BEFORE THE DISTRICT CONSUMER DISPUTES
REDRESSAL COMMISSION, JALANDHAR.
Complaint No.464 of 2023
Date of Instt. 22.11.2023
Date of Decision: 04.10.2024
M/s Mohan’s Earthmovers, C/o 18, New Model Town, Jalandhar, Through it’s Partner Harkirat Singh.
..........Complainant
Versus
1. The New India Assurance/insurance company Limited, Head Office, 87, M. G. Road, Fort, Mumbai-400001, Through Managing Director/General Manager.
2. The New India Assurance/insurance company Limited, Regional Office, 4th Floor, Surya Tower, 108, The Mall, Ludhiana-141001 through General Manager.
….….. Opposite Parties
Complaint Under the Consumer Protection Act.
Before: Dr. Harveen Bhardwaj (President)
Smt. Jyotsna (Member)
Present: Sh. A. K. Bhagat, Adv. Counsel for complainant.
Sh. A. K. Arora, Adv. Counsel for OPs.
Order
Dr. Harveen Bhardwaj (President)
1. The instant complaint has been filed by the complainant, wherein it is alleged that the complainant is the partner of the Firm M/s Mohan’s Earthmovers. The said firm is involved in the business of construction of Road mainly Earth Works for national highway. The complainant had purchased the vehicle bearing No.PB-08-EG-8856 for purpose of earning his livelihood in the name of his firm M/s Mohan’s Earth Movers. The registration certificate of the vehicle is in the name of the firm of the complainant. The above said vehicle was purchased for the purpose of loading and unloading of soil to the sites of National Highways. The above said vehicle was purchased on 01.05.2019. the above said vehicle was duly assured vide Assurance Policy bearing No.360520431220300000004 in the name of M/s Mohan’s Earthmovers, C/o 18, New Model Town Jalandhar from OPs No.1 and 2 namely The New India Assurance Company Limited. The said vehicle was insurance for the period of 05.04.2022 to 04.04.2023. At the time of selling the assurance policy, the representative of OPs had assured complainant that if any loss and damge will be caused to the vehicle due to any reason then the entire loss and damage will eb indemnify by the company. On believing the assurance given by the representatives of OPs, complainant had purchased the policy detail mentioned above by making the heavy payment of insurance policy premium to OPs No.1 and 2. On 13-03-2023 at about 4:45 PM, the above said vehicle was being driven by the driver of complainant namely Avtar Singh and he was working near the Delhi-Amritsar Katra Highway in District Kapurtahla. The driver of the vehicle was carrying soil in the above said vehicle and he was to unload the soil at the site near Village Nano Malian, Distt Kapurthala. Complainant was also stood nearby and he was observing the work. At the same time complainant had seen that the vehicle started burning with fire. The driver of the vehicle namely "Avtar Singh" came out of the vehicle and we tried to extinguish the fire. Due to the said accident the cabin and engine of the vehicle burned completely. The cause of said fire was the short circuit in the cabin of the vehicle. The complainant had suffered huge loss and damage due to the above said accident with the vehicle. Thereafter complainant had got registered the DDR Bearing number 42 dated 14-03-2023 at P.S Sultanpur Lodhi, Kapurthala. Thereafter complainant had informed about the above said accident of the vehicle to the OPs by way of telephonically. Thereafter the representative of the OPs had come on the spot within an hour and they took the photographs of the vehicle and they also traced out the engine number and chassis number and they assured the complainant that within few days the claim of the loss of the vehicle will be given to the complainant. Thereafter as per the instructions of the representative of opposite parties the complainant had dropped the vehicle to the workshop of M/s Ashok Leyland namely Globe Auto, Paraghpur, Jalandhar. The representative of OP had called the authorized surveyor of OP namely "J.S Khurana and Associate". The surveyor of OP had demanded for the documents pertaining to the vehicle and complainant had supplied all the documents as per the demand of the OP. As per the instructions of the surveyor the complainant had also supplied all the documents to the surveyor of OP by way of E-mail as well as hard copies of the all documents also supplied to the Surveyor. Thereafter the surveyor of OP had demanded the estimate cost of repair of the vehicle. Accordingly the workshop of the company "Ashok Leyland' had prepared the estimated cost of the repair of the Truck/Tipper and the said estimate was given to the surveyor of OP. Surveyor of OP had also prepared the motor spot Survey Report dated 26-03-2023. The surveyors of OP kept on linger on the matter on the pretext of the demanding the documents from complainant and the said documents were duly supplied to the surveyor of OP upto their satisfaction. Thereafter the surveyor of OP kept silent and despite a number of requests and reminders, he didn't give any response to complainant. Complainant kept on running pillar to post for getting the claim of the loss and damage of his vehicle. Finally on 04-09-2023 OPs No.1 and 2 had wrongly, illegally and arbitrary repudiated the claim of the complainant. The complainant has sent the legal notice dated 16.10.2023 to the OP, but all in vain and as such, necessity arose to file the present complaint with the prayer that the complaint of the complainant may be accepted and OPs be directed to indemnify the loss of complainant and make the payment of Rs.24,81,687/- estimated cost of Repair of the Truck/Tipper to complainant for the loss caused to the Truck/Tipper of the complainant due to accidental burn of the Truck/Tipper bearing number PB-08-EG-8856 and further giving directions to the OP to settle the claim as per the terms and conditions of the Assurance policy bearing No.36020431220300000004 in the name of M/s Mohan's Earthmovers, C/o 18, New Model Town Jalandhar may kindly be allowed in the interest of justice, equity and fair play AND Further giving directions to make the payment of Rs.3,00,000/- for causing mental harassment, agony and humiliation to complainant by not settling the claim of complainant against Assurance policy bearing number 36020431220300000004 in the name of M/s Mohan's Earthmovers, C/o 18, New Model Town Jalandhar may kindly be allowed in the interest of justice, equity and fair play.
2. Notice of the complaint was given to the OPs, who filed reply and contested the complaint by taking preliminary objections that immediately on the receipt of information qua the loss/damage caused to vehicle no.PB08-EG-8856, Er. Jai Behl Surveyor and Loss And Assessors & Values were appointed as spot surveyor, who have submitted their spot survey report dated 26.03.2023 along with photographs of the damaged vehicle Ex-01. Further M/s J.S Khurana & Associates Insurance Surveyor and Loss Assessors were appointed as surveyor for the assessment of loss to the vehicle. M/s J.S Khurana & Associates submitted their Survey Report dated 01.09.2023, with the OP assessing loss Net Off Salvage basis without RC to the tune of Rs.1577500.00 and with RC to the tune of Rs.1297500.00. The said surveyor has recommended the loss on Net Off Salvage basis with RC to the tune of Rs.1297500.00. In the remarks column at page no.3 of the survey report it was observed by the said surveyor as under:-
(a). On going through the physical inspection of the captioned vehicle, a fan and extra wiring was observed in the cabin. As per service record provided by the supplier/dealer fan and extra wiring is not being fitted by the supplier/dealer. Therefore the insurer is requested to keep this factor into consideration before finalizing the claim.
(b) As depicted in the spot photographs, the vehicle is loaded with Coarse Sand and load body is completely filled up to top. The weight calculation is done as per dimension of load body and as such the weight of sand was 28,125 KG. Thus the vehicle was loaded with 28125 KG sand at the time of accident. Therefore the insurer's are requested to look into the matter before finalizing the claim'. Taking into consideration the fact that the vehicle was overloaded i.e. was carrying 28125 KG of sand at the time of accident as against the carrying capacity of 13500 KG, thus there was clear overloading of 14625 KG i.e. 58%. Further, taking into consideration that the cause of the accident due to short circuiting and as per remarks given by the final surveyor the vehicle was fitted with fan and extra wiring not supplied by the dealer/OEM. This extra fitting can be the cause of short circuiting, the claim of the complainant was repudiated and filed as No Claim. Letter dated 04.09.2023 to this effect was written to the complainant. It is further averred that the claim of complainant has been rightly repudiated by the OP as per terms and conditions of policy of insurance and as such there is no deficiency of service or unfair trade practices on the part of the OPs, thus there is no deficiency of service or unfair trade practices on the part of the OPs, thus the complaint filed by the complainant is liable to be dismissed.
3. Rejoinder to the written statement filed by the complainant, whereby reasserted the entire facts as narrated in the complaint and denied the allegations raised in the written statement.
4. In order to prove their respective versions, both the parties have produced on the file their respective evidence.
5. We have heard the learned counsel for the respective parties and have also gone through the case file very minutely.
6. The complainant firm is the registered owner of the vehicle bearing registration No.PB08EG8856 on 01.05.2019. The copy of the RC has been proved Ex.C-3. The certificate of fitness has been proved as Ex.C-4. The vehicle was insured from OPs No.1 and 2 for the period of one year from 05.04.2022 to 04.04.2023 as per policy Ex.C-5/O-4. It is not disputed that the premium was paid. The complainant has alleged that the vehicle is being used for the purpose of loading and unloading of soil to the sites of national highways and the vehicle is used by the firm through the complainant being the partner for the purpose of earning his livelihood. The complainant has alleged that on 13.03.2023 at about 04:45 PM, the driver of the vehicle was carrying soil in the vehicle and was to unload the soil at the site near Village Nano Malian, Distt. Kapurthala. When the vehicle was parked, it started burning with fire. He alongwith the driver tried to extinguish the fire, but due to said fire, the cabin and engine of the vehicle was burnt completely. This all happened due to short circuit in the cabin of the vehicle. The matter was duly reported to the police at Sultanpur Lodhi, Kapurthala. DDR to the this effect was registered on 14.03.2023 Ex.C-6 and the intimation was given to the OPs also, which has not been denied. It has been alleged that the representative of the OPs came on the spot within an hour and took the photographs of the vehicle after tracing out the engine number and chassis number. The vehicle was dropped to the workshop of M/s Ashok Layland, Jalandhar for repair. The burnt condition of the vehicle has been proved by way of photographs Ex.C7. The estimate of Rs.22,81,687/- for repair was given to him and the copy of the estimated cost of repair has been proved as Ex.C-8. The claim was lodged with the OP, which was rejected by the OP, vide Ex.C-10/O-3 on the ground that ‘the vehicle was loaded with sand and you have not provide any load challan for the same. As per spot photographs sand was loaded upto its upper level. Final surveyor confirmed that as per dimension of the load body vehicle was loaded with 28125 kgs sand at the time of accident which is clear cut case of overloading.’
7. The report of the Surveyor Ex.C-9 has been proved, which is the spot surveyor report and as per his report, the damages sustained to the said vehicle coincide with the nature and cause of accident. Another surveyor was appointed who has given his report Ex.O-2. He was appointed for the assessment of the loss to the vehicle. As per his report, the vehicle was loaded with Rs.28,125/- kgs of sand at the time of accident, which is allegedly clear cut case of overloading as per Ex.C-10. Another remark given by the surveyor was that on the physical inspection of the vehicle, fan and extra wiring was observed in the cabin which was not fitted by the supplier or dealer. On the basis of these two remarks, the claim was repudiated vide Ex.C-10/O-3.
8. As per the written statement and Ex.C-10 the vehicle was carrying 28,125 kgs of sand against the carrying capacity of 13500 kg and it has been alleged that there was overloading of 14625 kg. The report on the spot of the Surveyor Ex.C-9 nowhere shows that it was over loading or it was loaded upto upper level as alleged in Ex.O-2. Similarly, it has not been mentioned anywhere that there was any extra wiring in the vehicle. As per the report of the Surveyor Ex.O-2, a fan and extra wiring was observed in the cabin, which was not fitted by the supplier. He has not mentioned anywhere as to how he has come to the conclusion that this fan and extra wiring was there in the cabin. As per Ex.C-10, it has been mentioned by the OPs that as per the report of Surveyor, fitting of fan and extra wiring could be the cause of accident, but in the report Ex.O-2 nothing has been mentioned by the Surveyor as this to be the cause of accident. Similarly, the OPs have rejected the claim on the ground that the surveyor has given the report that vehicle was loaded with the 28125 kgs sand at the time of accident which is clear cut case of overloading, but in the report the surveyor has nowhere mentioned that this was the clear cut case of overloading. There is no expert opinion of any technical person to show that the extra wiring and fitting of fan was there and that was the cause of accident. The OPs have not mentioned anywhere that on the basis of which report they have come to the conclusion that the extra wiring is the cause of accident. The OPs have not produced on record any document to show that from which documents they come to the conclusion that the vehicle was overloading. The surveyor has nowhere given his remarks or his opinion that the vehicle was over loading. It is not the case of the OPs that the sand was weighed on the spot to come to the conclusion that it was over loaded. In the written statement, it has been mentioned that there was overloading of 14625 kg, but there is no document on the record in support of this contention of the OPs. This is not the case of the OP that the weight was got measured from any contractor or transporter or any concerned person having weighing machine. There is no weight slip on the record to show that the vehicle was loaded with 28125 kg of sand as alleged nor the surveyor has alleged anywhere that the weight of the sand was measured on the spot from weight measuring machine. There is no document on record. The defence of overloading has been taken just merely on the assumptions. Therefore, without any document or any technical expert opinion it cannot be concluded that the vehicle was overloading and there was extra fitting of fan and wiring which has caused accident. The surveyor has opined that the insurer are requested to keep this factor of extra filling and wiring and loading of sand of 28125 kg before setting and finalizing the claim. But without considering other aspects the claim has been rejected which is wrong and illegal. Thus, the repudiation letter is hereby set-aside.
9. In view of the above detailed discussion, the complaint of the complainant is partly allowed and OPs are directed to pay the amount as per Ex.C-8/A Accident Estimate i.e. 22,81,687/- to the complainant. Further, OPs are directed to pay a compensation of Rs.25,000/- for causing mental tension and harassment to the complainant and Rs.15,000/- as litigation expenses. The entire compliance be made within 45 days from the date of receipt of the copy of order. This complaint could not be decided within stipulated time frame due to rush of work.
10. Copies of the order be supplied to the parties free of cost, as per Rules. File be indexed and consigned to the record room.
Dated Jyotsna Dr. Harveen Bhardwaj
04.10.2024 Member President
