PER:

Charanjit Singh, President

1        The complainant has filed the present complaint by invoking the provisions of Consumer Protection Act under Section 12 and 13 against the opposite parties on the allegations that the complainant is owner of a truck Tata LPT 2515 Model 2007 having registration No. PB05-V-9604, Engine No. 70B62551382, Chassis No. 426031CSZ109576 which was hypothecated by Sh. Ram Finance Company Ltd. Branch Tarn Taran which is the finance wing of the opposite parties and having common Branch Office at Tarn Taran. The complainant has obtained its permit and completed all its documents and is using the above said vehicle for transport of goods from one place to another and from this small business, complainant is earning livelihood to maintain himself and his family. The complainant is regularly getting his above mentioned vehicle insured from the opposite parties since he has purchased it and prior to the present occurrence dated 30.3.2019, the complainant has never lodged any sort of claim from the opposite parties. The complainant got insured his above said vehicle from opposite parties and the insurance was valid from 7.9.2018 to 6.9.2019, after paying the premium as prescribed. The policy issued to the complainant was having No.10003/31/19/325194 and the agent of the opposite parties detail is BG0000000003 M/S STFC Ltd. CA0197 which is the code of the opposite party No.2. The said insurance policy of the vehicle in question was a dep-cap policy which includes IMT-21, IMT-7 and IMT-23 meaning thereby in case the vehicle in question got any accident then during claim there will be no deduction of any kind of depreciation etc. regarding any plastic, glass or iron part of vehicle damaged during accident and the complainant will get the full claim of the damaged vehicle without any deduction of depreciation. Unfortunately on 30.3.2019 at about 4.PM the complainant was going to Amritsar to get his vehicle loaded, when the complainant reached at bridge Warana, suddenly a car was coming from the front on the wrong side with high speed and the complainant tried to save the car but unfortunately, the vehicle in question got turned and all the glasses of the cabin of the vehicle in question got broken and whole of the body of the vehicle in question was also got damaged. Thereafter, the complainant also intimated the opposite parties regarding the damage of the vehicle due to the above said accident. The complainant took his vehicle for repairs from different shops as there are specialist for every kind of work regarding the trucks and requested the opposite parties to pay the charges of repair of the above said vehicle but the opposite parties did not pay any amount to the complainant or the owners of the workshop from where the vehicle was got repaired and vehicle of the complainant remained in the workshop without getting repaired for about 06 months. The complainant incurred the amount of Rs.3,30,000/- from his own pocket to get his damaged vehicle repaired and later on 30.6.2019 the opposite parties paid a sum of Rs.73,900/- only. The annual income of the complainant from the above said vehicle is Rs.08 Lacs and out of which due to the act and conduct of the opposite parties, the complainant have incurred a loss of Rs.02,40,000/- as the vehicle of the complainant remain parked in the workshop without any repairs. Moreover, the said amount of Rs. 73,900/- was also got adjusted in the loan account of the complainant and was not paid to the complainant for the repair of the above said vehicle in question. The complainant has prayed that the opposite parties may be directed to reimburse the whole claim amount i.e. Rs. 4,96,100/- alongwith future interest, which includes Rs. 2,56,100/- as claim of the damaged vehicle after deducting Rs. 73,900/- + Rs. 2,40,000/- as compensation for the loss of the business of the complainant due to the vehicle remained standing in the workshop for repairs on account of nonpayment of the claim amount by the opposite parties. Alongwith the complaint, the complainant has placed on record affidavit or complainant Ex. C-1, copy of registration of vehicle Ex. C-2, Copy of Driving license of complainant Ex. C-3, Copy of Pan Card of complainant Ex. C-4, Copy of fitness certificate of vehicle in question Ex. C-5, Copy of Permit of vehicle in question Ex. C-6, Copy of Adhar Card of complainant Ex. C-7, copy of insurance policy of vehicle in question Ex. C-8, Copy of Package policy-endorsement schedule Ex. C-9, Copy of statement of loan account of the complainant Ex. C-10, Copy of Bill dated 2.4.2019 Ex. C-11, Copy of Bill dated 10.6.2019 Ex. C-12, copy of bill No. 42 dated 29.5.2019 Ex. C-13, Copy of Bill No. 55 dated 29.5.2019 Ex. C-14, Copy of bill No. 456 dated 29.5.2019 Ex. C-15, Copy of report no. 7 dated 31.3.2019 regarding accident of vehicle in question Ex. C-16, Photographs of damaged vehicle Ex. C-17 to C-24, Copy of Income Tax Return Ex. C-25, Copy of account statement of Angrej Singh Ex. C-26.

2        Notice of this complaint was sent to the opposite parties and opposite parties appeared through counsel and filed written version by interalia pleadings that  the present complaint is legally not maintainable and same is liable to be dismissed, as in the present case after receiving the intimation of claim, IRDA approved surveyor Mr. Jagmohan was appointed to assess the loss and after the assessment the said surveyor submitted his report and as per assessment a payment of Rs.73,900/- was paid to the Financier of the Insured vehicle as the same was hypothecated with M/s Shriram Transport Finance Co. Ltd, therefore, no amount is due towards the opposite parties and the present complaint has been filed without any cause of action and liable to be dismissed. In the present complaint the complainant has concealed the material facts and has not come to the court with clean hands. It is submitted here that the claim has been settled by the opposite parties as per the terms and conditions of the policy and nothing is due against the claim and these facts have been concealed by the complainant and has tried to manipulate the facts therefore, he is not entitled for any relief claimed in the present complaint and the present complaint being devoid of any merit is liable to be dismissed. The complainant has no locus standi to file the present complaint. The complainant is estopped by his own act and conduct from filing the present complaint, as the complaint has been filed without any cause of action.  The policy was issued as per schedule mentioned therein and the policy was not dep-cap policy. So far as IMT-21, IMT-7 and IMT-23 is concerned that is matter of record. So far as deduction of amount from claim is concerned, it is submitted that compulsory deductions are liable to be deducted as per policy terms and conditions and similarly in the present case the deductions have been made as per policy terms and conditions and after that due amount has been paid to the complainant and nothing is due towards the opposite parties. After receiving the claim IRDA approved surveyor Mr. Jagmohan was appointed to assess the loss and after the assessment the said surveyor submitted his report and as per assessment a payment of Rs.73,900/- was paid to the Financier of the Insured vehicle as the same was hypothecated with M/s Shriram Transport Finance Co. Ltd, therefore, no amount is due towards the opposite parties and the present complaint has been filed without any cause of action and liable to be dismissed. The opposite parties have denied the other contents of the complaint and prayed for dismissal of the same. Alongwith the written version, the opposite parties have placed on record affidavit of Amandeep Sharma Ex. OPs1,2/1, Self attested copy of authority letter Ex. OPs1,2/2, Self attested copy of policy Ex. OPs1,2/3, Self attested copy of terms and conditions Ex. OPs1,2/4, Self attested copy of surveyor report Ex. OPs1,2/5, Self attested copy of Loan account statement Ex. OPs1,2/6, Self attested coy of affidavit of surveyor Ex. OPs1,2/7.

3        We have heard the Ld. counsel for the complainant and opposite parties No.1  and 2 and have carefully gone through the record placed on the file.

4        Ld. counsel for the complainant contended that he is owner of a truck Tata LPT 2515 Model 2007 having registration No. PB05-V-9604, Engine No. 70B62551382, Chassis No. 426031CSZ109576 which was hypothecated by Sh. Ram Finance Company Ltd. Branch Tarn Taran He further contended that the complainant got insured his above said vehicle from opposite parties and the insurance was valid from 7.9.2018 to 6.9.2019, after paying the premium as prescribed. The policy Ex. C-8 was issued to the complainant. The said insurance policy of the vehicle in question was a dep-cap policy which includes IMT-21, IMT-7 and IMT-23 meaning thereby in case the vehicle in question got any accident then during claim there will be no deduction of any kind of depreciation etc. regarding any plastic, glass or iron part of vehicle damaged during accident. He further contended that the complainant will get the full claim of the damaged vehicle without any deduction of depreciation. He further contended that on 30.3.2019 at about 4.PM the complainant was going to Amritsar to get his vehicle loaded, when the complainant reached at bridge Warana, suddenly a car was coming from the front on the wrong side with high speed and the complainant tried to save the car but unfortunately, the vehicle in question got turned and all the glasses of the cabin of the vehicle in question got broken and whole of the body of the vehicle in question was also got damaged. The complainant also intimated the opposite parties regarding the damage of the vehicle due to the above said accident. The complainant took his vehicle for repairs from different shops as there are specialist for every kind of work regarding the trucks and requested the opposite parties to pay the charges of repair of the above said vehicle but the opposite parties did not pay any amount to the complainant or the owners of the workshop from where the vehicle was got repaired. He further contended that vehicle of the complainant remained in the workshop without getting repaired for about 06 months. The complainant incurred the amount of Rs.3,30,000/- from his own pocket to get his damaged vehicle repaired and later on 30.6.2019 the opposite parties paid a sum of Rs.73,900/- only. The annual income of the complainant from the above said vehicle is Rs.08 Lacs and out of which due to the act and conduct of the opposite parties, the complainant have incurred a loss of Rs.02,40,000/- as the vehicle of the complainant remain parked in the workshop without any repairs. Moreover, the said amount of Rs. 73,900/- was also got adjusted in the loan account of the complainant and was not paid to the complainant for the repair of the above said vehicle in question. The complainant has prayed that the present complaint may be allowed.

5        Ld. counsel for the opposite parties contended that the present complaint is legally not maintainable and same is liable to be dismissed, as in the present case after receiving the intimation of claim, IRDA approved surveyor Mr. Jagmohan was appointed to assess the loss and after the assessment the said surveyor submitted his report and as per assessment a payment of Rs.73,900/- was paid to the Financier of the Insured vehicle as the same was hypothecated with M/s Shriram Transport Finance Co. Ltd, therefore, no amount is due towards the opposite parties and the present complaint has been filed without any cause of action and liable to be dismissed. The claim has been settled by the opposite parties as per the terms and conditions of the policy and nothing is due against the claim and these facts have been concealed by the complainant and has tried to manipulate the facts therefore, he is not entitled for any relief claimed in the present complaint and the present complaint being devoid of any merit is liable to be dismissed. The policy was issued as per schedule mentioned therein and the policy was not dep-cap policy. So far as IMT-21, IMT-7 and IMT-23 is concerned that is matter of record. So far as deduction of amount from claim is concerned, it is submitted that compulsory deductions are liable to be deducted as per policy terms and conditions and similarly in the present case the deductions have been made as per policy terms and conditions and after that due amount has been paid to the complainant and nothing is due towards the opposite parties. After receiving the claim IRDA approved surveyor Mr. Jagmohan was appointed to assess the loss and after the assessment the said surveyor submitted his report Ex. OPs 1,2/5 and as per assessment a payment of Rs.73,900/- was paid to the Financier of the Insured vehicle as the same was hypothecated with M/s Shriram Transport Finance Co. Ltd and prayed that the present complaint may be dismissed.

6        In the present case it is not disputed that the vehicle was insured and it is also not disputed that the vehicle met with an accident during currency period of insurance and IDV of the vehicle is Rs. 5,00,000/-. According to the opposite parties after receiving the intimation, one surveyor namely Sh. Jagmohan was appointed to assess the loss and after the assessment the said surveyor submitted his report and as per assessment a payment of Rs.73,900/- was paid to the Financier of the Insured vehicle as the same was hypothecated with M/s Shriram Transport Finance Co. Ltd. On the other hand, Ld. counsel for the complainant argued that the alleged surveyor has not assessed the loss correctly and the said report is not correct. Whole of the case of the opposite party revolves around the report of surveyor Ex. OP1,2/5. The opposite parties have assessed the loss on the basis of report of surveyor. From the bare reading of surveyor report Ex. OP1, 2/5 it reveals that same is not stamped and sealed by any firm/ surveyor.  In the written version, the opposite parties alleged that the survey has been conducted by one Jagmohan and said report has been prepared by Jagmohan which is Ex. OP1,2/5. But in support of that report, the opposite parties have placed on record affidavit of one Mandeep Singh Ex. OP1,2/7 and in his affidavit Mandeep Singh alleged that he was appointed by Shriram General Insurance Co. to conduct survey of vehicle bearing No.  PB05-V-9604 owned by Angrej Singh son of Mehar Singh. He also alleged in the said affidavit that he inspected the vehicle and given his survey report which may be read as part and parcel of his affidavit which is Ex. OP1,2/5. It shows that in the written version, the opposite party is alleging the name of surveyor as Jagmohan but has placed on record affidavit of one Mandeep Singh. The opposite party itself is not sure that surveyor appointed by them is Jagmohan or Mandeep Singh.

7        The opposite parties have failed to provide the affidavit of the surveyor (Jagmohan) as alleged in the written version in the absence of which no evidentiary value can be made on the report submitted by the alleged surveyor. Reliance in this connection has been placed upon Manikant Vs. New India Assurance Co.Ltd. 1(2012) CPJ 88 (NC) of the Hon’ble National Commission wherein it has been held that the surveyor did not appear in court and subject himself to cross examination nor was any affidavit filed by him to prove his report . Producing a document in court does not by itself constitute proving the document. It has to be backed by credible evidence. In the instant case, no evidence was led to prove the surveyor’s report in the absence of which the surveyor’s report has little evidentiary value.   Therefore, the Survey Report (Ex.OP-1,2/5) cannot be accepted. Furthermore, the report of surveyor seems to be an incomplete report. As per version of the complainant, he obtained Dep Cap insurance policy from the opposite party with endorsement i.e. IMT 21, IMT- and as per this insurance cover note the opposite party cannot deduct the alleged amount claimed by the complainant and he is entitled for the entire amount which he has claimed in his complaint. The complainant has requested for refund of Rs. 4,96,100/- including Rs. 2,40,000/- as compensation for loss of business of complainant. The amount to the tune of Rs. 2,40,000/- cannot be allowed in favour of complainant as the complainant has failed to place on record any cogent document/ evidence to prove alleged loss of business.  Moreover, the complainant has placed on record bills Ex. C-11 to 15 total of which comes to Rs. 3,30,000/- as such, the complainant is liable to get Rs. 3,30,000/-. As per admission by the complainant in his complaint, the opposite party has made payment of Rs. 73,900/-  on 30.6.2019 which has been adjusted in the loan account of the complainant. As such, now the complainant is entitled to amount of Rs. 2,56,100 (330000-73900) only.  

8        Moreover, it is usual with the insurance company to show all types of green pastures 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. Insurance Company also directed to pay costs of Rs.5,000/- for luxury litigation, being rich. 

9        In view of the above discussion, the present complaint is allowed and the opposite parties is directed to make the payment of. Rs. 2,56,100 (330000-73900) so incurred by the complainant on the report of his insured vehicle. The complainant has also been harassed by the opposite parties for a long time, as such the complainant is also entitled to Rs. 25000/- as compensation on account of harassment and mental agony and 11000/- as litigation expenses. Opposite Parties are directed to comply with the order within one month from the date of receipt of copy of the order, failing which the complainant is entitled to interest @ 9% per annum, on the awarded amount, from the date of complaint till its realisation.  Case could not be disposed of within the stipulated period due to heavy pendency of the cases in this Commission and due to COVID-19. Copies of the order be furnished to the parties as per rules. File is ordered to be consigned to the record room.

Announced in Open Commission

21.09.2023