BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, AMRITSAR.

Consumer Complaint No. 663 of 2015

Date of Institution: 12.11.2015

   Date of Decision:27.04.2016

Amandeep Kaur W/o Amarbir Singh resident of H.No. 139, Village  Fatehpur Rajputan , Mehta Road, Amritsar, Punjab

Complainant

Versus

New India Assurance Co.Ltd., through its branch manager/Divisional Manager, Authorized person having its office at Divisional Office, 80, Court Road, Amritsar

       Opposite Party

Complaint under sections 11 & 12 of the  Consumer Protection Act, 1986

Present:    For the Complainant                            : Sh. Amarbir Singh,husband

                For the Opposite Party               : Sh.P.N.Khanna,Advocate

Coram

Sh.S.S.Panesar, President

Ms.Kulwant Kaur Bajwa, Member

Sh.Anoop Sharma,Member

Order dictated by:

Sh.S.S. Panesar, President.

1.       Smt.Amandeep Kaur, complainant has brought the instant complaint under section 11 & 12 of  the Consumer Protection Act, 1986 as amdeded upto date on the allegations that complainant has a Hyundai Verna car model 2013 bearing registration No. PB-02-CC-2067. The said vehicle was got fully insured by the opposite party for the period from 15.2.2014 to 14.2.2015 and vehicle was financed by State Bank of India, Rani Ka Bagh, Amritsar. The said vehicle met with an accident on 31.12.2014 near Mall Mandi, Vallah, Amritsar. The vehicle was being driven by Gursewak Singh son of Paramjit Singh, who is family friend of the complainant. Police complaint was filed on the same day i.e. 31.12.2014 at P.S. Vallah, Amritsar. The complainant has lodged claim with the opposite party on 1.1.2015. But opposite party failed to settle the claim till date. Opposite party demanded “no objection certificate” to be issued by financier i.e. State Bank of India. State Bank of India cannot issue any NOC until loan amount is due. The opposite party has approved claim of Rs. 6,84,000/- . But till date opposite party has not paid any claim amount in the loan account of the complainant. The complainant visited the office of the opposite party several times and requested it to release the payment in the loan account of complainant, but all in vain. The complainant has suffered great hardship and it tantamount to gross deficiency in service and unfair trade practice on the part of the opposite party. The complainant requests for the following reliefs against the opposite party:-

(a)     That the opposite party may be directed to pay Rs. 6,84,000/- with interest to the loan account of complainant without any further delay.

(b)     That the opposite party may also be directed to pay Rs. 50,000/- as compensation amount for the mental sufferings, harassment and humiliation suffered by the complainant.

Hence, this complaint.

2.       Upon notice, opposite party appeared and filed written statement contesting the claim of the complainant taking certain preliminary objections therein inter alia that complainant has not approached the court with clean hands and is guilty of concealment of material facts. In this regard it is submitted that on receipt of information regarding damage caused to the insured vehicle, opposite party deputed independent surveyor, who considered the loss from different angles and finally loss was assessed on the  net of salvage basis for Rs. 6,84,000/-. However, as per procedure for assessing the loss under net of salvage basis, salvage of  the vehicle  was to be retained by the insured and the policy was to be cancelled and in addition  to that the insured was also supposed to submit cancelled RC with the Insurance company, so that the vehicle may not be reused either by the insured or by the Insurance company. The complainant has admitted in para 4 of the complaint that his claim was approved for Rs. 6,84,000/- but has not mentioned as to why the said claim has not been paid to him ? In this regard, it is submitted that infact till date the complainant has not  submitted cancelled RC from the concerned RTO and for that reason, the amount could not be released. Hence, the complaint filed by the complainant is pre-mature and is liable to be dismissed on that score alone ; that opposite party has made detailed correspondence verbally as well as  in writing with the insured for submitting relevant documents and in this regard last reminder  dated 24.11.2015 was issued to the insured informing that payment of Rs. 6,84,000/- will be released on submission of cancellation of RC. But, however, the complainant has failed to comply with the terms and conditions of the Insurance policy, the present complaint filed by the complainant is not only pre-mature but the same was also without any cause of action  ; that there is no question of any deficiency or delay on the part of the opposite party, hence, the complainant is not entitled to get any interest  on the amount of Rs. 6,84,000/- or compensation to the tune of Rs. 50000/-. Infact there is no provision  under the Consumer Protection Act to order any such relief nor there is any agreed clause in the policy in question, particularly  when, the insured herself has failed to fulfill  the duty cast upon her. As soon as the complainant submits the cancelled RC, the opposite party will release the payment of Rs. 6,84,000/- to the complainant as full and final settlement of the claim. On merits , facts narrated in the complaint have been specifically denied and a prayer for dismissal of the complaint with cost has been made.

3.       In her bid to prove the case Amarbir Singh, husband of the complainant tendered into evidence duly sworn affidavit of Amandeep Kaur, complainant Ex.C-1 in support of the allegations made in the complaint besides tendering copy of Insurance policy Ex.C-2, copy of  FIR Ex.C-3 and copy of letter dated 29.9.2015 Ex.C-4 and closed the evidence on behalf of the complainant.

4.       To rebut the aforesaid evidence, counsel for the opposite party Sh.P.N.Khanna, tendered into evidence affidavit of  Sh. Sukhdev Singh Gill,Sr. Divisional manager  Ex.OP/1, affidavit of surveyor Mr.Jeewan Aggarwal Ex.OP/2, survey report of Eminent SolvServe Insurance Ex.OP/3, copy of letter dated 29.9.2015 issued by the opposite party to SBI and CC to complainant Ex.OP/4, reminder dated 24.11.2015 for submitted relevant documents Ex.OP/5, joint discharge voucher for Rs. 6,84,000/- Ex.OP/6, Form No.35  duly signed by the complainant and bank/financier Ex.OP/7, copy of information dated 7.10.2015  by State Bank of India for transferring the amount in account No. 20007852507 with SBI,Amritsar Ex.OP/8, certified copy of Insurance policy alongwith terms and conditions Ex.OP/9 and closed the evidence on behalf of the opposite party.

5.       We have heard the Representative of the complainant and the ld.counsel for the opposite party and have also carefully gone through the record.

6.       On the basis of the evidence on record , husband of the complainant has vehemently contended that the opposite party is deficient in service although the insurance claim is stated to have been settled for an amount of Rs. 6,84,000/-. But till date, the opposite party has failed to pay any claim amount in the loan account of the complainant. The opposite party has been wrongly insisting the complainant for furnishing no objection certificate to be issued by the financier i.e. State Bank of India knowing fully well that the financial cannot issue any NOC until loan amount is due and payable by the complainant. The complainant has proved herself to be a consumer qua the opposite party as required u/s 2(1)(d)(ii) of the  Consumer Protection Act, 1986. As a matter of fact, it was the opposite party, which was to obtain NOC from the banker/concerned financier. Moreover, the amount so settled by the opposite party has to be remitted in the loan account of the complainant and there was absolutely no hitch with the opposite party to deposit the compensation allowed on the basis of survey/investigation report. It is contended that the opposite party is creating undue hindrance in the release of the amount of Rs. 6,84,000/- i.e. compensation amount,without any rhyme or reason. Since, the complainant has been able to prove the deficiency in service on the part of the opposite party, therefore, the complaint is liable to be allowed in view of the prayer made by the complainant.

7.       However, from the appraisal of the facts and circumstances of the case, it becomes evident that claim of the complainant has already been assessed on the  net of salvage basis for a sum of Rs. 6,84,000/-. As per procedure for assessing the loss under the net of salvage basis , salvage of the vehicle was to be retained by the insured and the policy was to be cancelled and in addition to that the insured was also supposed to submit cancelled RC with the company. The idea behind the same was that the vehicle may not be used again either by the insured or by the insurer. The complainant in para 4 of her complaint has admitted that her claim has been approved for Rs. 6,84,000/- but has failed to mention as to why the claim has not been paid to her ? As a matter of fact, till date the complainant has not submitted cancelled RC from the concerned RTO and for that reason, the amount could not be remitted in the loan account of the complainant.

8.       It is in evidence that opposite party made detailed correspondence with the complainant for submitting relevant documents and in this regard last reminder dated 24.11.2015 was issued to the complainant informing that the payment of Rs.6,84,000/- will be released on submission of cancellation of RC, copy whereof is Ex.OP/5. The complainant although has submitted joint discharge voucher duly signed by her as well as by the concerned banker and the said banker has even issued form No. 35, copy whereof is Ex.OP/7. Yet, the cancelled RC has not been submitted so far, for which claim is pending for remittance in the loan account of the complainant.

9.       In the light of the aforesaid discussion, it becomes apparent that there is no question of any deficiency of dereliction on the part of the opposite party. It is the case of the opposite party that as soon as the complainant submits the cancelled RC, the opposite party will release the payment of Rs. 6,84,000/- to the complainant. In nutshell as far as formalities required for State Bank of India i.e. financier in this present case are concerned, the same have already been complied with and the only formality which is pending to be complied with by the complainant herself is to get the RC duly cancelled from the office of RTO and to submit the same  with the Insurance company.

10.     In short, it can be concluded that although the complaint filed by the complainant is pre-mature and without any cause of action, yet her claim has already been allowed so far as it concerns the opposite party. As per condition No. 8 of the Insurance policy, copy whereof is Ex.OP/9, it has been clearly agreed by the insured/complainant that due observance and fulfilment of the terms, conditions and endorsements of the policy in so far as they relate to anything to be done or complied with by the insured and in that case the Insurance company is not liable to pay the claim. Terms and conditions of the insurance policy are binding inter-se parties. Reference in this regard can be made to Supreme Court authority titled as M/s. Suraj Mal Ram Niwas Oil Mills (P) Ltd. Vs. United India Insurance Co.& Ltd and another respondents 2010(IV) RCR (Civil) 845 wherein it has been held that in a contract of insurance, rights and obligations are strictly governed by the terms of the policy and no exception of relaxation can be given on the ground of equity. It has been further held in this judgement that the words used therein must be given paramount importance and it is not open for the court to add, delete or substitute any words. It has been further held by the Hon’ble Supreme Court of India in this judgement that where there is breach of condition of Insurance contract by the insured, the Insurance company was not liable to pay compensation in case of loss. Further reliance can be placed on M/s. V.K.Kariyana Store Vs. The Oriental Insurance  Co.Ltd & Others 2014(3) CLT page 47 (NC) wherein it has been laid down that it is well settled principle of law that parties are bound by the terms and conditions of the Insurance policy and none of the parties can seek any relief beyond those terms and conditions.

11.     The judgements supra are fully applicable on all its fours in the present case. But  opposite party had already cleared the case for grant of compensation to the tune of Rs. 6,84,000/- whereas the requirement on the part of the complainant remains to be fulfilled . As such, the opposite party cannot be blamed for either any deficiency or delay on their part and delay, if any, is attributable to the complainant herself. In such a situation, the complainant has no cause of action to file the present complaint at this juncture and the complaint is totally pre-mature.

12.     From the aforesaid discussion, it transpires that the instant complaint is not maintainable  being pre-mature. Therefore,  the same is ordered to be dismissed with no order as to costs. Copies of the orders be furnished to the parties free of costs. File is ordered to be consigned to the record room. Case could not be disposed of within the stipulated period due to heavy pendency of the cases in this Forum.

Announced in Open Forum

Dated : 27.4.2016

/R/                                                                         ( S.S.Panesar )

President

                              ( Kulwant Kaur Bajwa)           (Anoop Sharma)

                                                Member                         Member