BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, KAPURTHALA.
Complaint No. 10 of 2019
Date of Instt. 29.01.2019
Date of Decision:09.01.2020
Kuldeep Singh Son of Sh. Gurmit Singh son of Sh. Raj Mal, aged about 61 years, Resident of Village Dhesian Kahna, Tehsil Phillaur, District Jalandhar.
….....Complainant
Versus
1. National Insurance Company Limited, Head Office at 3, Middleton Street, Prafulla Chandra Sen Sarani, Kolkata, West Bengal-700071 through its General Manager.
2. The Branch Manager, National Insurance Company Limited, G. T. Road, Opposite Bus Stand, Phagwara, District Kapurthala.
3. Vinod Bhan, Surveyors, Loss Assessors & Valuers, SCO 179-80, Top Floor, Sector 17-C, Chandigarh.
4. M/s Globe CV Private Limited, Delhi-Amritsar NH-1, Village Mehandipur, Tehsil Khanna-141401, Authorized Dealer of Bharatbenz, through its General Manager/Authorized Officer. ......Opposite parties
Complaint under section 12 of Consumer Protection Act
Quorum: Before: S. Karnail Singh (President)
Mrs.Rajita Sareen (Member)
Present: Complainant in Person.
Sh. Gurpreet Singh, Adv. Counsel for the Ops No.1 and 2.
OP No.3 Exparte
Sh. R. K. Anand, Adv. Counsel for OP No.4.
Order
S.Karnail Singh (President)
1. This complaint has been filed by the complainant, wherein alleged that he is owner of 12 tyre vehicle bearing Registration No.PB-08CP-4531, Chassis No.MEC2241CEP006132, Engine No.400950D0006369 Make/Model Bharat Benz 3123 R/2014, the said vehicle was purchased from OP No.4 and the complainant got the said vehicle fully insured from respondent No.2, who is working under the control and administrative command of the respondent No.1, vide policy/Cover note bearing No.401801/31/17/63000000422. During the above said insurance policy period, the vehicle was met with an accident in the month of March, 2018 and regarding that matter was reported to the police station Goraya, District Jalandhar Rural, who registered DDR No.18 dated 16.03.2018. In the said accident, the cabin of the said vehicle/truck of the complainant was damaged and the floor of the said cabin was bent in such a way that the same if not replaced and just repaired, then the same is dangerous for human life on road.
That the respondent No.4 on inspection of the said cabin of the said vehicle also never opined that the said Cabin could be fit for use/roadworthy if the same will be just repaired, in writing as the said cabin as per the parameters of safety could not be made fit for roadworthy so as to obviate the possibility of existential danger to human life. Further, the replacement of the cabin is cheaper than the repair of the said cabin which could be dangerous to human life as per the estimates given by the respondent No.4, thus, keeping into view the proposition and faced with the said realization, the complainant purchased a new cabin by raising loan from his limit account lying with Canara Bank, Branch Kahna Dhesian, so as to ensure that further loss to the earnings from plying of the said truck could be obviated and warded off. Respondent No.3 being approved surveyors, loss assessors and valuers of the respondents No.1 and 2 with whom the said vehicle is fully insured was instructed by the respondents No.1 and 2 to give his report. However, the respondents No.3 did not discharge his function properly and against the material on record and the kind of loss suffered by the cabin of the said vehicle gave his both the interim as well as final survey report which is against the established cannons applicable in the facts and circumstances of the case, whereby the respondent No.3 disregarding the irreparable nature of the damage suffered by cabin of the said truck recommended initiation of the repair of the same instead of its replacement. Respondents No.1 to 4 are fully cognizance of the fact that the cabin of the said vehicle cannot be repaired to the extent so as to rule out the possibility of the recurrence of the bending of the floor owing to the factum of the irreparable sort of damage suffered by the said floor. Still, the respondents No.1 to 4 are adamant in getting the said cabin repaired instead of the same being replaced without giving confirmation in writing that the said cabin, if repaired, will be fully roadworthy and there is no possibility of danger to any human life in and outside the said cabin. The above said cabin is lying in the custody of the respondent No.4. Even all the other necessary documents have been submitted by the complainant for seeking insurance claim with the respondents No.1 and 2. The complainant has requested the respondents many times to do the needful and to replace the cabin of the said vehicle, but the respondents continued to postpone the matter on one pretext or the other and thereafter, the complainant issued a legal notice on 30.08.2018 calling upon all the respondents to immediately replace the cabin of the said vehicle, but no action was taken upon that legal notice and then again a reminder legal notice dated 04.10.2018 was also issued by the OPs, but again all in vain and as such, the act and conduct of the OPs is tantamount to negligent and deficient and as such, necessity arose to file the present complaint with the prayer that the complaint of the complainant may be accepted and respondents may kindly be directed to compensate the complainant to the tune of Rs.10,00,000/- both on account of deficiency of services as well as acts and omissions of indulging in unfair and restrictive trade practices by the OPs on account of losses suffered by the complainant on various other counts attributed to the lapses on the part of the OPs having direct or indirect bearing, in the interest of justice.
3. Notice of the complaint was given to the opposite parties, but despite service opposite party No.3 failed to appear and ultimately, OP No.3 was proceeded against exparte.
4. OPs No.1 and 2 duly served and appeared through its counsel and filed joint written reply and contested the complaint by taking preliminary objections that present complaint is not maintainable and even the complainant has got no cause of action and locus standi to file the present complaint and further averred that the complainant has concealed the material facts from the Forum and further submitted that on receipt of the information from the complainant, following due course, the competent authority of replying respondent appointed, Sh. Vinod Bhan as surveyor to assess the loss and do the needful, who checked the vehicle in the presence of the complainant in the premises of respondent No.4. Upon the physical inspection of the vehicle, it was observed by the surveyor that the damage caused to the vehicle is repairable one. On the scrutiny of the estimate, the net assessed loss of the vehicle was Rs.1,27,108/- and accordingly, the surveyor recorded his observation in his final report dated 17.04.2018. The aforesaid Surveyor, in order to make best possibility to restore the vehicle, made several visits even on the subsequent dates to the premises of the respondent No.4. Upon the thorough examination/inspection of the vehicle, it was reaffirmed that the damage caused to the vehicle is repairable one and accordingly, respondent No.4 was asked to repair the vehicle by replacing the damaged side parts to which they agreed. Thus, the respondents offered their best services to the complainant. Initially the complainant was not interested in repairing the cabin and was adamant on the replacement of the same. This was not acceptable as per terms and conditions of the policy and in the light of rules of indemnification. Moreover, the authorized dealer also held the same and agreed to repair the vehicle. It was made clear to the complainant that the damage sustained does not warrant replacement of cabin and only damaged part of the cabin needs replacement. However, the complainant insisted to replace the cabin at his own expenses and agreed to accept the repair liability of the cabin. Now he is demanding for the loss of cabin. The demand of the complaint is against the express terms and conditions of the policy. The same is illegal, wrong, arbitrary, unfair and against the principle of natural justice. It is further alleged that the complaint is misconceived, premature and abuse of law. The replying respondent had always been and is still ready to pay the genuine claim of the complainant in terms of policy as assessed by the surveyor. The vehicle of the complainant has already been repaired. It is further alleged that the complainant is barred by his own act and conduct, omission and commission to file the present complaint. On merits, it is admitted that the vehicle of the complainant was insured with answering OPs and it is also admitted that the claim of the complainant received and accordingly, OPs are ready to pay the repair charges. The other allegations as made in the complaint are categorically denied and lastly submitted that the complaint of the complainant is without merits, the same may be dismissed.
5. OP No.4 filed its separate reply and contested the complaint by taking preliminary objections that the present complaint is not maintainable in the present form, hence the same is liable to be dismissed and further alleged that the complaint is bad for mis-joinder of necessary parties and even the complainant has no locus-standi to file the present complaint. It is further averred that the present complaint filed by the complainant is gross abuse of process of law and is absolutely false, frivolous and vexatious, thereby making it illegal and not tenable as the said complaint has been filed without any cause of action against the answering OP. It is further submitted that the OP No.4 has got nothing to do with the controversy in question, but the complainant intentionally, deliberately and with ulterior motive to fetch the money from OP No.4, has involved it in this false complaint. On merits, it is admitted that the accidental vehicle of the complainant was brought to the workshop of the OP No.4 and further submitted that the complainant, who himself requested in writing dated 26.03.2018 for changing the colour of the vehicle and further stated in his letter dated 19.04.2018 that he wants to repair his old cabin, so do work on it, after assessment, but thereafter the replying OP never received any payment from the complainant for the necessary repair. In fact, replacement costs almost double than its repair as in the present case. The estimate for repair as well as for replacement of cabin duly prepared by replying OP on the request of complainant, which is placed on the file. The other allegations as made in the complaint are categorically denied and lastly submitted that the complaint of the complainant is without merits, the same may be dismissed.
6. Complainant filed rejoinder of the written reply of the OPs No.1 and 2, whereby reasserted the entire facts as detailed in the complaint and denied those of the written statement, but no rejoinder of the written reply of OP No.4 filed.
7. In order to prove their respective case, both the parties brought on the file their respective documents.
8. We bestowed our thoughtful consideration to the submissions made by learned counsel for the respective parties and also gone through the case file very minutely.
9. The main contention of the counsel for the complainant is only that the vehicle of the complainant bearing Registration No.PB-08CP-4531 was got insured with OPs No.1 and 2 and copy of the insurance is available on the file Ex.C-2 and further, the factum in regard to accident of the insured vehicle is also not disputed because copy of the DDR Ex.C-3 recorded in Police Station Goraya, District Jalandhar is available on the file to prove these facts and thereafter, the complainant submitted insurance claim in regard to damage caused to the insured vehicle and accordingly, an assessment of the loss was also made by the Surveyor appointed by the OPs No.1 and 2 and similarly the said assessment of the damaged car to the vehicle also made by the OP No.4, who is running a service centre.
10. The main allegations of the complainant are only that the cabin of the vehicle was totally damaged, which required replacement for the safety of the driver as well as goods loaded in the said vehicle and on the road, but the Surveyor of the OPs No.1 and 2 was not agreed to give a report to replacement of the said cabin and alleged that despite repeated request the OPs are not ready to replace the said cabin.
11. We have analyzed the above said allegation of the complainant and find that the vehicle of the complainant was parked in the service centre of the OP No.4, who also make assessment of the damaged caused to the said vehicle and said OP No.4 also appeared in this complaint and filed a detailed reply, wherein categorically stated that the vehicle is repairable and even the cabin is also repairable, but the complainant himself stated that he wants to get repair the old cabin, vide in a writing Ex.R/2/B and similarly, the complainant also gave a writing Ex.R4/A, whereby make a request for change of color of the truck and accordingly, the repair was started and OP No.4 also gave estimate for repair as well as for replacement of cabin, which are Ex.R4/C, Ex.R4/D respectively and final invoice after replacement of cabin is Ex.R4/E. If we go through the aforesaid three documents Ex.R4/C, Ex.R4/D and Ex.R4/E, then itself clear that he gave in writing that he wants to replace the cabin due to safety reason and further submitted that he wants to repair his old cabin, so, please keep it and do work on. So it means the complainant himself admitted in document Ex.R4/B that the old cabin may be repaired and accordingly, the OP No.4/Service Centre prepared three estimates Ex.R4/C and Ex.R4/D showing repair of the cabin and then replacement of the cabin and thereafter, final report submitted after replacement of the cabin vide report Ex.R4/E. If we go through the version of the Service Centre/OP No.4, then we can say that the reports submitted by the Surveyor of the Ops No.1 and 2 is not arbitrarily or illegally nor it is in favour of the OP rather the said report is independent, whereby he assessed the loss of Rs.1,28,792/- just by repairing the damaged cabin. So, we do not find any illegality in the report of the Surveyor, therefore, the complainant is entitled for the amount assessed by the Surveyor i.e. Rs.1,28,792/- and further, we do not find any deficiency in service on the part of any of the OPs No.1 to 4 nor any negligence and therefore, the complainant is not entitled for compensation or litigation expenses.
12. In the light of above detailed discussion, the complaint of the complainant is partly accepted only to the extent that he is entitled for an amount of Rs.1,28,792/-, which was assessed by the Surveyor of the OPs No.1 and 2. If the amount has been already received by the complainant himself or the workshop, where-from he got repaired the vehicle, then the OPs No.1 and 2 are not liable to pay anything, if already not received, then OPs No.1 and 2 are directed to pay the said amount to the complainant. Accordingly ordered. This complaint could not be decided within stipulated time frame due to rush of work. 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 Rajita Sareen Karnail Singh
09/01/2020 Member President
