DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION

PATIALA.

                                      Consumer Complaint No. 287 of 25.7.2016

                                      Decided on: 5.11.2020

Pardeep Singh s/o Labh Singh R/o H.No.27, Village Sangatpura Sodhian, Fatehgarh Sahib, District Patiala.

                                                                   …………...Complainant

                                      Versus

1. Bharti Axa General Insurance Company Limited, SCO 350, 351, 352, Ist Floor, Sector 34 A, Chandigarh.
2. M/s Hemant Goyal Motor Pvt. Ltd. Opposite Sewa Singh Thikriwala Rajpura Road, Patiala through its Chair person.

                                                                   …………Opposite Parties

                                      Complaint under Section 12 of the

                                      Consumer Protection Act, 1986.

QUORUM

                                      Sh. Jasjit Singh Bhinder, President

                                      Sh.Vinod Kumar Gulati, Member    

ARGUED BY

                                      Sh.Heman Nanda,counsel for complainant.

                                      Sh.Jaspreet Singh, counsel for OP No.1.

                                      None for OP No.2.                                     

 ORDER

                                      JASJIT SINGH BHINDER,PRESIDENT

1. This is the complaint filed by Pardeep Singh (hereinafter referred to as the complainant) against  Bharti Axa General Insurance Co. Ltd. and another (hereinafter referred to as the OP/s).
2. The brief facts of the case are that the complainant purchased a Tata Nano from OP No.2 vide bill dated 17.8. 2015 .The vehicle registerd vide No.PB23S7304 and insured by OP No.1  vide policy No.59228679.
3. It is averred that being handicapped, the complainant got made some additions in the vehicle for facilitating safe driving. It is averred that the vehicle met with an accident. The complainant lodged the claim with OP No.1 but the OP instead of making the payment made certain queries which were duly replied. It is further averred that the OPs vide their letter dated 27.4.2016 stated that “your relative Mr.Jagjit Singh was driving the vehicle at the time of accident, but your vehicle has been modified for driving by disabled person…” The complainant also sent relevant document to the OP.
4. It is further averred that the OPs raised an issue of non endorsement of handicapped driving. It is further averred that the OPs in their letter dated 27.4.2016 have neither rejected the claim nor remitted the claimed amount. It is averred that the company person demanded money for passing the claim. It is averred that since the date of accident the vehicle is parked at the premises of M/s Hemant Goyal Motors Pvt. Ltd. and was partly repaired by OP No.2. Due to non passing of claim by the OPs the complainant suffered from mental tension and harassment and also the vehicle could not be repaired.There is thus deficiency in service on the part of the OPs.
5. On this back ground of the facts the complainant has filed this complaint with the prayer that the same be accepted by giving direction to the OPs to pay the claim amount of Rs.95,000/-, Rs.50,000/- as compensation for causing mental tension and harassment alongwith Rs.10,000/- as litigation expenses.
6. Upon notice OPs appeared through their respective counsel and contested the complaint by filing written reply.
7. In the reply filed by OP No.1 preliminary objections have been raised that the complaint is false, vexatious; that the complaint is not maintainable; that the complainant has not come before the Hon’ble Forum with clean hands; that the complainant is estopped by his own acts and conducts from filing the present complaint; that no cause of action has arisen against OP No.1; that the complainant is not a consumer within the definition of Section 2(d) of the Act; hat the complaint is bad for misjoinder and non joinder of necessary party; that the complaint involves intricate and complicated questions of facts and law thus the complaint should be relegated to civil court for redressal of dispute.
8. On merits, it is stated to be matter of record that the complainant has purchased the vehicle in question. It is admitted that the claim of the complainant has been repudiated vide letter dated 5.7.2016 by OP No.1.
9. It is averred that as per registration certificate of the vehicle, the class of the vehicle is mentioned as LMV car and not as invalid carrier. At the time of insurance it was not disclosed by the complainant regarding any alteration done in the vehicle. Further it is stated to be matter of record that the vehicle met with an accident and complainant lodged the claim with OP No.1. It is stated to be matter of record that letter dated 27.4.2016 was sent to the complainant for seeking his comment on the matter.
10. It is further averred that on inspection of the vehicle it was found by the surveyor that after modification the control of the foot pedals have shifted to hands, so it is difficult for a normal person to drive the vehicle. During investigation  it was also found that the vehicle was driven by one Jagjit Singh i.e. friend of the complainant who was normal person. Moreover alternation was made in the vehicle without informing OP No.1 so the complainant cannot be allowed to take the benefits of his own wrong. There is no deficiency in service on the part of OP and the complaint is liable to be dismissed.
11. In the reply filed by OP No.2, it raised preliminary objections that the complaint is totally false and frivolous; no cause of action has arisen to the complainant, that the complainant has concealed the facts because the accidental job was done on payment basis with the consent and knowledge of the complainant and after making payment the car was taken;t hat the complainant has not come with clean hands.
12. On merits, it is submitted that the OP No.2 is working as a service provider and the accidental job was done on payment basis and delivered the vehicle to his entire satisfaction leaving behind no claim. Since there is no deficiency in service on the part of the OP,therefore, the complaint is liable to be dismissed.
13. In evidence, the ld. counsel for the complainant has tendered affidavit of the complainant, Ex.CA alongwith documents Exs.C1 to C6 and closed the evidence.
14. The ld. counsel for OP1 has tendered affidavit of Shivali Sharma, Legal Manager, affidavit of Mandeep Kataria ,Surveyor and loss assessor, Ex.OPB alongwith documents Exs.OP1 to OP6 and closed the evidence.
15. Vide separate statement, the ld. counsel for OP No.2 has made the statement that the written statement filed by OP No.2 be read as evidence on behalf of OP No.2.
16. The ld. counsel for the complainant has argued that the complainant has purchased Tata Nano from M/s Hemant Goyal Motors Pvt. Ltd. The vehicle met with an accident on 19.4.2016 and since then complainant’s vehicle could not be repaired for not making payment.
17. The ld. counsel for the complainant further argued that the complainant being an handicapped person made some additions in the vehicle for facilitating safe driving. However, regular feature remained intact. The ld. counsel further argued that the vehicle met with an accident and accordingly he lodged the claim with the insurance company but the OP instead of making payment put certain queries which were replied but even thereafter no amount was paid. The ld. counsel further argued that the complainant is  handicapped person and has been harassed by the OPs as such the complaint be allowed.
18. On the other hand, the ld. counsel for OP No.1 has argued that the claim has been rightly repudiated by the OP as the same has been filed by concealment of material facts. The ld. counsel further argued that at the time of taking insurance policy, the complainant did not inform the OP regarding alteration done in the vehicle and he got the insurance policy by misleading the facts. It is further argued that due to concealment of the fact the insurance policy became void and OP is not liable to pay any amount.
19. In support of his case, the complainant has tendered his affidavit,Ex.CA and has deposed as per the pleading of the complaint.Ex.C1 is temporary certificate of registration of the car,  issued by OP No.2,Ex.C2 is the invoice of the car, which was purchased for Rs.2,96,220/-,Ex.C3 is the copy of estimate amounting to Rs.94098/-,Ex.C4 is the surveyor report,Ex.C5 is the letter written by Bharti Axa General Insurance Co. Ltd. to the complainant  in which it is mentioned that the vehicle has been modified for driving by disabled person and as such the complainant has violated the provisions of the insurance company and no amount was paid.
20. On the other hand OP No.1 has tendered affidavit of Shivali Sharma, Ex.OPA who has deposed as per the written statement. Sh.Mandeep Kataria, Surveyor, loss assessor and valuer has also tendered his affidavit, Ex.OPB, the surveyor report is Ex.OP1,Ex.OP3 is the motor claim notification,Ex.OP4 is a letter written to Pardeep Singh.
21. As per the complaint and the written version, it is clear that Pardeep Singh is handicapped person and he has done some modifications in the car. He  has not touched the regular features of the car. However, regular features of the car remain intact.
22. Admittedly the car was insured with the OP No.1 and the policy is Ex.OP5 and was issued on 17.8.2015 and is valid till 16.8.2016 mid night. Admittedly the car met with an accident and the car has not been fully repaired as yet. The accident happened on 19.4.2016 and since then the vehicle could not be repaired for not making the payment. This fact is mentioned in para no.2 of the complaint.
23. Only objection of the insurance company is that complainant is handicapped person and he has made some changes inside the vehicle. It is not a illegality if a handicapped person got mode some changes in the vehicle for facilitating the safe driving but the features remained intact. Thus ground that the complainant made some changes inside the vehicle is no ground to reject the entire claim.
24. The complainant has attached the estimate of Hemant Goyal Pvt.Ltd. of Rs.94098/- but this is merely an estimate .But as the vehicle has not been fully repaired as yet and no final bill is on the file, no amount can be paid to the complainant on the basis of this estimate.
25. In the present case merely 4 ½ years have been passed when the accident has taken place and the vehicle has not been got fully repaired as no amount has been paid by Bharti Axa General Insurance Co. Ltd. i.e. O P No.1.As the car has not been got repaired by the complainant sofar, so the amount as mentioned in the estimate cannot be paid.
26. Due to our above discussion, the complaint stands partly allowed and the OP No.1 is directed to appoint the surveyor afresh and the fee of the surveyor shall be paid by both the parties in equal share. The surveyor shall submit his report after assessing the loss caused to the vehicle in question. Thereafter the vehicle shall be got fully repaired by the complainant. However, 75% of the assessed amount shall be paid to the complainant and 25% shall be deducted as salvage. The OP No.1 is also directed to pay Rs.5000/- as litigation expenses to the complainant.   

Compliance of the order be made by OP No.1 within a period of 45 days from the date of the receipt of the certified copy of this order.

ANNOUNCED

DATED:5.11.2020

                             Vinod Kumar Gulati             Jasjit Singh Bhinder

                                    Member                                       President