Punjab

Ludhiana

CC/13/514

Rajinder Singh - Complainant(s)

Versus

New India Ass.Co.ltd. - Opp.Party(s)

06 Aug 2014

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, LUDHIANA.

                                                                 C.C.No: 514 of 18.07.2013

                                                                     Date of Decision: 06.08.2014

Rajinder Singh son of Varinder Singh r/o village Bhamian Kalan, P.O.Mundian Kalan, Ludhiana, Punjab. 

                                                                                          … Complainant

                                      Versus

1.The New India Assurance Company Limited, Divisional Office-V, Opposite Fire Brigade, G.T.Road, Miller Ganj, Ludhiana, through its Manager/Authorized Signatory.

2.The New India Assurance Company Limited, New India Assurance Building, 87, Mahatama Gandhi Road, Fort, Mumbai-400001, through its M.D.

 

                                                                             … Opposite parties

COMPLAINT UNDER SECTION 12 OF THE

CONSUMER PROTECTION ACT, 1986. 

 

Quorum:     Sh.R.L.Ahuja, President

                   Sh.Sat Paul Garg, Member

                   Smt.Priti Malhotra, Member

 

Present:       Sh.Som Parkash, Advocate for complainant.

                   Sh.Rajeev Abhi, Advocate for Ops. 

 

                        ORDER

 

(R.L.AHUJA, PRESIDENT)

 

1.       Present complaint under section 12 of The Consumer Protection Act, 1986 (herein-after in short to be referred as ‘Act’) has been filed by Sh.Rajinder Singh (herein-after in short to be referred as ‘Complainant’) against The New India Assurance Company Limited, Divisional Office-V, Opposite Fire Brigade, G.T.Road, Miller Ganj, Ludhiana, through its Manager/Authorized Signatory and others (herein-after in short to be referred as ‘OPs’)- directing them to pay the claim amount of Rs.1,29,148/- and Rs.50,000/- as mental agony and harassment suffered by the complainant besides other benefits to the complainant.

2.                Brief facts of the complaint are that complainant is the owner of vehicle Hyundai Verna bearing Temporary No.PB-10-CX-2010-2494, engine No.D4FAAU899942 having chassis No.MALCN41VLAM097337*K which was insured with the OPs vide cover Note No.506144 dated 17.11.2010 which was valid upto 16.11.2011. Unfortunately, on 28.12.2010, the vehicle of the complainant met with an accident at Haryana. The complainant brought the accidental vehicle to the workshop at MRG Auto Pvt. Ltd, G.T.Road, Sherpur, Ludhiana, who undertaken the vehicle for necessary repair and changing the necessary requisite damaged parts of the vehicle on or about 25.1.2011 and the complainant incurred and paid Rs.1,20,148/- to the Pioneer Hyundai Workshop. Thereafter, the claim was lodged with the OP. However, despite repeated approach and despite serving a legal notice dated 29.4.2013 through his counsel Sh.Som Parkash, Advocate upon the Ops, they failed to settle the claim of the complainant and the complainant is suffering loss as the vehicle is still lying in the workshop being idle being without plying on road. Such act and conduct of Ops is claimed to be deficiency in service on the part of the Ops by the complainant. Hence, this complaint.

3.                Upon notice of the complaint, OPs were duly served and appeared through their counsel Sh.Rajeev Abhi, Advocate and filed their written reply, in which, they took up certain preliminary objections that the present complaint is time barred having been filed after the expiry of the period of limitation of two years from the date of lodging of the claim file as ‘No Claim’ vide letter dated 12.7.2011 and even no sufficient grounds have been made out for condonation of delay in filing the present complaint; the present complaint is barred u/s 26 of the Consumer Protection Act; this Hon’ble Forum has got no jurisdiction to try and decide the present complaint; the present complaint is not maintainable since immediately on the receipt of the claim, it was duly registered, entertained and processed. M/s R.P.Bhasin & Co.Surveyor and Loss Assessor, 80-J, Sarabha Nagar, Ludhiana was deputed to assess the loss caused to car in question, who had personally inspected the vehicle, took the photographs and took the documents and thereafter, prepared his report dated 31.1.2011 under his signatures and submitted the same with the answering Ops alongwith documents and annexures attached with the report. After the receipt of the aforesaid survey report of M/s R.P.Bhasin & Company and after scrutinizing the documents placed in the claim file and after applying the mind by the officials of the answering Ops, it was observed that as per registration certificate, car No.PB-10-CL-6161, the date of purchase of the car is 30.12.2010 as per the retail invoice of the abovesaid car and temporary registration certificate, but as per version of the complainant and as per the intimation letter sent by the complainant, the alleged accident took place on 28.12.2010 prior to the purchase of the car by the complainant. The answering Ops thereafter called upon the complainant vide its letter dated 9.3.2011 followed with reminder dated 22.3.2011 to send the registration certificate duly verified and thereafter, the complainant was called upon vide letter dated 6.5.2011 followed with the reminder dated 27.5.2011 to send the clarification to that effect but the complainant has failed to clarify the said fact as to how the alleged accident has taken place on 28.12.2010 when the car was purchased on 30.12.2010. The information sought for is material information for the answering Ops for processing of the claim by them. Finally, the complainant was called upon vide letter dated 12.7.2011 to submit the aforesaid documents/ information. It was made clear in the said letter dated 12.7.2011 that if the complainant do not provide the said information to the answering Ops, it shall be presumed that the complainant is no longer interested to pursue the claim and the claim file will be closed as no claim. The complainant has failed to submit the information and documents sought for and as such, after waiting for sufficient time, the claim of the complainant was closed as ‘No Claim’ on account of non-submission of the documents/information sought by the answering Ops vide letter dated 12.7.2011. Further, it has been submitted in the preliminary objections that the complainant had earlier sent a legal notice through Sh.Ranjit Kumar, Advocate which was replied by the answering Ops on 30.12.2011, whereby the complainant was called upon to provide the information as demanded vide letter dated 6.5.2011 but the complainant did not respond and did not provide the information sought for as referred above. The complainant had again sent the notice dated 29.4.2013 through Sh.Som Parkash, Advocate and even in the said notice, no clarification/information as sought for was provided, rather the complainant had changed the contents of the notice. The said notice was duly replied by the answering Ops on 14.5.2013 through Sh.Rajan Kumar Chand, Advocate, and where it was again informed that the claim file was closed as no claim on account of non-submission of information and the documents sought for. The complainant is bound to provide all the information/documents required by the answering Ops for processing and settlement of the claim as per law of land and as per the terms and conditions of the policy. Further, took the preliminary objections that the complainant is estopped by his own act and conduct from filing the present complaint, since the complainant is not coming to the Forum with clean hands and had concealed the material facts from this Forum and jurisdiction of the Hon’ble Forum to try and decide the present complaint. On merits, the facts regarding obtaining of insurance policy, lodging of claim, receipt of notice dated 29.4.2013 and repudiation of the claim vide letter dated 12.7.2011 are admitted. However, it is submitted that the complainant was not the owner of the vehicle in question on 28.12.2010 i.e the date of alleged accident as the car had been purchased by him on 30.12.2010 after the alleged accident. Further, it is submitted that the complainant had not incurred RS.1,20,148/- as alleged on the repair of the car. Further, it is submitted that the claim regarding the damage to the car was lodged and the same was closed as no claim on account of non submission of the information and the documents and the clarification sought by the answering Ops vide letter dated 6.5.2011 followed with reminder dated 27.5.2011 and 12.7.2011. The information and the clarification sought by the answering Ops is material for processing and settlement of the claim. Further, it is submitted that the complainant had never approached the answering Ops as alleged and further, even there is no occasion of approaching the answering Ops since the claim of the complainant had been closed as no claim by the answering Ops vide their letter dated 12.7.2011. Otherwise, similar pleas were taken as taken in the preliminary objections. At the end, denying any deficiency in service and all other allegations of the complaint levelled in the complaint, answering Ops prayed for the dismissal of the complaint.

4.                In order to prove the case of the complainant, learned counsel for the complainant has placed on record affidavit of complainant Ex.CA, in which, he has reiterated the contents of the complaint. Further, learned counsel for the complainant has placed on record documents Ex.C1 to C6.

5.                On the other hand, in order to rebut the case of the complainant, learned counsel for the OPs has tendered into evidence affidavit Ex.RA of Sh.Anil Chawla, its Deputy Manager, in which, he has reiterated all the contents of the written reply filed by the OPs and rebutted the case of the complainant. Further, learned counsel for the OPs has tendered into evidence affidavit Ex.RB of Sh.R.P.Bhasin of M/s R.P.Bhasin & Company, who was appointed as surveyor and loss assessor by the Ops to assess the loss caused to the car in question i.e. PB-10-CL-6161, in which, he has proved his report dated 31.1.2011 Ex.R25 alongwith documents Ex.R14 to Ex.R19 and Ex.R26 to Ex.R41 attached with the report. Further, learned counsel for the Ops has proved on record documents Ex.R1 to Ex.R44.

6.                We have heard the learned counsel for the complainant as well as learned counsel for the OPs.

7.                Learned counsel for the complainant has contended that it is proved on record that the complainant is the owner of vehicle in question i.e.Hyundai Verna SX BS-II having Engine No.D4FAAU899942 having temporary registration No.PB-10-CX-2010-2494 which was insured by the complainant with Ops for the period from 17.11.2010 to 16.11.2011 vide Motor Vehicle Cover Note No.506144 Ex.C6 on payment of premium. It has further been contended that it is proved fact on record that the vehicle of the complainant met with an accident on 28.12.2010 and the same was got repaired by the complainant from MRG Auto Pvt. Ltd., after spending an amount of Rs.1,20,148/-. Further, it has been contended that it is proved fact that the claim was lodged with the Ops for payment of the aforesaid amount, which was duly registered and processed and M/s R.P.Bhasin and Company was appointed as surveyor and loss assessor, who submitted his detailed report qua the loss of the vehicle. However, the Ops did not settle and pay the claim inspite of the best efforts of the complainant and despite repeated requests made by the complainant. Rather, Ops have closed the file of the complainant on the ground that as per retail invoice of the abovesaid car, the vehicle in question was purchased on 30.12.2010, whereas, the alleged accident took place on 28.12.2010 i.e. prior to the purchase of the car by the complainant. But the Ops have not disputed the issuance of the cover note and policy in the name of the complainant which was issued on 17.11.2010 for the period from 17.11.2010 to 16.11.2011 and further, they have not disputed the engine number of the vehicle which was purchased by the complainant from the dealer.

8.                On the other hand, learned counsel for the OPs has filed the written arguments, in which, he has reiterated all the contents of the written reply filed by the OPs and further, it has been submitted under the head of “Points of Arguments” that as per registration certificate, temporary registration certificate and as per invoice, the date of purchase of the car in question is 30.12.2010 and as per the version of the complainant and as per the intimation letter sent by the complainant the alleged accident took place in which, the car in question was damaged on 28.12.2010 prior to the purchase of the car by the complainant. The complainant was called upon vide letter dated 9.3.2011, 22.3.2011 to send the registration certificate duly verified. The complainant was again called upon vide letter dated 6.5.2011 followed with reminder dated 27.5.2011 to send the clarification of the factum how the alleged accident has taken place on 28.12.2010 when the car was purchased on 30.12.2010. The information sought is material information required by the Ops for processing of the claim. The complainant has failed to submit the information sought for by the Ops as to how the accident had taken place on 28.12.2010 when the car was purchased on 30.12.2010 and as such, after waiting for sufficient time, the claim file of the complainant was closed as ‘No Claim’ vide letter dated 12.7.2011 on the ground of non-submission of the documents/information sought for by the Ops. Further, learned counsel for the OPs has made reference of all the relevant documents relied upon by OPs in their evidence. Further, learned counsel for the OPs has relied upon judgments titled as United India Insurance Co.Ltd. vs. Sangeeta SinghII(2010)CPJ-237(N.C.); Dijabar Sahoo vs. New India Assurance Co.Ltd.-II(2008)CPJ-307(N.C.); New India Assurance Company Limited vs. Rajendra Pal Singh-I(2009)CPJ-492(Uttrakhand State Commission); Hemal Ashok vs. United India Insurance Co.Ltd.-II(2004)CPJ-654(Maharashtra State Commission) and Priya Gopal Stores vs. National Insurance Co.Ltd.-I(2009) CPJ-22(N.C.).

9.                We have considered the rival contention of learned counsel for the complainant and have also perused the written arguments alongwith judgments placed on record during the course of arguments by the learned counsel for the OPs and have also perused the documents on record very carefully.

10.              Perusal of the record reveals that it is an admitted fact on record that the complainant is the owner of the vehicle in question bearing registration No.PB-10-CX-2010-2494 having engine No.D4FAAU899942 and chassis No.MALCN41VLAM097337*K which was insured with the Ops for the period from 17.11.2010 to 16.11.2011 vide Cover Note No.506144 dated 17.11.2010 Ex.C6 on payment of premium. The vehicle of the complainant met with an accident on 28.12.2010 at Haryana. The complainant had got repaired his vehicle in question from MRG Auto Pvt. Ltd., G.T.Road, Sherpur, Ludhiana and he had paid an amount of Rs.1,20,148/- to the Pioneer Hyundai Workshop. The claim was lodged by the complainant with the Ops, which was duly registered and processed by the Ops and M/s R.P.Bhasin & Co.Sarabha Nagar, Ludhiana was appointed as surveyor and loss assessor to assess the loss of the vehicle of the complainant. The abovesaid surveyor and loss assessor had thoroughly inspected the vehicle in question and assessed the loss and submitted his detailed report dated 31.1.2011 Ex.R25 alongwith necessary photographs and documents, vide which, he had recommended the net loss to the tune of Rs.76,000/-. However, the Ops have not settled and paid the claim on the basis of the survey report. Rather, closed the claim file as ‘No Claim’ vide their letter dated 12.7.2011 Ex.R11 on the ground that as per their investigation, the sale invoice regarding the sale of the vehicle is dated 30.12.2010, whereas, the accident of the vehicle took place on 28.12.2010.

11.               The bone of contention between the parties is qua the date of purchase of the vehicle. As per the contention of the learned counsel for the complainant that the complainant had purchased the vehicle in question on 17.11.2010 and vehicle was got insured with the Ops vide cover Note Ex.C6. On the other hand, there is specific contention of the learned counsel for the Ops that it is proved from the document i.e. sale invoice that the vehicle in question was purchased on 30.12.2011, whereas, the alleged accident took place on 28.12.2011. As per Ex.R16 i.e. temporary certificate of registration was issued to the vehicle by the concerned Registering Authority on 30.12.2010 with a validity of 29.1.2011. So, it is proved that at the time of date of accident, the complainant was not the owner of the vehicle in question and there was no insurable interest of the complainant in the vehicle in question. Numbers of letters were written to the complainant to clarify his stand qua the purchase of the vehicle in question as well as the date of accident. However, he did not make any reply, as a result of which, the claim file of the complainant was closed as ‘No Claim’.

12.              Perusal of the Cover Note Ex.C6 reveal that it was issued on payment of Rs.19,403/- as premium of Hyundai Verna  car in the name of Sh.Rajinder Singh s/o Varinder Singh village Bhamian Kalan, P.O.Mundian Kalan, District Ludhiana against the insured value of the vehicle to the tune of Rs.8,29,033/- with Engine No.899942 and chassis No.097337 and the period of the validity of the cover note was upto 16.11.2011 and there is an endorsement of Hypothecated with HDFC Bank Limited. Ops have also relied upon this copy of cover note as Ex.R15 and the insurance policy which was issued by the Ops and the copy of which is tendered as Ex.R1. Perusal of this policy Ex.R1 also reveals that insurance coverage of the vehicle in question was issued in the name of the complainant i.e.s.Rajinder Singh s/o Varinder Singh for the period from 17.11.2010 to 16.11.2011 and the name of Hypothecated find mentioned as HDFC Bank Limited. It is an admitted fact between the parties that the said policy has not been cancelled by the Ops meaning thereby that the Ops have not disputed the issuance of the cover note Ex.R15 as well as the insurance policy Ex.R1. However, Ops have disputed the ownership of the vehicle on the date of accident. As per the contention of the learned counsel for the Ops that the accident took place on 28.12.2010 whereas, the complainant purchased the vehicle on 30.12.2010. Though, Ops have tendered into evidence copy of sale invoice Ex.R14, copy of temporary registration certificate Ex.R16 which are dated 30.12.2010. Though, the sale invoice Ex.R14 reveals that the vehicle in question was financed by Mahindra & Mahindra Financial Services Ltd. However, the name of the financer recorded in the insurance policy Ex.R1 as HDFC Bank Limited. Perusal of the evidence of the Ops reveals that the Ops have not placed on record any documents or evidence in support of their plea that how they issued the cover note with engine No.899942 and chassis No.097337 Ex.R15 on 17.11.2010 giving the details of the engine and chassis number of the vehicle in the name of the present complaint without going through the sale invoice which was allegedly issued on 30.12.2010 and furthermore, it is apparently clear from the cover note Ex.R15 and insurance policy Ex.R1 that it is a comprehensive insurance of the vehicle which can only be issued after the thorough inspection of the vehicle. If the vehicle was not available with the present complainant on the date of issuance of the cover note as well as the insurance policy, then how the same were issued without inspecting the vehicle or without physically verifying the condition of the vehicle. Perusal of the affidavits of the witnesses of Ops is also silent qua this fact. So, it cannot be presumed that there was no contract of insurance between the parties even after the issuance of the cover note as well as the insurance policy qua the vehicle in question. It is further a proved fact from the evidence of Ops that Ops did not cancel the insurance policy of the vehicle despite receiving the intimation of the accident and claim lodged by the complainant, if he was not the owner of the vehicle in question. So, it appears from the evidence of the parties that there was a contract of insurance between the parties and due services were hired by the complainant from the Ops by paying the huge amount of premium. So, it cannot be presumed that on the date of accident, the complainant was no insurable interest in the vehicle.

13.              Though, the retail invoice is dated 30.12.2010 Ex.R14 and temporary registration certificate is also 30.12.2010 Ex.R16 but there may be certain reason best known to the auto dealer qua issuance of the retail invoice as well as the temporary registration certificate on 30.12.2010 when the dealer handed over the delivery of the vehicle to the complainant prior to the issuance of the insurance cover note and insurance policy. Since, the surveyor of the Ops had already assessed the loss of the vehicle of the complainant to the tune of Rs.76,000/- vide his report dated 31.1.2011 Ex.R25. So, Ops were under legal obligation to settle and pay the claim of the complainant. However, Ops have failed to do so which clearly amounts to deficiency in service on their part.

14.              In view of the above discussion, by allowing this complaint, we hereby direct the Ops to settle and pay the claim of the complainant on the basis of the report of the surveyor dated 31.1.2011 Ex.R25, failing which, Ops shall be liable to pay interest @9% p.a. from the date of lodging of claim till its realization and further, Ops are directed to pay compensation and litigation costs compositely assessed as Rs.10,000/-(Ten thousand only) to the complainant on account of mental pain, agony and harassment suffered by him and Rs.2000/-(Two thousand only) as litigation expenses to the complainant. Compliance of order be made within 30 days from the date of receipt of copy of this order which be made available to the parties free of costs. File be consigned to record room.

 

                 (Priti Malhotra       )                    (Sat Paul Garg)       (R.L.Ahuja)

               Member                                       Member                    President 

Announced in Open Forum.

Dated:06.08.2014

GurpreetSharma

 

 

 

 

 

Rajinder Singh vs.The New India Insurance Company

06.08.2014

Present:       Sh.Som Parkash, Advocate for complainant.

                   Sh.Rajeev Abhi, Advocate for Ops. 

                  

                   Written arguments on behalf of complainant not filed. Arguments have been heard. Vide our separate detailed order of even date, complaint is allowed. File be consigned to record room after due completion.

           

 

                 (Priti Malhotra       )                    (Sat Paul Garg)       (R.L.Ahuja)

               Member                                       Member                    President 

Announced in Open Forum.

Dated:06.08.2014