New Complaint No.222 of 2023.

                                                       Date of Institution: 26.10.2023.

                                                     Old Complaint No: 245 of 2018.

                                                         Date of Institution: 01.06.2018.

                                                                  Date of order:5.12.2023.

Kanwaljit Kaur aged about 29 years wife of Inderjit Singh resident of Village Teja Khurd, Tehsil Batala District Gurdaspur. Pin Code – 143505.

                                                                                                                                                                   …..............Complainant.                                                                                                                                                                                                                                                                                                                                                                                                

                                                         VERSUS

1.       Shri Ram General Insurance Co. E-8, EPIP, Sitapura Industrial Area, Jaipur, Rajasthan – 302022.

2.       Shri Ram General Insurance Co. having its Branch Office at Jalandhar Road, Opposite Punjab Roadway Depot, Batala, Tehsil Batala, District Gurdaspur. Pin Code – 143505.

                                                                                                                                                               ….Opposite parties.

                                                   Complaint U/s. 12 of the Consumer Protection Act.

Present: For the Complainant: Sh.Navin Gupta, Advocate.

               For the Opposite Parties: Sh.Sandeep Ohri, Advocate.  

Quorum: Sh.Lalit Mohan Dogra, President, Sh.Bhagwan Singh Matharu, Member.

ORDER

Lalit Mohan Dogra, President.

          Kanwaljit Kaur, Complainant (here-in-after referred to as complainant) has filed this complaint under section 12 of the Consumer Protection Act (here-in-after referred to as 'Act') against Shri Ram Gen. Ins. Co. Etc. (here-in-after referred to as 'opposite parties).

2.       Briefly stated, the case of the complainant is that the complainant is the owner of the Tipper of Tata Motors bearing Regd. No. PB-06-L-2787 which she has purchased as second hand from one Smt. Neeru Mahajan wife of Hari Krishan Mahajan resident of Pathankot and now the complainant is the registered owner of the above said vehicle. It is pleaded that prior to purchase there was oral agreement to sell with the original owner Smt. Neeru Mahajan and during that period the insurance was going to be over and the complainant and Smt. Neeru Mahajan were induced by the official of the OP No. 1 to take the cash less insurance from their office and there will be no complaint of any claim of insurance and the officer of the OP’s also ensured the complainant and Smt. Neeru Mahajan that they will not face any difficulty with respect to any claim if any at any point in time in future and also induced that they will give the insurance policy from bumper to bumper and which policy they have called as deb cab policy and the complainant and Smt. Neeru Mahajan will not be supposed to pay any amount for any claim if any and the complainant and Smt. Neeru Mahajan fulfilled all the formalities and paid the entire amount of insurance and vide Policy No. 10003/31/18/205528 which is valid from 19.07.2017 to 18.07.2018 the above said vehicle was ensured with the OP’s and subsequently the complainant after paying the entire amount to Smt. Neeru Mahajan got the vehicle as well as insurance cover note transferred on her name by completing all the paper work and the requisite fees. It is further pleaded that unfortunately that the above said vehicle had met with an accident on 12.01.2018 near Khanna Paper Mill, Amritsar as some passing by vehicle just hit the side of the vehicle and the vehicle became imbalanced and fell on the side of the road and there was major damage to the said vehicle due to said accident and at that time the vehicle was driven by the driver of the vehicle Hardeep Singh Son of Kashmir Singh resident of Village Manj, Tehsil & District Gurdaspur. It is further pleaded that the intimation was immediately given to the OP’s i.e. on 12.01.2018 on the toll free number of the OP’s i.e. 1800 1033 009 at about 11:30 A.M. / 12:00 P.M. and thereafter the matter was also reported to the officials of the OP’s, but nobody came to the spot and on 16.01.2018 the complainant received the telephonic call to carry  way the vehicle to some workshop for its repair and their authorized person will visit the said place and accordingly the said damaged vehicle was towed down in the workshop namely Vicky Deepu Kamania Show Wale, Near Truck Stand, Jahajgarh, Amritsar for its repair. It is further pleaded that the vehicle was surveyed by the surveyor and thereafter the vehicle was repaired and when the complainant approached the office of the OP’s for making the payment of bill of Rs.2,29,300/- which become due and payable on account of repair of the above said vehicle to the above said workshop on or about 13.03.2018 but the OP’s refused to pay the amount and avoided the complainant with one pretext or another and ultimately the complainant suffered huge loss on account of non-payment of the money by the OP’s insurance company to the workshop as the vehicle was lying there only for non-payment of the bill and ultimately in order to avoid the further loss and as per the assurance given by the OP’s that we will pay the amount later on and as per the assurance the complainant not left with any other option than to pay the amount from her own pocket Rs.2,29,300/- on 03.04.2018 and submited the bill which she had paid from her own pocket but till today the OP’s have not paid any amount to the complainant and refused to pay the same as they in order to commit the fraud with the complainant and induced the complainant to take very less amount of insurance and when the complainant demanded his full amount of his loss as per their earlier commitment at the time of issuance of the insurance policy. It is further pleaded that now the OP’s refused to give the amount to the complainant. It is further pleaded that on account of non-payment by the OP’s, the complainant is suffering from harassment and she is feeling disturbed and uncomfortable due to the heavy financial burden and the complainant is also not able to pay the installments of the vehicle to the financer and due to non-payment of installments of the vehicle, the complainant is also not able to ply the vehicle freely till date and due to which she is suffering loss of business and there was also loss of Rs.5,000/- for each day due to non-plying of the vehicle as the same was lying in the workshop due to non-payment of bills by the OP’s i.e. for the period from 13.03.2018 to 03.04.2018. It is further pleaded that due to this illegal act and conduct of the opposite parties the complainant has suffered great loss and also suffered mental agony, Physical harassment and inconvenience. It is further pleaded that there is a clear cut deficiency in service on the part of the opposite parties.

          On this backdrop of facts, the complainant has alleged deficiency and unfair trade practice on the part of the opposite parties and prayed that necessary directions may kindly be issued to the opposite parties to pay Rs.2,29,300/- alongwith Rs.1,00,000/- on account of loss of business as mentioned above and Rs.4,00,000/- as compensation due to the mental harassment etc. and further loss of business after 03.04.2018 due to non-payment of the installments of the vehicle as the complainant has paid all her saving for the repair of the vehicle which otherwise the opposite parties were / are bound to pay along with the litigation expenses of Rs.10,000/- due to the act and conduct of the opposite parties, in the interest of justice.

3.       Upon notice, the opposite parties appeared through counsel and contested the complaint and filing their written reply by taking the preliminary objections that the complainant has no cause of action to file the present complaint and the complainant has no locus standi to file the present complaint and there is no deficiency in services on the part of the answering opposite parties. It is pleaded that the claim has been filed and the surveyor has been duly appointed to assess the loss. It is further pleaded that surveyor Sh. Rohit Kapoor has submitted his detailed report and as per the report of the surveyor the liability of the Insurance Company is of Rs.65,000/-. It is further pleaded that the amount has been duly paid to STFC as per surveyor report. It is further pleaded that there is no liability of the insurance company and the claim has already been paid. It is further pleaded that the complainant has not come to the Hon’ble Court with clean hands and as such not entitled for any relief. It is further pleaded that vehicle is hypothecated one and the complainant has not disclosed the above said facts regarding hypothecation with Shri Ram Transport Finance Co. It is further pleaded that the complaint is bad for non-joinder of necessary party as the Shri Ram Transport Finance Co. has not been made party to the complaint and as such the complaint is liable to be dismissed.

          On merits, the opposite parties have reiterated their stand as taken in legal objections and denied all the averments of the complaint and there is no deficiency in service on the part of the opposite parties. In the end, the opposite parties prayed for dismissal of complaint with costs.

4.       Learned counsel for the complainant has filed Self-Attested affidavit of Kanwaljit Kaur, (Complainant) alongwith other documents as Ex.C-1 to Ex.C-8.

5.       Learned counsel for the opposite parties has tendered into evidence affidavit of Sh. Abhinay priyadarshi, (Authorized Signatory, Shri Ram Gen. Ins. Co. Ltd, Jaipur) alongwith other documents as Ex.OP-1 to Ex.OP-3.

6.       Rejoinder not filed by the complainant.

7.       Written arguments not filed by both the parties.

8.       Counsel for the complainant has argued that the truck bearing No.PB-06L-2787 was insured with the opposite parties and the said truck met with an accident on 12.01.2018. It is further argued that as per the instructions of the opposite parties the truck was taken to Vicky workshop at Amritsar for repair and complainant had spent Rs.2,29,300/- to the said workshop but the surveyor of opposite parties had illegally and unlawfully assessed the payable amount of Rs.65,000/- inspite of fact that complainant had spent amount of Rs.2,29,300/-. It is further argued that surveyor of opposite parties being employee of opposite parties was not competent to make such huge deductions from the payable amount and act of opposite parties of having transferred the said amount to the financer also amounts to deficiency in service and accordingly the complaint is liable to be allowed. Counsel for the complainant has relied upon judgments of Hon'ble Haryana State Consumer Disputes Redressal Commission in First Appeal No.49 of 1994. D/d. 19.09.1995 in case titled as M/s. National Insurance Company Limited. Vs. M/s. Krishana Cotton and General Mills in which it is held as under:-

          "Consumer Protection Act, 1986 Section 14 Insurance claim - Surveyors report - District Forum is competent to ignore the report of surveyors in an insurance claim - Such report has no binding force on the Forum - However, in the present case, the loss of Rs.2,500/- falling under the exclusion clause of the policy was ordered to be reduced from the amount of total amount, of Rs.3,560/- Order of District Forum was modified to that extent".

And in First Appeal No.400 of 2015. D/d. 30.07.2015 in case titled as Oriental Insurance Company Limited & ors. Vs. Sandeep & ors. in which it is held as under:-

          "Consumer Protection Act, 1986 Section 2(1)(g) Surveyor Report - Effect of - Insurance claim -Loss suffered by insurer -          Held, the approved surveyor's report may be basis or foundation for settlement of a claim by the insurer regarding loss suffered by the insured but surely such report is neither binding upon the insurer nor insured - Appeal dismissed".

9.       On the other hand counsel for the opposite parties has argued that complainant has not pointed out any short coming in the report of the surveyor who has rightly assessed payable amount as Rs.65,000/- and report of the surveyor is fully justified one and complainant has not been able to point out any deficiency in the report of the surveyor and as such complaint is liable to be dismissed.  

10.     We have heard the Ld. counsels for the parties and gone through the record.

11.     It is admitted fact that complainant is owner of truck bearing No.PB-06L-2787. It is further admitted fact that said truck was insured with the opposite parties w.e.f. 19.07.2017 to 18.07.2018. It is further admitted fact that said truck met with an accident on 12.01.2018 in the area of Khanna Paper Mill, Amritsar. It is further admitted fact that on receiving intimation the opposite parties was deputed surveyor to assess the loss. It is further admitted fact that surveyor deputed by the opposite parties Mr.Rohit Kapoor had assessed the liability of insurance as Rs.65,000/-. It is further admitted fact that the amount assessed by the surveyor has been paid by the opposite parties to Shriram Transport Finance Company with whom said truck was hypothecated. The only issue for adjudication before this Commission is whether the surveyor was competent to make deductions from the payable amount vide his report Ex.OP-1.

12.     Perusal of report of surveyor shows surveyor as assessed the  total amount and after making deductions the surveyor has assessed the net payable amount as Rs.65,000/-.

13.     Perusal of record shows that tipper owned by the complainant is of 2010 model as per Ex.C1 and the policy of insurance has been purchased on 19.07.2017 i.e. after seven years and the deductions have been arrived at by the surveyor as per his report Ex.OP-1. carefule  perusal of report of surveyor Ex.OP-1 shows that there is no reason or ground to depart from the said report and the deductions have been made as per the policy of insurance and model of the vehicle and the surveyor had correctly assessed the loss i.e. Rs.65,000/-. It has come on record that the said truck owned by the complainant was financed by STFC to whom payment has been made and said STFC has not been made party to the complaint. As such we do find any deficiency in service on the part of the parties.

14.     Accordingly, complaint being without any merit is ordered to be dismissed with no order as to costs.     

15.      The complaint could not be decided within the stipulated period due to heavy pendency of Court Cases, vacancies in the office and due to pandemic of Covid-19.

16.     Copy of the order be communicated to the parties free of charges. After compliance, file be consigned to record.  

                               (Lalit Mohan Dogra)

                                                                         President   

Announced:                                          (B.S.Matharu)

Dec. 05, 2023                                                Member

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