DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION ROPAR
Consumer Complaint No.06 of 2021
Date of institution: 03.02.2021
Date of Decision: 27.06.2022
Deepak Sharma son of Rajesh Kumar 2 Ramesh Chand, resident of Village New Malikpur, Tehsil & District Rupnagar.
….Complainant
Versus
- CM Auto Sales Private Limited, Near NH-21, Chandigarh Road, Rupnagar Tehsil & District Rupnagar
- Bajaj Allianz General Insurance Company Limited, Branch at SCO No.156 to 159, 2nd Floor, Sector 9-C, Chandigarh through its Branch Manager
(Insurer of Car Maruti Baleno car bearing Registration No.PB-12-AF-0709 bearing Policy No.OG-19-1217-1825-00001557)
……..Opposite Parties
Complaint under Consumer Protection Act.
Quorum: Shri Ranjit Singh, President.
Mrs. Ranvir Kaur, Member
Present: Sh. MK Dhingra, Advocate, for complainant
Sh. Pardeep Mittal, Advocate, for OP No.1
Sh. Amit Gupta, Advocate, for OP No.2
Order dictated by :- Shri Ranjit Singh, President
Order
The present order of ours will dispose of the above complaint filed under Consumer Protection Act, by the complainant against the Opposite Parties on the ground that complainant is the registered owner of Maruti Baleno car bearing registration No.PB-12-AF-0709. The complainant had purchased the above said new vehicle from opposite party No.1 and he got insured the said car from OP No.2 through OP NO.1, which was valid from 5.11.2018 to 4.11.2019. On 19.8.2019, Dinesh Kumar along with his friend Vishal Kumar since deceased was going to Rupnagar from Village Ghanauli on his car, when they crossed bus stand at Village Khaswapura, than in meanwhile a stray cow came in front of the said car, Dinesh Kumar immediate applied breaks to stop the car but he lost the contrl over the car and the said car hit with divider and the car overturned and fell into the other said of road. Vishal Kumar had died in the said accident and car in question was totally damaged. DDR No.30 dated 20.08.2019 was lodged by the police PS Sadar, Rupnagar regarding the said accident. Information regarding the accident was given to the OP No.2 within time, who advised the complainant to towed the vehicle with OP No.1 i.e. CM Auto Sales Private Limited for repair. It is further alleged that the complainant supplies all the required documents to the opposite parties within time. The complainant towed the said car from spot and parked with CM Auto sales Limited and spent Rs.2500/- as tow charges. OP No.1 submitted an estimate of Rs.5,62,889/- for repair of the vehicle whereas the insured declared value of the car was Rs. 5,69,525/-. It is necessary to mention here that when the estimate is more than 75 % of the IDV of the vehicle, then the insurance company can settle the claim on total loss basis. The complainant had paid Rs.25000/- as parking and estimate charges to the OP No.1. Thereafter, the complainant approached the OPs and requested them to make the payment of Rs.5,97,000/- (including parking charges, tow charges and estimate charges) by treating the vehicle as total loss but all in vain. OP No.2 not settle the claim of the complainant on false ground that Vishal Kumar was driving the vehicle at the material time of accident. The aforesaid act of the opposite parties amounts to deficiency in service, unfair trade practice and it has caused mental as well as physical agony and also caused inconvenience to the complainant. Vide instant complaint, the complainant has sought the following reliefs:-
- To make the payment of Rs.5,97,025/- along with interest @ 12% per annum
- To pay Rs.1,00,000/- to the complainant as compensation and litigation expenses.
2. Upon notice, the O.P. No.1 has filed written reply taking preliminary objections; that the complaint is not maintainable; that the answering OP has been unnecessarily dragged in this frivolous litigation; that there is no deficiency in service on the part of OP No.1; that OP No.1 has no concern with the damage or claim of the car in question. On merits, it is stated that the dispute between the complainant and insurance company and answering OP has no role in this complaint. It is for the insurance company to proceed further in the matter and to pay the OD claim. Rest of allegations levelled by the complainant have been denied by the answering OP and prayed for dismissal the complaint.
3. The OP No.2 has also filed written reply taking preliminary objections; that the complicated question of facts are involved in this case, which require detailed trial and same cannot be decided within the summary jurisdiction of this Hon’ble Commission; that the present complaint filed by the complainant is not maintainable; that as per the registration certificate the vehicle stands hypothecated with the HDFC Bank and without impleading the bank, the present complaint is not maintainable. On merits, it is stated that the complainant has obtained one insurance policy from the answering OP strictly subject to the terms and conditions of the policy. During the currency of the policy, the complainant has intimated on 22.8.2019 with regard to the accident of the insured vehicle on 19.8.2019 on account of stray animal came in front of his vehicle due to that vehicle got unbalanced and hit with divider and rolled over in the road. Insurance company has deputed M/s B.S. Insurance Surveyor and Loss Assessor to assess the loss. As per claim of the complainant, the vehicle was driven by Dinesh Kumar at the time of accident and he has received minor injuries while the occupant Vishal Kumar has died on account of injuries sustained in the accident. Keeping in view of the condition of the car, the same was not found tenable and accordingly, the insurance company has deputed investigator Sh. GD Singh to investigate the said claim. As per report of the investigator based upon the medical record of the parmar Hospital, where it is mentioned by the hospital that vehicle was driven by Vishal Kumar while giving intimation to the police that patient was driving the car. The answering OP has repudiated the claim of the complainant on the ground that Vishal Kumar was driving the car in question. He also stated that the company has rightly repudiated the claim of the complainant. Thus, alleging no deficiency in service on its part has prayed for the dismissal of complaint in total.
3. The complainant has tendered affidavit of complainant Ex.CW1/a along with documents in the shape of evidence as Ex.C1 to Ex.C16 and closed the evidence. On the other hand, the OP No.1 has tendered affidavit of Sh. Vijay Devgan GM as OP NO.1 along with document undertaking dated 21.8.2019 Ex.OP2 and closed the evidence. The learned counsel for the OP No.2 has also tendered affidavit of Sh. Saurav Khullar as Ex.OP2/A, affidavit of Munish Sain Ex.OP2/B along with documents as Ex.OP2/1 to Ex.OP2/19 in the shape of evidence and closed the evidence.
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5. In the present case, the main controversial point is that "Whether the vehicle was driven Vishal Kumar son of Sh. Ramesh Kumar at the time of accident."
The said controversial point adjudicated by Motor Accident Claims Tribunal, Ropar in case titled as Bimla Devi Vs. Deepak Sharma and others , decided on 22-10-2021 and Dinesh Kumar was held to be driving the vehicle at the time of accident and as the insurance company has complied with the decision by paying the same and no appeal has been filed against the same, sothe said finding can be said to be have attained finality between the parties and as such it is hereby decided that the aforesaid Dinesh Kumar was driving the vehicle at the time of accident, who was holding valid and effective driving license at the time of accident and as such the insurance company has wrongly declined to pay the claim of the complainant. The complainant is entitled for the reimbursement of the claim as per terms and conditions of the policy. As per the report of the Surveyor i.e. Ex.OP2/3, the claim of the complainant was assessed the loss. Even otherwise, the report of surveyor is a valuable piece of evidence and as per the law laid-down by Hon'ble Supreme Court in National Insurance Company Ltd. vs. Hareshwar Enterprises (P) Ltd. and Ors. (18.08.2021 - SC):-
"Surveyor's report cannot be considered as a sacrosanct document and that if there is any contrary evidence including investigation report, opportunity should be available to produce it as rebuttal material. The surveyors report is the basic document which has statutory recognition and can be made the basis if it inspires the confidence of the adjudicating forum and if such forum does not find the need to place reliance on any other material, in the facts and circumstance arising in the case. "
Thus, the present loss is assessed as per final survey report as no substantial reasons have been given by the complainant for its non-reliance. Thus, the complainant is held entitled to interest @ 9% P.A from the date of repudiation of letter i.e. 6-1-2020.
In view of my above discussion, the complaint is allowed and the following directions are issued to the OPs :-
- To pay a claim of Rs. 4,44,525/- after deducting the salvage value of Rs.1,25,000/- along with interest @ 9% P.A from the date of repudiation i.e. 6-1-2020.
- To pay a sum of Rs.25,000/- as compensation on account of mental agony and harassment suffered by the complainant
- To pay Rs.15,000/- as litigation expenses.
The Ops are further directed to comply with the said order within the period of 30 days from the date of receipt of certified copy of this order. Free certified copies of this order be sent to the parties, as per rules. The file be indexed and consigned to record room.
Announced
June 27, 2022
(Ranjit Singh)
President
(Ranvir Kaur)
CC No.06/2021
Present: Sh. MK Dhingra, Advocate, for complainant
Sh. Pardeep Mittal, Advocate, for OP No.1
Sh. Amit Gupta, Advocate, for OP No.2
Vide our separate detailed order of even date, the present complaint has been allowed exparte. The file be consigned to record room.
June 27, 2022
(Ranjit Singh)
(Ranvir Kaur)
