Punjab

Ludhiana

CC/19/124

Ram Labhaya - Complainant(s)

Versus

Tata AIG Gen.Insurance Co.Ltd. - Opp.Party(s)

Yashwant Singh Adv.

25 Jan 2023

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, LUDHIANA.

                                                Complaint No: 124 dated 01.03.2019.                                                        Date of decision: 25.01.2023.

 

Ram Lubhaya son of Shri Arjan Dass, r/o. House No.145, Street No.1, Karamsar Colony, Ludhiana.                                                                                                                                                             ..…Complainant

                                                Versus

1. Tata AIG General Insurance Company Ltd., 1/F, Dashmesh Complex, SCO-668, Pakhowal Road, Ludhiana through its Manager.
2. IndusInd Bank Limited, SCO 12-13, 3^rd Floor, Canal Colony, near Nehru Sidhant Kendre Pakhowal Road, Ludhiana through its Manager.
3. Tata Workshop, Mehndipur, near Khanna through its Manager.                                                                                    …..Opposite parties 

Complaint Under Section 12 of the Consumer Protection Act.

QUORUM:

SH. SANJEEV BATRA, PRESIDENT

SH. JASWINDER SINGH, MEMBER

MS. MONIKA BHAGAT, MEMBER

 

COUNSEL FOR THE PARTIES:

For complainant             :         Sh. Jaswant Singh Cheema, Advocate.

For OP1                         :         Sh. Rajeev Abhi, Advocate.

For OP2                         :         Exparte.

For OP3                         :         Sh. Inder Mohan Pal Singh, Law officer.

 

ORDER

PER SANJEEV BATRA, PRESIDENT

1.                Briefly stated, the facts of the complaint are that the complainant is the owner of Tata ACE goods carrying vehicle bearing registration No.PB-10-GK-1918 having model 2017. The vehicle was new one and was comprehensively insured with opposite party No.1 vide policy No.0146363409 w.e.f. 05.09.2017 to 04.09.2018 covering the risk of Rs.4,12,425/- with premium of Rs.23,690/-. The said vehicle was got financed from opposite party No.2 and the complainant has been paying the installments regularly. The said vehicle was being driven by Sh. Ragneesh Kumar son of Sh. Kamal Krishan, permanent resident of VPO Lakhanpal, District Gurdaspur and now resident of Rajiv Gandhi Colony, Focal Point, Ludhiana. The said vehicle met with an accident on 27.11.2017 near village Khara, Faridkot when it was coming back from Ganganagar to Ludhiana as some stray animal suddenly came in front of the vehicle. Anil Kumar son of the complainant was also sitting on the left side of the driver seat. In the said accident, the total front of the vehicle has been damaged. Ragneesh Kumar driver of the vehicle lodged report No.21 on 29.11.2017 at P.S. Sadar, Faridkot. The complainant also gave intimation to opposite party No.1. Since no loss of life was involved so no FIR was lodged and only report was lodged.  Opposite party No.1 deputed surveyor for the assessment of the loss who inspected the vehicle at the spot and took photographs of the damaged vehicle. All the documents were handed over to the surveyor at the time of inspection of the vehicle. Thereafter, the complainant lodged the claim with opposite party No.1 along with relevant papers. The complainant in order to get the vehicle repaired, parked Tata Workshop, Mehndipur, near Khanna who prepared the estimate of Rs.2,50,000/-  as repair charges. The complainant informed the opposite party No.1 but it failed to pay the amount and the said vehicle is lying parked in the damaged condition in the said workshop where the owner was demanding rent of the parking of vehicle without repair. The complainant requested opposite party No.2 that the vehicle was met with an accident and the same is parked at opposite party NO.3 for repair and also requested that he will pay the due installments after repair of the vehicle. The complainant also lodged the insurance claim with opposite party No.1. The complainant has been approaching office of opposite party No.1 for payment to the workshop but the officials of opposite partyNo.1 are delaying the payment on one excuse or the other. The complainant also requested that he is suffering loss of Rs.2000/- per day due to non-plying of the vehicle and due to which he could not repay the installment to financer opposite party No.2 since the accident. The complainant stated that opposite party No.2 has been sending notices for demanding overdue amount with interest @3% per month. The complainant also served a legal notice dated 30.04.2018 upon opposite partyNo.1 but with no result. The complainant further stated that opposite party No.2 has illegally and forcibly taken the said vehicle from the workshop of opposite party No.3 without his knowledge and consent and in connivance with opposite part No.1 and 3.  This amounts to deficiency in service and unfair trade practice on the part of the opposite party due to which the complainant has suffered mental pain, agony and harassment for which the complainant is entitled for compensation of Rs.1,00,000/-. In the end, the complainant has prayed for issuing direction to opposite party No.1  to make the payment of Rs.2,50,000/- along with interest at the rate of 18% per annum along with damages of Rs.2000/- per day since 27.11.2017 and to pay compensation of Rs.1,00,000/-. The complainant has also prayed for issuing direction to opposite party No.2 to return the aforesaid vehicle to the complainant in the same condition which was taken from the workshop of opposite party No.3 and to pay compensation of Rs.1,00,000/-. The complainant has further prayed for issuing direction to opposite party No.3 to return the vehicle to the complainant after repair which was taken from the complainant and also to pay compensation of Rs.1,00,000/-. The complainant also prayed for issuing direction to the opposite parties for paying Rs.10,000/- as litigation expenses.

2.                Notice was sent to opposite party No.2 through registered post on 2.06.2019 but none turned up for opposite partyNo.2 and as such, opposite party No.2 was proceeded against exparte vide order dated 24.10.2019.

3.                Upon notice, opposite party No.1 appeared and filed written statement by taking preliminary objections that the complaint is barred  under section 26 of the Consumer Protection Act, the complaint is not maintainable and the complainant has not come to the court with clean hands and has suppressed the material facts. The complainant is stopped by his own act and conduct and has no locus standi to file the present complaint. Opposite party No.1 alleged that immediately on receipt of the claim, it was duly registered, entertained and processed. The complainant has obtained Auto Secure-Commercial Vehicle Package Policy from opposite party no.1 vide No.0146363409 w.e.f. 05.09.2017 to 04.09.2018 in his name insuring the new vehicle ACE HT Face Lift High Desk BS4. The claim for damages to the said vehicle alleged to have occurred in accident dated 27.11.2017 was reported by the repairer of the complainant’s choice i.e. Dada Motors Pvt. Ltd., Ludhiana on 02.12.2017 after the delay of five days from the date of alleged accident and the name of the driver at the time of accident was stated as Rajneesh Kumar at the time of intimating the claim. The delay in intimating the claim amounts to breach of policy condition No.1 read with condition No.8 which is reproduced as under:-

“Notice shall be given in writing to the company immediately upon the occurrence of any accidental loss or damage in the event of any claim and thereafter, the insured shall give all such information and assistance as the company shall require. Every letter, claim, writ, summons,  and/or process or copy thereof shall be forwarded to the company immediately on the receipt by the insured. Notice shall also be given in writing to the company immediately the insured shall have knowledge of any impending prosecution/inquest or fatal enquiry in respect of any occurrence which may give rise to a claim under this policy. In case of theft or criminal act which may be a subject matter of claim under the policy the insured shall give immediate notice to the police and cooperate with the company in securing the conviction of the offenders.”

Condition No.8

“The due observance and fulfillment of the terms, conditions, endorsements of this policy in so far as they relate to anything to be done or complied with by the insured shall be a  condition precedent to any liability of the company to make any payment under this policy.”

Opposite party No.1 further alleged that on receipt of claim intimation, it deputed an IRDA licensed surveyor and loss assessor Mr. Maninder Pal Singh to conduct spot survey and also deputed an IRDA licensed surveyor Mr. Yogesh Kochhar to inspect the loss and conduct final survey. The opposite partyNo.1 also deputed an independent investigator M/s.Royal Associates Investigation & Detective Agency to verify the genuineness of the claim. In the investigation report dated 30.01.2018 the following observations were made:-

1. At the time of claim intimation the driver name was mentioned as Rajneesh Kumar and the cause of loss as per claim for is that the insured vehicle met with accident due to stray animal coming in front of the vehicle resultantly the vehicle lost control and hit the road side tree.
2. Mr. Ram Lubhaya s/o. Sh. Arjan Dass is resident of Karamsar Colony, Gali No.1m, Plot No.155, Basti Jodhewal, Ludhiana. He is actual and registered owner of Tata ACE No.PB-10-GK-1918. It is being used to hire and reward for caring goods in Punjab as it is having Punjab permit only. His younger son Anil Kumar used to drive it.
3. On 27.11.2017, Anil Kumar was driving Tata ACE towards Ludhiana from Ganga Nagar. He was coming from Ganga Nagar after unloading a machine there. Tata ACE was empty at that time and he was alone in it. On the way at about 04.30 a.m. near Kotkapura it met with accident.
4. Anil Kumar sustained grievous  injuries in accident. He was pulled out from Tata Ace by villagers and taken to Civil Hospital, Kotkapura. He made phone call to his family, who reached there and brought him to Ludhiana in some other hospital. No other vehicle was involved in accident. No other person sustained injury in accident. 
5. Matter was reported to police station Sadar Kokapura and DDR No.021 dated 2.11.2017 was lodged on the complaint of Mr. Rajneesh Kumar. As per DDR, Tata ACE No.PB-10-GK-1918 was driven by driver and Anil Kumar was sitting on conductor seat. Tata ACE met with accident due to coming of stray animals in front of the vehicle. Driver fell down from Tata ACE and Anil sustained injuries. Police has not lodged any FIR in this case.
6. As per claim intimation and other papers submitted by insured, Tata ACE was driven by Rajneesh Kumar, but Rajneesh Kumar himself lodged DDR in which he claimed that Tata ace was driven by Driver. So there is no question of Rajneesh being driver of Tata Ace. He was not even present in Tata ACE at that time.
7. Insured himself confessed in the statement signed by him on 18.01.2018 and given to investigator that his son Anil Kumar was driving Tata Ace and he was alone in it at the time of accident. Even Anil Kumar confessed in his statement ct. 18.01.2018 that he was driving Tata ACE at the time of accident and was alone in it. So there is no question of Tata ACE being driven by Rajneesh Kumar. In fat it was driven by Anil Kumar and he was alone in it.
8. The investigator submitted his report stating that the insured has concealed the name of driver and the true fact is that the vehicle was being driven by Mr. Anil Kumar at the time of accident.

Opposite party No.1 further alleged that owing to said findings of the investigator, the repairs to the vehicle was not authorized by the surveyor Mr. Yogesh Kochhar. However, the said surveyor assessed the loss to the tune of Rs.1,92,134/- basis the spot survey report dated 01.12.2017, physical inspection of the vehicle and estimate submitted. The investigator in his report dated 21.03.2018 refereed to the DDR (where Mr. Rajneesh has mentioned that at the time of accident there was a driver present in the vehicle and Mr. Anil Kumar was sitting next to driver) and mentioned in his report that from the state of vehicle, it is hard to believe that the driver was unhurt and the person sitting next to him sustained grievous injuries. Opposite party No.1 further alleged that  as per the investigation report and surveyor report, it was observed that the complainant/insured has concealed the true facts of the accident and registered the claim by giving false information of driver name and by impleading wrong driver in order to obtain claim amount from it wrongfully. Even the column under the head “Details of the Driver” is lying blank in the claim form submitted by the complainant under his signatures and he was called upon vide letter dated 06.03.2018 to show cause that as to why the said claim should not be repudiated under for giving false declaration but the complainant has failed to give the reply to the letter dated 06.03.2018. Thereafter, opposite party No.1 sent letter dated 13.04.2018 expressing its inability to entertain the claim on the above mentioned grounds and the claim of the complainant was treated as repudiated. Opposite party No.1 has further alleged that the claim of the complainant has been rightly repudiated on legal and valid grounds as per terms and conditions of the policy. Complicated question of law and fats is involved which required elaborate evidence both oral and documentary and only civil court has competent jurisdiction to try and decide the present complaint.

                   On merits, opposite party No.1 reiterated the crux of averments made in the preliminary objections. Opposite party No.1 further submitted that as per the investigation report of M/s.Royal Associates investigating and detective agency dated 30.01.2018 and as per statement given by the complainant, Anil Kumar son of Ram Lubhaya, Pawan Kumar son of Babu Ram and Mr. Joginder Singh son of Channu Ram to the investigator, it is evident that Mr. Anil Kumar son of Ram Lubhaya was driving the vehicle at the time of accident and he was alone in the insured vehicle and sustained injuries in the accident. He was taken to Civil Hospital, Kotkapura and as per DDR Rajneesh Kumar is shown as driven in intimation  to the police at the time of lodging the DDR whereas he stated that insured vehicle was driven by driver who fell out of the vehicle at the time of accident. Opposite partyNo.1 further submitted that there is concealment of fact regarding name of the person who was driving the vehicle at the time of accident. Opposite party No.1 has  denied that there is any deficiency of service and has also prayed for dismissal of the complaint.

4.                Opposite party No.3 appeared and filed a separate written statement by taking preliminary objections on the ground of maintainability of complaint, concealment of material facts and lack of cause of action. Opposite party No.3 alleged that the complainant brought his vehicle Tata ACE for accidental repairs on 29.11.2017. The vehicle was insured with Tata AIG GIC and the complainant lodged the insurance  claim with insurance company. There was a dispute of insurance claim between insured and insurer. The insurance company refused to pay the insurance claim of the vehicle. Opposite party No.3 further alleged that it offered the complainant to repair the vehicle on payment but the complainant refused to get the vehicle repaired on payment. On 13.04.2018, opposite party No.3 received email from Mr. Chandan Yadav, Hub Head (SCV) of IndusInd Bank who intimated that the complainant has surrendered his vehicle to finance company as he failed to pay the installments. Later on opposite party No.2 deposited copy of surrender letter to opposite partyNo.3 and took possession of the vehicle. Opposite party No.3 further alleged that it was always ready to repair the vehicle of the complainant but it was the complainant who himself failed to get the vehicle repaired on payment and now has filed the complaint after surrendering the vehicle to financer of the vehicle IndusInd bank.

                   On merits, opposite party No.3 reiterated the crux of averments made in the preliminary objections and has denied that there is any deficiency of service and has also prayed for dismissal of the complaint against it.

5.                In support of his claim, the complainant tendered his affidavit Ex. CW1/A in which he reiterated the allegations and the claim of compensation as stated in the complaint along with affidavit Ex. CW2/A of Sh. Ragneesh Kumar son of Sh. Kamal Krishan. The complainant also tendered documents Ex. C1 is the copy of driving licence of Ragneesh Kumar, Ex. C2 is the copy of registration certificate No.PB-10-GK-1918, Ex. C3 is the copy of certificate of exemption dated 17.10.2017, Ex. C4 is the copy of insurance certificate w.e.f. 05.09.2017 to 04.09.2018, Ex. C5 is the copy of DDR No.21 dated 29.11.2017, Ex. C6 is the legal notice dated 30.04.2018, Ex. C7 is the postal receipt, Ex. C8 to Ex. C11 are the photographs of the damaged vehicle, Ex. C12 is the copy of aadhar card of the complainant, Ex. C13 is the cop of adhar card of Ragneesh Kumar and closed the evidence.

6.                On the other hand, counsel for opposite party No.1 tendered affidavit Ex. RA of Sh. Rohit Udaiwal, Associate Vice President-Auto Claims of opposite party No.1, affidavit Ex. RB of Sh. Kashmir Singh, Prop. Of M/s. Royal Associates, Investigating and Detective Agency, affidavit Ex. RC of Sh. Yogesh Kochhar, an IRDA licensed Surveyor and loss assessor, affidavit Ex. RD of Sh. Maninder Pal Singh, Licensed surveyor and loss assessor along with documents Ex. R1 is the copy of policy details, Ex. R2 is the copy of first notification loss report, Ex. R3 is the copy of claim form, Ex. R4 is the copy of DDR No.21 dated 29.11.2017, Ex. R5 is the copy of statement of Ram Lubhaya, Ex. R6 is the copy of statement of Anil Kumar, Ex. R7 is the copy of investigation report dated 30.01.2018, Ex. R8 is the copy of motor(spot) survey report dated 01.12.2017, Ex. R9 is the copy of motor (independent) survey report dated 21.03.2018, Ex. R10 is the copy of letter dated 06.03.2018 issued to the complainant by opposite party, Ex. R11 is the copy of statement of Joginder Pal son of Channu Ram and closed the evidence.

                    The counsel for opposite party No.3 tendered affidavit Ex. RA3 of  Sh. Inder Mohan Pal Singh, Law Officer of Dada Motors Pvt. Ltd., Ludhiana  along with documents Ex. OP3/1 is copy of resolution dated 0201.2020, Ex. OP3/2 is the cop of surrender letter, Ex. OP3/3 is the copy of email dated 06.01.2020, Ex. OP3/4is the copy of vehicle register of Dada Motors Pvt. Ltd. and closed the evidence.

7.                We have heard the arguments of the counsel for the parties and also gone through the complaint, affidavit and annexed documents and written reply along with affidavit and documents produced on record by both the parties.      

8.                The vehicle Tata ACE goods carrying vehicle which was comprehensively insured at the time of the accident on 27.11.2017 near village Khara, Faridkot. As per initial version of the complainant, it was driven by Sh. Ragneesh Kumar and Anil Kumar son of the complainant was sitting beside him in the vehicle itself. The claim was lodged on 02.12.2017. The opposite parties deputed IRDA approved surveyor and loss assessor Mr. Maninder Pal Singh and Mr. Yogesh Kochhar to conduct the spot survey and also availed services of independent investigator M/s. Royal Associates Investigation & Detective Agency to verify the genuineness of the claim. Further perusal of scrutiny of the reports of the aforesaid surveyor and investigator shows that the opposite parties concluded that the vehicle was driven by Mr. Anil Kumar at the time of the accident and as such, there is a concealment of facts on the part of the complainant and as such, the claim is not payable to the complainant and refused to entertain the claim.

9.                Admittedly, Anil Kumar was present in the vehicle at the time of the accident and he also sustained injuries. This fact also finds corroboration from the statement of the complainant (Ex. R5) and that of Anil Kumar (Ex. R6). The opposite parties have been able to prove the fact that Anil Kumar son of the complainant was driving the vehicle at the time of the accident and he remained hospitalized in different hospitals for about a month. His driving licence was also examined by the investigator and the surveyor and as per the licence of Anil Kumar, it was valid till 10.03.2037 for non-transport vehicles having class LMV and MCWG.

10.              In this case, the claim in respect of the accident of the insured vehicle has been repudiated vide letter dated 13.04.2018  (Ex. R9 and Ex. R10) on the ground that the vehicle was being driven by Anil Kumar. The opposite parties could have examined and scrutinized the claim case from another ange. Anil Kumar was holding a driving licence which was valid only for MCWG and LMV and being the driver of the vehicle, he was not competent to drive the vehicle. The driving licence of Anil Kumar is available on the file as Ex. R6. As per registration certificate Ex. C2 of the insured vehicle, the unladen weight of the vehicle is 720 Kg and the class of the vehicle is mentioned as LGV (Light goods vehicle). In Mukund Dewangan Vs Oriental Insurance company Limited-Law Finder Doc Id#881800 (Civil Appeal No.5826 of 2011, decided on 03.07.2017 (S.C.) it has been held by the Hon’ble Supreme Court of India that Light Motor Vehicle as defined in Section 2(21) of the Motor Vehicles Act, 1988 would include a transport vehicle as per the weight prescribed in Section 2(21) read with Section 2(15) and 2(48). It was further held that such transport vehicles are not excluded from the definition of the light motor vehicle by virtue of Amendment Act No.54/1994. It was further held that a transport vehicle and omnibus, the gross vehicle weight of either of which does not exceed 7500 KG would be a light motor vehicle and also motor car or tractor or a road roller, ‘unladen weight’ of which does not exceed 7500 Kg and holder of a driving licence to drive class of ‘light motor vehicle’ as provided in Section 10(2) (d) is competent to drive a transport vehicle or omnibus and no separate endorsement on the licence is required to drive a transport vehicle or light motor vehicle class. In the instant case also, the gross weight of the vehicle, as stated above, is 720 Kg which is less than 7500 Kg. Therefore, as per the law laid down by the Hon’ble Supreme Court of India in the above cited case, it was not required that the driver must possess a driving licence having endorsement of transport vehicle and even if the driver holds a licence to drive LMV he was competent to drive the vehicle in question. Therefore, the repudiation of the claim on the ground that the driver was not competent to drive the vehicle in question on the basis of his licence Ex. R6 cannot be justified especially in the light of the law laid down in the afore cited case by the Hon’ble Supreme Court of India. Therefore, the repudiation of the claim cannot be sustained in the eyes of law and is hereby set aside.

11.              It is not disputed that in this case after the receipt of the claim, a surveyor  was appointed by opposite party No.1 and in his report Ex. R9, the surveyor Mr. Yogesh Kochhar has assessed the loss at Rs.1,92,134/-. The report Ex. R9 has not been challenged by the complainant on any ground nor any evidence has been led by the complainant to prove that the report is faulty for some reason or the other. In these circumstances, it has to be held that opposite party No.1 shall be liable to pay the claim which has been assessed by the surveyor vide his report Ex. R9.

12.              As a result of above discussion, the complaint is partly allowed with an order that opposite party No.1 shall pay the claim of Rs.1,92,134/- to the complainant as per survey report Ex. R9 within 30 days from the date of receipt of copy of order failing which the complainant shall be held entitled for interest @8% per annum from the date of order till actual payment. However, there shall be no order as to costs. The complaint as against opposite party No.2 and 3 is hereby dismissed. Copies of the order be supplied to the parties free of costs as per rules. File be indexed and consigned to record room.

13.              Due to huge pendency of cases, the complaint could not be decided within statutory period.

 

(Monika Bhagat)          (Jaswinder Singh)                      (Sanjeev Batra)                          Member                            Member                                      President         

 

Announced in Open Commission.

Dated:25.01.2023.

Gobind Ram.

 

 

Ram Lubhaya Vs Tata AIG GIC                            CC/19/124

Present:       Sh. Jaswant Singh Cheema, Advocate for complainant.

                   Sh. Rajeev Abhi, Advocate for OP1.

                   OP2 exparte.

                   Sh. Inder Mohan Pal Singh, Law officer for OP3.

 

                   Arguments heard. Vide separate detailed order of today, the complaint is partly allowed with an order that opposite party No.1 shall pay the claim of Rs.1,92,134/- to the complainant as per survey report Ex. R9 within 30 days from the date of receipt of copy of order failing which the complainant shall be held entitled for interest @8% per annum from the date of order till actual payment. However, there shall be no order as to costs. The complaint as against opposite party No.2 and 3 is hereby dismissed. Copies of the order be supplied to the parties free of costs as per rules. File be indexed and consigned to record room.

                

(Monika Bhagat)          (Jaswinder Singh)                      (Sanjeev Batra)                          Member                            Member                                      President         

 

Announced in Open Commission.

Dated:25.01.2023.

Gobind Ram.