Order by:

Sh.Amrinder Singh Sidhu, President

1.       The  complainant  has filed the instant complaint under section 35 of Consumer Protection Act, 2019 on the allegations that the complainant firm is owner of vehicle TATA Motors make 1412 LPT  manufacturing date 9/20 bearing RC No. PB-04AD-0918, Engine No. 3.3LNGD06JZX505158, Chassis No. MAT 767249L7J06411, valid upto 13.10.2022 . Further alleges that the vehicle aforesaid of the Complainant was insured with the Opposite Party vide cashless policy No.242596/31/2021/TMC/10262 valid w.e.f. 5^th October 2020 till 4^th October, 2021 having  IDV value of Rs.16,62,500/- and for this insurance, the Complainant paid the premium of Rs.19,575/- with the Opposite Party.  On 11.02.2021 at 5 AM (Morning), the driver of the Complainant firm namely Sandeep  Kumar son of Mukand Singh, when was in his way from Mandi Gobindgarh to Doraha, when he reached near Dugri Pul Ludhiana, a very high speed truck coming from Dugri side, struck with the vehicle of the Complainant due to fog. Both the vehicles were badly damaged. In this regard, a FIR No. 24 dated 11.02.2021 under section 279/337/338/427 IPC was lodged with P.S.Doraha. Not only this, the Complainant also immediately informed regarding the accident of the vehicle to the Opposite Party. That the Opposite Party appointed the spot surveyor who after preliminary survey advised the Complainant to send the vehicle insured for its repair and on the direction of the surveyor of the Opposite Party, the Complainant towed the said damaged vehicle from Doraha and got it parked in Krishna Motors Moga for its repair by making the tow charges, however the policy in question is cashless policy. That Krishna Motors, Moga who is the authorized service centre of the company, has assessed the loss of Rs.5,86,207/- and in this regard also issued  invoice after repairing the vehicle in question and thereafter, the  claim was lodged with the Opposite Party and also completed all the formalities and submitted all the required documents. Since the policy in question is cashless, so, the Complainant time and again requested the Opposite Party to make the repair charges of the vehicle to the service centre so that they could deliver the vehicle to the Complainant. Initially, the officials of the Opposite Party lingered on the matter on one pretext or the other, and at last refused to make the repair charges of the vehicle under the policy and the vehicle in question is parked with Krishna Motors since  the date of accident till date i.e. since 11.02.2021. Finally, the Opposite Party has refused to admit the rightful claim of the Complainant regarding making the claim amount of the insured vehicle on the false and frivolous grounds that on the date of  accident of the vehicle, the driving license of the driver of the vehicle namely Sandeep Kumar was expired as it was valid only up 26.12.2020 whereas the accident was occurred on 11.02.2021. That the vehicle in question is still parked in Krishna Motors, Moga and they have flatly refused to hand over the same because no such payment has been made by the Opposite Party to the said firm Krishana Motors, Moga till date, rather Krishna Motors, Moga is claiming the parking rent of the vehicle in question at the rate of Rs.200/- per day since the date of its parking i.e. 11.02.2021 till date which comes to Rs.36,000/-  and in this way, the Complainant is suffering in the hands of the Opposite Party from the date of accident  of the vehicle   and due to non availability of the vehicle, the Complainant  also remained under mental tension and harassment.  That thereafter, the complainant approached the Opposite Party time and again for making his genuine claim and not only this, the Complainant also served legal notice dated 02.07.2021 through its counsel through registered post, but  the Opposite Party  flatly refused to admit the rightful claim of the complainant, as such, there is deficiency in service on the part of the Opposite Party. Vide instant complaint, the complainant has sought the following reliefs.

1. a)  The Opposite Party may be directed to make the claim amount of repair charges amounting to Rs.5,86,207/-
2. The amount of Rs.3,60,000/- account of daily business loss due to non availability of the vehicle.
3. The amount of Rs.36,000/- till today @ Rs.200/- for parking of the vehicle which is being claimed by Krishana Motors, Moga.  
4. The amount of Rs.2,00,000/- be allowed to be paid by the Opposite Party on account of compensation due to mental tension and harassment caused to the complainant.
5. The cost of complaint amounting to Rs.31,000/- may please be allowed.
6. And any other relief to which this Hon’ble Consumer Commission, Moga may deem fit be granted in the interest of justice and equity.       

2.       Opposite Party appeared through counsel and contested the complaint by filing  the written version taking preliminary objections therein inter alia that the complaint of the complainant is liable to be dismissed. It is submitted that on receipt of the intimation, the Opposite Party immediately appointed Er.Jarnail Singh, Surveyor and Loss Assessor, Ludhiana for spot survey of the insured vehicle who submitted his report dated 23.02.2021 and thereafter Sh.Suresh Vashist & Company Insurance Surveyor and Loss Assessor, submitted its Motor Final Survey Report No. SVC/OICL/D-0918/ 04-21/F/004438 dated 3.5.2021. As per the Spot Survey Report as well as Final Survey report and Investigation report, it was confirmed that Sandeep Kumar son of Mukand Singh, having DL No.PB0420140011988 was driving the vehicle No.PB-04AD-0918 at the time and date of accident i.e. 11.2.2021 and said DL had expired on 26.12.2020 for the transport vehicles. Verification of the licence was obtained by Er.Gurwimnder Singh Patheja from RTA Faridkot and vide his report No.GS2379-2021-DL-11988 OIC dated 22.12.2021, it has been confirmed that said DL of Sandeep Kumar  is without any validity, as per the records of RTA, Faridkot. Hence, as per the policy terms, any person including insured  provided that a person driving holds an effective driving license at the time of accident and is not disqualified from holding or obtaining such a license. As per the terms of the policy, since driver Sandeep Kumar was having suspended driving licence and is not entitled to claim any loss. On merits, the Opposite Parties took up almost the same and similar please as taken up by them in the preliminary objections. Hence, it is prayed that the   complaint may be dismissed with costs.   

3.       In order to  prove  his  case, the complainant has tendered into evidence his affidavit Ex.C1 alongwith copies of documents  Ex.C2 to Ex.C14 and  closed the evidence on behalf of the complainant.

4.       On the other hand,  to rebut the evidence of the complainant,  Opposite Party also tendered into evidence the affidavit of Sh.Sukhwinder Singh, Divisional Manager Ex.OP1 alongwith copies of documents Ex.OPs2 to Ex.Ops11 and closed the evidence.

5.       We have heard the ld.counsel for the parties and also  gone through the documents placed  on record.

6.       During the course of arguments, ld.counsel for the Complainant as well as ld.counsel for Opposite Parties   have mainly reiterated the facts as narrated in the complaint as well as in the written statements respectively. We have perused the rival contentions of  the parties and also gone through the record on file.

7.       The main contention of the complainant is that the written version  filed on behalf of the Opposite Party  has not been filed by an authorized person. Therefore, the written version so filed is not maintainable. Perusal of the contention of the ld.counsel for the complainant   shows  that  the written version  filed on behalf of the Opposite Party  has not been filed by an authorized person. Therefore, the written version so filed is not maintainable. The Opposite Party  is limited Company and written version has been filed on the basis of special power of attorney given  to ld.counsel for the Opposite Party. In this regard,  Hon’ble Supreme Court of India in a judgment (2011)II Supreme Court Cases 524 titled as “State Bank of Travancore Vs. Kingston Computers India Pvt. Ltd.” and in para no.11 of the judgment,  has held that

“the plaint was not instituted by an authorized person. On the plea that one authority letter dated 02.01.2003 was issued by Sh. R.K.Shukla in favour of Sh. A.K.Shukla. Further plaint failed to place on record its memorandum/articles to show that Sh. R.k.Shukla has been vested with the powers or had been given a general power of attorney on behalf of the Company to sign, verify and institute the suit on behalf of the Company.”

Similar proposition came before the Hon’ble Delhi High Court in “Nibro Ltd. Vs. National Insurance Co. Ltd.”, 2 (2005) 5SCC 30 that the

“bear authority is not recognized under law and ultimately, it was held that the plaint was not instituted by an authorized person. Here also appellant has not placed on record any resolution passed by any Board of Director in favour of Mr. Soonwon Kwon and that he was further authorised to delegate his power in favour of any other person. Further there is no memorandum/articles of the Company to show that Mr. Soonwon Kwon is one of the Director of the Company. In the absence of that evidence on record we cannot say that the special power of attorney given by Director Soonwon Kwon is a competent power of attorney issued in favour of Sh. Bhupinder Singh. In the absence of any resolution of the Company or any memorandum/articles of the Company to show that Sh. Soonwon Kwon is Director and that he was further authorised to issue power of attorney in favour of Sh. Bhupinder Singh.”

In this regard, Hon’ble State Commission, Punjab Chandigarh in FAO No.1235 of 2015 decided on 25.01.2017 in case titled as L.G.Electronics India Private Limited Vs. Sita Ram Chaudhary also held that the plaint instituted by  an unauthorized person has no legal effect.

8.       For the sake of arguments, if the written reply filed by Opposite Party is presumed to be correct, the next  plea  raised by the Opposite Parties  is that  as per the terms and conditions of the policy, the  claim of the complainant is not  payable  under clause of the insurance policy.  But the Opposite Parties No-Insurance Company could not produce  any evidence to prove that terms and conditions of the policy were ever supplied to  the complainant insured, when and through which mode? It has been held by Hon’ble National Commission, New Delhi in case titled as The Oriental Insurance Company Limited Vs. Satpal Singh & Others 2014(2) CLT page 305 that the insured is not bound by the terms and conditions of the insurance policy unless it is proved that policy was supplied to the insured by the insurance company. Onus to prove that terms and conditions of the policy were supplied to the insured lies upon the insurance company. From the perusal of the entire evidence produced on record by the Opposite Party,  it is clear that Opposite Party  has failed to prove on record that they did supply the terms and conditions of the policy to  the complainant insured. As such, these terms and conditions, particularly the exclusion clause of the policy is not binding upon the insured. Reliance in this connection can be had on Modern Insulators Ltd.Vs. Oriental Insurance Company Limited (2000) 2 SCC 734, wherein it is held that “In view of the above settled position of law, we are of the opinion that the view expressed by the National Commission is not correct. As the above terms and conditions of the standard policy wherein the exclusion clause was included, were neither a part of the contract of insurance nor disclosed to the appellant, the respondent can not claim the benefit of the said exclusion clause. Therefore, the finding of the National Commission is untenable in law.”  Our own Hon’ble State Commission, Punjab, Chandigarh in First Appeal No.871 of 2014 decided on 03.02.2017 in case titled as Veena Mahajan (Widow) and others Vs. Aegon Religare Life Insurance Company Limited in para No.5 has held that

“Counsel for the appellant argued that copy of insurance policy was not supplied to the appellant and hence, the exclusion clause in the contract of the insurance policy is not binding upon him. He further argued that no proof of sending of insurance policy was ever produced by the respondent despite specific contention raised by the complainant that the insurance policy was never received by him. He argued that though there is an averment of the OP that the policy in question was delivered through Blue Dart Courier to the complainant. In order to prove their contention, no affidavit of any employee of Blue Dart was produced who would have made a statement to have the effect that the policy was delivered to the complainant nor any acknowledgement slip for having received the article by the complainant through courier company was produced by the insurance company. He argued that since no policy document was received by the insured and argued that the terms and conditions as alleged to be part of the insurance policy were not binding upon the insured. He argued that policy was issued in the name of deceased Sh.Vijinder Pal Mahajan with his wife Mrs.Veena Mahajan as beneficiary and the same was never refused by the OP and the proper premium for insurance was paid by late complainant. He argued that as per the specific allegations made in the complaint in para No.4, no rebuttal to that contention was specifically there in their written reply in para No.2 and para No.4 in the reply filed by OP in the District Forum. He argued that Hon'ble National Consumer Disputes Redressal Commission, New Delhi in case of "Ashok Sharma Vs. National Insurance Co. Limited", in Revision Petition No. 2708 of 2013 held in para No.8 to the point of non-delivery of terms and conditions of the policy. He also cited Hon'ble Supreme Court's decision given in the matter of "United India Insurance Co. Limited Vs. M.K.J.Corporation" in Appeal (civil) 6075-6076 of 1995 (1996) 6 SCC 428 wherein the Apex court held that a fundamental principle of Insurance Law makes it that utmost good faith must be observed by the contracting parties. Good faith forbids either party from concealing what he privately knows, to draw the other into a bargain, from his ignorance of that fact and his believing the contrary. Just as the insured has a duty to disclose, "similarly, it is the duty of the insurers and their agents to disclose all material facts within their knowledge, since obligation of good faith applies to them equally with the assured and further argued that since the terms and conditions were not supplied even on repeated requests the same cannot be relied upon by the opposite party in order to report to repudiate the genuine claim of the wife of the deceased policy holder.”

9.       We have heard the learned counsel for the parties at considerable length and have also examined the record of the case. The main contention of the ld.counsel for the Opposite Parties is that immediately on receipt of the claim, it was duly registered and entertained and thereafter, as per the Spot Survey Report as well as Final Survey report and Investigation report, it was confirmed that Sandeep Kumar son of Mukand Singh, having DL No.PB0420140011988 was driving the vehicle No.PB-04AD-0918 at the time and date of accident i.e. 11.2.2021 and said DL had expired on 26.12.2020 for the transport vehicles. Verification of the licence was obtained by Er.Gurwimnder Singh Patheja from RTA Faridkot and vide his report No.GS2379-2021-DL-11988 OIC dated 22.12.2021, it has been confirmed that said DL of Sandeep Kumar  is without any validity, as per the records of RTA, Faridkot. Hence, as per the policy terms, any person including insured  provided that a person driving holds an effective driving license at the time of accident and is not disqualified from holding or obtaining such a license. As per the terms of the policy, since driver Sandeep Kumar was having suspended driving licence and is not entitled to claim any loss. But on the other hand, the case of the complainant is that  the Complainant also asked the officials of the Opposite Party that due to Covid-19, the driving license of the driver could not be renewed and in this regard, Government of India, Ministry of Road Transport & Highways (MVL Section), Transport Bhawan, 1, Parliament Street, New Delhi-110001 vide is notification No.RT-11036/35/2020-MVL dated 27 December, 2020 that considering the Pandemic situation is yet to become normal and government needs to bring conducive situation for prevention of spread of Covid-19 across the country, it is advised that  the validity of all type of the validity of Fitness, Permit (all types), Driving License, Registration or any other concerned document(s) whose extension of validity could not or not likely be granted due to Covid-19 pandemic and which is expired from Ist of February, 2020 or would expire by 31^st of March, 2021 be treated as valid till 31^st of March, 2021 and the Enforcement Authorities are advised to treat such documents as valid till 31^st March, 2021, but the officials of the Opposite Party refused to admit this Government of India, Notification and refused to make the genuine and legal claim of the Complainant. Perusal of the relevant para of notification  No. RT-11036/35/2020-MVL dated 27 December, 2020, Government of India, Ministry of Road Transport & Highways (MVL Section), Transport Bhawan, 1, Parliament Street, New Delhi-110001 vide is notification Ex.C8 is  reproduced as under:-

3.         Considering the Pandemic situation is yet to become normal and government needs to bring conducive situation for prevention of spread of Covid-19 across the country, it is advised that  the validity of all type of the validity of Fitness, Permit (all types), Driving License, Registration or any other concerned document(s) whose extension of validity could not or not likely be granted due to Covid-19 pandemic and which is expired from Ist of February, 2020 or would expire by 31^st of March, 2021 be treated as valid till 31^st of March, 2021 and the Enforcement Authorities are advised to treat such documents as valid till 31^st March, 2021.”

4.         All the State and Union Territories are requested to implement this advisory in letter and spirit so that the citizens, the transporters and various other organizations which are operating under this difficult time during Covid Pandemic may not get harassed or face difficulties.” 

10.     Since the circumstances for not renewing the driving licence of Sandeep Kumar driver during the said Covid-19 period were beyond the control as narrated above, we find no irregularity for not renewing the driving licence by driver Sandeep Kumar during the Covid-19 period as said period was also exempted as per the notification of Government of India as mentioned above and this fact was duly informed to the Opposite Party by the complainant.       

11.     In such a situation the repudiation made by the Opposite Party-Insurance Company regarding remaining genuine claim of the complainant have been made without application of mind. It is usual with the insurance company to show all types of green pasters 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.

12.     In view of the above discussion, we hold that the Opposite Party-Insurance Company have  wrongly and illegally rejected the claim of the complainant.

13.     Now come to the quantum of compensation. The complainant in his complaint has claimed the amount of repair charges amounting to Rs.5,86,207/-, but the surveyor M/s.Vashist & Co. Surveyor and Loss Assessors vide his detailed report Ex.OP7, has assessed the Net Assessed Amount of Rs.5,65,000/-. It has been settled by the Hon’ble Supreme Court of India that the report of the Surveyor cannot be brushed aside without valid reasons. In this context, reference may be made to the judgment of the Hon’ble Supreme Court reported as “Sri Venkateshwara Syndicate v. Oriental Insurance Company Limited, II (2010) CPJ 1 (SC)” in which it was held by the Hon’ble Supreme Court that the report of the Surveyor is to be given due importance and weight. Hon’ble National Commission in case cited as PRADEEP KUMAR SHARMA versus NATIONAL INSURANCE COMPANY, III(2008) CPJ 158 (NC), has been held that “Surveyor Report is an important document and cannot be brushed aside without any compelling evidence to the contrary”.  Further in case New Horizon Sugar Mills Ltd. v. United India Insurance Co. Ltd. & Ors, 2003(3) CPR 136 (NC), the Hon’ble National Commission, New Delhi has observed that “report of Surveyor appointed under the provisions of Insurance Act has to be given greater importance.”  In M/s Natain Cold Storage & Allied Industries Ltd. v . Oriental Insurance Co Ltd. 2003(3) CPR 114 (NC) it has been observed “surveyor’s report in the insurance claim is an important document which cannot be brushed aside easily.” Same view has been taken by the Hon’ble National Commission in case of Bhawana Kumar versus General Manager Varun Webres Ltd. & Anr, 2008(4) CPR 82 (NC).  Not only this, recently Hon’ble National Consumer Disputes Redressal Commission, New Delhi in case National Insurance Company Limited Vs. M/s.Kiran Collector & Boutique 2019 (1) CLT 384 (NC), decided on 24^th  July, 2018 has held that “General rule is that the surveyors are appointed under the Insurance Act, 1938 and their reports are to be considered for settlement of  insurance claims- The reports can not be brushed aside without any cogent reasons.” Hon’ble National Commission in the case of Ankur Surana v. United India Insurance Co. Ltd., reported in I (2013) CPJ 440 (NC), wherein it has been observed that "it is well established by now that the report of the surveyor is an important document and the same should not be rejected by the Fora below unless cogent reasons are recorded for doing so. The State Commission has stated that it did not see any legal ground before the District Forum to reject the report of the Surveyor. The report of the surveyor should have been rebutted on behalf of the complainant/petitioner since the respondents/OPs had filed the surveyor's report as their evidence." 

14.     Keeping in view the aforesaid facts and circumstances and replying upon the judgements of Hon’ble Supreme Court of India as well as Hon’ble National Commission, New Delhi (supra) we are of the view that the instant complaint is to be decided on the basis of unrebutted surveyor report.

15.     In view of the aforesaid facts and circumstances of the case, the instant complaint is allowed partly and the Opposite Party-Insurance Company  is  directed to make the payment of Rs.5,65,000/- (Rupees five lakh sixty five thousands only) to the complainant on account of repair charges of the insured vehicle in question, on the basis of report of surveyor alongwith interest @ 8% per annum from the date of filing the complaint i.e. 06.08.2021  till its realization. The compliance of this order be made by Opposite Party within 60 days from the date of receipt of this order, failing which the complainant  shall be at liberty to get the order enforced through the indulgence of this District Commission. Copies of the order be furnished to the parties free of cost. File be consigned to record room after compliance.

Announced in Open Commission.