DISTRICT CONSUMER DISPUTES REDRESSAL FORUM (CENTRAL)
ISBT KASHMERE GATE DELHI
CC/ 278/2012
No. DF/ Central/
S.P. Singh (Insured)
S/o Sh. Magan Singh,
R/o 22 D, DDA Flats,
Maan Sarovar Park,
Shahdara, Delhi.
……..COMPLAINANT
VERSUS
1. OMBUDSMAN (Insurance)
2/2A, Asaf Ali Road,
New Delhi – 110002.
2. The Manager,
National Insurance Co. Ltd.,
2881, 1st Floor,
Hardhiyan Singh Road,
Karol Bagh, New Delhi - 110055
…..OPPOSITE PARTIES
ORDER
Rekha Rani, President
Sh. S.P. Singh (in short the complainant) filed the instant complaint U/s 12 of the Consumer Protection Act 1986 as amended up to date (in short the Act) pleading therein that he was the owner of Bus bearing registration no. UP-14 AT-8036 which was insured with National Insurance Co. Ltd., (in short the OP )
vide policy No. 36501/31/99/6300004270 valid from 20.02.2010 to 19.02.2011.
The vehicle met with an accident on 17/12/2009. The complainant intimated OP about said accident on 18/12/2009. OP got survey of the vehicle done on 18.12.2009. Photographs of the vehicle were taken by Mr. Uppal, surveyor of OP. No. 2. Thereafter the complainant got the vehicle repaired. He submitted requisite documents namely supplementary estimates, Registration Certificate, Fitness, Driving License etc. to OP. Complainant requested OP for re-inspection of the vehicle which was refused. Complainant sent the photographs of the vehicle to Mr. Uppal. He made several calls to Mr. Uppal but no response was received. On 27/12/2010 he contacted OP who advised him to approach its Claim Hub. He contacted the manager of Claim Hub who informed that claim was repudiated.
On 05/05/2011 Complainant received a telephonic call that surveyor of OP will re-inspect the vehicle. As per instruction of OP Complainant went to the office of surveyor Sh. Vivek Aggarwal at M -12, Mezzanine Floor, Harsha Bhawan, Commercial Complex, New Delhi and gave photocopies of all required documents and told that the vehicle was parked at the Ghaziabad bus stand. However no re-inspection of the vehicle was conducted by the OP. On 08/04/2011 complainant approached Ombudsman, Asaf Ali Road, Delhi who
passed an order dated 29/12/2011 against the complainant. Complainant through an RTI application came to know that two estimates Bill were
deliberately misplaced from the Ombudsman file. It is prayed that Judgement dated 29/12/2011 passed by the Ombudsman be set aside and litigation cost of Rs. 45,000/- with interest @ 18% p.a. till realization be granted.
2. On receipt of notice of the instant complaint OP appeared and contested the claim vide its reply.
3. At the very outset it needs be mentioned that the complainant is appearing in person. Complaint is not properly drafted. The case is assessed on merits and shortcomings in pleadings of the complainant are being ignored.
3. Complainant has arrayed Ombudsman as Opposite Party No. 1 who was deleted from the array of parties vide order of predecessor Forum dated 05/12/2013.
4. It is submitted on behalf of the OP that complaint is barred by limitation. Accident of the vehicle took place on 17/12/2009 and the instant complaint was filed on 08/11/2012. Complainant submitted that he had approached Ombudsman within statutory period of 02 years on 08/04/2011 and his Complaint was dismissed on 29/12/2011 by Ombudsman and thereafter he approached this Forum on 08/11/2012 and therefore the complaint is within limitation.
5. We have carefully applied our mind to the submissions made on behalf of both sides.
6. In Vivek Harsh International Vs Corporation Bank , III (2009) CPJ 299 (Raj.) it was held that order passed by Banking Ombudsman is recommendatory in nature having no legal section and therefore complaint is maintainable under Consumer Protection Act which provides additional remedy even though complainant approached Banking Ombudsman earlier.
7. In IDBI Bank V/s Pardeep Tayal , IV (2010) CPJ 315 (Chd) it was observed that Banking Ombudsman is not a statutory authority and therefore consumer after claiming relief in front of Banking Ombudsman can approach consumer fora under section 3 of the Consumer Protection Act 1986 which provides for an alternative remedy.
8. In Ashminder Pal Singh vs The New India Assurance Co. Ltd Complaint No.C-47/2002 vide order dated 27.03.2009 SCDRC Delhi observed that it has been stated in the order of the Hon’ble High Court dated 12.07.2005 that the award passed by the Insurance Ombudsman dated 03.12.2001 is not binding on the complainant. It was further observed as under :
“33. As regards the verdict of Ombudsman relied upon by the counsel for the OP it is neither binding though may be persuasive nor has any relevance as the remedy under section 3 of Consumer
Protection Act 1986 is in addition to and not in derogation of any other law for the time being in force. While widening the scope of Section 3 of Consumer Protection Act, Supreme Court in large number of cases has taken a view that even if there is remedy available in any other legal forum or even if there is arbitration clause between the parties, still the aggrieved party can file complaint under Section 12 of the Consumer Protection Act 1986 seeking indemnification of the loss, compensation for mental agony, harassment, physical discomfort and other injustices suffered by him as no other statute provides such reliefs . 34. It is an additional remedy arising from the charge of deficiency in service, as defined by Section 2(1)(g) of Consumer Protection Act 1986 which means any fault, imperfection,
shortcoming or inadequacy in the quality, nature and manner of performance which is required to be maintained by or under any law for the time being in force or has been undertake to be performed by a person in pursuance of a contract or otherwise in relation to any service and if the service provider is held guilty for deficiency in service it has to compensate the consumer as to the expected loss, actual loss, mental agony, physical discomfort, emotional suffering, and all other injustice suffered by him.”
9. Accordingly in view of the judgments Vivek Harsh International , IDBI Bank and Ashminder Pal Singh (supra) time consumed by the complainant in pursuing remedy before Ombudsman for seeking redressal of his grievances has to be condoned.
10. It was further argued on behalf of the OP that there is no documentary evidence that the vehicle met with an accident on 17/12/2009. A query was put to the complainant as to whether he approached the concerned police station at Ghaziabad to register his complaint regarding involvement of his vehicle in an accident. He answered that he did approach the concerned police station but they did not register his complaint. There is procedure for having complaint
registered on refusal of the concerned Police Station to register an FIR. Mere oral statement of the complainant that he visited the police station for registration of his complaint but the same was refused does not carry weight. In absence of any document that the complaint was made to concerned police station regarding involvement of the vehicle in accident on 17/12/2009 there is substance in case of the OP that the accident might not have taken place at all.
11. Learned counsel for OP submitted that fitness of the vehicle was expiring on 23/12/2009 and the accident allegedly happened on 17/12/2009. It was argued that the vehicle was already dismantled by the complainant at the time of spot survey conducted on 18/12/2009. It is argued that the vehicle was deliberately dismantled because its fitness was expiring on 23/12/2009 and it would have been uphill task to obtain renewal of the fitness of the said vehicle.
12. It is further submitted on behalf of the OP that as per case of the complainant accident took place on 17/12/2009 whereas complainant intimated OP about the said accident on 18/12/2009 and that there is no explanation as to why the OP was not informed about the said accident immediately.
13. Complainant does not seem to be vigilant. Accident allegedly took place on 17/12/2009. The next date mentioned in the complaint is 27/12/2010 when he allegedly approached OP to inquire about the fate of his claim. It is his
case that on 27/12/2010 he came to know that his claim was repudiated as no claim. But he waited. He approached Ombudsman only on 08/04/2011.
14. His claim was repudiated on 06/09/2010 mainly on the ground that at the time of accident the vehicle was found already dismantled and that there was no sign of any accident.
15. We found the case of the OP more consistent as complainant has failed to prove by reference to any document that the vehicle was involved in an accident on 17/12/2009 that is why no complaint was made to the concerned police station and then there is delay of one day in intimating the OP about alleged accident. Accident allegedly took place on 17/12/2009 and OP was informed about the same on 18/12/2009.
16. The claim can be viewed from another angle also. The vehicle is transport bus which is driven by not the complainant himself but a hired driver. Complainant has nowhere pleaded that the vehicle was purchased by him for earning his livelihood by way of self employment. As such he is not a consumer.
17. The complaint is dismissed. Copy of this order be sent to the parties as statutorily required. File be consigned to record room.
Announced on this 2nd Day of June 2018.
