BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, AMRITSAR.

Consumer Complaint No. 737 of 2015

Date of Institution: 31.12.2015

Date of Decision: 03.08.2016  

M/s. Brij Mohan Mittal and Company through its Partner Sh.Amit Mittal son of Sh. Brij Mohan Mittal, situated at Gali Kulfiya Wali, Karkhana Bazar, Inside Sultanwind Gate, Amritsar

Complainant

Versus

1. National Insurance Company Limited, Branch office Amritsar through its Divisional Manager/General Manager/Any other Principal Officer thereof.
2. A.N.R.Motors Private Limited, Daburji, G.T. Road, Near Bye Pass, Amritsar through its  Authorized  Signatory/Any other principal officer thereof

Opposite Parties

Complaint under section 12 & 13  of the Consumer Protection Act, 1986 as amended upto date.

Present: For the Complainant : Sh.Anil Bhatia, Advocate.

              For the Opposite Party  No.1: Sh.P.N.Khanna,Advocate

              For the Opposite Party  No.2 : Sh.K.P.Singh,Advocate

Coram:

Sh.S.S.Panesar President

Ms.Kulwant Kaur Bajwa, Member

Mr.Anoop Sharma, Member  

Order dictated by:

Sh.S.S.Panessar,President.

1. M/s. Brij Mohan Mittal & company through its partner Sh.Amit Mittal, complainant has filed the present complaint under section 12 & 13 of the Consumer Protection Act on the allegations that  complainant purchased one car make Toyota Etios Liva from opposite party No.2 on 15.5.2015 for a valuable consideration of Rs. 6,49,942.94 paise  and got fully insured the same with opposite party No.1 vide policy No. 401208/31/15/6100000626 having insured declared value of Rs. 6,17,446/- and vide insuring the vehicle, the complainant  paid  total sum of Rs. 19,619/- to opposite party No.1. It is pertinent to mention over here that nowhere in the cover note , supplied to the complainant at the time  of insuring the vehicle in question, is mentioned that the expenses for repairing of engine shall not be included in the claim. It is further pertinent to mention over here that the opposite party No.1 only supplied cover note to the complainant and except cover note no other document was ever supplied to the complainant. It is further pertinent to mention over here that it is duty of the insurance company to supply all the relevant documents to the complainant  at the time of insurance which contains the terms and conditions  and further onus is on the insurance company to prove the fact that all the relevant documents containing terms and conditions of the policy  were supplied to the  consumer at the time of making of insurance policy. Unfortunately on 27.9.2015, the said vehicle of the complainant met with road accident at Sirhind at about 10.30 p.m . The complainant immediately arranged for a toe van from Dhiman Recovery, Railway Road, Sirhind vide recovery Van No. PB-65-E-6707 and paid a sum of Rs. 6000/- for hiring the services and thus took the vehicle in question to opposite party No.2 which is service station of Toyota Castle. The said vehicle in question alongwith toe van reached to opposite party No.2 at about  5.00 a.m. on 28.9.2015.  The surveyor examined the vehicle in question and prepared the estimate report for a sum of Rs. 1,06,534.72 paise exclusing VAT and service Tax. The said survey report was prepared by the surveyor excluding the expenses which is to be paid for the repairing of engine which was also damaged in the said accident. Thus the said report prepared by the surveyor is connived, illegal, invalid and unsustainable  under the law. Since the vehicle was fully insured  and at the time of insuring the said vehicle, it was never told to the complainant that the insurance of vehicle does not include the expenses for the engine. Thereafter when the matter was opposed, the surveyor prepared the second estimate report amounting to Rs. 1,23,623.72 paise excluding service Tax and VAT  and the surveyor again does not include the expenses of engine which was amounting to Rs. 2,17,046/- excluding VAT and Service Tax which report is also ingenuine , illegal, unwarranted, connived and as such unsustainable under the law. Thereafter complainant filed the claim form before the opposite party to the tune of Rs. 3,40,669/- including engine expenses  But the same was declined by the opposite party vide letter dated 14.12.2015 given to the complainant merely alleging that the engine Assly of vehickle is not payable under the scope of the policy which assertion of the opposite party is also  illegal , unwarranted and unsustainable in the eyes of law. The vehicle in question is still lying with opposite party No.2 and the complainant has been approaching the opposite party to repair the said vehicle and not to make any demand of money regarding repairing of engine as the vehicle is fully insured, but the opposite party No.2 failed to accede to the genuine and legitimate requests of the complainant and only relied upon the estimate report which is a connived document. But however, opposite parties have failed to do the needful. Vide instant complaint, complainant has sought for following reliefs :-

1. Opposite parties be directed to pass the claim regarding the vehicle including engine repair charges  and to repair the vehicle in question ;
2. Company may also be awarded compensation of Rs. 50000/- for causing mental harassment, agony  etc.
3. Opposite parties be also directed to pay litigation expenses to the tune of Rs. 11000/-.

Hence this complaint.

2.       Upon notice, opposite parties appeared and contested the complaint by filing separate written statements.

3.       Opposite party No.1 in its written version took certain preliminary objections therein inter alia that in the complaint it has been alleged that M/s. Brij Mohan Mittal & Co. is a partnership firm and Mr. Amit Mittal is its partner. However, neither form A nor Form C have been referred in the complaint nor filed with the complaint. As such complaint as prayed  is liable to be dismissed straightway on this ground alone ; that complainant firm has not approached this Forum with clean hands and has concealed the material facts. In this regard it is submitted that the complainant has alleged that he was supplied with cover note only and no terms and conditions were supplied. However, the perusal of the documents  produced by the complainant firm  itself reveals that they have filed the schedule of the policy and not cover note  which is duly stamped. However, it has only filed one page of the said policy, whereas the same is comprised to seven pages. From that it is apparent that the complainant firm wants to wriggle out of the terms and conditions agreed by them  and for that reason, only first page has been filed ; that complainant has also not disclosed the complete correspondence made by the surveyor as well as by opposite party No.1 with it. In this regard it is submitted that the complainant has given reference of only one letter dated 14.12.2015 written by Mr. Pawan Kumar Kanda in which he has  informed  the complainant  firm that it is regretted that inspite of repeated reminders, he has not bothered  to get the abovesaid vehicle  repaired. It is also made clear that loss occurred to engine assembly of the said vehicle is not payable under the scope of the policy being consequential loss which has already been discussed twice at length with Mr. Amit Mittal. Under these circumstances the said surveyor  informed the complainant firm to arrange to get the vehicle repaired at the earliest and produced bills/cash memo of the replaced parts except engine parts to enable to proceed the claim further. However, the complainant has not given reference of other letter written by the said surveyor as reminder dated 29.12.2015 informing that formalities should be complied within seven days from this registered letter failing which  he shall be  constrained to release his independent survey report. However, complainant has not given any reference of this letter nor has filed any reply  which may have been given by the complainant firm to the said surveyor. Besides that opposite party No.1 has  also written letter dated 12.1.2016, 22.1.2016 and  final letter dated 25.1.2016 calling upon the complainant concern to submit their reply with respect to the queries raised in the said letter dated 25.1.2016 within 15 days from the receipt of said letter . But no reply was received  and as such finally the opposite party No.1 sent reminder dated 12.2.2016 informing that if reply is not received with respect to the documents and explanation called , then the Insurance company will left with no option except to close the claim filed as No claim. As the complainant did not give any reply, therefore,  even again same opportunity was provided to it vide reminder dated 3.3.2016 but to no effect.  As such the claim automatically stands closed as No claim; that complainant did not cooperate and did not get the vehicle repaired nor submitted  any cash memo/repair bills of the damaged vehicle , therefore, independent surveyor Mr. Pawan Kumar Kanda submitted his report with opposite party No.1 in which the loss was assessed to the tune of Rs. 1,13,490/- subject to salvage value of Rs. 2500/-. But while submitting the said report, the said surveyor had made clear that inspite of various letters and reminders written to the complainant firm, they have not bothered to get the vehicle repaired nor produced the vehicle for final re-inspection  and as such it has been stated by the said surveyor in his report that he has assessed the loss as above on the basis of estimate submitted by the insured and final assessment can only be made on production of cash memos by the insured and reinspection of the said vehicle . On merits, facts narrated in the complaint have been specifically denied and it is contended that  the claim could not be processed  by the opposite party No.1 because the complainant did not get his vehicle repaired nor he submitted any bills, invoices regarding repair of the vehicle  in dispute, therefore,  no assessment of loss on actual basis could be made by the surveyor and it is contended that the complaint filed by the complainant is pre-mature and the same is liable to be dismissed accordingly.

4.       In written statement on behalf of opposite party No.2  , certain preliminary objections  were raised  to the effect that complainant does not fall within the definition of consumer ; that complainant  so far as subject matter or the complaint is concerned, is not  consumer qua replying opposite party. The  subject matter of the complaint admittedly relates to claim of insurance for which opposite party No.1  is service provider  and the complainant is consumer qua opposite party No.1 only. Thus the complaint deserves dismissal against replying opposite party ; that opposite party No.2 is bad for misjoinder of necessary parties. Opposite party No.2 is unnecessary party to the present complaint ; that complainant has got no locus standi to file the complaint against opposite party No.2. Remaining facts narrated in the complaint have also been denied and a prayer for dismissal of the complaint with cost has been made.

5.       In his bid to prove the case Sh.Anil Bhatia,Adv.counsel for the complainant has tendered into evidence his duly sworn affidavit Ex.C-1 alongwith documents Ex.C-2 to Ex.C-13 and closed the evidence on behalf of the complainant.

6.       To rebut the aforesaid evidence Sh.P.N.Khanna,Adv.counsel for opposite party No.1 tendered into evidence affidavit of Dheeraj Seth,Divisional Manager Ex.OP1/1, affidavit of Sh.Pawan Kumar Kanda, Surveyor and Loss Assessor Ex.OP1/2 alongwith documents Ex.OP1/3 to Ex.OP1/13 and closed the evidence on behalf of opposite party No.1.

7.       On the other hand Sh.Kanwar Pahul Singh,Adv.counsel for opposite party No.2 tendered into evidence affidavit of Sh.Rakesh Kapoor, G.M.Finance Ex.OP2/1 and closed the evidence on behalf of opposite party No.2.

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

9.       There is no denying the fact that vehicle in dispute was insured with opposite party No.1 vide insurance Policy No. 401208/31/15/6100000626 for a valuable consideration of Rs. 6,17,446/-. Copy of the Insurance policy accounts for Ex.C-6 on record. It is disputed inter se parties that the engine of the vehicle was not insured and the complainant was entitled to  the loss occurred to the body of the vehicle  in dispute for the alleged accident which occurred on 27.9.2015. When the complainant applied for grant of insurance claim, opposite party appointed Mr. Pawan Kumar Kanda as surveyor, who inspected the vehicle and assessed the estimated loss to the tune of Rs. 1,06,534.72 paise excluding VAT and Service Tax. On the request of the complainant, the surveyor assessed revised estimated loss to the tune of Rs. 1,23,623.72 paise excluding service tax and VAT . But however, complainant was not satisfied . The complainant did not get the vehicle in dispute repaired despite repeated requests and reminders made by the surveyor from time to time. Copies of the reminders /letters account for Ex.OP1/4 to Ex.OP1/12 on record. It is the case of the complainant that no terms and conditions of the  insurance policy were  supplied by the opposite party No.1  and only cover note of the insurance policy was supplied. But, however, since the complainant has been basing the claim on account of Insurance policy in question, therefore, complainant cannot wriggle out from the terms and conditions of the Insurance policy in question.  The terms and conditions of the contract are part and parcel of the insurance contract. Reliance in this connection has been placed on Tarun Bansal & Anr Vs. Reliance General Insurance  Company Ltd. & Ors II(2007) CPJ 295 that where the insured alleged that exclusion clause was not conveyed to him, the Hon'ble State Commission held that if the exclusion clause which is  a part of the policy was not conveyed, it would mean that even the policy was not conveyed . Then what was the basis for lodging the claim.  The complainant cannot blow hot and cold in the same breath. On one side he is saying that the claim should be entertained and made payable under the policy and yet says that exclusion clause of the same policy would not be applicable as having not been paid . In this regard Hon'ble State Commission relied upon full bench ruling of the Hon'ble Apex Court in General Assurance Society Ltd Vs. Chandmull Jain and Anr. AIR 1966 Supreme Court, 1644 wherein it was held that in such circumstances all terms will be deemed to have been conveyed. Since in the present case, it was the first year of the insurance policy that the medical claim was undertaken, the Exclusion clause would come into play and no claim would be payable. So in the light of five judges bench ruling of Hon'ble Apex Court in  General Assurance Society Ltd. Vs. Chandmull Jain and  Anr (Supra) the complainant is deemed to have been served with terms and conditions of the policy including exclusion clause.  Moreover had the complainant not been supplied with the terms and conditions of the policy, complainant could approach for cancellation of the policy within free look period of 15 days from the receipt of the Insurance policy in dispute or he could approach the opposite party for supply of alleged terms and conditions of the Insurance policy in dispute. But nothing of the sort has been done by the complainant and it appears that the complainant has concocted a false version to build a pressure on  opposite party No.1 to succumb  to the demand of excessive claim. As such it is held that the complainant was supplied with the Insurance policy alongwith terms and conditions of the Insurance policy in dispute and the complainant cannot now raise any objection regarding the said fact.

10.     So far as the present complaint is concerned, it is surely premature because the assessment of insurance claim regarding the loss of the vehicle in the accident  can only be ascertained on the basis of the actual bills and invoices supplied by the complainant to the Insurance company. But since not repairs have been undertaken and  no  bills/invoice for the same have been supplied, therefore, opposite party No.1 is not in a position to assess the actual loss occurred to the vehicle and consequently the insurance claim could not be settled.

11.     As such we find the instant complaint to be premature . The complainant is directed to get the insured vehicle repaired within one month from the receipt of copy of the order and submit the bills/invoices etc. to the Insurance company , which will settle the Insurance claim within a further period of two months  therefrom as per terms and conditions of the Insurance policy. The complaint stands disposed of accordingly. 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 : 3.08.2016                                                          President

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

                                      Member                                   Member