Order by:
Sh.Amrinder Singh Sidhu, President
1. The complainant has filed the instant complaint under section 12 of the Consumer Protection Act, 1986 (now under section 35 of the Consumer Protection Act, 2019) on the allegations that the complainant got his vehicle Chevrolet Capitiva Car bearing RC No.PB-29D-9825, Engine No.56523K, Chassis No.400081 insured with Opposite Parties vide policy No.S8525702 valid for the period 04.01.2016 to 03.10.2017. Said insured vehicle of the complainant met with an accident on 11.09.2017 at about 10.15 PM and got damaged. The intimation in this regard with given to Opposite Party No.1. Thereafter, the claim was lodged with the Opposite Party No.1 for its payment, but the Opposite Parties are lingering on the matter on one pretext to another and at present the insured damaged vehicle is lying with Opposite Party No.2. The complainant made so many requests to the Opposite Parties to do the needful, but to no affect. As such, there is deficiency in service on the part of the Opposite Parties. Vide instant complaint, the complainant has sought the following reliefs.
a) The Opposite Parties may be directed to pay Rs.11,37,046/- as per the estimated bill of Opposite Party No.2 as well as pay the parking charges and other charges of Opposite Party No.2 in lieu of repair and parking the said vehicle.
b) The amount of Rs.5,00,000/- be allowed to be paid by the opposite parties on account of compensation due to mental tension and harassment caused by the complainant.
c) The cost of complaint amounting to Rs.21,000/- may please be allowed.
2. Opposite Party No.1 appeared through counsel and contested the complaint by filing the written version taking preliminary objections therein that the present complaint is not maintainable as the vehicle in question was allegedly met with an accident on 11.09.2017 and the claim was intimated on 18.09.2017 with a delay of 7 days and as such, there is violation of terms and conditions of the policy. Moreover, despite repeated reminders, the complainant has not submitted the required documents. It is submitted that the vehicle of the complainant was insured for an amount of Rs.9,50,000/- with the Opposite Party No.1 for the period 04.10.2016 to 03.10.2017 subject to its terms and conditions. It is further submitted that on 18.09.2017, the Opposite Party No.1 received the intimation regarding the loss to the insured vehicle and after getting the claim documents, M/s.B & S Surveyor and Loss assessor was appointed for verification of the loss who inspected the damaged vehicle and asked the complainant to submit the estimate for repairing the vehicle. Since the complainant claimed the major loss, and hence Mr.Anurag Midha was appointed to investigate the genuineness of the claim as the complainant submitted very excessive and inflated estimate for the repair of the vehicle. The said surveyor time and again made requests to the complainant to provide the relevant documents/ information with regard to the loss caused, but despite repeated reminders, the complainant has not provided the documents so required. Moreover, the complainant also failed to get repair the vehicle despite repeated requests of the surveyor. The surveyor also sent letter dated 22.03.2018 and ultimately, when no response was received, then the surveyor assessed the loss to the tune of Rs.4,76,298.38 paisa. Hence, there is no deficiency in service on the part of the Opposite Parties. On merits, Opposite Party No.1 took up the same and similar pleas as taken up by them in the preliminary objections and prays for dismissal of the complaint.
3. Opposite Party No.2 appeared through counsel and contested the complaint by filing the similar written version as filed by Opposite Party No.1 insurance company and prayed for the dismissal of the complaint.
4. In order to prove his case, the complainant has placed on record his affidavit Ex.CW1/A alongwith copies of documents Ex.C2, Ex.C2/A and other documents Ex.C3 to Ex.C8, copy of affidavit Mark A, copy of estimate Mark B and closed the evidence on behalf of the complainant.
5. On the other hand, to rebut the evidence of the complainant, Opposite Party No.1 also tendered into evidence the affidavit of Sh.Risikant Ex.OP1/4 alongwith copies of documents Ex.OP1/5 to Ex.OP1/12. Similarly, Opposite Party No.2 tendered into evidence the affidavit of Munish Sen Ex.OP2/A alongwith copies of documents Ex.OP2/1 to Edx.OP2/3 and closed the evidence.
6. We have heard the ld.counsel for the parties and also gone through the documents placed on record.
7. Ld.counsel for the Complainant has mainly reiterated the facts as narrated in the complaint and contended that first of all, the written version filed on behalf of the Opposite Party has not been filed by an authorized person. Therefore, the written version so filed is not maintainable. Opposite Party is limited Company and written version has been filed on the basis of special power of attorney given to ld.counsel for the Opposite Party. Not only this, no such terms and conditions were ever supplied to the complainant. Further contended that the complainant got his vehicle Chevrolet Capitiva Car bearing RC No.PB-29D-9825, Engine No.56523K, Chassis No.400081 insured with Opposite Parties vide policy No.S8525702 valid for the period 04.01.2016 to 03.10.2017. Said insured vehicle of the complainant met with an accident on 11.09.2017 at about 10.15 PM and got damaged. The intimation in this regard with given to Opposite Party No.1. Thereafter, the claim was lodged with the Opposite Party No.1 for its payment, but the Opposite Parties are lingering on the matter on one pretext to another and at present the insured damaged vehicle is lying with Opposite Party No.2. The complainant made so many requests to the Opposite Parties to do the needful, but to no affect. As such, there is deficiency in service on the part of the Opposite Parties.
8. On the other hand, ld.counsel for the Opposite Parties has repelled the aforesaid contention of the ld.counsel for the complainant on the ground that the present complaint is not maintainable as the vehicle in question was allegedly met with an accident on 11.09.2017 and the claim was intimated on 18.09.2017 with a delay of 7 days and as such, there is violation of terms and conditions of the policy. Moreover, despite repeated reminders, the complainant has not submitted the required documents. It is submitted that the vehicle of the complainant was insured for an amount of Rs.9,50,000/- with the Opposite Party No.1 for the period 04.10.2016 to 03.10.2017 subject to its terms and conditions. It is further submitted that on 18.09.2017, the Opposite Party No.1 received the intimation regarding the loss to the insured vehicle and after getting the claim documents, M/s.B & S Surveyor and Loss assessor was appointed for verification of the loss who inspected the damaged vehicle and asked the complainant to submit the estimate for repairing the vehicle. Since the complainant claimed the major loss, and hence Mr.Anurag Midha was appointed to investigate the genuineness of the claim as the complainant submitted very excessive and inflated estimate for the repair of the vehicle. The said surveyor time and again made requests to the complainant to provide the relevant documents/ information with regard to the loss caused, but despite repeated reminders, the complainant has not provided the documents so required. Moreover, the complainant also failed to get repair the vehicle despite repeated requests of the surveyor. The surveyor also sent letter dated 22.03.2018 and ultimately, when no response was received, then the surveyor assessed the loss to the tune of rs.4,76,298.38 paisa. Hence, there is no deficiency in service on the part of the Opposite Parties.
9. Perusal of the contention of the ld.counsel for the complainant shows that the written version filed on behalf of Opposite Party has not been filed by an authorized person. Therefore, the written version so filed is not maintainable. The Opposite Party is limited Company and written version has been filed on the basis of special power of attorney given to ld.counsel for the Opposite Party. In this regard, Hon’ble Supreme Court of India in case titled as Shubh Shanti Services Limited v. Manjula S.Agarwalla and others (2005) 5 SCC 30, decided on 11.05.2005 has and observed to the following effect:
“..............As already stated, it has not been averred in the plaint nor sought to be proved that any resolution had been passed by the Board of Directors of the plaintiff company authorising Shri A.K. Shukla to sign, verify and institute the suit. It has also not been averred that the memorandum/articles of the plaintiff company give ny right to Shri A.K. Shukla to sign, verify and institute a suit on behalf of the plaintiff company. It, therefore, follows that the plaint has been instituted by Shri A.K. Shukla only on the authority of Sh. Raj K.Shukla, CEO of the plaintiff company. Such an authority is not recognized under law and, therefore, I held that the plaint has not been instituted by an authorised person. Issue No.1 is accordingly, decided against the plaintiff and in favour of the defendants.”
Further, Hon’ble Supreme Court of India in a judgment (2011)II Supreme Court Cases 524 titled as “State Bank of Travancore Vs. Kingston Computers India Pvt. Ltd.” and in para no.11 of the judgment, has held that
“the plaint was not instituted by an authorized person. On the plea that one authority letter dated 02.01.2003 was issued by Sh. R.K.Shukla in favour of Sh. A.K.Shukla. Further plaint failed to place on record its memorandum/articles to show that Sh. R.k.Shukla has been vested with the powers or had been given a general power of attorney on behalf of the Company to sign, verify and institute the suit on behalf of the Company.”
Recently Hon’ble State Consumer Disputes Redressal Commission, Punjab at Chandigarh in FAO No.1235 of 2015 decided on 25.01.2017 in case titled as L.G.Electronics India Private Limited Vs. Sita Ram Chaudhary also held that the plaint instituted by an unauthorized person has no legal effect.
10. For the sake of arguments, for the time being, if the written reply filed by Opposite Parties is presumed to be correct, the next plea raised by the Opposite Parties is that as per the terms and condition of the policy, the claim of the complainant is not payable as he has not informed regarding the loss caused to the insured vehicle and not only this, the complainant has not produced the requisite documents as per the terms and conditions of the policy.But on the other hand, ld.counsel for the complainant has specifically denied this averment of the Opposite Party and contended that no such terms and conditions were ever conveyed or supplied to the complainant at the time of insurance of the cows and the alleged terms and conditions are not applicable on the case of complainant. But the Opposite Party could not produce any evidence to prove that terms and conditions of the policy were ever supplied to the complainant insured, when and through which mode? It has been held by Hon’ble National Commission, New Delhi in case titled as The Oriental Insurance Company Limited Vs. Satpal Singh & Others 2014(2) CLT page 305 that the insured is not bound by the terms and conditions of the insurance policy unless it is proved that policy was supplied to the insured by the insurance company. Onus to prove that terms and conditions of the policy were supplied to the insured lies upon the insurance company. From the perusal of the entire evidence produced on record by the Opposite Party, it is clear that Opposite Party has failed to prove on record that they did supply the terms and conditions of the policy to the complainant insured. As such, these terms and conditions, particularly the exclusion clause of the policy is not binding upon the insured. Reliance in this connection can be had on Modern Insulators Ltd.Vs. Oriental Insurance Company Limited (2000) 2 SCC 734, wherein it is held that “In view of the above settled position of law, we are of the opinion that the view expressed by the National Commission is not correct. As the above terms and conditions of the standard policy wherein the exclusion clause was included, were neither a part of the contract of insurance nor disclosed to the appellant, the respondent can not claim the benefit of the said exclusion clause. Therefore, the finding of the National Commission is untenable in law.” Our own Hon’ble State Commission, Punjab, Chandigarh in First Appeal No.871 of 2014 decided on 03.02.2017 in case titled as Veena Mahajan (Widow) and others Vs. Aegon Religare Life Insurance Company Limited in para No.5 has held that
“Counsel for the appellant argued that copy of insurance policy was not supplied to the appellant and hence, the exclusion clause in the contract of the insurance policy is not binding upon him. He further argued that no proof of sending of insurance policy was ever produced by the respondent despite specific contention raised by the complainant that the insurance policy was never received by him. He argued that though there is an averment of the OP that the policy in question was delivered through Blue Dart Courier to the complainant. In order to prove their contention, no affidavit of any employee of Blue Dart was produced who would have made a statement to have the effect that the policy was delivered to the complainant nor any acknowledgement slip for having received the article by the complainant through courier company was produced by the insurance company. He argued that since no policy document was received by the insured and argued that the terms and conditions as alleged to be part of the insurance policy were not binding upon the insured. He argued that policy was issued in the name of deceased Sh.Vijinder Pal Mahajan with his wife Mrs.Veena Mahajan as beneficiary and the same was never refused by the OP and the proper premium for insurance was paid by late complainant. He argued that as per the specific allegations made in the complaint in para No.4, no rebuttal to that contention was specifically there in their written reply in para No.2 and para No.4 in the reply filed by OP in the District Forum. He argued that Hon'ble National Consumer Disputes Redressal Commission, New Delhi in case of "Ashok Sharma Vs. National Insurance Co. Limited", in Revision Petition No. 2708 of 2013 held in para No.8 to the point of non-delivery of terms and conditions of the policy. He also cited Hon'ble Supreme Court's decision given in the matter of "United India Insurance Co. Limited Vs. M.K.J.Corporation" in Appeal (civil) 6075-6076 of 1995 (1996) 6 SCC 428 wherein the Apex court held that a fundamental principle of Insurance Law makes it that utmost good faith must be observed by the contracting parties. Good faith forbids either party from concealing what he privately knows, to draw the other into a bargain, from his ignorance of that fact and his believing the contrary.”
11. The complainant has claimed the repair charges amounting to Rs.11,37,046/-, but the vehicle in question was insured for an amount of Rs.9,50,000/- with Opposite Party No.1. We have perused the detailed report of B & S Insurance Surveyors Ex.OP1/9 with regard to claim on account of repair charges of the insured vehicle, in which he has assessed the net liability on repair basis amounting to Rs.4,76,298/-. It has been settled by the Hon’ble Supreme Court of India that the report of the Surveyor cannot be brushed aside without valid reasons. In this context, reference may be made to the judgment of the Hon’ble Supreme Court reported as “Sri Venkateshwara Syndicate v. Oriental Insurance Company Limited, II (2010) CPJ 1 (SC)” in which it was held by the Hon’ble Supreme Court that the report of the Surveyor is to be given due importance and weight. Hon’ble National Commission in case cited as PRADEEP KUMAR SHARMA versus NATIONAL INSURANCE COMPANY, III(2008) CPJ 158 (NC), has been held that “Surveyor Report is an important document and cannot be brushed aside without any compelling evidence to the contrary”. Further in case New Horizon Sugar Mills Ltd. v. United India Insurance Co. Ltd. & Ors, 2003(3) CPR 136 (NC), the Hon’ble National Commission, New Delhi has observed that “report of Surveyor appointed under the provisions of Insurance Act has to be given greater importance.” In M/s Natain Cold Storage & Allied Industries Ltd. v . Oriental Insurance Co Ltd. 2003(3) CPR 114 (NC) it has been observed “surveyor’s report in the insurance claim is an important document which cannot be brushed aside easily.” Same view has been taken by the Hon’ble National Commission in case of Bhawana Kumar versus General Manager Varun Webres Ltd. & Anr, 2008(4) CPR 82 (NC). Not only this, recently Hon’ble National Consumer Disputes Redressal Commission, New Delhi in case National Insurance Company Limited Vs. M/s.Kiran Collector & Boutique 2019 (1) CLT 384 (NC), decided on 24th July, 2018 has held that “General rule is that the surveyors are appointed under the Insurance Act, 1938 and their reports are to be considered for settlement of insurance claims- The reports can not be brushed aside without any cogent reasons.” Hon’ble National Commission in the case of Ankur Surana v. United India Insurance Co. Ltd., reported in I (2013) CPJ 440 (NC), wherein it has been observed that "it is well established by now that the report of the surveyor is an important document and the same should not be rejected by the Fora below unless cogent reasons are recorded for doing so. The State Commission has stated that it did not see any legal ground before the District Forum to reject the report of the Surveyor. The report of the surveyor should have been rebutted on behalf of the complainant/petitioner since the respondents/OPs had filed the surveyor's report as their evidence."
12. Keeping in view the aforesaid facts and circumstances and replying upon the judgements of Hon’ble Supreme Court of India as well as Hon’ble National Commission, New Delhi (supra) we are of the view that the instant complaint is to be decided on the basis of unrebutted surveyor report.
13. In such a situation the non payment of the assessed amount by the surveyor till date by Opposite Party regarding genuine claim of the complainant appears to have been unwarranted. It is usual with the insurance company to show all types of green pesters to the customer at the time of selling insurance policies, and when it comes to payment of the insurance claim, they invent all sort of excuses to deny the claim. In the facts of this case, ratio of the decision of Hon’ble Apex Court in case of Dharmendra Goel Vs. Oriental Insurance Co. Ltd., III (2008) CPJ 63 (SC) is fully attracted, wherein it was held that, Insurance Company being in a dominant position, often acts in an unreasonable manner and after having accepted the value of a particular insured goods, disowns that very figure on one pretext or the other, when they are called upon to pay compensation. This ‘take it or leave it’, attitude is clearly unwarranted not only as being bad in law, but ethically indefensible. It is generally seen that the insurance companies are only interested in earning the premiums and find ways and means to decline claims. In similar set of facts the Hon’ble Punjab & Haryana High Court in case titled as New India Assurance Company Limited Vs. Smt.Usha Yadav & Others 2008(3) RCR (Civil) Page 111 went on to hold as under:-
“It seems that the insurance companies are only interested in earning the premiums and find ways and means to decline claims. All conditions which generally are hidden, need to be simplified so that these are easily understood by a person at the time of buying any policy. The Insurance Companies in such cases rely upon clauses of the agreement, which a person is generally made to sign on dotted lines at the time of obtaining policy. Insurance Company also directed to pay costs of Rs.5000/- for luxury litigation, being rich.
14. In view of the aforesaid facts and circumstances of the case, the instant complaint is allowed partly and Opposite Party No.1-Insurance Company is directed to make the payment of Rs.4,76,298/- (Rupees four lakh seventy six thousands two hundred ninety eight only) to the complainant on account of repair charges of the insured vehicle in question, on the basis of report of surveyor alongwith interest @ 8% per annum from the date of filing the complaint i.e. 10.02.2020 till its realization. Opposite Party No.1–Insurance Company is also directed to pay lump-sum compensation to the complainant for causing him mental tension and harassment to the tune of Rs.10,000/- (Rs.Ten thousands only). The compliance of this order be made by Opposite Party No.1-Insurance Company within 45 days from the date of receipt of this order, failing which the complainant shall be at liberty to get the order enforced through the indulgence of this District Commission. Copies of the order be furnished to the parties free of cost. File be consigned to record room after compliance.
15. Reason for delay in deciding the complaint.
This complaint could not be decided within the prescribed period because the State Government has not appointed any of the Whole Time Members in this Commission for about 3 years i.e. w.e.f. 15.09.2018 till 27.08.2021 as well as due to pandemic of COVID-19.
Announced in Open Commission.
Dated:10.05.2022.
