Before the District Consumer Dispute Redressal Commission [Central], 5th Floor ISBT Building, Kashmere Gate, Delhi
Complaint Case No.-235/ 17.07.2014
Smt. Jagjit Kaur C/o Shri Kamal Chand
r/o VP-477, Wazirpur Village, Delhi-110092 ...Complainant
Versus
OP1: National Insurance Company Limited
DRO 2nd Floor Care-3, Scope Minar Laxmi Nagar
District Centre, Delhi-110092 (it is changed address
as per order dated 07.12.2014 in place of -
Motor Claim Hub, Jhandewalan Extn.
near Jhandewalan Metro Station, New Delhi).
OP2: The Oriental Insurance Company Limited
Divisional Office No. 15, G-8, NDSE Part-I,
New Delhi-110049 (impleaded as OP2
vide order dated 02.12.2015) ...Opposite Parties Order Reserved on: 20.01.2023
Date of Order: 14.02.2023
Coram: Shri Inder Jeet Singh, President
Shri Vyas Muni Rai, Member
Ms. Shahina, Member -Female
Inder Jeet Singh
ORDER
1.1 In this complaint, the gist of consumer dispute is that repairs bills were not reimbursed, despite valid insurance policy, by OPs to the complainant of her insured vehicle bearing registered no. DL 3CAX 6855, which was got repaired since vehicle met with an accident.
Whereas, and OP1 opposed it that vehicle was already Insured with OP2 during that period of accident, although it got the surveyed the vehicle after information and also apprised the complainant to approach first Insurer the Oriental Insurance Company Ltd. There is no liability of OP1.
The OP2 also opposed complaint that information of accident was not given to it immediately & within time, it is non-compliance of clause no. 1 of insurance policy as well as want of furnishing the requisite document, it does not entitle the complainant for any amount. The office of OP2 is also beyond territorial jurisdiction of the Commission to try the complaint.
1.2: It is relevant to mention that the complaint has not been appropriately/properly worded at many place, however, deriving the appropriate intentions, the proper expression are being used in this Order, so that it is understood in the prospective it was intended by the complainant.
2. Complainant, Smt. Jagjit Kaur [of House no.60, First Floor, Sant Nagar, East of Kailash, New Delhi] through her attorney Shri Kamal Chand filed the complaint u/s 12 of the Consumer Protection Act, 1986 that she is owner of vehicle bearing registered no. DL 3CAX 6855, it met with an accident on 18.08.2012 at Rajasthan and police FIR no. 167/19.08.12 was also registered. The vehicle was badly damaged in the accident and it was got repaired from M/s Vishesh Autopart against retail invoice/cash memos. The vehicle was got re-examined and repaired from Cars Inn (India) against invoice/bill no. 8668 dated 13.02.203 of Rs. 35,000/-. At the time of accident, the vehicle was insured with the National Insurance Company/OP1 vide policy no. 360803/31/12/6100092897 for period 17.08.2012 to 16.08.2013. The bills were furnished to insurer/OP1. The complainant had also given information of accident immediately to OP1 and furnished all requisite documents to OP1, who gave a denial answer vide reference no. ODH20313 dated 10.10.2012. The complainant was compelled to sent legal notice dated 27.03.2014 but despite receipt of notice, the grievances of complainant were not addressed and that is why, the complaint was filed.
There is deficiency of services and unfair trade practice on the part of OPs. The complaint in filed by Smt Jagjit Kaur, it is signed by attorney Kamal Chand and supporting affidavit of Jagjit Kaur is also signed by her attorney, by writing expression C/O Kamal Chand [which has also been reproduced in the array of parties]. The complaint is also accompanied by photocopies of FIR, insurance policies issued by OP1 and OP2, complainant's letters dated 12.10.2012, 25.11.2012, 27.11.2012, copy of legal notice, invoices/bills of repairs and OP2's letter date 10.10.2012. The complainant seeks reimbursement of repairs expenses (without specifying the amount in the complaint), compensation of Rs.1,00,000/- on account of harassment and costs from OPs.
3. The OP1 files its detailed written statement to oppose the complaint. It suffers from non-joinder of necessary party M/s Oriental Insurance Company Ltd. (now OP2) as on the date of accident of 18.08.2012, the vehicle was insured with Oriental Insurance Company Ltd. vide insurance policy no. 212722/31/2012/1142 effective from 20.08.2011 to 19.08.2012. Since the vehicle was already insured with Oriental Insurance Company Ltd., there is no liability of OP1 and the complaint is liable to be dismissed.
However, on receipt of information of accident, the OP1 immediately appointed Mr. Mukesh Mendiratta, Surveyor and Loss assessor, who had also furnished his report dated 14.03.2013, wherein, he assessed loss of Rs. 66,000/- against bills furnished. Moreover, the insured was also informed and advised by letter dated 10.10.2012 to lodge the claim with Oriental Insurance Company Ltd, since the vehicle was insured with it prior to taking the policy from OP1 in respect of the vehicle. The OP1 denies other allegations of repairs of vehicle from Vishesh Autoparts and no bills were furnished to OP1.
4.1 After OP1's written statement dated 28.11.2014, the complainant applied and his application was allowed on 02.12.015 to implead OP2; consequently OP2/ Oriental Insurance Company was impleaded.
4.2. OP2 also opposed the complaint by filing detailed written statement, firstly, the complainant came to the Consumer Forum without clean hands, the accident was of 18.08.2012 but OP2 was first time informed about accident on 12.10.2012, there is delay of 55 days and it is in violation of clause no. 1 of the insurance policy, which mandates that notice of episode should be given in writing by the complainant immediately on occurrence of any accident or loss as well as in case of theft or other criminal act notice to the police apart from cooperation with the company. The complainant has not cooperated and failed to give opportunity to OP2 to assess the loss for want of providing requisite information and documents. As per policy, without prejudice to other grounds, the claim cannot exceed the insured declared value of the motor vehicle. Moreover, the complaint is not maintainable for want of territorial jurisdiction with this District Forum as OP2's office is situated in Divisional Office no. 15, South Extension, New Delhi, as per amended memo of parties.
The vehicle no. DL 3CAX 6855 TATA Indigo was insured vide policy no. 212700/31/2012/1142 from 20.08.2011 to 19.08.2012 against IDV of Rs. 2,00,000/-. However, there is violation of policy condition, the complaint is liable to be dismissed. The complaint is also barred by section 64 UM of Insurance Act, 1938 [this law point has not been explained in the reply nor it was pressed for during arguments, thus it not a disputed question to be determined].
5. The complainant, through her attorney, also filed separate rejoinders to the written statement/ reply of OP1 and OP2, while reaffirming the contents of the complaint. The allegations in the written statement & reply are denied. The documentary record of FIR, invoice etc., have also been reaffirmed by the complainant. Moreover, this Commission has territorial jurisdiction to entertain the complaint.
6.1: The complainant, through its attorney Kamal Chand, led evidence by way of filing affidavits dated 16.07.2014 and 05.05.2015, which were in the name of complainant but under the signature of attorney, however, subsequently affidavit dated 07.10.2016 was filed under his own name & signature, while referring and relying upon documentary record filed with the complaint to the effect that a recent policy was taken from OP1/National Insurance Company Ltd of period 17.08.2012 to 16.08.2013, since the previous policy was misplaced and previous policy was taken from OP2/Oriental Insurance Company, which was valid from 20.08.2011 to 19.08.2012. The letters of intimation to insurance companies, filed with the complaint are also relied in the evidence.
6.2: On the other side OP1's Shri Anil Sharma, Divisional Manager had filed compact affidavit of evidence, based on the reply and relied upon insurance policy, Motor Surveyor Report and letter dated 10.10.2012 to complainant advising her to approach Insurer/Oriental Insurance Company at the earliest. Further, OP1 also led evidence through Shri Mukesh Mendiratta to establish Motor Surveyor Report.
6.3: While, OP2 produced affidavit of evidence of Shri Rajinder Kumar, Senior Divisional Manager, posted at DO no. 15, G-8, South Extension Part-1, New Delhi to prove its plea, he relies upon insurance policy, which was valid from period 20.08.2011 to 19.08.2012 in order to establish its terms and conditions as well as IDV of Rs. 2,00,000/- of insured vehicle to oppose the complaint.
7.1: At the stage of final hearing, the complainant, the OP1 and the OP2 filed their respective written arguments. The parties were given option to make oral submissions and consequently Shri P.S. Tomar, Advocate for OP1 and Shri Bhupesh Kumar Chandna, Advocate for OP2 made their final submissions. None had appeared and made oral submission on behalf of complainant. However, the contentions of all parties will be considered and dealt point-wise, which are not repeated here for the sake of brevity.
7.2: The OP2 has raised question of territorial jurisdiction of present Commission, since OP2 has office at DO no. 15, G-8, NDSE Part-I New Delhi and in the absence of business place of OP2 within the territorial jurisdiction of this Commission, the complaint is liable to be dismissed.
The record is perused and statutory provisions are perused to decide this issue. Initially, when the complaint was filed, it was only against OP1/National Insurance Company, having business address- Motor Claims Hub 2-E/25 3rd floor, Jhandewalan Extension, near Jhandewalan Metro Station, New Delhi, which is within the territorial jurisdiction of this Commission. However, during the course of proceeding, the address of OP1 was changed. Thence complainant's application's was allowed vide order dated 07.12.2014 to incorporate latest address of OP1, it was incorporated as mentioned in the array of parties. The OP1 had also filed reply to complainant, while disclosing status of previous insurance police as well as facts of writing the letter dated 10.10.2012 to the Complainant. Secondly, vide order dated 02.12.2015, name of OP2/ Oriental Insurance Company was impleaded on application of complainant. No doubt OP2's address is DO no. 15, G-8, NDSE Part-I New Delhi-110049, which is beyond the territorial jurisdiction of present Commission.
However, this complaint was filed in the year 2014 under the provisions of the Consumer Protection Act, 1986. Section 11 of the Consumer Protection Act, 1986 is in respect of jurisdiction of District Forum and clause (2)(b) section 11 of Act is that when there are more than one OPs, any of them is actually and voluntarily resides or carry on business or has a Branch office (but other is not within the jurisdiction of Forum), then complaint may be instituted in that Forum with the permission of District Forum. To say, complaint may be filed when one party is within the local jurisdiction of the Forum/Commission and other party is not within that jurisdiction. Since, the Oriental Insurance Company Limited was impleaded as OPs by specific order dated 02.12.2015 of the Forum, when complaint was already pending against OP1, it amounts permission of the Forum. The OP2 cannot derive any benefit that its office is not within the area of jurisdiction of this Commission. Therefore, the present District Commission has jurisdiction on the subject matter against OP2 also. Accordingly this contention of OP2 stands disposed off.
7.3. The other issue raised by OP2 is that information of accident was not given immediately after accident but after delay of 55 days from the date of accident. On perusal of record, two relevant aspects are emerging, firstly, immediately after accident, information was given to the police on 18.08.2012 itself and FIR was registered on 19.08.2012 vide FIR no. 167/12 P.S. Sadar, District Jhunjhuna and also information to OP1. Secondly, OP1 had appointed its surveyor and he had conducted the survey. The surveyor in his report paragraph 11(7), reports ‘I had also mailed about the loss in the car to the Claim Hub of M/s Oriental Insurance Company Ltd.’ meaning thereby, the OP1 National Insurance Company appointed the surveyor, who carried the survey of vehicle and surveyor informed OP2/ Oriental Insurance Company about the loss to the car. The letter dated 10.10.2012 by OP1 to complainant and its copy to OP2 confirms that complainant was advised to approach OP2 and then consequently complainant approached OP2. In this way, what was required under the policy terms, it was complied by the complainant. The complainant has also proved letters dated 12.10.2012, 25.11.2012 and 26.11.2012 to the insurance companies explaining under what circumstances, the insurance policy was previously taken from OP2 and then subsequently current policy from OP1, both the policy were valid at the time of accident.
7.4.1. There is a strong objection by the OP1 and the OP2, while drawing the attention to the complaint as well as affidavits of evidence that complaint is in the name of Jagjit Kaur but it was signed by Kamal Chand, apart from affidavits are also the same manner. Moreover, the complainant had filed copy of power of attorney, but on plain reading this power of attorney its covenant confines for getting released of accidental vehicle & other allied matters, nowhere in the power of attorney, there is authority to file the complaint under the Consumer Protection Act. The complaint as well as evidence are invalid.
It needs to scrutinize the record and intention of complainant in power of attorney in favour of her attorney Kamal Chand. Firstly, there is a power of attorney on non-judicial stamp paper, it is written/typed in Hindi having many covenants of power given in favour of attorney. Secondly, it is not a special power of attorney but it is a general power of attorney [ its title is मुख्तियारनामा आम ]. Its some paragraphs are in respect of release of vehicle, which are not disputed by OPs. However, other paragraphs no. 3 and 4 are about powers given to attorney in respect of present as well as other future course of action to sign applications, complainant, suits etc. in the court of law pertaining to and relating to insured vehicle, meaning thereby it also covers the complaint under the Consumer Protection Act. It would not construe that complaint under the Consumer Protection Act cannot be filed, if no such specific expression are mentioned in the covenant, since it is general power of attorney. There is no bar under the Consumer Protection Act, 1986 for a power of attorney holder to prosecute the complaint. Moreover, under rule 16 (3) of the Consumer Protection Regulation 2005 (as framed under the Consumer Protection Act, 1986 ) there is also power with the power of attorney holder to engage counsel for the prosecution of complaint, if so authorized.
In the array of parties, the expression written is complainant Jagjit Kaur C/o Kamal Chand, this is the same Kamal Chand in whose favour general power of attorney was issued by the complainant Jagjit Kaur. However, in the body of complaint, it was not specifically worded that he filed it as an attorney of Jagjit Kaur but the expression appearing from the words ‘C/o Kamal Chand’ communicates that he is expressing so, as an attorney.
Who is this Kamal Chand? It has also been mentioned in the surveyor report that he was driver of said vehicle. Therefore, Kamal Chand is in twin capacity- one being driver of the Insured vehicle and other being an attorney of complainant Jagjit Kaur.
7.4.2. So far affidavits of evidence are concerned, there is same pattern of expression as in complaint in two affidavits of 16.07.2014 and 05.05.2015 but in the third affidavit dated 07.10.2016, Kamal Chand is its author & deponent and in its paragraph no. 1, he has specifically mentions that he is attorney holder of complainant Jagjit Kaur. Therefore, he was competent to institute the complaint as an attorney of complainant Jagjit Kaur and the affidavit of evidence filed on 07.10.2016 is also properly filed. Therefore, it is held that the complaint filed by competent person and the evidence is also led by a competent person consequently, there is no merit in the contention raised on behalf of OP1 and OP2 that complaint and evidence were not valid.
7.5. By taking stock of all the circumstances, the vehicle DL 3CAX 6855 had met with an accident on 18.08.2012 for which an FIR was registered and it was within the validity period of insurance policy issued by OP2 vide policy no. 212700/31/2012/1142 from 20.08.2011 to 19.08.2012 having IDV of Rs. 2,00,000/-. Insurer was also informed in time. The complainant has furnished estimates/ invoices for getting the vehicle repaired. The surveyor of OP1 had also estimated the loss suffered, it is mentioned in the surveyor report, after considering nature of items (Metal, rubber, glass, fiber as well as some of the items were second hand parts) apart from labour charges and scrap value of damaged parts. The surveyor opined damages of Rs. 66,000/- taking all aspects of estimates & bills furnished by complainant to OP1.
There is no evidence by the complainant to suggest any flaw in the surveyor’s report, while estimating the loss for permissible items as well as the extent of value assessed after appropriate adjustment/depreciation. On plain reading of plea of complaint as well as stand of OPs, there is nothing emerging in the plea of OP2, that OP1 had wrongly advised the complainant to approach OP2, since there was already policy issued by OP2 in favour of complainant.
Thus, complainant has succeeded to establish the complaint against OP2/ insurer that she is entitled for compensation in respect of damages happened to the vehicle in accident, however, the damages are allowed for Rs. 66,000/- as assessed by surveyor (appointed by OP1) in his report. Since the complainant had parted with her money in getting repairs the damaged vehicle but bills amount was not paid to her, therefore, interest at rate of 4% pa on said amount from the date of complaint till realization of amount is allowed in her favour and against OP2.
7.6. The complainant has also claimed Rs. 1,00,000/- as compensation in respect of mental pain and agony as well as for harassment by OPs, however, quantum of such compensation has not been established by the complainant, consequently a sum of Rs. 5,000/- is quantified as justifiable amount, it is allowed in favour of complainant and against OP2.
7.7. The complainant claims cost of litigation, it is quantified as Rs. 2,000/- in her favour and against the OP2.
7.8. In view of the above, no order is warranted against OP1, the complaint against OP1 is dismissed.
7.9. Hence, the complaint is partly allowed in favour of complainant and against the OP2 to pay a sum of Rs. 66,000 /- along with interest @ 04% pa from the date filing of complaint till its realization, apart from damages of Rs. 5,000/- and cost of Rs. 2,000/- within 30 days from the date of receipt of this order. The complaint against OP1 is dismissed.
8. Copy of this Order be sent/provided forthwith to the parties free of cost as per rules.
9: Announced on this 14 day of February, 2023 [माघ 25, साका 1944].
