Order by:
Sh.Mohinder Singh Brar, Member
1. The complainant has filed the instant complaint under section 35 of the Consumer Protection Act, 2019 stating that complainant is the owner of Truck bearing registration no.HR-69-C-9147 and she got the same insured from Opposite Party vide policy no.36110031810100002654 for the period 15.10.2021 to 04.10.2022. Unfortunately the said vehicle met with an accident on 09.02.2022 near Narela, Delhi and damaged badly. The said accident took place during the validity of above said policy. The vehicle was being driven by Harman Singh S/o Sh. Pratap Singh who was having valid and effective driving licence at the time of accident. The complainant immediately informed the Opposite Party regarding the accident of the vehicle. The Opposite Party registered the claim and appointed surveyor and loss assessor for assessment of the loss, who inspected the vehicle, collected documents, clicked photographs and submitted its survey report. The estimate loss to the vehicle was Rs.3,84,250/-, but the surveyor has wrongly assessed the estimate loss of Rs.50,578/-. The surveyor did not find any ambiguity in the claim lodged by the complainant and they recommended for settling the claim. Alleged that the claim of the complainant is duly payable, but the Opposite Party vide letter dated 09.06.2022 repudiated the claim of the complainant on the following grounds:
“In regard to above, it is inform you that Mr.Shalinder Kumar Gupta, independent surveyor, has submitted survey report dated 04/03/2022 received on 04/05/2022, while gone through the file it is observed that you have not submitted the National Authorization certificate of the above said vehicle as loss was occurred on 09/02/2022 at 5.00 AM at Narela Delhi other than the Home state. You are requested to submit us said National Permit Authorization certificate for our verification within 7 days from the receipt of this letter otherwise your claim shall be treated as No Claim.”
Alleged further that the Opposite Party has repudiated the claim on false and frivolous ground that national permit of the insured permit is not valid on the date of accident i.e. 22.12.2021. Alleged further that during that period, as per Covid-19 guidelines issued by the Government of India, all taxes, renewals of vehicular documents are exempted upto 31.10.2021 and said period was further extended. The said accident took place during the said exempted period. Further alleged that there is Circular/Guidelines of Head Office of the Opposite Party Company i.e. HO:MTD:2013:CIR:15 dated 03.04.2013 and head office of the Opposite Party company had sent the said circular to all Regional Offices of the Opposite Party companies. In the said circular guidelines were given to the offices of the Opposite Party as how to deal with the OD claims in the absence of permit. In view of the said circular claim of the complainant is payable and the Opposite Party company should have settle the claim but the Opposite Party has not paid and settle the genuine claim of the complainant. Further alleged that due to Covid-19 the said National permit could not be renewed in time and as per the guidelines of the Opposite Party insurance company the claim is payable even if renewal has been done after the accident. The complainant also served legal notice upon the Opposite Party, but to no effect. Claimed that the said act and conduct on the part of respondent is clear cut deficiency in service and unfair trade practice on the part of Opposite Party. Hence, this complaint. Vide instant complaint, the complainant has sought the following reliefs:-
a) Opposite Party may be directed to pay Rs.2,14,269/- alongwith interest @ 12 % p.a. from the date of loss till realization.
b) To pay an amount of Rs.2,00,000/- as compensation on account of mental tension and harassment.
c) To pay an amount of Rs.55,000/- as litigation expenses.
d) And any other relief which this Commission may deem fit and proper be granted to the complainant in the interest of justice and equity.
2. Opposite Party appeared through counsel and contested the complaint by filing written reply taking preliminary objections therein inter alia that the complaint is not maintainable; the complainant has got no locus-standi; no deficiency in service has been attributed to the opposite party and from the allegations in the complaint no deficiency in service is made out; the complaint is absolutely false and frivolous. Complicated questions of law and facts are involved in the present complaint. Moreover lengthy examination-in-chief and cross examination of the party/witnesses are required in the complaint. So the complaint is required to be decided by the civil court and as such this Commission has got no jurisdiction to entertain, try and dispose off the complaint; the complainant has not approached this Commission, with clean hands rather he has willfully concealed the material and patent facts from this Commission while filing the present complaint which ipso-facto disentitles the complainant to seek any relief against the opposite party. Averred that the alleged accident took place on 09.02.2022 near Narela, Delhi. Intimation of the said accident was received on 11.02.2022, but the insured vehicle No.HR-69-C-9147 was not having a valid National Route Permit of Authorization at the time of accident. On verification it was found that the route permit was issued on 10.02.2022 and was valid upto 20.04.2022 and the route permit was not valid on 09.02.2022. Hence a letter dated 09.06.2022 was sent to the complainant and the complainant was requested to submit National Permit Authorization Certificate valid on 09.02.2022 within seven days from the receipt of this letter, otherwise the claim of complainant was to be treated as "NO CLAIM". The complainant has not provided any National permit Authorization Certificate which was valid on 09.02.2022 at 5:00 AM at Narela, New Delhi. Therefore, for the violations of the insurance policy, the claim of the complainant is not payable. Averred further that on receipt of intimation of the said accident on 11.02.2022, immediately surveyor Sh. Shailender Kumar Gupta, was appointed to make the assessment of loss, who submitted his Motor Survey Report on 04.03.2022 and assessed the loss at Rs.50,578.90 NP. Averred further that complaint of the complainant is false, frivolous, baseless, vague, malicious and C.P. Act. On merits, all other allegations made in the complaint are denied and a prayer for dismissal of the complaint is made.
3. In order to prove her case, the complainant has tendered into evidence her affidavit Ex.CW1/A alongwith copies of documents Ex.C1 to Ex.C35.
4. To rebut the evidence of complainant, ld. counsel for the Opposite Parties has tendered into evidence affidavit of Smt.Sunita Mahajan, Divisional Manager, The New India Assurance Co. Ltd. as Ex.OP1 alongwith copies of documents Ex.OP2 to Ex.OP8.
5. We have heard the ld. counsel for both the parties and also gone through the record.
6. The case of the complainant is that the complainant is the owner of Truck bearing No.HR-69-C-9147, which was insured with Opposite Party vide policy no.36110031810100002654 for the period 05.10.2021 to 04.10.2022. During the policy period, the said vehicle met with an accident on 09.02.2022 and the vehicle was being driven by Harman Singh s/o Pratap Singh, who was having valid and effective driving licence at the time of accident. The complainant immediately informed the Opposite Party regarding the accident, who appointed Shailender Kumar Gupta surveyor and loss assessor for assessment of the loss, who inspected the vehicle, collected documents, clicked photographs and submitted its survey report and assessed the estimate loss of Rs.50,578/-. But however, vide letter dated 09.06.2022, the Opposite Party repudiated the claim of the complainant.
7. On the other hand, ld. counsel for the Opposite Party contended that at the time of alleged accident, the insured vehicle No.HR-69-C-9147 was not having a valid National Route Permit of Authorization. On verification it was found that the route permit was issued on 10.02.2022 and was valid upto 20.04.2022 and the route permit was not valid on 09.02.2022. Hence vide letter dated 09.06.2022 complainant was requested to submit National Permit Authorization Certificate valid on 09.02.2022 within seven days from the receipt of this letter, otherwise the claim of complainant was to be treated as ‘no claim’."NO CLAIM", but the complainant failed to submit National permit Authorization Certificate. Therefore, the claim of the complainant is not payable.
8. We have considered the rival contentions of ld. counsel for both the parties and carefully gone through the record. It is proved that at the time of accident National Permit of the insured vehicle is not valid. However, in our concerted view the violation in question not appears to be a material violation of the term of the policy in question. Moreover, even if the complainant has not valid permit of the vehicle in question at the time of accident, it does not mean that he was not a skilled driver. Perusal of the record further reveals that on receipt of intimation of the accident on 11.02.2022, the Opposite Party appointed surveyor namely Shailender Kumar Gupta for assessment of the loss, who submitted its report (Ex.OP5) with Opposite Party and assessed the net loss to the tune of Rs.50,578/-. Moreover, the complainant has not raised any objection with regard to the surveyor report. We are of the concerted view that the Opposite Party has to settle the claim of the complainant as per the surveyor report, as surveyor report is an important document and the same cannot be brushed aside without valid reasons. Reference in this regard may be made to the judgment of the Hon’ble Supreme Court reported as “Sri Venkateshwara Syndicate v. Oriental Insurance Company Limited, II (2010) CPJ 1 (SC)” in which it was held by the Hon’ble Supreme Court that the report of the Surveyor is to be given due importance and weight. Hon’ble National Commission in case cited as PRADEEP KUMAR SHARMA versus NATIONAL INSURANCE COMPANY, III(2008) CPJ 158 (NC), has been held that “Surveyor Report is an important document and cannot be brushed aside without any compelling evidence to the contrary”. Not only this, recently Hon’ble National Consumer Disputes Redressal Commission, New Delhi in case National Insurance Company Limited Vs. M/s.Kiran Collector & Boutique 2019 (1) CLT 384 (NC), decided on 24th July, 2018 has held that “General rule is that the surveyors are appointed under the Insurance Act, 1938 and their reports are to be considered for settlement of insurance claims- The reports can not be brushed aside without any cogent reasons.”
9. Keeping in view the aforesaid facts and circumstances and relying upon the judgements of Hon’ble Supreme Court of India as well as Hon’ble National Commission, New Delhi (supra) we are of the view that the instant complaint is to be decided on the basis of unrebutted surveyor report.
10. From the discussion above, the instant complaint is partly allowed and the Opposite Party is directed to make the payment of Rs.50,578/- (Rupees Fifty Thousand Five Hundred Seventy Eight only) to the complainant on account of repair charges of the insured vehicle in question, on the basis of report of surveyor alongwith interest @ 8% per annum from the date of filing the complaint i.e. 17.01.2023 till its realization. Further Opposite Party is directed to pay compository cost of Rs.5,000/-(Rupees Five Thousand only) as compensation and litigation expenses to the complainant. The pending application (s), if any also stands disposed of. The compliance of this order be made by the Opposite Party within 45 days from the date of receipt of copy of this order, failing which, the Opposite Parties are further burdened with additional cost of Rs.10,000/-(Rupees Ten Thousand only) to be paid to the complainant for non compliance of the order. Copies of the order be furnished to the parties free of costs. File is ordered to be consigned to the record room.
Announced in Open Commission
