Haryana

Yamunanagar

CC/355/2011

Rameshwar Dass S/o Birbhan - Complainant(s)

Versus

OIC Ltd. - Opp.Party(s)

V.K.Rajouria

22 Apr 2016

ORDER

BEFORE THE PRESIDENT DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, YAMUNA NAGAR AT JAGADHRI.

                                                                                                Complaint No. 355  of 2011.

                                                                                                Date of institution: 19.04.2011

                                                                                                Date of decision: 22.04.2016.

Rameshwar Dass aged about 50 years son of Shri Birbhan, Resident of V.P.O. Jaidhar Tehsil Chhachhrauli, District Yamuna Nagar.

                                                                                                                                                                              …Complainant.

                                    Versus

Oriental Insurance Company Limited, Opposite Madhu Hotel, Jagadhri Road, Yamuna Nagar through its Branch Manager.                                                                                                                                                                                                                                                                                                                                                 …Respondent.

BEFORE:         SH. ASHOK KUMAR GARG, PRESIDENT.

                        SH. S.C.SHARMA, MEMBER.

 

Present: Sh.  V.K.Rajoria, Advocate, counsel for complainant.

              Sh. Sushil Garg, Advocate, counsel for respondent

 

ORDER

 

1.                     Complainant Rameshwar Dass has filed the present complaint under section 12 of the Consumer Protection 1986 praying therein that the respondent (hereinafter referred as OP) be directed to make the payment of Rs. 75250/- alongwith interest on account of damages to the tractor alongwith compensation and litigation expenses.

2.                     Brief facts of the present complaint, as alleged by the complainant, are that the complainant is a registered owner of tractor bearing registration No. HR-02T-6759(copy of R.C Annexure C-1) which was insured with the OP insurance company vide insurance policy bearing No. 261700/47/2011/17 valid from 30.04.2010 to 29.04.2011 for a sum insured of Rs. 3,00,000/-(copy of Insurance cover note Annexure C-4). During the currency of insurance policy, on 11.06.2010 at about 8.00 P.M., when the driver of complainant came near Khizrabad Colony, a tralla/ big truck having 10 tyres came from the side of bhoolkalan and struck against the tractor of complainant and ran away. Due to night, the driver of the complainant could not note down the number of said truck/tralla and the tractor of the complainant fallen in the khadda. An intimation was given to the police of P.S. Khizrabad who had assured that they shall lodged a report of the said occurrence. On 12.6.2010 the complainant intimated the OP Insurance Company and they instructed the complainant to bring the said tractor in sonalika Agency and their surveyor shall survey the said tractor and assessed the loss caused to the said tractor. After inspection, the surveyor and officials of the OP instructed the complainant to get repaired the damaged tractor and they will themselves obtain the bill of repair and shall pay all the amount which shall be incurred on the repairing of the damaged tractor. In the mean time, the complainant completed the requisite formalities with the OP Insurance Company. Accordingly the complainant paid the amount of Rs. 75250/- vide invoice No.20 dated 19.06.2010 issued by Hardik Audomobiles. Thereafter, the officials of the OP Insurance Company came at the residence of the complainant and obtained the signature of the complainant on various documents on the pretext that very soon his claim shall be passed. To the utter surprise of the complainant, he received a notice dated 17.8.2010 from OP Insurance company stating that the tractor was not damaged in any accident and no claim can be passed. The notice dated 17.8.2010 is illegal, null and void and has been issued by the OP Insurance Company with ulterior motive just to grab the claim of the complainant. Hence, this complaint.  

3.                     Upon notice, OP Insurance Company appeared and filed its written statement by taking some preliminary objections such as no cause of action has arisen to file the present complaint, complaint is not maintainable, no negligence or deficiency in service on the part of OPs, The driver of tractor in question was not holding an effective and valid driving license and thus he violated the terms and conditions of the policy and as such the OP Insurance Company has no liability and as such the present complaint is liable to be dismissed. This Forum has no jurisdiction to entertain and decide the present complaint. It has been mentioned that there was no accidental impact on diff housing and Trumpet Housing. Moreover, left side rear fender was found old damage and there was no accidental impact on the right rear wheel rim and as such the OP Insurance Company has rightly and legally repudiated the claim of complainant. On merit, it has been specifically denied that the tractor in question, damaged due to fallen in the nearby khadda as alleged due to which various parts of the tractor have been damaged. The complainant has concealed the true facts and does not approach the Hon’ble Forum with clean hands and reiterated the stand taken in the preliminary objections. Lastly prayed for dismissal of complaint.

4.                     To prove his case, complainant tendered into evidence his affidavit as Annexure CX and documents such as Photo copy of Registration Certificate as Annexure C-1, Photo copy of driving license of Ishrar as Annexure C-2,  Photo copy of cash/credit memo as Annexure C-3, Photo copy of insurance policy as Annexure C-4, Photo copy of claim repudiation letter dated 17.08.2010 as Annexure C-5, Photo copy of postal receipt and acknowledgment as Annexure C-6 and closed the evidence on behalf of complainant.

5.                     On the other hand, counsel for the OP Insurance Company tendered into evidence affidavit of M.L.Garg, Surveyor as Annexure RW1/A and documents such as Photo copy of claim form as Annexure R-1, Photo copy of intimation letter dated 14.6.2010 as Annexure R-2, Photo copy of estimate as Annexure R-3, Photo copy of RC as Annexure R-4, Photo copy of driving license of Ishrar as Annexure R-5, Photo copy of insurance policy as Annexure R-6, Photo copy of surveyor report dated 20.07.2010 as Annexure R-7, Photo copy of claim repudiation letter dated 17.08.2010 as Annexure R-8, Photo copy of  RC as Annexure R-9, Photo copy of driving license as Annexure R-10, Photo copy of photographs of tractor as Annexure R-11 to R-36 and closed the evidence on behalf of OP Insurance Company.   

6.                     We have heard the learned counsel for both the parties and have gone through the pleadings as well as documents placed on file very minutely and carefully. The counsel for the complainant reiterated the averments mentioned in the complaint and prayed for its acceptance whereas the counsel for OP reiterated the averments made in the reply and prayed for dismissal of complaint.

7.                     It is not disputed that the complainant is registered owner of tractor bearing registration no. bearing registration No. HR-02T-6759(copy of R.C Annexure C-1/R-4) which was insured with the OP insurance company vide insurance policy bearing No. 261700/47/2011/17 valid from 30.04.2010 to 29.04.2011 for a sum insured of Rs. 3,00,000/-(copy of Insurance Policy Annexure C-4/R-6). It is also not disputed that on intimation a surveyor was deputed by the OPs Insurance Company who submitted his report dated 20.07.2010 (Annexure R-7).  

8.                     The only plea of OP Insurance Company is that the complainant has misrepresented the facts in respect of alleged accident and damages observed in the tractor were not accidental in nature and quite not in accordance with the history of said accident. Learned counsel for the OP argued that the investigator has categorically pointed out that the cause of accident narrated in claim form does not match with the nature and extent of damage present. There was no accidental impact on the differential housing & Trumpt Housing. Moreover, left side rear fender was found old damaged and there was no accidental impact on the right side rear wheel rim. This clearly shows that the damages present on the abovesaid tractor are not accidental in nature.  Learned counsel for the OP Insurance Company further argued that the damages were not fresh in nature and there is no nexus between the alleged accident and resultant loss. Lastly, argued that the alleged loss of the tractor in question was not covered under the policy hence the claim of the complainant has been rightly repudiated vide letter dated 17.08.2010 (Annexure R-8).

9.                     On the other hand, learned counsel for the complainant argued at length that genuine claim of the complainant has been wrongly repudiated by Insurance Company and tried his best to mould the fact that due to accident many parts of the tractor were damaged but the contention of the complainant counsel is not tenable because normally, documents do not speak lie but men may do so, as complainant has miserably failed to prove any accident by way of cogent documentary evidence i.e. DDR or FIR or even any MLR in respect of injuries (if any) sustained in accident on 11.6.2010. Even, the complainant also failed to disclose the registration number of the truck/tralla which hit the tractor of the complainant and failed to file any spot photographs of the alleged accident. Even, the complainant neither filed affidavit of his driver Ishrar who was driving the tractor in question at the time of alleged accident nor has filed any photographs of the alleged accident. The complainant has also failed to file any evidence by way of affidavit with whose help he brought the tractor out of alleged Khadda and then to workshop for repair. We have minutely perused the bills of repairs (Annexure C-3) and surveyor report (Annexure R-7), from which it is evident that there was no accidental impact on the differential housing and trumpt housing. Moreover left side rear fender was found old damage and there was no accidental impact on the right side rear wheel rim, which clearly shows that the damages present on the abovesaid tractor are not accidental in nature. Complainant failed to file any mechanic/expert report to controvert the version of the Insurance Company, hence, the plea of the OP Insurance Company and opinion of the surveyor seems reasonable. Onus to prove the accidental damages was upon the complainant but he has totally failed to do so. In the present case alleged damages has been claimed in respect of tractor just meant for agriculture purpose and carrying only the produce of the agriculture but in the area of Yamuna Nagar/ Jagadhri most of the tractor owners are using their tractors for carrying overloaded sugarcane as well as popular.   

10                    After going through the above noted circumstances, as the complainant has totally failed to prove that tractor in question met with accident and the damages were due to accident external means and further failed to file any mechanic/expert report that the damages were not due to wears, tears and overloading. Thus, there is no deficiency in service on the part of OP Insurance Company and the claim of the complainant has rightly been repudiated by the OP Insurance Company.

11                    Resultantly, we find no merit in the present complaint and the same is hereby dismissed with no order as to costs. Copies of this order be sent to the parties concerned free of costs as per rules. File be consigned to the record room after due compliance.

Announced in open court. 22.04.2016.

                       

                                                                                    (ASHOK KUMAR GARG)

                                                                                    PRESIDENT,

 

                                                                                     

                                                                                    (S.C.SHARMA )

                                                                                     MEMBER.