Punjab

Fatehgarh Sahib

CC/12/140

Kulwant Singh - Complainant(s)

Versus

Manager,ICICI Lombard - Opp.Party(s)

Sh.Ashwani Joshi

06 Apr 2016

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, FATEHGARH SAHIB.

Consumer Complaint  No. 140 of 2012

                                           Date of institution : 07.05.2012                                             Date of decision    : 06.04.2016

Kulwant Singh son of Hari Singh R/o village Jalalpur, Tehsil Amloh, District Fatehgarh Sahib.

……..Complainant

Versus

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

…..Opposite Party

Complaint Under Sections 12 to 14 of the Consumer Protection Act.                                               

Quorum

Sh. Ajit Pal Singh Rajput, President                                 Smt. Veena Chahal, Member                                                  Sh. Amar Bhushan Aggarwal, Member

Present :  Sh.S.K. Joshi, Adv. counsel for the complainant.                                Pt. Narinder Kumar, Adv.Cl. for Opposite Party.

 

 ORDER

 

By Ajit Pal Singh Rajput, President

                      The present complaint has been remanded back by Hon'ble State Consumer Disputes Redressal Commission, Punjab Chandigarh for deciding the same on merits of the case, afresh in accordance with law, taking the complaint to be within limitation.  The brief facts of the complaint are as under:-   

2.                   The complainant, Kulwant Singh, who is registered owner of the truck bearing No. PB-23G-0445, got insured the said truck from the opposite party(hereinafter referred as "OP") through agent of the Company, who visited the house of the complainant at village Jalalpur, Tehsil Amloh, District Fatehgarh Sahib, vide insurance policy No.3003/54544549/01/000, which was valid from 15.07.2009 to 14.07.2010.  On 25.04.2009 the vehicle in question met with a road accident in the area of P.S.Chamkaur Sahib, District Roopnagar. The complainant immediately informed the OP regarding the said accident. The OP appointed a surveyor, who conducted the spot survey. All the necessary documents were submitted by the complainant in a claim lodged by him vide No. MOT01101234. The complainant had to spend Rs.2 Lakh on the repair of the truck by taking loan.  Thereafter, the complainant many times requested the OP to pay the claim but no positive response had been given by the OP nor the claim was repudiated by the OP.  The complainant also served a legal notice upon the OP but in vain. Hence, this complaint for directing the OP to pay the claim amount of Rs.2,00,000/- and Rs. 2,00,000/- as compensation for harassment, metal agony and loss or livelihood and wastage of time being suffered by the complainant.

3.                   The complaint is contested by the OP, who filed the reply. In reply to the complaint the OP raised certain preliminary objections, inter alia, that the present complaint is time barred; this Forum has no territorial jurisdiction to try this complaint; the complainant is himself guilty of his own act and conduct in not supplying the requisite documents to the OP and the complaint is false, frivolous and vexatious in nature. As regards to the facts of the complaint, OP stated that after getting the information regarding the accident, it allotted the claim No.MOT01101234 to the complainant and appointed Er. Dinesh K. Verma and Company, IRDA approved surveyor and loss assessor for assessing the loss caused to the vehicle in the said accident. The surveyor assessed the loss to the tune of Rs.1,48,500/- as per terms and conditions of the policy.  The surveyor asked the complainant to provide certain documents, which are necessary for releasing the claim of the complainant. But the complainant did not provide the load challan copy despite repeated requests and reminders. Accordingly, the claim of the complainant was repudiated, vide letter dated 25.02.2010. There is no deficiency in service on the part of the OP. After denying the other averments made in the complaint, OP prayed for dismissal of the complaint.

4.                   In order to prove the case the complainant tendered in evidence his affidavit Ex. CW1/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 and closed the evidence. In rebuttal the OP tendered in evidence affidavit of Inderjit Singh Manager, Ex. RW-1,  copy of standard form for commercial vehicles package policy Ex. R-2, copy of letter dated 25.02.2010 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 and closed the evidence.

5.                   The ld. counsel for the complainant has at the outset bought into our notice the observations made by Hon’ble State Commission in para no.7, the relevant part of the same is reproduced; "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 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". The ld. counsel pleaded that the surveyor in its report i.e Ex.R-5 in column No. 7 has provided the details with regard to load and there is no such report that the said vehicle was overloaded at the time of the accident. He further stated that the plea of the OP, that the complainant failed to provide the details of the load cannot be considered. He argued that the claim of the complainant was repudiated in an arbitrary manner and without intimation to the complainant thus the OP has acted negligently while rejecting the claim and the complainant deserves to be compensated for the act and conduct of the OP.

6.                   On the other hand, the ld. counsel for the OP has stated that the OP has placed enough material on record to prove the case. He submitted that the complainant by taking advantage of the observations of Hon’ble State Commission is misinterpreting the same in order to mislead this Forum. The ld. counsel pleaded that since the complainant was unable to provide any receipt or proof with regard to the load thus the claim had to be repudiated in view of the Clause 4(a) of the terms and conditions of policy i.e Ex.R-2. The ld. counsel argued that no illegality had been committed by the OP in repudiating the claim of the complainant and no deficiency of service has been committed by the OP thus the present complaint be dismissed.

7.                   After hearing the Ld. Counsel for the parties and going through the pleadings, evidence produced by the parties and the oral arguments and written submissions, we are of the view that it is an admitted fact that the said vehicle had met with an accident. The OP had repudiated the claim of the complainant, vide letter dated 25.02.2010 i.e Ex.R-3, whereby the reason for repudiation of the claim is stated to be; non supply of information and receipt with regard to load at the time of the accident. On perusal of surveyors report i.e Ex.R-5, it has come to our notice that in column No.7 “LOAD CHALLAN” the surveyor has mentioned the entire details of the load and it has not been stated in the report that the said vehicle was found or proved to be over loaded. Hence we agree with the findings/report of the surveyor. The Hon’ble State Commission has also observed that the OP had failed to prove on record that the letter of repudiation i.e Ex.R-3 was sent to the complainant. The OP has also failed to place on record any postal receipt or any other material evidence in order to prove that the information with regard to repudiation was intimated to complainant. In view of these facts we have no option then to draw adverse inference. There are number of judgments by Hon’ble Supreme Court and Hon’ble National Commission where adverse inference may be drawn. The Hon’ble National Commission in the case titled as; Ms.Shefali Bhargava Vs Indraprastha Appollo Hospital & Anr,2003(1)CPJ 216 NC, has observed that “where party was in a position to produce evidence, if not produced the same, must suffer from adverse inference”.

8.                   Accordingly in view of our aforesaid discussions, we find force in the submissions made by the ld. counsel for the complainant and in view of the case law titled as; Ms.Shefali Bhargava Vs Indraprastha Appollo Hospital & Anr (Supra).We are of the opinion that the OP had acted negligently while repudiating the claim and also by not supply the repudiation letter thus committed deficiency of service. Hence we accept the surveyors report i.e Ex.R-5 and direct the OP to pay the loss accessed by surveyor i.e Rs.1,48,500/- to the complainant. We also find complainant to be entitled for compensation on account of mental agony amounting to Rs.10,000/- alongwith litigation cost amounting to Rs.5000/-. The OP is directed to comply with the order of this Forum within 45 days from the date of receipt of this order, otherwise OP shall be liable to pay 9 %  interest per annum on the total cost awarded. The present complaint stands partly allowed.

9.                   The arguments on the complaint were heard on 01.04.2016 and the order was reserved. Now the order be communicated to the parties. Copy of the order be sent to the parties free of cost and thereafter the file be consigned to the record room.

Pronounced

Dated:06.04.2016

(A.P.S.Rajput)                           President

 

(Veena Chahal)                         Member

 

      (A.B.Aggarwal)                        Member