DISTRICT CONSUMER DISPUTES REDRESSAL FORUM,<br /> BATHINDA(PUNJAB)<br /> <br /> <br /> C.C.No.333 of 19.11.2007<br /> Decided on : 10.3.2008 <br /> <br /> <br /> Karamjeet Singh S/o Sh. Tek Singh, R/o House No. 14821, Street No. 7, Adarsh Nagar, Bathinda.<br /> ...... Complainant<br /> <br /> Versus. <br /> 1.ICICI Lombard General Insurance Company Limited, Sharma Complex, Ist Floor, 3039-A, Front Portion, Bathinda through its Branch Manager/Authorised Signatory.<br /> 2.ICICI Lombard General Insurance Company Limited, Registered Office, ICICI Bank Towers, Bandra Kurla Complex, Mumbai through its Managing Director.<br /> ..... Opposite parties<br /> <br /> Complaint under section 12 of the Consumer Protection Act, 1986<br /> <br /> QUORUM:<br /> <br /> Sh.Lakhbir Singh, President<br /> Sh. Hira Lal Kumar, Member<br /> Dr.Phulinder Preet, Member<br /> <br /> For the complainant : Sh. M.R Gupta, Advocate<br /> For the opposite parties : Sh. Vinod Garg, Advocate<br /> O R D E R.<br /> LAKHBIR SINGH, PRESIDENT:-<br /> 1. Complainant got car No. PB-31D-4075 comprehensively insured with opposite party No. 1 vide private car package policy No. 3001/50734157/00/000 intermediary code No. 200808769409 dated 28.11.2006 by way of paying requisite premium. On 14.7.2007, car had met with an accident by way of striking against a Bull which was sitting in the middle of the road. It was badly damaged. Intimation of the accident was given to the opposite insurance company. Requisite formalities were completed. Surveyor was appointed and report was submitted by him. It is further added by him that a sum of Rs. 46,968/- was spent by him for purchasing spare parts, Rs. 6,500/- were spent for denting and painting etc. and Rs. 4,600/- as labour charges. In this manner, he incurred expenditure to the tune of Rs. 58,068/- for repair of the damaged car. Claim was submitted by him, but opposite insurance company rejected it vide letter dated 4.8.2007 on the ground that it was being used for commercial purpose. He assails the repudiation as illegal on the grounds that car was not used by him for commercial purpose or as taxi. Rather, he was using it as private car. Opposite parties were requested to pay the insurance claim, but to no effect. Legal notice dated 10.10.2007 was also got served upon the opposite parties through registered post, but of no avail. In these circumstances, instant complaint under section 12 of the Consumer Protection Act, 1986 (Here-in-after referred to as the Act) has been preferred seeking direction from this Forum to the opposite parties to pay him the claim amount of Rs. 58,068/- alongwith interest @ 18% P.A from the date of accident till realization; Rs.20,000/- as compensation on account of mental tension, agony, harassment etc. and costs of the complaint.<br /> 2. On being put to notice, opposite parties filed their version taking legal objections that complaint has been filed to injure their reputation; complicated questions of law and facts are involved which require voluminous documents and evidence and as such, appropriate remedy lies in the civil court; he has concealed material facts from this Forum; policy purchased is a private car policy, whereas the vehicle is being used for commercial purpose; complaint is not maintainable in the present form; complainant has got no locus-standi and cause of action to file it and it is false and frivolous. On merits, they admit that car was insured. Intimation regarding the alleged accident was received. Sh. Vikash Chander Jain was appointed to conduct survey and assess the loss. Survey of the vehicle was conducted by him at M/s. Sharma Maruti Garage, Bathinda on 14.7.2007. Loss was assessed by him to the tune of Rs. 11,821/- after applying depreciation as per terms and conditions and other provisions of the policy and India Motor Tariff. Vehicle was of the manufacturing year of 2002. Survey report dated 2.8.2007 was submitted. Complainant has given acceptance letter admitting the net loss assessed as Rs. 11,821/-. Claim has been rightly rejected. They deny the remaining averments in the complaint.<br /> 3. In support of his allegations and averments in the complaint, Karamjeet Singh complainant tendered into evidence his own affidavit (Ex.C.1), affidavits (Ex.C.11 to Ex.C.13) of S/Sh. Som Nath, Sharanjit Singh & Harmeet Kumar respectively, photocopy of policy (Ex.C.2), photocopies of bills (Ex.C.3 to Ex.C.6), photocopies of letters dated 4.8.2007 & 28.1.2008 (Ex.C.7 & Ex.C.14), photocopy of legal notice (Ex.C.8) and photocopies of postal receipts (Ex.C.9 to Ex.C.10).<br /> 4. On behalf of the opposite parties, reliance has been placed on affidavits (Ex.R.1 to Ex.R.3) of S/Sh. Ravinder Dhull, Manager Legal, Vikas Chander Jain, Surveyor & Loss Assessor & Virender Kumar Goyal, Detective respectively, photocopy of investigation report (Ex.R.4), photocopy of statement of the complainant (Ex.R.5), photocopy of survey report (Ex.R.6), photocopy of loss assessment sheet (Ex.R.7), photocopies of photographs (Ex.R.8 & Ex.R.9), photocopy of acceptance letter (Ex.R.10) and photocopy of letter dated 4.8.2007 (Ex.R.11).<br /> 5. We have heard the learned counsel for the parties and gone through the record. Apart from this, we have considered written arguments submitted by the opposite parties.<br /> 6. Fact that car of the complainant was insured is not in dispute. Copy of the insurance policy is Ex.C.2. It had met with an accident. Intimation regarding the accident was given to the opposite insurance company. Sh. Vikas Chander Jain was appointed as Surveyor who has submitted his report dated 2.8.2007, copy of which is Ex.R.6, according to which loss has been assessed to the tune of Rs. 11,821/-. Insurance claim has been repudiated by the opposite parties vide letter dated 4.8.2007, copies of which are Ex.C.7 and Ex.R.11, on the ground that car was being used for commercial purpose, whereas it was insured as private car package insurance.<br /> 7. Mr. Garg learned counsel for the opposite parties argued that opposite parties had deputed Detective Centre (India) (Registered under Govt. of India) to investigate the usage of the vehicle. It has thoroughly investigated the matter and has submitted report, copy of which is Ex.R.4. This report stands duly supported with the affidavit Ex.R.3 of Sh. Virender Kumar Goyal Detective. Complainant has no business except Taxi Service at Bathinda. Even Kilometer reading of the vehicle shows usage of the car as Taxi although it was got insured for private usage and as such, claim has been rightly repudiated. <br /> 8. Mr. Gupta learned counsel for the complainant argued that there is no document or evidence to substantiate the report and the affidavit Ex.R.3 and as such, the repudiation of the claim is illegal and arbitrary.<br /> 9. We have considered respective arguments. Onus to prove that repudiation of the claim is justified is upon the opposite parties. For rejecting the claim, they are relying upon the report, copy of which is Ex.R.4 and the affidavit of Sh. Virender Kumar Goyal Detective. Conclusion part of this report reads as under :-<br /> “Taking the physical visit to Individual, Inquiries made from neighbours, one other vehicle Indica number PB-03-K-4343 owned by him, heavy Kilometre reading of Quallis and Indica Car the Insured has no occupation at Bathinda except driving/plying the vehicles as Taxi are the clear evidence. He is the resident of Village Chormaar at Sirsa (Haryana) and had migrated to Bathinda due to some enmity. His son Kulwant Singh also possess the LTV License and is not employed anywhere. He is married and have a baby child also. He usually drive one vehicle as taxi and other vehicle is driven by Karamjit Singh to feed the family and pay the installments of both the vehicles amounting to Rs. 9200 + 4900 for car = 14100/- Per month. We have also made the inquiries from Mohalla and did not found any land or business run by him. He has got repaired the vehicle. Because the vehicle is subject plies as taxi having private number the claim is not maintainable as per rules and Policy terms and conditions and stands “No Claim”. <br /> 10. Justification of repudiation of claim should be decided on the basis of the evidence. Claim cannot be repudiated merely on the basis of the investigation report and the affidavit filed by the Investigator as report of the Investigator is no report. In this view of the matter, we get support from the observations of the Hon'ble State Commission, Madhya Pradesh, Bhopal in the case of Narendra Kumar Jain Vs. Oriental Insurance Co. Ltd.-2003(1)CPR-318. In this case, Detective Centre (India) has mentioned that inquiries were made from the neighbours. The names of the neighbours are not known. Their statements have not been recorded. Mere Kilometer reading of the vehicle in question cannot prove its use as Taxi. Heavy Kilometer reading may be due to various reasons. Even private car can be used for long distance destinations and that too, very often. Names of the residents of the locality from whom inquiries were made are not known. Investigator did not deem it fit to record their statements. Complainant has landed property in the area of village Chormaar from which he is earning Rs. 80,000/- on contract basis as is evident from Ex.R.5. In the report Investigator has mentioned that complainant is resident of village Chormaar and has migrated to Bathinda. This itself is no ground for him to hold that car was being used as Taxi. No material document or evidence is on the record to support the conclusions of the Investigator except his bald affidavit. Investigator is generally remunerated person. He tries to favour the party who deputes him for the purpose. In the absence of any cogent evidence, his conclusion that car was being used as Taxi or for commercial purpose, cannot be accepted. Complainant in his affidavit Ex.C.1 has stated that he has stated in so many words that car was never used by him for commercial purpose or as Taxi and that it was being used by him as his own car for his personal requirements.<br /> 11. In view of our forgoing discussion, we have no hesitation in concluding that there is no cogent and convincing evidence of the opposite parties to prove the usage of the car for commercial purpose or as Taxi. Accordingly, repudiation of the claim on its basis is certainly illegal, unjustified and arbitrary. Hence, rejection of the claim on the basis of the letter dated 4.8.2007, copy of which is Ex.C.7, is set-aside leading to deficiency in service on the part of the opposite parties.<br /> 12. Complainant claims that a sum of Rs. 58,068/- has been spent by him for repair of the damaged car. For this, he has proved on record photocopy of the receipt (Ex.C.3) dated 20.7.2007 of Modi Maruti Centre for Rs. 46,968/-. Other copies of three receipts of Rs. 3,600/-, Rs.6,500/- and Rs.1,000/- are of Sharma Maruti Garage. In support of them, there are affidavits Ex.C.11 to Ex.C.13 of S/Sh. Som Nath, Sharanjit Singh and Harmeet Kumar respectively. According to Sh. Som Nath, a sum of Rs.3,600/- was received by him from the complainant on account of repair of the car. Sh. Sharanjit Singh states that Rs. 1,000/ were received by him on 20.7.2007 for denting and painting of the damaged car. Statement of Sh. Harmeet Singh is to the effect that Rs. 6,500/- were paid to him by the complainant on 20.7.2007 for denting and painting of the car. Another receipt Ex.C.14 is of Modi Maruti Centre regarding the receipt<br /> <br /> of Rs. 46,968/- from the complainant. Contention of the learned counsel for the complainant is that complainant is entitled to Rs. 58,068/- spent by him as car was comprehensively insured for a sum of Rs. 2,55,625/-.<br /> 13. Mr. Garg learned counsel for the opposite parties argued that complainant is not entitled to this amount. In case liability of the opposite parties is fastened, the same is to the extent of Rs. 11,821/- assessed by Sh. Vikas Chander Jain, Surveyor, copy of whose report is Ex.R.6 and affidavit is Ex.R.2.<br /> 14. Thoughtful consideration has been given by us to these rival contentions. Admittedly, the vehicle is of the manufacture year of 2002 as is clear from Ex.C.2 and Ex.C.6. Receipts Ex.C.3 to Ex.C.6 and Ex.C.14 have been issued by private Maruti Centre/Garage. They are not the authorised dealers of the Toyota Quallis car. No depreciation has been shown to have been considered by the complainant while claiming the amount of Rs. 58,068/-. To the contrary, Sh. Vikas Chander Jain has assessed the loss at Rs. 11,821/- after applying depreciation and other provisions as per terms and conditions of the policy and India Motor Tariff. Depreciation has been charged @ 50% on non metallic and 35% on metallic parts. Apart from this, it is also worth mentioning that complainant has given consent for assessment of the loss to the tune of Rs. 11,821/- as is clear from the copy of the consent letter Ex.R.10. Observations have also been made by the Surveyor regarding the consent in his report, copy of which is Ex.R.6. Complainant cannot wriggle out of the situation by saying that he is entitled to claim Rs. 58,068/-. Evidence does not establish undue influence, coercion and fraud in obtaining consent letter, copy of which is Ex.R.10. No substantiative objection has been brought to our notice or has been raised against the report of the Surveyor which is an important document. It cannot be rejected without sufficient ground and reasoning. For this, we are fortified by the observations made in the authorities New India Assurance Co.<br /> <br /> Ltd. Vs. Kamal Nayan-2007(1)CLT-112, National Insurance Co. Ltd. and others Vs. Aleyamma Verghese and others-2006(2)CLT-349, United India Insurance Co. Ltd. Vs. Jadhav Kirana Stores-2005(3)CLT-644 and Ajay Gupta, Proprietor, M/s. Punjab Plywoods Vs. Manager, Allahabad Bank and others-2001(2)CLT-55. Accordingly, we accept the loss of the vehicle as has been assessed by the Surveyor.<br /> 15. Now question arises as to which relief should be accorded to the complainant. In view of our forgoing discussion, direction deserves to be given to the opposite parties to pay Rs. 11,821/- to the complainant alongwith interest @ 9% P.A from 15.10.2007 (The date calculated on expiry of three months period from the date of intimation of the accident, a period required to process the claim in an effective manner in normal course) till realization. Complainant is also craving for compensation of Rs. 20,000/- for mental tension, agony and harassment. There is no case to allow it in the face of the relief going to be accorded as above, particularly in view of the authority in the case of Life Insurance Corporation of India Vs. Miss Bhupinder Kaur(Minor) and others-2000(2)CLT-646 wherein Hon'ble State Commission of Punjab held that interest is not granted within the contract between the insured and insurer, but within the provisions of section 14(1)(d) of the Act on deficiency in rendering service being established for compensating the complainant. Held accordingly.<br /> 16. In the result, complaint is allowed against the opposite parties with costs of Rs. 1,500/-. Opposite parties are directed to do as under :-<br /> ( i ) Pay Rs. 11,821/- to the complainant alongwith interest @ 9% P.A from 15.10.2007 till payment.<br /> ( ii ) Compliance within 30 days from the date of receipt of copy of this order.<br /> 17. Copy of this order be sent to the parties free of cost. File be also<br /> consigned.<br /> <br /> Pronounced (Lakhbir Singh)<br /> 10.3.2008 President<br /> <br /> <br /> (Hira Lal Kumar)<br /> Member<br /> <br /> <br /> (Dr.Phulinder Preet)<br /> Member <br /> <br /> 'bsg' <br /> <br /> <br /> <br /> <br />