DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION

PATIALA.

                                      Consumer Complaint No. 207 of 21.9.2015

                                      Decided on:   23.10.2020

Narinder Kumar son of Prabhu Dayal, aged about 28 years, resident of H.No.464/2, Bajwa Colony, Patiala.

                                                                   …………...Complainant

                                      Versus

1. New India Assurance Company, through its Divisional Manager, Opposite Income Tax Office, near Leela Bhawan, Patiala.
2. Raj Vehicles Pvt. Ltd.,Authorized dealer of Mohindra and Mohindra Limited, village Dhareri Jattan, Bahadurgarh, Rajpura Road, Patiala through its Director.
3. Mohindra & Mohindra Financial Service Limited village Dhareri Jattan, Bahadurgarh, Rajpura Road, Patiala through its Director.
4.  

                                                                   …………Opposite Parties

                                      Complaint under Section 12 of the

                                      Consumer Protection Act, 1986.

QUORUM

                                      Sh. Jasjit Singh Bhinder, President

                                      Sh.Vinod Kumar Gulati, Member    

ARGUED BY

                                       Sh.Rohit Mehsempur,Adv.counsel for complainant.

                                      Sh.D.P.S.Anand.Adv. counsel for OP No.1.                

 ORDER

                                      JASJIT SINGH BHINDER,PRESIDENT

1. This complaint has been filed by  Narinder Kumar (hereinafter referred to as the complainant) against New India Assurance Company and others(hereinafter referred to as the OP/s).
2. The brief facts of the case are that the complainant purchased a vehicle make Mohindra Bollero Maxi Truck PLUS BSIII PS from M/s Raj Vehicles Pvt. Ltd. i.e. OP No.2, the authorized dealer of Mohindra & Mohindra Limited i.e. OP No.3 on 21.10.2013 against the temporary registration No.PB-II-ZD(T)2179. The purchase bill  of the truck was issued on 28.10.2013, vide invoice No.INV14B000847 bearing its chassis No.MAIZP2TAKD2J69709 and engine No.TAD4J59111, model 2013.
3. The vehicle was got financed by OP No.2 with OP No.3 which is the sister concern of OP No.2 and it was got insured with OP No.1 for which the complainant paid Rs.17907/- as insurance premium.
4. It is averred that on 1.11.2013, when the said vehicle was being driven by the employed driver of the complinant namely Manminder Singh S/o Gurbachan Singh, R/o H.No.136, Phase-1,LIG, Patiala, the vehicle met with an accident due to which the front portion of the vehicle was totally damaged and it was not in a position to be run on the road. The vehicle was brought to Raj Vehicles, Rajpura Road, Patiala in damaged condition. The necessary formalities were completed by the complainant and the required documents of the vehicle were handed over to the OP. The OP No.1 appointed the surveyor who visited the office of Raj Vehicles and inspected the vehicle and took photographs of the damaged vehicle. He also obtained the signatures of the complainant. The complainant visited at the workshop of OP No.2 for the repair of the vehicle, but OP No.2 demanded Rs.70,000/- from the complainant to start the work of repair for which the complainant was not bound to pay as the vehicle was fully insured with OP No.1.
5. It  is averred that OP No.2 failed to repair the vehicle and the vehicle is still lying with it. The complainant got served legal notice dated 3.1.2014 upon OPs No.1&3 which was duly served but they failed to give any reply.
6. It is further plea of the complainant that he number of times requested OP No.1 for settling the claim but it did not pay any heed to the request of the complainant. It is averred that the complainant purchased the vehicle for his business purpose but due to illegal harassment on the part of the OPs,  he has suffered huge loss in his business.Thus there is deficiency in service on the part of the OPs.

On this background of the facts, the complainant has filed the complaint with the prayer that the same be accepted by giving directions to the OPs to conduct the repair of the vehicle in question and the release the vehicle in its proper condition; to pay Rs.3,50,000/- as damages alongwithinterest alongwith any other relief if deem fit.

7. Upon notice OP No.1 appeared through counsel and filed written reply taking preliminary objections that the complaint is not maintainable; that the Insurance is a contract of indemnity and it has to be viewed as a normal contract as per the Indian Contract Act.Any violation of the insurance contract by the parties to the contract of insurance, the contract becomes void and in such an event the Insurance company is not liable to answer the claim of the other party; that  complicated question of law and facts are involved in the present and thus only the civil court is competent to decide the complaint.
8. On merits, it is stated that the complainant himself purchased insurance policy for new Bolero Maxi Truck bearing engine No.TAD4J59111 and Chassis No.D2J69708 for the period from 21.10.2013 to 20.1.2014 for a sum of Rs.4,39,055/-in the name of Sh.Narinder Kumar s/o Sh.Prabhu Dayal, 464/2, Bajwa Colony, Patiala. It is further submitted that the OP has got no liability as no claim of insured vehicle has ever been intimated or lodged with OP No.1.The OP has also no knowledge of any such accident. The question of appointment of surveyor by OP No.1 does not arise until or unless any claim is lodged.The OP No.1 has got no liability whatsoever.The OP denied all other averments made in complaint and has prayed for dismissal of the complaint.
9. In support of the complaint, the ld. counsel for the complainant tendered in evidence Ex.CA affidavit of the complainant, Ex.CB affidavit of Manminder Singh, Ex.C1 copy of invoice, Ex.C2 copy of form No.22, Ex.C3 copy of sale certificate, Ex.C4 copy of temporary number, Ex.C5 copy of insurance cover note, Ex.C6 copy of legal notice dated 3.1.2014, Exs.C7 and C8 copies of postal receipts,Ex.C9 copy of driving licence of driver Maninder Singh and closed the evidence.

The complainant by way of additional evidence has also tendered Ex.C10 office copy of intimation letter, Ex.C11 courier receipt, Ex.C12 envelop and closed the same.

10. On behalf of OP No.1, the ld. counsel tendered in evidence Ex.OPA affidavit of Sh.I.S.Sidhu, Divsional Manager alongwith document, Ex.OP1 insurance policy and closed the evidence.

Here, it may be stated that the OP did not lead any rebuttal to the additional evidence.

11. We have heard the ld. counsel for the parties and have also gone through the record of the case, carefully.
12. The ld. counsel for the complainant  has argued that he has purchased the vehicle make Mohindra Bollero from M/s Raj Vehicles Pvt. Ltd. on 21.10.2013.The ld. counsel has further argued that the vehicle was financed with Mohindra and Mohindra Financial Services Limited.The ld. counsel further argued that the vehicle was fully insured with the insurance company. The ld. counsel further argued that on 1.11.2013, when the said vehicle was being driven by complainant’s employed driver namely Manminder Singh, met with an accident due to which the front portion of the vehicle was totally damaged and was brought in the damaged condition to the Raj Vehicles, Rajpura Road, Patiala. .The ld. counsel further argued that intimation was also given to the insurance company and insurance company has appointed surveyor who took the photographs and inspected the vehicle.It is further argued that no surveyor report was given by the surveyor and no amount was ever given by the insurance company and the vehicle was not repaired. The ld. counsel further argued that the legal notice was duly sent to the OPs on 3.1.2014 through registered post but they did not reply to the same.The receipts of the legal notices sent through registered post are on the file.
13. The ld. counsel further argued that he filed an application for leading additional evidence but that application was declined by this Commission. Then he filed revision petition   before the Hon’ble State Consumer Disputes Redressal Commission, Punjab, Chandigarh and his application was allowed vide order dated 20.7.2017.The ld. counsel further argued that after that courier receipt, Ex.C11 and the notice Ex.C10 dated 2.11.2013 intimating the insurance company has been proved. The ld. counsel further argued that it was a deficient service by OP No.1 as it has not paid the claim yet nor it filed any surveyor report. The ld. counsel for the complainant has relied upon the judgments Ravi Kumar Vs. The Oriental Insurance Company Ltd. decided on 25.4.1995 Vyom Bhargava(Dr.) Vs. Reliance General Insurance Company Ltd. First Appeal No.527 of 2006, decided on 22.9.2006 and First Appeal No.135 of 2007 decided on 12.2.2007  United India Assurance Company Ltd. Vs. Amarjit Singh, all decided by the Hon’ble Punjab State Consumer Disputes Redressal Commission, Chandigarh,          
14. On the other hand, the ld. counsel for the OP No.1 has argued that the complainant has never intimated about the accident to the insurance company.It is argued that courier receipt is fake,forged and fabricated document and  has been manufactured by the complainant himself. It is admitted that the vehicle was fully insured with the insurance company.The ld. counsel has argued that the insurance company has no liability as no claim  has ever been reported or lodged with the OP. The ld. counsel further argued that no document of the accident was ever handed over to the insurance company and the complaint be dismissed. The ld. counsel has cited judgments Jasmer Singh Vs. Reliance General Insurance Company Ltd. II(2012)CPJ1,  Oriental Insurance Co. Ltd. Vs. Dev Kumar and Ors. II(2012)CPJ4, Sajid Ali Vs. Manager, Shri Ram General Insurance Co. Ltd. 2018(3)CLT 14, Virendra Singh Raghuvanshi Vs. Oriental Insurance Co. Ltd. 2017(1)CLT 375, M/s IDBI Bank Ltd. and Others Vs. Mrs.Surjit Kaur 2020(1)CLT 157,  Paramount Digital Color Lab and Ors. ETC Vs. Agfa India Pvt. Ltd. and Ors. Etc. III(2018) CPJ 12(NC) and Vinod Kumar Aggarwal Vs. M/s Case New Holland Construction Equipment ( India) Pvt. Ltd. 2018(3) CLT 608.
15.           The complainant has tendered his affidavit,Ex.CA and has deposed as per the averments made in the complaint.Ex.CB is the affidavit of Manminder Singh. The complainant has filed this complaint that he has purchased the vehicle from Raj Vehicles Pvt. Ltd. vide receipt,Ex.C1and sales certificate, Ex.C3 and the vehicle was financed with Mahindra & Mahindra Financial Services Ltd.The vehicle was fully insured with OP No.1 vide cover note,Ex.C5 and the insurance policy was from date of purchase till 21.10.2014 and the premium was Rs.17907/-.It was a comprehensive insurance policy.
16. As per the complainant, the vehicle met with an accident on 1.11.2013 due to which the front portion of the vehicle was damaged and the vehicle was brought to Raj Vehicles Rajpura Road, Patiala. It is pleaded that surveyor was appointed by the insurance company who visited Raj Vehicle and took photographs.
17. Preliminary objections have been raised by the OP that it was never intimated to the insurance company that when and where the accident has taken place.As such the complaint is liable to be dismissed on this point.The ld. counsel for the OP citied judgments during arguments.
18. The complainant  moved an application for additional evidence to prove the intimation letter but that application was declined .Aggrieved by that the complainant moved an application before the Hon’ble State Consumer Disputes Redressal Commission Punjab Chandigarh and the application was allowed vide order dated 20.7.2017. After that the complainant has tendered receipt of courier dated 2.11.2013 Ex.C11 and intimation regarding the accident, Ex.C10 on 2.11.2013. The receipt,Ex.C11 duly received by the insurance company and it is bearing stamp of insurance company.The ld. counsel during arguments object the receipt it being fake but no evidence in rebuttal has been lead by the insurance company to prove that the receipt, Ex.C11 as well as intimation, Ex.C10 are fake and fabricated documents, although the ld. Commission has given one opportunity to both the parties to lead their evidence.So without any rebuttal evidence it cannot be held that the receipt,Ex.C11 as well as intimation letter, Ex.C10 of Sh.Narinder Kumar are  fake,forged and fabricated documents.
19. On 3.1.2014 a legal notice on behalf of Narinder Kumar was sent to insurance company and Mahindra & Mahindra Financial Service Ltd. This notice was sent through registered post and the postal receipts are Ex.C7 and C8 dated 4.1.2014.
20. It was incumbent upon the OP to reply to this notice which was got sent through counsel by Narinder Kumar taking their stand taken in the present complaint. Non filing of the reply shows that insurance company has given deficient service to its clients. When the insurance companies have insured the vehicles comprehensively and they have received the entire money from the complainant then they were  bound to give service to the consumer to get his vehicle repaired.
21. Insurance company has also tendered insurance policy of the vehicle in question,Ex.OP1.The accident took place in the year 2013 and now seven years have passed. There is no report of the insurance company or its surveyor who assessed the loss. So as the accident was duly intimated by the complainant to the insurance company therefore, the citations laid down by the insurance company are not applicable to the present case.
22. Now the insurance company is directed to appoint surveyor, the fees of the surveyor shall be paid by the parties in equal share and surveyor shall give the report by visiting the place where the damaged vehicle is standing and the surveyor shall assess the loss but the whole amount cannot be granted to the complainant as the complainant has also not proved any surveyor report on the file.
23. So due to our above discussion, the complaint is partly allowed and the insurance company is directed to appoint its surveyor. The fee of surveyor shall be paid by the parties in equal share and surveyor shall access the loss and the insurance company shall pay 75% of the assessed loss to the complainant,25% shall be deducted as salvage. The OP is also directed to pay Rs.5000/- as costs and Rs.5000/-as litigation expenses to the complainant.
24. Compliance of the order be made by the  OP within 45 days from the date of the receipt of the certified copy of this order.

ANNOUNCED

DATED:23.10.2020     

                                       Vinod Kumar Gulati             Jasjit Singh Bhinder

                                                Member                                     President