DISTRICT CONSUMER DISPUTES REDRESSAL FORUM,<br /> BATHINDA (PUNJAB)<br /> <br /> C.C. No. 3 of 06-01.2009 Decided on : 27-07-2009<br /> <br /> Naresh Kumar S/o Sh. Jagdish Rai, R/o Hospital Road, Maur Mandi, District Bathinda. <br /> .... Complainant<br /> Versus<br /> 1.ICICI Lombard General Insurance Company Limited, Sharma Complex, Ist Floor, Guru Kashi Marg, Corner Power House Road, Bathinda through its Branch Manager.<br /> 2.ICICI Bank Ltd., 100 Ft. Road Chowk, Bibi Wala Road, Bathinda through Branch Manager. <br /> ..... Opposite parties<br /> <br /> Complaint under section 12 of the Consumer Protection Act, 1986<br /> <br /> QUORUM:-<br /> Sh. George, President <br /> Sh. Amarjeet Paul, Member<br /> <br /> For the complainant : Sh. Naresh Garg, Advocate<br /> For the opposite parties : Sh. Vinod Garg Advocate, counsel for <br /> opposite party No.1 <br /> Sh. Sanjay Goyal Advocate, counsel for <br /> opposite party No.2<br /> <br /> O R D E R.<br /> <br /> GEORGE, PRESIDENT:- <br /> 1. Instant complaint has been filed by Sh. Naresh Kumar complainant under section 12 of the Consumer Protection Act, 1986 (Here-in-after referred to as the 'Act') seeking direction from this Forum to opposite parties to pay him the claim amount of Rs.58,942/- alongwith interest @ 18% P.A and Rs. 10,000/- on account of mental agony and pains. He has also claimed Rs. 10,000/- as litigation expenses.<br /> 2. Briefly stated, the case of the complainant is that he is owner of Chevrolet Tavera vehicle bearing registration No. PB-31-F-1500 which was purchased by him after obtaining loan from opposite party No.2 which is the sister concern of opposite party No. 1. The said vehicle is hypothecated with opposite party No.2. He got this vehicle comprehensively insured with opposite party No.1 vide Insurance Certificate No. 3001/54147825/00/000 and Cover Note No. 54147825 for the period from 29.5.2008 to 28.5.2009. Opposite party No. 1 issued the said cover note for the Insured's Declared Value (IDV) of Rs. 5,79,360/-. Insurance policy was not issued to him. As per rules of I.R.D.A and India Motor Tariff, once the I.D.V is fixed, it cannot be changed throughout the policy period and the IDV shall be treated as Market Value throughout the policy period without any further depreciation. On 16.9.2008 at about 7.30 P.M, the above said vehicle met with an accident with Tractor in the area of village Bhai Desa, District Mansa, while complainant and his friends were coming back to their residence at Maur Mandi. At the time of accident, the vehicle was being driven by Pritam Singh driver of the complainant. Intimation of the accident was given to opposite party No. 1 on telephone and the vehicle was shifted at M/s. Padam Motors, Patiala (Authorised dealer and Service Centre of General Motor Chevrolet Tavera manufacturer) under the instructions of opposite party No.1 and under the agreement of cashless insurance. Mr. Vikas Mehandroo, Claim Service Manager of opposite party No.1 and their Surveyor inspected the damaged vehicle at M/s. Padam Motors, Patiala and he directed the above said firm to prepare the estimates. The said firm under the Cashless Insurance Agency Agreement with opposite party No.1, prepared the estimates to the tune of about Rs. 63,389/- including Rs. 25,281/- as labour charges. The original estimates are in the custody of Mr. Vikas Mahendroo of opposite party No.1. The vehicle was repaired under the supervision and directions of Mr. Vikas Mehandroo and their Surveyor. The vehicle is of the model of April, 2007 and it met with an accident in September, 2008 i.e. exceeding one year but not exceeding two years. As per the rules of opposite party No.1 and I.R.D.A, only 10% depreciation is allowed on metal parts, 50% on rubber parts and 30% on fibre glass components, but there is no depreciation on labour charges. Under the Cashless Agreement, the damaged vehicle was to be repaired by the agency of the manufacturer company without any charges and payment was to be made directly to the authorised workshop by opposite party No.1. Opposite party No. 1 did not pay single penny to M/s. Padam Motors and the complainant had to pay Rs. 58,942/- on 29.9.2008 from his own pocket towards repair charges to take delivery of the vehicle. At the time of survey, Mr. Vikas Mehendroo obtained signatures of the complainant on blank claim form, different five/six blank papers, blank vouchers, blank consent form and blank full and final voucher and gave the assurance that the full claim amount would be paid to the workshop directly as the insurance is Cashless Insurance. Complainant asserts that the Surveyor and Mr. Vikas Mehandroo, Claim Service Manager of opposite party No. 1 is under the thumb of Insurance Company and they are to oblige their master i.e. opposite party No. 1 from where they are to obtain business and salary. Complainant alleges that the Surveyor, Mr. Vikas Mahendroo, Claim Service Manager and opposite party No. 1 did not send him the survey report. Complainant approached opposite party No. 1 and requested to pay him the claim amount of Rs. 58,942/-, but to no effect. Opposite parties are service oriented companies and they are supposed to settle the claim within three months. The non-payment of the claim amount has caused mental tension, agony, pains and suffering to the complainant. In these circumstances, he alleges deficiency in service on the part of the opposite parties.<br /> 3. Opposite party No. 1 filed separate reply taking legal objections that the present complaint has been filed by the complainant only to injure the reputation and goodwill of the replying opposite party; intricate questions of law and facts are involved in the present complaint which require voluminous documents and evidence for determination which is not possible in the summary proceedings under the Act; complainant has concealed the material facts and documents from this Hon'ble Forum; complainant has got no locus-standi and cause of action to file the present complaint and complaint is not maintainable in the present form. On merits, It has been admitted that vehicle bearing registration No. PB-31F-1500 was got insured with the replying opposite party for the period 29.5.2008 to 28.5.2009. It has been specifically denied that the policy was a cashless one. Opposite party No. 1 admits that Mr. Gaurav Sood was deputed to conduct the survey and assess the loss who conducted the survey on 17.9.2008 at Padam Motors. Thereafter, complainant submitted the estimate dated 19.9.2008 and retail bill dated 29.9.2008. Accordingly, loss was assessed by the surveyor at Rs. 50,445/- vide survey report dated 6.10.2008. It has been pleaded that Mr. A.P Singh was deputed for conducting investigation regarding usage of the vehicle, who visited the spot of accident, P.S Joga, contacted the owner of Tractor No. PB-04-7626 i.e. Leela Singh of village Burj Rathi, recorded his statement, visited the residence of complainant Naresh Kumar, made discrete inquiries near the spot as well as in Maur Mandi, visited Maur Kalan and recorded statement of Gurmukh Singh and thereafter submitted detailed investigation report dated 4.10.2008. From the investigation report, it is clear that the vehicle was being used for commercial purposes. Therefore, the claim was repudiated vide letter dated 22.11.2008. The complainant has also compromised the matter with the owner of the Tractor involved in the accident and got Rs. 15,000/- from him. The remaining averments made in the complaint have been denied and a prayer has been made for its dismissal with special costs.<br /> 4. Opposite party No. 2 contested the complaint by taking legal objections that complaint is not maintainable; complaint is filed on the basis of false facts and is liable to be dismissed and the vehicle of the complainant is hypothecated with the replying opposite party and he has not foreclosed the loan. An amount of Rs. 3,11,280/- is still due towards him. Therefore, the claim, if any, is liable to be paid to the replying opposite party. On merits, all the allegations to the contrary were not admitted as correct. All the facts narrated in the preliminary objections were reiterated.<br /> 5. Both the parties in order to prove their respective assertions led their respective evidence. Complainant filed his own affidavits Ex.C.1 & Ex.C.3, affidavit Ex.C.2 of Sh. Pritam Singh, photocopy of Certificate-cum-Policy Schedule Ex.C.4, photocopy of registration certificate Ex.C.5, photocopy of driving licence of Pritam Singh Ex.C.6, photocopy of Job Estimate Ex.C.7, photocopy of Proforma Invoice Ex.C.8, photocopy of survey report Ex.C.9, photocopy of Job Estimates Ex.C.10, photocopy of retail bill Ex.C.11, photocopy of letter dated 22.11.2008 Ex.C.12 and photocopy of claim form Ex.C.13. <br /> 6. To controvert the evidence of the complainant, opposite parties tendered in evidence affidavits of S/Sh. Ravinder Dhull, Manager (Legal) of opposite party No.1, A.P Singh, Investigator and Gaurav Sood, Surveyor Ex.R.1 to Ex.R.3 respectively, photocopy of loss assessment sheet Ex.R.4, photocopy of Investigation Report Ex.R.5, photocopies of statements of Sh. Leela Singh and Gurmukh Singh Ex.R.6 and Ex.R.7 respectively, affidavit of Sh. Parbhat Singh, Collection Manager Ex.R.8 and photocopy of account statement Ex.R.9.<br /> 7. We have heard the learned counsel for the parties and gone through the entire record of the case very carefully.<br /> 8. As per admitted facts of the parties Sh. Naresh Kumar, complainant is the owner of Chevrolet Tavera Vehicle registration No. PB-31-F-1500 Model April, 2007 as per registration certificate Ex. C-5, which is hypothecated with opposite party No. 2 and comprehensively insured with opposite party No. 1 w.e.f. 29-05-2008 to 28-05-2009 as per Ex. C-4. This vehicle met with an accident on 16-09-2008 when it was driven by Pritam Singh, driver. After the accident, it was reported to opposite party No. 1 who deputed their surveyor to inspect the vehicle and the surveyor of opposite party No. 1 got estimate of the damaged vehicle from M/s. Padam Motors. The vehicle was repaired and M/s. Padam Motors, an authorised service centre, issued retail invoice in the name of the insured on 29-09-2008 for an amount of Rs. 58,942/- Ex. C-11. It is also admitted fact that as opposite party No. 1 did not make the payment, this amount was paid by the complainant and got his vehicle from M/s. Padam Motors. The opposite party No. 1 later on repudiated the claim of the complainant vide repudiation letter dated 22-11-2008 Ex. C-12 on the sole ground that “the car was used for commercial purposes”. As per survey report, the surveyor of opposite party No. 1 Sh. Gaurav Sood finally assessed the loss of the vehicle vide his report Ex. C-9 to the tune of Rs. 50,445/-.<br /> 9. The case of opposite party No. 1 is that it issued Repudiation letter Ex. C-12 on the basis of investigation of Sh. A P Singh who submitted his investigation report Ex. R-5 on the facts came to his notice through S/Sh. Leela Singh, owner of tractor and Gurmukh Singh who was travelling in the said vehicle when its tyre was punctured as per their statements Ex. R-6 & Ex. R-7.<br /> 10. It was argued on behalf of opposite party No. 1 that because the vehicle was got insured by the complainant as 'private car' whereas it was being used for 'commercial purposes' i.e. for hire or reward purposes, therefore as per terms and conditions of the policy Ex. C-4, (Excepted Terms), the complainant is not entitled for payment of claim. <br /> 11. The perusal of Ex. R-5 a report of Sh. A P Singh, Investigator reveals that vehicle was coming from Mansa and 7-8 passengers were also sitting in the vehicle and after making discreet enquiries, he could get the name and address of Sh. Gurmukh Singh R/o Maur Kalan who was also travelling in the vehicle when its tyre was punctured. He placed on the record statement of Sh. Gurmukh Singh, Ex. R-7, but the opposite party No. 1 has not examined Sh. Gurmukh Singh as a witness. Though Sh. A P Singh in his affidavit Ex. R-2 has stated that he recorded the statement of Sh. Gurmukh Singh and submitted his report but he has not attached the said statement either with his report Ex. R-5 or made the statements of S/Sh. Leela Singh and Gurmukh Singh Ex. R-6 & Ex. R-7 as part of his affidavit. These important documents have been brought on record by tendering the same in evidence. Whether the statements Ex. R-6 & Ex. R-7 placed on record, were infact recorded by Sh. A P Singh, is not proved. The report of Sh. A P Singh, Investigator, solely depends upon the statement of Sh. Gurmukh Singh who has neither appeared nor his statement Ex. R-7 is signed nor attested by Sh. A P Singh. It is also not clear from the record that as to whether Sh. A P Singh was appointed by opposite party No. 1 as Investigator after obtaining proper and prior permission from the Controller of Insurance which is mandatory requirement under Section 64 UMG (3) of Insurance Act, or not. The Insurance company is not definitely empowered to appoint second surveyor and describe him as an Investigator. In this view of the matter, we are fortified by the observations of the Hon'ble State commission, Punjab Chandigarh in the case Jagdamba Inustries Vs. National Insurance Company Limited III(1999) CPJ 131 wherein it has been held that “Investigator was not to act as an appellate authority against the report of the previous surveyor. Further more, such an Investigator/Surveyor was not appointed after taking approval of the Insurance Controller as envisaged under Section 64UM(G)(3) - Deficiency in not settling the claim proved.” <br /> It has been held by the Hon'ble State Commission, New Delhi, in the case Asha Kiran Makhija Vs. Oriental Insurance Co. Ltd., III(2005) CPJ 40 that if vehicle insured as a private vehicle found being used as a taxi at the time of accident, there is violation of policy condition and the claim is to be settled on non-standard basis. Claim cannot be outrightly rejected by the Forum. The Hon'ble State Commission , New Delhi in the case Asha Kiran Makhija Vs. Oriental Insurance Co. Ltd.(supra) has further gone in concluding that in case of any other breach of the warranty/condition of the policy including limitation as to use, the insurer is liable to settle the claim and pay upto 75% of admissible claim. In the present case, the entire claim of the complainant has been repudiated vide letter Ex. C-12 on the ground that the vehicle was being used for commercial purposes on the basis of the report of Sh. A P Singh Ex. R-5 without taking into consideration that non-standard claims are required to be settled as per policy of the Insurance Company. The opposite parties have failed to prove that the vehicle was being used for 'commercial purposes' at the time of accident. Even if, it be presumed for arguments sake that it was being used so, the passengers have no contributory cause which led to the accident. The Insurance policy Ex. C-4 was in force during the time when accident took place. The accident occurred on 16-09-2008. The Surveyor was deputed and he assessed the loss to the tune of Rs. 50445/- but despite survey report, nothing was paid to the complainant and his claim was repudiated on 22-11-2008 on the sole ground that the vehicle was being used for 'commercial purposes' at the time of accident, without any cogent and convincing evidence to this effect. Therefore, we are of the considered view that the opposite parties are liable to pay 75% of the assessed amount of Rs. 50,445/- to the complainant alongwith interest.<br /> 12. Resultantly, the complaint is accepted with no order as to costs and the opposite parties are directed to pay 75% of the assessed amount of Rs. 50,445/- to the complainant alongwith interest @9% per annum from the date of filing of the complaint i.e. 06-01-2009 till the amount is finally paid.<br /> 13. The opposite parties are liable to make the payment of the aforesaid amount to the complainant jointly as well as severally.<br /> Copy of this order be sent to the parties concerned free of costs and the file be indexed and consigned to record room. <br /> Pronounced :<br /> 27-07-2009 <br /> <br /> (George)<br /> President<br /> <br /> <br /> (Amarjeet Paul)<br /> Member