Jammu and Kashmir

Jammu

CC/750/2017

BABA BALAK NATH DHABA - Complainant(s)

Versus

HDFC ERGO - Opp.Party(s)

SACHIN GUPTA

26 May 2018

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM,JAMMU

(Constituted under J&K Consumer Protection Act,1987)

                                                          .

 Case File  No.                381/DFJ           

 Date of  Institution       30-12-2016

 Date of Decision           19-05-2018

 

M/S Jai Baba Balak Nath Dhaba,

Through its Proprietor Chain Kumari,

W/O Late Sh.Thoru Ram,

R/O Roun Domail Dhar Road,Udhampur,

A/O H.No.9 Tawi Vihar Colony Sidhra,

Bye Pass,Jammu.

                                                                                                                                                Complainant

                 V/S

HDFC  ERGO

General Insurance Co.Ltd.

Ist Floor,South Block,

Bahu Plaza,Jammu

Through its Branch Manager.

                                                                                                                                                Opposite party

CORAM:-

                  Khalil Choudhary  (Distt.& Sessions Judge)  President

                  Ms.Vijay Angral                                                Member

                  Mr.Ghulam Sarwar Chauhan                             Member

 

In the matter of: Complaint under section 10 of J&K Consumer Protection Act 1987.

                              

Mr.Sachin Gupta,Advocate for complainant, present .

Mr.Jugal Kishore,Advocate  for OP,present.

 

                                                            ORDER

 

                         Facts relevant for the disposal of complaint on hand are that; complainant being registered owner of vehicle (Mahendra Bolero-Pickup),bearing registration No.JK16-6471,got the same insured with OP,vide Policy No.2315-2008-6912-9300-000 valid  w.e.f.,04-10-2014 to 03-10-2015(Annexures A&B).According to complainant, during currency of insurance policy, insured vehicle met with accident on,19-08-2015 near Batal Ballian,Tehsil & Distt.Udhampur when it was going towards Jammu on some personal work, the vehicle which was driven by the driver,namely,Jyoti Parkash hit with the parfait (Iron railing).Due to accident the vehicle was badly damaged and due to accident the driver who was driving the vehicle died on spot and the friend of driver who was accompanied by the driver of the vehicle was got injured(copy of FIR is annexed as Annexure-C). Submission of complainant is that due to accident the vehicle in question was badly damaged, he immediately informed OP about the accident with a request for settlement of insurance claims and accordingly a surveyor was deputed by the OP and the surveyor inspected the vehicle on the place of accident and submitted report to OP and then the complainant was directed  to complete certain formalities for settlement of claim and complainant duly completed and complied with the requirement of OP for early settlement of his claim, but the OP has not settled the claim of complainant till date  and this act of OP constitutes deficiency in service and unfair trade practice. In the final analysis, complainant prays for indemnity to the tune of Rs.4,73,000/-alongwith interest @ 18% per annum,Rs.23,700/-as premium amount  and in addition, prays for compensation to the tune of Rs.1,30,000/-including litigation expenses.

                    Notice alongwith copy of complaint was sent to OP through registered cover,however,despite lapse of statutory period, OP has not taken any action to represent its case in this Forum, either to admit the claim of complainant or to deny the same within stipulated period, provided under the Act. Perusal of file reveals that the right of OP to file reply is closed on,22-02-2017,however,Ops have filed written version on,05-05-2017,therefore,written version cannot be considered.

             Complainant adduced evidence by way of duly sworn evidence affidavit. Complainant has placed on record copy of certificate of registration, copy of policy schedule and copy of FIR.

                       We have perused case file and heard L/Cs for the parties at length.

                 The complainant in her affidavit has supported the averments of the complaint. There is no evidence on record produced by other side to rebut the case of complainant. So from perusal of complaint, documentary and other evidence produced by the complainant, it appears that the complainant has succeeded in proving her case as narrated by her in the complaint. The complaint is fully supported by the affidavit of complainant, so, in the given circumstances of the case, and in view of the evidence on record, there is no reason to disbelieve the averments contained in complaint. This is a case of deficiency in service. The OP despite service of notice, sent by the Forum through registered cover has not taken any action to represent the case before this Forum, either to admit the claim of complainant, or to deny it, so there is no reply filed by the OP  in this complaint and there is also no evidence in rebuttal. The present case of the complainant is covered by Section 11 2(b) (ii) of the Consumer Protection Act, 1987, which provides that in a case, where the OP omits or fails to take any action to represent the case within the time given by Forum, in that situation, the Forum shall settle the consumer dispute on the basis of evidence brought to its notice by the complainant. Sub-clause (ii) of the Section 11, clearly provides that even where the OP omits or fails to taken any action to represent the case before the Forum, the dispute has still to be decided on the basis of evidence brought to its notice by the complainant.

                    In addition complainant has also supported the allegations contained in the complaint by duly sworn her own affidavit, which is corroborative of the facts contained in the complaint. Therefore, in the light of unrebutted averments contained in the complaint and documents on record, we are of the opinion that complainant successfully made out a case of deficiency in service by OP.

                    Otherwise also legally speaking it is settled law that the parties are  always bound and governed by the terms and conditions of contract and whenever contract is entered into there is proposal made by one party in its unequivocal and unambiguous terms conveyed to the otherside and acted by otherside with the same response and in its understanding and knowledge leaving no scope of any future suspicion and incredibility in mind to come in the way of the said contract afterwards.

                       Further also to make it more clear, as for as the terms of the policy are concerned reliance can be had to judgment in case titled Indraprastha Gas Ltd.V/S New India Assurance Co.Ltd.& Ors. reported in 1(2015)CPJ 279(NC)wherein the relevant para it is laid down:

                                          The court has to give material meaning to the document. It is not open to the court to make any addition to or subtraction from the terms and conditions contained in Insurance Policy.

                            It is needful to recall the judgment of Honble Supreme Court passed Oriental Insurance Company Ltd.V/S M/S Ozma Shipping Co.and Anr.2010 AIR SCW 514

Before parting with this case we would like to observe that the insurance companies in genuine and bona fide claims of the insured should not adopt the attitude of avoiding payments on one pretext or the other. This attitude puts a serious question mark on their credibility and trustworthiness of the insurance companies. Incidentally by adopting honest approach and attitude the insurance companies would be able to save enormous litigation costs and the interest liability.

                              Admittedly, surveyor was deputed by OP who assessed the loss to the tune of Rs.3,47,500/- on net of salvage claim amount after assessing the value of the salvage at Rs.1,25,000/-and same has not been disputed by the complainant, hence loss assessed by the surveyor is only available reasonable basis and documentary, evidence for the loss suffered by the complainant.

                            Therefore in view of the aforesaid discussion and after pursuing the record of the case, complaint filed by the complainant is accordingly allowed and we direct the OP to pay Rs.3,47,500/-alongwith interest @ 6% p.a.,w.e.f.30-12-2016,(i.e.from the date of filing of this complaint), till its realization. The complainant is also entitled to Rs.5000/-as compensation for causing mental agony and harassment and litigation charges of Rs.5000/-.This order shall be complied with by OP within one month from date of receipt of this order. Copy of this order be provided to the parties free of charge. Complaint is accordingly disposed of and file be consigned to records after its due compilation.

Order per President                                              Khalil Choudhary

                                                                         (Distt.& Sessions Judge)

Announced                                                              President

 19-05-2018                                                   District Consumer Forum

Agreed by                                                                Jammu.

 

Ms.Vijay Angral          

Member        

 

Mr.Ghulam Sarwar Chauhan,

         Member