Punjab

Faridkot

CC/17/217

Deepak Pahuja - Complainant(s)

Versus

The New India Assurance Co. Ltd - Opp.Party(s)

P.L Choudhary

20 Feb 2019

ORDER

 DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, FARIDKOT

 

C. C. No. :             217 of 2017

Date of Institution:     6.07.2017

Date of Decision :    20.02.2019

 

Deepak Pahuja aged about 41 years, son of Sh Satish Kumar Pahuja, r/o Ward No.10, Meena Bazar, Mandi Dabwali, District Sirsa.

...Complainant

Versus

1. The New India Assurance Company through its General Manager, 1215, 12^th Floor, Naurang House 21, Kasturba Gandhi Marg, New Delhi.
2. The New India Assurance Company through its General Manager Sirsa.
3. The New India Assurance Company through its General Manager, Faridkot.

.....Opposite Parties

Complaint under Section 12 of the

Consumer Protection Act, 1986.

 

Quorum: Sh. Ajit Aggarwal, President,

               Smt Param Pal Kaur, Member.

 

Present: Sh P L Chaudhary, Ld Counsel for Complainant,

              Sh Yash Pal Bansal, Ld Counsel for OPs.

 

ORDER

(Ajit Aggarwal, President)

                                         Complainant has filed the present complaint under Section 12 of the Consumer Protection Act, 1986 against OPs seeking directions to OPs to make payment of insurance claim worth

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Rs.5,00,000/-with interest and for further directing OPs to pay Rs 1,00,000/- as compensation for deficiency in service, harassment, inconvenience, mental agony alongwith litigation expenses.

2                                    Briefly stated, the case of the complainant is that complainant is the registered owner of car bearing registration no. HR25D-1792 and car of complainant is fully insured with OPs vide Insurance Policy bearing no. 31260031150302881297 valid from 10.07.2015 to 9.07.2016. It is submitted that due to heavy fog on 28.02.2016, car of complainant met with an accident with another car bearing no. PB02CJ-5531 in village Wara Bhai Ka, Near Water Works, Bajakhana, District Faridkot. At that  time, Balwant Singh driver was driving the car and FIR no.20 dated 28.02.2016 to this effect was registered under Section 304-A, 337/338/427 IPC at Police Station, Baja Khana on same day and intimation regarding said accident was also duly provided to OPs alongwith requisite documents. On this Ops appointed a Surveyor who submitted his report dt 28.03.2016 and thereafter, complainant approached OPs several times with request to clear the claim, but all in vain as OPs kept putting off the complainant on one pretext or the other and directed him to seek permission of Hon’ble Court for the sale of damaged vehicle for settlement of his claim. As per directions of OPs, complainant moved application before Ld JMIC, Faridkot seeking permission to sell his damaged car and vide order dated 27.07.2016, ld JMIC, Faridkot gave permission to complainant to sell the damaged car and after getting permission from court, complainant

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made repeated requests to OPs to clear his claim, but vide order dated 3.10.2016, OPs refused to settle the claim of complainant on frivolous grounds that case is lying pending for Police Investigation. Complainant has made many requests to OPs but all in vain and now, Ops have flatly refused to make payment of genuine claim of complainant, which amounts to deficiency in service and trade mal practice on the part of Ops and it has caused great harassment and mental agony to complainant. He has prayed for directions to Ops to pay Rs. One lac as compensation  for harassment suffered and litigation expenses incurred by him besides the main relief. Hence, the present complaint.

3                              The counsel for complainant was heard with regard to admission of the complaint and vide order dated 10.07.2017, complaint was admitted and notice was ordered to be issued to the opposite parties.

4                                    On receipt of the notice, the opposite party filed written statement taking preliminary objections that complainant has violated the terms and conditions of the policy as at the time of alleged accident complainant was not having effective driving license. It is averred that in alleged accident, one person namely Daljinder Singh died and his heirs filed claim petition titled as Sukhjinder Kaur Vs Deepak Pahuja before the MACT, Amritsar for compensation on account of death of Daljinder Singh that occurred due to wrongful  act of complainant while driving his car bearing no. HR 25 D-1792. It is

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further averred that as per complaint, complainant was not driving the said vehicle, but as per claim petition, complainant was driving the said car which is now subjudice before the Court at Amritsar and therefore, complaint filed by complainant is not maintainable till the decision of claim petition filed by heirs of Daljinder Singh because in said claim petition, court will decide that who was driving the vehicle at the time of alleged accident. Balwant Singh was not driving the vehicle at the time of said accident, rather complainant was driving the vehicle at the time of accident. Court can reach the right conclusion only after thorough evidence and cross examination of the witnesses and therefore, present complaint be referred to Civil Court for adjudication. This Forum has no jurisdiction to hear and try the present complaint as policy in question has been purchased from Sirsa, Haryana and thus, only Consumer Forum at Sirsa has jurisdiction to hear and try the present complaint. It is further averred that OP-1 and Op-3 have been unnecessarily impleaded as parties in present complaint. Moreover, complainant is stopped by his own act and conduct to file the present complaint and he has filed false and frivolous complaint based on incorrect allegations. It is further averred that complainant is not the consumer under Consumer Protection Act and complainant has not taken any permission from OPs regarding disposal of salvage of car in question and thus, complainant has no right to dispose of the same without the permission of answering OPs. However, on merits OPs have denied all the allegations of complainant

 

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being incorrect and false and reiterated that there is no deficiency in service on the part of answering OPs.                    

5                                               Parties were given proper opportunities to prove their respective case. The complainant tendered in evidence his affidavit Ex.C-1, and documents Ex C-2 to C-26 and then, closed his evidence.

6                                   In order to rebut the evidence of the complainant, the Ld Counsel for OPs tendered in evidence affidavit of Deen Dayal Aggarwal as Ex OP-1 and document Ex OP-2 and then, closed the same on behalf of OPs.

7                                              The ld Counsel for complainant argued that car of complainant bearing no. HR25D-1792 was fully insured with OPs vide Insurance Policy bearing no. 31260031150302881297 valid from 10.07.2015 to 9.07.2016. Due to heavy fog on 28.02.2016, car of complainant met with an accident with another car bearing no. PB02CJ-5531 in village Wara Bhai Ka, Bajakhana, District Faridkot and at that  time, Balwant Singh was driving the car and FIR no.20 dated 28.02.2016 to this effect was registered under Section 304-A, 337/338/427 IPC at Police Station, Baja Khana on same day and intimation regarding said accident was also duly provided to OPs alongwith requisite documents. Ops appointed a Surveyor who submitted his report dt 28.03.2016 and thereafter, complainant approached OPs several times with request to clear the claim, but all in vain as OPs kept putting off the complainant on

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one pretext or the other and directed him to seek permission of Hon’ble Court for the sale of damaged vehicle for settlement of his claim. As per directions of OPs, complainant moved application before Ld JMIC, Faridkot seeking permission to sell his damaged car and vide order dated 27.07.2016, ld JMIC, Faridkot gave permission to complainant to sell the damaged car and after getting permission from court, complainant made repeated requests to OPs to clear his claim, but vide order dated 3.10.2016, OPs refused to settle the claim of complainant on frivolous grounds that case is lying pending for Police Investigation. Complainant has made many requests to OPs but all in vain and now, Ops have flatly refused to make payment of genuine claim of complainant, which amounts to deficiency in service and trade mal practice on the part of Ops and it has caused great harassment and mental agony to complainant. He has prayed for accepting the complaint alongwith compensation and litigation expenses incurred by him besides the main relief.

8                                        To controvert the arguments of ld counsel for complainant, ld counsel for OPs argued that complaint filed by complainant is frivolous and also denied all the allegations of complainant being incorrect and false and reiterated that there is no deficiency in service on the part of answering OPs. It is argued that  complainant has violated the terms and conditions of the policy as at the time of accident complainant was not having the effective driving license and in alleged accident, one Daljinder Singh died whose heirs

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filed claim petition titled as Sukhjinder Kaur Vs Deepak Pahuja before the MACT, Amritsar for compensation on account of death of Daljinder Singh that occurred due to wrongful  act of complainant while driving his car bearing no. HR 25 D-1792. It is further argued that as per complaint, complainant was not driving the said vehicle, but as per claim petition, complainant was driving the said car. Matter is now subjudice before the Court at Amritsar and therefore, this complaint is not maintainable till the decision of claim petition filed by heirs of Daljinder Singh because in said claim petition, court will decide that who was driving the vehicle at the time of alleged accident. Balwant Singh was not driving the vehicle at the time of said accident, rather complainant was driving the vehicle at the time of accident. Court can reach the right conclusion only after thorough evidence and cross examination of the witnesses and therefore, present complaint be referred to Civil Court for adjudication. This Forum has no jurisdiction to decide the present complaint as policy in question is purchased from Sirsa, Haryana and thus, only Consumer Forum at Sirsa has jurisdiction to decide the matter. It is further averred that OP-1 and OP-3 have been unnecessarily impleaded as parties in present complaint. Moreover, complainant has filed false and frivolous complaint based on incorrect allegations. Complainant has not taken any permission from OPs regarding disposal of salvage of car and thus, complainant has no right to dispose of the same without the permission of OPs. He has prayed for dismissal of complaint with costs.

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9                                           We have heard the learned counsel for the parties and have very carefully gone through the affidavits and documents on the file.

10                                            The case of complainant is that his vehicle was insured with OPs, which met with an accident on 28.08.2016. Due intimation regarding accident was given to Police as well as OPs. He lodged claim with OPs but they wrongly repudiated his claim on the ground that Balwant Singh was not driving the vehicle at the time of said accident, rather complainant was driving the vehicle at that time and this matter is pending the court at Amritsar. On the other hand plea taken by OPs is that in said accident, one person Daljinder Singh died and his heirs filed claim petition titled as Sukhjinder Kaur Vs Deepak Pahuja before the MACT, Amritsar for compensation on account of death of Daljinder Singh that occurred due to wrongful  act of complainant while driving his car. It is further averred that as per complaint, complainant was not driving the said vehicle, but as per claim petition, complainant was driving the said car which is now subjudice before the Court at Amritsar and therefore, issue that who was driving the vehicle at the time of accident either complainant or Balwant Singh, it would be decided after conclusion of petition filed before Civil Court, Amritsar. To prove his pleadings and to contradict the allegation of OPs that Balwant Singh and not complainant  was driving the vehicle in

 

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question, he has stressed on document Ex C-22 that is the copy of order given by ld Judicial Magistrate Ist Class, Faridkot wherein it is clearly mentioned that Balwant Singh was driving the vehicle at the time of said accident. this order is given by Ld Judicial Megistrate First Class, Faridkot on application filed by complainant seeking permission to sell the damage car of complainant. This application is exhibited as Ex C-21. Moreover, Ex C-23 copy of application written Ld JMIC by ASI Hari Krishan clearly reveals the fact that at the time of said accident, Balwant Singh was driving the vehicle in question and even challan under Section 173 Cr P C Ex C-25, it is nowhere mentioned that complainant was driving the said vehicle.  All these documents clearly prove the fact, that vehicle in question was being driven by Balwant Singh and not complainant at the time of said accident. Documents Ex C-10 to Ex C-20 which are copies of correspondence occurred between complainant and OPs wherein he has clearly mentioned that he has completed all the formalities and made requests to OPs to settle his insurance claim. Action of OPs in not settling the claim of complainant and repudiating the same on false grounds, amounts to deficiency in service and trade mal practice on their part.

11                                            From the above discussion and keeping in view the evidence placed on record by parties, this Forum is of considered opinion that there is deficiency in service on the part of OPs in not clearing the claim of complainant. complainant has successfully proved his case, therefore, complaint in hand is hereby allowed. OPs are

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directed to make payment of insurance claim of Rs.2,77,908/-on net of salvage basis as assessed by the Surveyor within 30 days from the date of receipt of copy of order, failing which complainant shall be further entitled for interest at the rate of 9% on award amount from the date of order. OPs are further directed to pay Rs.5,000/-to complainant as consolidated compensation for harassment and mental agony suffered by him as well as for litigation expenses. Compliance of this order be made within prescribed period, failing which complainant shall be entitled to proceed under Section 25 and 27 of the Consumer Protection Act. Copy of order be given to parties free of cost. File be consigned to record room.

Announced in Open Forum

Dated : 20.02.2019                 

 

(Parampal Kaur)                      (Ajit Aggarwal)

           Member                                   President