Punjab

Rupnagar

CC/15/75

Anjana Kumari - Complainant(s)

Versus

Suraj Motors & Anr. - Opp.Party(s)

Sh. Devinder Gorla,Adv.

01 Feb 2016

ORDER

ORDER

                             MRS. NEENA SANDHU, PRESIDENT

                   Smt. Anjana Kumari has filed this complaint under Section 12 of the Consumer Protection Act, 1986 (hereinafter referred to as ‘the Act’) against the Opposite Parties (hereinafter referred to as ‘the O.Ps.’) praying for issuance of the following directions to them:-

i)       To pay Rs.32,300/- towards damage caused to the vehicle/Activa scooter in question, 

ii)      To pay Rs.30,000/- as compensation for the harassment caused to her,

iii)     To pay Rs.20,000/- as litigation expenses.

 

2.                In brief, the case of the complainant is that she had purchased Honda Activa Model -2012 from the O.P. No. 1 in the year 2012, which was got registered with the DTO, Rupnagar vide No. PB-12-Q-7569. At the time of its purchase, it was got insured with the O.P. No. 2 through the O.P. No.1 for the period from 23.10.2013 to 22.10.2014. Lateron, on 23.10.2014, she again got it insured with the O.P. No. 1 and the said policy was valid upto 22.10.2015. It is further stated that on 20.11.2014, she along with her husband was coming from Anandpur Sahib towards Kiratpur Sahib on the said scooter and it was being driven by her husband with proper care & caution, at a normal speed, on the left side of the road. When they reached near Nakkian, the said scooter suddenly slipped, due to which, she & her husband fell down and the said scooter got badly damaged. She had received grievous injuries and had to remain as indoor patient at PGI Chandigarh, for a long period. The matter regarding the said accident was immediately reported to the O.P. No. 2, who had deputed surveyor. The said surveyor came to the spot and inspected the damaged scooter. As per his directions, the said scooter was taken to the O.P. No. 1 for its repair. The O.P. No. 1, after repairing the same charged a sum of Rs.32,300/- from her towards repair charges.  Thereafter, she lodged claim with the O.P. No. 2 and as per its directions furnished/supplied all the necessary documents.  Since the policy was in order and the person, who was driving the scooter at the relevant time, was having a valid driving license, therefore, legally & factually, the O.Ps. were bound to make payment of the damages caused to the said scooter. She had visited the office of the O.P. No. 2, so many times, for settlement of her claim but to no use. The O.Ps. had been putting off the matter on one pretext or other and lastly, the claim has been repudiated vide letter dated 24.6.2015, with the remarks—NCB Allowed but not entitled for. The said act of the O.Ps. amounts to deficiency in service, due to which she has suffered huge loss, mentally, physically as well as financially. Hence, this complaint.

 

3.                On being put to notice, the O.P. No.1 filed written version taking preliminary objections; that the complaint is not maintainable against the answering O.P; that the complainant has not come to the Forum with clean hands and has concealed & misled this Forum; that he has no locus standi to file the present complaint; that answering O.P. had never issued any insurance policy and that after sale of any vehicle, the dealer cannot be held liable for any type of liability. On merits, it is reiterated that the answering O.P. had never issued any insurance policy and it is stated that the answering O.P. is merely a dealer and has no concern with the insurance policy in question and it cannot be held liable in case of any accident of the scooter in question. Rest of the allegations made in the complaint have also been denied and a prayer has been made for dismissal thereof, against the answering O.P., alongwith cost, the same being baseless & without any merit.

 

4.                The O.P. No. 2 filed a separate written version taking preliminary objections; that the complainant has not come to the Forum with clean hands and has intentionally concealed the material facts as she has availed ‘No Claim Bonus’ while obtaining the policy No. 360803/31/14/01/00001436 covering the period from 23.10.2014 to 22.10.2015 by declaring that no claim has been lodged with regard to the said vehicle during the period of earlier insurance policy, whereas she had received one claim under the previous policy, as such, there was gross misrepresentation and withholding of material facts by her, accordingly the claim lodged by her has been closed vide letter dated 24.6.2015 and there has been no deficiency in service on the part of the answering O.P. On merits, the facts stated in the preliminary objections were reiterated and it was admitted that the complainant had lodged claim with regard to the loss dated 20.11.2014, which was reported to the answering O.P. on 13.1.2015. It is stated that it had appointed a surveyor, namely, Er. Satish Malhotra, who has submitted his report, but as the claim was not payable on account of gross misrepresentation of the facts as well as withholding of material information at the time of obtaining the insurance policy in question by the complainant, therefore, the claim was closed vide letter dated 24.6.2015. Rest of the allegations made in the complaint have also been denied and a prayer has been made for dismissal thereof, with costs.

 

5.                On being called upon to do so, the learned counsel for the complainant tendered her affidavit & photocopies of documents Ex.C1 to Ex.C7 and closed the evidence. On the other hand, the learned counsel for the O.P. No. 1 tendered the affidavit of its owner, namely, Sh. Gurpinder Kumar, Ex. OP-1/A, a photocopy of repair bill dated 3.12.2014 Ex. OP-1/B, whereas the learned counsel for the O.P. No. 2 tendered affidavit of Sh. Surinder Pal Sharma, Divisional Manager, Ex. OP-2/1, affidavit of surveyor, namely, Er. Satish Malhotra, Ex.OP-2/2, photocopies of documents Ex. OP-2/3 to OP-2/7 and closed their respective evidence.

6.                We have heard the learned counsel for the parties and gone through the record of the file carefully.

 

7.                Admittedly, the complainant got insured her Honda Activa Model 2012 with the O.P. No. 2 for a sum of Rs.28000/-, for the period from 23.10.2014 to 22.10.2015 vide insurance policy, Ex.C2. It is also admitted fact that the said scooter met with an accident on 20.11.2014 i.e. within the validly period of the said insurance policy and claim was lodged with the O.P. No. 2, but the same was closed as ‘No Claim’ on account of ‘NCB allowed but not entitled for’ vide its letter dated 24.6.2015 (Ex.C4/Ex. OP2/3). From the copy of the insurance policy, Ex. C7, it is apparent that the said vehicle was even got insured with this very insurance company for the previous year also i.e. for the period from 23.10.2013 to 22.10.2014. Since the complainant had got issued the policy for the previous year from the O.P. No.2 itself, therefore, while issuing the instant policy, the O.P. could have checked from its own record and if it was found that she had availed any claim during the previous year, then it would not have allowed her to avail the benefit of 20% NCB. Even otherwise, as a matter of fact, no such document has been placed on record by the O.P. No. 2 to prove that actually the complainant had taken any claim during the validity period of the previous policy and had availed NCB (20%) in the instant policy by misrepresentation/concealing the said fact, therefore, in the absence of any documentary proof, we do not find any substance in the said contention and hold that the O.P. No.2 is liable to indemnify the complainant for the loss occurred to the vehicle in question, as per terms & conditions of the policy.

 

8.                Now the question for consideration before us is as to what should be the quantum of indemnification?  

                   On lodging of accidental claim qua the scooter in question by the complainant, a surveyor was duly appointed by the O.P. No.2, who submitted his report (Ex.OP2/4). The said surveyor has assessed the loss to the tune of Rs.19,473/- and after deducting a sum of Rs.100/- under Excess Clause and another sum of Rs.930/- on account of salvage value has assessed the net liability of the insurer as Rs.18543/-. The said report is a detailed one and the same being an important document for assessing the actual loss suffered by the complainant, can easily be relied upon. Therefore, the O.P. No.2 is liable to pay the claim amount of Rs.18543/-, as assessed by the surveyor, alongwith interest from the date of repudiation of the claim i.e. 24.6.2015 till realization. As the O.P. No. 2 has failed to pay the claim amount till date, therefore, it has committed deficiency in service. Consequently, it is also liable to pay compensation on account of mental agony & physical harassment suffered by her alongwith litigation expenses. So far as the complaint filed against the O.P. No.1 is concerned, neither any deficiency in service on its part has been alleged in the complaint nor the same has been proved on record, therefore, the same is liable to be dismissed against it. Moreover, the claim amount is to be paid by the insurer i.e. O.P. No. 2 only.

 

9.                In view of the aforesaid discussion, we dismiss the complaint against the O.P. No. 1 and allow the same against the O.P. No. 2 with directions to it in the following manner:-

                   i)       To pay the claim amount of Rs.18543/- to the

                             complainant alongwith interest @ 9%  P.A. w.e.f.

                             24.6.2015 till realization,

 

                   ii)      To pay Rs.3000/- as compensation,

 

                   iii)     To pay Rs.5000/- as litigation expenses.

 

The O.P. No. 2 is further directed to comply with the above said directions within 45 days from the date of receipt of certified copy of this order.

10.              The certified copies of this order be supplied to the parties forthwith, free of costs, as permissible under the rules and the file be indexed and consigned to the Record Room.

 

ANNOUNCED                                           (NEENA SANDHU)

Dated          01.02.2016                                                 PRESIDENT

 

 

                                                (SHAVINDER KAUR)

                                                                    MEMBER.