Complaint No: 248 of 2022.
Date of Institution: 13.12.2022.
Date of order: 06.09.2023.
Onkar Nath Son of Ganda Mal Proprietor of Amrish Poultries, Railway Road, Dinanagar, Tehsil Dinanagar, District Gurdaspur.
.....Complainant.
VERSUS
- The New India Assurance Company Ltd., Divisional Office, Dalhousie Road, Pathankot, through its Branch Manager. Pincode - 145001
- The New India Assurance Company Ltd., having office at G.T. Road, Gurdaspur, through its Branch Manager. Pincode - 143521
- Regional Transport Office, Lakhanpu (J&K), through its concerned person. Pincode - 184152
….Opposite parties.
Complaint U/s 35 of the Consumer Protection Act.
Present: For the complainant: Sh.Sandeep Ohri, Advocate.
For the opposite parties No.1 and 2: Sh.Aditya Sooden, Advocate.
Opposite party No.3: Exparte.
Quorum: Sh.Lalit Mohan Dogra, President, Sh.Bhagwan Singh Matharu, Member.
ORDER
Lalit Mohan Dogra, President
Onkar Nath, Complainant (here-in-after referred to as complainant) has filed this complaint under section 35 of the Consumer Protection Act, (here-in-after referred to as 'Act') against The New India Assurance Company Ltd. Etc. (here-in-after referred to as 'opposite parties).
2. Briefly stated, the case of the complainant is that the complainant is running this business of Poultry and is supplying the poultry related items to the different states. It was submitted that the complainant purchased one vehicle having registration No.PB-06-AZ-8685 on 24.05.2021 i.e. New Transport Vehicle registered on 10.06.2021 in his name and the said vehicle was purchased during the Covid Period. It was further submitted that the complainant got insured his vehicle from the New India Assurance Company Ltd. and the policy for a period from 24.05.2021 to 23.05.2022 was issued for the commercial vehicle of the complainant after receiving the premium of Rs.28,182/-. It is further pleaded that complainant used to supply the poultry goods to the J&K State and while supplying the poultry items the vehicle of the complainant met with an accident on 21.10.2021 at Chari Pari Battal Udhampur (J&K) and the vehicle got damaged in the accident. It is further pleaded that accident took place on 21.10.2021 and at that time the RTA Office of J&K lying closed and the Govt. also issued notification for the movement of the commercial vehicles without the permit and other certificate for the transportation of the availability of goods during the covid period. It is further pleaded that there is no need for the permit as per the Govt. Notification and even the office of RTA (J&K) lying closed and it was not possible to pay any TAX for the permit for J&K and while supplying the poultry goods the vehicle of the complainant met with an accident on 21.10.2021. It was further submitted that the intimation of the accident has been duly given to the insurance company and the surveyor has also been appointed. It is further pleaded that all the relevant documents have been duly supplied to the insurance company required for finalization of the claim. It was further submitted that as per instructions of the Insurance Company the complainant got repaired his vehicle from CARGO Motors Pvt. Ltd. and the amount of Rs.9,50,000/- approx. spent on the repair of the vehicle as the vehicle got badly damaged in the accident. It is further pleaded that amount of the bill has been duly paid by the complainant and the original bill has been duly submitted to the insurance company for getting the claim. It is further pleaded that copy of the Bill issued by Sirhind Bodybuilders of Rs.4,51,900/- and of Cargo Motor of Rs.4,63,082/-. It was further alleged that the period of one year has been passed but till today the insurance company is not making payment of the genuine claim of the complainant and is making false excuses. It is further pleaded that all the relevant documents has already been provided to the insurance company, but the insurance company again sent one letter dated 26.04.2022 to the complainant and is making vague demand of documents i.e. Route Permit of the vehicle in J&K, Load Challan and Invoice of Purchase Vehicle. It was further alleged that the insurance company is very much aware of the fact that the Govt. of India has already allowed the vehicle for the transport of goods during the spread of Covid-19 and in view of the said notification if the permit or other certificate was not likely to be granted due to lockdown then there is no need of such document. It is further pleaded that the office of RTA (J&K) was lying closed and it was not possible for paying the TAX for getting the permit for J&K and as such there is no fault of the complainant, but inspite of that the insurance company is again and again making demand of permit required for J&K. It is further pleaded that due to this illegal act and conduct of the opposite parties 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 parties.
On this backdrop of facts, the complainant has alleged deficiency and negligence in service and unfair trade practice on the part of the opposite parties and prayed that necessary directions may kindly be issued to the opposite parties to pay the claim amount of Rs.9,50,000/- along with interest @ 12% per annum from the date which becomes dues till its realization and may also be directed to pay the compensation of Rs.5 Lakhs as compensation for harassment, mental agony, deficiency in service and opposite parties be also directed to pay Rs.20,000/- as litigation expenses, in the interest of justice.
3. Upon notice, the opposite parties No.1 and 2 appeared through counsel and contested the complaint and filing their written reply by taking the preliminary objections that the complainant has approached the Hon'ble Commission prematurely as there is an insurance Grievance Redressal System in place, he should have approached to the Insurance Ombudsman Office situated in various cities of India (nearly Chandigarh) and thereafter the Grievance Redressal System of the Insurance Regulatory and Development Authority of India (IRDAI); that the present complaint is false, frivolous, and vexatious to the express knowledge of the complainant and the same deserves to be dismissed on this score alone; that the complainant has not approached the court with clean hands and has concealed material facts from this Hon'ble Court. It is further pleaded that all the government offices in the District Kathua were functioning and operational on and before the date of the alleged accident; that the complainant has committed material violations of policy conditions as stated in the contract of insurance and he has operated the vehicle in contravention of the law as such he is not entitled to any relief as claimed by him and the documents produced by the complainant are objected to on the mode of proof and admissibility in evidence and no cause of action has arisen for to the complainant to file the present case. It is further pleaded that claim of the complainant has already been repudiated and the same has been duly intimated to the complainant. It is pleaded that the complainant is misreading, misinterpreting, and selectively reading and translating the text of the said notification to suit his needs. It is further pleaded that a plain reading of the subject line and the Para 4 (a) Validity of documents of the said notification itself makes it abundantly clear that the same was pertaining to the Extension of the validity of documents related to Motor vehicles act, the same was not applicable to the present case where the documents were dot existing. It is further pleaded that in the present case the complainant was only holding a permit to ply within Punjab. It is further pleaded that as per the order bearing No.DMK/JC/2021-22/1974-92 dated 27/09/2021 of the Chairman, District Disaster Management Authority (DDMA)/District Magistrate, Kathua, all the government offices were made functional and The RTO, Lakhanpur in a reply to the RTI application filed by the replying OP's has clearly stated that the RTO, Lakhanpur was functioning since the month of September, 2021 and they have further clarified that the tax was not being collected from only those out of state vehicles who had submitted their quarterly tax before 1st Feb 2020, it is further clarified that any commercial vehicle having route permit of Punjab State only was not allowed to ply in the state of J&K without payment of tax in the months of August, September and October 2021, as such, the version of the complainant that the office of the RTA, was lying closed or that the complainant was unable to pay any TAX for state permit of J& K appears to be a falsity. It would not be out of context to say that the vehicle was being illegally plied in the state of J&K in contravention of the law. It is further pleaded that the complainant has failed to complete all the formalities as requested from him and has also not provided the required documents in time resulting in a delay in processing the claim. It is further pleaded that the complainant has deliberately been concealing true information and since the filing of the claim he has failed to disclose true, full, and honest information to the replying OP's which is a material violation of the policy condition. It is further pleaded that no instructions were ever issued by the replying OP's to the complainant to get his unspecified vehicle repaired from CARGO Motors Pvt. Ltd. It is further pleaded that it is wrong that an amount of Rs.9,50,000/- was spent on repairs of the unspecified vehicle. It is further pleaded that it is not out of place to mention here that as per the report of surveyor the loss was assessed at Rs.7,38,000/- only, but assessment of loss by the surveyor alone does not entitle the complaint to the claim amount. It is further pleaded that approval of an insurance claim is subject to the fulfillment of the terms & conditions of the contract of insurance. It is further pleaded that the acceptance or rejection of the claim on the basis of the verification of facts and documents of each case is the domain of the insurance company. It is further pleaded that claim of the complainant was repudiated and the complainant was duly informed of the decision by the replying OP's vide their letter dated 09th May 2022 since it was not found to be genuine and the complainant failed to comply and fulfills the terms of insurance. It is further pleaded that the insurance company has the right to reject the claim if it is not found genuine and where there are material violations of policy conditions. It is wrong to say that the complainant had submitted all the relevant documents as is evident from the foregoing paras of this reply. It is further pleaded that demand of documents is a procedural formality that is neither fake nor vague. It is further pleaded that demand of documents from the complainant was as per the narration submitted by him and was relevant for proper disposal of the claim but the complainant had deliberately delayed and failed to complete the required formalities and answer the queries put to him by the officials of the opposite parties and the claim of the complainant was not found to be genuine as such the same was repudiated.
On merits, the opposite parties No.1 and 2 have reiterated their stand as taken in legal objections and denied all the averments of the complaint and there is no deficiency in services on the part of the opposite parties. In the end, the opposite parties prayed for dismissal of complaint with costs.
4. Sh.Vikramjit Mengi Jr.Asstt. had appeared on behalf of opposite party No.3 on 01.03.2023 but after that none had appeared on behalf of opposite party no.3 for filing of written reply and opposite party No.3 was proceeded against exparte vide order dated 05.04.2023.
5. Learned counsel for the complainant has tendered into evidence affidavit of Onkar Nath, (Complainant) as Ex.CW-1/A along with other documents as Ex.C-1 to Ex.C-12.
6. Learned Counsel for the opposite parties No.1 and 2 has tendered into evidence affidavit of Sh.Pardeep Choudhary (Divisional Manager, Division Office Pathankot, New India Assurance Co. Ltd.) as Ex.OPW-1,2/A along with other documents as Ex.OP-1 to Ex.OP-8.
7. Rejoinder filed by the complainant.
8. Written arguments filed by the complainant but not filed by opposite parties no.1 and 2.
9. Counsel for the complainant has argued that truck owned by the complainant which was insured with the opposite party No.2 met with an accident on 21.10.2021. However, the opposite parties No.1 and 2 repudiated the claim lodged by the complainant on the ground that truck was being used in J&K without valid permit and paying tax. It is further argued that truck was taken to J&K without permit and payment of tax was not made, as it was period of lock down due to spread of Covid-19 and vehicles were exempted from route permit and taxes etc by the govt of J & K.
10. On the other hand counsel for the opposite parties no.1 and 2 has argued that policy of insurance and accidental loss to the vehicle is admitted but since the complainant was plying the truck in J&K without permit and tax receipts as such claim was not payable and was repudiated by the insurance company rightly. It is further argued that information under RTI was obtained by the opposite parties No.1 and 2 as per which it has been disclosed vide Ex.OP-5 that all the offices of RTO and Taxes authorities were opened when the said accident took place.
11. Opposite party No.3 remained exparte.
12. We have head the counsels for the complainant and opposite parties No.1 and 2 and gone through the record. It is admitted fact that the complainant is registered owner of truck No.PB06-AZ-8685. It is further admitted that said truck was insured with opposite party No.1 and 2 for the period w.e.f. 24.05.2021. to 23.05.2022. It is further admitted fact that the said truck was met with an accident on 21.10.2021 at Chari Pari Battal Udhampur in the State of J&K. It is further admitted fact that truck owned by the complainant was having only permit of Punjab and not for State of J&K. The only disputed question for adjudication before this Commission is whether the repudiation of claim by opposite parties No.1 and 2 was valid for non-availability of permit of State of J&K during the period of lock down.
13. To prove the case counsel for the complainant has placed on record copy of tax invoice Ex.C1, copy of R.C. Ex.C2, copy of policy of insurance Ex.C3, copies of bills Ex.C4 and Ex.C5 regarding repair of the truck, copy of notifications dated 30.09.2021 Ex.C8 and 09.06.2020 Ex.C9 whereas counsel for the opposite parties No.1 and 2 has relied upon the evidence of Sh.Pardeep Choudhary, Divisional Manager and order of District Magistrate Kathua Ex.OP-2, copy of RTA application Ex.OP-3 and RTI information Ex.OP-5.
14. The main contention of counsel for the complainant is that as per notification Ex.C8 during the period of lock down all the documents in respect of vehicles which had expired during the lock down shall be treated as valid till 31.10.2021 and since the accident took place on 21.10.2021 as such non-availability of permit of J&K does not effect the case of the complainant whereas counsel for the opposite parties No.1 and 2 has contended that the said notification is regarding extension of time in respect of documents already available in respect of which validity had expired but in the present case complainant was not having any route permit of J&K and as such notification Ex.C8 is of no help to the case of the complainant and has also argued that as per RTI information provided by District Magistrate Kathua all the offices of RTO and tax authorities were opened at that time.
15. We are of the view that although notification Ex.C8 pertains to extension of time in respect of validity expired during the period of Covid-19 but the case of the complainant also falls with in the said notification as there were definitely restrictions throughout India during the period when the accident took place and merely by relying upon some reply given by District Magistrate Kathua that offices were opened, the claim of the complainant cannot be rejected. We have to see that although offices were opened but at that time although the offices were opened but some time with restricted staff and some time opened without carrying on any work due to fear of spread of Corona Virus. Moreover, the complainant was having all other relevant documents at the time of accident and opposite parties No.1 and 2 have not been able to prove as what prejudice has been caused to the opposite parties No.1 and 2 if truck was being plied in the State of J&K without valid permit that also during the period when entire country was under distress due to covid-19. As such we are of the view that non-availability of permit and tax receipts of J&K is domain of Govt. of J&K who could had penalized the complainant for having plied the truck in their State without valid permit and payment of tax. As such we are of the view that the insurance companies are only interested in collecting the premiums from the public and when it comes to payment of claim the insurance companies take one excuse or the other and in the present case also some documents having been demanded by the opposite parties No.1 and 2 which have no concern with the settlement of the claim.
16. We have placed reliance upon the judgment of the Hon'ble Supreme Court of India reported in 2022 LiveLaw (SC) 506 in Civil Appeal No.4071 of 2022; May, 20, 2022 in case titled as Gurmel Singh Versus Branch Manager, National Insurance Co. Ltd. wherein it is held as under:-
"Insurance - Insurance companies refusing claim on flimsy grounds and/or technical grounds - While settling the claims, the insurance company should not be too technical and ask for the documents, which the insured is not in a position to produce due to circumstances beyond his control”. (Para 4.1).
"Consumer Protection Act, 1986; Section 2(g) - Insurance - Deficiency in Service - When the insured had produced the photocopy of certificate of registration and the registration particulars as provided by the RTO, solely on the ground that the original certificate of registration (which has been stolen) is not produced, non settlement of claim can be said to be deficiency in service". (Para 4)
17. We have also placed reliance upon the judgment of Hon'ble National Consumer Disputes Redressal Commission, New Delhi reported in 2020(3) C.P.J. 184 in Revision Petititon No.313 of 2015. D/d. 24.08.2020 in case titled as United India Insurance Co. Ltd. Vs. Singhla Engineers & Contractors Pvt. Ltd. wherein it is held as under:-
"Consumer Protection Act, 1986 Sections 2(1)(g), 14(1)(d) and 21(b) Motor Vehicles Act, 1988 Section 66 Repudiation of claim - Deficiency in service - Vehicle did not have valid route permit for Haryana - There is a huge distinction between not having route permit at all and having route permit but not having relevant route permit at point of time - Complainant, as soon as it became aware that it did not possess route permit for accident site, took immediate steps to rectify situation - Nothing greatly amiss was found in such conduct by concerned Haryana Authorities either as such a permit was granted with retrospective effect - This suggests that non-possession of route permit was not an act of intent, with any mla fide motive; indeed, it could not be as is hard to imagine how complainant would have gained by not having route permit - Complainant had a route permit for Punjab, it was surely not problem to have one for Haryana also - Mala fide on part of complainant not proved - Petition dismissed".
18. As such by relying upon the judgments of Ho'ble Supreme Court of India and Hon'ble National Consumer Disputes Redressal Commission, New Delhi and gone through the record we are of the view that act of opposite parties No.1 and 2 having repudiated the claim of the complainant amounts to deficiency in service and present complaint is partly allowed by giving the directions to the opposite parties No.1 and 2 to pay the claim amount of Rs.7,38,000/- as assessed by the surveyor to the complainant from the date of filing of the complaint till its realization. Opposite parties No.1 and 2 are further directed to pay Rs.10,000/- on account of mental tension, harassment and costs of litigation. Entire exercise shall be completed within 30 days from the date of receipt of copy of this order.
19. The complaint could not be decided within the stipulated period due to heavy pendency of Court Cases.
20. Copy of the order be communicated to the parties free of charges. After compliance, file be consigned to record.
(Lalit Mohan Dogra)
President
Announced: (B.S.Matharu)
Sept. 06, 2023 Member
*YP*
