BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, JALANDHAR.
Complaint No.486/2018
Date of Instt 26.11.2018
Date of Decision: 09.02.2021
Vijay Kumar son of Sh. Sawaran Dass @ Sarwan Dass r/o H.No. 28, Street No.2, Vivek Nagar, Kishanpura, Jalandhar District Jalandhar.
..........Complainant
Versus
1. M/s Makkar Motors, Private Limited, 25-A, Jalandhar Phagwara Highway, Near Octroi Post, G.T Road, Jalandhar 144 001 through its Managing Director/ Director /Prop. /Partner/Manager.
2. The New India Assurance Co. Ltd., (Divisional Office 360900 Divisional Office-1, SCO No. 31-31, PUDA Complex, Guru Ram Dass Divine Tower, Jalandhar.
3. The New India Assurance Co. Ltd., (Regd. & Head Office) New India Assurance Building, 87 Mahatma Gandhi Road, Fort, Mumbai 400 001.
.......Opposite Parties
Complaint Under the Consumer Protection Act.
Before: Sh. Kuljit Singh (President)
Smt. Jyotsna (Member)
Present: Sh. R.K Adhikari, Advocate for Complainant.
Sh.Satnam Singh Advocate for OP no.1.
Sh. A.K. Arora Advocate for OP no.2 & 3.
Order
Kuljit Singh (President)
1. The instant complaint has been filed by the complainant on the averments that he purchased new vehicle Mahindra & Mahindra Bolero bearing no. PB-08-CX-7999 make Bolero Maxi Truck Plus White B33 Model 2005 bearing Chassis No. 75817 Engine No. GLF4E60431 from OP no.1 as per delivery challan dated 17.07.2015 and the vehicle was hypothecated in favour of L & T Finance Ltd and the same was insured for a value of Rs.4,54,700/-. At the time of delivery of the said vehicle, OP no.1 suggested and issued insurance cover note no. 91241 dated 17.07.2015 for premium of Rs.14902/- for the period of 17.07.2015 to 16.07.2016 issued by New India Assurance Company Limited on behalf of OP no.2 and OP no.1 has assured him vehicle is fully insured with OP no.2. On 07.07.2016, the complainant was driving the vehicle on the way Patiala to Sirhand in the morning about 4.00 Am near Jakhwali Adda one Kilometr ago Sirhand side some other vehicle was coming and the direct head lights of the opposite vehicle was uncontrolled and one cow was came in front of complainant’s vehicle. The complainant want to save the cow and turn vehicle to another side and said vehicle was hit in the tree which is left side on the footpath. Therefore the vehicle was fully damaged and complainant was also sustained multiple injuries. Medical treatment was conducted at Jalandhar and damaged vehicle was parked at the workshop of OP no.1 for repair and maintenance. He registered a report vide general diary on09.07.2016 at P.S Mulepur District Fatehgarh Sahib Punjab to this effect. Survey of the accidental vehicle was conducted by the authorized surveyor namely Arun Kumar and he submitted his report. In spite of the repairing the said vehicle OPs no.1 and 2 refused to pay the insurance claim to him. He approached OP no.2 for claim of the above said accidental amount but it refused and denied to release the claim amount. The claim was not settled and repudiated vide letter dated 05.04.2017 on the baseless ground . He also served a legal notice upon OPs but no reply was given to the same. Therefore, he had filed the present complaint and prayed that the OPs be directed to release the accidental claim amount of Rs.4,54,700/- and pay Rs.5,00,000/- as compensation for mental harassment.
2. Upon notice, OP no.1 appeared and filed written reply and contested the claim of the complainant by raising preliminary objections that complaint is not maintainable. This Forum has no jurisdiction to try and entertain the present complaint. On merits, it was averred that OP no.1 is authorized dealer of Mahindra & Mahindra company for its repair and surveyor of the company after inspecting the vehicle made an estimate of Rs.5,00,228/- for its repair, which was later on again surveyed by the authorized surveyor of OPs no.2 and 3 and made report regarding that vehicle is totally lost in the accident and company will only pay an amount of Rs.2,80,821/- , but the complainant has refused to take the said amount and not even took the vehicle from the workshop of OP no.1 OP no.1 issued two reminders to this effect that to pay 3% estimate charges and Rs.350/- per day as parking charges for parking the aforesaid vehicle with OP no.1 as per company rules but no response was given to it. Rest of the averments made by complainant is denied by OP no.1 even on merits and it prayed for dismissal of the complaint.
3. OPs no.2 and 3 appeared and filed their joint reply and contested the complaint of the complainant by raising preliminary objections that there is no deficiency in service and unfair trade practice on its part. On merits, it was averred that the complainant had not comply with the requirements of the OP for reimbursement of expenses incurred by the complainant on the repair of the vehicle in terms of letter dated 27.02.2017 and as such the file of the complainant was made no claim by OPs. Letter dated 05.04.2017 written to the complainant to this effect. The complainant has not got the vehicle repaired and has not submitted the required documents as required by OPs. Thus, claim file of the complainant has been rightly made no claim by OP as per terms and conditions of the policy of insurance. Rest of the averments of the complainant were denied by OPs no.2 and 3 and they prayed for dismissal of the complaint.
4. The complainant has tendered in evidence copies of documents Ex.C-1 to Ex.C-10. On the other hand, OP no.1 has tendered in evidence affidavit of Harbinder Pal Sinh Dhillon as Ex.OP-1/A along with copies of documents Ex.OP-1 to Ex.OP-4. OPs no.2 and 3 tendered affidavit of Punam Sharma as Deputy Manager as Ex.OP-2/A and affidavit of Arun Kumar Surveyor and Loss Assessor as Ex.OP/B along with copies of documents Ex.OP-2/1 to Ex.OP-2/7 on the record.
5. We have heard learned counsel for the parties and have also gone through the record on the file very minutely as well as written arguments filed by complainant on the record.
6. The complainant has tendered evidence Ex.C-1 is copy of certificate of registration of the vehicle. Ex.C-2 is copy of delivery challan dated 17.07.2015 issued by Makkar Motors Pvt. Ltd. Ex.C-3 is copy of insurance policy. Ex.C-4 is copy of general diary details. Ex.C-5 is copy of driving licence of the complainant. Ex.C-6 is copy of reminder dated 09.01.2017. Ex.C-7 is further copy of reminder dated 08.05.2017. Ex.C-8 is copy of repudiation letter of OP. Ex.C-9 is copy of legal notice. Ex.C-10 is postal receipt thereof.
7. To refute this evidence of the complainant, OP no.1 has tendered in evidence affidavit of Harbinder Pal Singh Dhillon as Ex.OP-1/A on the record. Ex.OP-1 is loss assessment. Ex.OP-2 and Ex.OP-3 are reminders of different dates. Ex.OP-4 is resolution. On the other hand, OP no.2 tendered affidavit of Punam Sharma as Deputy Manager as Ex.OP-2/A on the record. Ex.OP/B is affidavit of Arun Kumar Surveyor and Loss Assessor on the record. Ex.OP2/1 is policy schedule cum certificate of insurance. Ex.OP-2/2 is copy of letter dated 07.10.2016 addressed to the complainant by New India Assurance Co. Ex.OP-2/3 is copy of letter dated 25.10.2016. Ex.OP-2/4 is copy of survey report. Ex.OP-2/5 is copy of letter dated 27.02.2017 on the record. Ex.OP-2/6 is copy of postal receipts. Ex.OP-2/7 is copy of letter.’
8. This fact is not disputed that the complainant purchased a new vehicle Mahindra & Mahindra Bolero bearing registration no.PB08 CX 7999 from OP no.1 and insured the same for a value of Rs.4,54,700/-. On 07.07.2016 complainant was driving the vehicle on the way to Patiala to Sirhand in the morning about 4.00 am near Jakhwali Adda one kilometer ago Sirhand side some vehicle was hit/reflect on the eye of the complainant and suddenly vehicle was uncontrolled and one cow was came in front of the vehicle and said vehicle was hit in the tree, which is left side on the foothpath. Therefore, vehicle of the complainant was fully damaged from bumper, headlight, bonnet, engine , front mirror and side mirror of the said vehicle was turned/entered inside the cabin of the vehicle as well as others damages also occurred due to this accident and was also sustained multiple injuries. Medical treatment of the complainant was conducted at Jalandhar. This fact is clear that the vehicle was damaged in the accident and the complainant registered report this effect vide Ex.C-4 on the record. The OP repudiated the claim of the complainant on the ground that he has not supplied the requisite documents to OPs. Ex.OP-1 is loss assessment assessed by Surveyor Anil Kumar & company on the record. He assessed the loss of Rs.280821.54 on the record.
9. Firstly, we deal with this point, as to whether complainant being Private Limited concern is a 'consumer' with OPs or not? The complainant-company purchased the vehicle, which was insured with OP no.2. It is settled principle of law that 'Contract of Insurance' is for indemnification of loss and not for any commercial activity. The Hon'ble National Commission has also examined this point in M/s Harsolia Motors Vs. M/s National Insurance Co. Ltd reported in First Appeal No.159 of 2004 decided on 03.12.2004, wherein it has been held that hiring of services of the insurance company by taking insurance policy, the complainants were carrying commercial activities cannot be held to be a commercial purpose. The insurance policy is taken for reimbursement or for indemnity for the loss, which may be suffered due to various perils. There is no question trading or carrying on commerce in insurance policies by the insured.
10. We find that accident took place on 07.07.2016 and complainant intimated P.S Mulepur District Fatehgarh Sahib on 09.07.2016 vide general diary no.10 dated 09.07.2016. We find that Insurance Regulatory Development Authority (IRDA) has issued general instruction not to discard the genuine claim of the insured simply on the ground of delay. Consequently, we do not find any valid ground to discard the case on this ground only. In "Oriental Insurance Company Ltd Jalandhar and others vs. M/s Puneet Pasricha Partner Pasricha Hospital Jalandhar" in First Appeal No. 1579 of 2002 decided on 05.03.2010, it has been held by State Commission Chandigarh that insurance claim cannot be frustrated on the technicalities
11. OPs repudiated the claim of the complainant on the ground on 05.04.2017 on the ground of not submitted the required papers /documents, which is not genuine. As per Standard Form for Commercial Vehicles Package Policy, “the company may at its own option repair reinstate or replace the vehicle insured or part thereof and/or its accessories or may pay in cash the amount of the loss or damage and the liability of the company not exceed.”Ex.OP-2/4 is valid document on the record, this is survey report which has been prepared by Arun Kumar Surveyor and Loss Assessor of OP.
12. In the light of our above discussion, we allow the complaint and OPs no.2 and 3 are directed to pay Rs.2,80,821.54 as repair charges assessed by the surveyor Arun Kumar & Company of OPs vide Ex.OP-2/4 on the record. The complainant is also entitled Rs.10,000/- as compensation for mental harassment and cost of litigation and Rs.5000/- goes to Legal Aid of this Commission.
13. The compliance of the order be made within one month from copy of receipt of this order.
14. Copies of the order be sent to the parties, as permissible, under the rules.
15. File be indexed and consigned to the record room after its due compliance.
ANNOUNCED IN THE OPEN COMMISSION:
9th Day of February 2021
(Kuljit Singh)
President
(Jyotsna)
Member
