Order by:
Sh.Amrinder Singh Sidhu, President
1. Sh.Satnam Singh, complainant has filed the instant complaint under section 12 of the Consumer Protection Act, 1986 (as amended upto date) on the allegations that he insured his vehicle TATA/4018 Trailer, Registration NO.PB-05-T-9424 bearing Chassis No./Engine No: 03800/36419 with Opposite Parties vide policy No.36110031150100001999 valid for the period w.e.f. 21.07.2015 (12:00:01 AM) to 20.06.2016 (11:59:59 PM), with IDV Rs.17,50,000/-, copy of the policy is placed on record as Ex.C4. The Complainant alleges that the vehicle in question colluded with vehicle No.PB-29-R-8524 near village Simra Khiya, Jodhpur in Rajasthan State and in the accident, the Complainant suffered a loss of more than Rs.4 lacs. In this regard, the Complainant immediately reported the matter with the Opposite Parties and completed all the formalities, but the Opposite Parties have repudiated the claim of the Complainant vide letter dated 08.09.2016 without any sufficient rhyme or reason. In this way, said conduct of the Opposite Parties clearly amounts to deficiency in service and as such, the Complainant is left with no other alternative but to file the present complaint. Vide instant complaint, the complainant has sought the following reliefs.
a) Opposite Parties may be directed to pay a sum of Rs.4 lacs alonwith interest @ 2% per annum from the date of accident i.e. 14.5.2016 till its actual realization.
b) The amount of Rs.1,00,000/- be allowed to be paid by the opposite parties on account of compensation due to mental tension and harassment caused by the complainant.
c) And any other relief to which this Hon’ble Consumer Commission, Moga may deem fit be granted in the interest of justice and equity.
2. Opposite Parties appeared through counsel and contested the complaint by filing the written version taking preliminary objections therein inter alia that the complaint is not maintainable; the Complainant has not approached this Commission with clean hands. He has concealed, suppressed and misstated the material facts from this Commission. The true facts are that after receiving the information regarding the accident, the Opposite Parties immediately appoint R.P.Gupta & Company (Surveyor, Valuers & Loss Assessor) to investigate the matter who filed his report dated 30.06.2016. The claim of the Complainant was not payable because the vehicle of the Complainant was overloaded. As per the loan challan i.e. consignment note No.946 dated 13.05.2016 of Assam Punjab Carriers, the vehicle fo the Complainant was loaded with 31,670 MT/31,670 Kgs US Coal, however as per RC pay Load comes to 27,660 Kgs (40200 less 12450 Kgs). Therefore, the vehicle in question was overloaded by 4010 Kgs i.e. 14.5% of carrying capacity. As per company guidelines overloading beyond 12.5% of GVM is not payable as it apparently strains the vehicle to function properly and hence the claim of the Complainant was declared as ‘No Claim’ vide letter dated 08.09.2016. Therefore, there is no deficiency in service on the part of the Opposite Parties. It is pertinent to mention over here that the surveyor has assessed the loss to the extent of Rs.2,03,000/-. On merits, the Opposite Parties took almost the same and similar pleas as taken by them in the preliminary objections. Remaining facts mentioned in the complaint are also denied and a prayer for dismissal of the complaint was made.
3. In order to prove his case, the complainant has tendered into evidence his affidavits Ex.C1 and Ex.C2, copy of RC Ex.C3, copy of policy Ex.C4, copy of repudiation letter Ex.C5.
4. On the other hand, to rebut the evidence of the complainant, Opposite Parties tendered into evidence affidavit of Sh.A.K.Jindal, Divisional Manager Ex.OPs1, copy of repudiation letter Ex.OPs2 and Ex.Ops3, copy of letter Ex.OPs4, copy of letter Ex.OPs5, copy of surveyor report Ex.Ops6, copy of GR Ex.Ops7, copy of claim form Ex.OPs8, copy of RC Ex.OPs9.
5. We have heard the ld.counsel for the parties and also perused the written arguments filed by the Complainant and gone through the documents placed on record.
6. During the course of arguments, both the ld.counsel for the Complainant as well as Opposite Parties have mainly reiterated the facts as narrated in the complaint as well as in written reply respectively.
7. Ld.counsel for the complainant has mainly contended that the written version filed on behalf of Opposite Party has not been filed by an authorized person. Therefore, the written version so filed is not maintainable. Opposite Party is limited Company and written version has been filed on the basis of special power of attorney given to ld.counsel for the Opposite Party. He has relied upon the judgment (2011)II Supreme Court Cases 524 titled as “State Bank of Travancore Vs. Kingston Computers India Pvt. Ltd.” and in para no.11 of the judgment, it was held that
“the plaint was not instituted by an authorized person. On the plea that one authority letter dated 02.01.2003 was issued by Sh. R.K.Shukla in favour of Sh. A.K.Shukla. Further plaint failed to place on record its memorandum/articles to show that Sh. R.k.Shukla has been vested with the powers or had been given a general power of attorney on behalf of the Company to sign, verify and institute the suit on behalf of the Company.”
Similar proposition came before the Hon’ble Delhi High Court in “Nibro Ltd. Vs. National Insurance Co. Ltd.”, 2 (2005) 5SCC 30 that the
“bear authority is not recognised under law and ultimately, it was held that the plaint was not instituted by an authorised person. Here also appellant has not placed on record any resolution passed by any Board of Director in favour of Mr. Soonwon Kwon and that he was further authorised to delegate his power in favour of any other person. Further there is no memorandum/articles of the Company to show that Mr. Soonwon Kwon is one of the Director of the Company. In the absence of that evidence on record we cannot say that the special power of attorney given by Director Soonwon Kwon is a competent power of attorney issued in favour of Sh. Bhupinder Singh. In the absence of any resolution of the Company or any memorandum/articles of the Company to show that Sh. Soonwon Kwon is Director and that he was further authorised to issue power of attorney in favour of Sh. Bhupinder Singh.”
Recently our own Hon’ble State Commission, Punjab Chandigarh in FAO No.1235 of 2015 decided on 25.01.2017 in case titled as L.G.Electronics India Private Limited Vs. Sita Ram Chaudhary also held that the plaint instituted by an unauthorized person has no legal effect.
8. For the sake of arguments, if it is admitted that the written version filed by the Opposite Party is legal. Now come to the merit of the case. It is not the denial of the case of the parties that the Complainant insured his vehicle TATA/4018 Trailer, Registration NO.PB-05-T-9424 bearing Chassis No./Engine No: 03800/36419 with Opposite Parties vide policy No.36110031150100001999 valid for the period w.e.f. 21.07.2015 (12:00:01 AM) to 20.06.2016 (11:59:59 PM), with IDV Rs.17,50,000/-, copy of the policy is placed on record as Ex.C4. It is also not the denial of the parties that the vehicle in question colluded with vehicle No.PB-29-R-8524 near village Simra Khiya, Jodhpur in Rajasthan State and in the accident, the Complainant suffered a loss to his vehicle and the Complainant immediately reported the matter with the Opposite Parties and completed all the formalities, but the Opposite Parties have repudiated the claim of the Complainant vide letter dated 08.09.2016.
9. On the other hand, Opposite Parties has repelled the aforesaid contention of the Complainant on the ground that the Complainant has concealed, suppressed and misstated the material facts from this Commission. It is however, admitted that after receiving the information regarding the accident, the Opposite Parties immediately appoint R.P.Gupta & Company (Surveyor, Valuers & Loss Assessor) to investigate the matter who filed his report dated 30.06.2016. The claim of the Complainant was not payable because the vehicle of the Complainant was overloaded. As per the loan challan i.e. consignment note No.946 dated 13.05.2016 of Assam Punjab Carriers, the vehicle of the Complainant was loaded with 31,670 MT/31,670 Kgs US Coal, however as per RC pay Load comes to 27,660 Kgs (40200 less 12450 Kgs). Therefore, the vehicle in question was overloaded by 4010 Kgs i.e. 14.5% of carrying capacity. As per company guidelines overloading beyond 12.5% of GVM is not payable as it apparently strains the vehicle to function properly and hence the claim of the Complainant was declared as ‘No Claim’ vide letter dated 08.09.2016. Therefore, there is no deficiency in service on the part of the Opposite Parties. It is however, admitted by the Opposite Parties that the surveyor has assessed the loss to the extent of Rs.2,03,000/-. Bare perusal of the Motor Survey Report (Final & Reinspection) of M/s.R.P.Gupta & Company, Ludhiana placed on record as Ex.OPs6 shows that said surveyor has submitted the detailed report after considering each and every facts of the case after calculating the estimated loss to the insured vehicle at Rs.5,95,680/-. Afterr conclusion, said surveyor has mentioned that the vehicle was over loaded by 4010 Kgs that comes to 14.5%. However, he has assessed the net loss to the vehicle at Rs.2,03,000/- after deducting excess clause Rs.1500/- and salvage value of Rs.8706.38 paisa). But however, on the other hand, the Complainant has claimed the amount of more than Rs.4 lacs on account of loss to his insured vehicle. It has been settled by the Hon’ble Supreme Court of India that the report of the Surveyor cannot be brushed aside without valid reasons. In this context, reference may be made to the judgment of the Hon’ble Supreme Court reported as “Sri Venkateshwara Syndicate v. Oriental Insurance Company Limited, II (2010) CPJ 1 (SC)” in which it was held by the Hon’ble Supreme Court that the report of the Surveyor is to be given due importance and weight. Hon’ble National Commission in case cited as PRADEEP KUMAR SHARMA versus NATIONAL INSURANCE COMPANY, III(2008) CPJ 158 (NC), has been held that “Surveyor Report is an important document and cannot be brushed aside without any compelling evidence to the contrary”. Further in case New Horizon Sugar Mills Ltd. v. United India Insurance Co. Ltd. & Ors, 2003(3) CPR 136 (NC), the Hon’ble National Commission, New Delhi has observed that “report of Surveyor appointed under the provisions of Insurance Act has to be given greater importance.” In M/s Natain Cold Storage & Allied Industries Ltd. v . Oriental Insurance Co Ltd. 2003(3) CPR 114 (NC) it has been observed “surveyor’s report in the insurance claim is an important document which cannot be brushed aside easily.” Same view has been taken by the Hon’ble National Commission in case of Bhawana Kumar versus General Manager Varun Webres Ltd. & Anr, 2008(4) CPR 82 (NC). Not only this, recently Hon’ble National Consumer Disputes Redressal Commission, New Delhi in case National Insurance Company Limited Vs. M/s.Kiran Collector & Boutique 2019 (1) CLT 384 (NC), decided on 24th July, 2018 has held that “General rule is that the surveyors are appointed under the Insurance Act, 1938 and their reports are to be considered for settlement of insurance claims- The reports can not be brushed aside without any cogent reasons.”
10. Keeping in view the aforesaid facts and circumstances and replying upon the judgements of Hon’ble Supreme Court of India as well as Hon’ble National Commission, New Delhi (supra) we are of the view that the instant complaint is to be decided on the basis of unrebutted surveyor report.
11. In such a situation the repudiation made by Opposite Party regarding genuine claim of the complainant appears to have been made without application of mind. It is usual with the insurance company to show all types of green pesters to the customer at the time of selling insurance policies, and when it comes to payment of the insurance claim, they invent all sort of excuses to deny the claim. In the facts of this case, ratio of the decision of Hon’ble Apex Court in case of Dharmendra Goel Vs. Oriental Insurance Co. Ltd., III (2008) CPJ 63 (SC) is fully attracted, wherein it was held that, Insurance Company being in a dominant position, often acts in an unreasonable manner and after having accepted the value of a particular insured goods, disowns that very figure on one pretext or the other, when they are called upon to pay compensation. This ‘take it or leave it’, attitude is clearly unwarranted not only as being bad in law, but ethically indefensible. It is generally seen that the insurance companies are only interested in earning the premiums and find ways and means to decline claims. In similar set of facts the Hon’ble Punjab & Haryana High Court in case titled as New India Assurance Company Limited Vs. Smt.Usha Yadav & Others 2008(3) RCR (Civil) Page 111 went on to hold as under:-
“It seems that the insurance companies are only interested in earning the premiums and find ways and means to decline claims. All conditions which generally are hidden, need to be simplified so that these are easily understood by a person at the time of buying any policy. The Insurance Companies in such cases rely upon clauses of the agreement, which a person is generally made to sign on dotted lines at the time of obtaining policy. Insurance Company also directed to pay costs of Rs.5000/- for luxury litigation, being rich.
12. In view of the aforesaid facts and circumstances of the case, the instant complaint is allowed and the Opposite Parties are jointly or severally directed to make the payment of Rs.2,03,000/- (Rupees two lacs and three thousands only) to the complainant as compensation against his claim of insured vehicle in question, on the basis of report of surveyor alongwith interest @ 8% per annum from the date of filing the complaint i.e. 27.04.2018 till its realization. Opposite Parties are also directed to pay lump compensation amounting to Rs.5,000/- for his harassment inclduing litigation expenses. The compliance of this order be made by the Opposite Parties within 45 days from the date of receipt of copy of this order, failing which the Complainant shall be at liberty to get the order enforced through the indulgence of this Commission. Copies of the order be furnished to the parties free of costs. File is ordered to be consigned to the record room.
13. Reason for delay in deciding the complaint. This complaint could not be decided within the prescribed period because the government has not appointed any of the two Whole Time Members in this Commission since 15.09.2018. Moreover, the President of this District Commission is doing additional duty at District Consumer Commission, Bathinda as well as Faridkot. There is only one working day in a week when the quorum of this Commission remains complete.
Announced in Open Commission.
Dated: 22.01.2021.
