Haryana

Yamunanagar

CC/70/2014

Vijay Kumar S/o Om Parkash - Complainant(s)

Versus

Oriental Insurance Company Ltd - Opp.Party(s)

Anurag Sharma

18 Apr 2017

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, YAMUNA NAGAR

Complaint No. 70 of 2014.

Date of institution: 30.01.2014

Date of decision: 18.04.2017

Vijay Kumar aged about 45 years son of Shri Om Parkash, resident of H. no. 62, Luxmi Garden, Yamuna Nagar, District Yamuna Nagar.                   

        …Complainant.

                                Versus

The Oriental Insurance Company Limited, Opp. Hindu Girls College, 1^st Floor, Court Road, Jagadhri, District Yamuna Nagar through its Branch Manager.

                                                                                                   …Respondent.

 

BEFORE:        SH. ASHOK KUMAR GARG…………….. PRESIDENT.

                         SH. S.C.SHARMA………………………….MEMBER.

                         SMT. VEENA RANI SHEOKAND…………MEMBER

 

Present:          Sh. Anurag Sharma, Advocate for complainant.

                        Sh. Naveen Kaushal, Advocate for respondent.

                      

ORDER  (ASHOK KUMAR GARG, PRESIDENT)

 

1                      The present complaint has been filed under section 12 of the Consumer Protection Act. 1986.

2.                     Brief facts of the present complaint, as alleged by the complainant, are that the truck of the complainant make TATA LPT 2515 Model 2007 bearing registration No. HR-50E-0196 which was insured with the respondent (hereinafter respondent will be referred as OP Insurance Company) vide policy bearing No. 261701/31/2013/9128 valid from 29.12.2012 to 28.12.2013, met with an accident on  03.04.2013 in the area of P.S. Lambua District Sultanpur (U.P.) and badly damaged. The driver of the truck in question namely Ashok Kumar had also expired at the spot. After that complainant immediately informed the OP Insurance Company telephonically regarding the said accident. A surveyor and loss assessor deputed by the OP Insurance Company who visited the place of accident and told the complainant to get the truck repaired. Accordingly, the complainant got repaired his truck from M/s Bharat Motor Works, Aggarsain Chowk, Jagadhri  and spent Rs. 3,78,770/-. Thereafter, the complainant submitted all the documents in the office of OP Insurance Company and requested to release the claim amount but the official of the OP Insurance Company put off the matter on one pretext or the other. Ultimately, the OPs Insurance Company repudiated the claim of the complainant on the false and flimsy ground. Lastly, prayed for directing the Op Insurance Company to release the claim amount of Rs. 3,78,770/- and also to pay compensation as well as litigation expenses.

3.                     Upon notice, OP Insurance Company appeared and filed its written statement by taking some preliminary objections i.e. maintainability, locus standi, not come to this court with clean hands, estopped by his own act and conduct and on merit it has been submitted that after receiving the claim papers pertaining to the damage to the insured truck bearing No. HR-50E-0196, the OP Insurance Company appointed an investigator Sh. M.L.Vaish, and as per the report of the investigator, deceased Ashok Kumar son of Sh. Girdhari Parshad (driving the truck at that time) was the owner in possession of the truck in question, as no such insurable interest was exist in favour of complainant in any manner. It has been further submitted that although the policy in question pertaining to the aforesaid truck exist in the name of Vijay Kumar but no insurable interest exist in his favour as Vijay Kumar already sold the truck to deceased Ashok Kumar prior to the complainant, as per oral version of Vijay Kumar and the report of investigator. It has been further mentioned that a Surveyor and Loss Assessor Sh. Ashok Kumar Singh was deputed to assess the loss on account of damages of the truck in question who submitted his report dated 05.08.2015 assessing the loss to the tune of Rs. 1,22,589/-. However, as the complainant had already sold the truck in question to the deceased Ashok Kumar and Vijay Kumar complainant was not having any insurable interest at the time of alleged accident. So, the claim of the complainant was rightly repudiated by the OP Insurance Company. Lastly, prayed for dismissal of complaint.

4.                     In support of his case, complainant tendered into evidence his short affidavit as Annexure CW/A and documents such as Photo copy of payment book as Annexure C-1, Photo copy of Permit as Annexure C-2, Photo copy of Insurance Cover note as Annexure C-3, Photo copy of estimate as Annexure C-4, Photo copy of surveyor report as Annexure C-5, Photo copy of affidavit as Annexure C-6, Photo copy of RC as Annexure C-7, Photo copy of fitness certificate as Annexure C-8, Photo copy of pollution certificate as Annexure C-9 and closed the evidence on behalf of complainant.

5.                     On the other hand, counsel for the OPs tendered into evidence affidavit of Sh. Ashish Bhatnagar Branch Manager OIC as Annexure RW/A and documents such as attested copy of photo copy of Insurance Policy as Annexure R-1, Photo copy of investigator report dated 23.09.2013 as Annexure R-2, Photo copy of pre-insurance inspection report as Annexure R-3, Photo copy of Surveyor and Loss Assessor Report dated 05.08.2013 as Annexure R-4, Photo copy of claim repudiation letter dated 24.12.2013 as Annexure R-5 and closed the evidence on behalf of OP Insurance Company.

6.                     We have heard the learned counsel of both the parties and have gone through the pleadings as well as documents placed on file very minutely and carefully.

7.                     The OP Insurance Company took the plea that the claim of the complainant has been repudiated by the OP Insurance Company vide its letter dated 24.08.2013 Annexure R-5 on the ground that “ on going through the claim papers, investigator report of Sh. M.L.Vaish, in connection with WC case it is found that the vehicle has already stands sold to Sh. Ashok Kumar and there is no insurable interest at the time of accident”, but this plea of the OP Insurance Company is not tenable as no cogent documentary evidence has been placed on file to prove that truck in question was sold to Ashok Kumar as alleged in the repudiation letter by the OP Insurance Company. From the perusal of photo copy of registration certificate Annexure C-7, it is duly evident that truck bearing registration No. HR-50E-0196 is registered in the name of complainant i.e. Vijay Kumar son of Om Parkash. Even from the other documents i.e. paper book Annexure C-1, photo copy of National Permit Annexure C-2, Photo copy of fitness certificate Annexure C-8, Photo copy of pollution certificate Annexure C-9, it is duly evident that truck in question was registered with the Registering Authority in the name of complainant Vijay Kumar. Even from the perusal of photo copy of cover note issued by the OP Insurance Company for the next period i.e. 29.12.2013 to 28.12.2014 in respect of the truck in question, it is also duly evident that Vijay Kumar complainant was the registered owner of the truck in question as this cover note has been issued in the name of complainant not in the name of alleged Ashok Kumar. Even from the perusal of affidavit dated 31.12.2013 Annexure C-6 it is duly evident that Ashok Kumar was engaged as driver on the truck in question by the complainant Vijay Kumar. We have gone through the photo copy of judgment passed by Sh. Naresh Kumar, HLS, Commissioner under Work Compensation Act, Yamuna Nagar in case No. 14/EC/13 decided on 06.10.2016 titled as Smt. Kalyani Devi Vs. Vijay Kumar and others placed on file during the course of arguments, in this judgment also the Hon’be Court of Commissioner under Employees Compensation Act circle No.1, Yamuna Nagar has held that Vijay Kumar complainant was the registered owner as well as insured person of the truck in question.

8.                     Hence, after going through the above noted facts, it is clear that claim of the complainant has been wrongly and illegally repudiated by the OPs Insurance Company on the flimsy ground without on the basis of any cogent documentary evidence.

9                      Now, the next question remains, as to what extent the complainant is entitled to get damages. Learned counsel for the complainant argued that complainant has spent Rs. 3,38,770/- on account of damage to the vehicle which is not tenable as no cogent evidence by way of expert report has been filed by the complainant to prove that he is entitled to get the same whereas on the other hand, loss has been assessed by the Surveyor and Loss Assessor to the tune of Rs. 1,22,589/- on net liability vide his report (Annexure C-5/ R-4) and it is settled proposition of the law held by the Hon’ble National Commission as well as State Commission in various cases that surveyor is the best technical person to assess the loss and credence should be given to the surveyor report in the absence of any discrepancy or ambiguity in the surveyor report.

10.                   Resultantly, we partly allow the complaint of complainant and direct the OP Insurance Company to pay a sum of Rs. 1,22,589/- as assessed by the Surveyor and Loss Assessor to the complainant alongwith interest at the rate of 7% per annum from the date of filing of complaint till its realization. Parties are left to bear their own costs. Order be complied within a period of 30 days after preparation of copy of this order failing which complainant shall be entitled to invoke the jurisdiction of this Forum as per law. 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. 18.04.2017.

 

                                                                              (ASHOK KUMAR GARG)

                                                                               PRESIDENT

                                                                               DCDRF Yamuna Nagar

 

 

(VEENA RANI SHEOKAND)                       (S.C.SHARMA)

MEMBER                                                         MEMBER