DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, MANSA. Complaint No: 36/17.03.2008 Decided on : 19.1.2009 Bant Singh S/o Sh. Sher Singh, resident of village Dalel Wala, District Mansa. .....Complainant. VERSUS 1.Bajaj Allianz General Insurance Company Limited, Regd. Office and Head Office, G.E.Plaza, Airport Road, Yerwada, Pune 411006. 2.Manager/Incharge Branch, Bajaj Allianz General Insurance Company Limited, SCO-147, Feroze Gandhi Market, Ludhiana. 3.Manager/Incharge Branch, Bajaj Allianz General Insurance Company Limited, Mansa. .....Opposite Parties. Complaint under Section 12 of the Consumer Protection Act, 1986. ..... Present: Sh. N.K.Sharma,Advocate counsel for the complainant. Sh.P.K.Singla, Advocate counsel for the opposite parties. Quorum: Sh.P.S.Dhanoa, President. Sh.Sarat Chander, Member. Smt.Neena Rani Gupta, Member. ORDER:- Sh.P.S.Dhanoa, President. This complaint has been filed by Sh.Bant Singh, son of Sh. Sher Singh, resident of village Dalel Wala, District Mansa, under Section 12 of the Consumer Protection Act, 1986 (in short called the 'Act'), on the averments, which may, briefly be described as under: 2. That he purchased Honda Civic car, bearing registration No.PB-31E-8700, for a sum of Rs.10,97,000/- from M/s Prestige Honda, Contd........2 : 2 : Lally Motors Limited, Bahadurgarh, Patiala on 11.4.2007. The amount of consideration was received, by the supplier, vide receipt No.25 and 26 dated 11.4.2007 and the vehicle was insured vide cover note No.PCO610770379 of even date, for a sum of Rs.34,229/-. On 30.9.2007 at about 2 P.M., the above said car of the complainant met with an accident in revenue estate of Village Rajiasar in the State of Rajasthan. In this regard report was lodged by the complainant and car in damaged condition was shifted to the showroom of M/s Lally Motors Ltd., Bahadurgarh at Patiala. After checking damage caused to the car, the above said firm assessed, the loss at Rs.9,65,017/-. The necessary documents were submitted, by the complainant to the opposite parties. They agreed to pay a sum of Rs.9,50,000/- in terms of oral settlement with the complainant and got signed from him consent letter, but lateron retracted from their offer. The agreement for sale of damage and cancellation of insurance policy were also got signed from the complainant by the opposite parties. On 5.2.2008, the opposite parties sent letter to the complainant that his claim lodged for payment under insurance Policy No.OG081202180100000325 has been repudiated after scrutiny of documents on the ground that the vehicle was not in possession and control of the complainant at the time of accident and he does not have any insurable interest therein, as such, complainant is consumer, under the opposite parties and there is deficiency in service on their part. The supplier of the vehicle is also demanding rent for the space covered by the salvage @ Rs.250/- per day, from the date of deposit i.e. 8.10.2007. The complainant is also incurring loss for want of use of his vehicle. He owns 60/70 acres of agricultural land and also other commercial vehicles. He has visited many times in the office of the opposite parties and spent lot of amount in that connection. At the end a prayer has been made that direction be given to the opposite parties to pay him compensation in terms of the insurance policy and another sum of Rs.2,00,000/- for mental and physical harassment alongwith costs incurred Contd........3 : 3 : for filing the complaint and interest at the rate of 18% per annum as the opposite parties, have illegally repudiated the claim of the complainant. Hence this complaint. 3. On being put to notice, the opposite parties filed written version, resisting the complaint, by taking preliminary objections; that the complainant, is not the 'consumer' qua the insurance policy under them and has no insurable interest, in the car purchased in his name by his Commission Agent Jagdish Rai; that there is no deficiency in service on the part of the opposite parties; that he was not in possession and control of the vehicle at the time of alleged accident and has not suffered any loss due to damage caused to his vehicle; that no FIR has been got registered by him; that claim form has not been signed by the complainant; the car is alleged to have met with an accident with a truck, but he did not report the matter to the police on the pretext of compromise with the owner and offending truck; that the complaint involves complicated questions of law and facts, as such, it cannot be decided in a summary manner; that this Forum has no jurisdiction to entertain and try the complaint; that it is bad for non joiner of necessary parties; that complaint is not maintainable and the complainant has suppressed the material facts from the knowledge of this Forum that he purchased the car in his name with the amount spent by his Commission Agent Sh.Jagdish Rai running his profession at Mansa and he has been using the car as a taxi and that Surveyor deputed by the opposite parties to assess the loss has reported that damage to the car of the complainant is to the tune of Rs.5,88,525/-. On merits, it is reiterated that complainant is not real owner of the car in question purchased in his name by his Commission Agent and he had been using the same for commercial purposes as a taxi and was not in possession and control thereof at the time of alleged accident, and he has secured the insurance policy for using the car as private vehicle, as such, he is not entitled, for payment of any amount on account of insurance claim because he has violated the statutory Contd........4 : 4 : provisions of the policy. Rest of the averments made in the complaint, have been denied, and a prayer has been made, for dismissal of the same, with costs. 4. On being called upon by this Forum, to do so, the complainant tendered his affidavits, Exhibits C-1 and C-2 and affidavit of Commission Agent Sh.Jagdish Rai Ext.C-3. He has also tendered in evidence copies of documents Ext.C-4 to C-30 before closing evidence. On the other hand, learned counsel for the opposite parties has tendered in evidence, copies of documents, Ext.OP-1 to OP-14, and closed evidence, on their behalf. 5. We have heard the learned counsel for the parties and gone through the oral and documentary evidence, adduced on record, by them, carefully, with their kind assistance. 6. At the out set, learned counsel for the complainant Sh.N.K. Sharma, Advocate has submitted that the opposite parties have not denied the factum of issuance of insurance cover note in the name of the complainant who has produced on record numerous documents as proof of his ownership and his financial capacity to purchase the said vehicle. Learned counsel has also submitted that the complainant has also produced the copies of documents showing that he also owns other vehicles and factum of accident as proved by the copy of the DDR and medical documents produced on record by him and the Surveyor appointed by the opposite parties has reported damage to the vehicle, as such, he cannot be non suited on the basis of any writing procured by the Agent of the opposite parties, and complainant has also not examined the Commission Agent, who has denied on solemn affirmation that complainant purchased damaged car in his name for him, as such, complainant cannot be denied relief mainly on the basis of his statement alleged to have been made before the agent of the opposite parties. Learned counsel argued that there is no evidence that complainant have been using his vehicle as a taxi and the report of the Surveyor regarding the extent of damage to the car of Contd........5 : 5 : the complainant is not trustworthy because the vehicle had met with an accident within a period of about six months after its purchase. Learned counsel argued that report given by the firm from whom the car was purchased by the complainant cannot be rejected especially when extent of damage to the car is corroborated by the photographs of the vehicle. Learned counsel has also argued that no witness has been examined by the opposite parties, as such, oral and documentary evidence adduced on record by the complainant has gone uncontroverted, as such, it is established that opposite parties have wrongly repudiated the claim of the complainant. Learned counsel has also drawn our attention to the documents placed on record bearing signatures of the complainant and has argued that the opposite parties have initially agreed to settle the claim for Rs.9.50,000/-, but lateron retracted from their offer for the reasons best known to them. Learned counsel has also argued that complainant is entitled to payment of compensation and damage caused to his car as assessed by the Surveyor and also compensation for physical and mental harassment suffered by him due to repudiation of claim by the opposite parties for extra expenses charged by the supplier for storage of salvage of his car and costs for amount incurred by him for filing of complaint. In support of his contentions learned counsel has placed reliance upon 1998(II) CPC 72 Oriental Insurance Company versus Duni Chand, wherein it was alleged by the insurance company that vehicle involved in the accident was not being driven by the driver , but by the owner who did not possess any driving licence. This conclusion was drawn by the admission made in the application form which was filled up by the agent of the insurance company. It was held by the Hon'ble Himachal Pradesh State Commission that claim cannot be repudiated on the basis of so called admission which remained unexplained and order of the District Forum allowing the claim of the complainant was upheld. 7. On the other hand Learned counsel for the opposite parties Contd........6 : 6 : Sh.P.K.Singla, Advocate has attracted our attention to writing Ext.OP-8 signed by the complainant and scribed by his son Sukhdeep Singh and attested by Smt.Kulwant Kaur, Sarpanch, Gram Panchayat, Dalel Wala to the effect that the car in question was purchased in the name of the complainant on behalf of his Commission Agent Jagdish Rai. Learned counsel has argued that complainant cannot be permitted to wriggle out of the said writing and has no insurable interest in the vehicle, as such, he being not a consumer under them, the opposite parties are not entitled to make payment of any insurance claim on account of compensation and costs demanded by him. Learned counsel has further argued that complainant is not an eye witness of accident and has not registered First Information Report, as such, factum of accident is also not free from suspicion. Learned counsel has argued that even if it be assumed for sake of discussion that accident has taken place, the opposite parties have deputed Surveyor who has assessed the damage to the car of the complainant to the tune of Rs.5,88,525/-, as such, report of Supplier of car given at the instance of the complainant cannot be preferred over the report of the Surveyor appointed by the opposite parties, who is an independent person and has been approved by the competent authority. Learned counsel has argued that even if this Forum comes to the conclusion that the opposite parties have wrongly repudiated the claim, then amount cannot be awarded against the insurance policy beyond the amount mentioned by the Surveyor in his report. In support of his contention, learned counsel has placed reliance upon 2006(II) CLT NC 349 National Insurance Company versus Alayammaverghese and others wherein it has been held that Surveyor report is an important document which cannot be brushed aside and assessment made by him therein has to be specifically agreed or rebutted. 8. The arguments advanced by the learned counsel for the opposite parties has failed to sound well with us. As per copies of Contd........7 : 7 : documents produced on record, bill Ext.C-4, receipts Ext.C-5 and C-6 showing the car in question has been purchased by the complainant in his own name. Even the insurance cover note Ext.C-7 has been issued by the opposite parties in the name of the complainant with correct parentage and address as mentioned in the head note of the complaint. The complainant has also produced on record affidavit of Jagdish Rai his commission agent, Ext.C-3. The said witness has stated on solemn affirmation that complainant is owner of the car purchased by him. He has not set claim of ownership in himself. He was not expected to furnish duly sworn affidavit against his own financial interest. The complainant has also produced on record registration certificate of another car bearing No.HR26-R-8865, and of a truck owned by him, as evident from their copies of R.Cs Ext.C-21 and C-22. He has also produced the copies of Jamabandi and Sales Deed Ext.C-25 and C-26, showing that he is owner of large chunk of land. In the face of the above said evidence, the complainant cannot be termed to be a pauper. Rather there is enough material on record to hold that he is a man of means. The opposite parties have placed reliance upon writing Ext.R-8 scribed by the son of the complainant, signed by him and attested by Smt. Kulwant Kaur the sarpanch of village Dalel Wala to the effect that the car involved in the accident has been purchased by the complainant in his name and his Commission Agent, Jagdish Rai has paid the amount of consideration and he has no objection in case the amount of car is released in the name of the complainant. The opposite parties have not examined any witness to prove the said writing made before their agent. The complainant has not admitted the genuineness thereof. The opposite parties have not led any evidence to establish that complainant has been using his vehicle for commercial purposes and was plying the same on the road as a taxi. Since the opposite parties have taken the objection to this extent, therefore, initial onus was on them to prove the same. As they have failed to prove their plea to that extent, therefore, onus never shifted upon Contd........8 : 8 : the complainant to prove to the contrary. The Surveyor of the opposite parties has also assessed the damage to the car of the complainant. Therefore, complainant cannot be denied relief mainly because he has not got registered the FIR. 9. As observed in the earlier part of the order, the complainant has purchased the car in his own name and opposite parties have also issued the insurance cover note of the insurance policy in his name It is not the case of the opposite parties that ownership of the vehicle has been transferred in the name of some other person. Since accident has taken place within the period of validity of the insurance policy, therefore, the complainant is consumer qua the opposite parties so far as the car purchased by him and insured by the opposite parties is concerned. We are unable to accede to the plea of the opposite parties that he has no insurable interest in the damage caused to his car. As per the copy of the DDR produced on record by the complainant, Ext.C-23, registered at Police Station Sriganganagar by police of State of Rajasthan, the vehicle was driven at the time of accident by Sh.Ajay Kumar whereas his driver Balwinder Singh had been traveling in his car who has also sustained minor injuries. The complainant has produced on record copy of discharge summary Ext.C-12 showing that Ajay Kumar fell unconscious and was admitted to the hospital with head injuries and had been vomiting at the time of admission. The opposite parties have themselves produced on record the driving licence of Ajay Kumar Ext.OP-4 showing that he possessed valid and effective driving licence on the date of accident. 10. The law does not debar the owner, to hand over his vehicle to another person possessing valid and effective driving licence. Since the person who was driving the vehicle has been possessing valid driving licence on the date of accidence, therefore we are of the considered opinion that opposite parties were not justified in repudiating the claim of the complainant. The complainant has tendered his affidavit on solemn Contd........9 : 9 : affirmation to substantiate all the allegations made in his complaint, whereas no counter affidavit has been filed by the opposite parties to rebut the same. The complainant has also produced on record estimate Ext.C-20 issued by M/s Prestige Honda in his name assessing damage to his car in the sum of Rs.9,65,017/-. The opposite parties have also tendered in evidence the report given by their Surveyor-cum-investigator, M/s. G.S.Sohal & Company, Ext.OP-IA assessing damage to the car of the complainant in the sum of Rs.5,87,525.96 after deduction of Rs.1,000/- in terms of excess clause of insurance cover. We are unable to give much credence to the report given by the Surveyor of the opposite parties regarding extent of damage suffered by the car of the complainant in the accident because he has given value of salvage merely as Rs.20,000/-, whereas complainant has purchased his car on 11.4.2007, which met with accident on 30.9.2007 and as per the photographs produced on record by the complainant. Ext.C-8 complete damage to his car is visible to naked eye except his body and rear portion thereof. 11. In the light of our above discussion, we have come to the conclusion that much reliance cannot be placed on report given by the Surveyor, of the opposite parties. 12. We have carefully gone through the ratio of judgment delivered, in the authority relied upon by the learned counsel, for the opposite parties. In 2006(II) CLT NC 349 (Supra) salvage value of the car was assessed by the Surveyor of the Insurance Company to the tune of Rs.1,00,000/- and damage was assessed in the sum of Rs.2,50,000/- after holding the market value of the car as Rs.3,50,000/-. In the present case, in the insurance cover note Ext.C-7, the Insured Declared Value of the car has been mentioned as Rs.10,42,150 against his purchase price of Rs.10,97,000/- and the report given by the Surveyors after assessment of damage is lower than the Insured Declared Value . As such, the claim of the complainant is, within limit of the insurance policy and is in conformity Contd......10 : 10 : with the facts borne on record. 13. The complainant has also produced on record copies of agreement of sale of salvage of the vehicle stated to be examined at the instance of the opposite parties in compromise for a sum of Rs.9,50,000/-, but these documents do not have any evidentiary value because they are not signed by any representative of the opposite parties and agreement has not been acted upon. 14. The complainant has produced on record copies of letters written by him to the opposite parties and their Surveyor Ext.C-17 to C-19 showing his anxiety for settlement of his claim, but the same has been repudiated by the opposite parties vide their letter dated 5.2.2008 Ext.C-19. As such, there is deficiency in service on their part, so far as repudiation of claim by the opposite parties, is concerned. 15. For what has been discussed above, we hold that the complainant is entitled to claim in the sum of Rs.9,65,017/- minus sum of Rs.1,000/- in terms of excess clause along with interest at the rate of 9 percent per annum from the date of filing of the complaint i.e. 17.3.2008 till the date of payment. However, we are of the opinion that plea of the complainant regarding rent demanded by the supplier for storage of salvage is not corroborated by any documentary evidence. Since intricate questions of law and facts were involved in this case, which needed adjudication therefore, complainant is not entitled to any amount on account of compensation and costs. It is well settled that compensation and interest cannot be awarded simultaneously by the Forum. 16. For the aforesaid reasons, we partly accept the complaint and direct the opposite parties to pay a sum of .Rs.9,64,017/-along with simple interest at the rate of 9 percent per annum from the date of filing of the complaint i.e. 17.3.2008 till date of actual payment, within a period of two months from the date of receipt of the copy of this order. Thereafter the complainant shall transfer the ownership of the vehicle and policy within a Contd......11 : 11 : period of one month relinquishing all rights in the favour of the opposite parties qua the salvage of his car and insurance policy. 17. In view of the peculiar facts and circumstances of the case, parties are left to bear their own costs. 18. The copies of the order be supplied, to the parties, free of costs, as permissible, under the rules. File be indexed and consigned to record. Pronounced: 19.01.2009 Neena Rani Gupta, Sarat Chander, P.S.Dhanoa, Member. Member. President.
