New Complaint No.210 of 2023.
Date of Institution: 26.10.2023.
Old Complaint No: 225 of 2018.
Date of Institution: 08.05.2018.
Date of order:28.11.2023.
Sukhjinder Singh aged about 65 years Son of Jagat Singh, resident of Village Nabipur P.O, Tehsil and District Gurdaspur. Pin Code – 143521.
….........Complainant.
VERSUS
1. The Oriental Insurance Co. Ltd, Branch Office Sangalpura Road Gurdaspur, District Gurdaspur, through its Branch Manager.
2. The Oriental Insurance Co. Ltd, Divisional Office -1, Amritsar Shri Dwarka Deesh Complex, 1st floor, Queen's Road, Amritsar - 143001, through its Divisional Manager.
3. The Oriental Insurance Co. Ltd, Regional Office, SCO 109-110-111 Surendra Building, Sector 17-D, Chandigarh, through its Regional manager.
….Opposite parties.
Complaint U/s 12 of the Consumer Protection Act.
Present: For the Complainant: Sh.J.S. Randhawa, Advocate.
For the Opposite Parties: Sh.A.K. Joshi, Advocate.
Quorum: Sh.Lalit Mohan Dogra, President, Sh.Bhagwan Singh Matharu, Member.
ORDER
Lalit Mohan Dogra, President.
Sukhjinder Singh, Complainant (here-in-after referred to as complainant) has filed this complaint under section 12 of the Consumer Protection Act (here-in-after referred to as 'Act') against The Oriental Insurance Co. Ltd. Etc. (here-in-after referred to as 'opposite parties).
2. Briefly stated, the case of the complainant is that the complainant is owner of Truck bearing Temporary Regd. No.PB-02-BU-7401 (at the time of accident) Regd. No. PB-06-V-7054 Engine No. 023244P Chassis No. C803902. It is pleaded that the above said vehicle of the complainant met with an accident on 24.12.2014 and at the time of accident the above said vehicle was fully insured with the OP’s vide Policy / Cover note / Cert. No.233300/31/2015/3920 valid from 20.11.2014 to 19.11.2015 (Mid night). It is further pleaded that Insured's Declared Value (IDV) of the said vehicle was Rs.4,89,250/- and the policy is comprehensive and covers all risks. It is further pleaded that on 24.12.2014 the above mentioned vehicle met with an accident in the area of Police Station Dhariwal with a truck bearing its Regd. No.PB-30-H-9113 at about 10.30 P.M. and the vehicle was completely damaged. It is further pleaded that at that time the vehicle was being driven by Mangal Singh son of Sukhjinder Singh R/o Village Nabipur Tehsil and District Gurdaspur, who is the son of the complainant and the Son of the complainant was holding a valid driving license. It is further pleaded that matter was reported to the police of P.S. Dhariwal and the police registered FIR No. 186 dated 25.12.2014 U/s 304-A/337/427/279 IPC. It is further pleaded that driver of the vehicle namely Mangal Singh had died in this accident and legal heirs of Mangal Singh lodged MCAT Petition No. MACP/0000121/ 2016 RBT No. 16 of 27.04.2016 decided on 31.01.2017 by the court of Sh. Pushvinder Singh, Motor Accident Claims Tribunal Gurdaspur titled as “Kulwinder Kaur and others vs. The Oriental Insurance Co. and others” and compensation has been awarded to the legal heirs of deceased Mangal Singh. It is further pleaded that the complainant also lodged claim with the opposite parties with a request to pay him compensation for the loss suffered by him i.e. Rs.6,58,838/- alongwith 12% interest, but till today no payment has been made to the complainant for the reasons best known to the opposite parties, although the complainant has made repeated requests to the opposite parties and sent written representations. It is further pleaded that thereafter, the complainant filed complaint No. 322 of 2016 dated 01.09.2016 before the District Consumer Disputes Redressal Forum Gurdaspur which has been decided vide order dated 06.12.2017 with directions to lodge claim with the opposite parties within 15 days from the receipt of copy of orders along with documents. Copy of the order has been received by the complainant on 21.12.2017, and thereafter he lodged claim with the opposite parties vide application dated 28.12.2017. It is further pleaded that on receiving above mentioned application, the opposite parties issued letter to the complainant dated 15.01.2018 and sought some information, which the complainant duly supplied on 29.01.2018. It is further pleaded that inspite of completion of all the formalities, the opposite parties did not take any action into the matter from 28.12.2017 to 18.03.2018 inspite of repeated visits to the offices of the opposite parties No. 1 and 2 by the complainant. 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. So, 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 unfair trade practice on the part of the opposite parties and prayed that necessary directions may kindly be issued to the opposite parties to Honor the claim of the complainant and make the payment of insured amount qua the claim of the complainant i.e. Rs.4,89,250/- i.e. Insured Declared Value along with interest @ 18% P.A. from the date of accident of the vehicle till actual realization in terms of the Insurance policy. It is further prayed that compensation to the tune of Rs.50,000/- may also be awarded to the complainant besides the amount of claim on account mental agony, physical harassment and deficiency in service on the part of the opposite parties. Litigation expenses to the tune of Rs.50,000/- may also be awarded in favour of the complainant after accepting this complaint, in the interest of justice.
3. Upon notice, the opposite parties appeared through counsel and contested the complaint and filing their written reply by taking the preliminary objections that the present complaint of the complaint is not maintainable, as the vehicle in question SCV Cargo (Dost) LX make Ashoka Layland Ltd. bearing Chasis No.MBIAA22E 803902, Engine No.VEH023244P, Temporary registration No. PB-02-BU-7401 and Permanent registration No.PB-06-V-7054 was not involved in the alleged accident and it was never damaged in the alleged accident. It is pleaded that after the perusal of the alleged FIR No. 186 dated 25.12.2014, it reveals that the vehicle in question was not involved in the alleged accident and the alleged driver Mangal Singh was not driving the vehicle in question. It is further pleaded that as per the alleged FIR, the alleged driver Mangal Singh was driving the Bolero Car No.PB-02-TC-567 at the time of alleged accident and as per the said FIR, the said Mangal Singh was died at the sport, when he was driving the Bolero Car and his Bolero Car was struck with the Truck No.PB-30-H-9113. It is further pleaded that it clears that the complainant made up the concocted story in his complaint just to get the false claim, which is entirely contradictory with the version of FIR. It is further pleaded that the Truck in question was not involved in the alleged accident, the complainant willfully put up the said Truck in the alleged accident just to get the false claim from the OP insurance company. It is further pleaded that the complainant had mentioned the permanent registration No.PB-02-TC-567 of the alleged Truck in his previous complaint, while, the complainant has mentioned the permanent registration No.PB-06-V-7054 of the Truck in question in the present complaint. It clears that Truck in question was not involved in the alleged accident and it was the Bolero Car, which was involved in the alleged accident and was being driven by driver Mangal Singh. It is further pleaded that the present complaint is liable to be dismissed on this score only. It is further pleaded that the complainant has not given the intimation of the alleged accident to the insurance company at the initial stage at the time of alleged accident and no opportunity was given to the insurance company for inspection of the spot and to assess the loss of the damaged vehicle, hence, under the terms and conditions of the insurance policy, the insurance company is not liable to pay the claim and present complaint is liable to be dismissed on the score only. It is further pleaded that the Temporary R.C. of the truck in question had expired at the time of alleged accident and the alleged truck was not registered at the time of alleged accident, hence, there is a gross violation of the provisions of the Motor Vehicle Act, as a vehicle cannot be ply on road without its registration. It is further pleaded that the present complaint of the complainant is not maintainable and is liable to be dismissed under the terms and conditions of the policy. It is further pleaded that at the time of alleged accident no fitness and route permit of the truck in question was taken by the complainant from the competent authority, when the vehicle was being used for commercial purposes and was carrying bricks at the time of alleged accident, hence the insurance company is not liable to pay the claim under the terms and conditions of the policy.
On merits, the opposite parties have reiterated their stand as taken in legal objections and denied all the averments of the complaint and there is no deficiency in service on the part of the opposite parties. In the end, the opposite parties prayed for dismissal of complaint with costs.
4. Learned counsel for the complainant has tendered into evidence affidavit of Sukhjinder Kaur, (Complainant) as Ex.C-1 alongwith other documents as Ex.C-2 to Ex.C-26.
5. Learned counsel for the opposite parties has tendered into evidence affidavit of Sh. Karam Singh, (Senior Divisional Manager, Oriental Ins. Co. Ltd., Pathankot) as Ex.OP-1 alongwith other documents as Ex.OP-2 to Ex.OP-13.
6. Rejoinder not filed by the complainant.
7. Written arguments filed by both the parties.
8. Counsel for the complainant has argued that complainant is owner of truck bearing No.PB-02BU-7401 and the said truck met with an accident on 24.12.2014. It is further argued that the said the truck was insured with the opposite parties with IDV of Rs.4,89,250/-. It is further argued that son of the complainant namely Mangal Singh was driver of the truck at the time of accident and died in the accident. FIR was also registered in the said case but the opposite parties failed to get the loss assessed inspite of fact that earlier also complainant had filed complaint No.322 of 2016 and opposite parties were directed to settle the claim within 30 days of receipt of copy of the order dated 06.12.2017. It is further argued that opposite parties are disputing that the vehicle which met with an accident was a Bollero Car bearing No.PB-02TC-567. It is further argued that the legal heirs of Mangal Singh had filed MACT petition which was allowed vide award Ex.C16 and the opposite parties have deposited the said award amount by admitting the death of Mangal Singh having taken place while driving Ashok Leyland Truck bearing No.PB-02BU-7401. Failure to get the loss assessed and paying the compensation amounts to deficiency in service.
9. On the other hand counsel for the opposite parties has argued that as per the FIR the vehicle which was driven was Bollero Car bearing No.PB-02TC-567 and truck bearing No.PB-02BU-7401 has been introduced later on by the complainant to get compensation in a wrongful manner. It is further argued that the temporary R.C. of the truck owned by the complainant had already expired when accident took place and the complainant had not obtained fitness certificate and route permit of the truck etc. and there is no deficiency in service on the part of the opposite parties. Counsel for the opposite parties has relied upon judgment of Hon'ble Punjab and Haryana High Court, Chandigarh in case Komal Sharma and others Vs. National Insurance Company Ltd. 2017(1) PLR 241 and the judgment of Hon'ble State Consumer Dispute Redressal Commission, Chhattisgarh in case Bajaj Allianz General Insurance Co. Ltd. Vs. Ratna Khobragarde. As per above referred judgments vehicle without registration certificate cannot ply on the road and insurer is not liable to indemnity the owner in respect of loss caused to the vehicle.
10. We have heard the Ld. counsels for the parties and gone through the record.
11. To prove his case complainant has placed on record his duly sworn affidavit Ex.C1, copy of FIR Ex.C2, copy of DDR dated 16.01.2015 Ex.C3, copies of statements Ex.C4 and Ex.C5, copy of memo of possession Ex.C6, copy of test report Ex.C7, copies of policy of insurance Ex.C8 and Ex.C9, copy of temporary R.C. Ex.C10, copy of sale certificate Ex.C11, copy of R.C. Ex.C12, copy of driving licence of Mangal Singhy Ex.C13, copy of verification of driving licence Ex.C14, copy of order dated 06.12.2017 passed by this Commission Ex.C15, copy of award dated 31.01.2017 Ex.C16, copy of application of representation Ex.C17, postal receipts Ex.C18 and Ex. C19, copy of letter dated 15.01.2017 Ex.C20, copy of reply Ex.C21, post receipt Ex.C22, copy of legal notice Ex.C23 and postal receipts Ex.C24 to Ex.C26 whereas opposite parties have placed on record affidavit of Karam Singh Sr. Divisional Manager Ex.OP-1, copy of letter dated 17.05.2018 Ex.OP-2, copy of letter dated 14.05.2018 Ex.OP-3, copy of letter dated 24.04.2018 Ex.OP-4, copy of letter dated 24.03.2018 Ex.C5, copy of repudiation letter Ex.OP-6, copy of report of investigator Ex.OP-7, copy of rule (42) Ex.OP-8 copy of site plan Ex.OP-9, copy of news paper report Ex.OP-10 and Ex.OP-11, copy of policy of insurance Ex.OP-12 and copy of FIR Ex.OP-13.
12. It is admitted fact that complainant is owner of truck bearing No.PB-02BU-7401 and the said truck was insured with opposite parties insurance company. It is further admitted fact that said truck was insured from 20.11.2014 to 19.11.2015 with IDV of Rs.4,89,250/-. It is further admitted fact that FIR No.186 dated 25.12.2014 was registered in respect of said accident. It is further admitted fact that son of the complainant namely Mangal Singh died in the said accident. It is further admitted fact that complainant had filed complaint No.322 of 2016 against the opposite parties which was decided on 06.12.2017 vide order Ex.C15 and complainant was directed to lodge claim with the opposite parties alongwith documents within 15 days and opposite parties were directed to decide and convey the fate of the claim within 30 days. It is further admitted fact that claim petition filed by the legal heirs of Mangal Singh has been allowed by the MACT Gurdaspur vide award Ex.C16. It is further admitted fact that complainant had lodged claim on 28.12.2017 with the opposite parties. It is further admitted fact that opposite parties had repudiated the claim of the complainant. The issues before this Commission for adjudication are whether Mangal Singh died in accident on 24.12.2014 involving truck bearing No.PB-02BU-7401. Whether the insurance company was justified in repudiation of the claim.
13. Perusal of FIR Ex.C2 shows that the vehicle involved in the accident being driven by Mangal Singh is mentioned as Bollero Car bearing No.PB-02TC-567. However, as per supplementary statement Ex.C4 and copy of DDR Ex.C3 the number and make of the vehicle has been got corrected by the complainant. Possession memo Ex.C6 clearly shows that police has taken the said vehicle in its possession after the accident and the said vehicle bearing temporary registration No.PB-02BU-7401 was got examined from mechanic by the police vide Ex.C7. Copy of perusal of award Ex.C16 passed by the Court of Sh.Pushvinder Singh MACT Gurdaspur clearly shows that while deciding issues number 1 and 2 the learned MACT has clearly held that claimants have fully proved that the vehicle which met with an accident in which Mangal Singh died was not Bollero Car bearing No.PB-02TC-567 but it was four wheeler Ashok Leyland truck bearing No.PB-02BU-7401 and the counsel for the opposite parties has not been able to comment anything about passing of the award and compliance of the same which clearly proves on record that wrong number of vehicle was mentioned inadvertently which was got corrected on account of supplementary statement Ex.C4 but the opposite parties have taken one excuse or the other to deny the claim.
Although, opposite parties have taken plea that vehicle was not having valid registration certificate at the time of accident and as per case law cited above the insurance company is not liable to indemnify the complainant. However, perusal of award Ex.C16 shows that issued No.4 framed by the MACT if whether the offending vehicle was plying in contravention of terms of policy of insurance ? OPR-2, meaning thereby that onus to prove the said issue was on owner of the vehicle and in the operative part of the award in para No.15 there is no finding that said vehicle was used in contravention of terms and conditions of the policy and further while deciding issue No.7 i.e. Relief no recovery rights have been given by the MACT meaning thereby that the competent Court of law has already held that there was no contravention of terms and conditions of the policy and it is further admitted by the counsel for the opposite parties that award dated 31.01.2017 Ex.C16 has been complied with by the opposite parties and no further appeal has been filed in the Hon'ble High Court. As such we are of the view that once the evidence in competent Court of law has been admitted as correct by the opposite parties as such opposite parties cannot dispute and agitate the same matter before this Commission. Perusal of file further shows that even opposite parties failed to comply with order dated 06.12.2017 Ex.C15 passed by the Predecessor of this Commission shows high handedness on the part of the opposite parties and instead of getting the loss assessed by appointing some surveyor the opposite parties indulged in writing letters Ex.C3 to Ex.C6 and thereafter repudiated the claim on totally unjustified grounds. From the evidence on record failure to get the loss assessed even after directions by the Predecessor of this Commission clearly amounts to deficiency in service on the part of opposite parties. As far as the liability of the opposite parties to pay compensation is concern, perusal of file shows that temporary registration certificate Ex.C10 was issued on 20.11.2014 and the permanent registration certificate was prepared on 09.11.2015 copy of which is Ex.C12. As such we are of the view that since the complainant had failed to get the registration certificate prepared within one month without any justification and at the time of accident vehicle was not registered with any registration authority but we also cannot ignore this fact that policy of insurance was fully operationable covering the vehicle in question and was not cancelled. As such the opposite parties can settle the claim by offering 75% amount of the IDV as per the policy of insurance Ex.C8. During the course of arguments it has been stated by the counsel for the complainant that the insured vehicle bearing temporary registration No.PB-02BU-7401 and now registration as PB-06-V-7054 is still lying with the complainant in damaged condition. And since the date of accident is 24.12.2014 and at the time of passing of this order the vehicle has been rendered junk and is beyond repair and we are of the view that opposite parties deliberately avoided assessment of the loss of the vehicle even after receipt of copy of order dated 06.12.2017 passed by the Predecessor of this Commission and intimation by the complainant Ex.C17 is clear deficiency in service on the part of the opposite parties which is duly proved on record.
14. Accordingly, present complaint partly is allowed with following directions:-
i) Opposite parties are directed to pay 75% amount of IDV i.e. Rs.3,66,937/- alongwith interest @ 9% P.A. w.e.f. from date of this order till realization.
ii) Complainant is directed to hand over the salvage of the vehicle involved in the accident to the opposite parties alongwith R.C. and all the documents alongwith keys.
iii) Opposite parties are further directed to pay compensation to the complainant for mental tension, harassment to the tune of Rs.10,000/- and Rs.5,000/- as costs of litigation.
Entire exercise shall be completed within 30 days from the date of receipt of copy of this order.
15. The complaint could not be decided within the stipulated period due to heavy pendency of Court Cases, vacancies in the office and due to pandemic of Covid-19.
16. 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)
Nov. 28, 2023 Member
*YP*
