Complainant Shriram Trading Company through its authorized partner Sh.Roshan Lal Kapoor has filed the present complaint against the opposite party U/S 12 of the Consumer Protection Act, 1986 (for short, the C.P.Act.) in which he has prayed that the opposite party be directed to pay his claim i.e. Rs.87,348/- alongwith interest @ 18% per annum from the date of accident till its actual realization. Opposite party be further directed to pay Rs.50,000/- on account of harassment, mental agony and financial loss to him alongwith Rs.20,000/- as litigation expenses, in the interest of justice.

2.       The case of the complainant in brief is that he is a partnership firm and one of its partner Sh. Roshan Lal Kapoor is authorized to file the complaint on behalf of complainant’s firm and as such he is consumer.  This firm is also running the transport business. In the year 2014, he was the owner of 4 Truck Trallas. He purchased a comprehensive policy or his Truck Trolla make TATA bearing registration no.PB-06-L-2765, Model 2011 from the opposite party at Gurdaspur for Rs.15.00,000/- and paid the premium of Rs.30,060/-. His vehicle met with an accident on 9.5.2014 while on its way to Sir Nagar Near Udhampur (J & K). At the time of accident Sachin Kapoor son of Roshan Lal Kapoor was driving the abovementioned Trolla. Sachin Kapoor immediately intimated the opposite party who appointed his surveyor for spot inspection and spot surveyor took photocopies of all the documents including the driving license of Sachin Kapoor at the time of spot survey. He fulfilled all the formalities and submitted all the documents as and when required by the opposite party. He has further pleaded that he submitted estimates of own damage of the Truck Trolla to the tune of Rs.1,00,680/- excluding all taxes i.e. VAT and Sale Taxes. He also submitted bills of repair to the opposite party to the tune of Rs.87,348/-. To his utter surprise, he received a registered letter dated 10.9.2015, repudiating the genuine claim on flimsy grounds. Thus, there is deficiency in service on the part of the opposite party. Hence this complaint.

3.       Upon notice the opposite party appeared and filed its written reply its  counsel by taking the preliminary objections that present complaint is not maintainable in the present form and is without any merits and without any cause of action, complainant has failed to set out any deficiency in service or unfair trade practice on the part of the opposite party as such no theft as alleged by the complainant ever took place, complainant  does not fall within the definition of consumer as the complainant is a commercial concern dealing in commercial business;  the complainant has violated the terms and conditions of the policy and as such complainant is not entitled to any relief; complainant is estopped by his act and conduct from filing this present complaint; the complainant has concealed the material facts from the Hon’ble Forum and has filed the present complaint by stating the false facts. On merits, it was submitted that the complainant has concealed the material facts and mentioned the concocted story just to get undue advantage of the Insurance Policy. The opposite party had written letter dated 2.7.2015, 31.07.2015 whereby the complainant was requested to submit the Driving License of Mr.Gopi Chand who was being mentioned as the driver of the vehicle bearing NoPB-06-N-2765 as per the load challan no.37927 dated 7.05.2014 issued by the F.C.I.  It was further submitted that load challan and gate pass submitted by the complainant with the claim papers. Mr.Gopi Chand was the driver of the vehicle on the clarification sought by the opposite party. The complainant failed to submit either the driving license of the Gopi Chand nor he furnished any clarification regarding the driving license of the Gopi Chand and the mentioning of the name of Gopi Chand as driver in load challan and gate pass submitted by the complainant. There was no deficiency in service of the opposite party as the claim of the complainant was pursued as per the norms of Insurance Company at the earliest moreover the Insurance Company as the deputed Mr.Piara Singh as the surveyor to access the loss of the vehicle and further the surveyor has assessed the loss of vehicle of Rs.37,600/- which was further consented by the complainant vide his consent letter. It is crystal clear that the claim of the complainant could not be processed due to lapse of cooperation from the complainant as he failed to give any reply to letter dated 2.07.2015 and 31.07.2015 as such the opposite party was constrained and compelled to repudiate the claim of the complainant vide letter/intimation dated 10.08.2015 which was sent to the complainant. All other averments made in the complaint have been specifically denied. Lastly the complaint has been prayed to be dismissed with heavy costs. 

4.       Complainant tendered into evidence his own affidavit Ex.CW1/A,   Sh.Sachin Kapoor Ex.CW2/A and of Gurpreet Singh @ Gopi Chand Ex.CW/3/A alongwith other documents Ex.C-1 to Ex.C15 and Ex.C1/A and closed the evidence. 

5.       Sh.Parveen Chadha Branch Manager tendered into evidence his own affidavit Ex.OP-1 alongwith other documents Ex.OP-2 to Ex.OP-7 and closed the evidence.

6.        We have carefully examined all the documents/evidence produced on record and have also judiciously considered and perused the arguments duly put forth by the learned counsels along with the incidental scope of adverse inference for of some documents that have been somehow ignored to be produced by the contesting litigants. We observe that the prime dispute prompted at non-settlement/repudiation of the complainant’s Truck accident-insurance claim by the OP insurers alleging non-submission of the requisite documents i.e., Driving License of Driver Gopi Chand, in spite of the repeated reminders. As per the OP insurers, the accidented Truck was driven by Gopi Chand driver in whose name the related Gate Pass and Challan got issued on the date of accident. However, the complainant has asserted in his complaint that Truck at the time of accident was driven by his son Sachin Kapoor and not by the second driver Gopi Chand. The continuing non-settlement of the impugned claim resulted into the present dispute/ complaint.

7.       We find that the complainant has deposed his allegations vide affidavit Ex.Cw1/A duly supported by documents Ex.C1 – partnership deed and Ex.C1/A – authority letter; Ex.Cw2/A – affidavit of Sachin Kapoor s/o Roshan Lal Kapoor driver; Ex.C3 – the DL of Sachin Kapoor s/o Roshan Lal driver; Ex.Cw3/A – affidavit of Gopi Chand that he is also known by his other name as Gurpreet Singh and possesses driving license in his other name;  Ex.C4 to Ex.C14 – the repair estimates for Rs.1.0 Lac or so; and EX.C15 – the final repudiation letter; vide all these the complainant has proved his allegations/ contents of the complaint. Lastly, the complainant has prayed for reimbursement of Rs.87,348/- spent by him as repair charges besides a fair and suitable cost and compensation etc on the basis of Repair Bills for the total insurance-claim amount of Rs.87,348/-.

8.       On the other hand, the OP insurers have deposed vide its affidavit Ex.OP1 (written reply) that the impugned claim was repudiated/closed on account of non-submission of claim related documents and have also produced document-requisition letters Ex.OP3 & Ex.OP4 and the repudiation letter Ex.OP2.  Further, Ex.OP5 & Ex.OP6 – Gate Pass by the FCI, Gurdaspur, in the name of Gopi Chand driver; and lastly Ex.OP7 – Motor Survey Report dated 22.08.2014 assessing the net loss insurer liability at Rs. 37,600/- also produced on the record proceedings. However, we find that the Surveyor’s loss assessment has neither been satisfactory nor the repair expenses have been proved to be approved as per the standard claim settlement in the instant damage case of the insured Truck caused by the current accident. It is by now a settled law that Surveyor’s report not last and final word. It may be basis for settlement of claim but neither binding upon insurer nor insured. Hence we find that the resultant non-settlement/ repudiation has neither been necessary nor fair measured against the fact in order to cover long distances in hilly/mountainous terrain two nos. of drivers have been a routine and not an exception and as such the instant repudiation amounts to deficiency in service on the part of the OP insurers and that rakes them up to an adverse statutory award under the applicable Act.

9.       In the light of the all above, we partly allow the present claim and thus ORDER the titled OP insurers to pay Rs.87,348/-being loss suffered due to accident of the vehicle besides Rs.5,000/- as cost and compensation (for having caused delay and harassment) to the present complainant within 30 days from the receipt of copy of orders failing which OP shall pay the interest @9% PA on the aggregate amount from the date of orders till actual payment.

10.     Copy of the order be communicated to the parties free of charges. After compliance, file be consigned to records.

  (Naveen Puri)

                                                                    President     

ANNOUNCED:                                            (Jagdeep Kaur)

March 17, 2017.                                           Member.

*MK*