New Complaint No.232 of 2023.

                                                        Date of Institution:26.10.2023.

                                                     Old Complaint No:293 of 2018.

                                                         Date of Institution:11.07.2018.

                                                                  Date of order:27.12.2023.

Baljinder Singh Son of Sh. Gurmeet Singh, resident of House No. 105, Kartar Nagar, G.T. Road Batala and District Gurdaspur.

                                                                                                                                                               …............Complainant.                                                                                                                                                                                                                                                                                                                                                                                                       

                                                                               VERSUS

1.       National Insurance Company Ltd., Jalandhar Road, Batala and District Gurdaspur, through its Manager.

2.       National Insurance Company Ltd., Divisional Office, DSC 93, 1st Floor, Ranjit Avenue, Amritsar, through its Divisional Manager.

                                                                                                                                                         ….Opposite parties.

                                              Complaint U/s 12 of the Consumer Protection Act.

Present: For the Complainant: Sh.B.S.Bangowani, Advocate.

             For the Opposite Parties: Sh.Sanjeev Mahajan, Advocate.

Quorum: Sh.Lalit Mohan Dogra, President, Sh.Bhagwan Singh Matharu, Member.

ORDER

Lalit Mohan Dogra, President.

          Baljinder Singh, Complainant (here-in-after referred to as complainant) has filed this complaint under section 12 of the Consumer Protection Act (here-in-after referred to as 'Act') against National Ins. Co. Ltd. Etc. (here-in-after referred to as 'opposite parties).

2.       Briefly stated, the case of the complainant is that the complainant is registered owner of Car Hyundai i-20 Registration No.PB-06-X-0185. It is further pleaded that complainant is plying the above said vehicle for domestic purposes. It is pleaded that the above said vehicle was fully insured with the OP No.1 against Policy No.401602575058 valid from 06.10.2016 to 05.10.2017 (Mid night) as such the complainant is consumer of the opposite parties. It is further pleaded that Insurance of the vehicle was also done by the OP No.1. It is further pleaded that on 09.01.2017, early in the morning, friend of the complainant namely Parminder Singh son of Sh. Jang Bahadur Singh, resident of Batala took away above said vehicle of the complainant for his personal use with the consent of the complainant and the vehicle was being driven by Sanjeev Kumar son of Sh. Mohan Lal, resident of Gobind Nagar, Batala and District Gurdaspur. It is further pleaded that the above mentioned vehicle of the complainant met with an accident in area of Village Adhi near Shiv Shakti Cold Store on Sala Sanghia - Talwandi Sabo Road on 09.01.2017 and the vehicle was completely damaged. It is further pleaded that  driver of the vehicle was holding a valid driving license and the  complainant reported the matter to the police of P.S. Sadar Nakodar and FIR No.6 dated 09.01.2017 U/s 304-A/ 279/337/338/427 IPC was registered. It is further pleaded that matter was reported to the opposite parties by the complainant and the opposite parties deputed their surveyor who visited the spot on the next day and assessed the loss to the vehicle as total loss i.e. Rs.4,60,183/- and it was assured that the complainant will get the full insured amount of the vehicle. It is further pleaded that thereafter the complainant lodged his claim with the opposite parties supported by all the requisite documents for payment on account of the loss suffered by him. It is further pleaded that even the complainant received message from the opposite parties on 30.11.2017 at 06.04 P.M. "That your claim No.40121131166190000517 has been approved for Rs.3,46,500/-. It is further pleaded that to the utter surprise of the complainant, till today no payment has been made by the opposite parties. It is further pleaded that the complainant applied under Right to Information Act in order to know progress of his case, on which the OP No.1 has sent letter without any number and date in which it has been mentioned that the opposite parties have recommended case of the complainant for repudiation and repudiated the claim of the complainant with the false and fake observations that the vehicle was the property of the M/s PHF Leasing Finance Co. and at the time of accident employees of M/s PHF Leasing & Finance were on official duty. It is further pleaded that this fact is totally wrong and not admitted. In fact the vehicle was being used for domestic purposes at the time of accident. It is further pleaded that at the time of accident the vehicle was being driven by the Sanjeev Kumar who is holding valid driving license issued by the competent authority. It is further pleaded that complainant was not plying the vehicle against the terms and conditions of the Insurance policy or in contravention of the insurance policy rules, nor there any intentional or willful delay on the part of the complainant in reporting the matter to the opposite parties. It is further pleaded that the opposite parties by not making payment of full insured amount of the vehicle and the amount spent on the treatment of the complainant on fake and baseless observations are trying to back out from their obligations of making payment of the sum assured to the policy holder / complainant with malafide intention and ulterior motive without any reason or rhyme. It is further pleaded that due to this illegal act and conduct of the opposite parties the complainant has suffered great loss and also suffered mental agony, Physical harassment and inconvenience. It is further pleaded that there is a clear cut deficiency in service on the part of the opposite parties.

          On this backdrop of facts, the complainant has alleged deficiency and negligence in service and unfair trade practice on the part of the opposite parties and prayed that necessary directions may kindly be issued to the opposite parties to honour the claim of the complainant and make the payment of full insured amount i.e. Rs.4,60,183/- qua the claim of the complainant on account of loss suffered by him alongwith interest @ 18% P.A. from the date of accident of the vehicle till actual realization. It is further prayed that compensation and above mentioned expenses being incurred by the complainant to the tune of Rs.50,000/- may also be awarded to the complainant besides the amount in question on account of mental agony, physical harassment and deficiency in service on the part of the opposite parties. Litigation expenses to the tune of Rs.5000/- may also be awarded in favour of the complainant after accepting this complaint, in the interest of justice.

3.       Upon notice, the opposite parties appeared through counsel and contested the complaint and filing their written reply by taking the preliminary objections that the complaint filed by the complainant is not maintainable as the complainant has filed this complaint against the terms and conditions of the Insurance Policy and hence, the same is liable to be dismissed as the complainant has miserably failed to disclose deficiency, if any, in the services of the opposite parties. It is pleaded that all allegations made in the complaint, which are not specifically denied herein, are denied being false and baseless. The complaint is absolutely false and frivolous. It is further pleaded that at the very outset the replying opposite parties denies all the allegations, facts and averments stated in the complaint filed by the complainant except to the extent it is expressly admitted therein. The non-traversal of any paragraph should be read as categorical denial. It is further pleaded that the complaint filed by the complainant is not legally maintainable against the replying opposite parties and is liable to be dismissed, as the complainant has attempted to misguide and mislead the Hon'ble Commission and as such, the complaint is liable to be dismissed on this ground alone. It is further pleaded that no cause of action has ever arisen in favour of the complainant against the replying opposite parties to file the present complaint and hence, the complaint under reply is an abuse of the process of law and as such the same is liable to be dismissed. It is further pleaded that after receiving intimation from the complainant the opposite parties deputed Rajnish Kumar Surveyor and loss Assessor Jalandhar for Motor (Spot) Survey Report, who submitted his report on 28.01.2017. It is further pleaded that thereafter, the opposite parties deputed Bhupinder Pal Singh and Associates Surveyor and Loss Assessor Amritsar to Assess the loss to vehicle Car Hyundai i-20 being registration No.PB-06-X-0185. It is further pleaded that Bhupinder Pal Singh and Associates Surveyor and Loss Assessor Amritsar submitted his final survey report on 01.08.2017 by assessing loss to the vehicle of Rs.3,46,500/- on net of savage basis. It is further pleaded that thereafter, the opposite parties deputed Dr. Simerjit Singh Bawa Investigator Amritsar to investigate OD Claim case in respect of Car Hyundai i-20 being registration No.PB-06-X-0185 A/c Baljinder Singh. Dr. Simerjit Singh Bawa Investigator Amritsar writes a letter to the complainant for providing documents for completion of investigation and also to clarify report regarding vehicle in possession / being used for PHF Leasing Ltd. at the time of accident. It is further pleaded that thereafter Dr. Simerjit Singh Bawa Investigator Amritsar submitted his report on 21.10.2017. It is further pleaded that the opposite parties wrote a letter on 11.05.2018 to the complainant informing him regarding repudiation of his claim. It is further pleaded that thereafter, on 25.06.2018 the opposite party No.1 written a repudiation letter to the complainant by which it is cleared that "We have once again examined the issues and regret to inform you that your above mentioned claim stands repudiated by the competent authority on the following grounds and facts. The branch extracted the correct information from final investigation Report and challan. After completion of police Investigation, Police have filed the challan before Hon'ble Court of Mr. Ravinder Singh Rana, JMIC, Nakodar. The vehicle was the property of the M/s. PHF LEASING FINANCE Co, this aspect was confirmed by the employees of M/s. PHF Leasing & Finance to the police which was incorporated in the final investigation report and challan U/s 173 Cr. PC the driver of the vehicle, Mr. Sanjeev Kumar, had also died in this accident and he was working as a driver for PHF Leasing & Finance Co. at their BO Batala. It is further pleaded that on 09.01.2017, the day of accident, the accidental vehicle met with an accident with a tractor bearing No.PB-08-CH-4154 and  Mr. Sanjeev Kumar, who was driving the accidental vehicle died on the spot and other persons namely Miss Loveleen Kaur D/o Mr. Jatinder Singh, Mr. Parminder Singh S/o Mr. Jang Bahadur and Mr. Gurpreet Singh were all the employees of M/s. PHF Leasing & Finance and they were on official duty at the time of material time of loss. It is further pleaded that at the material time & place of loss, the accidental vehicle was not being used for the purpose (limitation as to use) for which the insured had taken a private Car Policy from us & violation of the terms & conditions of the policy has been found as the car under report was being used by the PHF Leasing Finance Co, for their official use and not as domestic. In view of the fact stated above, the competent authority is unable to find merit in your claim for settlement; hence, the competent authority repudiates this claim.

          On merits, the opposite parties have reiterated their stand as taken in legal objections and denied all the averments of the complaint and there is no deficiency in service on the part of the opposite parties. In the end, the opposite parties prayed for dismissal of complaint with costs.

4.       Learned counsel for the complainant has filed Self-Attested affidavit of Baljinder Singh, (Complainant) alongwith other documents as Ex.C-1 to Ex.C-7.

5.       Learned counsel for the opposite parties has filed documents as Ex.OP-1 to Ex.OP-20 alongwith reply.

6.       Rejoinder not filed by the complainant.

7.       Written arguments filed by both the parties.

8.       Counsel for the complainant has argued that vehicle of the complainant i.e. Car Hyundai I-20 was insured with the opposite parties and during the continuation of the policy of insurance the said vehicle met with an accident on 09.01.2017. At the time of accident vehicle was being driven by Sanjeev Kumar who was having valid driving licence and FIR was also registered in respect of accident. It is further argued that the vehicle i.e. car was borrowed by Parminder Singh friend of the complainant for personal use. It is further argued that the surveyor of opposite parties assessed the loss payable as Rs.3,46,500/-. However, opposite parties repudiated the claim on the basis of report of investigator that the car was property of M/s PHF Leasing & Finance Company at the time of accident and employees of the company were on official duty at the time of accident. It is further argued by the counsel for the complainant that investigator has relied upon facts mentioned in the police proceedings which have not value in the eyes of law and repudiation of claim amounts to deficiency in service on the part of the opposite parties.

9.       On the other hand counsel for the opposite parties has argued that after receiving intimation Rajnish Kumar surveyor was deputed to spot survey who submitted his report on 28.01.2017 and thereafter Bhupinder Pal Singh and Associates Surveyor and Loss Assessor was deputed to assess the loss who submitted his final survey report on 01.08.2017 by assessing the loss as Rs.3,46,500/- on net of salvage basis. It is further argued that Dr.Simerjit Singh Bawa investigator was deputed to investigate the loss who found that the vehicle was being used for M/s. PHF Leasing & Finance Company at the time of accident and persons travelling in the car were employees of the firm and accordingly the claim was correctly repudiated by the insurance company.

10.     We have heard the Ld. counsels for the parties and gone through the record.

11.     It is admitted fact that car bearing registration No.PB-06-X-0185 was insured with the opposite parties insurance company vide policy of insurance w.e.f. 06.10.2016 to 05.10.2017. It is further admitted fact that during the continuation of the policy of insurance car No.PB-06-X-0185 met with an accident in the area of village Adhi near Shiv Shakti Cold Store on Sala Sanghia - Talwandi Sabo Road and vehicle was damaged. It is further admitted fact that at the time of accident the car was being driven by one Sanjeev Kumar who was having a valid driving licence. It is further admitted fact that FIR No.6 dated 09.01.2017 stands registered at P.S. Sadar Nakodar. It is further admitted fact that on intimation surveyor deputed by the opposite parties who assessed the claim for Rs.3,46,500/-. It is further admitted fact that the claim lodged by the complainant has been repudiated by the opposite parties. The only issue for adjudication before this Commission is whether the repudiation of claim is justified on the basis of report of investigator.

12.     To prove his case complainant has placed on record his self attested affidavit, copy of registration certificate Ex.C1, copy of policy of insurance Ex.C2, copy of driving licence Ex.C3, copy of report of investigator Ex.C4, copy of FIR Ex.C5, copy of message Ex.C6 and copy of repudiation letter Ex.C7 whereas opposite parties have placed on record copy of letter dated 13.02.2017 Ex.OP-1, copy of survey report Ex.OP-2, copy of final survey report Ex.OP-3, copy of report of investigator Ex.OP-4, copy of repudiation letter Ex.OP-5, copy of letter Ex.OP-6, copy of challan u/s 173 Cr.P.C. Ex.OP-7, copy of statement Ex.OP-8, copy of police proceedings Ex.OP-9, copy of FIR Ex.OP-10, copy of receipts of payments Ex.OP-11 to Ex.OP-16, copy of statement of account Ex.OP-17, copies of letters Ex.OP-18 and Ex.OP-19 and copy of policy of insurance Ex.OP-20.

13.        Perusal of copy of registration certificate Ex.C1 shows that complainant is registered owner of the car which met with an accident and car is hypothicated with  P H F Leasing Ltd w.e.f 6-10-2013 and the said car is insured vide policy of insurance Ex.OP-2 and the policy is in the name of the complainant and there is endorsement in the policy that  car is hypothicated with  P H F Leasing Ltd. The claim has been repudiated by the opposite parties on the basis of report of investigator Ex.OP-4 as per which at the time of accident some employees of M/s. PHF Leasing & Finance Company travelling in the car and has also referred to the statement of author of FIR Gurpreet Singh who has stated in his statement that he is employed with M/s. PHF Leasing & Finance Company Taran Taran and on ill fated day Gurpreet Singh alongwith Lovepreet Kaur and Parminder Singh were going by car of the company bearing registration No.PB-06-X-0185 and the said statement also finds reference having been made in the challan Ex.OP-7. Copy of ruqa Ex.OP-8 as per which opposite parties have came to the conclusion that M/s. PHF Leasing & Finance Company was the owner of the car but we are of the view that the registration certificate of the car is in the name of the complainant and policy has already been issued in the name of complainant and  car is hypothicated with  P H F Leasing Ltd as per the registration certificate and policy of insurance and the opposite parties have not brought on record any document to show that the complainant had leased or sold the said vehicle to the M/s. PHF Leasing & Finance Company at the time of accident or that the P H F Leasing Ltd ever re possessed the vehicle from the complainant. As such the repudiation of the claim by relying upon the stray line in the FIR and Challan is not justified.  Perusal of receipts Ex OP 11 to Ex OP 16 shows that complainant has been depositing the installments with the M/s. PHF Leasing & Finance Company. We are of the view that opposite parties have failed to place on record the order of the Court of JMIC who released the vehicle on Sapurdari from which it could had transpired that who got the vehicle released on sapurdari. Since the said document has been withheld by the opposite parties as such we have no hesitation in drawing adverse inference against the opposite parties. 

14.     We have placed reliance upon judgment Hon'ble National Consumer Disputes Redressal Commission New Delhi in case titled as Mitesh Lavji Thacker Vs. Iffco-Tokio General Insurance decided on 30.01.2023. It has been held by the Hon'ble State Commission that where two views are possible the one which is in favour of the complainant should be taken reported in 2007(1) CLT 303 Pb. Kulwinder Kaur Vs. L.I.C. Opposite parties have mainly relied upon report of the investigation. However, perusal of file shows that opposite parties have not placed on record any affidavit of investigator or the Manager/Principal Officer of the company. As such we are of the view that no reliance can be placed on such report of the investigator which is not supported by affidavit.

15.     We have further place reliance upon judgment of Hon'ble State Commission Punjab Chandigarh in case titled as Gurvinder Kaur Vs. LIC case number FA/888/2015 and Vidyadhar Vs. Manik  Rao AIR 1999 SC. As per above referred judgments it has been held that before placing reliance upon the report of the investigator the same is required to be proved by means of affidavit.

16.     As far as the question of quantum of compensation is concerned vide report Ex.OP-3 the surveyor has submitted final survey report and has assessed total payable amount to the complainant as Rs.3,46,500/- on net of salvage basis and we do not find any justification or reason to depart from the report of the surveyor.

17.     Accordingly, present complaint is partly allowed and opposite parties are directed to pay Rs.3,46,500/- to the complainant alongwith interest @ 9% P.A. from the date of filing of the present complaint till realization. Opposite parties are further directed to pay Rs.5,000/- as compensation on account of mental tension and harassment and Rs.3,000/- as cost of litigation. Entire exercise shall be completed within 30 days from the date of receipt of copy of this order.          

18.      The complaint could not be decided within the stipulated period due to heavy pendency of Court Cases, vacancies in the office and due to pandemic of Covid-19.

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

                               (Lalit Mohan Dogra)

                                                                         President   

Announced:                                          (B.S.Matharu)

Dec. 27, 2023                                                Member

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