Order by:
Sh.Amrinder Singh Sidhu, President
- The complainant has filed the instant complaint under section 12 of the Consumer Protection Act, 1986 (as amended upto date) on the allegations that he is registered owner of Car bearing RC No.PB-08-BT-5374 and he got sanctioned the loan on said vehicle from Opposite Party No.3 and Opposite Party No.4 at the time of issuance of loan contacted Opposite Party No.2 for issuance of insurance of said car. Further alleges that Opposite Party No.3 deducted the amount of premium from sanctioned amount and Opposite Party No.2 issued cashless policy bearing No.3362/01449073/000/00 valid for the period w.e.f.21.12.2017 till 20.12.2018. The case of the complainant is that on 22.05.2018 said vehicle met with an accident near Hotel Kaner Moga when suddenly a calf came on the road and the car struck with a big stolen after hitting that calf and the car was damaged. The vehicle was brought to Opposite Party No.4 i.e. the authorized service centre of Opposite Parties No.1 and 2. Opposite Parties No.1 and 2 appointed surveyor namely Charanveer Singh who took all the necessary documents including the claim form etc. from the complainant and at that time, the surveyor told the complainant that the policy in hand is cashless and the Opposite Parties No.1 and 2 will pay all the expenses. In mid June, Opposite Party No.4 informed the complainant for the delivery of the car and also directed to pay Rs.38,125/- for the delivery of the car. At that time, the complainant told that the policy was cashless and the Opposite Parties No.1 and 2 has to pay all the repair charges to Opposite Party No.4, but the surveyor of the Opposite Parties No.1 and 2 told that there is some technical problem on server of the company and the complainant will reimburse the bill amount to the complainant and on this assurance, the complainant paid Rs.38,125/- to Opposite Party No.4 and thereafter, the complainant made so many visits to the office of Opposite Parties for the reimbursement of the claim, but to no affect. In view of this, there is deficiency in service on the part of the Opposite Parties and the Complainant has suffered mental tension, harassment as well as financial loss. Vide instant complaint, the complainant has sought the following reliefs.
- The Opposite Parties may be directed to reimburse the amount of Rs.38,125/- alongwith interest @ 12% per annum from June, 2018 till its realization.
- The amount of Rs.50,000/- be allowed to be paid by the opposite parties on account of compensation due to mental tension and harassment caused by the complainant.
- The cost of complaint amounting to Rs.5,000/- may please be allowed.
- And any other relief to which this Hon’ble Consumer Commission, Moga may deem fit be granted in the interest of justice and equity.
2. Upon notice, Opposite Parties No.1 and 2 appeared through counsel and contested the complaint by filing written reply taking certain preliminary objections therein inter alia that the complaint is not maintainable; that the Complainant is estopped by his own act and conduct. The complainant has concealed the fact that the answering Opposite Parties wrote letters including reminder dated 22.06.2018 requesting the complainant to submit the documents i.e. claim form, claim discharge voucher, estimate of repairs, satisfaction-cum-discharge vouchers, bills of repairs, photographs and chassis number photos, but the complainant has not submitted the above said documents. Thereafter, as and when the complainant submitted the necessary documents and Opposite Parties paid Rs.15,400/- by NEFT on 01.11.2018 as per the loss assessed by the surveyor and hence there is no deficiency in service on the part of the Opposite Parties. On merits, the Opposite Parties No.1 and 2 took up the same and similar pleas as taken up by them in the preliminary objections. All other allegations made in the complaint have been denied and a prayer for dismissal of the complaint with special costs has been made.
3. On notice, none has come present on behalf of the Opposite Party No.3 despite service, hence Opposite Party No.3 was proceeded against exparte vide order dated 28.02.2019 of this District Consumer Commission.
4. Opposite Party No.4 appeared through counsel and contested the complaint by filing written reply taking certain preliminary objections therein inter alia that the complaint is not maintainable; that the complainant has no locus standi to file the present complaint against Opposite Party No.4; that there is no deficiency in service on the part of the Opposite Party No.4, moreover plain reading of the complaint shows that there is no allegation against Opposite Party No.4, moreover plain reading of the complaint shows that there is no allegation against Opposite Party No.4 and the only dispute arose between the complainant and Opposite Parties No.1 and 2 as Opposite Party No.4 has no concern with the insurance policy. On merits, Opposite Party No.4 took up the same and similar pleas as taken up by them in the preliminary objections. All other allegations made in the complaint have been denied and a prayer for dismissal of the complaint with special costs has been made.
5. In order to prove his case, complainant tendered into evidence his affidavit Ex.C1 alongwith copies of documents Ex.C2 to Ex.C219 and closed the evidence.
6. On the other hand, to rebut the evidence of the complainant, Opposite Parties No.1 and 2 tendered into evidence the copies of documents Ex.OP1,2/1 to Ex.OP1,2/3 and similarly, Opposite Party No.4 tendered into evidence affidavit of Sh.Neeraj Garg Ex.OP1/4 and thereafter the Opposite Parties No.1,2 and 4 closed their respective evidence.
7. We have heard the ld. counsel for the parties and have carefully gone through the evidence on record.
8. Ld.counsel for the complainant has reiterated the averments as narrated in the complaint and contended that the complainant is registered owner of Car bearing RC No.PB-08-BT-5374 and he got sanctioned the loan on said vehicle from Opposite Party No.3 and Opposite Party No.4 at the time of issuance of loan contacted Opposite Party No.2 for issuance of insurance of said car. Further contended that Opposite Party No.3 deducted the amount of premium from sanctioned amount and Opposite Party No.2 issued cashless policy bearing No.3362/01449073/000/00 valid for the period w.e.f.21.12.2017 till 20.12.2018. The case of the complainant is that on 22.05.2018 said vehicle met with an accident near Hotel Kaner Moga when suddenly a calf came on the road and the car struck with a big stolen after hitting that calf and the car was damaged. The vehicle was brought to Opposite Party No.4 i.e. the authorized service centre of Opposite Parties No.1 and 2. Opposite Parties No.1 and 2 appointed surveyor namely Charanveer Singh who took all the necessary documents including the claim form etc. from the complainant and at that time, the surveyor told the complainant that the policy in hand is cashless and the Opposite Parties No.1 and 2 will pay all the expenses. In mid June, Opposite Party No.4 informed the complainant for the delivery of the car and also directed to pay Rs.38,125/- for the delivery of the car. At that time, the complainant told that the policy was cashless and the Opposite Parties No.1 and 2 has to pay all the repair charges to Opposite Party No.4, but the surveyor of the Opposite Parties No.1 and 2 told that there is some technical problem on server of the company and the complainant will reimburse the bill amount to the complainant and on this assurance, the complainant paid Rs.38,125/- to Opposite Party No.4 and thereafter, the complainant made so many visits to the office of Opposite Parties for the reimbursement of the claim, but to no affect and hence there is deficiency in service on the part of the Opposite Parties .
9. On the other hand, ld.counsel for Opposite Parties No.1 and 2 has repelled the aforesaid contention of the ld.counsel for the Complainant on the ground that the answering Opposite Parties wrote letters including reminder dated 22.06.2018 requesting the complainant to submit the documents i.e. claim form, claim discharge voucher, estimate of repairs, satisfaction-cum-discharge vouchers, bills of repairs, photographs and chassis number photos, but the complainant has not submitted the above said documents. Thereafter, as and when the complainant submitted the necessary documents and Opposite Parties paid Rs.15,400/- by NEFT on 01.11.2018 as per the loss assessed by the surveyor and hence there is no deficiency in service on the part of the Opposite Parties. Similarly, ld.counsel for Opposite Party No.4 also contended that there is no deficiency in service on the part of the Opposite Party No.4, moreover plain reading of the complaint shows that there is no allegation against Opposite Party No.4, moreover plain reading of the complaint shows that there is no allegation against Opposite Party No.4 and the only dispute arose between the complainant and Opposite Parties No.1 and 2 as Opposite Party No.4 has no concern with the insurance policy.
10. Perusal of the contention of the ld.counsel for the shows that the written version filed on behalf of Opposite Parties No.1 and 2 has not been filed by an authorized person. Therefore, the written version so filed is not maintainable. Opposite Parties No.1 and 2 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 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.”
Similar proposition came before the Hon’ble Delhi High Court in “Nibro Ltd. Vs. National Insurance Co. Ltd.”, 2 (2005) 5SCC 30 that the
“bear authority is not recognized under law and ultimately, it was held that the plaint was not instituted by an authorized person. Here also appellant has not placed on record any resolution passed by any Board of Director in favour of Mr. Soonwon Kwon and that he was further authorised to delegate his power in favour of any other person. Further there is no memorandum/articles of the Company to show that Mr. Soonwon Kwon is one of the Director of the Company. In the absence of that evidence on record we cannot say that the special power of attorney given by Director Soonwon Kwon is a competent power of attorney issued in favour of Sh. Bhupinder Singh. In the absence of any resolution of the Company or any memorandum/articles of the Company to show that Sh. Soonwon Kwon is Director and that he was further authorised to issue power of attorney in favour of Sh. Bhupinder Singh.”
Recently our own Hon’ble State Commission, Punjab 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.
11. For the sake of arguments, for the time being, if the written reply filed by Opposite Parties is presumed to be correct, the plea raised by Opposite Parties is that as and when the complainant submitted the necessary documents and Opposite Parties paid Rs.15,400/- by NEFT on 01.11.2018 as per the loss assessed by the surveyor and hence there is no deficiency in service on the part of the Opposite Parties, but the Opposite Parties No.1 and 2 have failed to clarify that on which ground and reason, the surveyor has assessed the less loss. It is a settled principle of law that the Surveyor/Loss Assessor report may be basis for settlement of the claim but neither binding upon insurer nor insured. The Hon'ble Supreme Court in case “New India Assurance Company Limited versus Pradeep Kumar IV (2009) CPJ46 (SC) wherein Hon'ble Supreme Court in para 15 observed as follows:
“ In other words although the assessment of loss by the approved surveyor is a pre-requisite for payment or settlement of claim of twenty thousand rupees or more by insured, but Surveyor's report is not the last and final word. It is not that sacrosanct that it can not be departed from; it is not conclusive. The approved Surveyor's report may be basis or foundation for settlement of a claim by the insurer in respect of the loss suffered by the insured but surely such report is neither binding upon the insurer nor insured.”
Similar matter came before consideration of the Hon'ble National Commission, New Delhi in the matter of “M/s National Insurance Co. Ltd versus Vibgyor Structural Constructions Pvt. Ltd. 2003(2) CPC page 66”, wherein it has been held by the Hon'ble National Commission that:
“ The Surveyor, however, simply stated the value of parts without providing any data about the value of each part which appears to be arbitrary and we find no infirmity in the impugned order of the State Commission which calls for our interference under Clause (b) of Section 21 of the Consumer Protection Act, 1986.”
Moreover, there is no such affidavit of the surveyor placed by the Opposite Parties to prove its averments. 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.
12. In such a situation the repudiation made by Opposite Parties regarding genuine claim of the complainant appears to have been made without application of mind. 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 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.5000/- for luxury litigation, being rich.
13. Now come to the quantum of compensation. Admittedly, the complainant has lodged the claim of Rs.38,125/- with Opposite Parties No.1 and 2 for the reimbursement of repair charges of insured vehicle which he has paid from his own pocket despite cashless policy. On the other hand, the Opposite Parties No.1 and 2 has specifically mentioned that they have already paid Rs.15,400/- by NEFT on 01.11.2018 in the account of the complainant as per the surveyor report.
14. In view of the aforesaid facts and circumstances of the case, we allow the complaint of the Complainant and direct Opposite Parties No.1 and 2 to reimburse the remaining claim amount of Rs. 22,725/- (Rupees twenty two thousands seven hundred and twenty five only) i.e. (Rs.38,125/- claim amount minus Rs.15,400/- if already paid), to the complainant alongwith interest @ 8% per annum from the date of filing the complaint i.e. 25.10.2018 till its realization. Opposite Parties No.1 and 2 are also directed to pay compensation to the complainant for causing him mental tension and harassment to the tune of Rs.5,000/- (fiven thousands only) and Rs.5,000/- (Rupees five thousands only) as litigation expenses.The compliance of this order be made by Opposite Parties No.1 and 2 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 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: 29.11.2021.
