Haryana

Kaithal

424/19

Anil Kumar - Complainant(s)

Versus

The Oriental Insurance Co. - Opp.Party(s)

Sh.Naveen Bidhan

05 Oct 2023

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, KAITHAL.

                                                     Complaint Case No.424/2019.

                                                     Date of institution: 11.12.2019.

                                                     Date of decision:05.10.2023.

Anil Kumar S/o Balwant Singh r/o V.P.O. Sirta, Tehsil and District Kaithal.

                                                                        …Complainant.

                        Versus

1. The Oriental Company Limited, office at Dhand Road, Kaithal through its Branch Manager.
2. Saini Motors, Tata Authorized Service Station, near Aruna Filling Station, Jind Road, Bye Pass, Kaithal.

….OPs.

        Complaint under Section 12 of the Consumer Protection Act

CORAM:     SMT. NEELAM KASHYAP, PRESIDENT.

                SMT. SUMAN RANA, MEMBER.

                SH. SUNIL MOHAN TRIKHA, MEMBER.

       

Present:     Sh. Naveen Bidhan, Advocate, for the complainant.   

                Sh. Sudeep Malik, Advocate for the OP.No.1.

                Sh. Anil Saini, Adv. for the OP No.2.

               

ORDER

NEELAM KASHYAP, PRESIDENT

        Anil Kumar-Complainant has filed this complaint under Section 12 of Consumer Protection Act, 1986 (hereinafter referred to as ‘the Act’) against the OPs.

2.             In nutshell, the facts of present case are that the complainant got insured his truck bearing registration No.HR-64A-5839 with the OP No.1 vide policy No.261390/31/2019/1328 valid for the period 23.06.2018 to 22.06.2019.  On 18.10.2018, the said truck of complainant met with an accident and said vehicle was badly damaged.  Intimation regarding accident was given to OP No.1.  The complainant got repaired the said vehicle from OP No.2 and incurred the amount of Rs.5,02,615/-.  It is further alleged that the OP No.2 received the amount of Rs.5,02,615/- from the complainant for the repair work of the truck but he sent the less estimate bills of Rs.80,000/- to the surveyor.  The complainant got lodged the claim with the OP No.1 and submitted all the necessary documents but the OP No.1 repudiated the claim of complainant vide letter dt. 19.09.2019.  The said repudiation of claim is wrong and illegal.  So, it is a clear cut case of deficiency in service on the part of OPs and prayed for acceptance of complaint.     

3.            Upon notice, the OPs appeared before this Commission and contested the complaint by filing their written version separately.  OP No.1 filed the written statement raising preliminary objections with regard to locus-standi; maintainability; cause of action; that there is no deficiency in service on the part of answering OP; that on receipt of intimation regarding accident, the answering OP deputed Er. Rakesh C.Sagar, surveyor and loss assessor, who submitted his report on 22.06.2019 wherein he had mentioned that the exact name of driver was unknown because the actual driver of the said vehicle got injuries in his legs and was referred to Govt. Hospital Dhamond by the police officials of Kakadda Police Station.  Even from the information gathered from the eye witnesses and newspaper clippings, the driver of Tralla in question was got injured and he had received fractural injuries on his legs but as per claim form and information submitted by the complainant, the alleged driver Naresh Kumar had not received any injury on his person which further strengthen the fact that at the time of alleged accident, Naresh Kumar was not on wheels of tralla in question.  Even the matter was not reported to concerned Police Station with malafide intentions in order to conceal the name of actual driver.  Even after pre-repudiation letter, the complainant failed to satisfy the answering OP No.1 in this regard.  So, the claim of complainant was rightly repudiated by the Op No.1 vide letter dt. 19.09.2019.  On merits, the objections raised in the preliminary objections are rebutted and so, prayed for dismissal of complaint.

4.             OP No.2 filed the written statement raising preliminary objections with regard to maintainability; cause of action; jurisdiction; that the truck in question came to the service-station of the answering OP on 24.10.2018 and on 27.10.2018 before dismantling the vehicle, an estimate of Rs.10,71,035/- for repair of said truck was given to the complainant.  On 28.01.2019 the said truck was obtained by the complainant for body work.  The body work of the above-said truck was done by Ekta Body Maker Rohtak Road, Jind.  After completion of body work, the above-said truck came to the premises of the answering OP on 06.03.2019, a credit memo for an amount of Rs.5,06,215/ of the above-said truck was got prepared.  The complainant has concocted a false story that the answering OP had send a less estimate bill of Rs.80,000/- to the surveyor, whereas the answering OP had given an estimate of Rs.10,71,035/- to the complainant and the surveyor of the OP No.1 had assessed the estimated loss of the above-said truck for a total amount of Rs.4,17,758/- after making the depreciation.  There is no deficiency in service on the part of answering OP.  On merits, the objections raised in the preliminary objections are rebutted and so, prayed for dismissal of complaint. 

5.             To prove his case, the complainant tendered into evidence affidavit Ex.CW1/A alongwith documents Annexure-C1 to Annexure-C12 and thereafter, closed the evidence.

6.             On the other hand, the OP No.2 tendered into evidence affidavit Ex.RW1/A alongwith documents Annexure-R1 to Annexure-R7 and OP No.1 tendered into evidence affidavit Ex.RW1/A alongwith documents Annexure-R1/1 to Annexure-R1/13 and thereafter, closed the evidence.

7.             We have heard the learned Counsel for both the parties and perused the record carefully.

8.             Ld. counsel for the complainant has argued that the complainant got insured his truck bearing registration No.HR-64A-5839 with the OP No.1 vide policy No.261390/31/2019/1328 valid for the period 23.06.2018 to 22.06.2019.  On 18.10.2018, the said truck of complainant met with an accident and said vehicle was badly damaged.  Intimation regarding accident was given to OP No.1.  It is further argued that the complainant got repaired the said vehicle from OP No.2 and incurred the amount of Rs.5,02,615/-.  It is further argued that the OP No.2 received the amount of Rs.5,02,615/- from the complainant for the repair work of the truck but he sent the less estimate bills of Rs.80,000/- to the surveyor.  The complainant got lodged the claim with the OP No.1 and submitted all the necessary documents but the OP No.1 repudiated the claim of complainant vide letter dt. 19.09.2019.  The said repudiation of claim is wrong and illegal.  So, it is a clear cut case of deficiency in service on the part of OPs.

9.             On the other hand, ld. counsel for the OP No.1 has argued that on receipt of intimation regarding accident, the OP No.1 deputed Er. Rakesh C.Sagar, surveyor and loss assessor, who submitted his report on 22.06.2019 wherein he had mentioned that the exact name of driver was unknown because the actual driver of the said vehicle got injuries in his legs and was referred to Govt. Hospital Dhamond by the police officials of Kakadda Police Station.  It is further argued that even from the information gathered from the eye witnesses and newspaper clippings, the driver of Tralla in question was got injured and he had received fractural injuries on his legs but as per claim form and information submitted by the complainant, the alleged driver Naresh Kumar had not received any injury on his person which further strengthen the fact that at the time of alleged accident, Naresh Kumar was not on wheels of tralla in question.  Even the matter was not reported to concerned Police Station with malafide intentions in order to conceal the name of actual driver.  Even after pre-repudiation letter, the complainant failed to satisfy the answering OP No.1 in this regard.  So, the claim of complainant was rightly repudiated by the Op No.1 vide letter dt. 19.09.2019.

10.            Ld. counsel for the OP No.2 has argued that the truck in question came to the service-station of the OP No.2 on 24.10.2018 and on 27.10.2018 before dismantling the vehicle, an estimate of Rs.10,71,035/- for repair of said truck was given to the complainant.  On 28.01.2019 the said truck was obtained by the complainant for body work.  The body work of the above-said truck was done by Ekta Body Maker Rohtak Road, Jind.  After completion of body work, the above-said truck came to the premises of the OP No.2 on 06.03.2019, a credit memo for an amount of Rs.5,06,215/ of the above-said truck was got prepared.  The complainant has concocted a false story that the OP No.2 had send a less estimate bill of Rs.80,000/- to the surveyor, whereas the OP No.2 had given an estimate of Rs.10,71,035/- to the complainant and the surveyor of the OP No.1 had assessed the estimated loss of the above-said truck for a total amount of Rs.4,17,758/- after making the depreciation.

11.            We have considered the rival contentions of both the parties.  The OP No.1 has taken the objection that at the time of alleged accident, the driver of the insured vehicle/Truck Tralla being registration No.HR64-5839 was not Naresh Kumar rather it was being driven by Parveen Kumar.  During the course of arguments, ld. counsel for the OP No.1 has placed on file cutting of newspaper in this regard as per Mark-A, wherein it is mentioned that the driver of Tralla in question was got injured and he had received fractural injuries on his legs.  To rebut the said contention of ld. counsel for the OP No.1, ld. counsel for the complainant has vehemently contended that the complainant had obtained the investigation report from the OP No.1-insurance company in R.T.I., which is Mark-B on the file.  In the said report, the investigator has given the opinion and relevant portion of findings are as under:-

“1. Accident accrued on 18.10.2018 is genuine.

        2. No third party loss only Helper Ashu was injured.

3. Naresh Kumar Dhull Driver at the time of accident.”

              So, from the aforesaid report of investigation, it is clear that Naresh Kumar was driving the vehicle at the time of accident.  Hence, the contention of OP No.1 that at the time of accident, some other person namely Parveen was driving the vehicle has no force.  In the present case, the surveyor has assessed the net loss amounting to Rs.4,39,759/- as per report which is  Annexure-R1/11 on the file.  In this regard, we can rely upon the authority cited in Shiv Villas Resorts Pvt. Ltd. Vs. UII, 2018(1) CLT page 508 (NC), wherein it has been held by Hon’ble National Commission that Insurance claim-Surveyor’s report-Held-That surveyors are appointed under the Insurance Act, 1938 and their reports are the basis for settling the insurance claim-To disregard the same-The complainant had not filed any objection to the surveyor’s report-Thus if there are no objections to the surveyor’s report-it is to be accepted-Appeal dismissed.    

12.            The another grievance of the complainant is that the OP No.2 received an amount of Rs.5,02,615/- from the complainant for the repair work of the truck as per invoice dt. 06.03.2019 (Annexure-C3) and cash receipt as per Annexure-C4 but they have sent less estimate of Rs.80,000/- to the surveyor.  During the course of arguments, ld. counsel for the complainant has drawn our attention towards the bill as per Annexure-C3 in which some bills which were not sent to the surveyor are highlighted and the said bills becomes total amounting to Rs.42,044/- (Rs.17,547/-+Rs.730/-/-+Rs.331/-+Rs13,794/-+Rs.2391/-+Rs.7251/-).  So, we are of the considered view that there is deficiency in service on the part of both the Ops. 

13.            Thus, as a sequel of aforesaid discussion, we direct the OP No.1-insurance company to pay the amount of Rs.4,39,759/- as assessed by the surveyor and OP No.2 is directed to pay the amount of Rs.42,044/- to the complainant as mentioned above within 45 days from today.  The OP No.1-insurance company is further directed to pay Rs.5,000/- as compensation on account of physical harassment, mental agony as-well-as Rs.5,000/- as litigation charges to the complainant.  However, it is made clear that if the OPs are failed to pay the awarded amount as mentioned above to the complainant within stipulated period, then they shall be liable to pay interest @ 7% p.a. from the date of this order till its realization.  Hence, the present complaint is accepted accordingly.   

14.            In default of compliance of this order, proceedings against respondents shall be initiated under Section 72 of Consumer Protection Act, 2019 as non-compliance of court order shall be punishable with imprisonment for a term which shall not be less than one month, but which may extend to three years, or with fine, which shall not be less than twenty five thousand rupees, but which may extend to one lakh rupees, or with both.  A copy of this order be sent to both the parties free of cost.  File be consigned to the record room after due compliance.     

Announced in open court:

Dt.:05.10.2023.

                                                                (Neelam Kashyap)

                                                                President.

 

(Sunil Mohan Trikha),           (Suman Rana),          

Member.                            Member.

 

Typed by: Sanjay Kumar, S.G.