DISTRICT CONSUMER DISPUTES REDRESSAL FORUM,<br /> BATHINDA <br /> <br /> CC. No. 162 of 03-06-2008<br /> Decided on : 12-02-2009 <br /> <br /> Harjit Singh S/o Bhupinder Singh, R/o Near Old Sabzi Mandi Road, Rampura Phul, District Bathinda. ... Complainant<br /> Versus<br /> <br /> 1.Reliance General Insurance, Regional Office, SCO 212-214, Sector 34-A, Chandigarh, through its Regional Manager. <br /> 2.Reliance General Insurance, 7th Floor, Surya Tower, The Mall, Ludhiana through its Incharge/Manager.<br /> 3.Reliance General Insurance, Ahluwalia Complex, Near Bus Stand, Bathinda, through its Branch Manager.<br /> ... Opposite parties<br /> <br /> Complaint under Section 12 of the Consumer Protection<br /> Act, 1986.<br /> <br /> QUORUM <br /> <br /> Sh. Pritam Singh Dhanoa, President<br /> Dr.Phulinder Preet, Member<br /> Sh. Amarjeet Paul, Member<br /> <br /> Present : Sh. Gurpreet Singh Sidhu, Advocate, counsel for the complainant<br /> Sh. Sunder Gupta, Advocate, counsel for the opposite parties<br /> <br /> O R D E R<br /> <br /> SH. PRITAM SINGH DHANOA, PRESIDENT <br /> <br /> 1. Sh. Harjit Singh, son of Sh. Bhupinder Singh, resident of Rampura Phul, has filed this complaint, under Section 12 of the Consumer Protection Act, 1986 (in short called the 'Act') for giving direction to the opposite parties, to pay him insurance claim in the sum of Rs. 3,00,000/-, alongwith interest @18 percent per annum, from the date of accident till the date of claim with further direction, to pay him compensation in the sum of Rs. 50,000/-, on account of financial loss, mental tension and harassment suffered by him and also a sum of Rs. 5500/-, on account of costs incurred, in filing the complaint. As per averments made in the complaint, the case of the complainant may briefly be described as under :-<br /> 2. That the complainant is the owner of Qualis Car bearing Registration No. HR-36-D-0080. He has secured, insurance policy from the opposite parties, vide insurance cover note No. 200701457201 issued by opposite party No. 3, for his vehicle for the period 02-12-2007 to 01-11-2008 and paid premium, in lump sum, in the sum of Rs. 13,091/-. In fact, the insurance cover note was effective w.e.f. 28-11-2007 to 29-11-2008, as the same was issued on 28-11-2007, but the opposite parties, subsequently with malafide intention unilaterally changed the date of, period of validity from 02-12-2007 to 01-11-2008, and mentioned the date of issuance as 30-11-2007, in the cover note. <br /> 3. On -3-12-2007, Roop Singh, cousin of the complainant, was going to New Delhi, alongwith driver to receive his wife, which was coming from Canada. The vehicle of the complainant met with an accident, while going to Delhi, in the jurisdiction of Police Station, Barnala, with Canter bearing registration No. RJ-31G-6873, on account of which F.I.R. No. 74, was registered with the said Police Station on even date. The driver of the canter, informed the opposite parties about the accident and damages, caused to the vehicle, of the complainant, which was beyond repairs. The complainant completed all the requisite formalities, and supplied copies of the documents, to the opposite parties including that of cover note, registration certificate, driving licence of his driver. Subsequently, he also delivered, the original cover note on demand, raised by the opposite parties. The claim of the complainant, was repudiated by the opposite parties vide letter dated 04-02-2008, on the ground, that his vehicle, was being used. for commercial purposes. The said plea of the opposite parties, is false and baseless as the complainant, never used his vehicle for carrying passengers or on hire and reward purchase. The action of the opposite parties in repudiation of claim of the complainant, is arbitrary and illegal, and not binding upon him. He has served, legal notice on 10-04-2008, upon the opposite parties, but to no effect. He is consumer qua the insurance policy secured by him, for his vehicle and they are discrepant in rendering services. They have also adopted, unfair trade practice, while repudiation of the claim. Due to the act and conduct of the opposite parties, complainant has been subjected to mental and physical harassment, as such, he is entitled to payment of compensation and costs of complaint. Since the opposite parties have refused, to owner the claim of the complainant, hence the complaint.<br /> 4. On being put to notice, opposite parties filed written version, resisting the complaint, by taking preliminary objections; that complainant was using his Qualis vehicle, for commercial purposes, in breach of terms and conditions, of the policy; that Karamjit Singh, who was driving the vehicle at the time of accident, did not posses, valid and effective, driving licence; that claim of the complainant, has been repudiated on the basis of report of Investigator, as he had reported that passengers were travelling in the vehicle which has been got insured, for private purposes by the complainant, but he has misrepresented the facts; that complainant has no locus standi and cause of action, to file the complaint; that there is no deficiency, in service on the part of the opposite parties and amount of compensation claimed, by the complainant is highly excessive and exorbitant and complaint, being false and vexatious, is liable to be dismissed with special costs. On merits, it is admitted, that insurance cover for Qualis, bearing registration No. HR-36D-0080, was issued by the opposite parties vide cover note No. 200701457201 for the period from 02-12-2007 to 01-12-2008 against a sum of Rs. 13,091/-, paid by the complainant on account of premium. It is submitted, that complainant had plying his vehicle, for hire and reward, which is a commercial purpose, although he has got insured the vehicle for private use, in breach of the terms and conditions of the policy. It is submitted that M/s. Bansal & Company, an approved surveyor, appointed by the opposite parties has assessed the damage to the vehicle, of the complainant, to the tune of Rs. 95,000/-. It is submitted that over writing, on the cover note initially issued on 28-11-2007 was made, as the complainant produced his vehicle, for inspection only on 02-12-2007, as such the date of period, covering validity period of insurance policy was corrected, from 02-12-2007, was made to read in the insurance cover note issued, on 30-12-2007 from 02-12-2007 to 01-12-2008. It is submitted that although the period of policy covers the period of accident, but the claim of the complainant, has rightly been repudiated by the opposite parties, vide their letter dated 04-12-2008, on the basis of report given on 27-01-2008, by M/s. Royal Associates, after conducting investigation that vehicle was plied, by the complainant, for commercial purposes. It is denied, that there is deficiency of service, on the part of the opposite parties, qua the insurance policy, issued by the opposite parties for the vehicle of the complainant. It is admitted that legal notice dated 10-04-2008, has been served by the complainant, upon the opposite parties. Rest of the averments, made in the complaint, have been denied and prayer has been made, for dismissal of the same with costs. <br /> 5. On being called upon, by this Forum, to do so, the complainant, furnished his affidavits Ex. C-1 & Ex. C-2 and tendered document Ex. C-3 to Ex. C-22. He has also furnished affidavits of Smt. Simarjit Kaur, Sh. Sukhcharan Singh and Sh. Jagmail Singh, Ex. C-23 to Ex. C-25, respectively, by way of additional evidence. He has further examined Er. Gurjinder Singh, Chief Executive of M/s. G.S. Associates, Bathinda, who has tendered his affidavit Ex. C-21 and has proved his report Ex. C-22. On the other hand, learned counsel for the opposite parties tendered in evidence affidavits of Sh. Satyan Kapur, Authorised Signatory, Sh. Kashmir Singh, Proprietor of M/s. Royal Associates, Surveyors, loss assessor, investigators and detectives, Sh. Vijay Bansal of M/s. Bansal and Company, Ludhiana, and Kashmir Singh Ex. R-1, Ex. R-8, Ex. R-9 and Ex. R-11, respectively, and also enclosed, copies of several documents, including Investigation report, survey report, consent letter and statements of Sh. Gurdeep Singh, Sh. Sukhcharan Singh and Smt. Simarjit Kaur, Ex. R-2 to Ex. R-7, before closing their evidence.<br /> 6. We have heard the learned counsel, for the parties and perused the oral and documentary evidence including written submissions adduced on record, by the parties, carefully, with their kind assistance.<br /> 7. Admittedly, complainant is the owner of Qualis vehicle bearing registration No. HR-36D-0080. It is also not disputed by the opposite parties, that he secured insurance cover, for the said vehicle, vide cover note No. 200701457201. As per the plea of the complainant, he secured insurance cover from 28-11-2007 to 29-11-2008 and the same was issued on 28-11-2007, but subsequently the opposite parties made correction in the date of issue and date of validity for which insurance cover has been issued. As per the stand of the opposite parties, complainant produced, his vehicle for inspection, on 02-12-2007, as such, the period of date of issuance of the policy, was rectified as 30-11-2007 and period of validity was corrected, as 02-12-2007 to 01-12-2008. These corrections have also been made, in the copy of cover notes Ex. C-8 & Ex. C-9 produced on record by the complainant himself. In the copy of insurance policy Ex. C-13, brought on record by the complainant, the date of issue has been mentioned, as 20-11-2007 and period of validity as 02-12-2007 to 01-12-2008. However, as per admitted facts and proved by the copy of F.I.R, Ex. C-10, accident has taken place on 03-12-2007 i.e. after issuance of insurance cover note and before expiry of date of validity even as per dates rectified by the opposite parties. As per copy of letter, dated 04-02-2008, Ex. C-12, opposite parties have repudiated the claim lodged by the complainant for damages, caused to his vehicle, during the period of validity of policy merely on the ground that passengers, had been travelling at the time of accident in the vehicle of the complainant driven by his driver Karamjit Singh, in breach of terms and conditions of the policy, issued by them. As per insurance cover note and policy, the vehicle has been got insured by the complainant for private use. The complainant has also produced copy of driving licence of the driver Ex. C-11 endorsed by the Licensing Authority, Mansa, which was valid from 18-03-2005 to 19-08-2008. As such it was valid on the date of accident. The complainant has also not disputed the fact that his vehicle, was being driven, by his driver, at the time of accident.<br /> 8. Learned counsel for the opposite parties, Sh. Sunder Gupta, Advocate, has submitted, at the outset, that it is established from the report of Investigator, appointed by the opposite parties and statements of the complainant and witnesses, recorded by him, that vehicle owned by the complainant and damaged in the accident, was being used for commercial purposes whereas it has been insured for use of private purpose. As such, the statements of the complainant and other witnesses examined by him, denying the said fact, are nothing but afterthought to which, no significance can be attached. Learned counsel has submitted that claim lodged by the complainant, has been rightly repudiated. In support of his contentions, he placed reliance upon 2009 (1) CLT 150 Joginder Singh Vs. Oriental Insurance Company Limited &Others , wherein it was proved that vehicle damaged in the accident was being used as 'taxi' in violation of terms of insurance policy. It was held that use of vehicle, has close nexus with, son of the owner indulging at the relevant point of time, in use of the vehicle, to transport an unknown person, from one place to other for reward, if not as a regular 'taxi'. It was further held, that denial of these admissions in the FIR, or in any subsequent affidavit of said person, has to be seen as an afterthought. It was held that award of claim on non-standard basis is also not in keeping with the terms of the policy. Learned counsel has further relied upon the judgement delivered by our own Hon'ble State Commission, in Civil Appeal No. 396 of 2009 arising out of SLP (C) No. 19513 of 2006 titled as National Insurance Company Limited Vs. Meena Aggarwal, wherein it has been held by the Hon'ble Apex Court that State Commission and National Commission, have not practically indicated, any reason for coming to the conclusion, that there was no fundamental breach of the terms of the policy and have observed, that vehicle was being driven by a person, who did not have a valid driving licence. In addition to that the vehicle which was insured, for personal use, was used for commercial purposes. The Hon'ble Apex Court held that the orders passed by State Commission and National Commission are not sustainable and set aside the same.<br /> 9. On the other hand, learned counsel for the complainant Sh. G S Sidhu, Advocate, argued that the investigator, appointed by the opposite parties, secured signatures of the complainant and other witnesses on plain paper, on the plea, that he requires them, for settlement of claim lodged, by the complainant, but he himself has subsequently misused them as evident, from their statements, made in this case. Learned counsel has also argued that accident, has taken place when Roop Singh cousin of, the complainant was going to Delhi Air Port, alongwith his driver, to fetch his wife alongwith his friends as such, opposite parties were not justified, in repudiation of claim. In this regard, learned counsel has relied upon AIR1996 Supreme Court 2054 B.V. Nagaraju Vs. M/s. Oriental Insurance Company Limited, Divisional Office, Hasan, wherein damage, to the vehicle insured with the Insurance company, was caused in a head, on collision in a road accident. The owner of the truck lodged, the claim and claim was repudiated, because in breach of the terms of the policy, vehicle had been carrying more passengers. It was held, by the Hon'ble Apex court, that such a breach is not fundamental, in nature, so as to afford, to the insurer to eschew liability altogether. It was further held that exclusion terms of insurance policy to be read, to serve main purpose of the policy. Learned counsel has also relied upon 2003(1) CPJ 368 New India Assurance Company Limited Vs. Gulshan Kumar, wherein vehicle damaged in the accident was insured as goods carrier but passenger was found travelling therein at the time of accident. It was held by the Hon'ble Delhi State Consumer Disputes Redressal Commission, New Delhi, that repudiation of claim on that ground is not justified, as person travelling in the vehicle was not paid passenger and made no contribution, in the accident. It was also held that breach, not being fundamental, as such, insurance company is liable to pay compensation of the amount, assessed by their surveyor. <br /> 10. We find merit in the argument, advanced by the learned counsel for the complainant. The opposite parties, have tendered in evidence, statements of Gurdeep Singh, Sukhcharan Singh and Simarjeet Kaur, Ex. R-5 to Ex. R-7 respectively, recorded by the surveyor, to the effect, that vehicle damaged, in the accident has been taken on rent and Roop Singh alongwith others was going to Delhi Air Port, to take his wife. They have also tendered, in evidence, statement of Sh. Harjeet Singh Ex. R-10, made about the accident and persons travelling in the vehicle. The opposite parties have also tendered in evidence, affidavit of Sh. Kashmir Singh, Proprietor of M/s. Royal Associates, Ex. R-8, wherein he has affirmed on oath, that he has submitted his report dated 27.01.2008 Ex. R-2, to the opposite parties, after conducting investigation, that vehicle involved, in the accident, was being used for hire and reward purposes and he recorded, the statements of Gurdeep Singh, Sukhcharan Singh and his wife Simarjeet Kaur, to the effect that vehicle, was being used for commercial purposes, at the time of accident. In order to rebut the report of investigator, appointed by the opposite parties named above, the complainant has tendered, his own affidavit Ex. C-2 to the effect that his cousin Roop Singh, booked his vehicle for going to New Delhi, for receiving his wife, coming from Canda , and the plea of the opposite parties, that vehicle was being used, for carrying passengers is totally false and baseless, as it was not carrying any passenger, at the time of accident. The complainant has also tendered in evidence affidavits of Simarjit Kaur and Sukhcharan Singh Ex. C-23 & Ex. C-24, respectively, wherein they have stated that they went to the house of Kramjit Singh, owner of ill-fated vehicle, to condole his death. The investigator of the opposite parties, secured their signatures on blank papers, stating that they are required, for settlement of claim and they did so under bonafide impression, but subsequently, he misused those papers with an intention to assist, the opposite parties to repudiate the claim of the complainant. The contents of their affidavits, are corroborated, by the affidavit of Sh. Jagmail Singh S/o Sh. Bachan Singh, Ex. C-25, wherein he as affirmed on sole affirmation, that he is close relative of deceased Roop Singh, who died in the accident, alongwith driver of the complainant. He has also stated, that his signatures, were secured, on blank papers, in the manners described, by other witnesses, at the time, when he went to condole the death of Roop Singh, but they subsequently misused, the same for repudiating the claim of the complainant.<br /> 11. The opposite parties, have not examined, any witness who might be present, at the time of accident, nor their investigator, has recorded statement of, any such person. There is no evidence, oral and documentary, that some amount, was paid by passengers on account of rent to the complainant or his driver, for travelling to New Delhi or some other destination. On the the other side, plea of the complainant, has been consistent to the effect, that his cousin Roop Singh alongwith some other persons named, in the affidavit of, Sh. Satyan Kapur, Ex. R-1, were going to receive the wife of deceased, Roop Singh. The statements of the witnesses of the opposite parties, cannot be preferred, over the statements of the witnesses examined by the complainant, in the course of proceedings, in this case, as such, no ground is made out to reject them, even if, they are related, to the complainant by relationship or otherwise. Therefore, we are of the considered opinion that on the basis of the statements, recorded by their investigator, the opposite parties, were not justified, in repudiating the claim of the complainant, on the ground, that at the time of accident, his vehicle was being used, as a 'taxi' for commercial purposes. As such, no fundamental breach of, the terms and conditions of the policy, is proved on the part of the complainant or his driver. We have carefully gone through, the ratio judgement delivered in 2009(1) CLT 150 (NC) (Supra), relied upon by the learned counsel, for the opposite parties, but have come to the conclusion, that facts and circumstances thereof, were quite distinguishable, from those of the case in hand. In the said case, it was established on record, that vehicle damaged, in the accident, insured with the opposite parties, was being used as a 'taxi', by the son of the owner and one unknown person, was found travelling therein, wherein in the case in hand, opposite parties, have failed to establish any such fact and the complainant, has established, that the persons travelling, in the vehicle were closed relatives of his cousin Roop Singh. In National Insurance Company Limited Vs. Meena Aggarwal case, it was proved that vehicle involved, in the accident, was being used for commercial purposes. As such, ratio of judgements delivered, in these cases, relied upon by the learned counsel for the opposite parties, are of no use, so far as plea of opposite parties is concerned.<br /> 12. At this stage, learned counsel for the opposite parties, has drawn our attention,to the consent letter dated 22-02-2208 Ex. R-4, executed by the complainant, to the effect,that he is willing to receive a sum of Rs. 95,000/-,as full and final settlement of his claim, on 'net of salvage/cash loss' basis. Learned counsel has argued that complainant cannot wriggle out of his said statement and make claim for amount, more than the amount, mentioned in the consent letter, executed by him with free consent. Learned counsel has further submitted that even if this Forum comes to the conclusion that consent letter is not binding upon the complainant, then no ground is made out to reject the report of the surveyor appointed by the opposite parties, which is more reliable, than the report of surveyor, appointed by the complainant. In support of his contentions, learned counsel has relied upon 2008 (III) CPJ93 (NC) Champa Lal Verma Vs. Oriental Insurance Co. Ltd. - wherein loss assessed by the surveyor of the Insurance Company was awarded, by the District Forum, it was held that report of surveyor to be given due weightage and Consumer Fora cannot go into quantum dispute, but complainant is free, to approach Civil Court/RDA/Arbitration and the Hon'ble National Commission, granted the complainant, to seek condonation of delay, of time consumed, before the Consumer Forum and appellant authority.<br /> 13. On the other hand, learned counsel for the complainant submitted that the report of surveyor, engaged by the complainant is more authenticated than the report of surveyor appointed, by the opposite parties as he has given favourable report to help his pay masters and has with malafide intention decreased the financial burden, as such, the same cannot be preferred, over the report of surveyor, examined by the complainant.<br /> 14. The argument advanced by the learned counsel for the complainant failed to sound well with us, so far as agreement to receive Rs. 95,000/- by the complainant, in terms of consent letter Ex. R-4, is concerned. Even if it be assumed ,for sake of arguments, that complainant has executed consent letter, it has not been acted upon, before he lodged the complaint in this Forum. Therefore, complainant, cannot be denied just claim under the insurance policy, during the validity period of which, accident has taken place. However surveyor appointed by the opposite parties in his report Ex. R-2, has given cogent reasons for reaching at the conclusion in awarding a sum of Rs. 2,50,000/- after exclusion of a sum of Rs. 1,75,178.25, on account depreciation, a sum of Rs. 1,000/- in terms of excess clause and another sum of Rs. 41,446/-, on account of damaged parts of the vehicle of the complainant. He has awarded an amount of Rs. 35,000/- as labour charges and also the amount on account of VAT. The depreciation has been worked out by him separately for metal and plastic parts. On the other hand, no cogent reason, has been given, for arriving at a conclusion, by the loss assessor, examined by the complainant M/S. G S Associates, in his report Ex. C-22. He has given the salvage value of the damaged parts as Rs. 75,000/-, which is much higher, than the value, given by the surveyor appointed by the opposite parties on whose part no enmity has been even alleged towards complainant.<br /> 15. In the light of our above discussion, and being fortified by ratio of judgements relied upon by the learned counsel for the opposite parties, we have no option, but to accept the report of surveyor, appointed by the opposite parties, who has also tendered, his affidavit Ex. R-9 to prove his report. There is nothing on record, suggesting as to if complainant, has already deposited the salvage of his damaged vehicle. Even the surveyor of the opposite parties, in his report Ex. R-3, has observed that an amount of Rs. 41,446/-, has to be deducted, if salvage has not been deposited, by the complainant.<br /> 16. For the aforesaid reasons, we accept the complaint and direct the opposite parties to pay a sum of Rs. 2,91,446/- on account of claim lodged by the complainant, for damage, caused to his vehicle, subject to deposit of salvage and relinquishment of all rights therein by the complainant, within a period of two months from the date of receipt of copy of this order. However, it is made clear that in case the complainant fails to deposit the salvage and to relinquish his rights therein, then the opposite parties, shall be at liberty to deduct a sum of Rs. 41,446/-, from the amount, payable to the complainant, in compliance of this order.<br /> 17. In case the payment, is not made by the opposite parties, within the stipulated period, then the complainant shall also be entitled to payment of interest, on amount of claim at the rate of 9% per annum, after the expiry of stipulated period till the date of actual payment. The opposite parties are further burdened in the sum of Rs. 1,000/- on account of expenses, incurred by the complainant for filing the complaint.<br /> 18. The compliance regarding costs be also made within the period of two months from the date of receipt of copy of its order. <br /> 19. The copies of this order be supplied to the parties free of costs,<br /> <br /> <br /> as permissible, under the rules. File be indexed and consigned to record.<br /> Pronounced : <br /> 12-02-2009 <br /> (Pritam Singh Dhanoa)<br /> President<br /> <br /> <br /> (Dr.Phulinder Preet)<br /> Member <br /> <br /> <br /> <br /> (Amarjeet Paul) <br /> Member