New Complaint No.229 of 2023.
Date of Institution: 26.10.2023.
Old Complaint No: 275 of 2018.
Date of Institution: 21.06.2018.
Date of order:01.12.2023.
Junas Masih aged about 54 years Son of Chirag Masih, resident of Village Dhidowal Tehsil and District Gurdaspur.
…..........Complainant.
VERSUS
1. The New India Assurance Company Ltd. HO, New India Assurance Building 87, M.G. Road, Fort, Mumbai – 400001, through its M.D.
2. Branch Manager The New India Assurance Company Ltd. Branch Office SCF 179-180, Jalandhar Road Batala, District Gurdaspur.
3. Mr. V.K. Mehta, Insurance Surveyors and Loss Assessors Pvt. Ltd. 94, Lawrence Road, Amritsar.
….Opposite parties.
Complaint Under section 12 of the Consumer Protection Act.
Present: For the Complainant: Sh.Paul Sandhu, Advocate.
For the Opposite Parties: Sh.Rajesh Kapoor, Advocate.
Quorum: Sh.Lalit Mohan Dogra, President, Sh.Bhagwan Singh Matharu, Member.
ORDER
Lalit Mohan Dogra, President.
Junas Masih, 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 The New India Assurance Co. Ltd. Etc. (here-in-after referred to as 'opposite parties).
2. Briefly stated, the case of the complainant is that the complainant is registered owner of TATA Sumo Grande bearing Registration No.PB-02-Z-5051. It is further pleaded that the above said vehicle was fully insured with the OP’s No. 1 and 2 for the period from 16.04.2016 to 15.04.2017 Mid Night. It is pleaded that on 10.09.2016, the above said insured vehicle met with an accident near Military Training School Adda Harcharan Pura, Aliwal Road within jurisdiction of P.S. Sadar Batala and regarding this accident the complainant lodged report with the police and in this respect a report bearing GD No. 18 dated 13.09.2016 has been entered by the police of P.S. Sadar Batala. It is further pleaded that immediately, after the accident, the complainant gave information to the OP’s No. 1 and 2 and requested for appointing Surveyor for assessing loss suffered by the complainant. It is further pleaded that the OP’s No. 1 and 2 appointed the OP No. 3 as Surveyor for assessing loss and insured vehicle of the complainant was sent to the Delhi Motor Garage, Jalandhar Road Batala for repair / loss assessment. It is further pleaded that the complainant submitted his claim, to the OP’s No. 1 and 2 alongwith necessary documents and requested the OP’s to start the repair work. It is further pleaded that the OP No. 3 kept on delaying the matter on one pretext or the other and did not give permission to the proprietor of the above mentioned workshop to repair the vehicle of the complainant. It is further pleaded that in this way the complainant is suffering irreparable loss. It is further pleaded that the complainant is a business man and he is also a transporter and also running Commission Agent shop and complainant is Income Tax Assesse. It is further alleged that the complainant is paying repeated visits to the offices of the OP’s No. 2 and 3 with request to do the needful, but the OP’s are putting the complainant off and on with one or the other lame excuse. It is further pleaded that this act on the part of the OP’s is illegal, null and void, and against the rules of the policy. I It is further pleaded that the owner of the workshop is also threatening the complainant to either take away the vehicle otherwise, he will charge parking charges and in this way the complainant has suffered a loss of more than 2.5 Lacs for no fault on his part, as the complainant had to hire Taxi for business purposes. It is further pleaded that the complainant also reserves his right to initiate criminal as well as civil proceedings against the opposite parties for not making payment of the loss suffered by him. 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 No. 1 and 2 to honor the claim of the complainant and make the payment of insured amount qua the claim of the complainant in terms of the Insurance policy along with interest @ 18% P.A. from the date of accident of the vehicle till its actual realization. It is further prayed that compensation to the tune of Rs.50,000/- may also be awarded to the complainant besides the amount of claim on account of mental agony, physical harassment and deficiency in service on the part of the opposite parties. Litigation expenses to the tune of Rs.5000/- may also be awarded in favour of the complainant, 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 is plying the vehicle for commercial purpose as such the Hon'ble Commission has no jurisdiction to entertain and try the complaint. It is pleaded that the complainant has failed to comply with the formalities for the claim, as such the complaint is not maintainable and there is no deficiency in service on the part of the answering opposite parties, as such the complaint is liable to be dismissed on this ground. It is further pleaded that the opposite parties No. 1 & 2 deputed Sh.Sanjay Sareen, Surveyor and Loss Assessor, Batala to conduct the spot survey and he conducted spot survey and submitted his spot survey report dated 19.09.2016 and after receiving survey report, the opposite parties No. 1 & 2 deputed the opposite party No. 3 on dated 22.09.2016 to conduct final survey and the opposite party No. 3 inspected the vehicle on dated 01.10.2016 and asked the complainant to submit claim form duly filled, copy of PAN Card and Residence proof vide its letter dated 06.12.2016 and 01.02.2017, and further requested the complainant to start the repair and inform the surveyor at the time of dismantling the vehicle, so that the surveyor can again inspect the vehicle at the time of dismantling for the purpose of survey, but the complainant did not comply with the request of the opposite party No. 3. It is further pleaded that the opposite party No.3 submitted his report dated 13.06.2017 after long waiting of compliance from the complainant with assessment of loss to Rs.61,696/- in the absence of compliance by the complainant and further the opposite party No. 3 recommended the case as no claim since the complainant failed to comply with the letters of the opposite parties and failed to start the repair. It is further pleaded that after receiving survey report and after proper application of mind, the opposite parties No.1 & 2 repudiated the claim of the complainant and intimation was given to the complainant vide letter dated 31.07.2017. It is further pleaded that the policy of the vehicle is a tie-up policy with the TATA Motors and the claim was processed by Amritsar Branch with the knowledge of the complainant and after receiving the notice by Batala Branch, the complainant was informed to take up the matter with Amritsar Branch Office.
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 Junas Masih, (Complainant) alongwith other documents as Ex.C-1 to Ex.C-5.
5. Learned counsel for the opposite parties has tendered into evidence affidavit of Sh. Sukhwinder Kumar, (Branch Manager, New India Assurance Co. Ltd., Gurdaspur) as Ex.OP-1 alongwith other documents as Ex.OP-2 to Ex.OP-8.
6. Rejoinder filed by the complainant.
7. Written arguments filed by both parties.
8. Counsel for the complainant has argued that complainant being owner of Tata Sumo bearing registration No.PB-02-Z-5051 had got the said vehicle insured with the opposite parties No.1 and 2 and the said vehicle met with an accident on 10.09.2016 in respect of which GD No.18 dated 13.09.2016 was registered at P.S. Sadar Batala. It is further argued that complainant had lodged intimation with the opposite parties but opposite parties kept on delaying the matter on one pretext or the other on account of which complainant himself got the vehicle repaired. However, opposite party No.3 surveyor assessed the loss to the tune of Rs.61,696/-, failure to pay the claim amounts to deficiency in service on the part of the opposite parties.
9. On the other hand counsel for the opposite parties has argued that after receiving the intimation surveyor was deputed and the said surveyor inspected the vehicle on 01.10.2016 and complainant was requested to submit the claim form, pan card and residence proof vide two letters. However, complainant failed to comply with the letters and as such after proper application of mind, claim was repudiated on 31.07.2017 by the opposite parties No.1 and 2. As such there is no deficiency in service on the part of the opposite parties.
10. We have heard the Ld. counsels for the parties and gone through the record.
11. To prove his case complainant has placed on record his self attested affidavit, copy of R.C. Ex.C1, copy of policy Ex.C2, copy of general diary Ex.C3, copy of legal notice Ex.C4 and post receipt Ex.C5 whereas opposite parties have placed on record self attested affidavit of Sukhwinder Kumar Branch Manager Ex.OP-1, duly sworn affidavit of Inder Pal Dhawan Director Ex.OP-2, copy of intimation letter Ex.OP-3, copy of deputation of final surveyor Ex.OP-4, copy of surveyor report Ex.OP-5, copies of letters Ex.OP-6 Ex.OP-8.
12. It is admitted fact that complainant is registered owner of Tata Sumo bearing registration No.PB-02-Z-505. It is further admitted fact that during the continuation of policy of insurance said vehicle met with an accident on 10.09.2016. It is further admitted fact that opposite party No.3 i.e. Mr.V.K.Mehta was deputed as surveyor & loss assessor to assess the loss. It is further admitted fact that opposite party No.3 had assessed the loss of Rs.61686/- payable to the complainant. The only issued for adjudication before this Commission is whether the repudiation of claim was justified on account of non supply of documents and deductions carried out by the surveyor are justified.
13. Perusal of record shows that intimation was given to the opposite parties on 12.09.2016 Ex.OP-3 and surveyor has given his report on 13.06.2017 Ex.OP-5 without any explanation i.e. after more the six months whereas as per circular of the IRDA the surveyor is under obligation to submit his report within one months after his appointment and the excuse given by the opposite parties regarding non supply of documents i.e. claim form, pan card and residence proof seems to have been given just to deny lawful claim of the complainant without any justification. Perusal of report of surveyor Ex.OP-5 shows that surveyor has assessed the net assess loss as Rs.61,686.25 but the opposite parties have failed to pay the said claim without any justification and causing unnecessary hardship to the complainant. The complainant has not been able to point out any flaw in the report of surveyor regarding deductions made in the assessment but non settlment of the cliam on account of documents is totally unjustified.
14. We placed reliance upon judgment of Hon'ble Supreme Court of India reported in 2022 Live Law (SC) 506 wherein it was held by the Hon'ble Supreme Court of India as under:-
"Insurance - Insurance companies refusing claim on flimsy grounds and/or technical grounds - While settling the claims, the insurance company should not be too technical and ask for the documents, which the insured is not in a position to produce due to circumstances beyond his control. (Para 4.1)".
15. Accordingly, from the evidence on record and by relying upon the case law referred above deficiency in service on the part of the opposite parties is fully proved.
16. Accordingly, present complaint is partly allowed and opposite parties No.1 and 2 are directed to pay Rs.61,686.25/- to the complainant alongwith interest @ 9% P.A. from the date of intimation of loss i.e. 12.09.2016. We are of the view that since claim was unnecessary delayed by the surveyor without any justified reasons and in complete disregard of circular of the IRDA as such, opposite parties No.1 and 2 are further directed to pay compensation of Rs.10,000/- to the complainant on account of mental tension and harassment and also Rs.5,000/- as cost of litigation. Entire exercise shall be completed within 30 days from the date of receipt of copy of this order.
17. 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.
18. 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. 01, 2023 Member
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