Order by:

Sh.Amrinder Singh Sidhu, President

1.       The complainant  has filed the instant complaint under section 12 of  the Consumer Protection Act, 1986 (now under section 35 of the Consumer Protection Act, 2019)  on the allegations that he insured his car Martui Ritz bearing RC No.PB-4AA-5022, Model 2015  with the Opposite Party vide policy No. 36110031180100003383 valid for the period w.e.f. 12.09.2018 to 11.09.2019. Further alleges during the policy period on 10.01.2019  the insured vehicle of the complainant  unfortunately met with an accident and in this regard, the complainant informed the Opposite Party and thereafter, the complainant got repaired the said vehicle from Hira Automobiles  Limited, Shri Muktsar Sahib and they prepared a bill of Rs.3,83,750/-, but the Opposite Party refused to make the repair charges to the said  workshop and in this regard, said Hira Automobiles Limited issued a legal notice to the complainant to make the repair charges, otherwise  they will claim Rs.150/-  per day as parking charges. Thereafter, the complainant approached the Opposite Party time and again, but the Opposite Party did not pay any heed to the request of the complainant. Due to the aforesaid illegal and unwarranted acts of the Opposite Party, the complainant suffered huge mental tension and agony.   In this way, said conduct of the Opposite Party clearly amounts to deficiency in service and as such, the Complainant is left with no other alternative but to file the present complaint.  Vide instant complaint, the complainant has sought the following reliefs.

a)       Opposite Party may be directed to pay the repair charges of Rs.3,83,750/- alongwith its paring charges  to said Hira Automobiles Limited and also to pay Rs.5,00,000/- as compensation on account of mental tension, physical harassment and Rs.21,000/- as litigation expenses.

2.       Upon notice, Opposite Party appeared through counsel and contested the complaint by filing written reply taking certain preliminary objections therein inter alia that the complaint is not maintainable; that the Complainant is estopped by his own act and conduct to file the present complaint. The intricate questions of law and facts are involved in the present complaint which require voluminous documents and evidence for determination which is not possible in the summary procedure  under the Consumer Protection Act and appropriate remedy, if any, lies only in the Civil Court. The complainant has not approached this District Consumer Commission with clean hands, rather he has wilfully concealed the material and patent facts from this District Consumer Commission which ipso-facto disentitles the complainant to seek any relief against the Opposite Party. In fact, on receiving the claim form regarding the alleged accident of the vehicle in question, the Opposite Party immediately appointed Sh.Naresh Kumar Kukkar surveyor and loss assessor to investigate and assess the loss and said surveyor investigated the matter and found that the driving licence No.17028/NDL of the complainant had expired on 29.10.2018 and the alleged accident taken place on 10.01.2019 and hence at the time of alleged accident, the complainant was not holding a valid and affective driving licence and therefore, the claim is not payable for violation of the terms and conditions of the insurance policy and  as such, the complaint may be dismissed. On merits, the Opposite Party took all most same and similar pleas as taken up by them in the preliminary objections  and hence, there is no deficiency in service on the part of the Opposite Party. All other allegations made in the complaint have been denied and a prayer for dismissal of the complaint with special costs has been made.
3.       In rebuttal to the  written reply, the complainant has specifically denied the allegations made by the Opposite Party and stated that in the reply dated 23.07.2019, the complainant has clearly mentioned that the driving licence of the complainant was issued on 18.12.2019 and was valid upto 29.10.2018 but on 07.01.2019 the complainant taken the information about renewal his driving licence that his driving licence is valid upto 15.01.2024, but in order to repudiate the claim of the complainant, the Opposite Party has tempered on verification of renewal D/L i.e. Annexure OP-13 and Annexure OP-14 which is legally not valid.          

4.       In order to prove his  case, the complainant has tendered into evidence  his affidavit Ex.CW1/A alongwith copies of documents Ex.C1 to Ex.C10 and closed his evidence.

5.       On the other hand, to rebut the evidence of the complainant, Opposite Party tendered into evidence affidavit of Ms.Sunita Mahajan Ex.OPs1  alongwith copies of documents Ex.OPs2 to Ex.Ops17 and closed the evidence.

6.       We have heard the ld. counsel for the parties and have carefully gone through the evidence on record.

7.       Ld.counsel for the complainant has reiterated the averments as narrated in the complaint and contended that first of all, the written version  filed on behalf of the Opposite Party  has not been filed by an authorized person. Therefore, the written version so filed is not maintainable. The Opposite Party is limited Company and written version has been filed on the basis of special power of attorney given  to ld.counsel for the Opposite Party. Further contended that  the complainant got  insured his car Martui Ritz bearing RC No.PB-4AA-5022, Model 2015  with the Opposite Party vide policy No. 36110031180100003383 valid for the period w.e.f. 12.09.2018 to 11.09.2019. Further contended that during the policy period on 10.01.2019  the insured vehicle of the complainant  unfortunately met with an accident and in this regard, the complainant informed the Opposite Party and thereafter, the complainant got repaired the said vehicle from Hira Automobiles  Limited, Shri Muktsar Sahib and they prepared a bill of Rs.3,83,750/-, but the Opposite Party refused to make the repair charges to the said  workshop and in this regard, said Hira Automobiles Limited issued a legal notice to the complainant to make the repair charges, otherwise  they will claim Rs.150/-  per day as parking charges. Thereafter, the complainant approached the Opposite Party time and again, but the Opposite Party did not pay any heed to the request of the complainant.

8.       On the other hand, ld.counsel for the Opposite Party has repelled the aforesaid contention of the ld.counsel for the complainant and contended that  the intricate questions of law and facts are involved in the present complaint which require voluminous documents and evidence for determination which is not possible in the summary procedure  under the Consumer Protection Act and appropriate remedy, if any, lies only in the Civil Court. The complainant has not approached this District Consumer Commission with clean hands, rather he has wilfully concealed the material and patent facts from this District Consumer Commission which ipso-facto disentitles the complainant to seek any relief against the Opposite Party. In fact, on receiving the claim form regarding the alleged accident of the vehicle in question, the Opposite Party immediately appointed Sh.Naresh Kumar Kukkar surveyor and loss assessor to investigate and assess the loss and said surveyor investigated the matter and found that the driving licence No.17028/NDL of the complainant had expired on 29.10.2018 and the alleged accident taken place on 10.01.2019 and hence at the time of alleged accident, the complainant was not holding a valid and affective driving licence and therefore, the claim is not payable for violation of the terms and conditions of the insurance policy and  as such, the complaint may be dismissed.

9.       Perusal of the contention of the ld.counsel for the complainant   shows  that  the written version  filed on behalf of Opposite Party has not been filed by an authorized person. Therefore, the written version so filed is not maintainable. The Opposite Party  is limited Company and written version has been filed on the basis of special power of attorney given  to ld.counsel for the Opposite Party.  In this regard, Hon’ble Supreme Court of India in case titled as Shubh  Shanti  Services  Limited  v.  Manjula S.Agarwalla and others (2005) 5 SCC 30, decided on 11.05.2005 has  and observed to the following effect:

 “..............As already stated, it has not been  averred in the plaint nor sought to be proved that  any resolution had been passed by the Board of  Directors  of  the  plaintiff  company  authorising  Shri A.K. Shukla to sign, verify and institute the  suit.   It  has  also  not  been  averred  that  the  memorandum/articles of the plaintiff company give ny right to Shri A.K. Shukla to sign, verify and  institute  a  suit  on  behalf  of  the  plaintiff  company.  It, therefore, follows that the plaint  has been instituted by Shri A.K. Shukla only on  the  authority  of  Sh.  Raj  K.Shukla,  CEO  of  the  plaintiff  company.   Such  an  authority  is  not  recognized under law and, therefore, I held that  the  plaint  has  not  been  instituted  by  an  authorised  person.   Issue  No.1  is  accordingly,  decided against the plaintiff and in favour of the  defendants.”

Further,  Hon’ble Supreme Court of India in a judgment (2011)II Supreme Court Cases 524 titled as “State Bank of Travancore Vs. Kingston Computers India Pvt. Ltd.” and in para no.11 of the judgment,  has held that

“the plaint was not instituted by an authorized person. On the plea that one authority letter dated 02.01.2003 was issued by Sh. R.K.Shukla in favour of Sh. A.K.Shukla. Further plaint failed to place on record its memorandum/articles to show that Sh. R.k.Shukla has been vested with the powers or had been given a general power of attorney on behalf of the Company to sign, verify and institute the suit on behalf of the Company.”

Recently Hon’ble State Consumer Disputes Redressal Commission, Punjab at  Chandigarh in FAO No.1235 of 2015 decided on 25.01.2017 in case titled as L.G.Electronics India Private Limited Vs. Sita Ram Chaudhary also held that the plaint instituted by  an unauthorized person has no legal effect.

10.     For the sake of arguments, for the time being, if the written reply filed by Opposite Party is presumed to be correct, the next  plea  raised by Opposite Party  is that  the intricate questions of law and facts are involved in the present complaint which require voluminous documents and evidence for determination which is not possible in the summary procedure  under the Consumer Protection Act and appropriate remedy, if any, lies only in the Civil Court and this  District Consumer Commission has no jurisdiction to try and decide the present complaint. So far as the objection that complicated question of the fact is involved as such the Insured be relegated to go before Civil Court, is concerned, The Consumer Protection Act, 1986 (as amended upto date) (hereinafter referred to as the Act) was enacted with object to provide for better protection of the interests of the consumers and for that purpose, to make provision for the establishment of consumer council and other authorities for settlement of consumer disputes and other matter connected therewith. Section 13 (4) confers same powers upon the authorities under the Act, which are vested in Civil Court under Code of Civil Procedure, 1908, while trying a suit in respect of (i) The summoning and enforcing the attendance of any defendant or witness and examining the witness on oath, (ii) the discovery and production of any document or other material object producible as evidence, (iii) the reception of evidence on affidavits, (iv) the requisitioning of the report of the concerned analysis or test the appropriate laboratory or from other relevant source, (v) issuing of any commission for the examination of any witness and (vi) any other matter which may be prescribed. The authorities are conferred jurisdiction to decide the issue of “unfair trade practice” which has been defined under Section 2 (r) of the Act. This definition is similar to the definition of “fraud” as given under Section 17 of Indian Contract Act, 1872. From these provisions it is clear that this Commission can hold a full trail as held by civil court or adopt summary procedure for decision of any complaint. Under the Act, although the jurisdiction of the authorities is limited to consumer complaint, but while deciding such complaint no limit has been fixed for adjudicating of the dispute. Three Judges Bench of Supreme Court in Dr. J.J. Merchant Vs. Shrinath Chaturvedi, (2002) 6 SCC 635, (paragraph-7) held that the object and purpose of the Act is to render simple, inexpensive and speedy remedy to the consumer with complaint against defective goods and deficient services and the benevolent piece of legislation, intended to protect a large body of consumer from exploitation. Consumer Forum is an alternate Forum, established under the Act, to discharge the function of Civil Court. Under the Act, the consumers are provided with an alternative efficacious and speedy remedy. As such the Consumer Forum is an alternative forum established under the Act to discharge the functions of Civil Court. Therefore, delay in disposal of the complaint would not be a ground for rejecting the complaint and directing the complainant to approach the Civil Court. The argument that the complicated question of fact cannot be decided by the Forum, has been specifically rejected (In paragraph-12). Similar view has been taken in Amar Jwala Paper Mills Vs. State Bank of India, (1998) 8 SCC 387, CCI Chambers Coop. Hsg. Society Ltd. Development Credit Bank Ltd. (2003) 7 SCC 233.  Hon’ble National Commission, New Delhi in CC No. 101 of 2009 titled as Mahalaxmi Dyes & Chemicals Ltd. Vs. New India Assurance Company Limited decided on 07.09.2021 also held so.  Hence, this District Consumer Commission is  not convinced with the aforesaid contention of the ld.counsel for the Opposite Party.

11.     Further contention of the ld.counsel for the Opposite Party is that Opposite Party immediately appointed Sh.Naresh Kumar Kukkar surveyor and loss assessor to investigate and assess the loss and said surveyor investigated the matter and found that the driving licence No.17028/NDL of the complainant had expired on 29.10.2018 and the alleged accident taken place on 10.01.2019 and hence at the time of alleged accident, the complainant was not holding a valid and affective driving licence and therefore, the claim is not payable for violation of the terms and conditions of the insurance policy, copy of the surveyor report is placed on record is Ex.OP-5.  However, after going  through the claim file and surveyor report, the Opposite Party repudiated the claim of the complainant. Moreover, the surveyor has assessed the loss to the extent of Rs.2,60,890/- as net payable subject to policy terms and conditions, but the Opposite Party has not produced the affidavit of said surveyor on the record.  In this regard, Hon’ble State Consumer Disputes Redressal Commission, Punjab at Chandigarh has recently held in   First Appeal No.370 of 2019 decided on  19.01.2022 in case Vishav Jindal Versus ICICI Lombard General Insurance Company Limited, that the surveyor’s report is not the last and final word. It is not that sacrosanct that it cannot be departed from; it is not conclusive. The approved surveyor’s report may be basis or foundation for settlement of a claim by the insurer in respect of the loss suffered by the insured but surely such report is neither binding upon the insurer nor insured. The relevant para of the judgement passed by Hon’ble State Consumer Disputes Redressal Commission, Punjab at Chandigarh is reproduced as under:-

 “We are of the opinion that if there are some flaws in the surveyor’s report, it is not binding upon the insured/insurer. We are further fortified with the judgment of the Hon’ble Supreme Court reported in (2009) CPJ 46 (SC) titled “New India Assurance Company Limited v. Pardeep Kumar” wherein it has been laid First Appeal No. 370 of 2019 12 down that surveyor’s report is not the last and final word. It is not that sacrosanct that it cannot be departed from; it is not conclusive. The approved surveyor’s report may be basis or foundation for settlement of a claim by the insurer in respect of the loss suffered by the insured but surely such report is neither binding upon the insurer nor insured’

Hence, keeping in view the aforesaid judgement of  Hon’ble Supreme Court reported in (2009) CPJ 46 (SC)  as well as Hon’ble State Commission, Punjab at Chandigarh (supra), the aforesaid report of the surveyor can not be deemed to be correct.

12.     Further, main plea raised by the Opposite Party for the repudiation of the claim of the complainant is that since at the time of accident, the complainant was not having valid driving licence and in this way, the complainant has breached the terms and conditions of the policy.  It is the case of the Opposite Party that the previous driving license of the complainant was valid upto 29.10.2018 and however, it was got renewed by the complainant after the date of accident. But we are of the view that if the complainant was not holding valid driving licence at the time of accident, it can not be said/ presumed that the complainant has  forgotten how to drive the vehicle. However, it is certain that the complainant has breached the  terms and conditions of the insurance policy and even then the  Insurance Company ought to have settled the claim of the complainant on “non standard basis” even if some of the conditions of the insurance policy are not adhered by the insured. In this regard, we are supported with judgment  in  case titled National Insurance Company Limited versus Kamal Singhal IV (2010)CPJ297 (NC) wherein the Hon'ble National Consumer Disputes Redressal Commission, New Delhi relying upon various decisions of the National Consumer Disputes Redressal Commission in the matter of (1) National Insurance Company Ltd. v. J. P. Leasing & Finance Pvt. Ltd. (RP No. 643/2005), (2) Punjab Chemical Agency v. National Insurance Company Ltd. (RP No. 2097/2009), (3) New India Assurance Co. Ltd. v. Bahrati Rajiv Bankar, (RP) No. 3294/2009) and (4) National Insurance Company Ltd. v. Jeetmal, (RP No.3366/2009) and also judgment of the Hon'ble Apex Court in the matter of Insurance Company Versus Nitin Khandewal IV (2008) CPJ 1(SC), held the  breach of condition of the policy was not germane and also held further that : “the appellant Insurance Company is liable to indemnify the owner of the vehicle when the insurer has obtained comprehensive policy to the loss caused to the insurer”. The Hon'ble Supreme Court has further held that; “even assuming that there was a breach of policy, the appellant Insurance Company ought to have settled the claim on “non-standard basis.” Hon'ble Apex Court in back drop of these features, in these cases, allowed 70% of the claim of the claimant on the “non-standard basis”. This view was again reiterated by the Hon'ble Apex Court in the matter of Amalendu Sahoo versus Oriental Insurance Company Limited. II(2010) CPJ 9(SC)=II (2010)SLT 672.  Hon'ble National Commission in the case National Insurance Company Limited versus Kamal Singhal referred to above relying upon the law laid down by the Hon'ble Supreme Court has held that;

“there being a long line of decisions on this score, we have no option but to uphold the finding of Fora below with modification that the claim be settled on 'non-standard' basis”, in terms of the guidelines issued by the Insurance Company. In case petitioner company fails to carry out the direction contained therein, the amount payable on 'non-standard' basis, shall carry interest @ 6% p.a from the date of expiry of six weeks till the date of actual payment”.

13.     In such a situation the repudiation made by Opposite Party regarding genuine claim of the complainant appears to have been made without application of mind. It is usual with the insurance company to show all types of green pesters to the customer at the time of selling insurance policies, and when it comes to payment of the insurance claim, they invent all sort of excuses to deny the claim. In the facts of this case, ratio of the decision of Hon’ble Apex Court in case of Dharmendra Goel Vs. Oriental Insurance Co. Ltd., III (2008) CPJ 63 (SC) is fully attracted, wherein it was held that, Insurance Company being in a dominant position, often acts in an unreasonable manner and after having accepted the value of a particular insured goods, disowns that very figure on one pretext or the other, when they are called upon to pay compensation.  This ‘take it or leave it’, attitude is clearly unwarranted not only as being bad in law, but ethically indefensible.  It is generally seen that the insurance companies are only interested in earning the premiums and find ways and means to decline claims. In similar set of facts the Hon’ble Punjab & Haryana High Court in case titled as New India Assurance Company Limited Vs. Smt.Usha Yadav & Others 2008(3) RCR (Civil) Page 111 went on to hold as under:-

“It seems that the insurance companies are only interested in earning the premiums and find ways and means to decline claims. All conditions which generally are hidden, need to be simplified so that these are easily understood by a person at the time of buying any policy.The Insurance Companies in such cases rely upon clauses of the agreement, which a person is generally made to sign on dotted lines at the time of obtaining policy. Insurance Company also directed to pay costs of Rs.5000/- for luxury litigation, being rich.

14.     Now come to the quantum of compensation. The complainant has claimed the repair charges amounting to Rs.3,83,750/- regarding bill of Hira Automobiles Limited, copy of the letter  written by  said Hira Automobiles Limited to the complainant is placed on record as Ex.C10. Hence, having  regard to the position of the law, as has been laid down, by the Hon'ble Apex Court in the various decisions referred to here-in-above and also the view expressed by the Hon'ble National Commission, we are of the considered view that in the present case the complainant, if not entitled for the entire amount of repair charges, the Insurance Company definitely ought to have settled the complainant's claim on 'non-standard basis”, which in the facts and circumstances taking the assistance of the view expressed by the Hon'ble Apex Court and also by the Hon'ble National Commission, we allow 70% of the assessed amount on 'non-standard' basis” of the repair bills amount.

15.     In view of the aforesaid facts and circumstances of the case,  we allow the complaint of the Complainant partly and direct the Opposite Party-Insurance Company to make the payment of  Rs.2,68,625/- (Rupees two lakh sixty eight thousands six hundred and twenty five only) i.e. 70% of the bill amount of Rs.3,83,750/- to the Complainant alongwith interest @ 8% per annum from the date of  filing the present complaint i.e. 04.09.2019  till its actual realization.  Opposite Party-Insurance Company is also directed to pay the lump sum compensation to the complainant to the tune of Rs.10,000/- (ten thousands only) on account of harassment, mental tension  and litigation expenses. The compliance of this order be made by  Opposite Party-Insurance Company within 45 days from the date of receipt of this order, failing which the complainant  shall be at liberty to get the order enforced through the indulgence of this District Commission. Copies of the order be furnished to the parties free of cost. File be consigned to record room after compliance.

16.     Reason for delay in deciding the complaint.

          This complaint could not be decided within the prescribed period because the State Government has not appointed any of the Whole Time Members in this Commission for about 3 years i.e. w.e.f. 15.09.2018 till 27.08.2021 as well as due to pandemic of COVID-19.

Announced in Open Commission.

Dated:28.03.2022.