BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, AMRITSAR.

Consumer Complaint No. 476 of 2014

Date of Institution: 26.8.2014

Date of Decision: 22.7.2016  

M/s. R.K.Steel Industries , # 420, Old Focal Point, G.T. Road, Amritsar through its Partner/Manager/Auth.Signatory

Complainant

Versus

1. M/s. ICICI Lombard General Insurance Company, District Shopping Complex, Ranjit Avenue, Amritsar through its Principal Officer/Manager/Officer In Charge/Authorized Signatory
2. M/s. ICICI Lombard General Insurance Company, Ground and 4^th Floor Interface 11, Office Number 401 and 402, New Linking Road, Malad (West), Mumbai, through its Principal Officer/Manager/Officer In Charge/Authorized Signatory

Opposite Parties

Complaint under section 11 & 12  of the Consumer Protection Act, 1986 as amended upto date.

Present: For the Complainant : Sh.Sanjeet Singh, Advocate.

              For the Opposite Parties  : Sh.Amit Bhatia,Advocate

Coram:

Sh.S.S.Panessar President

Ms.Kulwant Kaur Bajwa, Member

Mr.Anoop Sharma, Member  

Order dictated by:

Sh.S.S.Panessar,President.

1. M/s. R.K. Steel Industries through its Principal Officer has brought the instant complaint under section 11 & 12 of the Consumer Protection Act on the allegations that complainant is a permanent resident of the above-mentioned address i.e. 420, Old Focal Point, G.T. Road, Amritsar and is a peace loving and law abiding citizen of India. Vishal Mahajan is a partner  in the said firm under the name and style of M/s. R.K. Stell Industries. The complainant  purchased an Audi Car Q3 bearing registration No. PB-02-Q-0666 in the name of firm M/s. R.K.Steel Industries for own personal or private use and not for commercial use. On 25.8.2013 one of the partners had to go to Jaipur and Faridabad  for attending urgent business tours and meetings by said car via Ludhiana as cousin brother of the complainant lived at Ludhiana who have also on the same business line activity and also want to go with  them to attend the said meeting. Suddenly when the complainant came to know  that the car in dispute was without insurance cover , then they decided to  leave the car at  his cousin factory premises  and to go by another car. The complainant  informed his business  partner  at Amritsar office regarding the insurance of the said car immediately. Due to the said reason the car was laid at Ludhiana  factory around about a month. Due to the abovesaid bonafide reason, the use of the vehicles was irregular during this period and the said car was being driven at about 18 KM at that time. The complainant has bought a car insurance from the opposite party i.e. ICICI Lombard General Insurance Company by their telecaller  and before the finalization of the said policy all the executives and other officers and including agents pressed the complainant again and again to buy their  insurance policy and further told that they will provide better service at all time at anywhere  as compared to other insurance companies. The complainant had insured his Audi car bearing registration No. PB-02-0666 vide policy No. 3001/82419811/00/800  from the opposite party for the period from 26.8.2013 to 25.8.2014 after paying the policy premium of Rs. 83,279/-. On 20.9.2013 Mr.Suvrat Mahajan and his cousin had gone to Ludhiana from Amritsar to carry  their Audi car. Unfortunately  at the time of return journey the said car met with an accident on 20.9.2013 at Ludhiana and it was under insurance cover note No. 82419811 from the opposite party. On 20.9.2013 the car was being driven by Mr.Suvrat Mahajan who had a valid and effective license to drive the car. At that time  complainant contacted with the opposite party on Toll free number and informed them the whole event. On the spot immediately surveyor was informed/appointed on getting the notice regarding the accident and of the claim. After the due process and surveyor was appointed to verify the extent of damage and other facts relating to the present claim. After noticing the condition of the said car by the surveyor , he took photographs and all required formalities were undertaken by the surveyor and the surveyor assured the complainant that his claim will be cleared within 10-15 days subject to  completion of the relevant documents as per their record. After that complainant submitted estimate given by M/s. Jay Cee  Automobiles Pvt.Ltd for Rs. 4,50,344/- and submitted the claim to the opposite party. The car was got repaired at Ludhiana M/s. Jay Cee Automobiles Pvt.Ltd vide proforma invoice No. Nil and order No. LDH130862 and a sum of Rs. 140411/- was paid by the complainant himself.  Thereafter complainant lodged his claim with opposite party and submitted the necessary forms and papers as per demands of the opposite party. Complainant time and again approached opposite party No.1 personally or even correspondence through mails or request to settle his claim , but time and again opposite party No.1 delayed the matter  without any reason or excuse. Opposite parties  delayed the matter on one pretext or the other and are shirking from the liability from paying the claim amount. However, opposite party rejected the claim vide its letter dated 31.10.2013 giving  reason that “Misrepresentation of Facts”. The reason cited by the opposite party is not justified. The complainant has sought for following reliefs vide instant  complaint:-

1. Opposite parties be directed to reimburse the claim amount of Rs. 1,40,411/- immediately  alongwith interest @ 18% p.a from the date of its due till its realization;
2.          Opposite parties be directed to pay compensation of Rs.      1,00,000/- on account of deficiency in service, mental harassment, agony and unexplainable delay for settlement  of claim;
3. Opposite parties be also directed to pay litigation expenses to the tune of Rs. 5000/-.

Hence this complaint.

2.       Upon notice, opposite party appeared and contested the claim by filing written version taking certain preliminary objections therein inter alia  that complainant has not approached this Forum with clean hands and hence he is guilty of suppressing and concealing the real facts from the knowledge of this  Forum. The complaint under reply  as such deserves dismissal on this score alone. It is worth while to mention over here that as per record available with the opposite party,  a new Audi car was purchased by M/s. R.K.Steel Industries on 5.6.2013 and on the same day it was insured by HDFC Ergo G.I.C. Ltd. Lateron the said policy  of HDFC  Ergo was cancelled as the cheque of premium which was given dishonoured and  thereafter vehicle remained uninsured from 18.6.2013 to 25.8.2013. On 27.8.2013 the vehicle was insured with the opposite party. It is also worth while  to mention over here that at the time of issuing of the policy the meter of the vehicle was showing reading as 4468. At the time of alleged accident i.e. on 20.9.2013 the meter was showing the reading as 4486. It is further submitted that at the time of lodging claim, complainant has stated that  they travelled from Amritsar to Ludhiana by car and when they were returning to Amritsar the said vehicle met with an accident . From these facts, it is crystal clear that  complainant is misrepresenting and twisting the real facts as the distance between Amritsar to Ludhiana is approximately  200 KM which shows that the complainant is not speaking the truth. From the  above stated facts, it is very much clear that vehicle was already damaged from underbody but the claim could not be lodged with HDFC since the premium cheque was bounced.  Later on insured managed to get the insurance from the opposite party by mis-representing the real facts so the complaint of the complainant is liable to be dismissed.  For better understanding list of events i.e. given in chronological order is as under:-

1. 5.6.2013 : New Audi car was purchased by M/s. R.K. Steel and on the same day it was insured by HDFC Ergo GIC Ltd.
2. 8.6.2013 : The said policy of HDFC Ergo cancelled due to dishonor of premium cheque . (confirmation mail on policy cancellation is attached herewith as Annexure)
3. 16.8.2013: The said vehicle with ICICI Lombard GIC with meter reading as 4468 K.M (photograph depicting meter reading is attached herewith).
4. 20.9.2013 : The said vehicle was said to be met with accident with meter reading as 4486 KM which just 18 KM is from the date of insurance whereas it ran more than 4000 Km in two months (photographs depicting meter reading at the time of accident is attached herewith).

That  instant complaint filed by the complainant which is a business establishment engaged in commercial dealings and is partnership business firm  consisting of various partners  engaged in business activities of commercial nature. As such in view of the provisions of the Consumer Protection Act the jurisdiction of District consumer Forum could not be invoked. The real facts are that present car is  in the name of M/s. R.K.Steel Industries which is a commercial  Institute , so the Consumer court does not jurisdiction to try and entertain the present complaint ; that  complainant is not a consumer  within the definition of section 2(d) of the Consumer Protection Act. That the complaint in the present Forum is not maintainable as the complaint in the circumstances  stated in the complaint  itself is not maintainable and deserves to be dismissed ; that  without admitting any liability, it is submitted that after intimation  of claim, opposite party arranged for a survey conducted by Mr. Romit Modi, who submitted his report dated 11.5.2013 to the company and has specifically mentioned  that “vehicle was already damaged from underbody but claim could not be lodged with HDFC Ergo”; that complainant’s vehicle was damaged during un-insured period w.e.f. 18.6.2013 to 25.8.2013 and they managed to get the insurance from the opposite party by mis-representing the facts. Thus the  complainant himself  is negligent/deficient by not keeping the insurance for the period  and later misrepresented the facts  to claim insurance. As per section 64 UM of Insurance Act, an IRDA approved surveyor  is appointed to assess the loss and his report is treated as final in respect of loss ; this Forum has got no territorial jurisdiction to entertain the present complaint as insurance policy No. 3001/82419811/00/B00 has been issued from Mumbai. Further it has been admitted  by complainant in para No.3 that the accident occurred at Ludhiana. Thus  cause of action  to file the complaint arose within the jurisdiction of Ludhiana District Forum. Therefore, this Forum has got no jurisdiction to try the present complaint ; that at the very outset opposite party denied the contentions, averments made by the complainant as the same are baseless and without any merits and the complainant be put to strict proof of the same  ; that complainant is estopped by his own act and conduct from filing the present complaint as he is guilty of committing breach and violation of the terms and conditions of the policy. Opposite parties have legally and rightly repudiated the false claim of the complainant ; that present complaint is false, frivolous, vexatious and malafide  and hence the same is un-sustainable under the provisions of Consumer Protection Act and the same may be dismissed by invoking section 26 of the Act. On merits facts narrated in the complaint have been specifically denied and a prayer for dismissal of the complaint with cost was made.

3.       In his bid to prove the case Sh.Sanjeet Singh,Advocate counsel for the complainant tendered into evidence affidavit of Sh.Vishal Mahajan Ex.C-1 alongwith documents Ex.C-2 to Ex.C-11 and closed the evidence on behalf of the complainant.

4.       To rebut the aforesaid evidence, Sh.Amit Bhatia,Adv.counsel for the opposite party tendered into evidence repudiation letter dated 31.10.2013 Ex.OP1, policy cover note Ex.OP2, terns and conditions Ex.OP3, copy of previous complaint  Ex.OP4, copy of written statement filed in the previous complaint Ex.OP5, copy of affidavit filed by Vishal Mahajan in the abovesaid complaint Ex.OP6, copy of  statement made by Sh.Sanjeet Singh,Adv Ex.OP7, copy of order dated 8.8.2014 Ex.OP8, copy of RC Ex.OP9, copy of certificate of registration of the complainant firm Ex.OP10, affidavit of Meenu Sharma,Legal Manager Ex.OP11, copy of claim form Ex.OP12, affidavit of Sh.Romit Modi,Surveyor and Loss Assessor Ex.OP13, surveyor report Ex.OP14, copy of photograph of meter of the car Ex.OP15 , OP16 & OP20, statement of Veerain Ex.OP17, statement of Suvrat S/o Jugal Kishore Mahajan Ex.OP18, coy of mail dated 28.10.2013 Ex.OP19, affidavit of Sh.Jatinder Dhiman Ex.OP21, copy of complete investigation report Ex.OP22, copy of e-mail Ex.OP23 and closed the evidence on behalf of the opposite parties.

5.       We have heard the ld.counsel for the parties and have carefully gone through the record on the file as well as written synopsis of arguments submitted by the ld.counsel for both the parties.

6.       On the basis of the evidence on record, ld.counsel for the complainant has vehemently contended that it is not disputed that the complainant got his car bearing registration No.PB-02-Q-0666 insured with the opposite party for the period from 26.8.2013 to 25.8.2014 on payment of premium to the tune of Rs. 83,279/-. Copy of the insurance policy accounts for Ex.C-8. It is also not disputed that the car in dispute met with an accident and the complainant immediately intimated the opposite party regarding the accident. The surveyor was also appointed by the opposite party, who assessed the loss to the car in dispute to the tune of Rs. 1,52,913/-. Copy of the survey report accounts for Ex.OP14. However, opposite party repudiated the claim vide repudiation letter , copy whereof is Ex.C-2 on record on flimsy grounds which are not entertainable under law. Opposite party has also taken the plea that the car in dispute was in the name of the firm and the car was being used for commercial purposes. Even as per pleadings of the complainant in para 3 of the complaint, it has specifically been mentioned that the car was taken for commercial purposes . But, however, it is settled principle of law that insurance policy is taken for indemnification purposes and not for any commercial purposes. Reliance in this connection has been placed upon Himalaya Hydro Private Limited Hydro Power Project Vs. United India Insurance Co.Ltd. 2014(2) CLT 414 Uttrakhand State Consumer Disputes Redressal Commission, Dehradun  , wherein it has been laid down that the basic plea taken by the opposite party that the complainant is a company and cause for hiring the services of the opposite party is commercial and the consumer complaint is not maintainable under the provisions of consumer Protection Act, 1986, is not tenable, because the insurance policy has not been  taken for the commercial purpose. The activity of the complainant may be commercial, but insurance policy is not for the commercial purpose and has been taken for indemnification of loss.

7.       Opposite party has raised certain objections regarding obtaining of the insurance policy by the complainant on practicing  fraud by the complainant upon the Insurance company on the ground  that earlier the car was under insurance cover of  HDFC Ergo G.I.C.Ltd and the car in dispute also remained without insurance cover in between 18.6.2013 to 25.8.2013, whereas the insurance cover of the opposite party was obtained by the complainant on 27.8.2013. It seems that there was some hanky panky in obtaining the policy from the opposite party and in between the period when the car in dispute remained un-insured, the accident might have occurred. But, however, there is absolutely no evidence on record to substantiate the said apprehension of the opposite party. It appears that the opposite parties have been concocting false defences simply to deny the bonafide claim of the complainant. It is usual with the Insurance companies that they show all sorts of green pastures to the intending customers at the time of selling the insurance policies but when it comes to the payment of the insurance claims, they invent all sorts of false pleas to repudiate the claim. Reliance in this connection can be had on 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 seams 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.

8.       Opposite party has also challenged the territorial jurisdiction of this Forum on the ground that the car was insured at Mumbai office while the accident allegedly has taken place at Ludhiana and it is contended on behalf of the opposite party that no part of cause of action has arisen within the territorial jurisdiction of this Forum and therefore, this Forum has got no territorial jurisdiction. But, however, ld.counsel for the complainant has vehemently contended that there is office of ICICI Lombard General Insurance at Amritsar. The policy in dispute was also received by the complainant at Amritsar. Since the opposite party No.2 is carrying on its business for gain at Amritsar, therefore, District Forum at Amritsar has the territorial jurisdiction to entertain and try the present complaint and the objection regarding lack of jurisdiction of District forum ,Amritsar, is not acceptable .

9.       On the basis of the aforesaid contentions, ld.counsel for the complainant has vehemently  contended that there is absolutely no hitch in granting the relief to the complainant as claimed vide instant complaint. The objections taken by the opposite party are frivolous in nature and have been taken just to harass the complainant. Therefore, instant complaint may be allowed in the terms of the prayer made in the complaint itself.

10.     However, from the appreciation of the facts and circumstances of the case, it becomes evident that the complainant has filed a second complaint on same cause of action but the complainant has not made any averment in the complaint regarding filing or withdrawl  of the earlier complaint filed by the complainant for the reasons best known to them, copy of the earlier complaint accounts for Ex.OP8 on record.

11.     Not only that the complainant was earlier having insurance policy regarding the car in dispute issued from HDFC Ergo G.I.C.Ltd. However, later on  that policy of HDFC Ergo G.I.C.Ltd was cancelled by the complainant because the cheque, issued to that company against premium by the complainant, was dishonoured. The vehicle remained un-insured w.e.f 18.6.2013 to 25.8.2013 while the insurance policy in dispute was obtained by the complainant only on 27.8.2013 from the opposite party. At the time of issuing of the policy, the meter of the vehicle was showing the reading as 4468 while at the time of alleged accident  on 20.9.2013 the meter was showing the reading as 4486. The photos Ex.OP14 to OP16 and Ex.OP20 bear witness to the said fact. At the time of lodging of the claim , it is the case of the complainant that they travelled from Amritsar to Ludhiana by car and when they were returning to Amritsar, the said vehicle met with an accident. From these averments, it is crystal clear that complainant is mis-representing  and twisting the real facts as the distance between Amritsar  to Ludhiana is approximately 200 KM which shows that  the complainant has not approached this Forum with clean hands.

12.     From the aforesaid stand of the complainant, the apprehension of the opposite party that the vehicle was already damaged from the underbody , but the claim could not be lodged  with HDFC Ergo G.I.C.Ltd because the premium cheque was bounced and the claim was lodged later on when the insured managed to get the insurance issued from the opposite party by mis-representing the real facts. The complainant has given three different versions firstly he has filed   the complaint bearing No. 89/2014, secondly the present complaint and there is also one statement of the complainant . In these three statements,  he has stated contradictory facts from which it becomes crystal clear that complaint is not speaking the truth. It is settled proposition of law that person , who has not come to the court with clean hands has to be thrown out of the court. For better understanding list of events is given in chronological order as  under:-

1. 5.6.2013 : New Audi car was purchased by M/s. R.K. Steel and on the same day it was insured by HDFC Ergo GIC Ltd.
2. 8.6.2013 : The said policy of HDFC Ergo cancelled due to dishonor of premium cheque . (confirmation mail on policy cancellation is attached herewith as Annexure)
3. 16.8.2013: The said vehicle with ICICI Lombard GIC with meter reading as 4468 K.M (photograph depicting meter reading is attached herewith).
4. 20.9.2013 : The said vehicle was said to be met with accident with meter reading as 4486 KM which just 18 KM is from the date of insurance whereas it ran more than 4000 Km in two months (photographs depicting meter reading at the time of accident is attached herewith).

13.     The important  fact has been that the vehicle remained uninsured from 18.6.2013 to 25.8.2013 till the issue of the policy by the opposite party on 27.8.2013. The loss location i.e. Rahon Road, Ludhiana is about 10-15 KM from the repairer/workshop/dealership. From the above facts , it is very much clear that vehicle was already damaged from the underbody in the first two months  i.e. during the uninsured period i.e. 18.6.2013 to 25.8.2014 but the claim could not be lodged with HDFC Ergo since the premium cheque had  bounced back.  Later the insured managed to get the insurance policy issued from the opposite party and manipulated the date of loss in policy period. Further the loss is not concurrent with the accident. Moreover , no FIR/DDR has been brought on record to prove the loss which is important to prove any alleged loss. In the case titled Manju Sharma Versus LIC Revision Petition No. 3597 of 2012  decided on Ist November 2012 , it has been held by the Hon’ble National  Commission that cogent, convincing and conclusive evidence is required to prove the loss. All these facts reflect that these are complicated questions of law and fact which require voluminous evidence as well as cross examination of witnesses at length. This Forum having summary jurisdiction, is unable to decide the factors regarding mis-representations raised by the Opposite Party.  

14.     It is also worth while to mention over here that the present complainant M/s. R.K. Steel Industries has previously filed one complaint bearing No. 89/2014 dated 26.2.2014 before District Foruml Amritsar, copy whereof is Ex.OP4. In the previous complaint filed by M/s. R.K.Steel Industries, the complainant has been shown to be a proprietorship concern while Vishal Mahajan was stated to be Sole Proprietor. When the opposite party put in appearance in the court and placed on record certain documents which clearly reveal that R.K.Steel Industries is partnership concern, the complainant moved an application to withdraw the complaint with permission to file the complainant afresh. The fact of  filing of the previous complaint has been concealed by the complainant in the instant complaint. The present complaint has been filed by taking into account all the defences which the opposite party has taken in the previous complaint  and thereafter a story has been cooked for the betterment of the complainant. Even then the stand taken in the present complaint is vague and self contradictory and even improvements have been made by the complainant which are not allowed as per the law as the complainant has withdrawn the complaint by stating in the court that there are some technical defects. As such the pleadings of the complainant could not be improved and the improvements made by the complainant from the previous complaint cannot be considered as those are an after thought story which has been cooked to have success in the present complaint.     

15.     Even otherwise also  complaint filed by the complainant is defective.  The complainant is a business establishment engaged  in commercial dealings  and is a partnership firm  consisting of various partners  engaged in business activities of commercial nature . As such in view of the provisions of the Consumer Protection Act, the jurisdiction of District Forum could not be invoked. The relevant facts are that  present car is in the name of M/s. R.K.Steel Industries which is a commercial  institution so the Consumer Court does not have the jurisdiction to try and entertain the present complaint. The complainant himself has stated that he has gone to  Faridabad to attend business meeting. Even according to pleadings in para 2 of the complaint, the car was being used for commercial purposes. The complainant, as such, does not fall under the ambit of  consumer within the definition of section 2(d) of the Consumer Protection Act. The complaint in the present Form is not maintainable as the complaint,  in the circumstances stated in the complaint itself, is not maintainable and deserves to be dismissed. Thus the complainant  in no terms can  be termed as  consumer to seek relief from this Forum. The alleged dispute is of contractual nature which cannot be decided under the Consumer Protection Act by this Forum.  Reliance  in this connection can be placed upon the judgement of Hon'ble National Commission reported in Meera Industries Vs. Modern Constructions II(2009) CPJ 402 (NC) wherein it has been held  that services hired for commercial purposes do not fall within the definition of consumer dispute.

16.     From the above discussion, it transpires that the insurance claim of the complainant has rightly been repudiated by the opposite parties and the complaint filed by the complainant  is not maintainable. However, the parties are at liberty to approach the requisite Court/ Forum for getting the controversy resolved in accordance with law.  Therefore, complaint is ordered to be dismissed with no order as to costs. Case could not be disposed of within the stipulated period due to heavy pendency of the cases in this Forum. Copies of the order be furnished to the parties free of costs. File is ordered to be consigned to the record room.

Announced in Open Forum                        (S.S.Panesar)

Dated : 22.7.2016                                          President

/R/                        (Anoop Sharma)            (Kulwant Kaur Bajwa)

                                      Member                                   Member