New Complaint No.194 of 2023.
Date of Institution: 25.10.2023.
Old Complaint No: 86 of 2018.
Date of Institution: 19.02.2018.
Date of order:05.12.2023.
Kamal Marwaha aged about 23 years Son of late Sh. Sudhir Marwaha, resident of H. No.B-20/97, Satt Narayan Gali, Kadi Hatti inside Khajuri Gate Batala Tehsil Batala District Gurdaspur.
…........Complainant.
VERSUS
1. National Insurance Company Ltd. Divisional Office X Flat No. 101- 106, 1st Floor, N-1, BMC House, Connaught Place, New Delhi – 110001, through its Divisional Manager.
2. Deep Automobiles Pvt. Ltd. opposite Khanna Paper Mill, Fatehgarh Churian, Bye, Amritsar, through its Proprietor.
3. Pankaj Mehra, Insurance Consultant, Deep Automobiles Pvt. Ltd. opposite Khanna Paper Mill, Fatehgarh Churian, Bye, Amritsar.
….Opposite parties.
Complaint U/s 12 of the Consumer Protection Act.
Present: For the complainant: None.
For the opposite party No.1:Sh.Sanjeev Mahajan, Advocate.
For the opposite party No.2:Sh.K.K. Attri, Advocate.
Opposite party No.3: Exparte.
Quorum: Sh.Lalit Mohan Dogra, President, Sh.Bhagwan Singh Matharu, Member.
ORDER
Lalit Mohan Dogra, President.
Kamal Marwaha, 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 in possession of car bearing Registration No.PB-06-AA-7473, Make Honda Brio 1.2 EX Model 2014. It is further pleaded that above mentioned car is registered in the name of father of the complainant namely Sh. Sudhir Kumar Marwaha S/o Sh. Kasturi Lal Marwaha. It is pleaded that the above mentioned vehicle was purchased by the father of complainant and the same was fully insured continually. It is further pleaded that the OP No.3 (Pankaj Mehra) is insurance consultant of the OP No.2 (Deep Automobiles Pvt. Ltd. Amritsar) and the last two insurance of the said vehicle was being done through the OP’s No.2 & 3. It is further pleaded that unfortunately father of the complainant died on 14.12.2016, and after his demise the complainant being Son / Legal heir was plying the above said vehicle. It is further pleaded that in the month of January 2017, insurance of the above said vehicle was due and the OP No. 3 approached the complainant for getting the vehicle insured / renewal of the insurance policy. It is further pleaded that the complainant told the OP No. 3 that his father had expired on 14.12.2016, but the OP No. 3 renewed / prepared the insurance policy in the name of father of the complainant under Honda Assure with National Insurance Company Ltd. It is further pleaded that at time of insurance and payment of premium, all the relevant document were duly verified and scrutinized to their satisfaction in all aspects and no deficiency was pointed out at that point of time by the OP, rather he told the complainant that since the vehicle was registered in the name of his father that is why the insurance has been done in the name of his father and as the complainant was made nominee by his father during his life time so there will be no problem in getting any kind of claim in respect of the vehicle. It is further pleaded that since the complainant was not aware about the intricacies / technicalities, so he accepted the insurance policy as per advice of the OP No.3 who is working under the OP No.2 and the OP No.3 gave additional benefits to allure the complainant in writing. It is further pleaded that on 21.04.2017 at about 7:00 P.M. the above said vehicle met with an accident, near Batala all of sudden and same was totally damaged. It is further pleaded that vehicle was being driven by the complainant at the time of accident and there was no third party loss, therefore the complainant did not lodge report to the police regarding this accident. It is further pleaded that due to lack of knowledge, the complainant also could not get the spot survey of the vehicle from the surveyor of the company. It is further pleaded that thereafter the complainant has taken his vehicle in the workshop of the OP No.2 for repair by towing the same with recovery vehicle of Baba Deep Singh flatbed service, but the OP No.2 did not repair the vehicle on the ground that the insurance of the vehicle was in the name of his father of the complainant who had since Expired and told the complainant that they have terminated the service of the OP No.3. It is further pleaded that then the complainant reported the matter to the OP No.1, but the OP No.1 did not pay any heed. It is further pleaded that OP No.1 also appointed Surveyor on repeated requests by the complainant, but he instead of making any loss statement advised the complainant to proceed legally and the complainant was not left with any other alternative and the complainant got his vehicle repaired from Sai Car Care Amritsar and spent about Rs.1,50,000/- on repair of the vehicle. It is further alleged that thereafter, the complainant submitted his claim to the OP No.1, but the OP No.1 put the matter pending with one or the other excuse and till date no payment has been made to the complainant. It is further pleaded that the vehicle was being driven by the complainant who is holding a 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 was any intentional or willful delay on the part of complainant in reporting the matter to the opposite parties. It is further pleaded that if there is any kind of default in the Insurance Policy, the same is due to illegal act of the OP’s No.2 and 3 and the complainant may not suffer for their illegal acts. 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 party No.1 to honour the claim of the complainant and make the payment of Insured amount (Damages for total loss) qua the claim of the complainant in terms of the Insurance policy along with interest (@ 18% P.A. from the date of accident of the vehicle till actual realization. It is further prayed that compensation to the tune of Rs.50,000/- may also be awarded to the complainant besides the amount of claim on account 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 party No.1 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 OP No.1. It is pleaded that all allegations made in the complaint, which are not specifically denied herein, are denied being false and baseless. It is further pleaded that complaint is absolutely false and frivolous. It is further pleaded that at the very outset the replying opposite party denies all the allegations, facts and averments stated in the complaint filed by the complainant except to the extent it is expressly admitted therein. It is further pleaded that 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 party 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 party 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 the insurance policy of vehicle No.PB-06-AA-7473 make Brio was renewed on 18.01.2017 to 17.01.2018 by the Broker of the OP No.1 i.e. SMC Insurance Brokers Pvt. Ltd. in the name of Mr. Sudhir Kumar Marwaha S/o Sh. Kasturi Lal Marwaha and after receiving intimation from complainant on 26.04.2017 regarding accidental loss to vehicle No.PB-06-AA-7473 make Brio, the OP No. 1 deputed Mr. V.K. Mehta Insurance Surveyors & Loss Assessors Pvt. 94- Lawrence Road Amritsar for assessing the loss to the vehicle. It is further pleaded that Mr. V.K. Mehta Insurance Surveyors & Loss Assessors submitted his Motor (final) Survey Report on 13.09.2017 by assessing net value loss to the vehicle No.PB-06-AA-7473 make Brio in the name of Mr. Sudhir Kumar Marwaha of Rs.1,14,278/-. It is further pleaded that in his report Mr. V.K. Mehta Insurance Surveyors & Loss Assessors also submitted affidavit of Kamal Marwaha complainant in which he admitted that accidental vehicle No.PB-06-AA-7473 make Brio was in the name of his father Mr. Sudhir Kumar Marwaha who expired on 14.12.2016. It is further pleaded that insurance policy was renewed on 18.01.2017 and at the time of renewal of insurance policy the registered owner Mr. Sudhir Kumar Marwaha was already expired on 14.12.2016. It is further pleaded that it has came to notice of the OP No.1 the insured has already died before the policy inception, therefore that there is no insurable interest from the inception of the policy. It is further pleaded that there is no privity of contract between the complainant and OP No.1. It is further pleaded that the opposite party No.2 also sent an E-mail on 25.10.2017 to the complainant regarding rejection of claim of the complainant on the basis of non-disclosure of facts before the renewal. It is further pleaded that thereafter, the OP No.1 issued pre- repudiation letter dated 25.10.2017 seeking query from the complainant and the complainant did not respond to the letter of the OP No.1. It is further pleaded that thereafter, the OP No.1 repudiated the claim of the complainant being not legally maintainable as the policy was issued in the name of Mr. Sudhir Kumar Marwaha deceased due to non-disclosure of facts by the complainant before the renewal of the policy duly served upon complainant. It is further pleaded that as per the terms & conditions of the Insurance Policy the opposite party No. 1 is not liable to indemnify any loss accrued to vehicle No.PB-06-AA-7473 make Brio to the complainant.
On merits, the opposite party No.1 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 party. In the end, the opposite party prayed for dismissal of complaint with costs.
4. Upon notice, the opposite party No.2 appeared through counsel and contested the complaint and filing their written reply by taking the preliminary objections that the present complaint is not legally maintainable against the replying opposite party No.2 in the eyes of law and as such liable to be summarily dismissed against the replying opposite party No.2. It is pleaded that the complainant has filed the baseless, frivolous and imaginary claim with an ulterior motives. The same is bad in the eyes of law and cannot be entertained. The complainant has manipulated the entire false story in order to gain the sympathy of this Hon'ble Court. It is further pleaded that complainant is not at all entitled to get any relief as claimed in the present complaint. Moreover no specific relief has been claimed by the complainant against the replying opposite party No.2. It is further pleaded that the complainant has not come to this Hon'ble Court with clean hands and he has suppressed true and material facts from the notice of this Hon'ble Court as such, he is not entitled to any relief from this Hon'ble Court. It is further pleaded that the complainant has no cause of action to file the present complaint against the replying opposite party No.2. It has been filed with an ulterior motives and mala-fide intention to harass and humiliate the replying opposite party No.2 by abusing the process of law. It is further pleaded that the complainant has concealed material facts from the notice of this Hon'ble Court and he has not come to this Hon'ble Court with clean hands and as such he is not entitled to get any relief as claimed in the present complaint. It is further pleaded that the opposite party No.2 has been made a party without any legal and valid base and same deserves to be dismissed with costs against the opposite party No.2.
On merits, the opposite party No.2 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 party. In the end, the opposite party prayed for dismissal of complaint with costs.
5. Opposite party No.3 did not appear despite the service of notice and was proceeded against exparte vide order date 06.04.2018.
6. Learned counsel for the complainant has tendered into evidence affidavit of Kamal Marwaha, (Complainant) as Ex.CW-1/A alongwith other documents as Ex.C-1 to Ex.C-7.
7. Learned counsel for the opposite party No.1 has tendered into evidence affidavit of Sh. Parveen Chadha, (Branch Manager, National Ins. Co. Ltd., Gurdaspur) as Ex.OP-1/1 alongwith other documents as Ex.OP-1/2 to Ex.OP-1/8.
8. Learned counsel for the opposite party No.2 has filed an affidavit of Sh. Gagandeep Singh, (Director of the opposite party No.2) alongwith reply.
9. Written arguments filed by the complainant and opposite party No.1 but not filed by the opposite party No.2.
10. The present complaint is of 2018 and since none has appeared on behalf of complainant for the last 2-3 adjournments as such present complaint is being dispose off after going through the written arguments submitted by the counsel for the complainant.
11. Counsel for the complainant in the written arguments has submitted that the vehicle bearing registration No.PB-06-AA-7473 was insured with the opposite party No.1 and was registered in the name of father of the complainant namely Sh.Sudhir Kumar Marwaha. It is further argued that opposite party No.3 is insurance consultant of opposite party No.2 and last two insurance policies in respect of vehicle were issued through opposite parties No.2 and 3. It is further argued that father of the complainant died on 14.12.2016 and in January, 2017 the insurance of the vehicle was due and the opposite party No.3 approached the complainant for renewal and the complainant had disclosed the fact regarding death of his father but the opposite party No.3 renewed the insurance and assured the complainant that since the vehicle is registered in the name of his father, as such policy can be issued only in the name of the father of the complainant. It is further argued that the said vehicle met with an accident on 21.04.2017 and the claim was intimated and surveyor was deputed to assess the loss who assessed the payable loss but opposite parties refused to pay the claim on account of fact that vehicle was registered in the name of his father who was already dead at the time of renewal of the policy of insurance. Counsel for the complainant had also relied upon the judgment of Hon'ble Supreme Court of India passed in Civil Appeal No.7009 of 2008 in case titled as United India Insurance Co. Ltd. Vs. Santro Devi & Others. In which it is held as under:-
"In this case, the statute itself takes care of validity of the contract. It is mandatory. Once a valid contract is entered into, only because of a mistake or otherwise, the name of the original owner has not been mentioned in the certificate of registration and/or the documents of hypothecation of the vehicle with the bank had still been continuing in his name, it cannot be said that the contract itself is void unless it was shown that in obtaining the said contract a fraud had been practiced. Not only the particulars of fraud had not been pleaded, but even no witness was examined on behalf of the appellant. It cannot, thus, be said that a case of fraud in the matter of entering into the contract of insurance had been made out by the appellant".
12. On the other hand counsel for the opposite party No.1 has argued that on receiving intimation Mr.V.K.Mehta surveyor and loss assessor was deputed to assess the loss who assessed the loss to the vehicle as Rs.1,14,278/-. However, it was found by the surveyor that registered owner of the vehicle Mr.Sudhir Kumar Marwaha had expired on 14.12.20216 and the policy of insurance was renewed on 18.01.2017 and as such there is no insurable interest from the inception of the policy and as such claim was rightly repudiated by the opposite party No.1. Counsel for the opposite party No.1 has relied upon judgment of Hon'ble Punjab State Consumer Disputes Redressal Commission, Chandigarh in First Appeal No.864 of 2008 in case titled as United India Insurance Company Limited. Vs. Sumit Arora, D/d. 23.04.2013 in which it is held as under:-
"Consumer Protection Act, 1986, Section 2(1)(g)-Insurance claim(car)-Repudiation-Car damaged in accident-Claim repudiated by insurance company on the ground that the insured already sold the vehicle to the deceased and he was not having insurable interest-Held-The deceased Amit Goel had not got transferred the registration of the car in dispute in his name as well as the policy as per G.R. 17-The respondent was not having any insurable interest in the car, as such, the claim as rightly repudiated by the appellant-Appeal accepted". (Para 19)
13. Counsel for the opposite party No.2 has argued that complaint is totally false and the dispute if any is between the complainant and opposite party No.1 and is liable to be dismissed.
14. Opposite party No.3 remained exparte.
15. We have heard the Ld. counsels for the complainant and opposite parties No.1 and 2 and gone through the record.
16. It is admitted fact that car bearing registration No.PB-06-AA-7473 model 2019 was registered in the name of Mr.Sudhir Kumar Marwaha who is the father of the complainant. It is further admitted fact policy of insurance was continuously issued by the opposite party No.1. It is further admitted fact that policy of insurance was renewed by the opposite party No.3 on 18.01.2017. It is further admitted fact that registered owner of the car had already expired on 14.1.2016. It is further admitted fact that opposite party No.1 had deputed surveyor Mr.V.K. Mehta to assess the loss. It is further admitted fact that Mr.V.K. Mehta assessed the loss as Rs.1,14,278/-. It is further admitted fact that claim lodged by the complainant has been repudiated vide letter dated 25.10.2017. The only issue for adjudication before this Commission is whether the opposite party No.1 was justified in repudiating the claim on the ground of policy having been renewed in the name of dead person.
17. We have gone through the pleadings wherein the complainant had pleaded and submitted that the insurance was arranged and renewed through opposite parties No.2 and 3 and complainant had intimated the opposite party No.3 regarding the death of his father. Perusal of filed shows that opposite party No.3 intentionally remained exparte and opposite party No.2 has not uttered the single word about the role of opposite party No.3 and as such we are of the view that since complainant had already intimated the opposite party No.3 regarding the death of his father and opposite party no.3 had issued policy of insurance in the name of dead person inspite of knowledge of the same and said fact has not been rebutted by the opposite party by producing affidavit of opposite party No.3 and moreover the opposite party No.1 had received the premium of Rs.12049/- from the complainant and the policy of insurance was in operation at the time of accident we are of the view that policy of insurance had been issued in respect of vehicle and not in respect of registered vehicle. We have also relied upon case law United India Insurance Co. Ltd. Vs. Sharanjit Singh Accident Claim 2005 (1) 419 as per which it has been held that insurance is done for the vehicle and not for owner apart from this in Section-50 of Motor Vehicle Act it is mentioned that after death of owner of the vehicle the legal consequences of the vehicle are owned by his legal heirs and the complainant in the present complaint being legal heir of the deceased is therefore owner of the vehicle after the death of his father. Even the case law cited by the counsel for the complainant is United India Insurance Co. Ltd. Vs. Santro Devi & Others. As such from the entire evidence and facts and case law referred above we are of the view that once a valid contract has been entered into due to negligence or mistake and the opposite party has received the consideration i.e. premium of insurance and it is not the case of the opposite party that the complainant has committed any fraud or fraudulently procured the policy of insurance. As such we have no hesitation in holding that repudiation of the claim by the opposite party No.1 is totally unjustified. As far as case law cited by the counsel for the opposite party No.1 is concern the same is totally on different facts and is not applicable to the present case. As such after going through the record and case law cited above the present complaint is partly allowed and opposite party No.1 is directed to pay the amount of Rs.1,14,278/- to the complainant alongwith interest @ 9% P.A. from the date of filing of the complaint till realization within 30 days from the date of receipt of copy of this order. No order as to costs.
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. 05, 2023 Member
*YP*
