BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, AMRITSAR.
Consumer Complaint No. 434 of 2015
Date of Institution: 14.7.2015
Date of Decision: 7.6.2016
Shri Ranjit Singh son of Shri Subeg Singh, resident of Village Malliyan, H.No. 8, Tehsil & District Amritsar
Complainant
Versus
- National Insurance Company Limited, through its authorized Officer, Regional Office ,SCO No. 332-334, Sector 34-A, Chandigarh
- National Insurance Company Limited, through its Manager/Officer Incharge, Jandiala Road, Tarn Taran
- National Insurance Company Limited, through its General Manager/Authorized Signatory, Head Office , 3-Middle Town Street, Kolkatta
- M/s. Prabhat Motors, through its Manager/Partner/Prop.,G.T. Road, Putlighar, Amritsar
Opposite Parties
Complaint under section 12/13 of Consumer Protection Act, 1986
Present: For the Complainant :Sh.Rajesh Bhatia,Advocate
For the Opposite Parties No.1 to 3 : Sh.P.N.Khanna,Advocate
For Opposite party No.4 : Sh.Munish Kohli,Advocate
Coram
Sh.S.S.Panesar, President
Ms.Kulwant Kaur Bajwa, Member
Sh.Anoop Sharma,Member
Order dictated by:
Sh.S.S. Panesar, President.
1. Ranjit Singh, complainant has brought the present complaint under section 12 & 13 of the Consumer Protection Act on the allegations that complainant is other of vehicle bearing No. PB 02 CB 6200 (Car Swift Desire VDI) make Maruti and the registration certificate to this effect has been issued in the name of the complainant by the registration authority, Amritsar. The vehicle of the complainant
duly insured with the opposite parties No.1 to 3 vide policy cover note No. 40141704240 which was valid from 9.7.2014 to 8.7.2015. The vehicle of the complainant met with an accident on 13.3.2015 which caused multiple damage to the said vehicle. The complainant immediately informed the opposite parties about the said accident and damage to the car. Opposite party directed the complainant to take the said car to opposite party No. 4 for its repair. The said insurance policy is a cashless insurance policy and the complainant was not supposed to pay any amount to opposite party No.4 for the repairs to the undertaken except the taxes and the entire amount was required to be paid by the opposite party/Insurance company. All the paper formalities were conducted by the opposite parties after receiving all the necessary papers from the complainant. Under the instructi8ons of the said Insurance company, opposite party No.4 repaired the said car against bills dated 17.4.2015 for a total sum of Rs. 85,326/- and lodged the said claim with opposite parties NO.1 to 3. But opposite parties No.1 to 3 did not release the said amount in favour of opposite party No.4 on the lame excuses and the complainant was forced to pay the said amount to release his vehicle from opposite party Nol.4. Thereafter the complainant paid several visits to the office of the Insurance company for his genuine claim covered under the above mentioned insurance policy, but all the times, the concerned officer put off the matter on one pretext after the another . The complainant has already approached pillar to post to get his genuine claim from the said Insurance company but all in vain. The said Insurance company had assured for cashless Insurance in case of accident of vehicle . But instead of releasing the claim amount, the Insurance company is making flimsy excuses. Hence, this complaint.
2. Upon notice, opposite parties No.1 to 4 appeared and contested the claim. Opposite parties No.1 to 3 filed collective written statement while opposite party No.4 filed a separate written reply.
3. In their written reply, opposite parties No.1 to 3 took certain preliminary objections therein inter-alia that the claim has already been repudiated by the opposite parties in the month of July, 2015 clearly informing the complainant vide repudiation letter dated 24.7.2015 that at the time of obtaining of insurance by the complainant from the opposite parties , complainant disclosed that he has not taken any claim from the previous insurer i.e. Bajaj Allianz General Insu.Co.Ltd under their policy. Under the said good faith, NCB benefit was given by the opposite party to the complainant in the policy obtained from the opposite party. However, subsequently, it stands confirmed that the complainant had taken two claims in the policy which was obtained from Bajaj Allianz and as per insurance law, the complainant was not entitled to get benefit of NCB. However by shaking the principle of utmost good faith, the complainant has managed to get NCB under the policy in question. Hence, the claim preferred by the complainant cannot be processed ; that in the light of decision taken by the opposite party as well as keeping in view the conduct of the insured there is no question of any deficiency in service on the part of the opposite party. Hence, the relief claimed by the complainant with respect to interest and damages are not payable at all. In the present case, basically the policy in question has already become ineffective because all the benefits under the said policy stand forfeited on account of violation of GR27 m; that in the light of aforesaid preliminary objections, it is further submitted that the relief claimed by the complainant towards damages and interest are also not payable because basically there is no provision under the Consumer Protection Act nor there is any agreed clause in the policy to grant such relief. Even otherwise as per latest judgement delivered by the Hon'ble National Commission, it has been held that relief of damages and interest cannot be allowed simultaneously. However, in the present case as the basic claim is not payable, therefore, question of any other relief does not arise at all ; that the complainant is not entitled to sum of Rs. 85326/- as claimed in the present complaint. In this regard it is submitted that on receipt of intimation from the complainant, the opposite party deputed surveyor Mr. Pawan Kumar Kanda to assess the loss and the said independent surveyor has assessed the net loss to the tune of Rs. 62891/- subject to deposit of salvage of Rs. 2000/. However, this amount is also not payable by the opposite party in the light of preliminary objections No.21 & 2 as the policy in question has already become ineffective because all the benefits under the said policy stand forfeited on account of violation of GR 27 of the policy in question. On merits, it has been stated that the policy in question obtained by the complainant from the opposite party, benefit of no claim bonus at the rate of 20% to the tune of Rs. 2348/- has been given to him on the basis of information disclosed by him that he had not obtained any claim under the previous policy obtained from Bajaj Allianz and as such benefit of NCB was given on the basis of principle of utmost good faith. However, later on it transpired that infact the complainant had obtained two claims under the said policy with the Bajaj Allianz from which it is apparent that he has concealed this material fact while obtaining the policy in question from the opposite party just to get wrongful benefit of No claim Bonus and has shaken the principle of utmost good faith. Remaining facts mentioned in the complaint have been specifically denied.
4. In its written statement, opposite party No.4 has taken preliminary objections therein inter alia that the present complaint is liable to be dismissed under section 26 of the Consumer Protection Act as the present complaint is gross abuse of the process of law and has been filed by the complainant with the sole purpose of harassing and pressurizing the replying opposite party to succumb to his unreasonable and mischievous demand ; that the complaint is bad for mis joinder and non joinder of party as the replying opposite party is not a necessary party. The sole purpose of impleading the replying opposite party is just to gain unethical benefit from the replying opposite party. Whereas the opposite party having no role on any part with respect to deficiency in service and negligence and as such the present complaint is liable to be dismissed ; that the complainant has concealed the true and material facts from the knowledge of this Forum. The complainant had approached the replying opposite party on 16.3.2015 for the repair of accidental white swift car having registration No. PB -2 CB 6200 having engine No.D1382190836 Chassis No.S00358802. After the inspection of the accidental car, the opposite party No.4 repaired and replaced the necessary parts as required and in this respect job sheet No. 29970 was issued to the complainant aft5er obtaining his signature on the job card dated 16.3.2015. It is pertinent to mention here that the delivery of the car had been given to the complainant after receiving the amount of Rs. 85,326/- ; that the present complaint is gross misuse of process of law. No cause of action has arisen in favour of the complainant and against the answering opposite party to file the present co0mplaint. There is no deficiency of service or breach of contract on the part of answering opposite party. There is no role of any kind on the part of the answering opposite party with respect to negligence or deficiency in service ; that the present complainant has stopped by his own act and conduct from filing the present complaint ; that complaint is nothing but an abuse of the process of law. On merits, it is admitted that complainant approached replying opposite party No. 4 on 16.3.2015 for the repair of accidental white swift car having registration No. PB 02 CB 6200 having engine No. D1382190836, Chassis No. S00358802. After the inspection of the accidental car, the opposite party No.4 repaired and replaced the necessary parts as required and in this respect job sheet No. 29970 was issued to the complainant after obtaining his signature on the job card dated 16t.3.2015. It is pertinent to mention here that the delivery of the car had been given to the complainant after receiving the amount of Rs. 85,326/-. Remaining facts narrated in the complaint have been specifically denied and a prayer for dismissal of the complaint with cost was made.
5. In his bid to prove the case, Sh.Rajesh Bhatia, Adv.counsel for the complainant tendered into evidence affidavit of the complainant Ex.C-1 , copy of Insurance cover note Ex.C-2, copy of letter dated 24.7.2015 Ex.C-3, copies of bills Ex.C-4 to Ex.C-8, copy of certificate cum policy schedule Ex.C-9 and closed the evidence on behalf of the complainant.
6. To rebut the aforesaid evidence, Sh.P.N.Khanna,Adv.counsel for opposite parties No.1 to 3 tendered affidavit of Sh.V.K. Mahajan Divisional Manager Ex.OP1,2,3/1 ,affidavit of surveyor Mr.Pawan Kumar Kanda Ex.OP1,2,3/2 alongwith documents Ex.OP1,2,3/3 to Ex.OP1,2,3/5 and closed the evidence on behalf of opposite parties NO.1 to 3.
7. On the other hand opposite party No.4 tendered into evidence affidavit of Sh.Deepak Gupta, Manager, Prabhat Motors Ex.OP4/1, bills Ex.OP4/2 to Ex.OP4/6, copy of job card Ex.OP4/7 and closed the evidence on behalf of opposite party No.4.
8. We have heard the ld.counsel for the parties and have carefully gone through the record on the file.
9. Ld.counsel for opposite party No.4 has vehemently contended that they have been wrongly impleaded as party to the present complaint and their impleadment amounts to mis joinder of party. As a matter of fact on 16.3.2015, complainant alongwith his accidental car approached opposite party No.4 for repair of the car. The car was repaired and |Rs. 85,326/- as repair charges was received from the complainant. There is no negligence or deficiency in service on the part of the opposite party No.4. Opposite party No.4 has been wrongly impleaded and therefore, opposite party No.4 is entitled to special damages from the complainant and the complaint against opposite party No.4 may be dismissed.
10. Sh.P.N.Khanna, counsel for opposite parties No.1 to 3 has vehemently contended that complainant is not entitled to grant of any damages because the complainant did not submit certificate from Bajaj Allianz General Insu.Co.Ltd i.e. previous insurer of the car of the complainant to the effect that no claim was preferred by the complainant against the policy issued by them nor any such claim has been settled. This requirement was important because if it is confirmed by the said Insurance company that any claim has been lodged by the complainant/insured, then as per law, the payment pertaining to No claim bonus was payable by the opposite party in the renewed policy obtained from it and if the said concealment is proved to be correct one, then all benefits under the existing policy taken by the complainant from the opposite parties shall stand forfeited. Inspite of the aforesaid obligation which was to be completed by the complainant, the opposite party wrote letter dated 24.7.2015 giving time to the complainant to submit his clarification and confirmation that no claim was lodged by him in the earlier policy issued by Bajaj Allianz General Insu.Co.Ltd. However, instead of making compliance of the said letter, the complainant described the same as repudiation letter and moved an application before this Forum to give direction to the opposite parties to produce the repudiation letter dated 24.7.2015, copy whereof is Ex.C-3 on record. But it was not a repudiation letter but a clarification sought from the complainant.
11. It has further been contended that inspite of the position made clear hereinabove, till date the complainant has not submitted any confirmation from Bajaj Allianz |General Insu.Co.Ltd. certifying that no claim was preferred by the complainant for the policy issued by them on the basis of which renewal has been issued by the opposite party by giving benefit of no claim bonus. Hence, complaint filed by the complainant is premature and without any merits.
12. It has further been contended that as far as quantum of loss is concerned, it is submitted that although the complainant has demanded claim for a sum of Rs. 85,326/- however, the independent surveyor has assessed the loss to the tune of Rs. 62891/- with salvage of Rs. 2000/- and after deducting the salvage value, net liability of the company has been assessed at Rs. 60891/-. But since the complainant has not fulfilled the obligation placed upon him to submit the confirmation from earlier Insurance company that no claim has been preferred by the complainant, even, the loss assessed by the independent surveyor could not be released to him. As already submitted hereinabove that if it is found that any claim was preferred and paid by the earlier Insurance company, then as per clause No. GR 27, no claim is payable with respect to policy obtained by the complainant from the opposite party with benefit of No claim bonus.
13. It has further been contended that it has been held by high courts in so many cases that surveyor is the best person to assess the loss and the court cannot assume of the role of surveyor. Hence, the survey report is to be considered as substantial piece of evidence unless the other party proves by leading cogent evidence that particular item has been left by the surveyor or particular item has not been considered while preparing the survey report. Moreover, as per judgement delivered by the Hon'ble National Commission, it has been further held that as far as quantum of loss assessed by the surveyor, the complaint is not maintainable before the Forum to examine the same, rather the concerned party has right either to approach civil court or to file appeal before IRDA or to invoke Arbitration Clause. Reference in this regard has been made to United India Insurance Co. Vs. Roshan Lal Oil Ltd 2001(2) CPC page 340 (SC).
14. On the basis of the aforesaid contentions , it has been vehemently contended that the complaint is liable to be dismissed because the complainant has not complied with the requirement to intimate as to whether he has obtained any claim from his previous insurer or not regarding the car in dispute before obtaining the Insurance policy in dispute. It is contended that complaint may be dismissed accordingly.
15. From the appreciation of the facts and circumstances of the case, it becomes evident that impleadment of opposite party No.4 has not been in accordance with law. There is no deficiency in service either attributed or alleged to opposite party No.4 . As per allegations made in the complaint itself, opposite party No.4 has repaired the damaged car of the complainant and received Rs. 85326/- as repair charges and there is no other role which is attributable to opposite party No.4. As such complaint as framed against opposite party No.4 is not maintainable . As such complaint against opposite party No.4 is ordered to be dismissed.
16. So far as claim against opposite parties No.1 to 3 is concerned, they have taken a definite stand in the written statement that claim of the complainant has already been repudiated because he has not complied with the provisions of GR 27 of the policy . Since the complainant has obtained two insurance claims regarding the car in dispute from the previous insurer i.e. Bajaj Allianz General Insu.Co.Ltd.,therefore no claim was payable to him. But, however, in the evidence before this Court, they have taken a u-turn and have pleaded that as a matter of fact the claim has not been repudiated rather letter dated 24.7.2015 Ex.C-3 was issued to the complainant to explain as to whether he has obtained any claim from the previous insurer regarding the car in dispute or not ? But the complainant has not made any reply to the notice so far. Therefore, his claim has not been decided as yet and is still pending disposal. The complaint is premature . These two stands taken by the opposite parties No. 1 to 3 cannot be reconciled by any stretch of imagination . It appears that opposite parties No.1 to 3 want to delay and prolong the disposal of the claim case of the complainant on one pretext or the other and a lame excuse has been concocted to linger on the claim.
17. From the perusal of the record, it becomes evident that opposite parties No.1 to 3 had deputed independent surveyor Mr.Pawan Kumar Kanda in order to quantify the loss and the surveyor has assessed the loss to the tune of Rs. 62891/- and salvage value has been quantified at Rs. 2000/- . If the salvage is retained by the insured , then the amount of Rs. 2000/- was to be deducted from Rs. 62891/- and as such liability of the Insurance company comes to Rs. 60891/-. It is settled principle of law that the report of the surveyor is final because the surveyor is the best person to assess the loss and the court is not supposed to assume role of the surveyor in assessing the loss. If the complainant was not satisfied with the assessment made by the surveyor, he may approach the civil court or to file appeal before IRDA or go for Arbitration. Reliance in this regard can be had to United India Insu.Co. Vs. Roshan Lal Oil Ltd (supra) wherein the Hon’ble Supreme Court has held that “as far as loss assessed by the surveyor is concerned, the weightage to the same has to be given by the court being substantial piece of evidence as surveyor is the best person to assess the loss and the court cannot assume the role of surveyor.” Further reliance can be placed upon Paam Eatables Vs. United India Insu.Co 2004(3) CLT page 163 wherein it has been laid down that surveyor’s report being an important document cannot be rejected without any reason. The onus was upon the opposite parties No.1 to 3 to prove & produce evidence that the complainant had received claim from the previous insurer by concealing the said fact from opposite parties No. 1 to 3 that he had obtained NCB vide the insurance policy in dispute, but they have failed to prove the said fact. Rather by lingering on the insurance claim of the complainant without any reasonable cause, opposite parties No.1 to 3 are deficient in service.
18. From the aforesaid discussion, it transpires that opposite parties No.1 to 3 are deficient in service and the complainant is entitled to an amount of Rs. 60891/- on account of the Insurance claim regarding his damaged vehicle bearing registration No. PB 02 CB 6200 and the complaint is allowed accordingly against opposite parties No.1 to 3 holding that liability to pay the amount jointly , severally and co-extensively to the complainant. The complainant is also entitled to compensation for mental agony, pain to the tune of Rs. 5000/- .Besides that cost of the litigation are assessed at Rs. 2000/-. Compliance of this order be made within a period of one month from the date of receipt of copy of order ; failing which, awarded amount shall carry interest @ 6% p.a. from the date of passing of order until full and final recovery. Complaint against opposite party No.4 fails and is hereby dismissed. Copies of the orders be furnished to the parties free of costs. File is ordered to be consigned to the record room. Case could not be disposed of within the stipulated period due to heavy pendency of the cases in this Forum.
Announced in Open Forum
Dated : 7.6.2016
/R/ ( S.S.Panesar )
President
( Kulwant Kaur Bajwa) (Anoop Sharma)
Member Member
