BEFORE THE DISTRICT CONSUMER DISPUTES
REDRESSAL FORUM, JALANDHAR.
Complaint No.209 of 2014
Date of Instt. 30.06.2014
Date of Decision :24.02.2015
Satish Kumar Khera, aged about 64 years C/o M/s Ram Murti Vijay Kumar, V&PO Lohian Khas-144629.
..........Complainant
Versus
1. M/s Goyal Automotive Ltd, Goyal Hundai, GT Road, Paragpur-144005.
2. The New India Assurance Co.Ltd, 356 Gutu Teg Bahadur Nagar, Jalandhar through Senior Divisional Manager.
.........Opposite parties
Complaint Under Section 12 of the Consumer Protection Act.
Before: S. Jaspal Singh Bhatia (President)
Ms. Jyotsna Thatai (Member)
Present: Sh.Arvind Arora Adv., counsel for complainant.
Sh.Vikas Sood Adv., counsel for opposite party no.1.
Sh.Raman Sharma Adv., counsel for OP No.2.
Order
J.S Bhatia (President)
1. The complainant has filed the present complaint under section 12 of the Consumer Protection Act, against the opposite parties on the averments that the complainant as owner of the car Verna Fluidic CRDi 1.6 bearing registration No.PB87-C-5031, was given by the opposite party No.1, on behalf of The New India Assurance Co.Ltd, the motor vehicular accident insurance from 1.6.2013 to 31.5.2014 after the opposite party No.1 received the consideration of Rs.17,662/-. By this kind of document, the opposite party No.1 had assured complainant that the vehicle stand insured with the New India Assurance Co.Ltd, having its divisional office II at 356, GT Road, Jalandhar, the opposite party No.2. The opposite party No.1 claimed having a tie-up with the New India Assurance Company and gave the assurance that it was cashless facility which was granted to the complainant. The vehicle was insured for a sum of Rs.6,21,000/-. The terms and conditions of the insurance were not supplied, later on only the certificate cum policy schedule was supplied. On 15.6.2013, by an event of unseen and unforeseen character, the vehicle met with an accident and all the occupants suffered grievous injuries, however, the opposite party No.1 were immediately informed, toed the vehicle to the opposite party No.1 service station, and prepared the estimate of loss to the tune of Rs.5,77,242/- which amount was just equal to the sum insured. The complainant submitted the claim form and completed all the formalities. Although, as been told, the opposite party No.1 had passed on the estimate of the damage to the opposite party No.2 insurance company, the complainant also submitted the copy of the estimate drawn by the opposite party no.1 yet to the understanding of the complainant, the insurance company nominated M.L.Mehta of M/s M.L.Mehta & Co.,Jalandhar; to survey the loss, although the estimate drawn by their own party to the contract i.e the opposite party No.1 was supposed to be correct and binding. The complainant alleged that the opposite party No.1 threw the complainant at the mercy of an insurance company, which was of the choice of the opposite party No.1, and gave the assurance that it was the best company with which the opposite party no.1 had gone in for a tie-up. It is stated that in a tie-up agreement of the kind the opposite party No.1 had with the insurance company, the actions are always based on mutual trust and the estimate of damage arrived at by the opposite party No.1 ought to have been respected. It is alleged among other against the opposite party No.2 that the insurance company has failed to adhere to IRDA Protection of Policy Holders, Interest Regulations, 2002 which mandates under Regulation No.9 that in case a surveyor has to be appointed for assessing loss/claim it shall be done within 72 hours of the receipt of intimation from the insured, further vide Regulation 9(2) of it also mandates that claim shall be finalized within 3 months. The violation is grave and no other proof is required to show the deficiency of the opposite party No.2. The surveyor of the opposite party No.2 proved to be the past master of all and did not remain behind in playing his dirty trick with the complainant vis-a-vis his selecting a driving license out of the two in hand with the driver of the complainant Paramjit, the license which was in-genuine. The driver of the complainant had this license, which after his return from Dubai was found as not genuine and he had another driving license in hand from the Registering & Licensing Authority, Sultanpur Lodhi( which was valid from 18.1.2012 to 9.5.2019) but the surveyor who earns his bread and butter from his masters, to show how smart he is and to make some brownie points for the wages he earns, and to have more bargaining and coercive power for the hefty hush money from his prey-took from the simple driver, the license which has in-genuine and not the one which was genuine and valid. The copy of actual driving license was given and later the complainant also provided the opposite party No.2 the documentary proof from the Registering & Licensing Authority, Sultanpur Lodhi about the validity of the driving license of the driver as valid from 18.1.2012 to 9.5.2019 and accident had taken place on 15.6.2013 during the validity period of the driving license. It is pertinent to bring into notice that the opposite party No.2 has been warned by its higher office by letter Ref: AK/2013-2014 dated 24.2.2014 (copy received under RTI) that "when the driving license of the driver is found to be genuine at the time of accident, the claim should not be repudiated in view of the fact that We may not be able to defend the case in the District Consumer Forum, Jalandhar with whom the complaint may be filed by the insured". The letter is of the month of February, received more than four months back, still the opposite party No.2 is blind to the reality and refuses to see the light. The opposite parties were issued notice dated 17.2.2014, against which no reply was received from the opposite party No.1. The complainant states that the reasons given by the opposite party No.1 are that (A) " Till date you have not complied with the requirements of the insurance formalities" and (B) "you were not allowing us to start the work on your vehicle". In respect of allegation (A) above as to non-compliance of requirement of the insurance company, it is worthwhile to look into whether it is the allegation of the insurance company anywhere. It is submitted that the insurance company nowhere states in the record in hand with the complainant under the RTI Act that its requirement have not been complied with by the complainant rather the insurance company affirmed that "the surveyors M/s M.L.Mehta have not submitted the final report and the same was awaited as the vehicle was still under repair". In respect of the second allegation (B) of the opposite party No.1 that the complainant was not allowing the opposite party No.1 to start the work on complainant vehicle, the complainant questions how he was not allowing starting the work when the complainant paid on demand to opposite party No.1 Rs.50,000/- on 13.7.2013 and then on demand another sum of rs.50,000/- on 9.10.2013? The entire record is with the complainant under the RTI Act and there is no letter written to the opposite party No.1 by the opposite party No.2 to the effect (i) that they were not going to make the payment to the opposite party No.1 in the insurance claim of the complainant or (ii) that they should not undertake the repair job. In contrast to the version of the opposite party No.2 that the vehicle was under repair and final report awaited, the version of the opposite party No.1 is that the vehicle is not under repair. Who is right and who is wrong, both are beguiling and duping. On such like averments, complainant has prayed for directing the opposite parties to pay with cost and interest @ 18% PA a sum of Rs.1 Lac and insured declared value of Rs.6,21,000/-. He has also claimed damage and litigation expenses.
2. Upon notice, the opposite parties appeared and filed their written replies taking preliminary objections regarding maintainability and there being no deficiency in service or unfair trade practice on its part. It further pleaded that the vehicle in question met with an accident and the complainant handed over the vehicle to the opposite party No.1 for repair. At that time the complainant assured that the payment will be made to the opposite party No.1 by the complainant himself or through the opposite party No2. Replying on the assurance of the complainant, the opposite party No.1 allowed the complainant to part his damaged vehicle with opposite party No.1. Till now nothing has happened and the vehicle is lying with the opposite party No.1. Even a written communication was also given to the complainant, but he has not contacted the opposite party No.1. On the request of the complainant, the opposite party No.1 already bought one body shell and other parts and the opposite party No.1 is bearing the interest on that spent amount. The opposite party No.1 is entitled for that amount also. It is incorrect that there is any tie-up between the opposite party No.1 and opposite party No.2. It is incorrect that any assurance was further given that complainant need not pay any amount. If there is any dispute between the complainant and the opposite party No.2, the opposite party No.1 has nothing to do with that. The complainant handed over the damaged vehicle to the opposite party No.1. The estimate was prepared but no further action has been taken by the complainant. The opposite party No.1 can work only after when the payment was made. However, the opposite party No.1 is ready for the services and has purchased the material. Now the complainant is liable to compensate the opposite party No.1. The complainant has not discharged the entire liability and has not paid the entire value. The opposite party No.1 came to know about the dispute between the complainant and the opposite party No.2, so the opposite party No.1 stopped further repair. It denied other material averments of the complainant.
3. In its separate written reply, opposite party No.2 insurance company pleaded that the complaint is pre-mature as such the same is liable to be dismissed. The complainant supplied copy of driving license of driver Paramjit Singh son of Arur Chand bearing No.R-16849 dated 5.10.2010 and valid up 4.10.2013 for LTV only issued by Licensing Authority, Jalandhar. When the said license was got verified from the Licensing Authority, Jalandhar it was found to be fake one i.e the driving license in question was not issued to Paramjit Singh son of Arur Chand but to Manjit Singh son of Malkiat Singh as per record of the Licensing Authority, Jalandhar. The verification of another driving license bearing No.PB-41/931/NDL/ SPL/11-12 dated 18.1.2012 for MCWG & Motor Car and valid up to 9.5.2019 produced by the complainant allegedly issued by the Licensing Authority, Sultanpur Lodhi is still pending as the said authority is not providing driving license verification report despite repeated requests and even application dated 28.3.2014 under the Right to Information Act was filed by Balvinder Singh (investigator) to Public Information Officer/Licensing Authority, Sultanpur Lodhi seeking information with regard to the above said driving licensee bearing No.PB-41/931/NDL/ SPL/11-12 dated 18.1.2012 allegedly issued by the Licensing Authority, Sultanpur Lodhi but the information has not been supplied despite reminder. Now investigator Balvinder Singh has further filed an appeal under Right to Information Act, before Sub Divisional Magistrate on 24.5.2014 for non furnishing of information with regard to driving license No.PB-41/931/NDL/ SPL/11-12 dated 18.1.2012 by the Licensing Authority, Sultanpur Lodhi. The answering opposite party No.2 seeks direction by this Forum to the Licensing Authority, Sultanpur Lodhi to furnish driving license verification report of driving license No.PB-41/931/NDL/ SPL/11-12 dated 18.1.2012 for MCWG & Motor Car and valid upto 9.5.2019 to enable to company to settle the claim as per terms and conditions of the insurance policy. It is not out of place to mention that immediately after the receipt of information qua the loss caused to the vehicle in question, M/s ML Mehta & Co., Automobile and Mechanical Engineers, Surveyor and Loss Assessor were appointed as surveyor to assess the loss to the vehicle in question, who have submitted their interim report dated 25.12.2013 with the company vide which in their preliminary assessment have assessed the loss to the tune of Rs.3.90 Lacs approximately. It is pertinent to mention that the surveyor and loss assessor vide letters dated 3.7.2013 and 1.8.2013 demanded relevant documents of the vehicle from the complainant including claim form duly filled in and singed, Registration Certificate, driving license of the person driving the vehicle at the time of loss, copy of FIR/DDR and photographs arranged at the site of loss, if any, whereupon the complainant supplied copy of driving license of driver Paramjit Singh son of Arur Chand bearing No.R16849 dated 5.10.2010 and valid upto 4.10.2013 for LTV only issued by Licensing Authority, Jalandhar. When the said license was got verified from the Licensing Authority, Jalandhar it was found to be fake one i.e the driving license in question was not issued to Paramjit Singh son of Arur Chand but to Manjit Singh son of Malkiat Singh as per records of the Licensing Authority, Jalandhar. Thereafter the above said surveyor and loss assessor has submitted by way of independent assessment his motor survey report final dated 6.6.2014 with the answering opposite party No.2 assessing the loss to the tune of Rs.3,73,508/- subject to terms and conditions of the insurance policy as the complainant did not complete the formalities or let the repairer repair the vehicle despite repeated letters and reminders dated 3.7.2013, 1.8.2013 and 6.1.2014, as such the complaint against the answering opposite party No.2 is liable to be dismissed. It denied other material averments of the complainant.
4. In support of his complaint, learned counsel for the complainant has tendered affidavit Ex.CA-1, Ex.CA-2 alongwith copies of documents Ex.C1 to Ex.C14, Mark 1 to Mark 11 and Ex.CA-2/1 and closed evidence.
5. On the other hand, learned counsel for opposite party No.2 has tendered affidavits Ex.OA to Ex.OC alongwith copies of documents Ex.O1 to Ex.O11 and evidence of opposite party No.2 closed by order. Further learned counsel for opposite party No.1 has tendered documents Ex.OA to Ex.OC and closed eivdence on behalf of opposite party No.1.
6. We have carefully gone through the record and also heard the learned counsels for the parties.
7. Counsel for the complainant contended that the opposite party no.1 has tie-up with opposite party No.2 and the policy was issued by the opposite party No.1 on behalf of the opposite party No.2. He further contended that the insured car of the complainant met with an accident on 15.6.2013 and was toed to opposite party No.1 service station who prepared the estimate of loss at Rs.5,77,242/-. He further contended that complainant has submitted the claim form and completed all formalities but the opposite party No.2 has not so far decided the claim of the complainant. He further contended that complainant has paid Rs.1 Lac to opposite party No.1 and opposite party No.1 was supposed to carry out cashless repair but it has failed to repair the car so far and due to delay the value of its part is further decorating. He further contended that both the parties are guilty of deficiency in service. On the other hand, it has been contended by learned counsel for the opposite party No.1 that it has no tie-up with opposite party No.2 insurance company. He further contended that if there is any dispute between the complainant and insurance company, it can not be blamed. He further contended that opposite party No.1 is to receive the payment either from the complainant or opposite party No.2 insurance company and only then it can complete the repair. He further contended that opposite party No.1 has sent estimate of repair to opposite party No.2 insurance company. He further contended that complainant is not interested in repair of the car. He further contended that the delay if any is due to fault of the insurance company. He further contended that the amount of Rs.1Lac received by the complainant has been spent by opposite party No.1 in purchasing body shell of the car etc as is evident from letter Ex.OC. On the other hand, it has been contended by learned counsel for the opposite party No.2 that opposite party No.2 has not decided the claim of the complainant so far and as such the present complaint is pre-mature. He further contended that the delay in settling the claim of the complainant is on account of non receiving of verification report of driving license of the complainant from the Licensing Authority, Sultanpur Lodhi. He further contended that initial delay was on account of the fact that the first driving license given by the complainant was found to be fake one. He further contended that the verification report of second driving license has not been received from the Licensing Authority, Sultanpur Lodhi and only after receipt of verification report the claim of the complainant shall be decided without any delay. Counsel for the complainant contended that the complainant has obtained verification report of driving license from Sultanpur Lodhi and same has been placed on record but still the opposite party No.2 insurance company has failed to decide the claim of the complainant till date without any valid reason. We have carefully considered the contentions advanced by learned counsel for both the parties. The opposite party No.1 is only repairer. He is to receive the repair charges either from the complainant or from the insurance company. According to own version of the complainant, the estimate of loss is to the extent of Rs.5,77,242/- which is just equal to the sum insured. So in case of repair huge amount is involved. If opposite party No.1 has some sort of tie-up with opposite party No.2, it does not mean that opposite party No.1 is to pay the insurance claim. The driving license issued by the Licensing Authority Sultanpur Lodhi was received by the insurance company on 20.11.2013 and this fact is evident from the letter of opposite party No.2 mark 7. This fact was not disputed by learned counsel for the opposite party No.2 at the time of arguments. The complainant has placed on record driving license verification report issued by Licensing Authority, Sultanpur Lodhi Ex.C4. If the complainant can obtain verification report from the Licensing Authority then opposite party No.2 insurance company can also obtain the same or it can rely upon the verification report Ex.C4 obtained by the complainant. The opposite party insurance company received second driving license of Paramjit Singh on 20.11.2013 but till date it has failed to decide the claim of the complainant on the ground that verification report of the driving license has not been obtained from the Licensing Authority, Sultanpur Lodhi so far. The inordinate delay in deciding the claim of the complainant in the circumstances of the present case, constitute deficiency in service on part of the insurance company. Due to non settling of claim by the insurance company and allowing the repairer the cashless facility, the car could not be repaired by opposite party No.1 so far. For delay in deciding the claim of the complainant by the insurance company, the complainant is entitled to compensation but the insurance company should be given an opportunity to decide the claim of the complainant one way or another.
8. In view of above discussion, the present complaint is accepted against opposite party No.2 and opposite party No.2 is directed to decide the claim of the complainant one way or another on the basis of documents already submitted by him and further on the basis of documents produced by him during trial of the present complaint and further on the basis of documents which he may further submit to the opposite party No.2 insurance company. The complainant is directed to supply any further document which he may desire to the opposite party No.2 insurance company within 15 days from the date of receipt of copy of this order and thereafter the opposite party No.2 insurance company shall positively decide the claim of the complainant one way or another within 45 days after expiry of said period of 15 days failing which the claim of the complainant shall be deemed to have been accepted by opposite party No.2 insurance company in toto. Further the complainant is granted Rs.25,000/- as compensation from opposite party No.2 for delay in deciding the claim of the complainant till date. The amount of Rs.1 Lac already paid by the complainant to opposite party No.1 shall be subject to adjustment or refund after settlement of claim of the complainant by opposite party no.2. The complainant is also awarded Rs.3000/- on account of litigation expenses from opposite party No.2. Copies of the order be sent to the parties free of costs under rules. File be consigned to the record room.
Dated Jyotsna Thatai Jaspal Singh Bhatia
24.02.2015 Member President
