Haryana

Yamunanagar

CC/69/2021

Mohinder Lal s/o Kansi Ram - Complainant(s)

Versus

The New India Assurance Co.Ltd. - Opp.Party(s)

K.K.Gupta

26 Apr 2024

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, YAMUNA NAGAR AT JAGADHRI

 

                                                                   Complaint No.:       69 of 2021.

                                                                   Date of institution:   09.02.2021.

                                                                   Date of decision:      26.04.2024.

 

Mohinder Lal, aged 63 years son of Sh. Kansi Ram, R/o Shop No.56-57, Saharanpur Road, Yamuna Nagar, Tehsil Jagadhri, Distt. Yamuna Nagar.

 

                                                                                                          …Complainant.

                                                     Versus

 

1. The New India Assurance Company, Near Bikano Restaurant, Gobindpuri Road, Model Town, Yamuna Nagar, through its Branch Manager.
2. Sh. Sandeep Gupta, Branch Manager, The New India Assurance Company, Nichalson Road, Punjabi Mohalla, Sadar Bazar, Ambala Cantt.
3. Sh. R. P Singhmar, Regional Manager, The New India Assurance Company, SCO 36-37, 4^th Floor, Sector 17-A, Chandigarh.

  …Respondents

CORAM:    GULAB SINGH, PRESIDENT.       

                    JASVINDER SINGH, MEMBER.

                    SARVJEET KAUR, LADY MEMBER.

 

Present:       Shri KK Gupta, Advocate for the complainant.

                    Shri Amit Bansal-I, Adv. for the opponent No.1.

                    (Notice of complaint was not ordered against the opponents No.2&3).

 

ORDER:

 

1.                This is a complaint under Section 35 of the Consumer Protection Act, 2019 (for short “Act”).

2.                Going through the contents of the complaint, supportive documents Ex.C1 to Ex.C17, written statement filed by the opponent No.1, supportive document Ex.R1 to Ex.R22, briefly, admitted facts of the case are, the complainant was the registered owner of truck bearing registration No.HR58B-4041 (for short Truck) and had purchased it for the purpose of earning his livelihood in the course of self employment and the truck was insured by the opponent vide insurance policy Ex.C2 (Ex.R4) w.e.f. 11.07.2018 to 10.07.2019 and IDV value of the truck was assessed Rs.36,06,707/-. During the validity period of insurance policy Ex.C2, the truck met to road side accident on 28.02.2019 in the area of Bilaspur, District Yamuna Nagar and intensive damage was caused to the truck. The complainant intimated the accident to the opponent and the opponent deputed its surveyor for investigation and the truck brought at the workshop of Pasco Motor, Dusarka, District Ambala, who prepared estimate of repair in the sum of Rs.20,35,000/- approx. Ex.R6 of the chassis/horse and Rs.4,80,000/- of the body (shown in Ex.R8) and trolley by Punjab Hydrolic & Engineer, Khanna, Punjab, total amounting to Rs.25,15,000/-. The surveyor of the opponent prepared his interim report Ex.R8 and the interim report Ex.R8 was prepared by the surveyor of the opponent after completion of all formalities such as submission of documents.

3.                The complainant alleged, however, the opponent had not settled his claim and under the compelling circumstances, he opted for one of the proposals given by the opponent through its surveyor i.e. on repair liability basis in which R.C. and salvage was to be retained by the complainant, subject to acceptance of the proposal in writing by the complainant and the complainant gave his consent for acceptance of claim in the sum of Rs.19,75,000/-  (Rs.18,37,353/- + 10% additional), fact is reflected from document Ex.12-A at page no.46. Thereafter, the surveyor of the opponent required fulfillments of further formalities by the complainant and he (complainant) submitted his consent and furnished sworn affidavit and emailed to the opponent, but the opponent failed to pay any heed. Having no another alternative, he sought information from the opponents under RTI Act on 13.09.2019 and on the interference of Appellate Authority of the opponent at Mumbai, the opponent supplied emails, letters, revised and final interim report and assessed its liability by proposing three modes which were as under:-

1. Assessment on total loss basis (Subject to surrender of wreck of vehicle of Rs.36,05,207/-.
2. Assessment on net of salvage basis without RC of Rs.31,55,207/-
3. Assessment on net of salvage basis with the RC of Rs.27,55,207/-

 

4.               Apart from above said three modes, the opponent also preferred to invite authorized scrap buyers of the vehicles and evaluated the total loss and revised interim report dated 30.10.2019 Ex.12-F, was submitted by Sh. Gurcharan Singh, Surveyor of the opponent. The bids of chassis and tralla of the truck was offered as per following tabular:-

Inderpal Singh IDN	8,50,000/- with R.C. 400,000/- without R.C.
Gursewak Singh	7,50,000/- with R.C. 450,000/- without R.C.
Rana Ashok	7,25,000/- with R.C. 450,000/- without R.C.
Online Bid	No Bid

 

5.             However, thereafter, the opponent vide letter dated 04.12.2019 Ex.R21, arbitrarily repudiated the claim of the complainant. Having no another alternative, he (complainant) raised his grievance by sending legal notice dated 10.12.2019 Ex.C13 and the opponents despite receipt of legal notice Ex.C13, failed to redress his grievance, which caused him mental agony harassment, financial loss and constrained him to file the present complaint, because, he got the truck repaired by borrowing loan from his friend circle, relations and incurred cost of repair in the sum of Rs.26,00,000/-. As the truck was financed from HDFC Bank and the slackness on the part of the opponents also caused huge loss, which he suffered in the re-payment of loan amount.

6.              On receipt of the complaint, the opponent No.1 in its written statement, while taking various ubiquitous preliminary objections, such as non maintainability of the complaint, as the complainant not falling within the definition of consumer being truck used for commercial purpose, denied commission of any act of negligence, deficiency in service, and endeavoured to justify the repudiation of the claim of the complainant by stating, upon receipt of intimation of accident from the complainant, Sh. M. L. Garg, Surveyor, dully licensed by the IRDA was appointed to conduct preliminary enquiry i.e. spot survey of damage caused to the truck and he after doing the needful, submitted his preliminary survey report dated 11.03.2011 Ex.R7. Thereafter, the opponent deputed the final Surveyor and Loss Assessor namely M/s G.C. Singh & Associates, Chandigarh (for short second surveyor) and the second surveyor wrote an email dated 14.03.2019 to the complainant, specifically, advising to start the repair work of the truck, fact is reflected from document Ex.C8, as the truck was repairable, as per the standard guidelines, issued to the opponent, but the complainant declined to follow the instructions of the second surveyor, on a totally hypothetical plea, that he wanted to settle claim on total loss basis and not on repair basis which was wholly unjustified as the truck was repairable. Faced with the conduct of the complainant, the second surveyor after having been conducted a thorough survey submitted his interim survey report dated 02.05.2019 Ex.R8, assessing the loss to the tune of Rs.18,37,353.25/- on repair basis. The complainant did not start repair work despite repeated requests and reminder given by the second surveyor and the second surveyor sent an email dated 09.08.2019 Ex.R10 to the complainant, asking him to get the truck repaired to facilitate the settlement of the claim on repair basis. On hearing nothing from the complainant, the second surveyor sent a reminder dated 13.08.2019 Ex.R12 through registered post to the complainant requesting to, immediately, start the repair work of the truck for early settlement of the claim. Apart from the request dated 13.08.2019 Ex.R12, the opponent also sent registered AD letter dated 14.08.2019 Ex.R13, 19.08.2019 Ex.R14, 27.08.2019 Ex.R15, 11.09.2019 Ex.R16, requesting to the complainant to start repair work of the truck, immediately. He did not start the repair work despite repeated requests. So the loss on repair basis could not be, finally, assessed by the surveyor. In the circumstances, the opponent made another earnest effort by inviting the complainant for personal meeting at Regional Office, Chandigarh on 18.11.2019 and as per the minutes of the meeting Ex.R19 of the same day, the matter was discussed, at threadbare, with the complainant by the official of the opponent and in the meeting, the complainant was also offered to settle the claim on compromise basis, with cancellation of RC for an amount of Rs.18,37,353/-. The complainant was adamant and did not agree for settlement of claim on repair basis and he declined to accept the offer. Thereafter, the opponent served a final notice dated 19.11.2019 Ex.R20 through registered post, calling upon the complainant to immediately start the repair work of the truck and inform the final surveyor to enable to take photographs and to inspect the vehicle, but the complainant instead of taking steps for an early settlement of the claim by initiating repair process, was adamant for settlement of claim on total loss basis and declined to start repair work, through email dated 21.11.2019 (no such email brought on record by the opponent). So the complainant was not ready to get the vehicle repaired in view of final surveyor report dated 22.11.2019 Ex.R22 and the opponent assessed the loss to the truck on repair basis to the tune of Rs.18,37,353/- only and due to adamancy on the part of the complainant, having no another alternative, the opponent closed the claim case of the complainant vide letter dated 04.12.2019 Ex.R21. No act of negligence, deficiency in service committed by the opponent.

7.                In the course of arguments, Shri KK Gupta, Ld. counsel for the complainant, reiterated to the version made into the complaint and he apprised the Commission about the evidence adduced on record by the complainant, pleading of the opponent No.1, and evidence adduced on record by the opponent No.1 and in material respect, submitted, the opponent were not justified to settle the claim on the basis of final surveyor report Ex.R22 and despite the consent of the complainant to the extent of Rs.18,37,353/- + 10%, fact is reflected from the own email of the opponent dated 06^th November, 2019 Ex.12-A page no.46 and when the opponent failed to give any way to the complainant, having no another alternative, he got the truck repaired by incurring expenditure of Rs.26,00,000/- as the truck was repairable. While confining his arguments, Sh. KK Gupta, Ld. Counsel for the complainant, in order to support his contentions, kept reliance on M/s Shree Shyam Poultries Vs. Chief Regional Manager, United India Insurance Co. Ltd. & Ors., First Appeal No.2028 of 2017, DOD 13.02.2018 (Hon’ble National Consumer Disputes Redressal Commission); National Insurance Co. Ltd., Vs. Harsola Motors and Others, Civil Appeal No.53525353 of 2007, DOD 13.04.2023 (Hon’ble Supreme Court of India); Supreet Singh Vs. United India Insurance Co. Ltd., CC No.22 of 2021, DOD 06.05.2022 passed by this Commission.

8.                On the another hand, Shri Amit Bansal, Ld. counsel for opponent No.1, submitted written arguments containing pages 1 to 6 and further to cement to written arguments, in the course of oral submission, he reiterated to the version made into the written statement of the opponent No.1 and he apprised the Commission about the evidence adduced on record by the complainant as well as by the opponent, as pointing out, as per the own version of the complainant, he settled the matter to the extent of Rs.18,37,353/- + 10%, but later on he backed out and the opponent were having no option except to close his case of the claim. He further submitted, the complainant was using the truck for commercial purposes and not falling within the definition of consumer and the complaint is not maintainable and in order to support his contentions, Ld. Counsel for the opponent No.1 kept reliance on Dilip Kumar Singh Vs. Branch Manager, CITI Corp. Finance (I) Limited, 2017 (4) CPR 39 (Hon’ble National Commission); Col. M.S. Thapa and Ors., Vs. S.N.G. Developers Ltd. and Anr., 2017 (4) CPR 796 (Hon’ble National Commission); Raja Vishindas Ramchandani, Vs. Tata Motors Ltd., 2017 (2) CPR 713 (Hon’ble National Commission); Sanjay Aggarwal Vs. Ambuja Cement Ltd. and Anr., 2017 (1) CPR 493 (Hon’ble National Commission); Alfa Therm Ltd. Vs. Unitech Ltd., 2016 (1) CPR 258 (Hon’ble National Commission).

9.               There are two moot questions before this Commission, firstly whether, the complainant is falling within the definition of consumer, if not then what effect, secondly, whether the opponent by closing the claim case of the complainant under the policy Ex.C2, committed any act of negligence, deficiency in service, making the complainant entitled to the relief, as prayed or to what extent and against whom?

10.              So far maintainability of the complaint is concerned, the opponent alleged, the complainant had purchased the truck for commercial purpose, whereas the complainant in Para No.2 of the complaint pleaded, he purchased the truck to earn his livelihood in the course of self-employment. In order to support his contention, Ld. Counsel for the complainant kept reliance on the decision of the Hon’ble Supreme Court of India, in case of National Insurance Co. Ltd., Vs. Harsola Motors and Others, Civil Appeal No.53525353 of 2007. DPD 13.04.2023, wherein it was held, the expression used “for commercial purpose” under Section 2(1) (d) and 2 (1) (o) of the Consumer Protection Act, 1986 (same is position in the Consumer Protection Act, 2019), would mean that the goods purchased or services hired should be used in any activity directly intended to generate profit and profit is the main aim of commercial purpose, but in a case where goods purchased or services hired in an activity which is not intended to general profit, it would not be a commercial purpose and held that a person who takes the policy of insurance to cover the envisaged risk, for indemnification of actual loss suffered is not ordinarily intended to general profits and accordingly, is a consumer”. To the contrary, the opponent has not brought any evidence on record, neither it has pointed any circumstance appearing on the record to say, the complainant was using the truck for commercial purpose. Keeping in view the law cited (Supra) by the Ld. Counsel for the complainant, the objection raised by the opponent is overruled, as the complainant falls within the definition of consumer and complaint is maintainable. The law cited (supra) by the ld. Counsel for the opponent is not at par with the facts and circumstances of the case in hand.

11.              So far second question touching to the merits of the case is concerned, the intensive damage was caused to the truck in a road side accident dated 28.02.2019 within the area of Bilaspur, District Yamuna Nagar and accident is not disputed by the opponent, specifically in final survey report Ex.R22, submitted by its surveyor.

12.             The next question arises, whether the quantum of damage such as was a case of total loss or the damage was repairable. The first surveyor of the opponent namely Sh. ML Garg, in its preliminary report Ex.C7 dated 06.05.2019, detailed the damages to the truck, which were apparently visible. The PASCO motors gave estimate of repair Ex.R6 in the sum of Rs.20,35,440/-. After preliminary survey report Ex.R7 by Sh. M.L. Garg, another interim survey report Ex.R8 dated 02.05.2019 submitted by M/s G.C. Singh & Associates and this interim survey report Ex.R8, the assessment of loss based on following three modes/criteria:-

1. Assessment on total loss basis (Subject to surrender of wreck of vehicle of Rs.36,05,207/-.
2. Assessment on net of salvage basis without RC of Rs.31,55,207/-.
3. Assessment on net of salvage basis with the RC of Rs.27,55,207/-.

13.              But the bargaining was not matured between the parties, qua the three criteria referred hereinbefore in interim report Ex.R8. The complainant in para No.6 of the complaint, admitted, when settlement on the basis of three criteria suggested by the surveyor in its interim report Ex.R8 was not matured, then, under compelling circumstances, he gave his consent for claim of Rs.18,37,353/- + 10% additional and this fact is very much clear from a document Ex.12-E which is a written of G.C. Singh, surveyor of the opponent as well as Ex.12-A Page No.46, which is the suggestion of the M/s G.C. Singh & Associates surveyor of the opponent and in the minutes of meeting Ex.R19 in which officers of the opponents and the complainant was present, the loss was assessed and assessment of loss to the tune of Rs.18,37,353.25/-, by the opponent admitted in para No.6 page No.3 of the written statement. The opponent insurance company has not accepted this suggestion and proceeded ahead for final surveyor report which was submitted by Gurcharn Singh, Surveyor & Loss Assessor to the opponent on 27^th November, 2019 Ex.R22 and in the final surveyor report Ex.R22, the loss to the truck was assessed Rs.18,37,353/-, but the same was not released and complainant proceeded to get the truck repaired by incurring Rs.26,00,000/-.  The getting the truck repaired by the complainant, alleged expenditure of Rs.26,00,000/-, means, the truck was repairable and the interim report Ex.R8 and final report Ex.R22 also shows, the truck was repairable. Then, why the amount of repair in the sum of Rs.18,37,353/- was not released in favour of the complainant to which he consented with 10% addition. In this way, evidence on records particularly, interim report Ex.R8 and final report Ex.R22, makes very much clear, the truck was repairable, repair amount was assessed and despite the consent of the complainant, the opponent dragged the matter and the opponent instead of release of amount of Rs.18,37,353/- + 10% additional, proceeded to drag the matter and instead of repudiating or accepting or partly, accepting, the same, closed the claim case of the complainant vide letter dated 4^th December, 2022, Ex.R21, blaming the complainant. It is itself act of gross negligence, on the part of the opponent as well as deficiency in service. Even the complainant was backing out from the settlement, the opponents were bound to pay the claim atleast assessed in a meeting Ex.R19 in which complainant was also participant, but the opponent closed the claim case of the complainant, contrary to all norms of law. The minutes of meeting Ex.R19 shows, the opponent were taking undue advantage, because, truck, as per their version, repairable, then why the opponent pressed for cancellation of RC, fact itself proves malafide intention of the opponent.

14.              Coming on the quantum of the claim, the complainant cannot wriggle out from his own admission made in the para No.6 of the complaint, where he agreed to accept amount of Rs.18,37,353/- + 10% additional and this was also suggestion of the surveyor of the opponent, in his email Ex.C12-A and Ex.C12-E and then, this assessment of Rs.18,37,353/- also by the conclusion of meeting Ex.C19. So, claimant cannot go beyond his own settlement Rs.18,37,353/- + 10% additional, this Commission is not required to go beyond, what the actual cost of repair, he incurred or not and the opponent is liable to pay claim in the sum of Rs.18,37,353/- + 10% additional (total Rs.20,21,088/-) to the complainant at an relevant time.

15.              Coming on the quantum of punitive damages, at the cost of repetition, ignoring the other things, the opponent in its meeting dated 18.11.2019 Ex.R19, in which the complainant was also participant came to the conclusion of payment of an amount of Rs.18,37,353/- with the condition of cancellation of RC, but this condition was never completed. The opponent closed the case of the complainant and complainant got the truck repaired. Once the opponent assessed the total loss of Rs.18,37,353/-, and not ready to make payment of compensation to the complainant, taking the case of the complainant as not a case of total loss, then the opponent was not justified asking the complainant for cancellation of RC, it was unfair trade bargaining.  In this way, the opponent instead of making payment of actual damage assessed of Rs.18,37,353/- which was assessed on 18.11.2019 + 10% additional, never proceeded with positive approach to release the same and ultimately, closed the case and enjoyed the fruit of Rs.18,37,353/- + 10% additional (total Rs.20,21,088/-), for the period more than 4 years 5 months, which caused mental agony, harassment, financial loss to the complainant and constrained him to file the present complaint by incurring cost of litigation and this Commission is of the firm view, in case, punitive damages in the sum of Rs.5,00,000/- (Rupees Five Lac only) to the complainant, are awarded against the opponent, to compensate the complainant in all heads including cost of litigation, it will suffice the purpose ends of justice will meet. Remaining relief to the complainant is declined.  

16.            Hence, due to the reasons stated hereinbefore, the complaint is accepted, against the opponent No.1, holding the opponent No.1 liable to make payment of claim in the sum of Rs.18,37,353/- + 10% additional (total Rs.20,21,088/-) to the complainant + make amount of punitive damages in the sum of Rs.5,00,000/- (Rupees Five Lac only) to compensate the complainant in all heads, total Rs.25,21,088/- (Rupees Twenty Five Lac Twenty One Thousand Eighty Eight only) to the complainant within the period of two months from the date of order, in default of it, the opponent No.1 shall be liable to pay simple interest @8% per annum against the amount of both heads from the date of order till actual payment. Remaining relief to the complainant is declined.

17.           Before parting with this order, it is pertinent to mention, the complaint has not been decided within the prescribed period of limitation of time. The history of the proceedings shows, firstly, second wave of COVID-19 became stumbling block and the complainant as well as the opponent dragged the proceeding for concluding their evidence and frequent suspension of work by the Members of the District Bar Association and administrative reason such as lack of quorum of the Commission and seeking of adjournment by the counsel for the parties from time to time, also delayed the proceeding. Apart from it, there is a acute shortage of requisite manpower, and infrastructure in the Commission. In this way, whatever the delay had/has occurred in the final disposal of the complaint, same was beyond the control of this Commission.

18.               The certified copy of this order be supplied to all the parties, free of costs.

19.              File be consigned to the records.

Dated: 26.04.2024.     

                                                                           (Gulab Singh)

                                                                          District & Sessions Judge (VRS)

(Sarvjeet Kaur)          (Jasvinder Singh)               President,

(Lady Member)         (Member).                        DCDRC, YNR.

                  
 

 

Typed by:  Jitender Sharma, Steno-typist.