PER:
Charanjit Singh, President.
1 The present complaint has been received from the District Consumer Disputes Redressal Commission Amritsar by the order of the Hon’ble State Consumer Disputes Redressal Commission Punjab, Chandigarh for its disposal.
2 The complainants have filed the present complaint by invoking the provisions of Consumer Protection Act under Section 12 and 13 against the opposite parties on the allegations that the complainant availed financial facility from the opposite party No. 3 company and purchased one Bharat Benz Vehicle No. PB46-W-0255 on 9.5.2016 repayable with interest. At the same time, the said vehicle of the complainant was got insured through the opposite party No. 1 with opposite party No. 2 vide insurance police NO. 3379/01443616/000/00 valid from 9.5.2016 12.55 Hours to midnight of 8.5.2017 and same was comprehensively insured with the opposite party No. 2 with sum insured Rs. 26,56,010/- covering the own damage of vehicle as well as covering the risk of personal accident for owner and driver, cleaner, two collies and a valid premium of Rs. 69,064-/ was duly paid by the complainant. Thus, the complainant hired the services of the opposite parties for valid consideration and thus comes within the definition of consumer qua the opposite parties and is competent to invoke the jurisdiction of this commission. The said insurance was obtained by the complainant from opposite party No. 2 through opposite party No. 1 at Amritsar. The said vehicle was having valid R.C and route permit etc. Since the date of its purchase, the complainant has been plying the said vehicle, the complainant has been plying the said vehicle to earn livelihood for himself and his family. However, during the currency period of insurance policy, the said vehicle of the complainant has met with an accident on 13.9.2016 in the area of Police Station Rahuni, District Ahmednagar and suffered loss of 70% of the vehicle and a sum of Rs. 7,72,257/- is the total loss suffered by the vehicle and as the vehicle was validly insured with the company, as such, the opposite party insurance company is liable to pay the said amount as vehicle was comprehensively insured against valid premium against sum insured of Rs. 26,56,010/- . The complainant accordingly lodged claim with the opposite party but he is astonished to receive e-mail letter from the opposite party No. 2 issued by their Executive Claims Facilitator-Motor Claims Mr. Nitin B. Gaikwad with the plea that the company is liable to pay Rs. 6,21,421/- and remaining amount of Rs. 1,50,832/- is to be paid by the complainant. The vehicle was having full insurance as comprehensive policy and it is the opposite party who is liable to pay the entire amount and as such, the above said action in not making payment of entire amount of loss occurred to the vehicle is wrong, illegal, arbitrary and the opposite party has acted in a most illegal and irresponsible manner. Thus the opposite parties are indulged in unfair trade practices and their services are negligent, deficient and short come, due to which the complainant is being caused harassment, mental pain and agony. The complainant has time and again visited the opposite party and requested them to release the entire claim amount as the vehicle was comprehensively insured with the opposite party and even in this regard, legal notice dated 23.2.2017 was also issued to the opposite parties to settle and pay the entire claim of the loss suffered to the vehicle for total Rs. 7,72,257/- but the opposite party has failed to company with the said notice also. As such, opposite party is wrongly withholding the said genuine claim of the complainant on flimsy grounds, without any reasonable cause and their action in this respect is wrong, illegal and unlawful one. The complainant has prays as under:-
(a) The opposite parties may kindly be directed to immediately settle and pay/ release the entire claim of the complainant of the loss suffered to the vehicle for total Rs. 7,72,257/- alongwith interest @24% per annum from date of loss till date of payment.
(b) The opposite party may be directed to pay a sum of Rs. 50,000/- as compensation to the complainant for the mental pain, agony, harassment and inconvenience suffered by him at the hands of opposite party
(c) The complainant may also be awarded Rs. 2500/- as litigation expenses and Rs. 11000/- as counsel fee for the present litigation against the opposite party.
3 After formal admission of the complaint, notice was issued to Opposite Parties and opposite party No. 1 appeared through counsel and filed written version and contested the complaint by interalia pleadings that the present complaint is not legally maintainable against the opposite party No. 1. The complainant has unnecessarily impleaded the opposite party No. 1 has never provided any services to the complainant as alleged by the complainant. The complainant has no locus standi to file the present complaint. The complainant has no cause of action to file the present complaint against the opposite party No. 1. The complaint is bad for non joinder and mis joinder of necessary parties. This commission has no jurisdiction to try the present complaint. The opposite party No. 1 has never provided any services to the complainant as alleged by the complainant. The opposite party No. 1 has denied the other contents of the complaint and prayed for dismissal of the same.
4 The opposite party No. 2 appeared through counsel and filed written version and contested the complaint by interalia pleadings that the complaint is false, malicious, incorrect and malafide and nothing but an abuse of process of the law. The complainant has not come to this commission with clean hands and has suppressed the material facts from this commission. The complainant has already made the payment of Rs.6,17,850/- to M/s KGP Auto Limited, from where the complainant has got repaired his vehicle, vide bank transfer dated 31.1.2017 vide voucher No. 1039008. The said amount has been paid as per the report of surveyor and now there is nothing to be paid by the opposite parties to the complainant. Hence the complaint is liable to be dismissed. There is no lawful cause of action arose in favor of complainant to file the present complaint against the opposite parties. This commission has no jurisdiction over the matter, as there is no office of opposite party at Amritsar. The opposite parties were liable to pay Rs. 6,17,850/- which have already paid to M/s KGP Auto Limited from where the complainant has got expired his vehicle, vide bank transfer dated 31.1.2017 vide voucher No. 1039008. As per surveyor report dated 13.1.2017, the opposite parties were liable to pay Rs. 6,17,850/- which have already been paid to M/s KGP Auto Limited, from where the complainant has got repaired his vehicle. The opposite parties are not at all liable to pay the remaining amount of Rs. 1,50,832/- as alleged by the complainant. Whatever amount was required to be paid by the opposite parties for the repair of the said vehicle of the complainant, covered under the said policy, has already been paid to the concerned company, who has repaired the said vehicle of the complainant. There is no negligence or deficiency on the part of the opposite parties. The opposite parties are not at all liable to pay any compensation or remaining claim amount to the complainant. No such amount has been withheld by the opposite parties, as such, they are not at all liable to pay any interest over the said amount. The opposite party No. 2 has denied the other contents of the complaint and prayed for dismissal of the same.
5 Notice was issued to the opposite party No. 3, but the opposite party No. 3 did not appear despite service, therefore, the opposite party No. 3 was proceeded against exparte.
6 To prove the case, complainant has tendered in evidence his affidavit Ex. CW1/A alongwith documents i.e. copy of policy schedule cum certificate of insurance Ex. C-1, copy of the letter dated 5.8.2016 Ex. C-2, copy of legal notice dated 5.8.2016 Ex. C-2, copy of legal notice Ex. C-3, postal receipts Ex. C-4 and C-5, copy of the driving license Ex. C-6, copy of the RC Ex. C-7, copy of the RC Ex. C-8,. copy of the carrier mermit Ex. C-9, copy of the authorised certificate of N.P. (Goods) of the carriage permit Ex. C-10, copy of e-mail Ex. C-11, copy of the form receipt Ex. Tax Ex. C-12 and Ex. C-12 and closed the evidence. Ld. counsel for the opposite party No. 1 placed on record affidavit of Vikal Sharma Ex. OP1/1 and closed the evidence. Ld. counsel for the opposite party No. 2 has tendered in evidence affidavit of Satyabratta Das, Legal Claims (Consumer ) Ex. OP2/A, copy of the letter dated 11.1.2017 Ex. OP2/1, copy of claim form Ex. OP2/2, copy of the survey report Ex. OP2/3 copy of the investigation report Ex. OP2/4 and closed the evidence.
7 We have heard the Ld. counsel for the complainant and opposite parties No. 1, 2 and have gone through the record on the file.
8 From the combined and harmonious reading of pleadings and documents is going to prove that the complainant purchased one Bharat Benz Vehicle No. PB-46-W-0255 on 9.5.2016. At the same time the said vehicle was got insured through the opposite party No. 1 with opposite party No. 2 vide insurance policy No. 3379/01443616/000/00 which was valid from 9.5.2016 to 5.8.2017. The complainant has been plying the said vehicle to earn his livelihood for himself and his family. The said vehicle of the complainant met with an accident on 13.9.2016 in the area of Police Station Rahuri, District Ahmednagar and suffered loss of 70% of the vehicle i.e. Rs. 7,72,257/-. Thereafter the complainant lodged the claim with the opposite parties but he astonished to receive e-mail letter from the opposite party No. 2 issued by their Executive Claims Facilitator-Motor Claims Mr. Nitin B. Gaikwad with the plea that the company is liable to pay Rs. 6,21,421/- and remaining amount of Rs. 1,50,832/- is to be paid by the complainant. Since the vehicle was fully insured as per comprehensive policy but instead of paying the whole amount the company deducted Rs. 1,50,832/- in wrong/ illegal and arbitrary manner.
9 The opposite party No. 1 filed reply and prayed for dismissal of complaint against the opposite party No. 1 as no service has been ever provided by the answering opposite party regarding insurance as such, complaint deserve to be dismissed.
10 The opposite party No. 2 in their reply stated that a sum of Rs.6,17,850/- has been made to M/s KGP Auto Ltd. from where the complainant has got repaired his vehicle, by bank transfer dated 31.1.2017 and said amount has been paid as per report of surveyor and nothing is due against the opposite party No. 2. The opposite party No. 2 has placed on record the surveyor report dated 13.1.2017 which is without affidavit. As per Ex. C-11, the complainant has received an e-mail regarding the claim of vehicle No. PB46-W-0255 from Gaikwad Nitin B Executive-Claims Facilitator Pune which clearly mentioned that the complainant has submitted the bill of Rs. 7,72,257/- for repair of the vehicle and the opposite party No. 2 has paid or to be paid Rs. 6,21,421/- and clearly mentioned difference i.e. Rs. 1,50,832/-. Meaning thereby that Executive Claim Facilitator himself admitted that the complainant has suffered loss of Rs. 7,72,257/- and further as per surveyor report only a sum of Rs. 6,17,850/- has been paid to M/s KGP Auto Ltd. from where the complainant has got repaired the vehicle. The opposite party No. 2 has deducted a sum of Rs. 1,50,832/- on the basis of report of surveyor but said report has not been supported by any affidavit. The opposite party No. 2 has failed to provide the affidavit of the 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. Therefore, report of surveyor Ex. OP2/3 cannot be accepted. Further the opposite party No. 2 has not placed on record the terms and conditions of the policy which can prove that as per which clause the surveyor has deducted a sum of Rs. 1,50,832/-.
11 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.
12 In view of the above discussion, the present complaint is allowed and the opposite party No. 2 is directed to make the payment of Rs. 1,50,832/- to the complainant. The complainant has also been harassed by the opposite party No. 2 for a long time, as such the complainant is also entitled to Rs. 2,500/- ( Rs. Two thousand Five Hundred only) as compensation on account of harassment and mental agony and Rs 11,000/- (Rs. Eleven Thousand only) as litigation expenses. Opposite Party No. 1 is 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 filing the present complaint till its realisation. The present complaint against the opposite party No. 1 and 3 is dismissed. Copy of order be supplied by the District Consumer Disputes Redressal Commission, Amritsar as per rules. File be sent back to the District Consumer Disputes Redressal Commission, Amritsar.
Announced in Open Commission
21.09.2022
