Punjab

Ludhiana

CC/14/651

Gurtej Singh Brar - Complainant(s)

Versus

National Ins.Co.Ltd - Opp.Party(s)

Vijay Kumar

13 May 2015

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, LUDHIANA.

 

                                                                    CC No: 651 of 17.09.2014

                                                                   Date of Decision: 25.03.2015

 

Gurtej Singh Brar aged about 65 years s/o S.Joginder Singh, resident of Street no.10, Abohar Road, Sri Muktsar Sahib, Tehsil and District Sri Muktsar Sahib.

..…Complainant

Versus 

1. National Insurance Company Limited, Divisional Office no.1, Link Road, near Atam Park, Ludhiana, through its Divisional Manager and head office at 3 Middleton Street, Kolkata-700 071.

2. Dada Motors Pvt. Ltd. Dholewal, G.T.Road, Ludhiana, through its Managing Director/Chairman.

3. Dada Motors Pvt. Ltd. near Kaner Hotal, Bughipura Chowk, Moga, through its Manager.

 

…..Opposite parties 

 

COMPLAINT UNDER SECTION 12 OF THE

CONSUMER PROTECTION ACT, 1986.

 

Quorum:     Sh.R.L.Ahuja, President

                   Sh.Sat Paul Garg, Member

                   Smt.Babita, Member

 

Present:       Sh.Vijay Kumar Bhatia, Advocate for complainants.

                   Sh.Pardeep.K.Arora, Advocate for OP1.

                   Sh.Vikas Gupta, Advocate for OP2 and OP3.

 

                   

                        ORDER

 

(R.L.AHUJA, PRESIDENT)

 

 

1.               Present complaint under Section 12 of The Consumer Protection Act, 1986 (herein-after in short to be referred as ‘Act’) has been filed by Sh.Gurtej Singh Brar aged about 65 years s/o S.Joginder Singh, resident of Street no.10, Abohar Road, Sri Muktsar Sahib, Tehsil and District Sri Muktsar Sahib (herein-after in short to be referred as ‘complainants’) against National Insurance Company Limited, Divisional Office no.1, Link Road, near Atam Park, Ludhiana, through its Divisional Manager and head office at 3 Middleton Street, Kolkata and others (herein-after in short to be referred as ‘OPs’)- directing them to pay Rs.2,80,000/- i.e. value of Fiat Palio Stile SL Car bearing registration no.PB30E-5181, to refund Rs.80,000/- got deposited by the OP3 on account of repair of car bearing registration no.PB-30E-5181, vide rapat no.8455 dated 1.9.12 (Rs.40,000) and receipt no.7279 dated 7.5.12 alongwith interest @ 18% p.a. from the date of deposit till the realization of amount, to pay Rs.3.00 lac on account of expenses incurred by the complainant due to non delivery of car, to pay Rs.1.00 lac as compensation and to pay Rs.30,000/- as litigation expenses to the complainant.

2.                Brief facts of the complaint are that complainant is the owner of Car 2008 model Fiat Stile SL bearing registration no.PB30E-5181, which was insured with the Oriental Insurance Company Ltd. for the period of 15.10.10 to 14.10.11. After the running repair, the OP2 called the complainant to get delivery of the car on 24.12.11. By that time, the above said insurance policy had expired. As such before getting the delivery of the car, the complainant paid a sum of Rs.1,29,232/- to the OP2 against the bill of repair. OP2 also issued the insurance policy no.25331031116120061019 of National Insurance Company Ltd. for the period 24.12.11 to 23.12.12. On 26.12.11 at about 7.00 pm the said car of complainant unfortunately met with an accident, in this regard DDR no.4 dated 31.12.11 was recorded in Police Station Lakhewali, District Sri Muktsar Sahib. Intimation about the accident was given to OP1 on 27.12.11. The spot surveyor of Op1 conducted the spot survey and clicked the photographs of the accidental car. OP1 appointed the surveyor and OP3 prepared the estimate bill. The complainant immediately submitted all the required documents as directed by the OPs. The OP3 prepared an estimate for the repair of car for a value, which was more than the market value of the car as assessed at the time of issuance of insurance policy by the OP1 i.e. Rs.2,80,000/- and the OP1 and OP2 again assured the complainant that after the due repairs OP1 would bear the expenses of repair and they will deliver the car to the complainant. But despite that the car was not delivered to the complainant. Thereafter OP1 demanded from the complainant, the pre-inspection report of Auto Risk Management arranged at the time of insurance alongwith the photographs within 10 days, failing which the claim will be treated as no claim. The complainant is under no obligation to provide pre-inspection report, especially when it was never handed over to the complainant or the complainant was never asked to get the pre inspection of the vehicle before getting the insurance policy. Claiming the above act as deficiency in service on the part of the OPs, the complainant has filed this complaint.

3.                On notice of the complaint, OP1 appeared through his counsel and filed written statement taking preliminary objections that the present complaint is not maintainable qua the OP1; the present complaint is barred u/s 26 of the Consumer Protection Act; The Forum has got no jurisdiction to try and decide the present complaint; complicated questions of law and facts are involved in the present complaint, which required elaborate evidence both oral and documentary and it is only civil court of competent jurisdiction, who can try and decide the present complaint. As per investigation got conducted by answering OP, the complainant has used fraudulent means and devices in support of his claim in –connivance with the OP2 and OP3 to obtain the benefit under the policy, as the complainant has got the insurance policy of his vehicle from the OP1 and OP2 without getting its pre-inspection report and photographs, through Auto Risk Management, which was necessary to know the exact condition of the vehicle before issuance of the insurance policy as per the guidelines of the OP1. But the vehicle was got insured by the complainant in-connivance with the OP2 and OP3 without Pre-Inspection Report and photographs by using the fraudulent tacts and devices. Hence the complaint of the complainant is liable to be dismissed on this ground. The claim of the complainant falls within the definition of ‘No claim’ since complainant had adopted fraudulent means and devices to grab the amount from the answering OP in shape of claim by getting his damaged vehicle insured from Op1 and OP2 fraudulently. The alleged claim of the complainant is in-genuine, exaggerated and not according to the terms and condition of the policy, without prejudice to its rights answering OP deputed approved Surveyor for assessment of loss of alleged vehicle by making it clear that mere deputation of surveyor would not tantamount to admission of liability of whatsoever nature, according to which net assessed loss is calculated as Rs.1,12,040/- and the answering OP is not liable to pay the said amount on the basis of facts stated above and as per the terms and conditions of the policy. On merits, denying the contents of all other paras of the complaint, Ops prayed for the dismissal of the complaint.

4.                On notice of the complaint, OP2 and OP3 appeared through their counsel and filed written statement taking preliminary objections that the complaint is not maintainable against the answering Ops. The matter is between the complainant and the OP1. The only role played by the answering OPs is that it had got insured the vehicle of the complainant from OP1. The insurance policy of the complainant was lapsed as such it requires the pre-delivery inspection of the vehicle and the answering OP had got inspected the vehicle from the authorized inspection company of insurance company Auto Risk Management. The vehicle of the complainant was inspected by the auto risk management company and after the approval of the inspection company the cover note of the insurance of the complainant’s vehicle was generated online. The Auto Risk Management company never issue the copy of inspection to the answering OPs and it directly issued the inspection report to the insurance company as such the answering OPs does not have the record of that inspection. The answering OPs had repaired the vehicle and spent huge amount on the repair of the complainant’s vehicle i.e. Rs.3,44,553/- and after deducting the advance paid by the complainant i.e. Rs.80,000/- the balance Rs.2,64,553/- is still outstanding against the complainant, as such, the complainant is liable to pay the interest @ 18% p.a. on the outstanding amount, which is prevalent in the market alongwith the parking charges of the vehicle Rs.150/- per day from the day it was fully repaired by the answering OPs. The complainant is not maintainable as the same is hopelessely time barred as the cause of action accrued on 24.11.11, when the complainant got insured his vehicle, whereas the complainant has filed the present complaint in the year 17.9.14 after the expiry of stipulated period of limitation of two years to file a complaint as provided under the Consumer Protection Act. On merits, denying the contents of all other paras, answering OPs prayed for the dismissal of the complaint.

4.                In order to prove his case, Ld. counsel for complainant has placed on record affidavit of complainant Sh.Gurtej Singh Brar Ex.CA, wherein, the same facts have been reiterated as narrated in the complaint and also placed on record documents Ex.P1 to Ex.P24. On the other hand, Ld. counsel for OP1 has placed on record affidavit of Sh.Sanjeev Khurana s/o Late Sh.K.K.Khurana, Assistant Manager, National Insurance Company, Divisional Office-I, Atam Nagar, Ludhiana Ex.RA, wherein the same facts have been reiterated as narrated in the written statement, affidavit of Sh.Prem Singh, DPM, AI.II (Investigator), 9, Vishal Nagar, Near Mandir, Pakhowal Road Ex.RB and affidavit of Sh.Vinod Kumar Proprietor of M/s Vinod Kumar & Associates, H.No.1378-D, Model Town, Entn., Ludhiana, Authorized Surveyor, Loss Assessors & Valuers of National Insurance Company and also placed on record documents Ex.R1 to Ex.R4. Whereas, Ld. counsel for OP2 and OP3 has placed on record affidavit of Sh.Indermohan Pal Singh, Adv., Law Officer, Dada Motors Pvt. Ltd. Savitri Complex-I, Dholewal Chowk, Ludhiana Ex.RA2, whereby he deposed that he has gone through the contents of the written statements and admit the same to be true and correct as per records and documents placed in his hands and the same be read as a part of this affidavit also.

5.                We have heard the Ld. counsel for the parties and have also perused the entire record placed on file.

6.                 It is proved fact on record that complainant is the owner of car Fiat Stile SL model 2008 bearing registration no.PB-30E-5181. It is further proved fact on record that the said vehicle of the complainant was insured with the OPs, vide policy no.25331031116120061019 for the period 24.12.11 to 23.12.12 on payment of premium through Dada Motors, after pre-inspection duly conducted by the Auto Risk Management. It is further proved fact on record that the vehicle of the complainant met with an accident on 26.12.11 at about 7.00 pm and a DDR no.4 dated 31.12.11 was lodged with the Police Station Lakhewali, District Sri Muktsar Sahib and due intimation was also given to OP1. The Insurance company conducted the spot survey. Thereafter the vehicle was brought to OP3 for carrying out necessary repair. It is further proved fact on record that the OP1 appointed a Surveyor and Loss Assessor to assess the loss, who after thorough investigation assessed the net loss to the tune of Rs.1,12,040/- on cash loss basis, after deducting Less wreck value of the vehicle with RC of Rs.55,000/-. The OPs also got conducted the investigation through Investigator Prem Singh, who submitted his detailed report Ex.R1, in which, at the heading Conclusion, it has been submitted that “the only confirmation of good condition of vehicle as on 24.12.11 can be proved by pre inspection photos which have not been provided by the underwriting office and hence own damage claim of the insured may be processed under policy terms and conditions keeping in view of the above observations made by me. Also the aspect of K.M. reading from digital photographs taken at spot must be checked to co-relate with the accident”. So, it appears from the evidence placed on record by the OP1 as well as complainant that the vehicle was duly insured with OP1 insurance company on the day of accident and after survey the surveyor submitted his report Ex.R4. It is settled principle of law that report of the surveyor cannot be brushed out in absence of specific reasons. Since the complainant has not filed any objection to the report of the surveyor. As such, reliance can be placed on the report of the surveyor. But non settlement of the claim of the complainant by the OP1 clearly amounts to deficiency in service. The second relief of the complainant, which has been sought against OP2 and OP3 regarding the non delivery of the vehicle. Ld. counsel for complainant has contended that vehicle was taken to OP2 and OP3 for carrying out the necessary repair and the same is lying with the OP2 and OP3 Dada Motors for the last more than 2 years, despite the fact that Rs.80,000/- paid as advance. Due to non settlement of the claim by the insurance company, the complainant was deprived of from the delivery of the vehicle from the Dada Motors.

7.                On the other hand, Ld. counsel for OP2 and OP3 has strongly contended that repair of vehicle was carried out. The complainant was duly informed for the delivery of the vehicle, but the complainant had neither paid the remaining balance amount and has not taken the delivery of the vehicle, despite repeated reminders sent by OP2 and OP3. The complainant is still under obligation to pay Rs.2,64,553/-. But the perusal of the evidence of complainant reveals that complainant has not placed on record any such document from which, it can be presumed that OP2 and OP3 ever refused to deliver the vehicle to the complainant, after making payment of the balance outstanding amount of repair charges. So, there does not appear to be any deficiency in service against the OP2 and OP3.

8.                Sequel to the above discussion, the present complaint is allowed and OP1 is directed to settle and pay the claim of the complainant on the basis of the surveyor report within 30 days from the receipt of the copy of the order. Further OP1 is directed to pay Rs.20,000/-(Twenty thousand only) as compensation and Rs.2000/-(Two thousand only) as litigation expenses to the complainant. Further OP2 and OP3 are directed to hand over the car bearing registration no.PB30E-5181 of the complainant against proper receipt and verification, subject to payment of remaining repair charges, which the complainant is liable to pay, after deducting the amount of Rs.80,000/-, which was paid in advance by the complainant to OP2 and OP3. Further OP2 and OP3 are directed not to charge any parking charges from the complainant. Copy of the order be supplied to the parties, free of costs. File be consigned to record room.

 

                   (Babita)                          (S.P.Garg)                      (R.L.Ahuja)

                   Member                           Member                         President

Announced in Open Forum.

Dated:25.03.2015 

Hardeep Singh