim.
Further as per Policy Condition No. 9 of Commercial Vehicle Policy, The company may at its own option reinstate or replace the vehicle or part thereof and/or its accessories or may pay in cash the amount of the loss or damage and the liability of the Company shall not exceed for partial losses actual and reasonable costs of repair and/or replacement of parts lost/damaged subject to depreciation as per limits specified.
So you are once again requested to get your vehicle repaired enabling us to proceed further in the claim.
Thanks & Regards
Sd/-
Sr. Divisional Manager
The New India Assurance Co Ltd.
SCO 104-106 Sector 34A, Chandigarh"
15. It is seen that prior to the repudiation letter dated 01.10.2014, the insurance company has sent the letters dated 21.08.2014 and 23.09.2014 to the complainant to get the vehicle repaired and submit the final bills for settlement of the same to the insurance Company.
16. It is an admitted fact that the insured vehicle in question was damaged and the surveyor has assessed the loss to the tune of Rs. 2,84,000/-. As is apparent from a perusal of the above letters dated 21.08.2014 and 23.09.2014, it is clear that the insurance company had accepted the claim of the complainant, and they were seeking from the complainant to get the vehicle repaired and submit the bills thereof to the insurance company.
17. It is seen that the letter was sent dn'23.09.2014 and the claim has been closed on 01.10.2014 i.e. within a short period of 07 days. It is also seen that the letter was sent from the office of the insurance company situated at Chandigarh to the complainant who lives in a village of District Shimla of Himachal Pradesh. It is apparent that sufficient time was not given to the complainant to take action on the letter dated 23.09.2014. Further, it is seen that in both the letters, a I reference is made to the policy condition no; 9 and the same has also been mentioned in the reply of the insurance company before the District Commission at page 79 of the paper book. However, during the course of arguments, it was stated that it was a mistake and the reference was to condition no. 4 of the policy and that the terms of that clause were also elaborated in the letter. Such consistent misquoting of a particular clause of the insurance policy is something which would not be comprehended by the insured and he cannot be expected to respond to an incorrect clause.
18. Therefore, we are of the view that the repudiation made by the insurance company is both premature and also incorrect particulars of the conditions of the policy were invoked. Hence, the repudiation made by the insurance company is not justified.
19. The revision petition is, therefore, dismissed. However, considering the facts that incident occurred in the year 2013 and we are now in the end of 2025, it is in the interest of justice to adjudicate on the compensation payable to the complainant. It is undisputed that the damage occurred to the insured vehicle; the surveyor also recommended the claim to be settled on Repair basis and the insurance company has in its letters dated 21.08.2014 and 23.Q9.2014 accepted the liability to pay. Therefore, going by the surveyor's recommendation, we are of the view that an amount of Rs.2,84,000/-, as assessed by the surveyor, is to be paid by the insurance company to the complainant. '
20. In the result, the orders of both the lower fora are set aside. The insurance company is directed to pay a sum of Rs.2,84,000/- to the complainant with interest at the rate of 9% per annum from the date of institution of the complaint till the date of payment, within a period of six weeks, failing which, interest at the rate of Rs. 12% per annum shall be payable. All pending applications, if any, stand disposed of.
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