Order by:
Sh.Amrinder Singh Sidhu, President
1. The complainant has filed the instant complaint under section 35 of the Consumer Protection Act, 2019 on the allegations that complainant is owner of vehicle no.PB29X3492. Complainant has insured his vehicle with opposite party no.2, vide policy no.36070031200100000862 valid from 04.06.2020 to 03.06.2021. The said vehicle met with an accident on.20.11.2020 at Budha Pahar, Assam Guavahati. The complainant parked the said vehicle with agency on 12.12.2020. Complainant informed the opposite party regarding said accident through mobile. Thereafter surveyor of the company visited to the accidental place. The complainant alongwith surveyor of the company went to the workshop and estimate was prepared. The said vehicle is fully insured with Opposite Party No.2. At the instance of surveyor the complainant has taken the said vehicle to the workshop where the said vehicle was got repaired. Due information was given to opposite party. Complainant has completed all the formalities. However the complainant went to the office of opposite's parties several times but with no effect. Opposite party no.2 has not made any payment to the opposite party no.1 Thus the complainant suffered a loss Rs.2,00,000/- per month after deducting' all the expenses i.e. driver salary, bank installments, interest etc. and Rs.1,20,000/- per month as net profit. The complainant went to the office of opposite parties several times but with no effect. Due to the aforesaid illegal and unwarranted acts of the opposite parties, the complainant has suffered huge mental tension and agony. Opposite parties were asked many a times to pay the amount of claim, but they have refused to do so. Vide this complaint complainant has sought the following reliefs:-
a) Opposite parties may be directed to pay a sum of Rs.27,50,000/- on account of claim of the insured vehicle bearing. no.PB29X3492 alongwith interest 12% p.a. from the date of claim till its realization.
b) To pay Rs.2,00,000/- per month as damages due to non plying of vehicle and to pay Rs.2,00,000/- as compensation on account of mental tension, agony and harassment to the complainant.
c) To pay Rs.5000/- as litigation expenses.
d) And any other relief which this Commission deem fit and proper in the interest of justice and equity.
2. Opposite Party No.1 appeared through counsel and contested the complaint by filing written reply taking preliminary objections therein inter alia that the present complaint is not maintainable against the opposite party no-1. The complainant has not come to the court with the clean hands and has concealed the material facts from this court. At the very outset the opposite party no.1 denies all the allegations, facts and averments stated in the Complaint filed by Complainant except to the extent it is expressly admitted herein. The non traversal of any paragraph should be read as categorical denial. That the accidental vehicle of complainant came to the service centre/dealership of Opposite Party No.1 and an amount of Rs.1,84,495/- is still pending towards the complainant along with Parking Charges amounting to Rs. 44,250/- is also due up to 31.01.2022. The insurance company of complainant made the payment of Rs1,74,000/- to opposite party no. 1 and parking charges are being charged per day and the same will increase day by day till the period vehicle of complainant is lying parked at the dealership of the opposite Party No.1. Further stated that the Opposite Party No.1 provided its timely services towards the repair of accidental vehicle and accordingly raised its Invoice/ Bill towards the repair charges and out of which as per the terms of insurance policy between the complainant and the insurance company Opposite Party No.2, an amount of Rs. 1,74,000/- was disbursed and the balance amount of Rs. 1,84,495/- + Rs.44,250/- Parking Charges is also due up to 31.01.2022 is payable by the complainant for taking the delivery of the vehicle in question. Inspite of repeated requests complainant did not took the delivery and as such complainant is liable to pay the parking charges for the period vehicle lying parked at the dealership of Opposite Party No.1. The complainant is not making the balance payment towards the repair of the vehicle in question, therefore, the vehicle in question is lying parked at the dealership of the opposite party no.1. The opposite party no.1 has got a legal right of lien to retain the vehicle in question as per section-170 and 171 of Indian Contract Act 1872 being the unpaid bailee for repairing and rendering the necessary services qua the vehicle in question belonging to the complainant. The opposite party no-1 have been regularly requesting the Complainant to clear the pending dues towards the repair of the vehicle in question by making the balance payment but the complainant has failed to do so. The present complaint has been filed by the complainant with malafide intention to harass the opposite party no.1. The vehicle in question has been purchased by the complainant for commercial purposes with a purpose of earning profits/additional income and not for livelihood by means of self-employment, therefore, the complainant is not a consumer within the meaning of the Consumer Protection Act and as such the present complaint is liable to be dismissed. Remaining facts mentioned in the complaint are also denied and a prayer for dismissal of the complaint has been made.
3. Opposite Party No.2 filed written reply taking preliminary objections therein inter alia that this Commission has got no jurisdiction to try and decide the present complaint since there is no deficiency in service or negligence as alleged on the part of answering respondent. The complainant has lodged the claim with the respondent regarding damage of his vehicle bearing registration no. PB-29-X-3492 and immediately on receipt of the claim it was duly registered, entertained and processed. Er. Atul Gupta, Surveyor & Loss Assessor was deputed for survey and assessment of the loss. Er. Atul Gupta, Surveyor & Loss Assessor inspected the vehicle, took photographs, collected documents and he submitted his Motor Survey Report Final dated 24.05.2021 alongwith documents and he assessed the loss of Rs.2,34,000/- subject to terms and conditions of the policy. After receipt of the survey report and investigation report along with documents, the claim file of the complainant was duly scrutinized by the officials of the answering respondent in terms of insurance policy and the complainant was called upon vide registered letter dated 14.06.2021 to submit following documents and clarifications:
i) Loss was occurred on 12/11/2020 but you intimated claim on 15/12/2020 i.e. more than one month after the loss. Please clarify reason for late intimation.
ii) No spot survey was conducted. Please clarify.
iii) Arrange cancelled cheque on the name of the insured.
iv) Arrange final bill.
The complainant has duly received the said letter but even then he has not clarified the said queries and also not submitted the said documents. Thereafter the answering respondent vide registered letter dated 08.07.2021 again requested the complainant to submit the said documents and clarifications but even then the complainant did not bother and not supplied the said documents and information. Thereafter, final reminder vide registered letter dated 10/08/2021 was sent by the answering Opposite Party and the complainant was requested to supply the said documents and information within 7 days, but even then the complainant did not bother. The complainant has duly received the said letters but even after receipt of said letters the complainant has not submitted the said documents and clarification despite repeated reminders. So, there is no deficiency in service on the part of answering Opposite Party and complaint is not maintainable. The insurance policy is contract between insured and the insurer and both the parties are bound by the terms and conditions of the insurance policy. The claim of the complainant is not payable as per terms and conditions of the policy. The present complaint is not maintainable since complicated questions of law and facts are involved which required elaborated evidence both oral and documentary and as such it is only civil court of competent jurisdiction who can tray and decide the present complaint. The complaint cannot be decided by this Commission in a summary manner. The complainant is estopped by his own act and conduct from filing the present complaint since the complainant is not coming to this Commission with clean hands and had concealed the material facts from this Commission. The complainant has alleged in the claim intimation letter that date of loss is 12.11.2020 and in the present complaint he alleged that date of loss is 20.11.2020 but intimation of the loss has been given to the answering Opposite Party on 15.12.2020 and there is much delay in intimation to the claim which is violation of terms and conditions of the policy. The complainant has also got conducted spot survey. The said facts and contradictions clearly reveals that the complainant has not come to the court with clean hands and he has changed date and time of accident reason best known to him. As such present complaint is liable to be dismissed. The complaint is barred u/s 26 of the Consumer Protection Act. The complainant is not consumer as defined in the Consumer Protection Act. Remaining facts mention the complaint are also denied and a prayer for dismissal of complaint has been made.
4. In order to prove his case, complainant has tendered in evidence affidavit of Sh.Kuldeep Singh, Attorney Ex.C1 alongwith copies of documents Ex.C2 to Ex.C14.
5. To rebut the evidence of complainant, ld. counsel for the opposite party no.1 tendered in evidence affidavit of Sh.Vikram Singh, Workshop Manager Ex.Op1/1 along with copies of documents Ex.OP1/2 to Ex.OP1/6. Whereas, opposite party no.2 tendered in evidence affidavit of Smt.Sunita Mahajan, Senior Divisional Manager, The New India Assurance Co. Ltd. Ex.OP2/1, affidavit of Er.Atul Gupta, Surveyor and Loss Assessor Ex.OP2/2 along with copies of documents Ex.R-1 to Ex.R-38.
6. During the course of arguments, ld. counsel for the both the parties complainant as well as opposite parties have mainly reiterated the facts as narrated in the complaint as well as written reply respectively. Ld. counsel for the complainant contended that he is owner of vehicle no.PB29X3492, which was insured with opposite party no.2, vide policy no.36070031200100000862 valid from 04.06.2020 to 03.06.2021. The said vehicle met with an accident on.20.11.2020 at Budha Pahar, Assam Guavahati and complainant informed about the same to opposite party. Thereafter surveyor of the company visited to the accidental place. The complainant alongwith surveyor of the company went to the workshop and estimate was prepared. At the instance of surveyor, the complainant has taken the said vehicle to the workshop where the said vehicle was got repaired. Due intimation was given to opposite party. Complainant has completed all the formalities, but despite that opposite parties failed to make any payment to the opposite party no.1. Ld. Counsel for the opposite party no.1 has repelled the aforesaid contention of ld. counsel of the complainant on the ground that the Opposite Party No.1 provided its timely services towards the repair of accidental vehicle and accordingly raised its Invoice/ Bill towards the repair charges and out of which, insurance company-Opposite Party No.2 has disbursed an amount of Rs.1,74,000/- and the balance amount of Rs. 1,84,495/- + Rs.44,250/- parking charges is also due up to 31.01.2022 and is payable by the complainant for taking the delivery of the vehicle in question. Opposite Party No.1 have been regularly requesting the complainant to clear the pending dues towards the repair of the vehicle in question by making the balance payment but the complainant has failed to do so. Whereas, ld. counsel for the opposite party no.2 contended that on receipt of the claim it was duly registered, entertained and processed. Er. Atul Gupta, Surveyor & Loss Assessor was deputed for survey and assessment of the loss, who submitted his Motor Survey Report Final dated 24.05.2021 alongwith documents and he assessed the loss of Rs.2,34,000/- subject to terms and conditions of the policy. Thereafter, complainant was called upon vide registered letter dated 14.06.2021 to submit following documents and clarifications:
i) Loss was occurred on 12/11/2020 but you intimated claim on 15/12/2020 i.e. more than one month after the loss. Please clarify reason for late intimation.
ii) No spot survey was conducted. Please clarify.
iii) Arrange cancelled cheque on the name of the insured.
iv) Arrange final bill.
The complainant has duly received the said letter but even then he has not clarified the said queries and also not submitted the said documents. Thereafter the Opposite Party No.2 vide registered letter dated 08.07.2021, final reminder dated 10.08.2021 requested the complainant to supply the said documents and information within 7 days, but even then the complainant did not bother and not submitted the said documents and clarification despite repeated reminders.
7. We have perused the rival contentions of ld. counsel for the parties and have also gone through the record. The case of the complainant is that his vehicle met with an accident and opposite parties were duly informed. Thereafter surveyor was appointed and at the instance of surveyor, the complainant got his vehicle repaired. Due intimation was regarding the repair of the vehicle was given to opposite party, but despite that opposite parties failed to make any payment to the opposite party no.1. On this, ld. Counsel for the opposite party no.1 has contended that opposite party no.1 raised its bill towards the repair charges and out of which, insurance company-Opposite Party No.2 has disbursed an amount of Rs.1,74,000/- and the balance amount of Rs.1,84,495/- + Rs.44,250/- parking charges is also due up to 31.01.2022 and is payable by the complainant for taking the delivery of the vehicle in question. We do not agree with the aforesaid contention of ld. counsel of Opposite Party No.1, as they have failed to prove aforesaid contention by way of any cogent and convenience evidence on record. On the other hand, the contention of ld. counsel for the opposite party no.2 is that on receipt of the claim Er.Atul Gupta, Surveyor & Loss Assessor was deputed for survey and assessment of the loss, who submitted his Motor Survey Report Final dated 24.05.2021 alongwith documents and he assessed the loss of Rs.2,34,000/- subject to terms and conditions of the policy. Thereafter, complainant was called upon vide registered letter dated 14.06.2021 to submit following documents and clarifications:
i) Loss was occurred on 12/11/2020 but you intimated claim on 15/12/2020 i.e. more than one month after the loss. Please clarify reason for late intimation.
ii) No spot survey was conducted. Please clarify.
iii) Arrange cancelled cheque on the name of the insured.
iv) Arrange final bill.
The complainant failed to submit the said documents and clarification despite repeated reminders. We do not agree with the first clarification regarding late intimation about the loss and about spot survey. We have perused the document Ex.R19 placed on record by Opposite Party No.2 written by Sh.Kuldeep Singh to New India Assurance Company in which they mentioning the reason for delay in intimation and about spot survey. Moreover other clarifications sought by the Opposite Party No.2 are baseless, these are mere the delaying tactics of the insurance company. Moreover, the Surveyor has already submitted his report regarding the loss of the vehicle, which is on record, which is Ex.R6.
8. With regard to claim as claimed by the complainant on account of repair charges of the insured vehicle, we have perused the detailed Motor (Final) Survey Report Ex.R6 of Er.Atul Gupta in which he has assessed the net liability on repair basis amounting to Rs.2,34,000/-. It has been settled by the Hon’ble Supreme Court of India that the report of the Surveyor cannot be brushed aside without valid reasons. In this context, reference may be made to the judgment of the Hon’ble Supreme Court reported as “Sri Venkateshwara Syndicate v. Oriental Insurance Company Limited, II (2010) CPJ 1 (SC)” in which it was held by the Hon’ble Supreme Court that the report of the Surveyor is to be given due importance and weight. Hon’ble National Commission in case cited as PRADEEP KUMAR SHARMA versus NATIONAL INSURANCE COMPANY, III(2008) CPJ 158 (NC), has been held that “Surveyor Report is an important document and cannot be brushed aside without any compelling evidence to the contrary”. Further in case New Horizon Sugar Mills Ltd. v. United India Insurance Co. Ltd. & Ors, 2003(3) CPR 136 (NC), the Hon’ble National Commission, New Delhi has observed that “report of Surveyor appointed under the provisions of Insurance Act has to be given greater importance.” In M/s Natain Cold Storage & Allied Industries Ltd. v . Oriental Insurance Co Ltd. 2003(3) CPR 114 (NC) it has been observed “surveyor’s report in the insurance claim is an important document which cannot be brushed aside easily.” Same view has been taken by the Hon’ble National Commission in case of Bhawana Kumar versus General Manager Varun Webres Ltd. & Anr, 2008(4) CPR 82 (NC). Not only this, recently Hon’ble National Consumer Disputes Redressal Commission, New Delhi in case National Insurance Company Limited Vs. M/s.Kiran Collector & Boutique 2019 (1) CLT 384 (NC), decided on 24th July, 2018 has held that “General rule is that the surveyors are appointed under the Insurance Act, 1938 and their reports are to be considered for settlement of insurance claims- The reports can not be brushed aside without any cogent reasons.” Hon’ble National Commission in the case of Ankur Surana v. United India Insurance Co. Ltd., reported in I (2013) CPJ 440 (NC) held as under:-
“Wherein it has been observed that "it is well established by now that the report of the surveyor is an important document and the same should not be rejected by the Fora below unless cogent reasons are recorded for doing so. The State Commission has stated that it did not see any legal ground before the District Forum to reject the report of the Surveyor. The report of the surveyor should have been rebutted on behalf of the complainant/petitioner since the respondents/OPs had filed the surveyor's report as their evidence."
9. Keeping in view the aforesaid facts and circumstances and replying upon the judgements of Hon’ble Supreme Court of India as well as Hon’ble National Commission, New Delhi (supra) we are of the view that the instant complaint is to be decided on the basis of unrebutted surveyor report.
10. In such a situation the non-payment of the assessed amount by the surveyor till date by Opposite Party No.2 regarding genuine claim of the complainant appears to have been unwarranted. It is usual with the insurance company to show all types of green pesters to the customer at the time of selling insurance policies, and when it comes to payment of the insurance claim, they invent all sort of excuses to deny the claim. In the facts of this case, ratio of the decision of Hon’ble Apex Court in case of Dharmendra Goel Vs. Oriental Insurance Co. Ltd., III (2008) CPJ 63 (SC) is fully attracted, wherein it was held that, Insurance Company being in a dominant position, often acts in an unreasonable manner and after having accepted the value of a particular insured goods, disowns that very figure on one pretext or the other, when they are called upon to pay compensation. This ‘take it or leave it’, attitude is clearly unwarranted not only as being bad in law, but ethically indefensible. It is generally seen that the insurance companies are only interested in earning the premiums and find ways and means to decline claims. In similar set of facts the Hon’ble Punjab & Haryana High Court in case titled as New India Assurance Company Limited Vs. Smt.Usha Yadav & Others 2008(3) RCR (Civil) Page 111 went on to hold as under:-
“It seems that the insurance companies are only interested in earning the premiums and find ways and means to decline claims. All conditions which generally are hidden, need to be simplified so that these are easily understood by a person at the time of buying any policy. The Insurance Companies in such cases rely upon clauses of the agreement, which a person is generally made to sign on dotted lines at the time of obtaining policy. Insurance Company also directed to pay costs of Rs.5000/- for luxury litigation, being rich.
11. Keeping in view of the aforesaid facts and circumstances, we are of the view that Opposite Party No.1-M/s Globe C.V. Private Limited is Sales and Service Centre of Bharat Benz Trucks/Vehicles and deals in the business of Sales, Service and Repair of Bharat Benz vehicles/trucks. and its only duty is to repair the insured vehicle. It is only the service provider, who repairs the vehicle, hence there is no deficiency in service on its part as complainant has not alleged any deficiency on the part of Opposite Party No.2 regarding the repair of vehicle. So, the present complaint against Opposite Party No.1 is liable to be dismissed, as there is no deficiency in service or unfair trade practice on their part.
12. In view of the aforesaid facts and circumstances of the complaint, the present complaint against Opposite Party No.1-M/s Globe C.V. Private Limited stands dismissed. However, we partly allow the present complaint against Opposite Party No.2-The New India Assurance Co. Ltd. Opposite Party No.2-The New India Assurance Co. Ltd. is directed to make the payment of Rs.2,34,000/- (Rupees Two Lacs Thirty Four Thousands only) to the complainant regarding payable repair charges of the insured vehicle in question, on the basis of report of surveyor alongwith interest @ 8% per annum from the date of filing the complaint i.e. 01.12.2021 till its realization. The compliance of this order be made by Opposite Party No.2-The New India Assurance Co. Ltd. within 60 days from the date of receipt of this order, failing which the complainant shall be at liberty to get the order enforced through the indulgence of this District Commission. Copies of the order be furnished to the parties free of cost. File be consigned to record room after compliance.
Announced in Open Commission.
