Before the District Consumer Disputes Redressal Forum, Room No. 208 2nd Floor, District Administrative Complex, Tarn Taran
Consumer Complaint No : 95 of 2017
Date of Institution : 08.11.2017
Date of Decision : 06.11.2019
Paramjit Singh son of Jagjit Singh resident of V.P.O Amarkot, Tehsil Patti, District Tarn Taran.
...Complainant
Versus
- Chola MS General Insurance company through its authorized officer, SCO No. 2463-64, First Floor, Sector 22-C Chandigarh.
- Chola MS General Insurance Company through its authorized Officer, Dare House, 2nd Floor No. 2, NSC Bose Road, Chennai.
…Opposite Parties.
Complaint Under Section 11, 12 and 13 of the Consumer Protection Act, 1986.
Quorum: Sh. Charanjit Singh, President
Smt. Jaswinder Kaur, Member
For Complainant Sh. M.P. Arora Advocate
For Opposite Parties Sh. Sumit Sharma Advocate
ORDERS:
Charanjit Singh, President;
1 The complainant Paramjit Singh has filed the present complaint under Section 11, 12 and 13 of the Consumer Protection Act (herein after called as 'the Act') against Chola MS General Insurance company through its authorized officer, SCO No. 2463-64, First Floor, Sector 22-C Chandigarh and another (Opposite Parties) on the allegations of deficiency in service and negligence in service on the part of opposite parties with prayer to direct the opposite parties to pay amount of Rs. 2,44,657/- (Rs. 2,79,657 IDV – Rs. 35,000/- already deposited= Rs. 2,44,657/-) to the complainant on account of loss suffered due to damage of the car i.e. insured vehicle with interest to the complainant and prayed Rs.20,000/- as compensation and Rs. 10,000/- as litigation expenses.
2 The case of the complainant in brief is that the complainant has purchased vehicle Insurance Policy from the opposite party/ Chola MS General Insurance which was issued vide cover note bearing No. 61227775 in favour of the complainant for his Toyota Etios car bearing registration No.PB46-N-7015 and the insured declared value of vehicle is Rs. 2,79,657/- and the same is valid for the period of 27.3.2017 to 26.3.2018. The car of the complainant is covered under the above said policy which covers all the risks to the car and the opposite party is under obligation to settle the claim of the insured/ complainant in case if any loss occurs during the insured period. On 30.6.2017, the complainant alongwith Prabhjot Singh were going from Harike towards Amarkot in the car for their personal work and at that time Prabhjot Singh was driving the Car. At about 10 a.m. when they reached near village Toot, in the meantime, a stray cow came in front of the car and the driver Prabhjot Singh had given turn to the car in order to avoid any mis-happening but the car got struck with room/ standing spot constructed besides the road at Adda Talwandi Mehar Singh. Due to this collusion, the car got damaged badly and in this respect a Rapat bearing No. 12 dated 30.6.2017 was registered at Police Chonwki Toot, District Tarn Taran. Due to the above said accident, the complainant/ insured has suffered total loss of his car as the car was badly damaged and such kind of damage is covered under the insurance policy. The complainant has given the intimation to the company on time and has requested the company to give the claim of the insured vehicle for the damage caused to the car and the company has issued claim reference No. 3362354303. The official of the opposite parties have also taken photographs of the damaged car through its agent./ surveyor. Afterwards, the officials of opposite parties also directed the complainant to take the car to Sai Car Care, Car Repair Workshop at Amritsar as the said workshop is connected with the company. The complainant has left the Car to the Sai Car Care as per the directions of the officials of the company. The opposite party has further asked the complainant to submit copy of Rapat alongwith copies of the registration certificate of car, driving license of Prabhjot Singh i.e. driver and the complainant has provided all the demanded necessary documents to the official of the company. The Said Car Care repair has got prepared the estimated cost of Rs. 2,88,617/- to be spent upon the repair of car and the insured declared value of the car was Rs. 2,79,657/- as such, the car has suffered total loss. The company/ opposite parties are liable to pay the amount to be spent upon the repair of the car up to Rs.2,79,657/- i.e. the insured declared value to the complainant. At present, the car is standing at Sai Car Repair and company is not releasing the money to be spent upon the repair of the car or the amount of insured declared value of the car as per the insurance policy. The complainant has requested the opposite party to release the claim but the opposite parties are lingering on the matter on one or the other pretext. The complainant has visited the office of the company and further given so many phone calls. After some months, the officials of the opposite party had orally told the complainant that the company will not release his claim. The complainant has demanded written document in this regard. Then the officials have told that they cannot give any written document of the repudiation as the same will be issued by the higher officials of the company. This act and conduct on the part of the officials/ company is higher form of deficiency in service. The company has deposited Rs. 35,000/- in the account of the complainant without assigning any reason and when the complainant has asked about the same from the officials of the company, they did not bother to give any answer of the company’s said arbitrary act. The IDV of car is Rs. 2,79,657/- and the company has deposited Rs. 35,000/- as the company is further liable to pay Rs. 2,44,657/- to the complainant. The company/ opposite parties had done nothing to justify the genuine claim of the complainant. Feeling dissatisfied by the act and conduct of the opposite parties, the complainant perforce has filed this complaint against the opposite parties.
3 After formal admission of the complaint, notice was issued to Opposite Parties and opposite parties appeared through counsel and filed written version contesting the complaint on the preliminary objections that the present complaint is legally not maintainable. The complainant has not come to this Forum with clean hands and has suppressed the material facts from this Forum. The opposite parties have already made the payment of Rs.1,38,657/- in the loan account of the insured and this fact has not been mentioned in the complaint, but in order to gain wrongfully and to fetch illegally the complainant has filed this complaint. There is no lawful cause of action arisen in favour of complainant to file the present complaint against the opposite parties. On Merits, it was pleaded that there is no lawful cause of action arose in favour of complainant to file the present complaint against the opposite parties and all the other allegations in the complaint have been denied by the opposite parties and prayer was made for dismissal of the complaint with costs.
4 To prove his case, the complainant has tendered in evidence his affidavit Ex. C-1 alongwith documents Ex. C-2 to Ex. C-11, affidavit of Prabhjot Singh Ex. C-12 , document Ex. C-13 and closed the evidence. Ld. counsel for the opposite parties tendered in evidence affidavit of Satyabaratta Dass Legal Claims Ex. OPs/1 alongwith documents Ex. OPs/2 to Ex. OPs/6 and closed the evidence.
5 We have heard the Ld. Counsel for the complainant and opposite parties and have gone through the evidence and documents placed on the file by the parties.
6 Ld. counsel for the complainant contended that the complainant has purchased vehicle Insurance Policy from the opposite party/ Chola MS General Insurance which was issued vide cover note bearing No. 61227775 in favour of the complainant for his Toyota Etios car bearing registration No.PB46-N-7015 and the insured declared value of vehicle is Rs. 2,79,657/- and the same is valid insurance policy for the period of 27.3.2017 to 26.3.2018 and the insurance is Ex. C-3. The car of the complainant is covered under the above said policy which covers all the risks to the car and the opposite party is under obligation to settle the claim of the insured/ complainant in case if any loss occurs during the insured period. He further contended that on 30.6.2017, the complainant alongwith Prabhjot Singh were going from Harike towards Amarkot in the car for their personal work and at that time Prabhjot Singh was driving the Car. At about 10 a.m. when they reached near village Toot, in the meantime, a stray cow came in front of the car and the driver Prabhjot Singh had given turn to the car in order to avoid any mis-happening but the car got struck with room/ standing spot constructed besides the road at Adda Tlwandi Mehar Singh. Due to this collusion, the car got damaged badly and in this respect a Rapat bearing No. 12 dated 30.6.2017 was registered at Police Chowki Toot, District Tarn Taran and the report is Ex. C-5. Due to the above said accident, the complainant/ insured has suffered total loss of his car as the car was badly damaged and such kind of damage is covered under the insurance policy. The complainant has given the intimation to the company on time and has requested the company to give the claim of the insured vehicle for the damage caused to the car and the company has issued claim reference No. 3362354303 which is Ex. C-6. The official of the opposite parties have also taken photographs of the damaged car through its agent/ surveyor. Afterwards, the officials of opposite parties also directed the complainant to take the car to Sai Car Care, Car Repair Workshop at Amritsar as the said workshop is connected with the company. The complainant has left the Car to the Sai Car Care as per the directions of the officials of the company. The opposite party has further asked the complainant to submit copy of Rapat alongwith copies of the registration certificate of car, driving license of Prabhjot Singh i.e. driver and the complainant has provided all the demanded necessary documents to the official so the company. The Said Car Care repair has got prepared the estimated cost of Rs. 2,88,617/- to be spent upon the repair of car as per Ex. C-8 to Ex. C-11 and the insured declared value of the car is Rs. 2,79,657/- as such, the car has suffered total loss. He further contended that the company/ opposite parties are liable to pay the amount to be spent upon the repair of the car up to Rs.2,79,657/- i.e. the insured declared value to the complainant. At present, the car is standing at Sai Car Repair and company is not releasing the money to be spent upon the repair of the car or the amount of insured declared value of the car as per the insurance policy. The complainant has requested the opposite parties to release the claim but the opposite parties are lingering on the matter on one or the other pretext. The act and conduct on the part of the officials/ company is higher form of deficiency in service. The company has deposited Rs. 35,000/- in the account of the complainant without assigning any reason and during the pendency of the present complaint i.e. on 29.11.2017 the opposite parties have also paid Rs. 1,03,657/- to the complainant. Ld. counsel for the complainant has also contended that total sum of Rs. 1,38,657/- has been paid by the opposite parties to the complainant. Ld. counsel for the complainant contended that the IDV of car is Rs. 2,79,657/- and previously the company has deposited Rs. 35,000/- and later-on Rs. 1,03,657/-. Ld. counsel for the complainant has contended that the opposite party is paying the amount to the complainant as per their wish and has also not mentioned the reason that why they have paid Rs. 1,03,657/- later on. Ld. counsel for the complainant contended that the complainant is entitled to Rs. 1,41,000/- i.e. balance amount from the opposite party as per policy Ex. C-2 and prayed the present complaint may be allowed.
7 Ld. counsel for the opposite parties contended that the complainant has not come to this Forum with clean hands and has suppressed the material facts from this Forum. The opposite parties have already made the payment of Rs.1,38,657/- in the loan account of the insured and this fact has not been mentioned in the complaint, but in order to gain wrongfully and to fetch illegally the complainant has filed this complaint. He further contended that there is no lawful cause of action arisen in favour of complainant to file the present complaint against the opposite parties and prayed that the present complaint may be dismissed.
8 In the present case insurance is not disputed, accident is also not disputed. In the present case, the complainant is claiming Rs. 2,79,657/- from the opposite parties on account of damaged vehicle and on the other hands, the opposite parties have assessed the loss to the tune of Rs. 1,38,657/-. The insurance of the vehicle is valid w.e.f. 27.3.2017 to 26.3.2018 and the accident of the vehicle in question took place on 30.6.2017 i.e. during the period of policy Ex. C-3. Further the insurance policy Ex. C-3 shows the Insured declared Value of the vehicle in question to the tune of Rs. 2,79,657/-. As per Motor Final Survey Report the net payable amount has been shown as Rs. 1,38,657/- vide Ex. OPs/5 which has already been paid to the complainant vide Ex. OPs/6 and during the course of arguments, Ld. counsel for the complainant has also admitted that an amount of Rs. 1,38,657/- has been paid. The complainant has placed on record statement of Ex. C-13 showing that an amount of Rs. 35,000/- has been paid on 30.9.2017 and Rs. 1,03 657/- on 29.11.2017 i.e. during the pendency of the present complaint as the present complaint has been filed on 8.11.2017. The objection of the opposite party that the complainant has suppressed the material facts regarding the payment of Rs. 1,03,657/- at the time of filing the present complaint is not maintainable because the payment of Rs. 1,03,657/- has been made after filing of the present complaint. The whole of the case of the opposite parties revolves around the report Ex. OPs/5 but to prove the report of surveyor Ex. OPs/5, the opposite parties have not placed on record the affidavit of surveyor. In the absence of which no evidentiary value can be made on the report submitted by the surveyor. Reliance in this connection has been placed upon Manikant Vs. New India Assurance Co.Ltd. 1(2012) CPJ 88 (NC) of the Hon’ble National Commission wherein it has been held that the surveyor did not appear in court and subject himself to cross examination nor was any affidavit filed by him to prove his report . Producing a document in court does not by itself constitute proving the document. It has to be backed by credible evidence. In the instant case, no evidence was led to prove the surveyor’s report in the absence of which the surveyor’s report has little evidentiary value. Moreover, it is usual with the insurance company to show all types of green pastures 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 seams 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.5,000/- for luxury litigation, being rich.
9 During the course of arguments, Ld. counsel for the complainant has admitted that the complainant has received an amount of Rs. 1,38,657/- from the opposite parties out of claim in question. Ex. C-8 to Ex. C-11 show the estimated amount of the car for repair of Rs. 2,86,617/- and as per Ex. C-2 the insured declared value is Rs. 2,79,657/- As such the entitlement to the insured declared value only .
10 In view of the above discussion, the present complaint is partly allowed and the opposite party is directed to make the payment of Rs. 1,41,000/- (Rs. One Lac forty one thousand only only) (Rs. 279657-138657=Rs.141000) to the complainant within one month from the date of receipt of copy of this order. The complainant has also been harassed by the opposite parties, as such the complainant is also entitled to Rs. 7,500/- ( Rs. Seven Thousand and Five Hundred only) as compensation on account of harassment and mental agony and Rs 5,000/- ( Rs. Five Thousand only) as litigation expenses. Opposite Parties are directed to comply with the order within one month from the date of receipt of copy of the order, failing which the complainant is entitled to interest @ 9% per annum, on the awarded amount, from the date of accident till its realisation. Copy of order be supplied to the parties free of costs as per rules. File be consigned to record room.
Announced in Open Forum
Dated 6.11.2019
