Punjab

Rupnagar

CC/14/157

Harnek Singh - Complainant(s)

Versus

Cholamandalam M/s General Insurance Compnay Ltd. - Opp.Party(s)

Sh. Jawahar Chandan, Adv

16 Jun 2015

ORDER

BEFORE THE DISTT. CONSUMER DISPUTES REDRESSAL FORUM, ROPAR

 

                               Consumer Complaint No. : 157 of 09.12.2014

                               Date of decision                 : 16.06.2015

 

Harnek Singh, son of  Sh. Piara Lal, resident of Village Chaunta (wrongly written as Chauta in R.C. and Policy cover note), P.O. Bajrur, Tehsil Anandpur Sahib, District Rupnagar.

                                                                                      ......Complainant

 

                                             Versus

 

1. Cholamandalam MS General Insurance Company Limited, SCO

    No.2463-64, 2^nd Floor, Sector 22-C, Chandigarh through its Manager.

2. Pankaj Kumar Sood, Surveyor, Cholamandalam MS General Insurance

    Company Limited, SCO No. 2463-64, 2^nd Floor, Sector 22-C,

    Chandigarh through its Manager.

3. Sh.Varun Kumar Jha, State Head, Induslnd Bank, Phase 3B-II,

    S.A.S.Nagar, Mohali.

4. Induslnd Bank Limited, Near Yes Bank, Bela Road, Rupnagar through

    its Manager.

5. Sanveer Singh, Executive of Cholamandalam, MS General Insurance

    Company, C/o Induslnd Bank Limited, Near Yes Bank, Bela Road,

    Rupnagar. (Complaint against Opposite Party No. 5 stands

    dismissed as withdrawn vide order dated 20.3.2015).

 

                                                                                 ....Opposite Parties

 

 

                                        Complaint under Section 12 of the                                                           Consumer Protection Act, 1986

 

QUORUM

                             MRS. NEENA SANDHU, PRESIDENT

                             SMT. SHAVINDER KAUR, MEMBER

 

ARGUED BY

Sh. Jawahar Chandan Advocate, counsel for complainant

Sh. N.K. Soni Advocate, counsel for the Opposite Partiy No. 1

Opposite Party No. 2 ex-parte

Sh. Ruby Singh Rana, Advocate, counsel for Opposite Parties No. 3 & 4

 

ORDER

                                       MRS. NEENA SANDHU, PRESIDENT

                   Sh. Harnek Singh has filed this complaint under Section 12 of the Consumer Protection Act, 1986 (hereinafter referred to as ‘the Act’)  against the Opposite Parties (hereinafter referred to as ‘the O.Ps.’) praying for the following reliefs:-

i)       To pay Rs.60,000/- per month as loss of his gross income, from the date of accident till realization,

 

ii)      To pay Rs. 5,00,000/- as compensation for the mental agony, physical harassment & financial loss suffered by him, alongwith interest @ 18% P.A. from the date of accident till realization.

 

 

2.                 In brief, the case of the complainant is that he had purchased a car to run it as a cab, for earning his livelihood and as per credit contract dated 05.02.2013, he got the said TATA INDIGO ECS, LX, TDI, Diesel, BS III car bearing engine No.475TDT14XYP71805, chassis No. MAT607146CPP74399 financed from the O.P. No. 4. The loan amount was approved by the O.P. No. 3 along with the auto renewal insurance policy i.e. for providing cashless and bumper-to-bumper claim of the said vehicle. It was also provided in the loan agreement that the premium of the insurance would be part of the loan account and would be deducted periodically. The said policy was issued by the O.P. No.1 i.e. Cholamanadlam MS General Insurance Company Limited vide cover note No.3123118 dated 31.1.2014 for the period from 31.01.2014 to 30.01.2015. Said Cholamandlam MS General Insurance Company Limited is insurance partner of IndusInd Bank Limited, Accordingly, his vehicle was insured with the O.P. No.1 by & through the O.P. No.5, who was the executive of the O.P. No.1, and used to sit in the branch of the O.P. No. 4. It is further stated that since the car in question was purchased by him to ply the same as contract cab, the same is registered with State Transport Authority and its contract carriage permit is valid upto 26.02.2018 and its registration number is PB-01-A-3224. The said car was being run by him to earn his livelihood and and it was the only source of his income. On 07.02.2014, despite being driven by taking proper care & caution, the said car met with an roadside accident, causing major damage to it. He informed about the damage of the car, firstly to the O.P. No. 4 and as per instructions of the said O.P., he approached the office of the O.P. No.1, where he met the O.P. No. 2, who surveyed the vehicle on the spot and asked him to carry the damaged car to one “ Hi Tech Motors, Plot No. 695, Phase-I, Industrial Area, Chandigarh” and since then the same is lying there. His accidental claim was registered vide claim No.3368045377. As the car was fully insured and covered under the benefit of Bumper to Bumper damage and the policy was a cashless policy, therefore, the O.Ps. No. 1 & 2 were under obligation to get the vehicle repaired and the O.P. No.1 was under contractual obligation to bear all the costs of repair to the said car to make it road-worthy, but even after passing of 9 months from the date of said accident,  his claim has not passed and cleared by the O.P. No.1, due to which he has suffered mental agony, physical harassment & financial loss. He could not repay the installments to the O.P. No.4 against his loan account and is bound to suffer penalties/penal charges. The above said act & conduct of the O.Ps. amount to deficiency in service and adoption of unfair trade practice. Hence, this complaint. 

 

 3.                On being put to notice, the O.P. No.1 filed written statement taking preliminary objections; that this Forum has no jurisdiction to entertain and try this complaint, as there is no branch office of the answering O.P., situated within the jurisdiction of this Forum, as such, the same is liable to be dismissed on this score alone; that the complaint is not maintainable in the present form; that there is no deficiency of service on the part of the answering O.P.; that the complainant has not come to the Forum with clean hands and has suppressed the material facts from this Forum, as after scrutiny of the papers supplied by the complainant, it was observed that the vehicle shown at the time of break-in inspection was different from the actual one and the answering O.P., after applying its proper mind has repudiated the claim vide letter dated 08.05.2014. On merits, it is stated that on scrutiny of the papers supplied by the complainant, the answering O.P. had some doubt of showing some different vehicle at the time of break in inspection, and on examining the matter, further, the following observations were made:-

                   A. The risk was accepted on the basis of the break in

                         inspection report, signed by IBLexecutive.

                   B.   Previous policy from NIC was expiring on 15.1.2014 &

                         their RSD was 31.01.2014.

                   C.   Date of loss reported 07.02.2014 and no opportunity was

                         provided to inspect the vehicle at spot.

D.  No police report was submitted in support of the claim.

E.  In a planned manner vehicle is reported at our PG to avail

     the cashless.

F.  The policy has been generated after the claim intimation

     on 27.02.2014.

G.  On comparing the actual vehicle & break in photographs,

     following discrepancies were observed:

 

i.        In break in inspection photographs, there are no

          window visor are placed, but actual vehicle is

          fitted with the window visors.

ii.       In break in inspection photographs, there is no

luggage carrier fitted, whereas the actual vehicle

 

is fitted with the luggage carrier above roof.

iii.      In break in inspection photographs, stickers

          (eye) are found on the both sides of the rear

          Bumper, whereas in actual vehicle, there are red

          colour reflective stickers (traffic police) are

          found.

iv.      In break in inspection, there is sticker

          (SEKHRI) found on the rear bumper guard, but

          in actual vehicle there is no such sticker is

available.

v.       There are some more differences like dents &

          scratches on the both sides of the vehicle, but

          we are not able to locate the same in the break in

          inspection photographs.

 

          From the above said observations, the answering O.P. had opined that the vehicle shown at the time of break-in inspection was different from the actual one and recommended for repudiation of the claim. The claim was, accordingly, rightly repudiated vide letter dated 8.5.2014, after applying its proper mind by the answering O.P., on the grounds mentioned above. Rest of the allegations made in the complaint have also been denied and a prayer has been made for dismissal thereof, with costs, being without any merit.

 

4.                The O.Ps. No. 3 & 4 has filed a separate, joint written statement, taking preliminary objections; that the complaint is not maintainable in the present form; that the vehicle in question was being used for commercial purpose and as per provisions of the Act, the present complaint is not maintainable; that the complainant has no locus standi to file the present complaint; that the complainant has not approached the Forum with clean hands; that the answering O.Ps have been unnecessarily dragged by the complainant into this complaint, which has been filed just as a counter blast to the complaint filed under Section 138 of Negotiable Instruments Act by the answering O.Ps. against him, which is still pending; that the complainant has no cause of action against the answering O.Ps. and that this Forum has no jurisdiction to entertain the present complaint. On merits, it is stated that it is a matter of record that Cholamandalam MS General Insurance Company Limited is insurance partner of IndusInd Bank and accordingly, the vehicle of the complainant was insured with the O.P. No.1, through the O.P. No.5, who was the executive of the O.P. No.1. It is denied that the complainant had informed about damage of the vehicle, firstly to the O.P. No.4 and as per its instructions, he approached the office of O.P. No.1. It is stated that he has knowingly not paid the installments of the loan amount and due to the said reason, the O.P. No.4 had filed complaint under Section 138 of the Negotiable Instruments Act against him. It is stated that the answering O.Ps. are not under obligation to repair the insured vehicle as they are not the insurer of the same. Rest of the allegations made in the complaint have also been denied and a prayer has been made for dismissal thereof with costs, it being without any merit.

 

5.                The O.P. No. 2 was proceeded against ex-parte vide order dated 30.1.2015, whereas the complaint filed against the O.P. No. 5 was dismissed as withdrawn vide order dated 20.3.2015.

 

6.                On being called upon to do so, the complainant tendered his affidavit, Ex. C1 and affidavit of Sh. Balvir Singh Ex.C20, photocopies of documents Ex.C2 to Ex.C19 and closed the evidence. On the other hand, the learned counsel for the O.P.No.1 tendered affidavit of Sh. Ashutosh Kumar, Assistant Manager, Ex.OP-1/1, original photographs Ex.OP1/2 to Ex.OP1/13, photocopy of repudiation letter dated 8.5.2014 Ex.OP1/14 and closed the evidence, whereas the learned counsel for the O.Ps. No.3 & 4 tendered affidavit of Sh. Vishal Hans, Authorized Signatory, Ex.OP3/A, photocopies of documents Ex.OP3/B to Ex.OP3/E and closed the evidence.

 

7.                We have heard the learned counsel for the parties and gone through the record of the file carefully.

 

8.                The learned counsel for the complainant submitted that the car, which the complainant had purchased to ply as a cab for earning his livelihood, met with an accident during the period, for which it was insured with the O.P. No.1. Accordingly, he informed the O.P. No. 4, and the claim was registered vide claim No.3368045377. The O.P. No. 4 instructed him to approach the office of the O.P. No.1, where he met with O.P. No.2, who surveyed the vehicle on the spot and told him to take the car to “High Tech Motors” and the same is still lying there. Since the O.P. No.1 had issued a cashless policy, therefore, the O.Ps. No. 1 & 2 were under obligation to bear the cost of the repair, but the O.P. No.1, vide letter dated 8.5.2014 (Ex. OP1/14) has repudiated the claim on the flimsy ground of misrepresentation. He further submitted that as the said car was the only source of his income, and due to non-repair of the same, he is unable to ply the same, due to which, he has been suffering huge financial loss and even could not repay the installments of loan amount to the O.P. No.4, for which he has to suffer penal charges. By repudiating the genuine claim of the complainant, the O.Ps. have committed deficiency in rendering service and have also adopted unfair trade practice, therefore, they be directed to repair the car in question and also to pay compensation for the mental agony, physical harassment and financial loss suffered by him alongwith litigation expenses.

 

9.                The learned counsel for the O.P. No.1 submitted the complaint is liable to be dismissed for want of territorial jurisdiction because there is no branch office of the answering O.P. situated within the territorial jurisdiction of this Forum. He further submitted that after scrutiny of the papers supplied by the complainant, it was found that he had raised the claim of some different vehicle than the actually insured, because on comparing the actual vehicle and break in photographs, many discrepancies were observed, as such, there was deliberate and willful misrepresentation on his part, as such, the O.P. insurance company was not liable to honour the claim and the claim was rightly repudiated vide letter dated 8.5.2014 (Ex.OP1/14). Thus, the complaint is liable to be dismissed against the O.P. No.1 for want of territorial jurisdiction as well as on merits, being devoid of any merit.

10.              The learned counsel for the O.Ps. No. 3 & 4 submitted that since the car in question was purchased by the complainant for commercial purpose, therefore, the complaint is not even maintainable before this Forum. He further submitted that even otherwise also the O.Ps. No. 3 & 4 have been unnecessarily dragged into this litigation because they had simply disbursed the loan amount for the car in question and the claim under the policy, if any, is liable to be paid by the insurance company only. Therefore, the complaint against the O.Ps. No. 3 & 4 be dismissed with costs.

 

11.              The first question that arises for consideration before us, is, as to whether this Forum has territorial jurisdiction to adjudicate upon this matter? Our answer is in affirmative because from the policy document, Ex. C10, it is evident that the policy in question was issued at Ropar. It means that the O.P. No. 1 also works for gain at Ropar. Since the policy was issued at Ropar, as such, a part of cause of action had arisen within the territory of Ropar District, therefore, as per Sec. 11 of the Act, this Forum has territorial jurisdiction to adjudicate upon the matter. Consequently, the objection raised to that effect by the learned counsel for the O.P. No.1 is not tenable, hence, rejected.

12.              The next question that arises for consideration before us, is, as to whether the complainant had purchased the car in question for earning his livelihood or for commercial purpose? The complainant has specifically averred in the para No.2 of the complaint itself, that he had purchased the said car to run it as a cab for earning his livelihood, which is the only source of his income. To disprove this fact, the O.Ps. have not placed on record any document to prove that the complainant has also some other source of income and he had purchased the car in question for commercial purpose. Thus, in the absence of any documentary proof, it can easily be inferred that the complainant had purchased the car in question for earning his livelihood and the objection raised by the learned counsel for the O.Ps. No. 3 & 4 is also not tenable, hence, rejected.

 

13.              Now coming to the merits of the complaint, it may be stated that the O.P. No.4 is the bank, and the O.P. No.3, who is its employee, had simply disbursed the loan amount to the complainant and they have nothing to do with the settlement/payment of the insurance claim, because the insurance claim, if any, is found to be paid, then the liability for the same is that of the insurance company i.e. O.P. No.1. Therefore, the complaint against the O.Ps. No. 3 & 4 is liable to be dismissed. So far as the complaint filed against the O.P. No.2 is concerned, it may be stated that the said O.P. was a surveyor only, and the complainant has simply averred that on the asking of the said surveyor, he had taken his damaged car to High Tech Motors, except that no other allegation has been leveled against him. The insurance claim, if any, is found to be paid, then in that case, the same has to be paid by the insurance company i.e. O.P. No.1 only, and not by the surveyor i.e. O.P. No.2. As such, the complaint filed against the O.P. No.2 is also liable to be dismissed.

 

14.              So far as the complaint filed against the O.P. No. 1 is concerned, as per the contention of the learned counsel for the O.P. No. 1, on scrutiny of the papers submitted by the complainant, it was found that he had raised the claim of some different vehicle than the actually insured, because on comparing the actual vehicle and break in photographs, many discrepancies were observed and accordingly, the claim was rightly repudiated by the O.P. No.1, vide letter dated 8.5.2014 (Ex.OP1/14). In the repudiation letter dated 8.5.2014 (Ex.OP1/14), it is stated that there have been deliberate & willful misrepresentations on the part of the complainant as to the cause of loss as the damages to the vehicle are old and not one arising out of an accident, as represented by him. Even in the written statement, it is categorically stated that on comparing the actual vehicle and break-in photographs, the following discrepancies were observed:-

i.        In break in inspection photographs, there are no

          window visor are placed, but actual vehicle is

          fitted with the window visors.

ii.       In break in inspection photographs, there is no

luggage carrier fitted, whereas the actual vehicle

is fitted with the luggage carrier above roof.

iii.      In break in inspection photographs, stickers

          (eye) are found on the both sides of the rear

          Bumper, whereas in actual vehicle, there are red

          colour reflective stickers (traffic police) are

          found.

iv.      In break in inspection, there is sticker

          (SEKHRI) found on the rear bumper guard, but

          in actual vehicle there is no such sticker is

available.

v.       There are some more differences like dents &

          scratches on the both sides of the vehicle, but

          we are not able to locate the same in the break in

          inspection photographs.

 

It may be stated that if the O.P. No. 1 had any apprehension that the vehicle shown at the time of break-in inspection was different from the actual one, then in that situation, it could have checked the engine number & chassis number of the accidental vehicle to ensure that it was actually the same vehicle, which was got insured by the complainant with it. From the copy of insurance policy Ex. C10/Ex.OP3/D, it is evident that the particulars of the insured vehicle are found mentioned therein. However, in the repudiation letter, it has not been mentioned as to whether before repudiating the claim, it had even made any attempt to compare the particulars like engine number, chassis number etc. of the accidental vehicle with the particulars of the insured vehicle as depicted in the insurance policy in question. In this view of the matter, we are of the considered opinion that the O.P. No.1 was not justified in repudiating the claim, accordingly, we set aside the the repudiation of the claim made by it and dispose of the complaint against the O.P. No. 1 with direction to it to compare the engine number & chassis number of the accidental car with that of the insured car and thereafter, settle the claim & inform the complainant, accordingly, within a period of 30 days from the date of receipt of certified copy of this order. However, the complaint filed against the O.Ps. No. 2, 3 & 4 is dismissed. The parties are left to bear their own costs.

 

15.              The certified copies of this order be supplied to the parties forthwith, free of cost, as permissible under the rules, and the file be indexed & consigned to the Record Room.

 

ANNOUNCED                                                                       (NEENA SANDHU)

Dated 16.06.2015                                                  PRESIDENT

 

 

                                                (SHAVINDER KAUR)

                                                                     MEMBER.