ORDER
(Passed this on 29 th September, 2016)
Shri Shekhar P. Muley, President.
01. The complaint is regarding unfair trade practice by the Opposite Parties in repudiating the insurance claim of the complainant
02. The Opposite Parties are Shriram General Insurance Companies and are engaged in insurance business. OP 1 is a Head office and OP 2 and 3 are its branch offices. The complainant is engaged in self employment. In order to avail re finance on his Excavator Loaders bearing No. MH-40-A 3067 he had approached the OP3, who agreed to advance finance of Rs. 8.50 lakh. Accordingly he and OP 3 executed an agreement on 20.8.2010. The complainant agreed to repay the amount with interest by equal monthly installment of Rs. 33,482/-. The OP 3 itself purchased insurance policy for the financed vehicle by debiting premium amount to his a/c and comprehensive policy was issued. The policy period was from 5.12.2011 to 4.12.2012 and
IDV was Rs.10 lakh. The OP 1 and 2 did not furnish policy certificate, schedule, and terms and conditions to him. Only the certificate of insurance was given, that too at much later date.
03. During subsistence of policy the vehicle met with an accident on 14.7.2012 and sustained heavy loss. The incident was reported to police and also to the OP 2 and 3. Thereupon the OP 2 directed him to arrange for spot photographs of the damaged vehicle and thereafter to move it for repairs. The claim was registered by the OP 1 and 2. After spot photos the vehicle was removed to Indian Engineering work, Nagpur. He spent Rs.1000/- for photos. The claim form was submitted with all documents to OP 2 on 17.7.2012 for Rs. 8.91 lakh. Thereupon a surveyor was appointed to assess the loss. After inspection by him the complainant was allowed to repair the vehicle. After about 10 days the surveyor again visited the garage when repairs were in final stage and informed the complainant that he would have to take approval from the company for replacement of a few damaged parts which were already replaced with new parts. He asked the complainant to stop further repairs until approval received from the OP 1 and 2. He then sent a letter to OP1 and 2 informing of the circumstances and said that the vehicle was his source of income and being off road he was losing Rs.3500/- per day besides paying loan installments. Hence it was requested to approve replacement within 2 days else he would repair it for which they would be liable. But there was no response. So he resent one letter but to no avail. The vehicle was again reinspected. Then on 11.9.2012 he
received a letter from the OP1 and 2 asking him to get the vehicle reinspected to enable them to release the claim. It was further alleged that when the surveyor visited the garage the vehicle was not there and no re inspection of replaced damaged parts could be made and if they did not receive reply within 7 days it would be presumed that he was not interested. He then by letter dated- 12.9.2012 informed the OP1 that re inspection was done on 7.9.2012 and intimation to OP 1 was given by letter dated- 10.9.1012. He incurred expenses of Rs.6,00,591/- of which bills and receipts were given to the surveyor. Instead of indemnifying him the OP 1 and 2 rejected his claim on various grounds. The OP 3 who unilaterally purchased the policy for the vehicle from the OP 1 and 2 has benefited their business and also pocketed commission from OP 1 and 2. Hence, the OP 3 was bound to co-operate and provide all assistance to him to get his claim settled from the OP 1 and 2. But the OP 3 failed to do that and is thus guilty of deficiency in service along with the OP 1 and 2. Hence, he has prayed to direct the OP to pay him Rs.6,00,591 with 18% interest from 16.7.2012, compensation Rs.1 lakh and cost Rs. 25,000/-
04. OP 1 and 2 filed reply with preliminary objections of suppression of material facts and not approaching the forum with clean hands. It is stated that he failed to take proper care of the vehicle from loss or damage and thus committed breach of condition. The incident was intimated to the OP after 3 days. He had approached them for policy and on payment of premium it was issued with terms and conditions. The policy schedule and
bond were given to him. It is denied that no terms and conditions were provided and he never complained about that till his claim was rejected. The vehicle met with an accident but did not sustain heavy loss. It is denied that incident was immediately intimated to them. It is denied that the OP 1 directed him to arrange for spot photos. He himself without intimating them lifted the vehicle for repairs. A surveyor was appointed but he did not tell him to carry out repairs. It is denied that the surveyor revisited the garage and asked him not not to do further repairs till he got approval from them. The letter by him is also denied. It is denied that he incurred Rs. 6,00,591/-. Denying each and every allegations it is prayed to dismiss the complaint.
05. OP 3 filed reply and admitted that it has advanced re-finance of Rs. 8.50 lakh on the said vehicle and accordingly agreement was executed. It is denied that the OP3 itself approached him and purchased the policy. Intimation of loss was given to it. It is denied that it received any commission on the policy. It is also denied that it did not provide any assistance to the complainant to get the claim. Denying all other allegations, it is prayed that the complaint be dismissed.
06. We have heard learned counsels for both the parties. Perused documents. After considering the submissions, facts, and documents, we record our findings for the following reasons.
FINDINGS AND REASONS
07. The claim of the complainant was repudiated on various grounds, which can be found enumerated in a letter dated- 19.9. 2012 filed as document No.13. The grounds were following,
- belated intimation of accident in violation of condition no.1,
- not giving an opportunity to inspect the vehicle at the accident spot,
- carried out major repair work of the vehicle without OP’s consent,
- during final survey the vehicle was in dismantled condition with major repairs done prior to inspection and without approval of the Surveyor,
- previous year policy of the vehicle not supplied,
- sold out salvage without consent,
7) not providing the vehicle with damaged parts for
inspection, and
8) driving license of the driver was invalid to drive the
class of vehicle.
08. According to the complainant he has complied all the requirements and in spite of that the claim was repudiated on above stated false reasons. The OPs in order to support their defence have filed an affidavit of the Surveyor, Mr. Anurudhha Joshi. The counsel for the complainant has crossed examined him.
09. In notes of argument the learned counsel for the complainant has alleged that the written reply filed on behalf of the OP’s 1 and 2 is signed by one Vishal Gupta. However, it is not stated that he is authorised to sign and affirm the said reply. The OP’s 1and 2 have filed Vakalatnama by which one Vikas Goyal has been made authorised signatory by them. But the written reply filed by the OPs 1 and 2 is signed by one Vishal Gupta on their behalf. Thus it is quite clear that Vishal Gupta is not an authorised signatory nor has been authorised to file written reply by the OP’s 1 and 2 on their behalf. There is no seal of the OP’s 1 and 2 on the written reply. In such circumstances we find it difficult to accept this written reply as that of the OP’s 1 and 2. In this view of the matter, it must be presumed that there is no defence of the OP’s 1 and 2 to the complaint. We, therefore, cannot take into consideration the written reply filed by Vishal Gupta as that of the OP’s 1 and 2.
10. It may be noted that the Surveyor Anirudha Joshi has assessed the loss at Rs. 2,20,016/-. His survey report is filed by the OP’s. His affidavit is also filed. He was allowed to be cross examined by the complainant. His cross examination reveals that he did not instruct anyone to draft his affidavit, which was prepared by the OP1. He did not even read its contents nor is aware whether it has been notarized. The survey report, purported to be prepared by him, does not bear his signature. As far as assessment is concerned, he said that he does not remember whether he inspected the bills of spare parts and lab our charges in respect of the vehicle. He did not deny that the complainant had spent Rs.6,00,591/- and its bills were also shown to him. He further said that he followed prevalent market trend to assess cost of labour, but he admitted having no evidence nor did he collect quotations in that respect. The evidence of the Surveyor shows no proper basis or method for assessment of compensation. The survey report is not binding upon any party nor on the forum. We can assess compensation independently.
11. There are receipts and bills on record, which are not denied by the complainant. The total bill amount comes to Rs.4,08,491/-. From this amount Rs. 5000/- will have to be deducted for Excess Clause as per policy terms and salvage value Rs. 12,000/-. Because the complainant has not clarified what he did about the salvage. Thus total amount comes to Rs. 3,91,491/-.
12. Though it is not necessary to consider the reply of the OP’s 1and 2, we would like to comment on one more point about invalid driving license, which was also held to be a reason to repudiate the claim. Because it being a law point it is necessary to examine it. The complainant has filed registration certificate of the vehicle which reveals that it was registered as LMV (JCB Excavator Loader). Its unladen weight is 7460 Kg. The driver was having
driving license for LMV Transport Goods. The RTO has informed the complainant by letter (docu. no.15) the said vehicle is registered under Non Transport category class and license required to drive the said vehicle depends upon unladen weight. As per section 2 (21) LMV means a transport vehicle, the unladen weight of which does not exceed 7,500 Kg. So unladen weight of the vehicle in question being less than 7500 Kg, it was in the category of LMV for which the driver had valid license. Hence, this objection is found to be without merits.
13. In absence of valid defense from the OP’s 1 and 2, the allegations made by the complainant has no challenge and are therefore deserved to be allowed. The complainant has filed his affidavit in support of the complaint. There is no other legal bar or impediment like limitation in allowing the claim. The role of the OP3 is related to repudiation of the claim, though it is alleged that it has collected commission on selling policy to the complainant. There is no such evidence. Hence, the OP 3 has to be discharged. Under these circumstances, we allow the complaint and pass the following order.
ORDER
(1) The complaint is partly allowed.
(2) The OP’s 1 and 2 jointly and severally shall pay an amount of Rs. 3,91,491/-(In words Three lakh Ninety One Thousand Four Hundred Ninety One only) along with 9% p.a. interest from 17.8.2012 till full realisation.
(3) The OP’s 1 and 2 shall also jointly and severally pay compensation of Rs.25,000/- (In words Twenty Five Thousand only) for mental and physical harassment and litigation cost Rs. 5000/- (In words Five Thousand only)
(4) Order shall be complied within 30 days from the date of receipt of the order.
(5) Complaint is dismissed against OP. 3
(6) Copy of the judgment shall be given to both the parties free of cost.
