Punjab

StateCommission

FA/12/1200

Kulwant singh - Complainant(s)

Versus

ICICI Lombard General Insurance Company Ltd. - Opp.Party(s)

Rajesh K. Sharma

18 May 2015

ORDER

                                                               FIRST ADDITIONAL BENCH

 

STATE  CONSUMER  DISPUTES  REDRESSAL  COMMISSION, PUNJAB

          SECTOR 37-A, DAKSHIN MARG, CHANDIGARH.

                                     

                   First Appeal No.1200 of 2012

 

                                                          Date of Institution: 10.09.2012  

                                                          Date of Decision : 18.05.2015

 

Kulwant Singh S/o Sh. Hari Singh, r/o Village Jalalpur, Tehsil Amloh, District Fatehgarh Sahib (Pb).                                                                                                                                                                                                                                                                                                                                                …..Appellant/Complainant        

 

                                      Versus

 

 

ICICI Lombard General Insurance Company Limited, SCO No.2425, Ist Floor, Sector 8-C, Madhya Marg, Chandigarh through its Manager

 

                                                          …..Respondent/Opposite Party

 

         

First Appeal against order dated 26.07.2012 passed by the District Consumer Disputes Redressal Forum, Fatehgarh Sahib.

Quorum:-

 

 

          Shri J. S. Klar, Presiding Judicial Member.

          Shri. Vinod Kumar Gupta, Member

          Shri Harcharan Singh Guram, Member

 

Present:-

 

 

          For the appellants            :         Sh. Rajesh K.Sharma, Advocate

          For the respondent          :         Sh. Puneet Tuli, Advocate.

 

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

 

J.S KLAR, PRESIDING JUDICIAL MEMBER :-

         

          The appellant (the complainant in the complaint) has directed this appeal against the respondent of this appeal (the opposite party in the complaint), challenging  order dated 26.07.2012 of Consumer Disputes Redressal Forum Fatehgarh Sahib, dismissing the complaint of the complainant. The instant appeal has been preferred against the same by complainant now appellant.

2.      The complainant Kulwant Singh has filed the complaint U/s 12 of the Consumer Protection Act, 1986 (in short, "the Act") against the OPs on the averments that complainant is registered owner of truck bearing no.PB-23G-0445 and complainant approached the OP to insure his truck and agent of the insurance company came to the house of the complainant at village Jalalpur Tehsil Amloh District Fatehgarh Sahib and got his truck insured, vide insurance policy no.3003/54544549/01/000, valid with effect from 15.07.2009 to 14.07.2010. The truck of the complainant met with a road accident on 25.04.2009 in the area of P.S Chamkaur Sahib District Roopnagar. The complainant intimated the OPs regarding the above-said accident. Spot survey was conducted by the Surveyor, who was deputed by the OP. On receipt of the intimation, all necessary documents were submitted to the OP by the complainant with the insurance claim. The complainant had to pay Rs. 2 lac on the repair of the truck from his own truck by taking loan. The complainant  has, thus, filed the complaint directing the OP to pay the amount of Rs.2 lac to the complainant along with interest @ 24% p.a, besides costs of litigation and compensation for mental harassment.

3.      Upon notice, OP appeared, filed written reply and contested the complaint of the complainant by raising preliminary objections that the complaint is barred by time, in as much as the accident took place on 25.04.2009 and claim was repudiated, vide letter dated 25.02.2010, whereas instant complaint has been filed on 07.05.2012, which is beyond the period of the limitation. The Consumer Forum has no territorial jurisdiction to try the complaint. The complainant is himself guilty of his own act and conduct in not supplying the requisite documents to the OP. The complaint is false, frivolous and vexatious in nature. On merits, it was averred in written reply by the OP that vehicle of the complainant was insured with the OP, vide insurance policy no. 3003/54544549/00/00 for the period 15.07.2008 under the category of Goods Carrying Package Policy and all the terms and conditions were supplied to the complainant,  It was further submitted that after getting information regarding accident in question, the OP allotted the claim No.MOTO1101234 to the complainant by appointing Engineer Dinesh K. Verma and Company, IRDA approved Surveyor and Loss Assessor for assessing the loss caused to the vehicle of the complainant. The surveyor visited the M/s Kartar Body Building G.T Road Sirhand for inspecting the damaged vehicle and assessed the loss to the tune of Rs. 1,48,500/- as per the terms and conditions of the policy. The Surveyor asked the complainant to provide documents like claim form, original estimate, original invoice, payment receipt, proof of release, policy cover note, driving licence copy, R.C Copy and load challan copy.  The complainant had not provided the loan challan copy despite repeated requests and reminders of the OP. Thus, claim of the complainant was repudiated, vide letter dated 25.02.2010. Any deficiency in service on the part of OP was vehemently denied by the OP and the OP prayed for dismissal of the complaint.  

4.      The complainant tendered in evidence the affidavit of complainant Kulwant Singh Ex.CW-1/A, copy of Certificate-cum-policy schedule Ex.C-1, copy of invoice Ex.C-2, copy of legal notice Ex.C-3, copy of postal receipt Ex.C-4, copy of acknowledgement Ex.C-5. As against it, OP tendered in evidence affidavit of Inderjit Singh Manager, (Legal) ICICI Lombard/OP Ex.RW-1, copy of Standard From for Commercial Vehicles Package Policy Ex.R-2, copy of letter dated 25.02.2010 addressed to complainant by OP Ex.R-3, copy of Certificate cum Policy Schedule Ex.R-4, copy of survey report Ex.R-5, copy of claim form Ex.R-6.  On conclusion of evidence and arguments, the District Forum, Fatehgarh Sahib, dismissed the complaint of the complainant by virtue of order dated 26.07.2012. Dissatisfied with the order of the District Forum, Fatehgarh Sahib, the instant appeal has been preferred against the same by the complainant now appellant in this appeal.

5.      We have heard learned counsel for the parties and have also gone through the record of the case in this appeal. The District Forum dismissed the complaint of the complainant primarily on the ground that it has not been filed within two years from the date of commencement of the cause of action. The complaint was held to be barred by time and hence it was dismissed under Section 24-A of the Consumer Protection Act 1986. We have to examine the record of this case to come to the conclusion as to whether complaint is within time or not. The pleadings of both the parties have been duly considered by us on the record.  The affidavit of the complainant is Ex.CW-1/A on the record. He stated in paragraph no.9 of the affidavit that OP took him off on one pretext or the other without paying even a single penny to him and hence they are guilty of deficient service. Ex.C-1 is the certificate-cum-policy schedule, Ex.C-2 is G.R No.951 dated 20.09.2009 of the truck, Ex.C-3 is legal notice dated 21.02.2012 served by the complainant, Ex.C-4 is postal receipt, Ex.C-5 is the notice, which was received by OPs through its Manager. As against it, OPs tendered in evidence the affidavit of Manager ICICI Ex.RW-1, which is on the record. He stated in this affidavit that accident took place on 25.04.09 and claim was repudiated by the OPs, vide letter dated 25.02.2010 or present complaint was filed on 07.05.2012, which is beyond period of limitation. Ex.R-2 is copy of ICICI Lombard General Insurance Company, Ex.R-3 is letter dated 25.02.2010 demanding certain documents, Ex.R-4 is survey report, Ex.R-6 is claim form.

6.      From perusal of record  and hearing respective submissions of counsel for the parties, we conclude that accident took place on 25.4.09 in this case. The OP repudiated the contract of insurance, vide letter dated 25.02.2010. The instant complaint was filed on 07.05.2012 by the complainant before District Forum Fetehgarh Sahib.

7.      The sheet-anchor of the case of the OPs is  the letter of repudiation Ex.R-3, Ex.R-3 is dated 25.02.2010 and digit 10 of the year is overwritten on it. This document has been produced from the custody of the OP and digit of the year on it is overwritten. Letter of repudiation Ex.R-3 is also overwritten on the point pertaining to year by the OP and document has been produced from the custody of the Op. Even otherwise, there is nothing on the record to prove that this repudiation was brought to the knowledge of the complainant. There is no postal receipts on the record to prove that this letter was sent to the complainant and quite possible, as argued by the counsel for complainant now appellant, that this letter was kept in the office and used later on by the OP without sending it to the complainant. The cause of action was pending till the termination of the contract of insurance and the time when it was brought to the knowledge of the complainant. There is nothing on the record that Ex.R-3 was sent to the notice of the complainant and digit 10 of the year is also overwritten on it. This circumstance go against the case of the OP. Consequently, cause of action cannot be set to be finalized one till the pendency of the insurance claim. The District Forum has not appreciated the controversy in the proper perspective. The order of the District Forum Fatehgarh Sahib is  not sustainable and is set aside in appeal by holding the complaint to be  within time.

8.      As a result of our above discussion, we set aside the order of the District Forum Fatehgarh Sahib dated 26.07.2012 and accept the appeal and thus, remand this case to District Forum Fatehgarh Sahib for its decision on the merits of the case afresh in accordance with law, taking the complaint to be within time.

9.      Both parties are directed to appear before the District Forum Fatehgarh Sahib on 15.07.2015. In case, the parties could not get the due notice of this date before District Forum, then District Forum shall summon them accordingly to appear before it.

10.    Arguments in this appeal were heard on 12.05.2015 and the order was reserved. Now the order be communicated to the parties.

11.    The appeal could not be decided within the statutory period due to heavy pendency of court cases.

 

                                                                          (J. S. KLAR)

                                                             PRESIDING JUDICIAL MEMBER

 

                                                               (VINOD KUMAR GUPTA)

                                                                         MEMBER

                       

                                                              (HARCHARAN SINGH GURAM)

                                                                            MEMBER

 

May 18  2015.                                                                

(ravi)