Complaint No: 65 of 2020.
Date of Institution: 16.09.2020.
Date of order: 05.09.2023.
Bira Masih aged about 52 years son of Sh. Suba Singh R/o Village Lodhipur Tehsil and District Gurdaspur.
.....Complainant.
VERSUS
- Go Digit General Insurance Company Ltd., AK Empire, 1st Floor, BSF Chowk, Kirti Nagar, Ladhowali Road, Jalandhar, through its Manager. Pincode – 144001
- Go Digit General Insurance Company Ltd., Atlantis 95, 4th B Cross Road, Koramangla Industrial Layout, 5th Block, Bengaluru (Karnataka) -560095, through its Managing Director.
- Er. Venus Kumar, Surveyor, Loss Assessor & Valuer C/o Go Digit General Insurance Company Ltd., C/o AK Empire, 1st Floor, BSF Chowk, Kirti Nagar, Ladhowali Road, Jalandhar.
….Opposite parties.
Complaint U/s 35 of the Consumer Protection Act.
Present: For the complainant: Sh.Paul Sandhu, Advocate.
For the opposite parties No.1 & 2: Sh.Sandeep Ohri, Advocate.
Opposite Party No.3: Exparte.
Quorum: Sh.Lalit Mohan Dogra, President, Sh.Bhagwan Singh Matharu, Member.
ORDER
Lalit Mohan Dogra, President
Bira Masih, Complainant (here-in-after referred to as complainant) has filed this complaint under section 35 of the Consumer Protection Act, (here-in-after referred to as 'Act') against Go Digit General Insurance Co. Ltd. Etc. (here-in-after referred to as 'opposite parties).
2. Briefly stated, the case of the complainant is that the complainant is owner of Vehicle make Canter bearing Regd. No.PB-07-AB-8439. It is further pleaded that above said vehicle is fully insured with the OP’s No.1 & 2 and the insurance is valid from 29.05.2019 to 28.05.2020 mid night. It is alleged that the above said vehicle of the complainant met with an accident on 24.07.2019 at about 5 A.M. in area Village Sikri within jurisdiction of P.S. Bullowal District Hoshiarpur, as a Truck tipper bearing No. PB-07AL-8190 which was being driven by its driver rashly and negligently on very high speed while sleeping hit the same with Truck No.PB-06-K-2187 by bringing the same on wrong side and caused accident. It is further pleaded that driver of the complainant who was going behind the above said Truck No. PB-06-K-2187 could not control his vehicle and vehicle of the complainant also hit behind the above said truck No.PB-06-K-2187. It is further alleged that the driver of the complainant also suffered grievous injuries in this accident and the vehicle of the complainant was also badly damaged. It is submitted that at the time of accident the above said vehicle of the complainant was fully insured with the OP’s No.1 & 2 vide policy/Cover note/Cert. fully mentioned above and policy is comprehensive and covers all risks. It is further pleaded that complainant has only this vehicle and has no other source of livelihood. It is further submitted that at the time of accident the vehicle was being driven by the Partap Singh (Driver) on his correct side and very normal speed and complainant is holding a valid driving license. It is further submitted that Matter was reported to the police of P.S. Bullo Pur by one of the injured and criminal case U/s 279/304-A/427 IPC vide FIR No. 0119 dated 27.07.2019 was registered. It is further pleaded that matter was also reported to the OP No. 1 immediately and the OP No. 1 appointed OP No. 3 for assessing the loss suffered by the complainant and the OP No. 3 taken photographs of the damaged vehicle at the spot and also received Photo copies of certain documents i.e. R.C, Route Permit, Fitness Certificate, Insurance policy, Builti (GR), Road Tax, Driving License and Estimate from the complainant and advised the complainant to get the vehicle repaired. It is further submitted that as per advice of the OP No. 3, the complainant got his vehicle repaired and in the process of repair, the complainant spent about Rs.1,62,000/- and thereafter, the complainant had again given intimation to the OP No. 1, who again sent the OP No. 3 for inspection of the vehicle. It is further pleaded that OP No.3 came at the spot and again klicked photographs of the repaired vehicle and also received bills etc. from the complainant and assured to make payment of the amount spent by the complainant very soon after completion of certain formalities. It is further alleged that after waiting for a long period, the complainant approached the OP’s No.1 and 3 and requested for making payment of the amount spent by him on repair of his vehicle, but the OP’s put the complainant with one or the other excuse, and ultimately repudiated the claim of complainant vide letter dated 15.09.2019 with the fake observations that the complainant has failed to respond to fulfillment of the requirement for further processing of his claim. It is further alleged that this fact is totally wrong and not admitted. It is further pleaded that complainant has fulfilled each and every Requirement of the OP’s and the complainant had provided all the documents to the OP’s twice as per advice of the OP No. 3. It is further pleaded that there was absolutely no lapse on the part of complainant. It is further alleged that the OP’s by not making payment of the insured amount for the loss suffered by the complainant on fake and baseless observations is trying to back out from their obligations with malafide intention and ulterior motive without any reason or rhyme. It is further pleaded that due to this illegal act and conduct of the opposite parties the complainant has suffered great loss and also suffered mental agony, Physical harassment and inconvenience, as such there is a clear cut deficiency in service on the part of the opposite parties.
On this backdrop of facts, the complainant has alleged deficiency and negligence in service and unfair trade practice on the part of the opposite parties and prayed that necessary directions may kindly be issued to the opposite parties to make the payment of the amount of Rs.1,62,000/- spent by the complainant on the repair of his vehicle along with interest @ 18% P.A. from the date of accident of the vehicle till actual realization in terms of the Insurance policy. It is further prayed that compensation to the tune of Rs.1,00,000/- may also be awarded to the complainant besides the amount of claim on account mental agony, physical harassment and deficiency in service on the part of the opposite parties. Litigation expenses to the tune of Rs.10,000/- may also be awarded in favor of the complainant after accepting this complaint in the interest of justice.
3. Upon notice, the opposite parties No.1 and 2 appeared through counsel and contested the complaint and filing their written reply by taking the preliminary objections that the complainant has no cause of action and locus standi to file the present complaint, that the complainant has concealed the material facts from this Learned Commission and as such not entitled for any discretionary relief. It is further pleaded that that the insurance is a contract based on utmost good faith and it is the duty of the insured to disclose all the relevant facts and also to provide all the documents demanded by the insurance company required for finalization of the claim and there is no deficiency in services on the part of the insurance company. It is the complainant who is at fault and failed to fulfill his part of obligation. It is pleaded that the matter of fact is that the claim has been filed and the matter has also been investigated. It is further pleaded that claim has been intimated on 19.09.2019 and after going through the documents submitted by the complainant, it comes out that there are certain requirements and queries which are required to be get and answered from the complainant. It is further pleaded that letter dated 03.11.2019 has been sent by the Insurance Company to the complainant Bira Masih and in the said letter, the complainant has been asked to make certain queries;-
i) Why repair Estimate not produced during the repair of the vehicle.
ii) Kindly provide the Load Challan Copy of Vehicle.
iii) Reason for not producing the vehicle for under repair.
iv) Why Surveyor was not notified during the repair of the vehicle.
It is further pleaded that the complainant has been asked to answer these queries, but no reply came from the complainant side. It is further pleaded that due to which letter on 15.11.2019 has been sent to the complainant, but the date has wrongly been mentioned as 15.09.2019 on the said letter and the claim of the complainant has been rejected. It is further pleaded that even otherwise, the liability of the Insurance Company is only as per the Surveyor report and Surveyor has been duly appointed and after physically verifying the damages, the amount is assessed is of Rs.46,475/-. It is further pleaded that so the claim is not admissible as there is misrepresentation and no supporting evidence is submitting in support of admissibility of the claim as such there is no deficiency in the services on the part of the opposite parties.
On merits, the opposite parties No.1 and 2 have reiterated their stand as taken in legal objections and denied all the averments of the complaint and there is no deficiency in services on the part of the opposite parties. In the end, the opposite parties prayed for dismissal of complaint with costs.
4. Opposite party No. 3 did not appear despite service of notice and was proceeded against exparte vide order date 19.11.2020.
5. Learned counsel for the complainant has tendered into evidence affidavit of Bira Masih (Complainant) as Ex.CW-1/A along with other documents as Ex.C-1 to Ex.C-16.
6. Learned counsel for the opposite parties No.1 and 2 has tendered into evidence affidavit of Mr. Omkar S Utture, (Authorized Signatory, Go Digit General Insurance Company Ltd., Pune) as Ex.OP-1,2,1/A along with other documents as Ex.OP-1,2/1 to Ex.OP-1,2/6.
7. Rejoinder filed by the complainant.
8. Written arguments filed by the complainant but not filed by the opposite parties No.1 and 2.
9. Counsel for the complainant has argued that truck owned by the complainant met with an accident on 24.07.2019 and intimation regarding the accident was given to the opposite parties No.1 and 2 alongwith required documents. It is further argued that complainant had spent amount of Rs.1,62,000/- on the repair of the vehicle but opposite parties No.1 and 2 have repudiated the claim vide letter dated 15.09.2019 which amounts to deficiency in service.
10. On the other hand counsel for the opposite parties No.1 and 2 has argued that policy of insurance is admitted. However, opposite parties No.1 and 2 written letter dated 03.11.2019 to the complainant and complainant was requested to comply with following queries;-
i) Why repair Estimate not produced during the repair of the vehicle.
ii) Kindly provide the Load Challan Copy of Vehicle.
iii) Reason for not producing the vehicle for under repair.
iv) Why Surveyor was not notified during the repair of the vehicle.
It is further argued that since the complainant failed to reply the said letter as such claim was rightly repudiated. It is further argued that the liability of the insurance company if any is only upto Rs.46,475/- as per the report of surveyor.
11. We have heard the counsels for the complainant and opposite parties No.1 and 2 and gone through the record. It is admitted fact that truck No.PB-07-AB-8439 owned by the complainant met with an accident on 24.07.2019. It is further admitted fact that the said truck was insured with the opposite parties No.1 and 2 insurance company vide policy of insurance Ex.C2. It is further admitted fact that FIR Ex.C4 was registered at P.S. Bullowal in respect of the accident. It is further admitted fact vehicle has been got repaired by the complainant. It is further admitted fact that claim lodged by the complainant has been repudiated vide letter dated 15.09.2019 Ex.C15.
12. To prove the case counsel for the complainant has placed on record all the documents in respect of the truck in question, copy of FIR, copy of repair estimate and bills. The only ground for denial and repudiation of claim by the opposite parties is non reply queries to letter dated 03.11.2019.
13. We are of the view that since the complainant already lodged claim with the opposite parties No.1 and 2 alongwith required documents as such it was the duty of the surveyor to procure the estimate of repair from the workshop and it was further duty of the surveyor to check the vehicle while it was under repair as such we are of the view that the queries as mentioned at serial number i) to iv) in letter dated 03.11.2019 are totally uncalled far and have nothing to do with the settlement of the claim because on the one hand opposite parties No.1 and 2 itself admitted that the surveyor has assessed the loss of Rs.46,475/- as such we unable to understand if loss is assessed and the required documents already with the insurance company, then the act of opposite parties No.1 and 2 of having repudiated the claim for non reply to queries amounts to deficiency in service on the part of the opposite parties No.1 and 2. Since the complainant has not challenged the report of the surveyor accordingly, it is held that complainant is entitled to receive Rs.46,475/- as assessed by the surveyor.
14. Accordingly, present complaint is partly allowed and opposite parties No.1 and 2 are directed to pay Rs.46,475/- to the complainant alongwith interest @ 9% P.A. w.e.f. 14.11.2019 i.e. the report of the surveyor till its realization. Opposite parties No.1 and 2 are further directed to pay Rs.10,000/- as compensation to the complainant on account of harassment, mental agony and costs of litigation. Entire exercise shall be completed within 30 days from the date of receipt of copy of this order.
15. The complaint could not be decided within the stipulated period due to heavy pendency of Court Cases, vacancies in the office and due to pandemic of Covid-19.
16. Copy of the order be communicated to the parties free of charges. After compliance, file be consigned to record.
(Lalit Mohan Dogra)
President
Announced: (B.S.Matharu)
Sept. 05, 2023 Member
*YP*
