DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, BARNALA, PUNJAB.

Complaint Case No : CC/175/2022

Date of Institution : 08.07.2022

Date of Decision : 08.05.2024

Bhupinder Singh aged about 37 years son of Joginder Singh, resident of Wajidke Kalan, Tehsil and District Barnala, Mobile No. 99153-43591.     

                  …Complainant

Versus

1. The Oriental Insurance Company Limited, Regd. & Head Office: A-25/27, Asaf Ali Road, New Delhi 110002, through its Divisional Manager. 

2. The Oriental Insurance Company Limited Branch Near OBC Bank, K.C. Road, Barnala, through its Branch Manager.     

              …Opposite Parties

Complaint under Section 35 of the Consumer Protection Act, 2019

Present: Sh. J.S. Dhillon counsel for complainant.

Sh. Varinder Kumar Goyal counsel for opposite parties.

Quorum.-

1. Sh. Jot Naranjan Singh Gill : President

2.Smt. Urmila Kumari : Member

3.Sh. Navdeep Kumar Garg : Member

ORDER

 JOT NARANJAN SINGH GILL, PRESIDENT

1.    The complainant namely Bhupinder Singh has filed the present complaint under Section 35 of the Consumer Protection Act 2019 against The Oriental Insurance Company Limited and others (herein after referred as opposite parties). 

2. The facts leading to the present complaint are that the complainant is the registered owner of Toyota Etios VXID having registration No. PB-19-M-2801 and the complainant got his said car insured from the opposite parties and they inspected the car before insuring the same and issued insurance cover note to complainant after receiving the premium amount for the said purpose on the basis of which insurance policy No. 233599/31/ 2020/1291 for the period from 4.12.2019 to 3.12.2020. It is further alleged that on 18.10.2020 said car of the complainant met with an accident and was badly damaged and the matter was reported to the police authorities of Police Station, Thulliwal. After accident complainant handover the car to Toyota Service Centre IJM Motors Pvt. Ltd. NH-95, Ferozepur Road, Bhanohar, Ludhiana and complainant lodged a claim with opposite parties and on that time all the relevant documents were handed over to opposite parties surveyor but opposite parties not given any claim amount to the complainant. It is alleged that the complainant has spent more than Rs. 2,32,738/- for repairing the said Car. The above said act of the opposite parties clearly shows deficiency and negligence on the part of the opposite parties due to which the complainant suffering a lot of mental tension, pain, agony and physical harassment and financial loss. The complainant sent legal notice dated 6.5.2022 through his counsel Sh. Jaswinder Singh Dhillon Advocate to the opposite parties to finalize the claim of complainant and to make payment thereof to complainant alongwith interest @ 18% per annum within ten days from the receipt of notice but till date opposite parties did not finalize the claim of complainant and not pay any amount to the complainant of loss of vehicle. Hence, the present complaint is filed seeking the following reliefs.-

i)To pay Rs. 2,32,738/- amount of repair of car of complainant alongwith interest @ 18% per annum till realization. 

ii)To pay the amount of Rs. 50,000/- towards compensation on account of harassment tension and agony suffered by the complainant and Rs. 25,000/- as litigation expenses including counsel fee.  

3. Upon notice of this complaint, opposite parties appeared and filed written reply by taking preliminary legal objections that the claim has been repudiated by opposite parties for the reasons mentioned in letter dated 29.7.2022 and claim of the complainant falls under the violation of terms and conditions of policy, which is not payable for which a letter dated 3.6.2022 had been written to the complainant and the complainant had not filed any reply of the above said letter. The complainant has no locus-standi or cause of action to file the present complaint. This Commission has no jurisdiction to try and entertain the present complaint. The present complaint is false and frivolous and devoid of any merits. The instant complaint has been filed with malafide intention and the same has been filed by the complainant just to avail undue advantage. The complainant has not come with clean hands etc. 

4. On merits, it is submitted that as per FIR No. 0062 dated 19.10.2020 registered at P.S. Thulliwal District Barnala, the driver of the vehicle in question Mr. Harmohan Singh son of Mahinder Singh was under the influence of alcohol at the time of of accident. As per terms and conditions of the policy, the company shall not not be liable to make any payment in respect of any accidental damage or loss suffered while the insured or any person diving with the knowledge and consent of insured is under the influence of intoxication liquor or drugs. Claim of the complainant fell under the violation of terms and conditions of policy, which was not payable for which a letter dated 3.6.2022 had been written to the complainant and the complainant did not submit any reply of the same. It is further submitted that subsequently a letter dated 29.7.2022 has been written to the Bhupinder Singh complainant which is based on true facts. It is submitted that the accident had occurred due to the negligence and high speed driving of the car by driver Harmohan Singh and it is also submitted that the driver of the car was drunk at the time of alleged accident as evident in FIR, so that claim is not payable, in view of the violation of terms and conditions of the policy and has been rightly repudiated by the opposite parties. All other allegations of the complaint are denied and prayed for the dismissal of complaint with costs of Rs. 50,000/-. 

5. The complainant filed rejoinder to the reply filed by the opposite parties. The complainant alleged that there is no medical evidence on record to prove the factum consuming liquor by Harmohan Singh at the time of accident and said Harmohan Singh was not medico legally examined and without medical no person can be stamped to be under the influence of liquor and all other allegations levelled by the opposite parties in the reply are denied by the complainant. 

6. In order to prove his case the complainant tendered into evidence copy of RC Ex.C-1, copy of policy  Ex.C-2 (containing 2 pages), copy of bill Ex.C-3 (containing 4 pages), copy of DL of Harmohan Singh Ex.C-4, copy of legal notice Ex.C-5, postal receipts Ex.C-6 & Ex.C-7, copy of DL of Bhupinder Singh Ex.C-8, copy of FIR Ex.C-9 (containing 5 pages), affidavit of Bhupinder Singh Ex.C-10 and closed the evidence. 

7. To rebut the case the opposite parties tendered into evidence affidavit of Mukesh Malhotra Senior Divisional Manager Ex.O.Ps-1, copy of policy alongwith terms and conditions Ex.O.Ps-2 (containing 9 pages), copy of letter dated 29.7.2022 Ex.O.Ps-3, copy of letter dated 12.3.2022 (investigation report) Ex.O.Ps-4 (containing 4 pages), copy of Motor Final Survey Report Ex.O.Ps-5 (containing 7 pages), copy of FIR Ex.O.Ps-6 (containing 5 pages) and closed the evidence. 

8. We have heard the learned counsel for the parties and have gone through the record on file. Written arguments filed by the parties have also been gone through. 

9. At the outset, the Ld. counsel for the complainant has contented that the complainant is the registered owner of Toyota Etios VXID having registration No. PB-19-M-2801 (Ex.C-1) and the complainant got his said car insured from the opposite parties and they inspected the car before insuring the same and issued insurance cover note to complainant after receiving the premium amount for the said purpose on the basis of which insurance policy No. 233599/31/ 2020/1291 for the period from 4.12.2019 to 3.12.2020 (Ex.C-2). It is further contented that on 18.10.2020 said car of the complainant met with an accident and was badly damaged and the matter was reported to the police authorities of Police Station, Thulliwal (Ex.C-9) and after accident complainant handover the car to Toyota Service Centre IJM Motors Pvt. Ltd. NH-95, Ferozepur Road, Bhanohar, Ludhiana and complainant lodged a claim with opposite parties and on that time all the relevant documents were handed over to opposite parties surveyor but opposite parties not given any claim amount to the complainant. It is contended that the complainant has spent more than Rs. 2,32,738/- for repairing the said Car (Ex.C-3). It is also contended that the complainant sent legal notice dated 6.5.2022 (Ex.C-5) through his counsel Sh. Jaswinder Singh Dhillon Advocate to the opposite parties to finalize the claim of complainant and to make payment thereof to complainant alongwith interest @ 18% per annum within ten days from the receipt of notice but till date opposite parties did not finalize the claim of complainant and not pay any amount to the complainant of loss of vehicle. It is further contended that the above said act of the opposite parties clearly shows deficiency and negligence on the part of the opposite parties due to which the complainant suffering a lot of mental tension, pain, agony and physical harassment and financial loss. 

10. It is argued by the Ld. Counsel for opposite parties that the claim has been repudiated by opposite parties for the reasons mentioned in letter dated 29.7.2022 (Ex.O.Ps-3) and claim of the complainant falls under the violation of terms and conditions of policy, which is not payable for which a letter dated 3.6.2022 had been written to the complainant and the complainant had not filed any reply of the above said letter. It is further argued that as per FIR No. 0062 dated 19.10.2020 (Ex.O.Ps-6) registered at P.S. Thulliwal District Barnala, the driver of the vehicle in question Mr. Harmohan Singh son of Mahinder Singh was under the influence of alcohol at the time of of accident and as per terms and conditions of the policy the company shall not be liable to make any payment in respect of any accidental damage or loss suffered while the insured or any person diving with the knowledge and consent of insured is under the influence of intoxication liquor or drugs. It is further argued that subsequently a letter dated 29.7.2022 has been written to the Bhupinder Singh complainant which is based on true facts. It is also argued that the accident had occurred due to the negligence and high speed driving of the car by driver Harmohan Singh and the driver of the car was drunk at the time of alleged accident as evident in FIR, so that claim is not payable and in view of the violation of terms and conditions of the policy and has been rightly repudiated by the opposite parties, so the complaint is liable to be dismissed with costs. 

11. The main allegation of the opposite parties in the present case for repudiating the claim of the complainant as per above said FIR (Ex.O.Ps-6) is that the driver of the vehicle in question Mr. Harmohan Singh son of Mahinder Singh was under the influence of alcohol at the time of  accident and as per terms and conditions of the policy the company shall not not be liable to make any payment in respect of any accidental damage or loss suffered while the insured or any person diving with the knowledge and consent of insured is under the influence of intoxication liquor or drugs. But to prove the above said fact the opposite parties have failed to place on record any medical record/report of any doctor/hospital regarding the medical examination against the of driver Harmohan Singh who drive the alleged vehicle in question at the time of accident. Moreover, there is no evidence placed on record by the opposite parties regarding the investigation of the police authorities to indicate that the driver Harmohan Singh had under the influence of Alcohol at the time of alleged accident. Further, in Ex.O.Ps-4 (investigation report dated 12.3.2022 of Krish Associates, Investigators) at Page No. 7 in the column of Charge-Sheet (Challan) Is Issued U/S 173 CRPC in Para No. 2 it is mentioned that as per F.I.R. car driver Harmohan Singh was drunk at the time of accident but no evidence is available in the entire case and even charge-sheet is also silent about this fact. In Ex.O.Ps-4 at Page No. 8 in the column of Investigation Conducted To The Effect Whether Mr. Harmohan Singh Was Drunk At The Time Of Accident it is mentioned that the Sarpanch and renowned persons disclosed that Mr. Harmohan Singh was not drunk at the time of accident. The undersigned also conducted inquiry with the police I.O. who disclosed that there is no evidence to the effect whether Mr. Harmohan Singh was drunk. I.O. also informed that as there was no evidence in this connection, hence Mr. Harmohan Singh was allowed bail. So, the above said plea of the opposite parties is not tenable.  

12. The complainant has claimed that he has spent more than Rs. 2,32,738/- for repairing the said Car as per Ex.C-3. But on the other hand the opposite parties who have appointed Suresh Vashisht & Co. Surveyors and Loss Assessors who has placed on record Motor Final Survey Report (Non Cash Less) Ex.O.Ps-5 and the above said surveyor assessed the net amount to the tune of Rs. 2,17,500/-. However, the complainant has also failed to place on record any affidavit on behalf of above said service center where the vehicle in question was repaired. Moreover, we are of the view that the complainant has not produced any expert opinion/report to counter the report of above said surveyor of the opposite parties. 

13. Further, The Hon'ble Chhattisgarh State Consumer Disputes Redressal Commission in case titled Oriental Insurance Company Limited Vs Shyam Kumar Parashar report in IV(2017) CPJ-37B held that respondent has not filed any cogent evidence for discarding report of Surveyor. Merely filing of invoices and bills, it cannot be held that respondent incurred expenditure of Rs. 3,73,960/- on repairing vehicle. Surveyor's report is a reliable document. Respondent is entitled for the amount assessed by surveyor. Moreover, it is settled law that where the complainant has failed to prove the genuineness/authenticity of the bills/invoices as claimed by the complainant, so in that circumstances the surveyor report is liable to give weightage. 

14. In view of our above discussion, we partly allow the present complaint against the opposite parties and directed the opposite parties to pay an amount of Rs. 2,17,500/- as per Surveyor Report to the complainant along with interest @ 7% per annum from the date of filing of the present complaint till realization in full. We further directed the opposite parties to pay an amount of Rs. 10,000/- in lieu of compensation on account of mental torture, pain and agony and harassment suffered by the complainant as well as an amount of Rs. 5,000/- on account of litigation expenses to the complainant.

15. Compliance of the order be made within the period of 45 days from the date of the receipt of the copy of this order.

16. Copy of this order be supplied to the parties free of costs as per rules. File be consigned to the records after its due compliance. 

ANNOUNCED IN THE OPEN COMMISSION:

        8th Day of May, 2024

 

            (Jot Naranjan Singh Gill)

            President

 

(Urmila Kumari)

Member

 

(Navdeep Kumar Garg)

Member