PER:
Nidhi Verma, Member
1 The complainant has filed the present complaint by invoking the provisions of Consumer Protection Act under Section 35 and 36 against the opposite parties on the allegations that the complainant purchased one truck marka Bharat Benz bearing registration No. PB02-DQ-0325. The complainant purchased chassis from the opposite party No. 3 for a sum of Rs. 18,46,0000/- and also spent Rs. 2,20,000/- for manufacturing the body upon the chassis and also paid taxes Rs. 58,000/- on 27.7.2018 and insured the same from the Oriental Insurance company Ltd. opposite parties No. 1 and 2 through cover note No. CHD-d541190 and the said truck was also financed for sum of Rs. 17,50,000/- by the opposite party No. 4 ( wrongly written as opposite party No. 5) As such the complainant is consumer of the opposite parties as defined in the Consumer Protection act as amended up to date. The truck of the complainant met with an accident on 8.11.2018 in the area of G.T. Road Subanpur District Jalandhar and the truck was totally damaged due to accident and the report was also lodged at Police Station Subanpur. The said truck was lying with the opposite party No. 4 at Pathankot and the said truck is not repairable. The complainant applied to the opposite party Nos. 1 and 2 for claim of above said total damage truck. The opposite parties No. 1 and 2 have refused and declined the 100% damage claim of the complainant and also compelled to repair the same. Infact the said truck is not repairable and surveyors of opposite parties No.1 and 2 did not make a fair report and they compelled to the complainant to get repaired the said truck. Infact, the accidental truck is not repairable. The truck is 100% damaged. The opposite parties intentionally and with malafide intention refused to pass the total damage claim of truck involved in road accident. The opposite parties No. 1 and 2 lastly vide letter dated 23.9.2020 refused the total loss claim and forced the complainant to get repair of the said truck. The opposite party No. 4 (wrongly written as opposite party No. 5) i.e. M/s PFK finance Ltd. also got exparte award against the complainant and opposite party No. 4 (wrongly written as opposite party No. 5) also filed a complaint under Section 138 of Negotiable Instrument Act against the complainant at Courts Jalandhar. The complainant is on bail in the said case. The opposite party took blank cheques from the complainant at the time of advance of loan and the said cheques were misused by the opposite party No. 4 (wrongly written as opposite party No. 5). The opposite party No. 4 (wrongly written as opposite party No. 5) has also filed suit application for recovery of loan and complainant also made a statement in the court that the opposite party No. 4 (wrongly written as opposite party No. 5) has liberty to get a possession of truck in question. The complainant claimed the insurance of his above said truck from the opposite parties No. 1 and 2 but the opposite parties No. 1 and 2 refused to give the 100% damage/ loss to pay the complainant. The complainant wants to resurvey the damage of the truck in his presence. The complainant has prayed the following relieves:-
- The opposite parties No. 1 and 2 are directed to bear the 100% damage/ compensation of above said truck.
- The complainant is entitled to Rs. 10,000/- as compensation of harassment.
- The complainant is also entitled for litigation expenses and counsel fee amounting to Rs. 10,000/-
Alongwith the complaint, the complainant has placed on record his affidavit Ex. C-1, copy of Bill of vehicle in question dated 27.7.20198 Ex. C-2, copy of Temporary certificate of registration Ex. C-3, copy of delivery cheque list Ex,. C-4, Copy of sale certificate Ex. C-5, copy of insurance cover note Ex. C-6, copy of insurance policy Ex. C-7, Copy of registration certificate of vehicle Ex. C-8, Copy of Rapat Roznamcha No. 20 dated 8.11.2018 Ex. C-9, Copy of letter dated 23.9.2020 by the oriental insurance company Ex. C-10, copy of quotation prepared by OP N. 3 Ex. C-11, Copy of intimation letter dated 7.4.2021 issued by OP No. 3 Ex. C-12, Copy of intimation letter dated 2.7.2021 issued by OP No. 3 Ex. C-13, Copy of order dated 6.12.2019 passed by the court of Sh. S.K. Garg District Judge, Jalandhar Ex. C-14, copy of statement of complainant in case namely “PKF Finance Ltd. Vs Jagjit Singh Ex. C-15, Copy of Aadhar Card of complainant Ex. C-16.
2 Notice of this complaint was sent to the opposite parties and opposite party No. 1, 2 appeared through counsel and filed written version by interalia pleadings that the present complaint is not legally maintainable and infact the complainant has suppressed the material facts from this commission at the time of filing the present complaint and as such the relief sought is not available to the complainant as envisaged under law. The real states of affairs are that on receipt of the information regarding the damage caused to the vehicle in question, the opposite parties No. 1 and 2 immediately appointed Er. Jai Behl Surveyor for conducting the spot survey and it was submitted by him that the damages can only be noticed when the vehicle will be dismantled in workshop for necessary repairs. Even in respect thereof various letters were written by the opposite parties No. 1 and 2 to the complainant whereby the complainant was requested to furnish / submit the estimate of repairs for deputation of final surveyor but insptie of various requests and reminders more particularly vide letter dated 12.11.2018, letter dated 20.12.2018, letter dated 11.3.2019, letter dated 4.4.2019, letter dated 15.4.2019, letter dated 4.7.2019, the complainant has failed to furnish/ submit the estimate of repairs enabling the opposite parties No. 1 and 2 to depute the final surveyor for the assessment of the loss as the spot survey was already got conducted by the opposite parties No. 1 and 2 and the complainant was further requested not to dismantle the vehicle until final surveyor is deputed for final survey. Ultimately, the complainant submitted estimate of repairs on 27.9.2019 after a gap of 9½ months from the accident and then the opposite parties No. 1 and 2 deputed M/s Suresh Vashist & Co. Surveyors for the final survey and assessment of the loss and accordingly surveyor inspected the vehicle before dismantling lying at Pathankot and the surveyor further requested the complainant to get the vehicle repaired as the vehicle is very much repairable but it was not got repaired by the complainant and ultimately the surveyor submitted his independent survey report dated 28.7.2020 of net assessed amount Rs. 12,17,000/- subject to actual repair and replacement for the parts which are damaged due to accident and not due to wear and tear because of remaining as it is for so long time, the vehicle remain outside on road. Even in respect thereof again number of letters more particularly letter dated 23.9.2020, letter dated 21.1.2021, letter dated 27.5.2021 were written by the opposite parties No. 1 and 2 to the complainant whereby the complainant was requested to start the repair of the vehicle but of no avail but as the complainant was not interested to get his vehicle repaired even after a gap of long period of 2 years of accident and as such the opposite parties No. 1 and 2 were not having any option except to treat the claim as No claim and in respect thereof the complainant was duly apprised vide letter dated 27.5.2021 but all these facts were concealed by the complainant at the time of filing the present complaint and as such it cannot be attributed that there is any lapse, imperfection and deficiency in service on the part of the opposite parties much less it is open to the complainant to cover his own lapse and negligence under the garb of filing the present complaint and as such, the present complaint being false, frivolous, ambiguous and without any basis and the same merits dismissal with special costs as envisaged under the consumer Protection Act 2019, as amended up to date. The present complaint is not legally maintainable because as per the admitted case of the complainant in Para No. 5 of the complaint itself as well as the statement of complainant dated 6.12.2019 given by him in the Court of Hon’ble District Judge, Jalandhar that he has no objection if the possession of the impugned vehicle is given to the petitioner i.e. opposite party no. 4 in the present complaint and according to order dated 6.12.2019 was passed by the Hon’ble District Judge, Jalandhar permission was given to the opposite party No. 4 finance company to take the possession of the impugned vehicle and the copy of statement of complainant Ex. C-15 and copy of order dated 6.12.2019 Ex. C-16 filed by the complainant himself are self explanatory and it shows the malafide conduct of the complainant who has not got his vehicle repaired intentionally and deliberately and as such no liability can be fastened upon the opposite parties No. 1 and 2 and as such the complainant is not entitled to relief as claimed for and as such the present complaint merits dismissal on this simple score only. The present complaint is an abuse of process of commission as it is settled principle of law that process of consumer commission cannot become a tool in the hands of unscrupulous persons who file complaints merely with a view to extract money in the grab of compensation. It is settled as well as essential requirement of equity that one who alleges must prove the allegations and the complainant cannot make this commission reach the conclusion as he desires on the basis of distorted facts. The complainant is estopped by his own act and conduct from filing the present complaint as the complainant has not come to this commission with clean hands and has concealed material facts from this commission and as such the present complaint merits dismissal on this score only. The present complaint is an abuse of process of Court and is simply filed just with a view to get wrongful gain and to cause wrongful loss to the opposite parties No. 1 and 2 and as such the present complaint merits dismissal on this simple score only. The complainant is not consumer much less he is covered under the definition of consumer to maintain the present complaint and as such, the present complaint is liable to be dismissed on this ground alone. No consumer dispute survives between the parties much less any cause of action has arisen in favour of the complainant and as such the present complaint being without any cause of action merits dismissal with special costs as envisaged under the Consumer Protection Act 2019, as amended up to date. The opposite parties No. 1 and 2 have denied the other contents of the complaint and prayed for dismissal of the same. Alongwith the written version, the opposite party No. 1 and 2 have placed on record affidavit of Dinesh Grover Divisional Manager OIC Ex. OP1,2/1 alongwith documents Ex. OP 1, 2/2 to Ex. OP 1, 2/14.
3 Notice of this complaint was sent to the opposite parties No. 3, 4 but no one appeared on behalf of opposite parties No. 3 and 4 and consequently, the opposite parties No. 3 and 4 were proceeded against exparte.
4 We have heard the Ld.counsel for the complainant and opposite parties No. 1 and 2 and have carefully gone through the record placed on the file.
5 Ld. counsel for the complainant contended that the complainant purchased one truck marka Bharat Benz bearing registration No. PB02-DQ-0325. The complainant purchased chassis from the opposite party No. 3 for a sum of Rs. 18,46,0000/- and also spent Rs. 2,20,000/- for manufacturing the body upon the chassis and also paid taxes Rs. 58,000/- on 27.7.2018 and insured the same from the Oriental Insurance company Ltd. opposite parties No. 1 and 2 through cover note No. CHD-d541190. He further contended that the said truck was also financed for sum of Rs.17,50,000/- by the opposite party No. 4. He further contended that the truck of the complainant met with an accident on 8.11.2018 in the area of G.T. Road Subanpur District Jalandhar and the truck was totally damaged due to accident and the report was also lodged at Police Station Subanpur. The said truck was lying with the opposite party No. 4 at Pathankot and the said truck is not repairable. He further contended that the complainant applied to the opposite party Nos. 1 and 2 for claim of above said total damage truck. The opposite parties No. 1 and 2 have refused and declined the 100% damage claim of the complainant and also compelled to repair the same. The said truck is not repairable and surveyors of opposite parties No.1 and 2 did not make a fair report and they compelled to the complainant to get repaired the said truck. The accidental truck is not repairable. The truck is 100% damaged. He further contended that the opposite parties intentionally and with malafide intention refused to pass the total damage claim of truck involved in road accident. The opposite parties No. 1 and 2 lastly vide letter dated 23.9.2020 refused the total loss claim and forced the complainant to get repair of the said truck. The opposite party No. 4 i.e. M/s PFK finance Ltd. also got exparte award against the complainant and opposite party No. 4 also filed a complaint under Section 138 of Negotiable Instrument Act against the complainant at Courts Jalandhar. The complainant is on bail in the said case. He further contended that the opposite party took blank cheques from the complainant at the time of advance of loan and the said cheques were misused by the opposite party No. 4. The opposite party No. 4 has also filed suit application for recovery of loan and complainant also made a statement in the court that the opposite party No. 4 has liberty to get a possession of truck in question. The complainant claimed the insurance of his above said truck from the opposite parties No. 1 and 2 but the opposite parties No. 1 and 2 refused to give the 100% damage/ loss to pay the complainant. The complainant wants to resurvey the damage of the truck in his presence and prayed that the present complaint may be allowed.
6 On the other hands. Ld. counsel for the opposite parties No. 1 and 2 contended that the present complaint is not legally maintainable and infact the complainant has suppressed the material facts from this commission at the time of filing the present complaint and as such the relief sought is not available to the complainant as envisaged under law. He further contended that on receipt of the information regarding the damage caused to the vehicle in question, the opposite parties No. 1 and 2 immediately appointed Er. Jai Behl Surveyor for conducting the spot survey and it was submitted by him that the damages can only be noticed when the vehicle will be dismantled in workshop for necessary repairs. He further contended that even in respect thereof various letters were written by the opposite parties No. 1 and 2 to the complainant whereby the complainant was requested to furnish / submit the estimate of repairs for deputation of final surveyor but insptie of various requests and reminders more particularly vide letter dated 12.11.2018, letter dated 20.12.2018, letter dated 11.3.2019, letter dated 4.4.2019, letter dated 15.4.2019, letter dated 4.7.2019. He further contended that the complainant has failed to furnish/ submit the estimate of repairs enabling the opposite parties No. 1 and 2 to depute the final surveyor for the assessment of the loss as the spot survey was already got conducted by the opposite parties No. 1 and 2 and the complainant was further requested not to dismantle the vehicle until final surveyor is deputed for final survey. He further contended that ultimately, the complainant submitted estimate of repairs on 27.9.2019 after a gap of 9½ months from the accident and then the opposite parties No. 1 and 2 deputed M/s Suresh Vashist & Co. Surveyors for the final survey and assessment of the loss and accordingly surveyor inspected the vehicle before dismantling lying at Pathankot and the surveyor further requested the complainant to get the vehicle repaired as the vehicle is very much repairable but it was not got repaired by the complainant and ultimately the surveyor submitted his independent survey report dated 28.7.2020 of net assessed amount Rs. 12,17,000/- subject to actual repair and replacement for the parts which are damaged due to accident and not due to wear and tear because of remaining as it is for so long time, the vehicle remain outside on road. He further contended that even in respect thereof again number of letters more particularly letter dated 23.9.2020, letter dated 21.1.2021, letter dated 27.5.2021 were written by the opposite parties No. 1 and 2 to the complainant whereby the complainant was requested to start the repair of the vehicle but of no avail but as the complainant was not interested to get his vehicle repaired even after a gap of long period of 2 years of accident and as such the opposite parties No. 1 and 2 were not having any option except to treat the claim as No claim and in respect thereof the complainant was duly apprised vide letter dated 27.5.2021 but all these facts were concealed by the complainant at the time of filing the present complaint. He further contended that it cannot be attributed that there is any lapse, imperfection and deficiency in service on the part of the opposite parties much less it is open to the complainant to cover his own lapse and negligence under the garb of filing the present complaint and as such, the present complaint being false, frivolous, ambiguous and without any basis and the same merits dismissal with special costs as envisaged under the consumer Protection Act 2019, as amended up to date. He further contended that the present complaint is not legally maintainable because as per the admitted case of the complainant in Para No. 5 of the complaint itself as well as the statement of complainant dated 6.12.2019 given by him in the Court of Hon’ble District Judge, Jalandhar that he has no objection if the possession of the impugned vehicle is given to the petitioner i.e. opposite party No. 4 in the present complaint and according to order dated 6.12.2019 was passed by the Hon’ble District Judge, Jalandhar permission was given to the opposite party No. 4 finance company to take the possession of the impugned vehicle and the copy of statement of complainant Ex. C-15 and copy of order dated 6.12.2019 Ex. C-16 filed by the complainant himself are self explanatory and it shows the malafide conduct of the complainant who has not got his vehicle repaired intentionally and deliberately. He further contended that no liability can be fastened upon the opposite parties No. 1 and 2 and as such the complainant is not entitled to relief as claimed for and as such the present complaint merits dismissal on this simple score only. He further contended that the present complaint is an abuse of process of commission as it is settled principle of law that process of consumer commission cannot become a tool in the hands of unscrupulous persons who file complaints merely with a view to extract money in the grab of compensation and prayed that the present complaint may be dismissed.
7 We have gone through the rival contentions of Ld. counsel for complainant and opposite parties NO. 1 and 2.
8 In the present case it is not disputed that the vehicle in question was insured with the opposite party Nos. 1 and 2 and as per policy Ex. C-6 insured declared value is Rs. 19,25,000/-. In the present case, it is also not disputed that the vehicle in question met with an accident. According to the complainant the vehicle in question was fully damaged and was not repairable but on the other hands, according to the opposite parties No. 1 and 2 vehicle in question was repairable. The opposite parties No. 1 and 2 have denied the claim of the complainant on the basis of reports of surveyors Ex. OP1, 2/2 and Ex. OP 1, 2/3. The whole of the case of the opposite party Nos. 1 and 2 revolved around the report of surveyor. But to prove the report of the surveyor no affidavit of the surveyor has been placed on record . In the absence of which no evidentiary value can be made on the report submitted by the surveyor. Reliance in this connection has been placed upon Manikant Vs. New India Assurance Co.Ltd. 1(2012) CPJ 88 (NC) of the Hon’ble National Commission wherein it has been held that the surveyor did not appear in court and subject himself to cross examination nor was any affidavit filed by him to prove his report . Producing a document in court does not by itself constitute proving the document. It has to be backed by credible evidence. In the instant case, no evidence was led to prove the surveyor’s report in the absence of which the surveyor’s report has little evidentiary value. Moreover it is usual with the insurance company to show all types of green pastures 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 seams 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.5,000/- for luxury litigation, being rich.
9 Moreover, policy of the said vehicle is Zero Dep Cap insurance policy and insured value of the said vehicle is Rs. 19,25,000/- , however, the surveyor has assessed the loss to the tune of Rs. 12,17,000/-. The opposite parties have placed on record quotation as Ex. OPs1, 2/14 whereby the Bharat Benz assessed the repair cost to the tune of Rs. 27,96,178/-. It is pertinent to mention here that the quotation submitted by the authorised service centre of Bharat Benz clearly indicates that the said vehicle suffered total loss. Hence the complainant is entitled to the full IDV as per insurance cover note i.e. Rs. 19,25,000/-. The vehicle in question is already in the possession of opposite party No. 4. The said vehicle is financed by PKF finance Limited as such, the amount of Rs. 19,25,000/- be directly given to the opposite party No. 4 by opposite parties No. 1 and 2.
10 In view of the above discussion, the present complaint is allowed and the opposite parties No. 1 and 2 are directed to make the payment of Rs. 19,25,000/- to the opposite party No. 4 within one month from the date of receipt of copy of this order, subject to furnishing the letter of subrogation, power of attorney for transfer of Registration certificate of the vehicle in question in favour of opposite parties No. 1, 2. On receiving the said amount, the opposite party No. 4 will adjust the said amount in the loan account of complainant and opposite party No. 4 will issue the receipt regarding the same to the complainant. The complainant has also been harassed by the opposite parties No.1, 2 for a long time, as such, the complainant is also entitled to Rs. 25,000/- as compensation on account of harassment and mental agony and Rs 11,000- as litigation expenses. Opposite Parties No. 1 and 2 are directed to comply with the order within one month from the date of receipt of copy of the order, failing which the complainant is entitled to interest @ 9% per annum, on the awarded amount, from the date of accident till its realisation. Case could not be disposed of within the stipulated period due to heavy pendency of the cases in this Commission and due to COVID-19. Copies of the order be furnished to the parties as per rules. File is ordered to be consigned to the record room.
Announced in Open Commission
25.04.2024
