Haryana

Yamunanagar

CC/298/2012

Mohammad Sabir S/o Mohammad Sagir - Complainant(s)

Versus

Bajaj Allianz General Insurance Co.Ltd. - Opp.Party(s)

Complainant Inperson

05 Jun 2017

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, YAMUNA NAGAR

                                                                                          Complaint  No. 298 of 2012.

                                                                                          Date of institution: 21.03.2012

                                                                                          Date of decision: 05.06.2017

Mohammad Sabir aged about 35 years son of Mohammad Sagir, resident of village Dasauri, Tehsil Chhachhrauli, District Yamuna Nagar.                                                                                                                                                        

                                                                                                                                        …Complainant.

                                                Versus

1. Bajaj Allianz General Insurance Company Limited, Claims Department, SCO 329, Sector-9, Panchkula through its Manager.
2. M/s IshikaAutomobiles, Authorized Dealer, Action Construction Equipment Limited, Old Court Road, Opp. Gupta Palace, Jagadhri, District Yamuna Nagar through its Proprietor or Partner or Manager.                                                                                                                                                                                                                                                                                                                           …Respondents.  

BEFORE:       SH. ASHOK KUMAR GARG, PRESIDENT,

                        SH. S.C.SHARMA, MEMBER

                        SMT. VEENA RANI SHEOKAND, MEMBER.

 

Present: Sh. Mohammad Sabir, complainant in person.    

               Sh. Rajiv Gupta,  Advocate, counsel for respondent No.1.

               Sh. Parveen Shakkarwal, Advocate, counsel for respondent No.2.

 

ORDER( ASHOK KUMAR GARG PRESIDENT)

 

1.                     Complainant Mohd. Sabir has filed the present complaint under section 12 of the Consumer Protection Act, 1986 as amended upto date.

2.                     Brief facts of the present complaint, as alleged by the complainant, are that the complainant purchased one new tractor make ACE-DI-475, Model 2011 bearing Engine No. 10138690 Chassis No. 01114505608 from the respondent No.2 (hereinafter respondents will be referred as OPs) on 30.04.2011 for a total sale consideration of Rs. 4,65,000/- and paid a down payment of Rs. 90,000/- to the Op No.2 against receipt No.2 dated 30.04.2011. The delivery of the said tractor was made to the complainant on the same day i.e. on 30.04.2011 by the OP No.2. After receiving the delivery of the tractor in question the complainant started using the said tractor as owner himself or through his driver as well. At the time of purchasing the tractor in question, the Op No.2 assured and promised to get the said tractor financed for payment of balance sale price from the financers of his circle and then to get the same registered in the name of complainant accordingly. The Op No.2 also got insured the tractor in question from the Op No.1 Insurance Company vide insurance policy bearing No. OG-12-1207-1811-00000031 valid from 30.04.2011 to 29.04.2012.

It has been further mentioned that unfortunately, on 9.05.2011, the tractor in question of the complainant met with an accident when the driver namely Meharban was driving the tractor in question and in this regard a DDR bearing No.18A was lodged on 13.05.2011. After that, complainant lodged the claim with the OP No.1 Insurance Company. The complainant got repaired his tractor from the workshop of Op No.2 and spent Rs. 2, 02,303/- on its repair. The complainant asked the Op No.2 to issue the bills of repair, so that he could submit the same with the OP no.1 Insurance Company to get the claim amount on account of damages of the tractor in question but the OP No.2 did not accede the said request of the complainant and even retained the said tractor in question also and asked the complainant to pay an amount of Rs. 2,02,303/- in cash to him on account of repair, otherwise the tractor will not be released to him. The complainant, under compulsion, somehow managed and paid the said amount of Rs. 2,02,303/- to the OP No.2 under repair bill bearing No. 4 to 6, despite that Op No.2 has not released the tractor in question. After that complainant submitted the necessary claim papers for payment of Rs. 2,02,303/- to the Op No.1 Insurance Company but the OP No.1 Insurance Company put off the matter on one pretext or the other and ultimately refused to accede the genuine request of the complainant. Lastly, prayed for directing the OPs to pay Rs. 2,02,303/- alongwith interest and also to pay compensation as well as litigation expenses.

3.                     Upon notice, OPs appeared and filed their written statement separately. Op No.1 filed its written statement by taking some preliminary objections such as complaint is not maintainable; there is no negligence or deficiency in service on the part of Op No.1; the complainant has no locus standi to file the present complaint; this Forum has no jurisdiction to entertain and try the present complaint; no immediate intimation was either given to the police or to the insurance company which amounts to violations of the policy condition No.1 according to which notice shall be given in writing to the company immediately  upon the occurrence of any accidental loss or damage………..; contract of insurance are generally in nature of contract of indemnity. In the case of contracts of insurance, the insured is entitled to get the assured for the reimbursement of actual loss that is proved to have been suffered by him with the cogent evidence. The happening of the event against which insurance cover has been taken does not by itself entitle the insured to claim the amount stipulated in the policy. It is only upon proof of actual loss, that the insured can claim reimbursement of loss to that extent. In the present case, the complainant was asked to submit final repair bills and the RC of the vehicle, which was not complied with, leaving no option with the insurance company other than to repudiate the claim. Thus, the claim of the complainant was rightly repudiated. On merit, it has been mentioned that in this case, an intimation dated 12.05.2011 was received by the OP No.1 Insurance Company regarding the accident of tractor without registration number. Upon which, the complainant was asked to submit necessary and desired documents. Besides this, the OP No.1 Insurance Company deputed Sh. Sandeep Kumar, an independent surveyor and loss assessor, to survey and assess the loss, if any, to the tractor in question who submitted his report dated 16.06.2011 and assessed the loss to the tune of Rs. 1,36,904/- on net loss on repair basis subject to terms and conditions of the insurance policy. Further, the investigator, deputed by Op No.1 Insurance Company, also submitted his report dated 27.06.2011. After receiving the reports from surveyor as well as investigator, the OP No.1 Insurance Company observed the following: -

 (i)  there is no bill or cash memo or even temporary registration number or permanent registration number in the name of complainant/insured in respect of tractor in question allegedly purchased by complainant.

 (ii)  As per contents of the DDR and claim form, the driver Meharban was carrying sand in the tractor trolley in question after loading the same from Ballewala Zone, meaning thereby that the complainant was using the tractor in question as transport vehicle whereas driving license (DL) given by the insured to the Op No.1 Insurance Company, does not entitled to Sh. Meharban to drive the transport vehicle. So, the alleged driver Meharban was not having valid and effective driving license at the time of alleged accident which violates the terms and conditions of the insurance policy.

(iii)   Even as per investigation report Meharban was not driving the tractor trolley in question as per statement of Ms. Dilshana daughter of Meharban who disclosed that her father was not the driver of the said tractor and Mohd. Sabir was driving the tractor and since Mohd. Sabir was not having any driving license, so, he took the driving license of one Meharban.

 It has been further mentioned that the OP No.1 Insurance Company, vide its various letters including letter dated 27.05.2011, 04.06.2011, 13.06.2011 and 06.07.2011 had desired the complainant to submit the necessary and relevant documents including RC, Repair bills but the complainant failed to submit the same and finding no alternate, the OP No.1 Insurance Company rightly repudiated the claim of the complainant vide its letter dated 13.07.2011. Lastly, prayed for dismissal of complaint.

4.                     OP No.2 appeared and filed its written statement by taking some preliminary objections such as: - complaint is not maintainable; complainant has no locus standi to file the present complaint; complainant has no cause of action; complainant has not come to this Forum with clean hands and has suppressed the true and material facts from this Forum. The true facts are that the complainant approached the OP No.2 for purchase of tractor DI-450 ACE on 30.04.2011 and made the down payment of Rs. 90,000/- and he had told to the OP that rest of the price of the tractor in question would be got financed by him from some financial company and he would make the payment of balance amount but he failed to get the tractor financed from any finance company and in the meantime the said tractor in question met with an accident on 09.05.2011. Thereafter, the complainant came to the OP No.2 with the damaged tractor and it was accordingly repaired and the repairing charges as well as price of the spare parts came to Rs. 2,02,500/- and the claim amount was not paid by the OP No.1 Insurance Company. It has been further mentioned that in addition to the above amount, a sum of Rs. 3,75,000/- towards the cost of tractor were in balance towards the complainant. The complainant failed to make the payment of repair charges to the tune of Rs. 2,02,500/- and balance payment towards the price of tractor i.e. Rs. 3,75,000/- i.e. total Rs. 5,77,500/- to the Op No.2. The Op No.2 has no objection to handover the tractor to the complainant, provided he makes the payment of above charges outstanding against him. The complainant has tried to misuse the process of law and so the complaint is liable to be dismissed and on merit it has been admitted that the OP No.2 is dealer of ACE Tractor and further it has also been admitted that complainant purchased the tractor in question on 30.04.2011 on the down payment of Rs. 90,000/-. However, it has been denied that tractor in question was sold to the complainant in installments. Further, it has also been admitted that tractor in question of the complainant was repaired after accident by Op No.2 and repaired charges came to Rs. 2,02,500/-. It has been further submitted that bills regarding repairs were handed over to the complainant and the bills are with Insurance Company i.e. OP No.1. However, it has been mentioned that complainant is making false allegations just to make out a consumer dispute in the present complaint whereas in fact it is the complainant who has to make the payment of repair charges as well as balance price of the tractor in question to save his own skin he has earlier filed a civil suit for mandatory injunction and now present complaint on the same allegations. Lastly, it has been mentioned that OP No.2 has done nothing wrong and illegal and on the other hand, he is a victim in the hands of complainant. Lastly, prayed for dismissal of complaint.

5.                     In support of his case, learned counsel for the complainant tendered into evidence short affidavit of complainant as Annexure CW/A and documents such as Photo copy of receipt of down payment dated 30.04.2011 as Annexure C-1, Photo copy of delivery challan dated 30.04.2011 issued by Op No.2 as Annexure C-2, Photo copy of bill/cash memo dated 15.07.2011 as Annexure C-3, Photo copy of insurance policy as Annexure C-4, Photo copy of DDR as Annexure C-5 and closed the evidence on behalf of complainant.

6.                     On the other hand, counsel for the OP No.1 tendered into evidence affidavit of Sh. Sachin Ohri, Assistant Manager as Annexure RA and affidavit of Sandeep Kumar Surveyor and Loss Assessor as Annexure RB and affidavit of Surinder Kumar, Investigator as Annexure RC and documents such as photo copy of e-mail dated12.05.2011 as Annexure R-1 and photo copy of investigator report as Annexure R-2, Photo copy of final survey report dated 16.06.2011 as Annexure R-3, Photo copy of DDR bearing No.18A dated 13.05.2011 as Annexure R-4, Photo copy of claim form as Annexure R-5, Photo copy of driving license of Meharban as Annexure R-6, Photocopy of statement of Ms. Dilshana recorded by investigator as Annexure R-7 photo copy of letter dated 27.05.2011, 04.06.2011,13.06.2011 and 06.07.2011 demanding the documents as Annexure R-8 to R-11, Photo copy of repudiation letter dated 13.07.2011 as Annexure R-12 and photo copy of insurance policy with terms and conditions as Annexure R-13 and closed the evidence on behalf of OP No.1.

7.                     Learned counsel for the OP No.2 tendered into evidence affidavit of Sh. Rajbir Manager of OP No.2 as Annexure R2/A and documents such as Photo copy of bill dated 15.07.2011 as Annexure R2/1,Photo copy of delivery challan as Annexure R2/2,Photo copy of repair bills as Annexure R-2/C-3, Photo copy of receipt of down payment as Annexure R2/4,Photo copy of Civil Suit/plaint as Annexure R2/5, Photo copy of investigation report under section 202 Cr.P.C. of Police Station, Jagadhri as Annexure R2/6 and R2/7, Photo copy of bill/invoice dated 15.07.2011 with the endorsement of cancellation as Annexure R2/8 and photo copy of statements of Sabir complainant, Akbar, Mohd.Sabir recorded in criminal case pending before Additional Chief Judicial Magistrate, Jagadhri as Annexure R2/9 to R2/12 and closed the evidence on behalf of OP No.2.

8.                     We have heard both the parties and have gone through the pleadings as well as documents placed on file very minutely and carefully.

9.                     It is not disputed that the complainant purchased the tractor make ACE D475, Modal No.2011 bearing Engine No. 10138690 Chassis No. 01114505608  for a total sale consideration of Rs. 4,65,000/- from the Op No.2 and paid a down payment of Rs. 90,000/- to the OP No.2 and asked for financing the tractor in question for the rest amount of the tractor to the OP No.2, which is duly evident from the copy of receipt of down payment dated 30.04.2011 Annexure C-1 and copy of delivery challan issued by Op No.2 Annexure C-2 dated 30.04.2011. It is also not disputed that the tractor in question was got insured from the OP No.1 Insurance Company for a sum insured of Rs. 4,41,750/- for tractor and Rs. 25,000/- for trolley vide insurance policy bearing No.OG-12-1207-1811-00000031 valid from 30.04.2011 to 29.04.2012 in the name of Mohd. Sabir, complainant which is duly evident from the copy of insurance policy Annexure R-13. It is also not disputed that tractor in question met with accident on 09.05.2013 i.e. just after 9 days from the purchase of tractor in question from the OP No.2 which is duly evident from the copy of DDR (Annexure C-5). Further, it is also not disputed that an investigator Sh. Suridner Kumar and a surveyor and loss assessor Sh. Sanddep Kumar was deputed who submitted his report assessing the loss to the tune of Rs. 1,36,904/- net loss on repair basis which is duly evident from the copy of investigator report Annexure R-1 and surveyor report Annexure R-3 respectively.   

10.                   The only version of the complainant is that he asked the Op No.2 to issue the bills of repair as the said amount will be got paid by OP No.1 insurance company but the OP No.2 did not accede the request of the complainant and even detained the tractor in question and asked the complainant firstly to pay the amount of Rs. 2,02,303/- on account of repair the tractor in question and further to pay rest amount of Rs. 3,75,000/- on account of balance payment of tractor in question. Further, it has been alleged by the complainant that he made the payment of repair charges of Rs. 2,02,303/- after managing the same but despite that Op No.2 failed to handover the tractor in question to the complainant after its repair which constitute the deficiency in service and unfair trade practice on the part of OP No.2. The complainant further alleged that OP No.1 Insurance Company has also wrongly and illegally repudiatedthe claim of the complainant on the false and flimsy ground which constitute the deficiency in service and unfair trade practice on the part of OP No.1 and lastly prayed for acceptance of complaint.

11.                   On the other hand, learned counsel for the Op No.1 argued at length that the claim of the complainant has been rightly repudiated by the OP No.1 Insurance Company as the complainant has totally failed to submit the original repair bills/invoice or cash memo and further failed to submit the temporary registration number or permanent registration certificate of the tractor in question in his name and further even the driving license of the alleged driver Meharban was not for driving the commercial vehicle as at the time of alleged accident, tractor in question was being used for transporting the sand. So, the alleged driver Meharban was not having valid and effective driving license at the time of alleged accident which violates the terms and conditions of the insurance policy. Further Counsel draw our attention toward the statement of Ms. Dilshana Annexure R-7 and argued that as per investigation report Meharban was not driving the tractor trolley in question and Mohd. Sabir was driving the tractor and since Mohd. Sabir was not having any driving license, so, he took the driving license of one Meharban. Further it has been argued that the OP No.1 Insurance Company vide its various letters including letter dated 27.05.2011, 04.06.2011, 13.06.2011 and 06.07.2011, had desired the complainant to submit the necessary and relevant documents including RC, Repair bills but the complainant failed to submit the same and finding no alternate, the OP No.1 Insurance Company rightly repudiated the claim of the complainant vide its letter dated 13.07.2011. Lastly prayed for dismissal of complaint.

12.                   Learned counsel for the OP No.2 also argued that the complainant has totally failed to make the payment of repair charges of Rs. 2,02,500/- and balance payment of cost of tractor in question i.e. Rs. 3,75,000/- to the OP No.2 due to which the OP No.2 has not handed over the tractor in question to the complainant. It has been further argued by the learned counsel for the OP No.2 that the OP No.2 is ready to handover the tractor to the complainant provided he make the payment outstanding against him. Learned counsel for the OP No.2 draw our attention towards the photo copy of repair bills (Annexure C-3) and argued that in this bill it is nowhere mentioned that the OP No.2 had received the payment from the complainant. Learned counsel for the OP No.2 further argued that the complainant has totally failed to place on file any receipt or any document vide which he made the payment of repair charges or balance payment of the cost of the tractor in question to the OP No.2 and in the absence of any cogent evidence, the OP No.2 has lien on the tractor in question to retain the same till the payment. Learned counsel for the Op No.2 further argued that the OP No.2 issued the repair bills (Annexure R-3) only due to reason that the payment of repair was to be processed by the Insurance Company. In fact no payment whatsoever has been received by OP No.2 against these bills. Learned counsel for the OP No.2 argued that a false and manipulated complaint has been filed just to harass and humiliate and to extract the money from the Op No.2 and lastly prayed for dismissal of complaint.

13.                   After hearing both the parties, we are of the considered view that only two (2) grievances of the complainant are involved in the present complaint. Firstly, the OP No.2 has not issued the repair bills and purchase invoice to the complainant despite making the payment of repair charges of Rs. 2,02,303/- and even retained the tractor in question after repair it. The complainant has failed to file any cogent evidence, so, this issue cannot be decided in summary way as a complicated question of facts is involved which requires elaborate evidence i.e. whether the payment of repair charges was made by the complainant or not? And further the repair bills were issued on cash basis or on credit basis and, what was the agreement between the parties regarding balance payment of cost of tractor, so we have no option except to left this issue open with the liberty to approach the Civil Court which is the best plate-form to decide the complaint.

14.                   Second grievances of the complainant is that whether the claim of the complainant had been rightly repudiated by the op no.1 Insurance company or not? The only version of the OP No. 1 Insurance Company is that Complainant has totally failed to submit the Registration Certificate (Temporary or Permanent) and further has failed to submit the original Invoice of purchasing the tractor in question but this version of the insurance company is not tenable as it is duly evident from the Delivery Challan (Annexure C-2) and Insurance Policy in question (Annexure C-4) issued by the OP No.1 that the tractor in question had been purchased on 30-04-2011, just 9 days before the alleged accident which had  taken place on 09-05-2011 and as per motor vehicle Act there is a period 30 days for registration with the registration Authority as per Section 43 of the Motor Vehicle Act. So the complainant was having sufficient time to register the same. Once the op no.1 Insurance Company had issued the Insurance Policy after charging the premium to the complainant after admitting him as owner of the tractor in question on the basis of Delivery Challan, whatsoever, the OP No.1 insurance company cannot deny the claim on this account. It was the duty of the insurance Company to check the temporary registration or Invoice of purchasing the tractor in question prior to issuance of the Insurance Policy in question. So repudiation on this ground is totally illegal and liable to be set-a side.

15.                   The further plea of the OP No.1 insurance company that the alleged driver was not holding the valid Driving license is also not tenable as op no.1 Insurance Company has totally failed to prove that the complainant was using the tractor for commercial purpose at the time of alleged accident. More over, as per Motor Vehicle Act Tractor has been defined as per Section 44 of the Motor Vehicle Act, a special class of vehicle and for that endorsement for the driving the same is necessary in the driving License. It is not the case of the op no1 insurance Company that in the DL of the driver there was not endorsement regarding the Tractor.

16.                   Further another version of the OP No.1 Insurance Company that as per statement of Ms Dilshana given to the investigator, Sh. Meharban was not driving the tractor in question at the time of alleged accident has also no weightage as from the perusal of DDR 18A (Annexure C-5) it is duly evident that Sh. Meharban was driving tractor in question.

17.                   Further from the perusal of repairs bill Annexure C-3, it is duly evident that tractor in question had been repaired by the OP No.2 after spending the amount of Rs.2,02,303/- and as per version of the OP No. 2 they have issued and submitted the original repair bills to the OP No.1 Insurance Company and the same are lying with the Op no.1 Insurance Company and this version has not been rebutted by the OP No.1 Insurance Company , so the version of the OP No.1 Insurance Company that no repair Bills were submitted is also not tenable.

18.                   So, overall, we are of the considered view that Op no. 1 Insurance Company has wrongly and illegally repudiated the claim of the Complainant and accordingly the repudiation letter (Annexure R-12 is hereby set-a-side.

19.                   Now, the next question remains, as to what extent the complainant is entitled to get damages. Learned counsel for the complainant argued that complainant has spent Rs. 2,02,303/- on account of damage to the vehicle which is not tenable as no cogent evidence by way of expert report has been filed by the complainant to prove that he is entitled to get the same whereas on the other hand, loss has been assessed by the Surveyor and Loss Assessor to the tune of Rs. 1,36,904/- loss on repair basis vide his report (Annexure R-3) and it is settled proposition of the law held by the Hon’ble National Commission as well as State Commission in various cases that surveyor is the best technical person to assess the loss and credence should be given to the surveyor report in the absence of any discrepancy or ambiguity in the surveyor report.  

20.                   Resultantly, in the circumstances noted above, we partly allow the complaint of complainant and direct the Op No.1 Insurance Company to pay a sum of Rs. 1,36,904/- (the amount assessed by the surveyor) to the complainant alongwith interest at the rate of 7% per annum from the date of filing of present complaint till its realization and further to pay Rs. 5000/- as litigation expenses. Order be complied within a period of 30 days after preparation of copy of this order failing which complainant shall be entitled to invoke the jurisdiction of this Forum as per law. Copies of this order be sent to the parties concerned as per rules. File be consigned to the record room after due compliance.

Announced: 05.06.2017.

 

                                                                                    (ASHOK KUMAR GARG )

                                                                                    PRESIDENT,

                                                                                    DCDRF, YAMUNANAGAR

 

 

                  (VEENA RANI SHEOKAND)               (S.C.SHARMA  )

                   MEMBER.                                              MEMBER