BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-II, U.T. CHANDIGARH

========

Complt.  Case No:1465 of 2009

Date of Institution:   27.11.2010

Date of Decision  :   16.09.2010

The Gill Transport Service (Registered), Moga, through its authorized person/representative namely Sh.Shamsher Singh, son of Sh.Bachittar Singh, R/o VPO Dhudike, Tehsil and District Moga, Punjab 142053

……Complainant

V E R S U S

1]       ICICI Lombard General Insurance Company Ltd., SCO No.24-25, Sector 8-C, Madhya Marg, Chandigarh 160017, through its Regional/Branch Manager.

2]       ICICI Lombard General Insurance Company Ltd., Bathinda, through its Branch Manager, namely Sh.Gaurav Saxena.

3]       ICICI Lombard General Insurance Company Ltd., Regd. Office : ICICI Bank Towers, Bandra-Kurla Complex, Mumbai 400051, India through its Regional Manager.

.…..Opposite Parties

CORAM:          SH.LAKSHMAN SHARMA                         PRESIDENT

                    SH.ASHOK RAJ BHANDARI            MEMBER

                    MRS.MADHU MUTNEJA                        MEMBER

PRESENT:     Sh.Rajesh Sehgal, Adv. for the complainant.

Sh.Nitin Setiya, Adv. for the OP

PER MADHU MUTNEJA, MEMBER

                This complaint has been filed by M/s Gill Transport Services against ICICI Lombard General Insurance Company Ltd. & Ors., under Section 12 of the Consumer Protection Act.  The complainant has prayed that the OPs be directed to make payment as per the genuine and legal claim of the complainant, which has been rejected by the OP.

1]             As per the facts of the case, the complainant is in the business of transport and is plying its bus bearing Regd. No.PB-29-E-9541on the Moga-Faridkot route. 

                The bus was insured by the OPs under a Comprehensive Passenger Carrying Package Policy vide Police No.3004/55133207/00B00 issued on 8.10.2008.  The policy was issued with certain exclusion clauses but the details of these exclusions were never supplied to the complainant along with the policy.  The required route permit for the aforesaid bus was sanctioned by the S.T.C. and was valid till 4.4.2011.  The route for the bus was: “return trip on Moga-Faridkot via Ghallkalan-Dagru-Darapur-Talwandi Bhai-Kotkaror-Mudki.”  A copy of the permit has been placed as Ann.C-3.  All necessary documents about the fitness of the vehicle have also been annexed with the complaint. 

                On 27.2.2009 when the driver Gurmail Singh was taking the vehicle to Barnala for some repair, the vehicle met with an accident near sub-jail Barnala in a head on collision with another bus of PRTC Faridkot bearing Regd. No.PB-04-L-9904.  It is pertinent to mention here that that the driver of the bus had a valid driving license and there was no passenger in the bus at that time.  The bus was being taken to Barnala for repair only.  An FIR (Ann.C-5) about the accident was lodged with Police Station Barnala.  

                Since the vehicle was badly damaged, the OPs were informed accordingly. All necessary formalities were complied with by the complainant. A Surveyor was appointed by the OPs for Investigation of the case.

                It is pertinent to mention here that during the complete procedure, the vehicle after examination by the Surveyor Sh.B.L.Goyal and handing over of all documents by the complainant, was released on Supardari to the complainant from the Court/Police Station on 20.4.2009. Thereafter, the vehicle was toed to Bhadaur for repairs. Another Surveyor Sh.Rakesh Kumar Aggarwal was also appointed by the OP to inspect the vehicle and verify the claim.  The complainant had to once again hand over all necessary documents required in the case to the second surveyor. 

                On 6.5.2009 the vehicle was toed to Moga for further repairs.  The total bill invoices of the vehicle in Bhadaur as well as in Moga amounted to Rs.3,30,000/- (Ann.C-6).  The complainant requested the OPs to pay this amount.

                The claim filed with the OPs was still pending final decision, so they refused to pay the bill amount.  As a result of the refusal, the complainant paid the amount of Rs.3,30,000/- to the repairer and took the possession of the repaired vehicle on 19.7.2009.

                Thereafter the complainant kept requesting the OPs for payment of claim and also requested them to supply copies of the Surveyor’s reports.  Unfortunately, the OPs supplied neither to the complainant.  The complainant was therefore, surprised to receive the repudiation/rejection letter dated 3.10.2009.  The repudiation letter did not carry the Surveyor’s report.  As per the repudiation letter placed at Ann.C-7.  The reason for repudiation of claim was that “At the time of accident vehicle was not on permitted route.”

                The complainant submits that the OPs while issuing the policy had never asked for any route permit, and neither was it required to be submitted to them.  Their refusal now to honour their commitment is gross violation and a fundamental breach of the terms and conditions of the policy.  The vehicle was being driven to Barnala for the purpose of repair only.  No passenger was sitting in the bus at that time.

                In view of the above, the complainant has filed the instant complaint seeking reimbursement of its genuine claim and compensation for deficiency in service. 

2]             After admission of complaint, notices were sent to OPs.

                The OPs in their reply have submitted that the complaint is not maintainable as the Bus involved in the accident was insured only for a specific route.  It is not disputed that the accident took place near Barnala but this place is not on the permitted route sanctioned by STC to the complainant. 

                It is correct that the complainant has taken a Comprehensive Passenger Carrying Package Policy from the OPs.  The bus was not being taken to Barnala for any repair work.  In fact it was carrying passengers at the time of accident.  This is evident from the reporting of the newspaper placed at Ann.R-1.  The FIR in the case also shows that there were passengers in both buses.  Sh.B.L.Goyal & Sh.Rakesh Kumar Aggarwal were appointed to survey the loss.  Investigation was also done by Er.Sachin Gulati.  Report of all Surveyors have been placed as annexures.  The OPs have submitted that the act of the complainant by plying the bus on a different route is gross violation and fundamental breach of contract.  They have thus prayed for dismissal of the complaint. 

3]             We have heard the ld.Counsel for the parties and have also perused the evidence and documents placed on record by the parties. 

4]             The complainant placed reliance on the FIR lodged with the police station and the details placed at annexure to prove that he had suffered a loss due to said accident of the bus, & repairs carried out on it.  The OP was required to indemnity the claim as per the insurance policy issued by them.

5]             The OPs in their reply wished to place reliance on the reports of the Surveyors and the fact that the bus was plying at a different route.  In a layman’s language, it can be said :-

“if the bus had not been on that route, it would not have had the accident.”  

                But would this stand be justified.  It does not matter where the bus was plying.  There has been an accident, and the OPs must honour their commitment.  The complainant has stated that the bus was being taken for repair and there were no passengers in the bus. 

6]             The OPs have stated that the bus was carrying passengers and have placed newspaper cuttings to show that the bus was carrying passengers and was plying on a different route. 

                If the bus was going on a wrong route, which was not permitted as per STC, this matter can be taken up by the STC as per law against the complainant. 

                It is not a justifiable ground for the OPs to repudiate the claim of the complainant. 

7]             Their commitment is to indemnify the insured if there is an accident of the vehicle provided the bus driver carried a valid driving license and an FIR has been lodged.  The complainant has not failed to comply with any of his part of the commitment  The driver of the complainant’s bus had a valid driving license.  An FIR was lodged with the Police Station.  The vehicle was repaired after more than one Surveyor had inspected it. The bills of the repair & payment have been placed on record.  There is nothing more left for the complainant to do to prove his case.

                The Hon’ble Supreme Court of India in New India Assurance Co. Ltd. Vs. Pradeep Kumar, (2009) 7 SCC 787 has categorically held : Although assessment of loss by approved surveyor is a prerequisite for payment or settlement of claim of twenty thousand rupees or more by insurer, yet surveyor’s report is not the last and final word.  It is not the sacrosanct that it cannot be departed from; it is not conclusive.  The approved surveyor’s report may be basis or foundation for settlement of a claim by the insurer in respect of loss suffered by insured but such report is neither binding upon the insurer nor insured.

8]             The reports given by all the Surveyors  attached by the OPs do not contain any specific amount but definitely make a complete reference to all the parts damaged.  There is no calculated assessment in terms of money by any of the Surveyors.  Hence, in the absence of any calculated assessment by the Surveyor’s, we would deem it fit to allow the actual amount spent by the complainant as per bills attached i.e. Rs.3,30,000/-. 

9]             In view of the above, the complaint is allowed.  OPs are directed to pay Rs.3,30,000/- to the complainant spent by him on the repair of the bus. 

                The OPs are also directed to pay Rs.10000/- as compensation for wrongly repudiating the claim as well as for cost of litigation.

                The aforesaid amounts shall be paid by the OPs within 45 days from the date of receipt of certified copy of this order, failing which they shall pay the amount of Rs.3,40,000/- along with interest @12% per annum, from the date of the order till its actual payment to the complainant.

                Certified copies of the order be supplied to the parties free of any charge. The file be consigned to the record room after compliance.    

Announced

16^th Sept., 2010                                                           

(LAKSHMAN SHARMA)

PRESIDENT

                                       (ASHOK RAJ BHANDARI)

MEMBER

                                                    (MADHU MUTNEJA)

MEMBER

“om”