BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, SIRSA.
Consumer Complaint no. 71 of 2017
Date of Institution : 27.3.2017
Date of Decision : 17.1.2018.
Vicky son of Shri Swaran Singh aged about 30 years, resident of Kanganpur Road, Sirsa, Tehsil and District Sirsa.
……Complainant.
Versus.
- Shivdei Enterprises, Hisar Road, Sirsa through its Partner/ Manager.
- Chola Mandalam General Insurance Co. Ltd. having its Branch Office at SCO No.2463/64, 1st Floor, Sector 22C, Chandigarh through its Divisional Manager.
...…Opposite parties.
Complaint under Section 12 of the Consumer Protection Act,1986.
Before: SH. R.L.AHUJA…………………………PRESIDENT
SMT. RAJNI GOYAT ………………… MEMBER
Present: Sh. Sunny Babbar, Advocate for the complainant.
Sh. Sandeep Kamboj, Advocate for opposite party No.1.
Sh. H.S. Raghav, Advocate for opposite party no.2.
ORDER
The case of the complainant in brief is that opposite party no.1 is the authorized dealer of Eicher Tractors, spares, accessories and implements etc. having its showroom at Hisar road, Sirsa whereas op no.2 is insurance service provider as well as a finance company having its branch office at Sirsa. That on 12.1.2016, complainant had purchased a new eicher tractor 380 from op no.1 vide bill No.002174 dated 12.1.2016 for a total sum of Rs.5,60,000/-. The tractor has been got financed/ hypothecated by complainant from op no.2. The vehicle of the complainant bears the chassis No.923713152641 and engine no.G-73730. That after purchase of aforesaid vehicle, the complainant got the said vehicle insured from op no.2 vide policy No.3380/00926740/000/00 valid w.e.f. 13.1.2016 to 12.1.2017. On 26.10.2016, the aforesaid vehicle of the complainant met with an accident and got damages. That immediately after the accident, the complainant informed op no.2 regarding the accident and requested to indemnify the claim of the complainant. It is further averred that Surveyor of the op visited the complainant and inspected the vehicle and after thorough inspection, the surveyor of op no.2 asked the complainant to get the same repaired from private mechanic as per his desire and further promised that as per the bills of the mechanic, the claim of the complainant shall be indemnified. It is further averred that on the assurances and promises made by the Surveyor, the complainant got repaired his vehicle from Shivdei Enterprises, Hans Automobiles and Dhanjal Motor Repair Works and had spent a sum of Rs.76,837/- qua the repair charges including labour etc. It is further averred that after getting repaired his aforesaid vehicle, the complainant moved an application to op no.2 vide which he had requested the op no.2 to indemnify the claim of the complainant and in response to the same, the complainant had received a letter dated 9.1.2017 issued by op no.2 vide which it has been informed to the complainant that his claim is no claim in the eyes of the ops because the requisite documents desired by op no.2 have not been submitted by complainant. Whereas, neither any demand was made by op no.2 nor the complainant was ever asked to submit the same and there was no reason with the complainant regarding non submissions of the required documents. It seems that the op no.2 only in order to repudiate the claim of the complainant has cocked a false story of non submission of the documents. That on receipt of the aforesaid letter, the complainant contacted the op no.2 and requested to indemnify his claim under the policy but the op no.2 is avoiding the requests of the complainant on one false pretext or the other and now about a week ago, the op no.2 has flatly refused from indemnifying the claim of the complainant. Hence, this complaint for a direction to the opposite party no.2 to pay a sum of Rs.76837/- qua the costs and repair charges, Rs.11,000/- as compensation on account of unnecessary harassment besides litigation expenses.
2. On notice, opposite party no.1 appeared and filed written statement taking certain preliminary objections that complaint is neither maintainable nor sustainable in the present form because the answering op has no concern or connection with the insurance of the vehicle or any kind of liability of the insurance company. The op no.1 has been impleaded as unnecessary party to the complaint and that complainant has concealed the true and material facts from this Forum, as such he is not entitled to any relief and that complainant has no valid and legal cause of action to file the present complaint qua the replying op. On merits, it is submitted that replying op did the repair work on the said tractor and accordingly got the charges for the same. Remaining contents of complaint are also denied.
3. Opposite party no.2 filed separate reply taking certain preliminary objections. It is submitted that there is no deficiency in service on the part of the op in repudiating the claim of the complainant vide letter dated 9.1.2017, same was intimated to him on the ground that insured has not provided the registration certificate or temporary registration certificate of the vehicle in question and regarding this they have sent three reminders for the disposal of the claims but till date the complainant never supplied the above mentioned documents, which were necessary for the disposal of the claim in question. It is further submitted that after receiving of the information the answering op demanded the concerned documents and it was never supplied by the complainant, then it is presumed that the vehicle was not registered at the time of alleged accident even after expiry of nine months from the date of purchasing the vehicle in question, which is clear violation of Section 39 of Motor Vehicle Act and also the violation of the insurance policy. Remaining contents of complaint are also denied.
4. The complainant produced his affidavit Ex.CW1/A and copies of documents Ex.C1 to Ex.C8 and photographs Ex.C9 to Ex.C16. On the other hand, opposite party no.2 produced affidavit of Sh. Satyabratta Das, Assistant Manager Legal as Ex.R1 and copies of documents Ex.R2 to Ex.R7. Ld. counsel for op no.1 has made a statement that written statement filed on behalf of op no.1 be read in evidence.
5. We have heard learned counsel for the parties and have perused the case file carefully.
6. Learned counsel for the complainant has contended that it is proved case of the complainant that complainant is owner of a tractor which was purchased by complainant from opposite party no.1 on 12.1.2016 vide bill No.002174 dated 12.1.2016. The said tractor was got insured from opposite party no.2 for the period 13.1.2016 to 12.1.2017. The vehicle of the complainant met with an accident and got damaged therein. Due intimation was given to opposite party no.2 and the claim was lodged and after thorough inspection of the vehicle in question, the surveyor of the op no.2 asked the complainant to get the same repaired from private mechanic he desired and further promised that as per the bills provided by the mechanic, the claim of the complainant shall be indemnified. But however, op no.2 did not make payment of the claimed amount rather declined the claim on the flimsy ground that requisite documents desired by op no.2 have not been submitted by the complainant whereas actually neither any demand was made by op no.2 nor the complainant was ever asked to submit the same. Learned counsel for complainant ha srelied upon the judgment of the Hon’ble Punjab and Haryana High Court passed in case titled as National Insurance Company Ltd. vs. Jaspal Kaur @ Jass, 2017(2) PLR 34 in which it was observed by the Hon’ble High Court that “non registration of the vehicle is not one of the defences enumerated under Section 149 of the Motor Vehicle Act. Insurance company is not entitled to take defence of non registration of the vehicle on the date of accident and it is not a breach of policy condition and the insurance company is not liable to be exonerated from the liability.”
7. On the other hand, learned counsel for opposite party no.1 has strongly contended that opposite party no.1 has been impleaded as unnecessary party. They did repair work of the said tractor and charged the amount for the same and there is no deficiency in service on the part of op no.1.
8. Learned counsel for opposite party no.2 has strongly contended that the complaint of the complainant is not maintainable at all as there is no deficiency of service on the part of op no.2 in repudiating the claim of the complainant vide letter dated 9.1.2017. The same was issued on the ground that insured has not provided the registration certificate or temporary registration certificate of the vehicle in question and regarding this they have sent three reminders for the disposal of the claim but till date the complainant never supplied the above mentioned documents which were necessary for the disposal of the claim in question. Non supply of the documents by the complainant himself made the op no.2 handicap in order to settle the claim of the complainant. Further more, non registration of the vehicle clearly amounts to violation of the provisions of Motor Vehicle Act and terms and conditions of the policy.
9. We have considered the rival contentions of the parties and gone through the record and judgment relied upon by learned counsel for the complainant.
10. The perusal of the record reveals that complainant in order to prove his case has furnished his affidavit Ex.CW1/A wherein he has reiterated all the averments of his complaint. The complainant has also placed on record copy of bill dated 12.1.2016 Ex.C1, copy of policy schedule Ex.C2, copy of letter dated 9.1.2017 Ex.C3, copy of bill dated 19.11.2016 Ex.C4, copy of bill of Dhanjal Motor Repair Works Ex.C5, , copy of bill dated 23.12.2016 Ex.C6, copy of registration certificate Ex.C7, copy of aadhar card Ex.C8 and photographs Ex.C9 to Ex.C16. On the other hand, opposite party no.2 has furnished affidavit of Sh. Satyabratta Das, Assistant Manager Legal Ex.R1, copies of letters Ex.R2 to Ex.R4, copy of letter dated 9.1.2017 Ex.R5, and copies of claim form Ex.R6, Ex.R7.
11. It is an undisputed fact between the parties qua ownership of the tractor of the complainant as well as insurance policy taken by the complainant by which the tractor in question of the complainant was insured by opposite party no.2 for the period 13.1.2016 to 12.1.2017. It is also undisputed fact that vehicle of the complainant met with an accident and it was damaged and the claim was lodged with op no.2 but however, the bone of contention between the parties is qua supply of documents by the complainant to op no.2 in order to settle the claim of the complainant. As per version of the complainant, he was asked by Surveyor to carry out necessary repairs in the vehicle and get reimbursed the repairing charges but on the other hand there is a specific plea of the opposite party no.2 that complainant did not supply the documents despite their three reminders which are Ex.R2, Ex.R3 and Ex.R4. The perusal of Ex.R5 letter dated 9.1.2017 reveals that claim of the complainant was not repudiated by op no.2 but however, same was closed as no claim due to non supply of the documents mentioned in Ex.R2 to Ex.R4. The perusal of letter Ex.R2 reveals that complainant was called upon to provide RC, photo and repair bills and the perusal of letters Ex.R3 and Ex.R4 reveals that complainant was called upon to provide RC, repair bills and re-inspection photo. The perusal of the complaint as well as affidavit of the complainant reveals that the complainant has not uttered a single word that he has ever provided registration certificate or temporary registration certificate or photographs and repair bill to op no.2 due to reason best known to the complainant and it is amply proved that op no.2 was not in position to consider and settle the claim of the complainant as per terms and conditions of the policy. The evidence of the complainant further reveals that complainant has not placed on record any opinion of the expert or report of the Surveyor and Loss Assessor who ever inspected the vehicle prior to its repair and re-inspected after repair of the tractor. So without express opinion of the expert, this Forum cannot come to the conclusion about the condition of the damaged vehicle and the condition of the vehicle after repair and cannot assess the loss of the vehicle without the report of the Loss Assessor. The record further reveals that op no.2 has also not appointed any surveyor in order to assess the loss of the vehicle of the complainant. Though, learned counsel for complainant has relied upon the judgment of the Hon’ble Punjab and Haryana High Court in case titled as National Insurance Company Ltd. vs. Jaspal Kaur @ Jass, 2017(2) PLR 34 in which it was observed by the Hon’ble High Court that “non registration of the vehicle is not a defence available to the insurance company under Section 149 of the Motor Vehicle Act and same cannot be considered to be a breach of terms and conditions of the policy” but however this judgment is not applicable to the facts of the present case as same relates to third party claim of insurance which was filed by the petitioner being a third party against the owner of the vehicle as well as against the insurance company but in the present case it is a claim of personal loss of property of the insured and same cannot be dealt under the provisions of the Motor Vehicle Act. So, it is proved on record that complainant has failed to prove his case by leading cogent and convincing evidence and the complaint of the complainant deserves to be dismissed.
12. In view of the above, we hereby dismiss the complaint of the complainant with no order as to costs. However, the complainant is at liberty to approach the opposite party no.2 and lodge a fresh claim alongwith the requisite documents as required by op no.2 within time and if claim is payable as per terms and conditions of the policy. A copy of this order be supplied to the parties free of costs. File be consigned to the record room.
Announced in open Forum. President,
Dated:17.1.20178 Member District Consumer Disputes
Redressal Forum, Sirsa.
