1        Sh. Paramjit Singh complainant has filed the present complaint under      the Consumer Protection Act (herein-after called as ‘the Act’) against Cholamandalam MS General Insurance Company through its authorized officer etc. (Opposite Parties)  on the allegations of deficiency in service with further prayer to direct Opposite Parties to pay an amount of Rs.9,25,000/- on account of loss suffered by the complainant besides Rs.20,000/- as compensation on account of harassment etc and Rs.10,000/- as litigation expenses.  

2        The case of the complainant in brief is that the complainant is owner of Tata Tractor Trailer bearing registration No.PB-02AS-9613 and got the same insured with Opposite Parties No.1 and 2-Insurance Company with Insured  Declared Value (IDV) as Rs.9,25,000/- for the period from 22.5.2013 to 21.5.2014 and all the risks to the vehicle were covered under the insurance policy during the insurance period; that on 5.3.2014, the Tractor Trailer in question  was being driver by Swaranjit Singh who went to Assam from Punjab, where the Tractor Trailer in question met with an accident at 152 NH near Doadhara Forest Camp in the jurisdiction of Simla Police Station  in which the vehicle in question  was damaged badly and the complainant suffered total loss to the vehicle in the accident; that the report was lodged at Simla Police Station, District Baksa (B.T.A.D Assam); that the driver of the vehicle gave telephonic information about the accident to Opposite Parties No.1 and 2-Insurance Company and thereafter, the complainant also intimated Opposite Parties No.1 and 2-Insurance Company on 18.3.2014 and Opposite Parties No.1 and 2-Insurance Company allotted claim number 1484805; that the complainant requested the Opposite Parties No.1 and 2-Insurance Company to grant the claim for the insured vehicle; that after some days, Opposite Parties No.1 and 2-Insurance Company asked the complainant to submit some documents which were submitted by the complainant; that in the meanwhile, Opposite Party No.3-Finance Company from whom the complainant has taken loan on account of the Tractor Trailer in question approached the complainant for the installments of the vehicle in question, but the complainant told Opposite Party No.3-Finance Company that the vehicle has been totally damaged in the accident and he will pay the entire amount on account of vehicle as soon as, the claim case is decided by Opposite Parties No.1 and 2-Insurance Company, but inspite of that, Opposite Party No.3-Finance Company took the vehicle in question into possession from the complainant; that the complainant made  requests many times to Opposite Parties No.1 and 2-Insurance Company to admit his genuine claim, but Opposite Parties No.1 and 2-Insurance Company lingered on the matter on one and other pretext and finally declined to admit the claim of the complainant and when the complainant requested for written repudiation, then the Opposite Parties No.1 and 2-Insurance Company told that no final decision has been taken by higher officials and as such, they can not give any written repudiation and will further call the complainant as and when final decision is taken; that the complainant has suffered loss of Rs.9,25,000/- on account of the vehicle and further spent Rs.1 lac on transportation charges for taking the Tractor Trailer in question to Punjab, but Opposite Parties No.1 and 2-Insurance Company has not given genuine claim of the complainant.   Hence the complaint was filed.

3        After formal admission of the complaint, notice was sent to Opposite Parties. Opposite Parties No.1 and 2-Insurance Company appeared through counsel and filed written reply contesting the complaint on the preliminary objections that the complaint is legally not maintainable and the complainant has not come to the Forum with clean hands and has suppressed the material facts as the complainant did not produce the vehicle in question for its repair and as such, is not entitled for compensation as per terms and conditions of the insurance policy; that no lawful cause of action has arisen in favour of the complainant to file the complaint. On merits, the Opposite Parties No.1 and 2-Insurance Company stated regarding the ownership of Tractor Trailer in question, insurance policy as a matter of record though denied other facts being wrong and incorrect, though it was admitted that as the complainant has failed to make the payment of installments of the vehicle in question, therefore, the vehicle in question was taken into possession by Opposite Party No.3-Finance Company. It was denied if there was any deficiency on the part of Opposite Parties No.1 and 2-Insurance Company, rather the complainant did not produce the vehicle in question for its repair. It was further denied that the complainant has suffered a loss of Rs.9,25,000/- as total loss to the vehicle in question and has further borne expenses upto Rs.1 lac on transportation  for taking the vehicle to Punjab. It was further wrong and denied that the complainant has been physically and mentally harassed by the Opposite Parties.          All other allegations mentioned in the complaint were also denied with a prayer to dismiss the complaint against answering Opposite Parties with costs.      

4.       Notice was also sent to Opposite Party No.3-Finance Company, but none appeared on behalf of Opposite Party No.3-Finance Company despite due service and therefore, Opposite Party No.3-Finance Company was proceeded against exparte vide order dated 05.05.2016 of this Forum. 

5        Sufficient opportunities were granted to the parties to lead evidence in order to prove their respective case. The complainant produced his affidavit Ex. C-1, affidavit of Swaranjit Singh Ex.C2 alongwith documents Ex.C3 to Ex.C17 and     closed his evidence and thereafter ld. counsel for Opposite Parties No.1 and 2-Insurance Company tendered affidavit of Ashutosh Kumar OP 1-2/1 alongwith documents Ex.OP1-2/2 to Ex.OP1-2/17 and   closed  the evidence.

6        We have heard the ld.counsel for the parties and also gone through the evidence and documents produced by parties.

7.       Ld.counsel for the complainant contended that the complainant is owner of the vehicle in question which was got financed from Opposite Party No.3-Finance Company which is the sister concern of Opposite Parties No.1 and 2-Insurance Company. He further contended that the complainant got Tractor Trailer in question insured from Opposite Parties No.1 and 2-Insurance Company vide cover note Ex.C10 for the period from 22.5.2013 to 21.5.2014. He further contended that Swaranjit Singh driver of the vehicle in question took the Tractor Trailer in question to Assam  and on 5.3.2014, the Tractor Trailer in question met with an accident at  152 NH near Doadhara Forest Camp in the area  of Police station  Simla, District Baksa (B.T.A.D Assam) in which the Tractor Trailer in question was totally damaged and it was a total loss case. He contended that intimation was given to the Opposite Parties No.1 and 2-Insurance Company regarding the accident of  Tractor Trailer in question and thereafter, the Tractor Trailer in question  was brought to Punjab when it was released by the police after investigation and thereafter the complainant again gave intimation to the Opposite Parties No.1 and 2-Insurance Company on 18.3.2014 and even the claim number  was issued by the Opposite Parties No.1 and 2-Insurance Company, but inspite of repeated requests, visits and submission of documents as required by Opposite Parties No.1 and 2-Insurance Company, the claim case of the complainant was not passed and rather the same was repudiated by Opposite Parties No.1 and 2-Insurance Company, but repudiation order or letter was not delivered to the complainant inspite of requests and it amounts to deficiency in service on the part of Opposite Parties which caused harassment and mental agony to the complainant and the complainant was compelled to file the complaint in hand. He contended that the complainant also spent about Rs.1 lac for bringing the Tractor Trailer in question to Punjab and as such, the complaint is required to be allowed and Opposite Parties No.1 and 2-Insurance Company is required to be directed to pay the insurance money as per insurance policy alongwith compensation and litigation expenses.

8.       Ld.counsel for Opposite Parties No.1 and 2-Insurance Company admitted that the Tractor Trailer in question is the ownership of the complainant and the same was insured with Opposite Parties No.1 and 2-Insurance Company. He also admitted that Tractor Trailer in question was financed by Opposite Party No.3-Finance Company. He contended that the complainant has filed the false complaint and has not come to the Forum with clean hands and has suppressed the material facts as the claim case of the complainant has been repudiated by repudiation letter Ex.OP1-2/2. He contended that the complainant was also informed about the repudiation of his claim, but the complainant has suppressed this fact and in this view of the matter, the complaint is pre mature, if the claim case of the complainant is still pending. He contended that claim case of the complainant was repudiated as the vehicle was not produced and if the claim case of the complainant is not decided as contended by the ld.counsel for the complainant, then no cause of action has accrued to the complainant for filing the complaint and the complaint is pre mature. He also contended that this Forum has no jurisdiction to try the complaint as no office of the Opposite Parties No.1 and 2-Insurance Company is situated at Tarn Taran nor the Opposite Parties No.1 and 2-Insurance Company is doing any business at Tarn Taran and as such, the complaint is false and is liable to be dismissed with special costs.

9.       The ownership of the Tractor Trailer in question  by the complainant  is admitted fact in this case which is also proved on the file by registration certificate Ex.C4, which shows that the complainant is owner of Tractor Trailer in question. It is also admitted fact in this case that Tractor Trailer in question was financed with Opposite Party No.3-Finance Company which is the sister concern of Opposite Parties No.1 and 2-Insurance Company. It is also admitted fact that Tractor Trailer in question was insured by Opposite Parties No.1 and 2-Insurance Company. It is also admitted fact in this case that the insurance policy was in operation when the Tractor Trailer in question allegedly met with an accident. The case of the complainant is that the Opposite Parties No.1 and 2-Insurance Company has not delivered the repudiation letter to the complainant though the Opposite Parties No.1 and 2-Insurance Company has orally conveyed to the complainant that the claim case of the complainant has been repudiated whereas the contention of the ld.counsel for the Opposite Parties No.1 and 2-Insurance Company is that the claim case of the complainant has been repudiated vide letter Ex.OP1-2/2. Otherwise, no evidence has been produced on the file by Opposite Parties No.1 and 2-Insurance Company that this letter has been delivered to the complainant because the document Ex.OP1-2/2 is computerized document. Contention of the ld.counsel for Opposite Parties No.1 and 2-Insurance Company is that the complainant has not produced the vehicle in question before Opposite Parties No.1 and 2-Insurance Company and that is why the claim case of the complainant has been repudiated, whereas the documents produced on the file by the Opposite Parties No.1 and 2-Insurance Company show that the vehicle in question was produced and inspected by Opposite Parties No.1 and 2-Insurance Company though Cabin Assembly was not produced by the complainant before Opposite Parties No.1 and 2-Insurance Company for inspection, because even in document Ex.OP1-2/2 which is so called repudiation letter, the observation is that “insured did not produce his vehicle for repairing and not shown  Cabin Assembly. Reason for repudiation: No response even after sufficient reminders.”  This letter shows that Tractor Trailer in question was  produced before Opposite Parties No.1 and 2-Insurance Company, but Cabin Assembly not produced.  Even the correspondence between the officials of Opposite Parties No.1 and 2-Insurance Company which is proved on the file as Ex.OP1,2/4 to Ex.OP1,2/12 shows that the Tractor Trailer in question was produced before Opposite Parties No.1 and 2-Insurance Company and it was informed that the Cabin Assembly was detached from Tractor Trailer in question and was completely destroyed or smashed at the spot and not recoverable. These documents even show that Opposite Parties No.1 and 2-Insurance Company even deputed surveyor or investigator to visit the spot and report about the Cabin Assembly  or about the genuineness of the accident and said investigator visited the spot and interacted with different persons allegedly present at the spot and gave report that the Cabin Assembly  fell into deep gorge in the valley and accident was genuine. The document Ex.OP1,2/4 shows that actually Cabin Assembly was not produced for the survey which indirectly shows that Tractor Trailer in question was produced for survey and inspection. Document Ex.OP1,2/5 shows that FIR was also registered regarding the accident and this document also shows that the accident took place as alleged by the

complainant. Document Ex.Op1,2/6 shows that the Cabin Assembly  was uprooted and fell deep in the valley. It supports the case of the complainant that the Cabin Assembly  was detached and fell deep in the gorge and in this eventuality, it is natural that Cabin Assembly  would be completely damaged or smashed and would not be in a position to recover completely. Document Ex.OP1,2/8  shows that chassis and engine of  the Tractor Trailer in question were recovered from the spot whereas the Cabin Assembly  skids into the gorge and was not recoverable and subsequently the vehicle in question was reported at Amritsar (Punjab) for repair and this document shows that except Cabin Assembly,  the vehicle in question was produced before Opposite Parties No.1 and 2-Insurance Company for inspection. Document Ex.OP1,2/12 shows that the vehicle in question except Cabin Assembly  was brought to Amritsar (Punjab) for inspection of the Opposite Parties No.1 and 2-Insurance Company though the Cabin Assembly  was completely damaged and was not retreatable. Document Ex.OP1,2/16 is the report of investigator who visited the spot on the asking of Opposite Parties No.1 and 2-Insurance Company and as per the report of investigator, the accident is genuine. These documents are the documents of the Opposite Parties No.1 and 2-Insurance Company and show that the vehicle in question was produced before Opposite Parties No.1 and 2-Insurance Company for inspection and the accident was genuine. It belies the arguments of the ld.counsel for Opposite Parties No.1 and 2-Insurance Company that the vehicle in question was not produced for inspection and that is why the claim was repudiated, whereas the documents produced by Opposite Parties No.1 and 2-Insurance Company shows that the vehicle was produced for inspection though Cabin Assembly  was not produced and documents further show that Cabin Assembly  was detached from Tractor Trailer in question and was completely destroyed and smashed as it fell into deep gorge. Moreover, the complainant as well as Opposite Parties No.1 and 2-Insurance Company have also proved the report of the office of DTO Ex.C11/ Ex.OP1,2/15 regarding the condition of Tractor Trailer in question at the spot after the accident and this report shows that driver cabin was completely damaged including all its fittings and trailer was completely damaged and engine parts were also completely damaged. Report further shows that mechanical parts/ systems was damaged and chassis frame was suspected to be bend and as such this report shows that the vehicle in question was total loss due to the accident. Contention of the ld.counsel for the Opposite Parties No.1 and 2-Insurance Company is that the complainant has not produced the vehicle for repair, whereas the contention of the ld.counsel for the complainant is that vehicle was completely damaged  and was a total loss and was not repairable and documents even produced by Opposite Parties No.1 and 2-Insurance Company show that the vehicle in question was completely damaged and was not repairable and was total loss.

10.     The Opposite Parties No.1 and 2-Insurance Company has repudiated the claim of the complainant vide letter Ex.OP1,2/2 on the ground that Cabin Assembly  was not produced before Opposite Parties No.1 and 2-Insurance Company. It shows that Tractor Trailer in question was produced except Cabin Assembly. Even in this situation, the Opposite Parties No.1 and 2-Insurance Company was required to decide the claim case of the complainant to that extent short of Cabin Assembly but even the claim case of the complainant was not decided to that extent by Opposite Parties No.1 and 2-Insurance Company. Otherwise also, if the Cabin Assembly  was totally damaged as it fell into deep gorge and was not retrievable then the Opposite Parties No.1 and 2-Insurance Company should decide the total claim case of the complainant and inaction on the part of the Opposite Parties No.1 and 2-Insurance Company amounts to deficiency in service. Otherwise, as the Tractor Trailer in question was totally damaged and was total loss as per the report of office of DTO situated in the district where the place of   occurrence is situated, the complainant is entitled to Insured  Declared Value (IDV) of the insurance policy. Moreover, the Opposite Party No.3-Finance Company is the sister concern of Opposite Parties No.1 and 2-Insurance Company and even it was in the knowledge of the Opposite Parties No.1 and 2-Insurance Company that Opposite Party No.3-Finance Company has taken the possession of Tractor Trailer in question after the accident, but even then the Opposite Parties No.1 and 2-Insurance Company was insisting for production of Tractor Trailer in question and even it was argued in the Forum that Tractor Trailer in question was not produced for inspection whenever it was called by Opposite Parties No.1 and 2-Insurance Company. It amounts to deficiency in service on the part of Opposite Parties No.1 and 2-Insurance Company and the complainant is entitled to the claim.

11.     The complainant has also prayed for payment of Rs.1 lac which he spent for brining the Tractor Trailer in question to Punjab from the spot at Assam. However, no bill or document or evidence has been produced on the file that the complainant spent amount of Rs.1 lac for this purpose.                              

12.     In light of the above discussion, the complaint succeeds as discussed above and is allowed with costs in favour of complainant  and against Opposite Parties No.1 and 2-Insurance Company. The complainant is held entitled to recover Rs.9,25,000/- (Rupees nine lac twenty five thousands only) i.e. Insured  Declared Value  of Tractor Trailer in question as per the insurance policy Ex.C10, from Opposite Parties No.1 and 2-Insurance Company and Opposite Parties No.1 and 2-Insurance Company is also burdened with Rs.50,000/- (Rupees fifty thousands only) as compensation which also include expenses borne by the complainant for bringing the Tractor Trailer in question from Assam to Punjab. Opposite Parties No.1 and 2-Insurance Company is also burdened with Rs.2000/- (Rupees two thousands only) as litigation expenses. However, the complaint against Opposite Party No.3-Finance Company   is dismissed. Opposite Parties No.1 and 2-Insurance Company is directed to comply with the order within one month from the date of receipt of copy of this order failing which Opposite Parties No.1 and 2-Insurance Company is also liable to pay interest @ 9% per annum on the insurance money i.e. Rs.9,25,000/- from the date of compliant till realisation.   Copy of order be supplied to the parties free of costs as per rules. File be consigned to record room.

Pronounced in Open Forum

Dated 10.01.2017