w w w . L a w y e r S e r v i c e s . i n



Nakul Chauhan v/s United India Insurance Company


Company & Directors' Information:- UNITED INDIA INSURANCE COMPANY LIMITED [Active] CIN = U93090TN1938GOI000108

Company & Directors' Information:- J B UNITED PRIVATE LIMITED [Active] CIN = U93000MH2014PTC258844

Company & Directors' Information:- J B UNITED PRIVATE LIMITED [Active] CIN = U74999MH2014PTC258844

Company & Directors' Information:- UNITED CORPORATION LIMITED [Liquidated] CIN = U99999TN1942PLC003159

    RBT/CC No. 52 of 2019

    Decided On, 08 January 2021

    At, Himachal Pradesh State Consumer Disputes Redressal Commission Shimla

    By, THE HONOURABLE MS. SUNITA SHARMA
    By, PRESIDING MEMBER & THE HONOURABLE MR. R.K. VERMA
    By, JUDICIAL MEMBER

    For the Petitioner: Shashi Bhushan, Advocate. For the Respondents: Jagdish Thakur, Advocate.



Judgment Text

Ms. Sunita Sharma, Presiding Member1. The present complaint has been filed under Section 17 of the Consumer Protection Act, 1986 seeking directions to the opposite party to pay sum of Rs. 20,00,000 along with interest @ 9% per annum, further sum of Rs. 50,000 as compensation and costs2. The facts necessary for adjudication of this complaint, as averred in the complaint, are That complainant is registered owner of vehicle (Tipper Truck) bearing registration No. HP I7E-2209, which was insured with the opposite party w.e.f. 20.5.2017 to 19.5.2018 for a sum of Rs. 20,28.250 on IDV basis. It is further pleaded that the said vehicle was purchased by the complainant for earning his livelihood by way of self employment. It is further pleaded that on 12.9.2017 the truck was extensively damaged when it was on its way to Cheog from Gojar, when at place Jong due to rock sliding from upward side of road and truck went off road into tons river. The incident was reported to the police and intimation in this regard was also given to Insurance Company. The Insurance Company appointed surveyor-cum-loss assessor. All the necessary documents were submitted to the Insurance Company as well as to Surveyor. Thereafter, complainant sent various representations to opposite party, but opposite party did not settle the claim of the complainant. It is further pleaded that Insurance Company committed deficiency in service and unfair trade practice.3. Upon notice, the opposite party put in appearance and filed its written version in which took preliminary objections to the effect that the complainant is not a consumer, that this complaint is pre-matur and that complaint is bad for non-joinder of necessary parties. On merits, the OP has admitted that the vehicle in question was insured for a sum of Rs. 20,28,250 on IDV basis. It is further admitted that on receipt of intimation regarding accident, the opposite party appointed surveyor to conduct spot survey of the vehicle in question on 14.9.2017 who submitted his report dated 9.10.2017. It is pleaded after receipt of surveyor report, the Insurance Company appointed Investigator to conduct final survey of the vehicle in question and also to investigate the claim of the complainant. The said investigator asked the complainant to supply certain documents, but the complainant instead of supplying the said documents filed the present complaint which is premature as opposite party neither repudiated the claim of the complainant nor closed the file of complainant as no claim. It is further pleaded that driver of the vehicle in question was not authorized to drive the HTV as the vehicle in question is heavy goods vehicle. It is further pleaded that complainant is himself responsible for non-settlement of claim as he has not submitted the requisite documents, which are necessary for settlement of claim. There is no deficiency in service and unfair practice on the part of the opposite party and as such this complaint is devoid of any merit.4. The complainant has filed rejoinder in which he denied the pleadings of the opposite party and reaffirmed the averments made by him in his complaint.5. The parties have lead oral as well as documentary evidence in support of their respective cases.6. We have given thoughtful consideration to the arguments advanced by learned Counsel for the parties and we have also examined the record of the case carefully7. The complainant filed his affidavit by way of evidence and Affidavit of Sh. Manjeet Singh, driver of the vehicle and affidavit of Cleaner Sh. Shoor Veer Exs C-l to C-3 respectably and also filed documents C-l to C-10. It is clear from these documents that the information regarding accident was given to the insurance Company/Opposite party on 20.9.2017 which was duly received by them. It is also evident from the documents that documents relating to accident and vehicle in question were also submitted to the respondent Company well in time. It is evident from C-10 that request was also made to the respondent on 26.4.2018 to settle the claim on urgent basis.8. The Opposite party/Insurance Company filed Affidavit of Smt. Sangeeta Bali Divisional Manager of the Company, Ex OP-1, and Affidavit of Er. Manoj Singh Pharswan Ex. OP-2, Affidavit of Sh. V.P. Singhal Ex OP-3 surveyor and Affidavit of Sh. Himanshu Sharma Investigator. It is clear from the evidence led by the respondents that the insured/Complainant has supplied documents to the insurance and on the basis of which the surveyor has submitted his report dated 15.3.2018 Annexure OP-4.9. The learned Counsel for the complainant submitted that the complainant purchased vehicle in question to earn his lively hood and insured the vehicle with the opposite party for the period from 20.5.2017 to 19.5.2018. The vehicle met with the accident during the period of insurance was effective. The intimation qua accident was intimated to the Insurance Company well in time and all documents were submitted for claim. The Complainant also represented the Insurance Company for payment of claim, but received no response from the opposite party and received letter from the investigator to submit the documents. The Complainant again submitted his reply on 9.3.2018 and submitted documents again. The investigator again sent letter to the complainant on 18.5.2018. The Opposite party was purposely delaying the matter for settlement of the claim.10. The Counsel for the opposite party argued that the driver of the vehicle was not having valid and effective Licence to drive the vehicle in question, which is a heavy goods vehicle. The Counsel further argued that the compliant is premature, since the complainant is failed to submit documents11. It is clear from the Annexure C-6 and C-9 that documents were duly supplied to the Company as well as surveyor and investigator, which falsified the plea of opposite party that documents were not supplied by the complainant.12. The next question argued before this commission by the Counsel for opposite party that the driver of the vehicle in question was not holding the proper license to drive the vehicle in question. He further argued that separate endorsement is required for driving heavy goods vehicle we are unable to accept this argument, Section 10 of the Act requires a driver to holds a license with respect to classes of vehicle not with respect of the type of vehicles. In one class of vehicles, there may be different kinds of vehicles; no separate endorsement is required to drive such type of vehicles. As light motor vehicle include transport vehicle also, a holder of light motor vehicle license can drive all types of vehicles of the class including transport vehicle subject to un laiden weight of any of which, does not exceed 7,500. The expression ‘transport vehicle, has been inserted by virtue of Amendment Act, 54/1994 in Section 10(21)(e) after deleting four categories or classes of vehicles, i.e. medium goods vehicle, medium passenger motor vehicle, heavy goods vehicle, and heavy passenger motor vehicle. Earlier Section 10 did not contain the separate class of transport vehicles. Even otherwise the forms never intended to exclude transport vehicles from the category of ‘light motor vehicles’ and for light motor vehicle, the validity period of such licence hold good and apply for the transport vehicle of such class also and the expression in Section 10(2)(e) of the Act ‘Transport Vehicle’ would include medium goods vehicle, medium passenger motor vehicle, heavy goods vehicle, heavy passenger motor vehicle. In the present case there is separate endorsement in the license w.r.t. Transport vehicle, which include Heavy Good vehicle also. Therefore there is no force in the arguments addressed by the learned Counsel for Counsel opposite party and same is rejected.13. The learned Counsel for the opposite party further argued that Complaint is premature and the opposite party has neither repudiated the claim of the complainant nor closed the file as no claim. If we look to regulations, it becomes abundantly clear that a specific time has been provided for surveyor and the Insurance Company to settle the claim. It is important to be note general insurance claims are concerned, after receipt of the survey report or an additional survey report within 30 days claims are to be payable. There is an obligation on Insurance Company to settle the claim either way i.e. to accept the liability and make payment and/or deny the claim with reasons. In the present matter as per own document of the opposite party Annexure OP-4 final surveyor report is dated 15.3.2018 is dated. Therefore, the insurance claim has to be decided as per regulation No. 8 or regulation No. 9 within the stipulated periods. Sub-regulation (3) and Sub-regulation No. (5) make it obligatory that after receipt of report, the Insurance Company must speak either way. It is for the Insurance Company to accept the claim fully or partially and communicate to the consumer or to claimant. This period has been provided as 30 days from the date of receipt of survey report. The Question arises what, happens if the Insurance Company is not acting as per the regulations. It is important to be noted that in case of an acceptance of the claim either partially or fully, if the claim is not paid within the stipulated period under the said regulations, the Insurance Company is liable to pay 2% interest on and above the bank rate prevailing at The beginning of the financial year. We have already analysed the fact of non performance of such duty by the Insurance Company. But if the Insurance Company fails to discharge its duty under regulations, the rights of the parties are likely to be affected or prejudiced. We want to state here that these regulations have been passed to protect the interest of the policy holders and they have statutory force. For the regulations consequence has been provided for, namely, the imposition of the additional interest and, therefore, they have a penal consequence if claim is not settled with in time. What we find that the words used in the regulations are of the mandatory nature. Therefore the argument advance by the learned Counsel for the opposite party is rejected and the complainant has cause of action to file complaint and non-settlement of claim within time also amounts to deficiency in service and unfair trade practice.14. Now, the only question which remains for consideration is that what should be quantum of compensation the appellant is entitled for. The surveyors are appointed under the Insurance Act, 1938 and their reports are the basis for settling the insurance claim. Their reports are generally accepted until there are some cogent reasons to disregard the same. The Honble Supreme Court in the case of Sri Venkateswara Syndicate v. Oriental Insurance Company Limited & Anr., III (2009) CPJ 81 (SC)=(2009) 8 SCC 507, has observed the following:“31. The assessment of loss, claim settlement and relevance of survey report depends on various factors. Whenever a loss is reported by insured, a loss adjuster, popularly known as loss surveyor, is deputed who assesses the loss and issues report known as surveyor report which forms the basis for consideration or otherwise of the claim. Surveyors are appointed under the statutory provisions and they are the link between the insurer and the insured when the question of settlement of loss or damage arises. The report of the surveyor could become the basis for settlement of a claim bij the insurer in respect of the loss suffered by the insured.32. There is no disputing the fact that the surveyor/surveyors are appointed by the Insurance Company under the provisions of the Insurance Act and their reports are to he given due importance and one should have sufficient grounds not to agree with the assessment made by them. We also add, that, under this section the Insurance Company cannot go on appointing surveyors one after another so as to get a tailor-made report to the satisfaction of the officer concerned of the insurance company; if for any reason, the report of the surveyors is not acceptable, the insurer has to give valid reason for not accepting the report.”15. Hon’ble Supreme Court in Sikka Papers Limited v. National Insurance Company Limited and Ors., III (2009) CPJ 90 (SC)=(2009) 7 SCC 777, has observed that:“Held, though not the last word, yet there must he legitimate reason for departing from report No infirmity found in surveyor’s report and therefore held, Insurance Company rightly admitted claim as per the report.”16. From the above authoritative judgments, it is clear that there was no ground before the State Commission to reject the surveyor’s report.17. The Hon’ble Apex Court in Dharmender Goel’s case reported in III (2008) CPJ 63 (SC)=IV (2008) ACC 750 (SC)=2008 (8) SCC 279, held that Insurance Company after having accepted the value of the particular goods, disowned that very

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figure on the one pretext or other when they are called upon to pay compensation. This take it or leave it attitude is unwarranted being bad in law and ethically defensible. In the present case once report has been prepared by the surveyor, the opposite party should have immediately made the payment to the complainant on the basis of report submitted by the surveyor OP-4 placed on record by the opposite party which dated 15.3.2020. Relying upon the report of the Surveyor, we assess the claim to the tune of Rs. 19,00,000 with RC and Rs. 19,50,000 without RC, less Rs. 1,000 as per Policy Clause. The interest will be @ 11%, as 2% interest will be penal interest for non-compliance of regulations as discussed supra. No other points urged.18. Based on the above discussion, complaint is allowed. Opposite party is directed to pay Rs. 19,00,000 with RC and Rs. 19,50,000 without RC, less Rs. 1,000 as per Policy Clause to complainant along with interest @ 11% per annum from the date of filing of complaint till its payment. In addition, the complainant is also held entitled for a sum of Rs. 50,000 as compensation for harassment and Rs. 20,000 on account of litigation charges. The opposite party is directed to comply the order within forty five days from the date of passing of order.19. Certified copy of the order be supplied to the parties free of cost. File after its due completion be consigned to Record Room,Complaint allowed.
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