DISTRICT CONSUMER DISPUTES REDRESSAL FORUM,<br /> BATHINDA (PUNJAB)<br /> <br /> C.C. No. 331 of 16.11.2007 Decided on : 4.3.2008 <br /> <br /> <br /> Devinder Singh S/o Joginder Singh C/o Sh. B.R. Singla, House No. 21605, Street No. 7, Power House Road, Bathinda. <br /> .... Complainant<br /> Versus<br /> The New India Assurance Company Limited, Divisional Office, The Mall, Bathinda through its Senior Divisional Manager.<br /> ..... Opposite party<br /> <br /> Complaint under section 12 of the Consumer Protection Act, 1986<br /> <br /> QUORUM:<br /> Sh. Lakhbir Singh, President<br /> Sh. Hira Lal Kumar, Member<br /> Dr. Phulinder Preet, Member<br /> <br /> For the complainant : Sh. K.S Brar, Advocate<br /> For the opposite party : Sh. Jaideep Nayyar, Advocate<br /> <br /> O R D E R. <br /> <br /> LAKHBIR SINGH, PRESIDENT:- <br /> 1. Instant one is a complaint under section 12 of the Consumer Protection Act, 1986 (Here-in-after referred to as the Act) which has been preferred by the complainant seeking direction from this Forum to the opposite party to pay him Rs. 2,55,000/- as loss of Tractor alongwith interest @ 18% P.A from the date of incident till realization; Rs. 50,000/- as compensation on account of mental agony, besides costs of the complaint.<br /> 2. Adumbrated in brief, the version of the complainant is that he is the owner of HMT Tractor bearing registration No. PB-03J-3248. It was comprehensively insured for a sum of Rs. 2,55,000/- (Rs. 2,45,000/- as Insured's Declared Value and Rs. 10,000/- as price of the accessories) with the opposite party vide Cover Note No. 580126 for the period from 14.3.2003 to 13.3.2004. Unluckily this Tractor had accidentally fallen in gorge at Gurna Gogna, District Pithoragarh (Dehradun) on 22.2.2004. Matter was reported to the police of Police Station Pithoragarh where G.D No. 25 dated 6.4.2004 was recorded. Intimation of the accident was given to the Branch Office of the opposite Insurance Company at Bathinda which had deputed Sh. D.B Chand as Surveyor & Loss Assessor for spot survey. He had submitted the report in the office of the opposite party in March, 2004. A sum of Rs. 1,270/- was charged from him (Complainant) as survey fee and fee bill No. 72 was issued. He (complainant) was making repeated requests to the opposite parties and sending reminders to pay him the lawful claim. Requisite documents were submitted by him. Despite this, opposite party has failed to settle the claim. Tractor has fallen in the gorge which is more than 350 meters deep i.e. approximately 1150 Feet deep. It is almost impossible to bring the Tractor out of it. If t he same is dismantled in the gorge (Khud) and its parts are taken out, then cost of dismantling and getting parts out of that gorge would become more than the value of the Tractor. Vide letter dated 3.11.2004, he was asked by the opposite parties to produce the vehicle for final survey without making any payment. If spot survey can be conducted by the Surveyor in the gorge, then why it is not possible for the Surveyor to inspect the vehicle for final survey in it. It is a case of total loss of the Tractor as it is not roadworthy. Claim amount has not been paid despite the fact that legal notice dated 6.10.2007 has been issued to the opposite party by him through his counsel.<br /> 3. On being put to notice, opposite party filed its version taking legal objections that complaint is not maintainable in the present form; complainant has no cause of action to file it; it is false and frivolous; it is hopelessly barred by time; complainant has got no cause of action; this Forum has got no jurisdiction to entertain and try the complaint; complainant is not consumer and he is estopped from filing the complaint. Inter-alia, its plea is that after receiving intimation regarding the accident concerning the insured vehicle Surveyor was appointed and survey was conducted at the spot. Report was submitted by him. Thereafter, insured was required to approach it with the necessary documents which include estimate of repairs, the name of the workshop where vehicle was parked so that Surveyor could be appointed for final survey. After getting the spot survey done, complainant became silent. He did not approach this office nor did he inform the particulars of the Workshop where the vehicle was parked so that final survey could be conducted. On his request, letter dated 3.11.2004 was issued. He was clearly told that availability of the vehicle be made known, but to no effect. He was informed that after considerable period of five months waiting for the documents, case has been closed. After long period of three years, complainant got issued legal notice which was duly replied. Certain documents have not been provided. They deny the remaining averments in the complaint.<br /> 4. In support of his allegations and averments in the complaint, Devinder Singh complainant tendered into evidence his own affidavits (Ex.C.1 & Ex.C.4), photocopy of Cover note (Ex.C.2), photocopies of letters (Ex.C.3, Ex.C.9, Ex.C.11, Ex.C.13 & Ex.C.15) respectively, photocopy of legal notice (Ex.C.5), photocopy of postal receipt (Ex.C.6), photocopy of acknowledgement (Ex.C.7), photocopy of reply to the legal notice (Ex.C.8), photocopies of letters dated 20.9.2004 & 15.11.2004 alongwith postal receipts, photocopy of fee bill (Ex.C.12), photocopy of G.D No 25 (Ex.C.14) & photocopy of registration certificate (Ex.C.16).<br /> 5. On behalf of the opposite party, reliance has been placed on affidavit (Ex.R.1) of Sh. P.K. Jain, its Senior Divisional Manager, photocopy of spot survey report (Ex.R.2), photocopies of letters (Ex.R.3, Ex.R.4 & Ex.R.7), photocopy of legal notice dated 6.10.2007 (Ex.R.5), photocopy of reply to the legal notice (Ex.R.6) and photocopy of terms and conditions of the policy (Ex.R.8).<br /> 6. We have heard the learned counsel for the parties and gone through the record. Apart from this, we have considered written arguments submitted by the opposite party.<br /> 7. Admittedly, Tractor of the complainant was comprehensively insured with the opposite party for the period from 14.3.2003 to 13.3.2004. Copy of the Insurance Cover note is Ex.C.2. Sum insured is Rs. 2,45,000/- for the Tractor and Rs.10,000/- for the accessories. Tractor had accidentally fallen in the gorge on 22.2.2004. Intimation of the accident was given to the opposite party which had appointed Sh. D.B Chand, Surveyor and Loss Assessor to conduct the spot survey. Report dated 4.3.2004 was submitted by him.<br /> 8. Arguments pressed into service by Mr. Nayyar, learned counsel for the opposite party is that intimation regarding the accident was given the Police Station on 6.4.2004 as is evident from the copy Ex.C.14 of the G.D No. 25 recorded in Police Station Kotwali Pithoragarh. Surveyor had submitted his report in the month of March, 2004. Last letter was issued to the complainant on 3.11.2004. After that there was no correspondence with the complainant. Hence, complaint deserves dismissal on the sole ground of limitation.<br /> 9. Mr. Brar, learned counsel for the complainant argued that cause of action in this case is continuing one and as such, the question of limitation, does not arise. This complaint filed on 16.11.2007 is well within time. <br /> 10. We have considered the respective arguments and we feel ourselves inclined to agree with the learned counsel for the complainant. As per version of the opposite party last letter was sent to the complainant on 3.11.2004 and copy of the same is Ex.C.3. Its substantive part is reproduced as under :-<br /> “ We refer to your above mentioned claim and would request you to let us have the following documents at an early date.<br /> 1. Please let us know the availability of the vehicle so that the final survey may be conducted. Place and name of the workshop should be mentioned.<br /> We may further add here that after a considerable period of five months of waiting for the documents from your side we had closed the file. But after receiving the spot survey report and D/L photocopy and copy of police report we once again request you for the availability of vehicle”<br /> 11. A perusal of the letter dated 3.11.2004 reveals that once the insurance claim of the complainant was closed by the opposite party. Complainant had sent photocopy of the driving licence of Roshan Singh, copy of the report recorded in P.S. Pithoragarh to the opposite party vide letter dated 18.9.2004, copy of which is Ex.C.9. Copy of the survey report and photographs received by him were also sent by him through letter, copy of which is Ex.C.10. On receipt of the spot survey report, driving licence and copy of the report, opposite party once again opened the case and gave direction that the vehicle be made available. When opposite party itself re-opened the case on receipt of the documents, cause of action for filing the complaint cannot be said to have arisen to the complainant on 3.11.2004. In response to the letter dated 3.11.2004, complainant issued letter dated 15.11.2004 to the Senior Divisional Manager of the opposite insurance company. As per report on it, Mr. Watts (Senior Divisional Manager) refused to receive it. In the circumstances, he had to send it through registered post. Through this letter, he intimated the opposite party that vehicle is still lying in the gorge (ditch) where it had fallen and it was not possible to take it out from that gorge which is 350 meters (1150 Feet) deep. He further informed that vehicle was so damaged that it was not possible to take it out. Request was also made by him for final survey of the vehicle and for finalization of the insurance claim at the earliest. After re-opening the case, claim has neither been accepted nor repudiated. Accordingly, cause of action for filing the complaint cannot be said to have arisen to the complainant on 3.11.2004. Rather, it remained continuing one. Hence, complaint filed by him on 16.11.2007 is not barred by time. <br /> 12. Next limb of the arguments of the learned counsel for the opposite party is that after receiving intimation regarding the accident, Insurance Company had appointed Surveyor to conduct the survey at the spot. Surveyor was appointed in this case which had only clicked photographs at the spot and nothing beyond was done by him. He had submitted his report. Insured was required to approach the company with necessary documents which include the estimate of the repairs and name of the workshop where the vehicle was parked so that Surveyor may be appointed for final survey. In this case, complainant after getting spot survey done became silent and did not approach the opposite party with any document or estimate nor did he inform the particulars of the workshop where the vehicle was parked. After receipt of letter dated 3.11.2004 complainant remained mum on all these issues. Accordingly, opposite party was left with no other option, but to close the case. After long period of three years, he had got issued the legal notice which was duly replied.<br /> 13. Learned counsel for the complainant countered the arguments of the learned counsel for the opposite party by submitting that whatever was possible for the complainant has been done by him. Complainant could not bring the vehicle at any workshop as it is lying in a gorge of the depth of 350 metres. Whatever possible documents were in his possession and power, have been supplied by him to the opposite party.<br /> 14. Rival arguments have been considered by us. Complainant reiterates his version in his affidavits Ex.C.1 & Ex.C.4. Learned counsel for the opposite party drew our attention to clause No. 4 of the terms and conditions of the policy, copy of which is Ex.R.8. Clause No. 4 is reproduced as under :-<br /> “4. The insured may authorise the repair of the Motor Vehicle necessitated by damage for which the Company may be liable under this Policy provided that :-<br /> ( a ) the estimated cost of such repair does not exceed Rs. 500/-.<br /> ( b ) the Company is furnished forthwith a detailed estimate of the cost and <br /> ( c ) the insured shall give the Company every assistance to see that such repair is necessary and the charge reasonable.”<br /> 15. A perusal of clause No. 4 does not reveal that complainant is bound to produce the accidental vehicle at any workshop for conducting final survey by the opposite party. This clause pertains to the fact that the insured may authorise the repair of the Motor Vehicle necessitated by damage for which the Company may be liable under the policy. Whatever possible assistance in the facts and circumstances of this case could be provided by the complainant, has been provided to the opposite party in disclosing that vehicle is lying in the gorge and it cannot be taken out as its depth is 350 metres (1150 Feet). Ex.R.2 is the copy of the spot survey report submitted by Sh. D.B Chand, Surveyor appointed by the opposite party. He has reported the damages as under :-<br /> “S. No. Name of damage part Remarks <br /> 1. Radiator Not visible<br /> 2. Fan Damage Broken <br /> 3. Pump cover Body Damage Cracked<br /> 4. Clutch Housing Damage Broken<br /> 5. Gear Box Assy Damage No. 107275<br /> 6. Body Cump Disalin from Chassis & Dented<br /> 7. Engine Assy Dislocketed<br /> 8. Chassis From Dented<br /> 9. Hydrolic Inner Bar Dented/Damage<br /> 10. Differential Body Damage & Oil Pump Damaged<br /> 11. Differential Body Damage & Oil Pump Damage<br /> 12. Tie Rod Bent<br /> 13. Rim Damage” <br /> 16. As per damage reported by the spot surveyor, the vehicle is badly damaged. There is nothing in Ex.R.2 that damage was reported by him on the basis of the photographs. If damage to the vehicle could be seen and reported by the spot surveyor and intimation has been given by the complainant to the opposite party about the falling of the vehicle in the gorge, then there is no reason as to why final survey for assessment of the loss cannot be got conducted by the opposite party at the spot or after taking it out of the gorge. Learned counsel for the opposite party failed to show us any term and condition that in such like situation damaged vehicle is to be brought by the insured and that too, at the workshop for final assessment of the loss. Opposite party is blaming the complainant by saying that he is sitting folded handed after receiving letter dated 3.11.2004 issued by it. It was its duty either to accept the claim or to deny it. Reasonable period of taking decision is three months. Complainant got issued notice dated 6.10.2007, copy of which is Ex.C.5, to the opposite party regarding the insurance claim. Opposite party replied this notice through its counsel and copy of the same is Ex.C.8. Despite the fact that complainant has issued the legal notice, no decision has been taken by the opposite party. After issuing letter dated 3.11.2004, it is sitting idle. It has been held by their Lordships of the Hon'ble Supreme Court in the case of United India Insurance Company Ltd. Vs. M.K.J Corporation-III(1996)CPJ-8 (SC) that reasonable period of taking the decision of claim by the insurer is three months. Similar view has been held by the Hon'ble State Commission, Punjab in the case of M/s. Bhagwati Rice Company, Sangrur Vs. M/s. United India Insurance Company Limited and Others-2005(1)CPC-479. In the case of Sri Ramesh Khaitan Vs. National Insurance Company Limited and others-2004(2)CPC-227 there was delay of 2-1/2 years without any justification. Claimant was held entitled to claim amount with interest. In this case as well, no final decision has been taken till today by the opposite party regarding the claim of the complainant, although opposite party is fully aware about the location of the damaged vehicle, the loss of which could be got assessed by it either in the gorge itself or after bringing it out of it. In these circumstances, we have no other option, but to hold deficiency in service on the part of the opposite party.<br /> 17. Now question arises as to which relief should be accorded to the complainant. As discussed above, deficiency in service on the part of the opposite party is established. Vehicle as per spot survey report is badly damaged. It is lying in a gorge of the depth of 350 metres. In the facts and circumstances of this case, it would have to be deemed that it is a case of total loss of the vehicle. Once a vehicle is comprehensively insured and it is a case of total loss, then its insured's declared value is payable as has been held by the Hon'ble State Commission, Punjab in the case of United India Insurance Company Ltd. Vs. Gurjant Singh & Another-First Appeal No. 1342 of 2005 decided on 31.01.2006. In the facts and circumstances, it is a fit case for issuing direction to the opposite party to pay Rs. 2,55,000/- to the complainant alongwith interest @ 9% P.A from 4.2.2005 (The date calculated on expiry of three months from 3.11.2004 when case was re-opened, a period required for processing the claim in an effective manner in normal course) till realization. Complainant is craving for compensation of Rs. 50,000/- for mental agony and loss. There is no case to allow it in the face of the relief going to be accorded as above, particularly in view of the authority in the case of Life Insurance Corporation of India Vs. Miss Bhupinder Kaur (Minor) and others-2000(2)CLT-646. <br /> 18. No other point was urged before us at the time of arguments.<br /> 19. In the result, complaint is accepted against the opposite party with costs of Rs.1,500/-. Parties are directed to do as under :-<br /> ( i ) Complainant would transfer ownership of the Tractor in the name of the opposite party within two months from the date of receipt of copy of this order. <br /> ( ii ) Opposite party would pay Rs.2,55,000/- to the complainant alongwith interest @ 9% P.A from 4.2.2005 till payment if he transfers the Tractor in its name within two months from the date of receipt of copy of this order. In case, he fails to transfer the Tractor in its name, he would not be entitled to interest after the expiry of two months after the receipt of copy of this order. In case, he transfers the ownership of the Tractor after two months after the receipt of copy of this order, he would be entitled to receive Rs. 2,55,000/- alongwith interest upto two months after receipt of copy of this order.<br /> 20. Copy of this order be sent to the parties free of cost. File be also consigned.<br /> <br /> Pronounced (Lakhbir Singh)<br /> 4.3.2008 President<br /> <br /> <br /> (Hira Lal Kumar)<br /> Member<br /> <br /> <br /> (Dr.Phulinder Preet) <br /> Member <br /> <br /> <br /> <br />