Complaint No: 477 of 2018.
Date of Institution: 29.11.2018.
Date of order: 23.08.2023.
Rajni Gupta W/o Sh. Vijay Kumar Gupta R/o W.No.14 Krishna Nagar, Qadian, District Gurdaspur.
.....Complainant.
VERSUS
- B.G International Pvt. Ltd, Village Hardo Jhande, Amritsar-Pathankot Road, Batala, District Gurdaspur, through its Manager.
- National Insurance Company Limited, Hero Motocorp Vertica, Delhi Dox, 803A, 8thFloor, Tower C, Konnectus Building, Opposite New Delhi Railway Station, Bhav Bharti Marg, New Delhi-110002, through its Manager.
- United India Insurance Company Limited, SCF-174, Jalandhar Road, Batala, District Gurdaspur, through its Branch Manager.
.....Opposite parties.
Complaint Under section 12 of the Consumer Protection Act.
Present: For the Complainant: Sh.Akhil Mahajan, Advocate.
For the Opposite party no.1: Sh.Sachin Mahajan, Advocate.
For the Opposite party no.2 & 3: Sh.Sandeep Ohri,
Advocate.
Quorum: Sh.Lalit Mohan Dogra President, Sh.Bhagwan Singh
Matharu, Member.
ORDER
Lalit Mohan Dogra, President.
Rajni Gupta, Complainant (here-in-after referred to as complainant) has filed this complaint under section 12 of the Consumer Protection Act, (here-in-after referred to as 'Act') against the B.G International Pvt. Ltd. and others (here-in-after referred to as 'opposite parties).
2. Briefly stated, the case of the complainant is that she purchased i20 car from the OP no.1 after paying an amount of Rs.7,73,724/- on 12.05.2017. The insurance of the car was done by the OP no.1 from the OP no.3 who is partner associate of OP no.1 and she had paid Rs.15,875/- for the insurance of the car. The insurance was valid from 12.05.2017 to 11.05.2018. It is alleged that during the subsistence of this policy she never took any claim for the car from the insurance company. The OP no.1 also gave three free service coupons for the car and she always got done the service of the car from the OP no.1. It is further alleged that during the service of the car the front glass of the car was damaged by the employees of the OP no.1 and OPno.1 replaced the glass free of cost as their employees were responsible for mishandling the car. The OP no.1 has all the service record of the car of her which they may be directed to produce. It is further alleged that before the expiry of the policy she got renewed the policy of the car from the OP no.3 after paying the premium ofRs.12,586/- to the OP no.3. She took the benefit of No Claim Bonus as she never claimed from the first policy. It is further alleged that the OP no.3mentioned wrong number of the car as PB-06-AM-2677 while the correct number was PB-06-AM-2577 which was later on rectified by the OP no.3on 18-05-2018. It is further alleged that on 14.06.2018, the car of the complainant met with an accident and so the car was parked at the service center of the OP no.1 for the repair under the insurance policy and OP no.3 was duly informed by the OP no.1and on 25.06.2018 the OP no.1 handed over the car to her after repairing, as policy was cashless so she paid Rs.1300/- as per the terms of the policy and the amount of Rs.22,025/- was payable by the OP no.3. The bills total amounting to Rs.22,025/- (8341+13684=22025) and Receipt of Rs.1300/-. It is further alleged that again on 17.09.2018 the car of the complainant was damaged, so the car was again parked to the service center of OP no.1 for the repair. Again the insurance company i.e. OP no.3 was duly informed by the OP no.1 and after getting sanction from the OP no.3 the OP no.1 started repairing the car. On the same day i.e. 17.09.2018 the complainant was very shocked to know from the OP no.3 that she was not eligible to take the benefit of No claim Bonus, which she has taken while taking the policy. When she inquired about this from the OP no.3, then OP no.3 told that she has taken the insurance claim during the existence of the first policy. It is further alleged that she was surprised to know that the OP no.1 has claimed for the glass of the car, which was damaged by the employees of OP no.1, themselves without the knowledge of the complainant. So under compelling circumstances and under the assurance given by the OP no.3, she has to pay more amount i.e. Rs.2823/- as premium. It is further alleged that after the repair of the car when she visited to OP no.1 for getting her car back, then the OP no.1 refused to hand over the car to her and told her that they will not hand over the car as the present bill and as well as the previous bill of Rs.22,025/- has not been paid by the insurance company and asked her to pay Rs.92,000/- and only then they will hand over the car of her. It is further alleged that the OP no.1 has now issued a letter to her to pick the car on urgent basis, otherwise they will charge Rs.250/- per day from 22.10.2018 and also that the OP no.3 has issued a letter dated 14.11.2018 to her that the claim dated 14.06.2018 is not payable on the ground that the NCB has not been confirmed by the previous insurer. It is further alleged that firstly the car was returned to her on 25.06.2018 without any objection. Had the OP no.3 raised this objection at that relevant time, then the act of the OP no.1, which amounts to cheating, must have come in knowledge of complainant. Now the OP no.3 has repudiated the present as well as previous claim of complainant which was due to act of the OP no 1, and that too after charging an extra premium of Rs.2823/- from her, So opposite parties are liable for deficiency in service. That on 29-May-2019 she has obtained the possession of the car from OP no.1 after paying amount of Rs.92,311/- under the compelling circumstances, as the value of the car was diminishing by lying with the opposite party. Due to this illegal act and conduct of the opposite parties she has suffered great loss and also suffered mental harassment and inconvenience. So, there is a clear cut deficiency on the part of the opposite parties.
On this backdrop of facts, she has alleged deficiency in service and unfair trade practice on the part of the opposite parties and prayed that opposite parties may kindly be directed to pay the amount of Rs.92,311/- which the complainant has to pay under the compelling circumstances and due to the fraud played by OP no.1 along with interest at the rate of 18% per annum from the date of institution of the complaint till its realization and also all opposite parties be directed to pay an amount of Rs.1,00,000/- to complainant on account of mental pain and physical harassment and litigation expenses to tune of Rs.15,000/- may also be imposed in the interest of justice.
3. Upon notice, opposite party no.1 appeared through their counsel and filed their written reply by taking preliminary objections that the complaint filed by the complainant is not legally maintainable and is liable to be dismissed, as the Complainant has attempted to misguide and mislead the Hon'ble commission and no cause of action ever arose in favor of the Complainant against the Opposite Party No.1 to file the present complaint and hence, the complaint under reply is an abuse of the process of law and as such, the same is liable to be dismissed, that the present complaint has been filed by the complainant to get undue advantage from the opposite party no.1 and to cause harm the reputation of the opposite party no.1, that there is no deficiency in service, malpractice and unfair trade practice on part of opposite party no.1 as alleged in the present complaint, that to pressurize and harass the opposite party no.1 and to get undue benefits from the opposite party no.1, the present complaint has been filed by the complainant on the basis of wrong facts, as such, the complaint is liable to be dismissed. It is pleaded that the complainant is guilty for her own wrongs, acts and conducts. It is the son of the complainant who had not disclosed this fact to her mother i.e. to the complainant regarding first claim, which he had obtained from the opposite party no.2. It is further pleaded that the windshield of the car of the complainant was broken while he was driving the car on road and then he had brought the car in question to service center of the opposite party no.1 and then intimation of said damage was given to the opposite party no.2 and then claim was received from the earlier Insurance company i.e. opposite party no.2 and when after expiry of first policy with the opposite partyno.2 and while purchasing the policy from opposite party no.3, the complainant had not disclosed such facts and had claimed “No Bonus claim” and when this fact came into knowledge of the opposite party no.3, then they had rejected the present claim of the complainant. It is further pleaded that in all such controversy, dispute is in between the insurance company and owner of the car, whereas, the opposite party no.1 has no concern with said dispute, but with malafide intention and on the basis of wrong facts, the complainant has leveled false allegations against the opposite party no.1 in the present complaint. It has been stated by the complainant in her complaint that while first service, front glass of the car was damaged by the employee of the opposite party no.1, whereas, in the claim intimation Letter dated 15.6.2017, the son of the complainant has mentioned that "a stone spring out after being coming under the wheels of a truck passing struck with windscreen glass causing cracks on glass". So, it clearly proves that either the complainant or her son is telling lie and on the basis of wrong facts, they want claim from the opposite parties, which is not permissible under the law. Before filing of the present complaint there was outstanding amount was to be paid by the complainant to the opposite party no.1, after rejection of claim by the opposite party no.3, which was later on paid by the complainant and earlier, due to pendency of repair amount, car of the complainant has not been handed over by the opposite party no.1 to the complainant. It is further pleaded that if opposite party no.1 hand over the car to the complainant, then opposite party no.1 has to file recovery suit against the complainant and the insurance company, which could lead to multiplicity of litigation, as such, claim of the opposite party no.1 is very much genuine. It is further pleaded that the opposite party no.1 is ready to deliver the car of the complainant against payment of balance repair cost of the car.
On merits, the opposite party no.1 have reiterated their stand as taken in legal objections and denied all the averments of the complaint and there is no deficiency in service on the part of opposite party no.1.In the end, the opposite party prayed for dismissal of complaint with costs.
4. Upon notice, opposite party no.2 appeared through their counsel and filed their written reply by taking preliminary objections that the complainant has no cause of action to file the present complaint and the complainant has no locus standi to file the present complaint. It is pleaded that the complainant has wrongly made opposite party no.2 i.e. National Insurance Company as party to the present complaint. Even as per averments of the complaint the claim has been denied by the opposite party no.3 i.e. United India Insurance Company Ltd. and there is no deficiency in services alleged to be on the part of the opposite party no.2. As such the complaint is liable to be dismissed against the opposite party no.2.
On merits, the opposite party no.2 have reiterated their stand as taken in legal objections and denied all the averments of the complaint and there is no deficiency in service on the part of opposite party no.2. In the end, the opposite party prayed for dismissal of complaint with costs.
5. Upon notice, opposite party no.3 appeared through their counsel and filed their written reply by taking preliminary objections that the complainant has no cause of action to file the present complaint and the complainant has no locus standi to file the present complaint, that there is no deficiency in services on the part of opposite party no.3. It is pleaded that the claim of the complainant has been made as no claim vide letter dated 14.11.2018. The loss dated 14.6.2018 has been intimated. The matter has been investigated and during inquiry it comes to the knowledge that the complainant had already taken claim during his previous policy with National Insurance Company. So the complainant by concealing the true facts got no claim, bonus from the opposite party no. 3. As such the claim has been closed vide letter dated 14.11.2018. The said letter has been duly sent to the complainant and he also produced the said letter. It is further pleaded that the insurance is a contract based on utmost good faith and the complainant by concealing the previous claim and by wrongly getting NCB, breach that utmost good faith, as such not entitled for any relief and the claim has rightly been closed. It is further pleaded that even otherwise if the Ld. Commission comes to the conclusion that there is any liability of the insurance company in that case it is only as per survey report and not more than IDV value of the vehicle. The vehicle has been duly surveyed by the surveyor and he also submitted his detailed report. But as already stated that the claim has been made as no claim as such there is no liability of opposite party no.3.
On merits, the opposite party no.3 have reiterated their stand as taken in legal objections and denied all the averments of the complaint and there is no deficiency in service on the part of opposite party no.3. In the end, the opposite party prayed for dismissal of complaint with costs.
6. Learned counsel for the complainant has filed documents as Ex.C-1 to Ex.C-9.
7. Learned counsel for the opposite party no.1 has tendered into evidence affidavit of Sh. Gurpreet Singh, Assistant Service Manager, B.G International Pvt. Ltd, Gurdaspur as Ex.OP-1/1 alongwith other documents as Ex.OP-1/2 to Ex.OP-1/12.
8. Learned counsel for the opposite party no.2 has filed documents as Ex.OP-2/1 to Ex.OP-2/3.
9. Learned counsel for the opposite party no.3 has tendered into evidence affidavit of Jai Krishan, Divisional Manager, United India Insurance Co. Ltd, Pathankot as Ex.OP-3/1/A alongwith other documents as Ex.OP-3/1 to Ex.OP-3/12.
10. Rejoinder not filed by the complainant.
11. Written arguments filed by opposite party no.1 but not filed by the complainant and opposite parties no.2 and 3.
12. Counsel for the complainant has argued that complainant is owner of i20 car purchased from opposite party No.1 and at the time of sale of car, the opposite party No.1 got procured policy of insurance from opposite party No.2. It is further argued that after expiry of policy of insurance, the complainant got renewed the policy of insurance from opposite party No.3 and took 'No Claim Bonus' and thereafter on 14.06.2018 car of the complainant met with accident and was duly repaired under policy of insurance and handed over to the complainant. It is further argued that on 17.09.2018 the car of the complainant again met with an accident but the opposite party No.1 refused to repair the car on the plea that complainant had received 'No Claim Bonus' falsely by concealing one claim having been received from opposite party No.2 as per policy Ex.C-2 and thereafter opposite party No.1 withheld the car of the complainant which was handed over to the complainant only after lot of harassment and after receiving Rs.92,000/- from the complainant. It is further argued that complainant had deposited Rs. 2823/- as additional premium vide receipt Ex.C-7 as amount of no claim bonus received by the complainant. It is further argued that the complainant was not aware about the first claim received from opposite party No.2 and the said claim seems to have been illegally received by opposite party No.1 as front wind screen got damaged from the employee of the opposite party No.1 during service. The act of the opposite parties of having withheld the car of the complainant and repudiation of rightful claim amounts to deficiency in service.
13. Counsel for the opposite party No.1 has argued that complainant had received 'No Claim Bonus" by concealing the claim regarding wind screen glass from opposite party No.2 and since the opposite party No.1 had already repaired the car and was left with any other option than to withheld the car. However, car was released to the complainant after receiving the due payment.
14. Counsel for the opposite parties no.2 and 3 has argued that there is no dispute between complainant and opposite party No.2. He has further argued that complainant had illegally and unlawfully received no claim bonus from opposite party No.3 while getting his car insured vide policy of insurance Ex.C-4 and received no claim bonus benefit to extent of Rs.2393.28P. and as such as per policy terms and conditions the claim of the complainant including earlier claim was rightly repudiated by the insurance company.
15. We have heard the Ld. Counsels for the parties and gone through the record.
16. It is admitted fact that complainant had purchased i20 car from opposite party No.1 and obtained policy of insurance Ex.C2 from opposite party No.2. It is further admitted fact that the said policy of insurance was got renewed from opposite party No.3. It is further admitted fact that complainant obtained NCB of 20% i.e. Rs.2393.28P. from opposite party No.3. It is further admitted fact that claim lodged by the complainant regarding accidental damages to car on 14.06.2018 were assessed and paid by the opposite party No.2. It is further admitted fact that car of the complainant again met with an accident on 17.09.2018. However, the opposite party No.3 repudiated both the claims. It is further admitted fact that car of the complainant was withheld by opposite party No.1 and was released to the complainant after receiving amount of Rs.92,000/- from the complainant. The only question for adjudication before this Commission is whether repudiation of both the claims by opposite party No.3 is valid. First of all the contentions of the counsel for the complainant that the complainant had not received first claim and the damage to wind screen due to breaking of the glass while servicing the vehicle is itself falsified from the documents i.e. intimation letter Ex.OP-1/3 and claim form Ex.OP-1/5 which is duly signed by the son of the complainant, as per which cause of damage to the glass is also mentioned. As far as the denial of claim regarding accidental loss to the vehicle on 14.06.2018 and 17.09.2018 is concerned.
17. This Commission is of the view that although complainant had received claim under the policy of insurance Ex.C-2 from opposite party No.2 and while getting renewed the policy, it was the duty of the opposite party No.3 to have verified the status of previous policy through their internal collaboration of the nationalized insurance companies and once the opposite party No.3 received the premium and renewed the policy of insurance and thereafter assessed and paid the claim of Rs.22,025/- for accidental loss on 14.06.2018, the opposite party No.3 could not claim that there was no lapse on their part. Moreover, perusal of file further shows that vide receipt Ex.C7, opposite party has received premium of Rs.2823/- from the complainant regarding benefit of no claim bonus received by the complainant by receiving the premium on 05.11.2018. As per Ex.C7 after receipt of premium the policy of insurance got revived with full benefit from the date of issuance. As such act of opposite party No.3 of having repudiated the claim vide letter Ex.C-9 dated 14.11.2018 inspite of receipt of premium amount on 05.11.2018 amounts to deficiency in service. Accordingly, complainant has fully proved the deficiency in service on the part of the opposite parties. However, this Commission is of view that complainant could not take benefit of his own wrong by throwing entire burden on the opposite parties. As such opposite party No.3 is directed to pay 75% of the claim amount in respect of accidental loss to the vehicle which took place on 17.09.2018 as assessed by the surveyor vide his report Ex.OP-3/6, on non standard basis in addition to above opposite parties are directed to pay Rs.22,025/- to the complainant which was received by opposite party No.1 from the complainant in respect of accidental loss to the vehicle on 14.06.2018.
18. Besides above, we are also find that opposite party No.1 also deficient in service for having with held the vehicle due to dispute with insurance company and receiving amount of Rs.92,000/- from the complainant through coercive means and also threatened to charge Rs.250/- per day form 22.10.2018 amounts to deficiency in service on the part of opposite party No.1.
19. Accordingly, present complaint is partly allowed against the opposite parties No.1 and 3. Complaint against opposite party No.2 is dismissed. Complaint is allowed with the following directions;-
i) Opposite party No.3 shall pay insurance claim in respect of accidental loss which took place on 17.09.2018 on non standard basis i.e.75% amount of Rs.68,115/- as assessed by the surveyor.
ii) Opposite party No.3 shall pay amount of Rs.22,025/- paid by the complainant to opposite party No.1 regarding accidental loss to the vehicle on 14.06.2018.
iii) Amount as mentioned in sub para (i) and (ii) shall carry interest @ 9% P.A. from the date of filing of complaint fill realization.
iv) Opposite parties No.1 and 3 are directed to pay Rs.20,000/- as compensation in equal share for mental tension, harassment and business malpractice including cost of litigation to the complainant jointly and severally. Entire exercise shall be completed within 30 days from the date of receipt of copy of this order.
20. The complaint could not be decided within the stipulated period due to heavy pendency of Court Cases, vacancies in the office and due to pandemic of Covid-19.
21. Copy of the order be communicated to the parties free of charges. After compliance, file be consigned to record room.
(Lalit Mohan Dogra)
President
Announced: (B.S.Matharu)
Aug. 23, 2023 Member
*YP*
