Complaint No: 242 of 2019.

                                                                Date of Institution: 23.07.2019.

                                                                        Date of order: 07.03.2024.

Daljit Singh aged about 32 years Son of Arjan Singh, resident of Village Shikar Machhian, Tehsil Batala and District Gurdaspur. Pin Code – 143605.

                                                                                                                                                                            …......Complainant.                                                                                                                                                                                                                                                                                                                                                                                                   

                                                                                      VERSUS

1.       National Insurance Company Ltd., Jalandhar Road, Batala, through its Branch Manager. Pin Code – 143505.

2.       National Insurance Company Ltd., 3, Middleton Street, Prafulla Chandra Sen Sarani Kolkata, West Bengal – 700071, through its Authorized Signatory or General Manager.

                                                                                                                                                              ….Opposite parties.

                                                   Complaint under Section 12 of Consumer Protection Act.

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

               For the Opposite Parties: Sh.Rajeev Sharma, Advocate.

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

ORDER

Lalit Mohan Dogra, President.

          Daljit 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 Insurance Company Ltd. Etc. (here-in-after referred to as 'opposite parties).

2.       Briefly stated, the case of the complainant is that the complainant is owner of the vehicle i.e. Tata Truck bearing Registration No. PB-06-V-7685 and the said vehicle was duly insured by the complainant with the opposite parties vide Insurance Policy No. 401208311710000054 for the period from 26.09.2017 to 25.09.2018. It is pleaded that on dated 22.10.2017, the said Truck was being driven by the Driver namely Jaswinder Singh son of Balvir Singh and at about 4.00 P.M. the said truck was reached near Bakshiwal and at that time some animal came in front of the truck and the driver of the truck could not control the said truck immediately and said truck was met with an accident. It is further pleaded that the matter was reported to the police at P.S. Kalanuar immediately after the occurrence, but at that time no DDR was registered by the police as the complainant was under the shock of the accident and suffered heavy loss at that time. After some time, when the truck was given to the Truck Mechanic for its repair, then the complainant also got registered the DDR with P.S. Kalanuar vide DDR No. 11 on dated 13.01.2018. The matter was also reported to the opposite parties, who appointed the Surveyor. It is further pleaded that the complainant got the truck repaired and spent more than Rs.2,57,000/-  on the repair of the said truck. The complainant submitted the bill of the total expenditure of Rs.2,57,000/- approximately, but the opposite parties have not paid any amount to the complainant. It is further pleaded that due to the above mentioned acts, there is a deficiency in the service of the opposite parties within the definition of Consumer Protection Act and for this negligence and non- compliance on its part will make itself liable for the damages and consequences. 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 unfair trade practice on the part of the opposite parties and prayed that necessary directions may kindly be issued to the opposite parties to pay the amount of Rs.2,57,000/-  as mentioned above alongwith interest at the rate of 18% per annum from the date of accident till actual realization of the amount to the complainant and Rs.75,000/- as litigation expenses, mental harassment, travelling expenses and other expenses, in the interest of justice and fair play. 

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 present complaint is not maintainable in the present form and is without any merits and without any cause of action. The complainant has failed to set out any deficiency in service or unfair trade practice on the part of the answering opposite parties. It is pleaded that the complainant is estopped by his act and conduct from filling the present complaint. The complainant has concealed the material facts from the Hon'ble Commission and has filed the present complaint by stating the false facts. It is further pleaded that the answering opposite parties have already settled the claim of the complainant and the loss as assessed by the surveyor (as per the terms and conditions of the insurance policy) has already been paid to the complainant on dated 29.03.2018 and the complainant had accepted the amount of Rs.51,800/- as the loss assessed by the surveyor without any objection. The complainant has concealed this fact that he has already obtained the assessed amount from the answering opposite parties. It is further pleaded that there was no deficiency in service on the part of the answering opposite parties as the claim of the complainant was pursued as per the norms of insurance company at the earliest, moreover the Insurance Company had immediately deputed the surveyor after the intimation of loss and had deputed Mr. Rajesh Kumar Soni as the Surveyor to access the loss of the vehicle and further the Surveyor has accessed the loss of vehicle as per his final survey report dated 01.02.2018. As such the present complaint is liable to be dismissed. It is further pleaded that in the present case the complainant had neither lodged any FIR nor registered any DDR immediately after the accident. The complainant got registered the DDR in respect of the alleged accident on dated 13.01.2018 i.e. after more than two months and in spite of this the answering opposite parties had processed the claim of the complainant with high priority and paid the claim as per the terms and conditions of the insurance policy. It is further pleaded that the complainant has mentioned the date of loss in the claim / intimation form as 06.11.2017, but the complainant has mentioned the date of loss in the complaint in the DDR is 22.10.2017. The present claim is in respect of loss of commercial vehicle and such the complainant is not a consumer and the matter in dispute is beyond the scope of Jurisdiction of the Hon'ble Commission. It has been held by the NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION, NEW DELHI  in case titled as M/s. Manikbag Pvt. Ltd. Vidhyanagar Vs. Rajaram Mahadev Nilajkar 2016 (4) C.P.R. 200) that "Consumer Protection Act, 1986 Section 2 (1) (d) Consumer Complaint - Maintainability – Vehicle was purchased by complainant for a commercial purpose - There is no averment in complaint that truck was sought to be used by complainant exclusively for the purpose of earning his livelihood by means of self- employment - In absence of such an averment, complainant cannot seek to include his case within meaning of Section 2 (1) (d) of Consumer Protection Act - District Commission, therefore, did not have jurisdiction to entertain the complaint". Further it has been held by the NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION, NEW DELHI in case titled as United India Insurance Co. Ltd. Vs. Kishore Sharma (2015 DNJ 103: 2015(1) C.P.J. 760: 2015(1) C.P.R. 478) that "Consumer Protection Act, 1986 Sections 2 (1) (d) and 21 (b) Consumer - Purchase of vehicle - Commercial purpose - Driver has been employed to drive vehicle - Purpose of purchasing of vehicle was to use the vehicle for commercial purpose - Complainant not consumer". It is further pleaded that as such in the present case this Hon’ble Commission does not have the jurisdiction to try this matter and the claim of the complainant has already been settled and paid to the complainant and the complainant has concealed this material fact from this Hon’ble Commission and as such the present complaint of the complainant is liable to be dismissed on this ground alone.

          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 tendered into evidence affidavit of Daljit Singh, (Complainant) as Ex.AW-1/A alongwith other documents as Ex.A-1 to Ex.A-9.

5.       Learned counsel for the opposite parties has tendered into evidence affidavit of Mr. Sunil Kumar Tuli, (Senior Divisional Manager, National Insurance Co. Ltd., Pathankot) as Ex.OPW-1/A alongwith other documents as Ex.OP-2 to Ex.OP-3 alongwith reply.  

6.       Rejoinder filed by the complainant.

7.       Written arguments filed by the complainant, but not filed by the opposite parties.                                                                               

8.       Counsel for the complainant has argued that truck of the complainant was insured with the opposite parties insurance company vide policy Ex.A-1. It is further argued that truck met with an accident on 22.10.2017 and claim was lodged with the opposite parties but opposite parties have failed to pay the claim, inspite of the fact that complainant had to pay amount of Rs.2,57,000/- from his own pocket. Failure to pay the amount amounts to deficiency in service.

9.       On the other hand counsel for the opposite parties has argued that on receiving intimation surveyor was deputed who had assessed the loss payable to the complainant as Rs.51,800/- and accordingly as per the assessment arrived at by the surveyor vide his report Ex.OP-2 amount of Rs.51,800/- was paid to the complainant which was received by the complainant without any objection and as such there is no deficiency in service on the part of the opposite parties and complaint is liable to be dismissed.

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

11.     To prove his case complainant has placed on record his affidavit Ex.AW-1/A, copy of insurance policy Ex.A-1, copy of G.D. report Ex.A-2, copy of R.C. Ex.A-3, copy of driving licence Ex.A-4 and copies of bills Ex.A-5 to Ex.A-9 whereas opposite parties have placed on record affidavit of Mr.Sunil Kumar Tuli Sr.Divisional Manager Ex.OPW-1/A, copy of report of surveyor Ex.OP-2 and copy of claim form Ex.OP-3.

12.     Complainant has alleged in the complaint that complainant had spent amount of Rs.2,57,000/- from his own pocket on account of repair of the truck in question and opposite parties have not paid any amount to the complainant. However, perusal of file shows that surveyor deputed by the opposite parties had vide his report Ex.OP-2 asserted that  the payable loss to the complainant was Rs.51,800/- and plea of the opposite party is that said amount has been paid to the complainant on 29.03.2018. We have also gone through the report of surveyor Ex.OP-2 and the assessment arrived at by the surveyor and we do not find any reason to ignore the report of surveyor. During the course of arguments counsel for the opposite parties has admitted that amount assessed by the surveyor has yet not been paid to the complainant, as the complainant had refused to accept the same. We are of the view that opposite parties have been taking contradictory stand and in the written reply in para No.5 on merits it is mentioned that the amount has been paid to the complainant on 29.03.2018. We are of the view that failure to pay the amount which is assessed by the surveyor without any sufficient cause is itself deficiency in service and business malpractice on the part of the opposite parties.                     

13.     Accordingly, present complaint is partly allowed and opposite parties are directed to pay amount of Rs.51,800/- to the complainant alongwith interest @ 9% P.A. w.e.f. 01.02.2018 i.e. the date of assessment of survey by the surveyor till realization. Opposite parties are further directed to pay cost of Rs.10,000/- for mental tension, harassment and also Rs.5,000/- as cost of litigation. Entire exercise shall be completed within 30 days from the date of receipt of copy of this order.

14.     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.

15.     Copy of the order be communicated to the parties free of charges. File be consigned.                                                                                                                                                               

            (Lalit Mohan Dogra)

                                                                                      President.  

Announced:                                                   (B.S.Matharu)

March 07, 2024                                                     Member.

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