Punjab

Ludhiana

CC/20/9

Ankit Goswami - Complainant(s)

Versus

Oriental Ins. Co. - Opp.Party(s)

S.S Suman

11 Oct 2023

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, LUDHIANA.

                                                Complaint No: 9 dated 10.01.2020.                                                  Date of decision: 11.10.2023.

 

Ankit Goswami aged about 27 years S/o. Sh. Diwakar Goswami, resident of 165/3, Dr. Sham Singh Road, Simti Kendar, Civil Lines, Ludhiana.                                                                                                         ..…Complainant

                                                Versus

1. The Oriental Insurance Co. Ltd., A-25/27, Asaf Ali Road, New Delhi through its Managing Director.
2. The Oriental Insurance co. Ltd., Sona Complex, Miller Ganj, G.T. Road, Ludhiana through its Branch Manager/Authorized Signatory.                                                                                         …..Opposite parties 

Complaint Under Section 12 of the Consumer Protection Act, 1986.

QUORUM:

SH. SANJEEV BATRA, PRESIDENT

MS. MONIKA BHAGAT, MEMBER

 

COUNSEL FOR THE PARTIES:

For complainant             :         Ms. Sushmita, Advocate.

For OPs                          :         Sh. B.S. Rampal, Advocate.

 

ORDER

PER SANJEEV BATRA, PRESIDENT

 

1.                In nut shell, the facts of the complaint are that the complainant being registered owner of vehicle No.PB-10-GX-3967, which he purchased for earning livelihood for himself and his family. The said vehicle was hypothecated with Shriram Transport Finance Co. Ltd. The complainant insured the vehicle vide insurance policy No.233900/31/2019/1517 for the period from 23.07.2018 to 22.07.2019 by paying a comprehensive insurance premium of Rs.78,343/- with IDV of Rs.35,15,000/-. The policy in question was purchased on the assurance of the opposite parties and their officials that they have indemnify the vehicle from any losses/damages and if there is any loss/claim then they will settle within 30 days or they will made repair charges to the workshop owners etc. The complainant stated that on 09.09.2018, his said truck met with an accident at Orriya (UP) regarding which he informed the opposite parties and as per their instructions brought the vehicle to workshop M/s. Sumer Sons Autotech Pvt. Ltd., Agra for necessary repair. The opposite parties deputed surveyor for conducting spot survey and for assessing loss to the vehicle. M/s. Sumer Sons Autotech Pvt. Ltd., Agra raised estimate of Rs.7,30,000/-, out of which the complainant paid Rs.1,50,000/- from his own pocket as advance for repair charges against receipt, which was also submitted with the opposite parties. The surveyor submitted final survey report to the opposite parties regarding loss suffered to the vehicle but the opposite parties did not settle the claim nor made the payment of repair charges to the workshop till date i.e. why the vehicle has been detained by the workshop M/s. Sumer Sons Autotech Pvt. Ltd., Agra. According to the complainant, he has suffered huge financial loss to the tune of Rs.8,00,000/- as the opposite parties have illegally withheld the claim amount. Even the complainant has to pay interest on the finance amount to Shriram Transport Finance Company. The complainant sent a legal notice dated 12.12.2019 upon the opposite parties but no reply was fetched. Hence this complaint, whereby the complainant has prayed for issuing direction to the opposite parties to pay loss of Rs.7,30,000/- along with interest and also to pay Rs.1,50,000/- paid by the complainant to the workshop as well as compensation of Rs.8,00,000/- and litigation charges of Rs.22,000/-.

2.                Upon notice, the opposite parties appeared and filed joint written statement and by taking preliminary objections, assailed the complaint on the ground of maintainability of the complaint; misrepresentation by the complainant; bad for non-joinder and mis-joinder of necessary parties; lack of jurisdiction;  the complainant estopped by his act and conduct; the complaint being time barred  etc.  The opposite parties stated that the complainant in his duly signed claim form gave the declaration, which is reproduced as under:-

“That while the said vehicle was being reverse back, suddenly cow came across it. The persons available there made a noise and insured’s driver applied immediate break. As a result the vehicle lost control and overturned. Whereas, the spot surveyor mentioned in his report that “while the said vehicle was being unloaded, it got imbalanced and overturned”.

                   The opposite parties further stated that in his statements the complainant has misrepresented the facts related to the cause of accident and accordingly his right to recover for loss on account of this accident becomes void. The complainant has also filed a civil suit against M/s. Sumer Sons Autotech Pvt. Ltd., Agra pending before the court of Ms. Ankita Loomba, Civil Judge, Jr. Div., Ludhiana. Moreover, the complainant has also filed a complaint u/s.138 of N.I. Act at Lucknow.

                   On merits, the opposite parties reiterated the crux of averments made in the preliminary objections. The opposite parties averred that after receiving the claim form from the complainant, they deputed Merit Insurance Surveyors & Loss Assessors (P) Ltd. to assess the loss, who inspected the vehicle and demanded clarification and documents from the complainant through emails but the complainant failed to provide documents to the surveyor. However, during the survey, the surveyor found that the insured has misrepresented/concealed the material fats of cause of loss and he submitted his report dated 13.03.2019. As per spot survey Sh. Sushil Kumar Tiwari, Surveyor & Loss Assessor vide his report dated 10.09.2018 stated that at the time of unloading, the said vehicle was got imbalanced and overturned on the right side of body and got damaged. In his statements, the complainant had misrepresented the facts related to the actual cause of accident and accordingly, his right to recover for loss on account of this accident becomes void.

                   The opposite parties further stated that as per the RC of the vehicle the Gross Vehicle Weight is mentioned as 37000 Kg. and unladen Weight is mentioned as 13885 Kg. and in his claim form the complainant mentioned Gross Vehicle Weight as 37000 Kg, unladen Weight is mentioned as 13885 Kg. and Weight of goods loaded in the vehicle (sand) is mentioned 32500 Kg. It means the vehicle was overloaded. The vehicle was carrying 32500 Kgs of load against the permitted load of 23115 kgs. Copy of the GR/Load Challan was not provided to the Spot Surveyor as well as the Final Surveyor in spite of repeated reminders & e-mails. The complainant was having route permit only for Punjab State and the accident occurred at Agra (UP). The vehicle was plying the state of UP without any valid Route Permit. The accident took place on 09.09.2018 and the vehicle was sent to repairer on 15.10.2018 after 35 days of the loss without any valid reason. The surveyor M/s. Merit Insurance Surveyors & Loss Assessors (P) Ltd. send many mails dated17.11.2018, 21.11.2018, 12.12.2018, 27.12.2018 and final reminder dated 04.01.2019 to submit the following documents. They received back the letter dated 04.01.2019 stating reason (LEFT ADDRESS). The surveyor stated to have demanded the documents from the complainant, which are reproduced as under:-

1. Xerox of Permit Complete.
2. Xerox of fitness Certificate.
3. TP Loss detail/ Injury detail.
4. Medical docs of Injured person (MLR etc) if any.
5.  Police report if any.
6. Superdarinama if any.
7.  Written Statement of insured driver with exact cause of loss and location of loss.
8.  KYC docs of insured (two passport photo + Address Proof+ Signature Proof).

The opposite parties stated that due to non-submission of documents and non-commencement of the repair process, the surveyor submitted his independent assessment report. Vide letter dated 04.04.2019, the opposite parties informed the complainant that his claim was not admissible as per terms and conditions of the insurance policy and they further gave an opportunity to the complainant to substantiate his claim and demanded clarification and documents, which are reproduced as under:-

1. Goods Permit No.PB/10/GP/HR/2018/641 is permitted routes in Punjab States only whereas loss occurred in UP State.
2. Load body extended extra height
3. LR/GR not provided for verification
4. Loss occurred on 10.09.2018 but intimated to insurance co. on 15.10.2018
5. Vehicle not shown to surveyor in repair condition even after so many reminders of the surveyor.

According to the opposite parties, the complainant failed to prove his claim and did not give any reply. Even the complainant did not repair the vehicle despite repeated reminders of the surveyor and did not submit any bill of repair to the opposite parties. The opposite parties further stated that the complainant is not in possession of the vehicle as he got financed his vehicle from Shriram Transport Finance Co. Ltd. and he gave the vehicle for repair to M/s. Sumer Sons Autotech Pvt. Ltd., Agra but he did not get the repair work started and in the meanwhile financer of the truck took the delivery of the truck from M/s. Sumer Sons Autotech Pvt. Ltd. regarding which the complainant filed a suit for permanent injunction against Shriram Transport Finance Co. Ltd. and M/s. Sumer Sons Autotech Pvt. Ltd. which is pending in the court of Ms. Ankita Loomba, Civil Judge, Jr. Divn. Ludhiana. The complainant has also filed a complaint before Consumer Forum at Lucknow. The opposite parties have denied that there is any deficiency of service and have also prayed for dismissal of the complaint.

3.                In support of his claim, the complainant tendered his affidavit Ex. CA in which he reiterated the allegations and the claim of compensation as stated in the complaint. The complainant also tendered documents Ex. C1 is the copy of RC, Ex. C2 is the copy of insurance policy, Ex. C3 is the copy of receipt of Rs.1,50,000/- issued by Sumer Sons Autotech Pvt. Ltd., Ex. C4 is the copy of estimate dated 15.10.2018 and closed the evidence.

4.                On the other hand, the counsel for the opposite parties tendered affidavit Ex. RA of Sh. Sukhwinder Singh, Sr. Divisional Manager, Oriental Insurance Co. Ltd., Divisional Office-2, Miller Ganj, Ludhiana  and submitted documents Ex. R1 is the copy of insurance policy, Ex. R2 is the copy of motor survey report dated 13.03.2019, Ex. R3 is the copy of claim intimation dated 15.10.2018, Ex. R4 is the copy of motor claim form, Ex. R5 is the copy of RC, Ex. R6 is the copy of permit, Ex. R7 is the copy of Motor (spot) Survey report dated 10.09.2018 of Sushil Kumar Tiwari, Ex. R8 to Ex. R20 are the copies of emails, Ex. R21 is the copy of letter dated 04.04.2019, Ex. R22 is the copy of civil suit titled as Ankit Goswami Vs Shriram Transport Finance Co. Ltd. and others and closed the evidence.

5.                We have heard the arguments of the counsel for the parties and also gone through the complaint, affidavit and annexed documents and affidavit produced on record by both the parties.

6.                 A commercial vehicle i.e. truck bearing No.PB-10-GX-3967 which was comprehensively insured by the opposite parties, met with an accident on 09.09.2018 in the area of Orriya (UP) and the damaged vehicle was shifted to M/s. Sumer Sons Autotech Pvt. Ltd., Agra for necessary repairs. According to the complainant, he paid Rs.1,50,000/- as advance of the repair charges out of total estimated Rs.7,30,000/-. On receipt of the claim intimation, the opposite parties appointed M/s. Merit Insurance Surveyor and Loss Assessor who gave its report on 13.03.2019 Ex. R2, operative of the same reads as under:-

                   “Remarks:-

• During D”OCS checking we noticed that the good permit No.PB10/GP/HR/2018/641 as produced is permitted routes in Punjab State only. Whereas the loss occurred in UP. On asking insured stated that he has not another permit. The insured vehicle violated the MVA Rules.
• During our physical inspection we noticed that load body was extended up to approx. 1.5 Ft Height Extra.
• LR/GR not provided for our verification.
• Date of loss is 10.09.2018 where as claim intimated on 15.10.2018 after 35 days. On asking insured did not give satisfactory reply.
• As per above points, cashless facility not recommended to the insured/repairer.
• After initial survey we advise the insured as well as repairer to start the vehicle repairing job, subjected to provide the proper rout permit/docs/information mentioned above.
• As per spot surveyor said vehicle overturned during unloading without any external means impact probably its due to jack failure, so the hydraulic jack not considered in our report.
• Despite of our repeatedly continuous contacts with the insured as well as repairer even after our registered letter to the insured, the repairing job of the vehicle could not be started yet.
• The case was discussed so many times in LSO via phone/mails & all correspondences prints attached for your reference.
• Now as per your advices we are submitting our independent assessment report so that it could be used if needed in future regarding this case.

RECCOMENDATION

Now 05 months has been past so its presumed from above that the insured probably no more interested in the subject claim so the underwriters are kindly advised to close the file as NO CLAIM and requested to pay our professional fee.

Thus the claim settlement is recommended as per the above assessment and the same is subject to your final approval and admission of liability as per policy’s terms and conditions.”

The report of the surveyor was examined by the opposite parties and vide letter dated 04.04.2019 Ex. R21, the claim was repudiated on the following grounds:-

“On closer scrutiny of the papers submitted in connection with the above said claim, viz-a-viz the terms & conditions of the policy issued and on the recommendations of surveyor Merit Insurance Surveyors & Loss Assessors (P) Ltd., of New Delhi, we regret to inform you that the claim in question is not tenable on the following grounds:-

1. Goods Permit No.PB/10/GP/HR/2018/641 is permitted routes in Punjab States only whereas loss occurred in UP State.
2. Load body extended extra height
3. LR/GR not provided for verification
4. Loss occurred on 10.09.2018 but intimated to insurance co. on 15.10.201.
5. Vehicle not shown to surveyor in repair condition even after so many reminders of the surveyor

But, before doing so, you are being given an opportunity to substantiate your claim in view of above mentioned grounds before a final decision is taken at our end. Your representation/clarification must reach within 10 days from the date of receipt of this letter with supporting documents. Please note that in case, we do not received any response from you within 10 days from the date of receipt of this letter, the claim will be repudiated for the reasons indicated above without any further advices from us and company will not be liable for any kind of payment in connection with above claim.”

7.                During the course of settlement, various emails Ex. R8 to Ex. R20 seeking clarification and requisite documents were sent to the complainant but the complainant did not submit any documents. Even during the proceedings of this complaint, the complainant did not lead any evidence to contradict the findings of the surveyor or the basis of repudiation by leading any cogent and convincing evidence. Rather certain new facts emerged which were not referred to by the complainant. The present complaint was presented before this Commission on 10.01.2020 and prior to that the complainant had filed a civil suit No.CS/8854/2019 on 03.12.2019 which was decided on 16.08.2022. The opposite parties were also arrayed as defendants along with Shri Ram Transport Finance Co. Ltd. and M/s. Sumer Sons Autotech Pvt. Ltd. The matter was referred to the arbitrator as per terms and conditions of arbitration clause.

8.                Secondly, the complainant had dispute with regard to payment of repair charges with M/s. Sumer Sons Autotech Pvt. Ltd. and a complaint under Section 138 of the Negotiable Instruments Act was pending between the complainant and the said workshop owner. Perusal of these documents along with other documents relied upon by the opposite parties also proves that before the repair of the truck could have actually started, the financer M/s. Shri Ram Transport Finance Co. Ltd. took the delivery of the truck from M/s. Sumer Sons Autotech Pvt. Ltd. So the complainant could not establish the retention of his possession at the time of filing the present complaint. The aforesaid facts regarding pendency of the litigation and compliant under Section1 38 of the Negotiable Instruments Act  and also taking of possession of truck by its financer were material but the same were concealed from this Commission. Under these circumstances, this Commission is of the opinion that the opposite parties have rightly repudiated the claim of the complainant.

9.                As a result of above discussion, the complaint fails and the same is hereby dismissed. However, there shall be no order as to costs. Copies of order be supplied to parties free of costs as per rules. File be indexed and consigned to record room.   

10.              Due to huge pendency of cases, the complaint could not be decided within statutory period.

 

(Monika Bhagat)                                 (Sanjeev Batra)                  Member                                                    President         

 

Announced in Open Commission.

Dated:11.10.2023.

Gobind Ram.