Complaint No: 04 of 2019.

                                                               Date of Institution: 03.01.2019.

                                                                        Date of order: 07.02.2024.  

Balkar Singh Son of Dalip Singh, resident of Master Colony Dina Nagar District Gurdaspur, through his Power of Attorney Harjit Singh Son of Harbhajan Singh, resident of Village Sidhpur Tehsil and District Gurdaspur. Pin Code – 143521.

                                                                                                                                                                                ….....Complainant.                                                                                                                                                                                                                                                                                                                                                                                                       

                                                                                      VERSUS

The New India Assurance Company Limited, Branch Office G.T. Road Mandi Gurdaspur, through its Branch Manager. Pin Code – 143521.

                                                                                                                                                                                  ….Opposite party.

                                                            Complaint U/S 12 of Consumer Protection Act.

Present: For the Complainant: Sh.Rahul Puri, Advocate.

             For the Opposite Party: Sh.Ankush Sharma, Advocate.  

Quorum: Sh.Lalit Mohan Dogra, President, Sh.Bhagwan Singh Matharu, Member.

ORDER

Lalit Mohan Dogra, President.

          Balkar Singh, 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. (here-in-after referred to as 'opposite party).

2.       Briefly stated, the case of the complainant is that the complainant purchased Truck bearing Registration No.PB-06-Q-3267. The complainant himself is not in a position to look after and manage the above said vehicle personally. Therefore, he has appointed Sh. Harjit Singh son of Harbhajan Singh resident of Village Sidhpur Tehsil and District Gurdaspur as his Power of Attorney for looking after and managing the vehicle, as such the present complaint is being filed by the complainant through his above mentioned Power of Attorney. It is pleaded that the above said vehicle was fully insured with the opposite party / Insurance Company Vide Policy / Cover Note / Cert. No. 36160231160100001080 valid from 10.07.2016 to 09.07.2017 Mid Night. The policy is comprehensive and covers all risks and as per terms and conditions of the policy the opposite party was fully liable to compensate the complainant i.e. for loss of vehicle, driver, helper and any other kind of loss. As such the complainant is consumer of the opposite party. It is further pleaded that on dated 25.02.2017 at about 11.30 P.M. the above mentioned truck of the complainant met with an accident in area of Tax Barrier Rajparura Tehsil and District Pathankot. On account of this accident the truck was badly damaged. Matter was reported to the police of P.S. Kanwan District Pathankot and criminal case bearing FIR No. 0012 dated 26.02.2017 U/s 304-A/279/427 IPC was also registered. It is further pleaded that information regarding this accident was also given to the opposite party by the complainant. The matter was also reported to the opposite party. The opposite party also deputed their Surveyor who visited the spot and assessed the loss to the vehicle and advised the complainant to get the vehicle repaired. It is further pleaded that as per the advice of the opposite party / its Surveyor, the complainant got his vehicle repaired and spent about Rs.2,45,000/. It is further pleaded that after repair of the vehicle, the complainant submitted his claim to the opposite party for making payment of spare parts and other expenses incurred on the repair of the vehicle, but to the utter surprise of the complainant, the opposite party repudiated the claim of the complainant vide letter dated 26.09.2017. Ultimately, on the repair of his vehicle, and did not pay the remaining amount inspite of repeated requests by the complainant, the opposite party refused to make the payment of the remaining amount. It is further pleaded that thereafter the complainant approached the opposite party and submitted his claim duly supported by bills etc. for making payment of spare parts and other expenses incurred on the repair of the vehicle. The complainant also supplied all the documents and information sought by the opposite party thereafter. It is further pleaded that the opposite party put the matter pending with one or the other excuse and ultimately the opposite party repudiated the claim of the complainant on false and baseless presumptions and assumptions. The observations raised by the opposite party are false, imaginary and like day dreaming and the same are not sustainable in the eyes of law. It is further pleaded that the vehicle was being driven by a person having valid Driving License issued by the competent authority. The complainant was not plying the vehicle against the terms and conditions of the Insurance policy or in contravention of the insurance policy rules, nor there was any intentional or willful delay on the part of the complainant in reporting the matter to the opposite party. It is further pleaded that the opposite party by not making payment of the amount spent by the complainant on repair of his vehicle on fake and baseless observations is trying to back out from his obligations with malafide intention and ulterior motive without any reason or rhyme. It is further pleaded that due to this illegal act and conduct of the opposite party 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 party.

          On this backdrop of facts, the complainant has alleged deficiency and unfair trade practice on the part of the opposite party and prayed that necessary directions may kindly be issued to the opposite party to honour the claim of the complainant and make the payment of entire amount qua the claim of the complainant immediately in terms of the Insurance Policy along with interest @ 18% P.A. from the date of accident of the vehicle till 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 in question on account mental agony, physical harassment and deficiency in service on the part of the opposite party. Litigation expenses to the tune of Rs.3,000/- may also be awarded in favour of the complainant, in the interest of justice.

3.       Upon notice, the opposite party appeared through counsel and contested the complaint and filing their written reply by taking the preliminary objections that the complainant has no cause of action to file the present complaint and the complaint is liable to be dismissed on this ground. It is pleaded that the matter has been investigated by the answering opposite party / insurance co. and during the investigation it has come in the light that truck bearing registration No.PB-06-Q-3267 has already been sold to Mr. Harjit Singh son of Sh. Harbhajan Singh on dated 07.11.2014 and physical possession of the truck was also delivered after receiving the consideration of Rs.6,87,630/-. It is further pleaded that it is crystal clear that Mr. Balkar Singh was not left with any right as owner of vehicle bearing registration No.PB-06-Q-3267 and has no insurance interest. It is further pleaded that vehicle is a moveable property. It is further pleaded that in this case the Registration Certificate (R.C) is in the name of the complainant on the date of loss, but the vehicle has already been sold by the complainant to said Harjit Singh, who is the alleged to be Power of Attorney of the complainant i.e. Balkar Singh in the present case and as per sales of Good Act in case of moveable property, the property is transferred as soon as it has been delivered. It is further pleaded that after that the complainant i.e. Balkar Singh was not left with any right, title or interest in the vehicle having No.PB-06-Q-3267. So, if he has no right in the vehicle then has no any right to file the present complaint and as such the complaint is liable to be dismissed. It is further pleaded that the complainant i.e. Balkar Singh has no right to give Power of Attorney to said Harjit Singh for filing this complaint, as he had already sold the vehicle in question to said Harjit Singh on dated 07.11.2014 even prior to the date of accident i.e. 25.02.2017. So, the complaint is liable to be dismissed. It is further pleaded that the complaint of the complainant is liable to be dismissed as the complainant has not come before this Ld. Commission with clean hands and concealed the material facts regarding the sale of the vehicle in the present complaint. So, the complainant who has not come to the Ld. Commission with clean hands is not entitled for any relief. It is further pleaded that there is no deficiency in service on the part of the answering opposite party / insurance co. The matter of the fact is that the loss has been reported to the Insurance Co. The investigator submitted his report on dated 15.09.2017. The claim has been repudiated vide repudiation letter dated 26.09.2017. Since, the vehicle in question has been sold on dated 07.11.2014 as per the agreement. Hence, insurable interest does not exist at the time of accident. So, there is no deficiency in service on the part of the answering opposite party / insurance co. It is further pleaded that even otherwise, if this Ld. Commission comes to the conclusion that there is any liability of Insurance Co. then in that case it is submitted that the vehicle has been duly surveyed and the Surveyor also submitted his final Survey report dated 15.09.2017 and after duly verifying the vehicle submitted his detailed report and as per his report, the liability of insurance co. is only of Rs.1,16,951/- and that too only as per terms and conditions of the policy and after making compulsory deductions, but as already stated the claim has been repudiated as the complainant i.e. Balkar Singh through his Power of Attorney Harjit Singh has no insurable interest in the said vehicle.  

          On merits, the opposite party has 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 party. In the end, the opposite party prayed for dismissal of complaint with costs.

4.       Learned counsel for the complainant has tendered into evidence affidavit of Harjit Singh S/o Harbhajan Singh, (Power of Attorney of Complainant) as Ex.CW-1/A alongwith other documents as Ex.C-1 to Ex.C-12.

5.       Learned counsel for the opposite party has tendered into evidence affidavit of Sh. Paramjeet, (Assistant Branch Manager, Authorized Signatory, New India Assurance Co. Ltd., Pathankot) as Ex.OP-1/A alongwith other documents as Ex.OP-1 to Ex.OP-4 alongwith reply.  

6.       Rejoinder not filed by the complainant.

7.       Written arguments filed by the complainant but not filed by the opposite party.

8.       Counsel for the complainant has argued that complainant himself is unable to look after and managed the truck No.PB-06Q-3267 and as such appointed Sh.Harit Singh as his power of attorney for looking after and managing the said vehicle. It is further argued that said truck was insured with the opposite party and on 25.02.2017 the said truck met with an accident and FIR was registered and on matter being reported to the opposite party the opposite party had deputed surveyor who assessed the loss but the opposite party has repudiated the claim on false and flimsy grounds which amounts to deficiency in service. Counsel for the complainant has relied upon judgment of Hon'ble Supreme Court of India titled as Surindera Kumar Bilave Vs. New India Assurance Company Ltd. Civil Appeal No.2632 of 2020 decided on 18.06.2020.

9.       On the other hand counsel for the opposite party has argued that on investigation it was found that the registered owner had already sold the truck in question to Harjit Singh on 07.11.2014 after receiving sale consideration of Rs.6,87,630/- and as such Balkar Singh was not left with any right or insurable interest in the truck on the date of accident. It is further argued that the surveyor deputed by the opposite party had assessed the loss payable as Rs.1,16,951/- but the said amount is also not payable to the complainant and claim was rightly repudiated by the opposite party and complaint is liable to be dismissed.

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 duly sworn affidavit of Harjit Singh power of attorney holder Ex.CW/A, copy of registration certificate Ex.C1, copy of special power of attorney Ex.C2, copy of national permit Ex.C3, copy of policy of insurance Ex.C4, copy of FIR Ex.C5, copies of bills Ex.C6 to Ex.C11 and copy of repudiation letter Ex.C12 whereas opposite party has placed on record affidavit of Paramjeet Assistant Branch Manager Ex.OP-1/A, copy of repudiation letter Ex.OP-1 and Ex.OP-3, copy of agreement of sale Ex.OP-2 and copy of policy document Ex.OP-4.

12.     It is admitted fact that complainant is registered owner of truck No.PB-06Q-3267. It is further admitted fact that truck No.PB-06Q-3267 is insured with the opposite party insurance company vide policy of insurance valid from 10.07.2016 to 09.07.2017. It is further admitted fact that truck No.PB-06Q-3267 met with an accident on 25.02.2017 and FIR No.12 was registered in this respect. It is further admitted fact that opposite party had deputed surveyor to assess the loss who had assessed the loss payable as Rs.1,16,951/-. It is further admitted fact opposite party has repudiated the claim lodged by the complainant. The only issue for adjudication is whether the complainant is not left with any insurable interest in truck No.PB-06Q-3267 and claim has been rightly repudiated by the opposite party.

13.     Perusal of registered certificate (R.C.) Ex.C1 shows that Balkar Singh is recorded as registered owner of the truck No.PB-06Q-3267 and authorization certificate Ex.C3 and national permit for goods carried and policy of insurance Ex.C4 have been issued in the name of complainant Balkar Singh as registered owner. The opposite party has repudiated the claim of the complainant on the ground that the complainant had already sold the truck to Harjit Singh power of attorney holder vide agreement to sell Ex.OP-2. The initial burden to prove this fact that the complainant is registered owner of the truck No.PB-06Q-3267 is owned by Balkar Singh was on the complainant and complainant had fully discharged the said burden by placing on record copy of registration certificate Ex.C1, route permit and other documents and thereafter the burden of prove shifted upon the opposite party and opposite party has relied upon only one document agreement to sell Ex.OP-2 but perusal of file shows that the said document has not been proved on record. Even the opposite party has not placed on record affidavit of investigator or surveyor who allegedly procured the said agreement to sell. Moreover, perusal of said agreement to sell shows that executant of said agreement is Karamjit Singh son of Dalip Singh and not complainant Balkar Singh. Even the said agreement does not bear the signatures of complainant Balkar Singh at any place. As such it is not proved on record that complainant Balkar Singh ever agreed to sell the truck No.PB-06Q-3267 to Harjit Singh as alleged by the opposite party. whereas perusal of copy of special power of attorney Ex.C2 shows that the said document is registered in the office of Sub Registrar Gurdaspur vide Vasika No.165 on 08.03.2017 and the said document is duly registered by Sub Registrar as per law and bears the signatures of complainant and the power of attorney holder alongwith witnesses. We are of the views that if the truck was already sold by Balkar Singh complainant vide Ex.OP-2 on 07.11.2014 then what was the need to execute power of attorney on 08.03.2017. The agreement Ex.OP-2 is not attested by any witness nor the same attested by any Notary Public and Magistrate or any attesting authority. As such agreement to sell does not carry any value in the eyes of law as compared to special power of attorney Ex.C2 which is registered document. We are of the further view that complainant had every right to appoint any person as his special power of attorney and accordingly Sh.Harjit Singh was fully competent to file the present complaint as power of attorney holder of complainant Balkar Singh. We are also of the view that since the policy of insurance and accidental loss has been admitted by the opposite party as such repudiation of the claim on the basis of agreement Ex.OP-2 is totally unjustified and amounts to deficiency in service.

14.     We have placed reliance upon judgment Hon'ble National Consumer Disputes Redressal Commission New Delhi in case titled as Mitesh Lavji Thacker Vs. Iffco-Tokio General Insurance decided on 30.01.2023. It has been held by the Hon'ble State Commission that where two views are possible the one which is in favour of the complainant should be taken reported in 2007(1) CLT 303 Pb. Kulwinder Kaur Vs. L.I.C. Opposite parties have mainly relied upon report of the investigation. However, perusal of file shows that opposite parties have not placed on record any affidavit of investigator or the Manager/Principal Officer of the company. As such we are of the view that no reliance can be placed on such report of the investigator which is not supported by affidavit. Accordingly, deficiency in service on the part of the opposite party is fully proved.

15.     As far as the payable compensation is concerned, we have gone through the report of the surveyor and we do not find any ambiguity in the report of surveyor as far as assessment of payable compensation is concerned. 

16.     Accordingly, present complaint is partly allowed and opposite party is directed to pay Rs.1,16,951/- to the complainant Balkar Singh within 30 days from the date of receipt of copy of this order otherwise the same shall carry interest @ 9% P.A. from the date of filing of the present complaint till realization. Opposite party is further directed to pay Rs.8,000/- as compensation on account of mental tension, harassment and costs of litigation.

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. File be consigned.                                                                                                                                                               

            (Lalit Mohan Dogra)

                                                                                      President.  

Announced:                                                   (B.S.Matharu)

Feb. 07, 2024                                                        Member.

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