DISTRICT CONSUMER DISPUTES REDRESSAL FORUM,<br /> BATHINDA (PUNJAB)<br /> <br /> CC No.123 of 09-05-2007<br /> Decided on : 30-07-2007 <br /> <br /> Mohinder Pal S/o Hans Raj, R/o LIG 221, Model Town Housing Board Colony, Bathinda. <br /> ... Complainant<br /> Versus<br /> 1.ICICI Lombard General Insurance Company Limited, Guru Kanshi Road, Sharma Complex, Corner of Power House Road, Bathinda, through its Manager.<br /> 2.Canara Bank, Civil Lines Branch, Bathinda, through its Branch Manager. ... Opposite parties<br /> <br /> Complaint under Section 12 of the Consumer Protection<br /> Act, 1986.<br /> <br /> QUORUM :<br /> Sh. Lakhbir Singh, President<br /> Sh. Hira Lal Kumar, Member <br /> <br /> For the Complainant : Sh. Naresh Garg, Advocate. <br /> For the Opposite parties : Sh. Vinod Garg, Advocate, for opposite party No. 1.<br /> Opposite party No. 2 exparte. <br /> <br /> O R D E R <br /> <br /> LAKHBIR SINGH, PRESIDENT<br /> 1. Complainant was the owner of Car having Registration PB-03-P-8730. It was got comprehensively insured with opposite party No. 1 vide Cover Note No. 1763637 for a sum of Rs. 3,75,810/- (IDV) w.e.f. 31.5.06 to 30.5.07. Policy was not issued to him. Car was hypothecated with opposite party No. 2 from which loan was raised. This car was purchased through Mr. Deepak Walia. A sum of Rs. 14,273/- was given to Deepak Walia who issued cheque from his account to opposite party No. 1. This vehicle had met with an accident on 29.1.07 in the revenue limits of Chintpurni. It had struck against Trolley and thereafter with a stone. Accordingly, it was extensively damaged. At that time, car was being driven by Sh. Aman Batheja. Intimation of the accident was given to opposite party No. 1 on telephone. Due to the accident power steering pump in engine was also damaged. Without replacing the same vehicle could not be moved even upto the nearest workshop. Since intimation was given to opposite party No. 1, it had instructed that requisite pump be got replaced at the spot through nearest authorised dealer of the manufacturing company i.e. Tata Motors and that after replacing the same, it be brought to Bathinda and parked with authorised dealer i.e. Mehta Motors, Barnala Road, Bathinda. Opposite party No. 1 had deputed surveyor. Loss was assessed by him. At that time, his signatures were obtained on different four papers with the assurance that entire payment of the bills concerning the repairs from authorised dealer of manufacturing company Tata Motors would be made. Steering Pump of the car was got replaced from J K Automobiles, Hoshiarpur, authorised dealer of the company which had charged Rs. 10,276/-. Thereafter car was brought to Mehta Motors which repaired it and charged Rs. 20,418/- i.e. Rs. 5752/- and Rs. 14,646/-. All the necessary documents i.e. estimate, bills of J K Automobiles and Mehta Motors etc., were submitted to opposite party No. 1 alongwith claim. He was visiting opposite party No. 1 for receiving the claim amount, but no satisfactory reply was given. He (complainant) asserts that he withdraws all the blank forms, vouchers and blank papers upon which he was made to sign on the assurance given by the surveyor of opposite party no. 1 as well as by opposite party No. 1. He alleges that surveyor is under the thumb of opposite party No. 1 and he cannot afford to disoblige their master. Letter dated 23.4.07 was received by him from opposite party No. 1 through which claim has been repudiated as per its clause No. 7. No condition of the policy was attached with the letter dated 23.4.07. Non-payment of the claim amount of Rs. 30,694/- has caused him mental agony, pain and sufferings. In these circumstances, this complaint under Section 12 of the Consumer Protection Act, 1986 (Here-in-after referred to as `Act') has been preferred by him seeking direction from this forum to the opposite parties to pay him Rs. 30,694/- alongwith interest @ 18% P.A.; Rs. 10,000/- as damages on account of mental agony and pain and Rs. 5,000/- as litigation expenses.<br /> 2. On being put to notice, opposite party No. 1 filed reply of the complaint taking preliminary objections that complaint is false and frivolous; complicated and complex questions of law and facts are involved which cannot be decided in summary procedure and that appropriate remedy, if any, lies in the civil court; complainant is not consumer; he has got no locus standi and cause of action to file the complaint and complaint is not maintainable. On merits, it admits that Indica car was insured with it vide cover note. On the date of alleged accident i.e. 29.1.07 vehicle was not registered as per provisions of the Motor Vehicles Act. Complainant has violated the provisions of Section 39 of the Motor Vehicles Act. Vehicle was purchased in May, 2006, It was got registered on 2.3.07. Alleged accident had taken place on 29.1.07. In this manner, it is evident that on the date of alleged accident, vehicle was not registered as per provisions of the Motor Vehicles Act, Plying of a motor vehicle without valid registration certificate is punishable U/S 192 of Motor Vehicles Act. Under Section 39 of the Motor Vehicles Act, no person shall drive any motor vehicle and no owner of a motor vehicle shall cause or permit the vehicle to be driven in any public place or in any other place unless vehicle is registered. It does not deny the receipt of Rs. 14,273/- for insurance of the vehicle on the basis of cheque issued by Mr. Deepak Walia. Copy of the DDR or FIR was not supplied to it. It denies that any intimation regarding the alleged accident was given to it on telephone. Power Steering Pump in the engine was not damaged in the accident. Intimation regarding the alleged accident and replacement of the Power Steering Pump was not given. In the absence of survey, it cannot be determined as to whether Power Steering Pump was repairable or was liable to be replaced. It denies that it had instructed the replacement of the pump at spot through nearest dealer of Tata Motors. On receipt of the intimation of the alleged accident on 30.1.07, it had deputed Mr. Rakesh Kumar Gupta, Surveyor & Loss Assessor to conduct the survey and assess the loss. He had personally inspected the vehicle and had taken photographs etc on 30.1.07. Loss was assessed by him to the tune of Rs. 18,382/- as per terms and conditions of the policy. It denies that surveyor had obtained signatures of the complainant on blank papers and had assured that entire amount of the bills for repairs would be paid. It admits that claim has been repudiated vide letter dated 23.4.07. As per Section 43 of the Motor Vehicles Act, temporary registration is valid only for a period not exceeding one month and is not renewable. Remaining averments in the complaint stand denied.<br /> 3. Notice of the complaint was issued to opposite party No. 2 which was served for 29.5.07. No-one came on its behalf. Accordingly it has been proceeded against exparte.<br /> 4. Some are the undisputed points in this case. They are that car of the complainant was comprehensively insured with opposite party No. 1 for a sum of Rs. 3,75,810/- for the period from 31.3.06 to 30.5.07 vide insurance cover note No. 1763637. Surveyor was deputed by opposite party No. 1 who had assessed the loss at Bathinda. Claim was submitted by the complainant. It has been repudiated vide letter dated 23.4.07, copy of which is Ex. C-5 on the ground that on the date of incident i.e. 29.1.07 vehicle was not registered.<br /> 5. Material question for determination is as to whether the repudiation of the claim by opposite party No. 1 is justified ? Answer to our minds is in the negative. Admittedly vehicle was insured with opposite party No. 1. Stance of the complainant is that policy was not supplied. For this, there is affidavit of the complainant which is Ex. C-1. Even otherwise, opposite parties have placed on record copies of the Certificate-cum-Policy Schedule and Policy Wording as Ex. R-8 and Ex. R-9 respectively. Learned counsel for opposite party No. 1 could not show provision in Ex. R-8 & Ex. R-9 according to which claim can be repudiated simply on the ground that vehicle was not registered by the insured with the registering authority. No doubt car was purchased in May, 2006 and accident had taken place on 29.1.07. Car was got registered with the Registering Authority on 2.3.07 as is evident from Ex. C-6. In our view claim has been illegally and arbitrarily repudiated by opposite party No. 1. Registration of the vehicle is mandatory. If registration is not made within the prescribed time, it can be obtained by paying late fee. There are no terms and condition that if vehicle is not registered well in time, it would lead to repudiation of claim. In this view of the matter, we are fortified by the observations of the Hon'ble State Commission of Jharkhand in the case of Rajendra Prasad Tiwary Vs. New India Assurance Company & Others I(2007) CPJ 391. Accordingly, repudiation of claim on this sole ground is unjustified and unsustainable and is liable to be set aside. Hence, deficiency in service on the part of the opposite party No. 1 is proved.<br /> 6. Now the question arises as to which relief should be accorded to the complainant. Complainant is claiming Rs. 30,694/- alongwith interest @18% P.A. Contention of the learned counsel for the complainant is that opposite party No. 1 was telephonically intimated about the accident and for replacement of the Power Steering Pump at the spot from the nearest authorised dealer of the manufacturing company and that accordingly it was got replaced from J.K. Automobiles, Hoshiarpur on the day of accident i.e. 29.1.07 by way of making payment of Rs. 10,276/- vide bill, copy of which is Ex. C-7. After that car was brought to Mehta Motors, Bathinda. Opposite party No. 1 deputed surveyor Mr. Rakesh Kumar Gupta and on his instructions Mehta Motors made Estimation Report Ex. C-10. Car was repaired by Mehta Motors and bills for Rs. 14,666/- and Rs. 5752/-, copies of which are Ex. C-8 and Ex. C-9 were prepared and that amount was paid by the complainant. Complainant is also relying upon the certificate, copy of which is Ex. C-2 for establishing that Power Steering Pump was damaged and it was got replaced from J K Automobiles. <br /> 7. Submission of the learned counsel for the complainant is that complainant spent Rs. 30,694/- vide documents copies of which are Ex. C-7 to Ex. C-9 which opposite party No. 1 is liable to pay. Reliance is placed on the authority K.L. Malhotra Vs. Oriental Insurance Co. & Anr. I(2003) CPJ 107 (NC) in which it was held that where loss is assessed by the authorised agent of the manufacturer, there is no justification to ignore the amount.<br /> 8. Mr. Garg, Learned counsel for opposite party No. 1 vehementally argued that surveyor of opposite party No. 1 has assessed the loss to the tune of Rs. 18,382.38 and that if this Forum comes to the conclusion that repudiation of the claim is not justified, complainant is not entitled to more amount than the loss assessed by the surveyor.<br /> 9. We have considered the respective arguments and we feel inclined to agree with the learned counsel for opposite party No. 1. There is no cogent and convincing evidence of the complainant regarding intimation of the accident and the allegation that Power Steering Pump was totally damaged on account of which vehicle could not be shifted to Bathinda and that it required replacement at the spot from the nearest dealer of the manufacturing company and that opposite party No. 1 accorded permission for doing so. Bald affidavit of the complainant on this aspect of the matter stands amply rebutted with the affidavit Ex. R-1 of Sh. Sat Parkash, Area Head of opposite party No. 1. So far as copy of certificate Ex. C-2 shown to have been issued by J.K. Automobiles, Hoshiarpur, is concerned, it is undated. It has been shown to have been issued by the partner of J.K. Automobiles. Affidavit of Help Line Service Engineer who has been shown to have replaced the Power Steering Pump has not been placed and proved on record. No doubt in para no. 15 of the survey report of Sh. Rakesh Kumar Gupta, there is mention about the damage to Power Steering Pump. It is not observation of the surveyor. Para No. 15 relates to the fact which was stated by the insured. Ex. C-7 is the copy of the detailed invoice which has been shown to have been issued by J.K. Automobiles for Rs. 10,276/- on 29.1.07. From this document, it is difficult to conclude that parts were fitted in the car of the complainant as chassis number and engine number of the vehicle have not been mentioned in it. Hon'ble National Commission in the case of Essen Enterprises Versus National Insurance Co. Ltd. 2005(3) CLT 130 has held that when items are not shown to the surveyor for inspection, claim cannot be admitted. Admittedly in this case alleged damage to Power Steering Pump of the car was not shown to the surveyor of opposite party No. 1 before its alleged replacement. Vehicle was inspected by the surveyor on 30.1.07 in the premises of M/s. Mehta Motors, Bathinda. In the circumstances of this case, when no intimation about the alleged damage to Power Steering Pump is proved, it was not shown to the surveyor, claim of the complainant for Rs. 10,276/- cannot be entertained in view of the observations of the Hon'ble National Commission. With utmost regard and humility to the authority K.L. Malhotra Vs. Oriental Insurance Co. Ltd. (Supra), the same is distinguishable on facts. In that case Maruti Van was insured with the respondent insurer. It was involved in an accident. Intimation was given to the insurer which had appointed surveyor and he had assessed the damage. In the present case, vehicle was not shown to the surveyor on 29.1.07 when alleged Power Steering Pump is alleged to have been got replaced. In the Estimation report, replacement charges for Power Steering Pump are Rs. 9177/- and removal charges Rs. 250/- whereas in Ex. C-7 payable amount has been recorded as Rs. 10,276/-. In view of this and on account of the facts recorded above, replacement of the Power Steering Pump is highly suspicious and claim for this is not justified. Surveyor in his report dated 17.2.07, copy of which is Ex. R-5 has considered all the pros and cons of the case including depreciation @ 5%. Report appears to us as reasoned one. Loss has been assessed to the tune of Rs. 18,382.38. In round figures loss is of Rs. 18,382/-. Direction deserves to be given to opposite party No. 1 to pay the amount of Rs. 18,382/- alongwith interest @ 9% P.A. from 1.5.07 (The date taken after three months after the date of intimation regarding accident i.e. 30.1.07) till payment. Complainant is craving for compensation of Rs. 10,000/- for mental agony and pain. In our view, there is no case to allow it in view of the relief which is going to be accorded as above, Out of interest and compensation, one can be allowed.<br /> 10. In the result, complaint is partly allowed against opposite party No. 1 with cost of Rs. 1,000/-. Complainant qua opposite party No. 2 is dismissed. Opposite party No. 1 is directed to do as under :-<br /> i) Pay Rs. 18,328/- to the complainant alongwith interest @ 9% P.A. from 1.5.07 till payment.<br /> Compliance of this order be made within 30 days from the date of receipt of its copy. Copy of this order be sent to the parties concerned free of cost and file be consigned. <br /> Pronounced :<br /> 30-07-2007 (Lakhbir Singh )<br /> President<br /> <br /> <br /> ( Hira Lal Kumar )<br /> Member<br /> <br /> <br /> <br />