Chandigarh

DF-I

CC/811/2022

JASBIR SINGH AGED 36 YEARS S/0 SH GURMEET SINGH - Complainant(s)

Versus

THE NEW INDIA ASSURANCE CO. LTD. THROUGH ITS AUTHORISED PERSON - Opp.Party(s)

R P SHARMA AND AMIT SHARMA

02 Jul 2024

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION-I,

U.T. CHANDIGARH

                                     

Consumer Complaint No.	:	CC/811/2022
Date of Institution	:	15/09/2022
Date of Decision	:	02/07/2024

 

Mr. Jasbir Singh, aged 36 years Son of Sh. Gurmeet Singh, resident of Village Rurka, Dharamgarh, Distt. SAS Nagar Mohali-140306 (Punjab).

… Complainant

V E R S U S

1.     The New India Assurance Co. Ltd., through its authorized person, Servicing office of Insurer : New India Center, 1^st Floor, 17-A Cooperage Road, Mumbai, Maharashtra (State code: 27)- 400001.

2.     Berkeley Tata Motors Workshop, through its authorized person, Industrial Area Phase 2, Plot No.40, Chandigarh-160001.

3.     The New India Assurance Co. Ltd., through its authorized person, Regional Office: S.C.O. 36-37, Sector 17-A, Chandigarh-160017.

4.     Tata Motors Insurance Broking and Advisory Services Ltd., through its authorized person, Corporate Office: 1^st Floor AFL House, Lok Bharti Complex, Marol Maroshi Road, Andheri (East), Mumbai - 400 059 (Maharashtra).

… Opposite Parties

CORAM :	SHRI PAWANJIT SINGH	PRESIDENT
	MRS. SURJEET KAUR	MEMBER
	SHRI SURESH KUMAR SARDANA	MEMBER

 

                                                                               

ARGUED BY	:	Sh.R.P. Sharma, Advocate for complainant
	:	Sh.Sukaam Gupta, Advocate for OPs 1 & 3 (through VC)
	:	Sh.Sandeep Jasuja, Advocate for OP-2
	:	Sh.Gandharv Malhotra, Advocate for OP-4 (through VC) (OP-4 ex-parte)

Per Pawanjit Singh, President

1. The present consumer complaint has been filed by Jasbir Singh, complainant against the aforesaid opposite parties (hereinafter referred to as the OPs).  The brief facts of the case are as under :-

1. It transpires from the allegations, as projected in the consumer complaint, that on 16.12.2021, complainant had purchased a Sedan Tigor EV (XPREST XM+EV) car (hereinafter referred to as “subject car”) from the authorised dealer of Tata Motors vide invoice (Ex.C-1), in order to supplement his income by running his own car in the business of taxi/cab service.  The subject car was got insured from OP-1/insurer vide subject policy (Ex.C-2) which was valid w.e.f. 16.12.2021 to 15.12.2022.  On 28.7.2022, when the father of the complainant namely Sh. Gurmeet Singh was driving the subject car and was coming from Mohali to Zirakpur and stopped the subject car on the red light at Airport Road, Mohali, waiting for the green signal, suddenly a tractor came from behind and lost control and hit the subject car from backside.  As the spot was packed with other vehicles, complainant waited for a few seconds to come out of his car, but, in the meantime the tractor driver ran away from the spot.  Immediately complainant’s father called him upon which the complainant contacted the OPs/insurers and intimated about the accident.  Thereafter the complainant was called by the OPs to their office where Manoj Kumar met him who did the initial survey and clicked the photographs. The father of the complainant was a professional driver and was having a valid driving licence (Ex.C-4).  Later on, OPs deputed Rajesh Verma, surveyor who took all the necessary documents from the complainant and thoroughly checked the same.  At that time, the service advisor, surveyor and service engineer of the OPs assured the complainant that they are satisfied with the vehicle documents and informed that his vehicle is covered under the cashless policy scheme.  After about 10 days, the complainant received a call from workshop that the subject car has been repaired and is ready for delivery. However, when the complainant reached the workshop and asked for the subject car, he was shocked to notice that the repairer demanded an amount of ₹75,000/- being the repair charges.  Thereafter the complainant raised his concern with the OPs workshop authority and informed them about the cashless policy scheme. The complainant contacted the authorised representative of the OPs and requested them for redressal of his grievance, but, instead of giving satisfactory reply, they started ignoring him by even not attending his calls. Due to the aforesaid act of the OPs, complainant also suffered in his daily earning from the subject car to the extent of ₹2,700 – ₹3,000 approximately. After consulting his advocate, complainant sent a legal notice (Ex.C-5) to the OPs.  However, on 7.9.2022, OPs suddenly started demanding permit of the subject car i.e. after about 42 days of keeping the same with them. The complainant had already submitted the documents required for the settlement of the claim, as asked by the OPs, and after verifying the documents, job slip (Ex.C-7) was issued and further the complainant had already made clear to the OPs that he did not have any permit of the subject car, which is an Electric Vehicle and is exempted under the E-vehicle Policy.  The complainant explained these things to the OPs through letter (Ex.C-8).  As the OPs have illegally detained the subject car for 42 days and also compelled the complainant to pay huge amount of ₹73,028/- for its release, the aforesaid act amounts to deficiency in service and unfair trade practice on their part.  Moreover, as per the gazette of India, Ministry of Road Transport and Highways vide notification dated 18.10.2018 the transport vehicle used or to be used for the purpose of carriage of goods or passengers, as the case may be, namely a battery operated vehicle is exempted from the provisions of Section 66 (1) of the Motor Vehicles Act, 1988 and as it is an admitted case of the parties that the subject car is an electric vehicle i.e. battery operated, no permit was required even as per the aforesaid notification. OPs were requested several times to admit the claim, but, with no result.  Hence, the present consumer complaint.
2. OPs 1 & 3 and OP-2 contested the consumer complaint and filed their separate written versions.
3. In their joint written version OPs 1 & 3, inter alia, took preliminary objections of maintainability, cause of action and also that there is no deficiency in service on their part.  However, it is admitted that the subject car was insured with the answering OPs, which is a commercial vehicle, but, as the complainant was not having permit with regard to the subject car, complainant was asked vide letter dated 7.9.2022 (Annexure R1-3/B) asking him to submit copy of permit, enabling the answering OPs to further proceed with the claim.  It is further alleged that answering OPs deputed Rakesh Chopra, investigator to verify the particulars of permit from RTA, SAS Nagar, Mohali, who specifically reported that the complainant had not deposited the fee for the permit.  It is further alleged that the investigator further confirmed through his report (Annexure R1-3/C) that though the Punjab Electric Vehicles Policy 2019 has been prepared in which there was proposal of 100% waiver of MV tax and permit fee, but, since the said proposal has not been notified till date, the complainant was required to get the permit for plying the subject car on road.  It is further alleged that even the Central Govt. has advised all States/UTs vide its letter dated 17.7.2019 (Annexure R1-3/D) to promote the induction of EVs.  It is further alleged that as the complainant was not possessing the requisite permit for plying the subject car, his claim was not processed.  On merits, the facts as stated in the preliminary objections have been reiterated. The cause of action set up by the complainant is denied.  The consumer complaint is sought to be contested.
4. In its written version OP-2, inter alia, took preliminary objections of maintainability, cause of action and mis-joinder of parties.  On merits alleged that the subject car was repaired by the answering OP and it had raised bill to the tune of ₹73028/- and the complainant had taken the subject car from the answering OP on 8.9.2022 after paying repair charges of ₹73,028/-.  Complainant was informed in clear terms that in case the insurance claim is rejected by the insurer for any reason then all the repair charges would be paid by him for taking the delivery of his vehicle.  The cause of action set up by the complainant is denied.  The consumer complaint is sought to be contested.
5. OP-4 did not turn up before this Commission, despite proper service, hence it was proceeded against ex-parte vide order dated 11.1.2023.
6. The complainant chose not to file the rejoinder.

2. In order to prove their case, contesting parties have tendered/proved their evidence by way of respective affidavits and supporting documents.
3. We have heard the learned counsel for the contesting parties and also gone through the file carefully, including written arguments.
   1. At the very outset, it may be observed that when it is an admitted case of the parties that the complainant is the registered owner of the subject car, as is also evident from the RC (Ex.C-3) and the same was insured with OPs 1 & 3 w.e.f. 16.12.2021 to 15.12.2022, as is also evident from the subject insurance policy (Ex.C-2) and the subject car met with an accident on the relevant date, time and place, when the same was being driven by the father of the complainant namely Sh. Gurmeet Singh, who was possessing a valid driving licence (Ex.C-4) and the claim of the complainant was not settled by the OPs on the simple ground that the complainant was not possessing the requisite permit for plying the subject car at the time of accident, the case is reduced to a narrow compass as it is to be determined if the subject car was exempted from the requirement of a permit under the Central Motor Vehicle Act by the Govt. of India and OPs 1 & 3/insurers are unjustified in not settling the genuine claim of the complainant and the complainant is entitled to the reliefs prayed for in the consumer complaint, as is the case of the complainant, or if the OPs 1 & 3/insurers have rightly not settled the claim of the complainant on finding the same without permit and the consumer complaint of the complainant, being false and frivolous, is liable to be dismissed, as is the defence of the OPs/insurers. 
   2. In the backdrop of the foregoing admitted and disputed facts on record, one thing is clear that the entire case of the parties is revolving around the fact if the complainant was required to have a permit for plying the subject car, being commercial one, under Section 66 of the Motor Vehicles Act and the same is required to be scrutinized carefully in the light of the notification dated 18.10.2018 issued by the Ministry of Road Transport and Highways.  Section 66 of the Act ibid is reproduced below for ready reference :-

“66. Necessity for permits.-(1) No owner of a motor vehicle shall use or permit the use of the vehicle as a transport vehicle in any public place whether or not such vehicle is actually carrying any passengers or goods save in accordance with the conditions of a permit granted or countersigned by a Regional or State Transport Authority or any prescribed authority authorising him the use of the vehicle in that place in the manner in which the vehicle is being used:

Provided that a stage carriage permit shall, subject to any conditions that may be specified in the permit, authorise the use of the vehicle as a contract carriage:

Provided further that a stage carriage permit may, subject to any conditions that may be specified in the permit, authorise the use of the vehicle as a goods carriage either when carrying passengers or not:

Provided also that a goods carriage permit shall, subject to any conditions that may be specified in the permit, authorise the use of the vehicle for the carriage of goods for or in connection with a trade or business carried on by him.

¹[Provided also that where a transport vehicle has been issued any permit or permits, as well as a licence under this Act, such vehicle may be used either under the permit, or permits, so issued to it, or under such licence, at the discretion of the vehicle owner.]

(2) The holder of a goods carriage permit may use the vehicle, for the drawing of any public or semitrailer not owned by him, subject to such conditions as may be prescribed.

²[Provided that the holder of a permit of any articulated vehicle may use the prime-mover of that articulated vehicle for any other semi-trailor.]

(3) The provisions of sub-section (1) shall not apply-

(a) to any transport vehicle owned by the Central Government or a State Government and used for Government purposes unconnected with any commercial enterprise;

(b) to any transport vehicle owned by a local authority or by a person acting under contract with a local authority and used solely for road cleansing, road watering or conservancy purposes;

(c) to any transport vehicle used solely for police, fire brigade or ambulance purposes;

(d) to any transport vehicle used solely for the conveyance of corpses and the mourners accompanying the corpses;

(e) to any transport vehicle used for towing a disabled vehicle or for removing goods from a disabled vehicle to a place of safety;

(f) to any transport vehicle used for any other public purpose as may be prescribed by the State Government in this behalf;

(g) to any transport vehicle used by a person who manufactures or deals in motor vehicles or builds bodies for attachment to chassis, solely for such purposes and in accordance with such conditions as the Central Government may, by notification in the Official Gazette, specify in this behalf;

3* * * * *

(i) to any goods vehicle, the gross vehicle weight of which does not exceed 3,000 kilograms;

(j) subject to such conditions as the Central Government may, by notification in the Official Gazette, specify, to any transport vehicle purchased in one State and proceeding to a place, situated in that State or in any other State, without carrying any passenger or goods;

(k) to any transport vehicle which has been temporarily registered under section 43 while proceeding empty to any place for the purpose of registration of the vehicle;

4* * * * *

(m) to any transport vehicle which, owing to flood, earthquake or any other natural calamity, obstruction on road, or unforeseen circumstances is required to be diverted through any other route, whether within or outside the State, with a view to enabling it to reach its destination;

(n) to any transport vehicle used for such purposes as the Central or State Government may, by order, specify;

(o) to any transport vehicle which is subject to a hire-purchase, lease or hypothecation agreement and which owing to the default of the owner has been taken possession of by or on behalf of, the person with whom the owner has entered into such agreement, to enable such motor vehicle to reach its destination; or

(p) to any transport vehicle while proceeding empty to any place for purpose of repair.

⁵[(q) to any transport vehicle having been issued a licence under a scheme, under sub-section (3) of section 67 or sub-section (1) of section 88A, or plying under such orders as may be issued by the Central Government or by the State Government.]

(4) Subject to the provisions of sub-section (3), sub-section (1) shall if the State Government by rule made under section 96 so prescribes, apply to any motor vehicle adapted to carry more than nine persons excluding the driver.”

 

3. Similarly the relevant portion of the notification dated 18.10.2018 published in the gazette of India is also reproduced below for ready reference :-

“S.O.5333(E).—In exercise of the powers conferred by clause (n) of sub-section (3) of section 66 of the Motor Vehicles Act, 1988 (59 of 1988), the Central Government hereby orders that the provisions of sub-section (1) of section 66 of the said Act shall not apply to following types of transport vehicles used, or to be used, for the purpose of carriage of goods or passengers as the case may be, namely:-

(i) a Battery Operated Vehicle as defined under clause (u) of rule 2 of the Central Motor Vehicles Rules, 1989;

(ii) a vehicle driven on methanol fuel; and

(iii) a vehicle driven on ethanol fuel.”

 

4. Admittedly the subject car is an electric vehicle (battery operated vehicle) and as per the notification dated 18.10.2018, same was not required to have a permit under Section 66 (1) as the provisions of sub section 1 of Section 66 of the said Act shall not apply to the battery operated vehicles.
5. Learned counsel for OPs 1 & 3/insurer has submitted that, in fact, the State Govts./UTs were directed by the Central Govt. to implement the said notification vide letter dated 17.7.2019 (Annexure R1-3/D) in order to promote induction of EVs and since the same was not implemented by the Punjab Govt. till 21.2.2023, on which date the notification was issued by the Punjab Govt., the benefit of the same cannot be given to the complainant who had purchased the subject car on 16.12.2021.
6. However, there is no merit in the submission of the learned counsel for OPs 1 & 3/insurers as at the time when the complainant had purchased the subject car (i.e. an electric vehicle), the notification of the Central Govt. was in force and under the bonafide belief of the same, complainant had purchased the subject car and did not apply for the permit.  Moreover, it was otherwise the bounden duty of OPs 1 & 3 to verify the factum of permit required for the EVs before issuance of the subject policy and once OPs 1 & 3 had taken the decision to issue the subject insurance policy to the complainant, knowing fully that the subject car was an electric vehicle (battery operated vehicle), now the claim of the complainant cannot be repudiated on the ground that the complainant was not having the requisite permit.  Hence, it is safe to hold that the OPs 1 & 3/insurers were unjustified in not settling the claim of the complainant and the said act clearly amounts to deficiency in service on their part and the present consumer complaint deserves to succeed.
7. Now coming to the quantum of amount to be awarded in the instant case, no doubt the complainant has claimed an amount of ₹73,028/- by placing reliance on the receipt (Ex.C-9), which fact has also been endorsed by OP-2 that it had charged the said amount from the complainant, but, at the same time, when the surveyor of OPs 1 & 3/insurers vide his motor final survey report (Annexure R1-3/E) had fixed the insurer’s liability to the tune of ₹69,286/- by making deduction of ₹3,500/- towards excess clause cubic capacity, as per the terms and conditions of the subject policy, to our mind the complainant is entitled to the said amount of ₹69,286/- alongwith interest and compensation etc.
8. It is pertinent to mention here that surveyor report is an important piece of evidence and has to be given due weightage and can only be ignored if there is any other cogent evidence to the contrary.  Here we are strengthened by the judgment of Hon’ble Apex Court in Khatema Fibres Ltd. Vs. New India Assurance Company Ltd. & Anr., Civil Appeal No.9050 of 2018 decided on 28.9.2021 in which it was held as under:-

        “38.  A Consumer Forum which is primarily concerned with an allegation of deficiency in service cannot subject the surveyor’s report to forensic examination of its anatomy, just as a civil court could do. Once it is found that there was no inadequacy in the quality, nature and manner of performance of the duties and responsibilities of the surveyor, in a manner prescribed by the Regulations as to their code of conduct and once it is found that the report is not based on adhocism or vitiated by arbitrariness, then the jurisdiction of the Consumer Forum to go further would stop.”

 

Further, the Hon’ble National Commission in New India Assurance Company Ltd. Vs. Rabindra Narayan, I (2010) CPJ 80 (NC) held as under:-

“The Report submitted by the Surveyor is an important piece of evidence and has to be given due weight and relied upon until and unless it is proved by some cogent and reliable evidence that the Report submitted could not be relied upon.”

Further the Hon’ble National Commission in Oriental Insurance Co. Ltd vs. Arss Infrastructure Project Ltd., II (2023) CPJ 468 (NC) held as under:-

            “Insurance — Surveyors’ report — Survey and investigation are one of fundamentals in settling claim, and cannot and should not be disregarded or dismissed without cogent reasons, though it also goes concomitantly that survey or investigation should be convincing and pass test of credence in scrutiny — State Commission has not gone into contents of surveyors’ reports at all on ground that reports were filed belatedly before it — Reports were in any case available before State Commission and as such it ought to have examined their contents rather than dismissing them outright — Depending upon circumstances State Commission could have even imposed terms including cost for belatedly filing reports but to treat them as suspicious and to perfunctorily dismiss them outright merely because they were filed belatedly was not approach either justified or called for — No need to examine surveyors’ reports at this stage at any great length since both parties agree that settlement may be made on basis of respective surveyor’s assessment of actual loss in each case.”

The Hon’ble National Commission in Detco Textiles Pvt. Ltd. Vs. New India Assurance Company Ltd. & Anr., II (2023) CPJ 535 (NC) held as under:-

        “The Surveyor conducted a very detailed inspection of the premises and assessed the loss after due verification of documents. He assessed the total loss to the building, plant & machinery and furniture etc. at Rs.11,21,18,099/- after making necessary deductions of Rs.5,605,905/- towards excess clause and taking care of the process charges, debris removal, architects fee and goods held in trust arrived at the net adjusted loss of Rs.10,65,12,194/-. For every item, the Surveyor had explained the basis of arriving at the amount. The Complainant on the other hand had not placed any evidence to establish that the assessment made by the Surveyor was incorrect. The Complainant, therefore, cannot be allowed the amount beyond the assessment of the Surveyor. We see no reason not to agree with the assessment made by the Surveyor.”

 

4. In the light of the aforesaid discussion, the present consumer complaint succeeds, the same is hereby partly allowed and OPs 1 & 3 are directed as under :-

1. to pay ₹69,286/- to the complainant alongwith interest @ 9% per annum (simple)  from the date of making payment by the complainant to the repairer i.e. 8.9.2022 onwards.
2. to pay ₹10,000/- to the complainant as compensation for causing mental agony and harassment;
3. to pay ₹10,000/- to the complainant as costs of litigation.

5. This order be complied with by OPs 1 & 3, jointly and severally, within a period of 45 days from the date of receipt of certified copy thereof, failing which the amounts mentioned at Sr.No.(i) & (ii) above shall carry penal interest @ 12% per annum (simple) from the date of expiry of said period of 45 days, instead of 9% [mentioned at Sr.No.(i)], till realisation, over and above payment of ligation expenses.
6. Since no deficiency in service or unfair trade practice has been proved against OPs 2 & 4, the consumer complaint against them stands dismissed with no order as to costs.
7. Pending miscellaneous application(s), if any, also stands disposed of accordingly.
8. Certified copies of this order be sent to the parties free of charge. The file be consigned.

02/07/2024 hg	Sd/- [Pawanjit Singh] President
	Sd/- [Surjeet Kaur] Member
	Sd/- [Suresh Kumar Sardana] Member