BEFORE THE DISTRICT CONSUMER DISPUTES
REDRESSAL FORUM, JALANDHAR.
Complaint No.99 of 2017
Date of Instt. 06.04.2017
Date of Decision:19.06.2018
M/s S. S. Traders, situated at Village Malko, Tehsil and District Jalandhar through its Proprietor Gurdeep Kaur w/o S. Rashpal Singh.
..........Complainant
Versus
1. M/s Cholamandlam MS General Insurance Company Ltd., Issuing Office: 204, 2nd Floor, G. T. Road, District Jalandhar, Punjab, through its Branch Manager.
2. M/s Cholamandlam MS General Insurance Company Ltd., Regional Office- 2nd Floor, “Dare House” No.2, NSC Bose Road, Chennai-600001 through its Regional Manager.
3. M/s Raga Motors Pvt. Ltd., G.T. Road, Paragpur, Jalandhar through its Managing Director.
….….. Opposite Parties
Complaint Under the Consumer Protection Act.
Before: Sh. Karnail Singh (President)
Smt. Harvimal Dogra (Member)
Present: Sh. BS Kahlon, Adv Counsel for the Complainant.
Sh. AK Gandhi, Adv Counsel for the OP No.1 and 2.
Sh. VK Singla, Adv Counsel for the OP No.3.
Order
Karnail Singh (President)
1. This complaint is filed by the complainant, wherein alleged that on 11.10.2016, the complainant insured his vehicle Jeeto make Mahindra & Mahindra Company Ltd., bearing registration No.PB-08-DG-6029 from the OP No.1, vide motor vehicle insurance cover note No.9797030 for a period of one year commencing from 11.10.2016 and valid upto 10.10.2017 and also paid a sum of Rs.12,633/- as premium. As per the insurance agreement, in the event of loss or damage of the above said vehicle during the validity of the policy, the OPs will pay the whole expenses for repair etc. That unfortunately, on 09.01.2017 at about 08:00 AM, when the above said vehicle was being driven by the driver, a rod adjusted in the lower part of the engine somehow was broken. Thereafter, the husband of the complainant contacted the OP No.3 and then said vehicle was picked up by employee of OP No.3 by toeing it. The complainant and her husband immediately intimated to the OPs and thereafter, surveyor of company conducted thorough survey of the vehicle. The surveyor of the OP No.1 and 2 told to the husband of the complainant that he will forward the file of claim of the vehicle.
2. That the said vehicle is lying with the OP No.3 for the last two months for its repair. The husband of the complainant had contacted numerous times with surveyor as well as the OPs, but till date the OPs did not pay any heed to the genuine request of the husband of the complainant rather lingering the matter on one pretext or the other. The said vehicle is very useful for day to day business affairs of the complainant and due to non availability of the said vehicle, the complainant has to suffer financial losses, whereby the complainant has to take the vehicle on high rent for carrying the goods from her godown situated at Village Malko, Jalandhar to her shop at Nakodar Road, Jalandhar. The OP No.2 and 3 in connivance with each other, intentionally and deliberately dilly delaying the matter on one pretext or the other and refused to listen anything, meaning thereby the OPs have cheated and harassed the complainant and it amounts deficiency in service and unfair trade practices on their part, for which the OPs are liable. By this act of the OPs, the complainant has suffered great mental agony, harassment and financial as well as business losses, for which the OPs are liable for the same. Under these compelling circumstances, the complainant got issued a legal notice through registered post on the OPs through his counsel on 08.03.2017 calling upon the OPs to repair the said vehicle, which is covered under the insurance policy and to hand over the same after its repair to the complainant and to make a claim in favour of the complainant within 7 days of the receipt of this legal notice. Despite receipt of the legal notice, the OPs till date have neither repaired the vehicle nor paid the amount of claim and even not replied to the legal notice and hence, this complaint filed with the prayer that the OPs may be directed to repair the said vehicle, which is covered under the insurance policy and to handover the same after its repair to the complainant and further OPs be directed to pay an amount of Rs.1,00,000/- as compensation on account of loss of business affairs due to take of vehicle on high rent for carrying the goods from goodown situated at Village Malko, Jalandhar to shop at Nakodar Road, Jalandhar and also for causing mental harassment to the complainant and further OPs be directed to pay litigation cost of Rs.15,000/-.
3. Notice of the complaint was given to the OPs and accordingly, OP No.1 and 2 filed their joint written reply and contested the complaint by taking preliminary objections that the present complaint is false, vexatious and has been filed with a malafide intention to harass the OP No.1 and 2 by misusing the process of law and to avail undue advantages. It is an attempt to waste the precious time of this Forum. It is further alleged that the present complaint is not maintainable against the OPs rather the same is liable to be dismissed. The claim of the complainant has already repudiated by the OPs No.1 and 2 and intimation regarding the same was sent to the complainant, vide letter dated 13.03.2017, through speed post by the OPs No.1 and 2. So, no cause of action has arose against the OP No.1 and 2 to file the present complaint. Moreover, as per the record the accident was took place on 13.01.2017 and the intimation regarding the accident was given to the answering OPs on 08.02.2017 i.e. with the delay of approximately 25 days from the accident, in violation of conditions No.1 and 9 of the insurance policy. So, the present complaint is liable to be dismissed in the light of the violation of the terms and conditions of the insurance policy. It is further averred that the complainant has not come before this Forum with clean hands rather he himself guilty of misrepresentation and suppression of material facts. The intimation regarding the accident of the vehicle was given after the 25 days in breach of the terms and conditions of the insurance policy. So, the present complaint is liable to be dismissed. It is further averred that the complainant is estopped by his acts and conducts from filing the present complaint. The complainant was failed to clarify the reasons for late intimation regarding the accident to the OPs. So, the complainant cannot be allowed to take the benefit of its own wrong. It is further alleged that no cause of action has been arose against the answering OPs to file the present complaint as the claim of the complainant has already been repudiated by the OP No.1 and 2 and intimation regarding the same was sent to the complainant by the OP No.1 and 2 through letter dated 13.03.2017. So, the present complaint is liable to be dismissed and further averred that the present complaint is bad for mis-joinder and non-joinder of necessary parties. It is further averred that the complaint contains intricate and complicated questions of facts and law and voluminous evidence is required by the Forum to reach at the just and final conclusion and thus, the complaint should be relegated to its remedy before the Civil Court of competent jurisdiction. On merits, it is admitted that the complainant got insured his vehicle from OP No.1 and further alleged that the intimation in regard to incident was given to the OP with the delay of approximately 25 days, which is clear cut violation of the conditions No.1 and 9 of the insurance policy, therefore, the complainant is not entitled for the relief and thus, the complaint of the complainant is liable to be dismissed and the other allegations as made in the complaint are categorically denied and lastly submitted that the complaint of the complainant is without merits and the same may be dismissed.
4. OP No.3 filed its separate reply and contested the complaint by taking preliminary objections that the present complaint is not maintainable and further alleged that the complainant has not come to the Forum with clean hands and is guilty of suppressing the true and material facts. It is further alleged that the complainant has got no locus-standi or cause of action to file the present complaint against the answering OP and even the complainant is estopped from filing the present complaint by its own acts, conduct, admissions, omissions and acquiescence even the complaint is bad for mis-joinder of parties. On merits, it is admitted that the complainant himself approached to the answering OP for picking up the vehicle on 13.01.2017 for repair and accordingly, the vehicle of the complainant was picked up by the answering OP and brought to its workshop for repairing the same and accordingly, estimate of repair was supplied to the complainant, but the complainant did not give any approval for repair by paying or undertaking to pay the required expenses/charges etc. to secure the payment for required repairs as it involves spare parts also, but the complainant neither made any payment nor undertook to pay required expenses etc for doing the necessary repair and the vehicle is lying as it is occupying space unnecessarily at workshop of the answering OP. The other allegations as made in the complaint are categorically denied and lastly submitted that the complaint of the complainant is without merits and the same may be dismissed.
5. In order to prove the case of the complainant, the proprietor of the complainant firm namely Gurdeep Kaur tendered into evidence her own affidavit Ex.CA along with some documents Ex.C-1 to Ex.C-7 and also tendered the affidavit of Rashpal Singh as Ex.CB and then closed the evidence.
6. Similarly, counsel for the OP No.1 and 2 tendered into evidence affidavit Ex.OP/A along with documents Ex.OP1 to Ex.OP4 and the evidence of the OP No.1 and 2 closed by order on 08.01.2018 and then counsel for the OP No.3 tendered into evidence affidavit Ex.OP3/A and closed the evidence.
7. We have heard the learned counsel for the respective parties and also scanned the file very minutely.
8. Through this complaint, the complainant sought a relief of insurance claim, filed with the OP for deciding the insurance claim of the complainant, which is kept pending by the OP No.1 and 2 from a very long time. OP No.1 and 2 took a plea that the claim of the complainant has been already repudiated by the OP, vide repudiation letter dated 13.03.2017 and copy of the same is placed on the file Ex.OP/1 and intimation regarding the same was sent to the complainant on 13.03.2017 and as such, the complaint of the complainant is liable to be dismissed.
9. The next question raised by the OP No.1 and 2 is that there is a violation of term and condition No.1 and 9 of the insurance policy as the complainant had given intimation regarding the accident on 08.02.2017, whereas the alleged accident occurred on 13.01.2017, means thereby the intimation was given after delay of approximately 25 days and as such, the claim of the complainant have been rightly repudiated by considering the condition No.1 and 9 of the insurance policy.
10. OP No.3, who is a service centre for repairing the car, gave a reply that the car of the complainant was picked up on 13.01.2017 for repair on the request of the complainant and still car is parked in the workshop of the OP No.3 and the same has not been repaired for want of approval or undertook from the complainant to pay the required expenses and as such, there is no deficiency in service and negligence on the part of the OP No.3.
11. After considering the over all circumstances, we find that there is no deficiency or negligence on the part of the OP No.3 because the car of the complainant is still stand there for repair purpose and until the approval is not given by the complainant, then how the OP No.3 can start the work of repair, for that purpose, we can refer a document Ex.C-3 of the OP No.3 Raga Motors Pvt. Ltd known as delivery challan dated 11.10.2016, which is signed by the official of the Raga Motors Pvt. Ltd, but undertaking thereon is not having the signature of the complainant, copy of the same as referred above Ex.C-3. So, it means that there is no fault on the part of the OP No.3, therefore, complaint of the complainant qua OP No.3 is without merits and the same is dismissed.
12. Coming to the claim of the complainant qua OP No.1 and 2, for that purpose, the factum in regard to purchase of insurance policy from the OP No.1 and 2 is not in dispute and even it is also admitted by the OP No.1 and 2 in its reply that the intimation in regard to accident was given by the complainant on 08.02.2017 along with his claim, but the claim of the complainant have been repudiated, vide repudiation letter Ex.OP/1 dated 13.03.2017, for the reason that there is a violation of condition No.1 and 9 of the insurance policy. We are of the considered opinion that the plea taken by the OP No.1 and 2 that there is a violation of condition No.1 and 9, but in order to prove these facts, the OP has to bring on the file the said term and condition, but for the best known reason, the OP No.1 and 2 have not brought on the file the said term and condition and in the absence of said term and condition, how we can extract the true version of condition No.1 and 9, so, in the absence of said term and condition, we can conclude without any hesitation that the OP has not intentionally and willfully brought on the file the said terms and condition and as such, adverse inference is drawn against the OP No.1 and 2 and as such, we find that the claim of the complainant has been wrongly repudiated by the OP No.1 & 2.
13. Further, we have also considered the plea of the OP No.1 and 2 that there is a approximately 25 days of delay for intimation of the said accident, but in order to prove these facts, the OP has to bring on the file the intimation report of the complainant, where from we can ascertain that the intimation was given by the complainant on 08.02.2017, but the said intimation form and claim form has not been brought on the file by the OP No.1 and 2 for the best known reason. So, from all the angles, the plea raised by the OP No.1 and 2 is not established. So, with these observations, we are of the opinion that the complainant is entitled for the relief as claimed.
14. In the light of above detailed discussion, the complaint of the complainant is partly accepted and OP No.1 and 2 are directed to make the payment of repair charges of the vehicle in question to the complainant and further OP No.1 and 2 are directed to pay compensation of Rs.15,000/- for mental tension and harassment to the complainant and also directed to pay litigation expenses of Rs.5000/-. The entire compliance be made within one month from the date of receipt of the copy of order. This complaint could not be decided within stipulated time frame due to rush of work.
15. Copies of the order be supplied to the parties free of cost, as per Rules. File be indexed and consigned to the record room.
Dated Harvimal Dogra Karnail Singh
19.06.2018 Member President
