Before the District Consumer Disputes Redressal Forum, Rohtak.
Complaint No. : 247.
Instituted on : 25.04.2011.
Decided on : 21.03.2016.
Dalbir Singh s/o Sh. Jiya Lal R/o VPO Nandgarh Distt. Jind, Haryana.
………..Complainant.
Vs.
- The New India Assurance Company, 313, Delhi Road, Modal Town, Rothak.
- Lokendra Claims Care Corporation, 44/Pocket C-12/Sector-3, Rohini, Delhi-110085.
……….Opposite parties.
COMPLAINT U/S 12 OF CONSUMER PROTECTION ACT,1986.
BEFORE: SH.JOGINDER KUMAR JAKHAR, PRESIDENT.
MS. KOMAL KHANNA, MEMBER.
SH. VED PAL, MEMBER.
Present: Sh.G.K.Lalit, Advocate for the complainant.
Sh.R.K.Bhardwaj, Advocate for the opposite party no.1.
Opposite party no.2 exparte.
ORDER
SH. JOGINDER KUMAR JAKHAR, PRESIDENT :
1. The present complaint has been filed by the complainant with the averments that he is registered owner of vehicle/Tata 46B-7839 and the said vehicle is goods carrying commercial vehicle and was insured with the opposite party vide policy no.353800/31/08/00003474 for the period 14.08.2008 to 13.08.2009. The IDV of the vehicle was Rs.1100000/-. It is averred that the said vehicle met with an accident on 05.04.2009 in the state of Gujarat near Kutch. It is averred that complainant informed the opposite party about the accident and after the survey of vehicle the complainant got temporarily repaired the vehicle and spent an amount of Rs.33000/- both for spare parts and labour charges and somehow temporarily managed the vehicle to reach Himachal Pradesh and unladen the truck there and came back to Rohtak. It is averred that at the time of accident the complainant was not in a position to get his vehicle repaired permanently, so he got his vehicle repaired in the month of September, 2009 by borrowing the money and spent Rs.218820/- on his vehicle. It is averred that complainant sent various reminders to the opposite parties qua the above mentioned insurance claim of the vehicle in question and for settlement of claim but to no effect. It is averred that the act of opposite parties is illegal and amounts to deficiency in service. As such it is prayed that opposite parties may kindly be directed to make the payment of amount spent by the complainant on repair of his vehicle i.e. Rs.250000/- alongwith compensation and litigation expenses to the complainant.
2. On notice, the opposite parties appeared and filed their separate written reply. Opposite party no.1 in its reply has submitted that the insurance company asked for certain clarifications pertaining to the above claim on 28.06.2010, 23.07.2010 etc. by registered letter but the complainant did not bother to give the required clarifications till date. Therefore, no claim was passed against the complainant. It is averred that according to the investigator report cowl assly/dash board was pulled out and chassis was temporarily repaired. Thus it is very difficult that a vehicle went Kandla to Himachal Pradesh with 28 tones in such condition. Thus the case is doubtful. It is averred that as per terms and conditions of the policy the Insurance company can give Rs.2500/- for temporary repair and not more than Rs.2500/-. It is averred that according to final survey the loss was assessed for Rs.170825/- which is on higher side. On merits it is submitted that complainant did not furnish all relevant documents required by law. The insurance company issued repeated letters to send some documents which are necessary for settling the case but the complainant did not supply the documents as required by law. It is wrong that complainant had spent Rs.250000/- for repairing the vehicle and that he is entitled for Rs.50000/- as compensation. It is prayed that the complaint may kindly be dismissed with costs.
3. Opposite party no.2 in its reply has submitted that he was appointed as investigator in the present case and has submitted his report dated 02.03.2012 with the insurance company. It is averred that after submission of report, it is the insurance company who decides and settles the case and the undersigned has no role and control over their decision. It is averred that the answering opposite party is not liable to give him any service and hence the complaint against the answering opposite party be dismissed.
4. Both the parties led evidence in support of their case.
5. Ld. Counsel for the complainant in his evidence tendered affidavit Ex.CW1/A, documents Ex.C1 to Ex.C18 and has closed her evidence. On the other hand, ld. Counsel for the opposite party no.1 in his evidence has tendered affidavit Ex.R1, document Ex.R2 to Ex.R9 and has closed his evidence. However opposite party no.2 was proceeded against exparte vide order dated 26.08.2014 of this Forum.
6. We have heard learned counsel for the parties and have gone through material aspects of the case very carefully.
7. In the present case insurance and accident of the vehicle is not disputed. It is also not disputed that after the accident complainant filed the claim with the opposite parties. Opposite party no.1 appointed the surveyor who as per his report Ex.R3 has assessed the loss amounting to Rs.170825/- less salvage Rs.5000/- but the opposite party no.1 vide its letter Ex.R7 has filed the claim as “No Claim” on the ground that they have not received the clarification/required documents from the complainant. Opposite party no.1 vide its letter Ex.R8 has also submitted that the surveyor has assessed the loss as per the casual approach and asked him to make the correct assessment as per policy terms and conditions”. As per letter Ex.R9 also the opposite party no.1 has sought some clarification from the complainant and has not settle the claim for want of documents. Ld. Counsel for the opposite party has also placed reliance upopn the law cited in III(2015)CPJ 5B(CN)(WB) titled as Sago Packaging Pvt.Ltd. Vs. New India Ass.Co. Ltd. & Anr. whereby the claim of the complainant was repudiated for non-furnishing the documents”. On the other hand, contention of ld. Counsel for the complainant is that complainant had submitted all the required documents and completed all the formalities but till today the amount of claim has not been paid to the complainant by the opposite parties.
8. After going through the file and hearing the parties it is observed that plea for non-settlement of claim by the opposite parties is that complainant has not submitted the required documents. In this regard it is observed that all the documents have been placed on record by the complainant and also served to the opposite party and on the basis of which the surveyor has assessed the loss and has submitted his report. It is also on record that the opposite party no.1 appointed the investigator who as per his report Ex.C17 has submitted that there was no foul play in the case and had recommended to settle the claim on merits subject to policy terms and conditions. Hence the opposite party is liable to compensate the complainant. In this regard reliance has been placed upon the law cited in 1(2007) CPJ 458 titled as Bhagwanti Devi Vs. State of Himachal Pradesh & Anr. whereby Hon’ble Himachal Pradesh State Commission, Shimla has held that: “Mere letter of reminder asking from party, to provide certain documents and on failure to do needful, insurer to treat claim as ‘no cliam’ does not amount to repudiation” and as per 2008(3)CLT 377 titled Dharmendra Goel Vs. Oriental Insurance Co. Ltd., Hon’ble Supreme Court of India has held that: “If a particular claim to compensation is possible on the material on record, it should not be denied on hyper technical pleas that claim was limited by complainant to a lower amount”. Regarding the quantum of loss reliance has been placed upon the law of Hon’ble National Commission, New Delhi cited in III(2008) CPJ 93(NC) titled Champalal Verma Vs. Oriental Insurance Co. Ltd., whereby it is held that: “Insurance-Quantum dispute-Loss assessed by Surveyor awarded by State Commission-Amount spent on repairs claimed by complainant-Surveyor’s report to be given due weightage-Consumer Fora cannot go into quantum dispute-Complainant free to approach Civil Court/IRDA/Arbitration-Time spent before Consumer Fora to be set off”. In view of the aforesaid law which are fully applicable on the facts and circumstances of the case it is observed that the complainant is entitled for the claim amount as per surveyor report Ex.R3 of Rs.170825/- less Rs.5000/- as salvage value i.e. Rs.165825/- from the opposite party no.1. On the other hand, law cited above by ld. Counsel for the opposite party no.1 Sago Packaging Pvt.Ltd.(Supra) is not applicable on the facts and circumstances of the case as in that case documents were not furnished to the surveyor because of which surveyor could not assess the loss but in the present case all the documents were submitted by the complainant to the surveyor and keeping in view all the documents, the surveyor has assessed the loss.
9. In view of the facts and circumstances of the case, opposite parties no.1 is directed to pay the amount of Rs.165825/-(Rupees one lac sixty five thousand eight hundred twenty five only) along with interest @ 9% p.a. from the date of filing the present complaint i.e. 25.04.2011 till its realisation and shall also pay a sum of Rs.3000/-(Rupees three thousand only) as litigation expenses to the complainant maximum within one month from the date of decision failing which the awarded amount shall fetch interest @ 12% p.a. from the date of decision. Complaint is disposed of accordingly.
10. Copy of this order be supplied to both the parties free of costs. File be consigned to the record room after due compliance.
Announced in open court:
21.03.2016.
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Joginder Kumar Jakhar, President
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Komal Khanna, Member.
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Ved Pal, Member.
