Before the District Consumer Disputes Redressal Forum, Rohtak.
Complaint No. : 10.
Instituted on : 08.01.2009.
Decided on : 08.03.2016.
- Smt. Laxmi Devi w/o Sh. Chotu Ram.
- Sh. Jai Bhagwan s/o Sh. Chotu Ram.
- Sh. Dharambir s/o Sh. Chotu Ram.
- Sh. Karamvir s/o Sh. Chotu Ram.
All residence of village and P.O.Bhaproda, Tehsil and Distt. Jhajjar.
………..Complainant.
Vs.
- The Oriental Insurance Company Limited. Through its Divisional Manager, Jawahar Market, Model Town, Rohtak(Insurer of Tractor No.HR-13-B-1411).
- The Haryana Gramin Bank through its Branch Manager, Sampla Branch, Tehsil Sampla, Distt. Rohtak.
……….Opposite parties.
COMPLAINT U/S 12 OF CONSUMER PROTECTION ACT,1986.
BEFORE: SH.JOGINDER KUMAR JAKHAR, PRESIDENT.
MS. KOMAL KHANNA, MEMBER.
SH. VED PAL, MEMBER.
Present: Sh.Parveen Kumar, Advocate for the complainant.
Sh.Anil Sharma, Advocate for the opposite party No.1.
Sh.R.N.Saini Advocate for opposite party no.2.
ORDER
SH. JOGINDER KUMAR JAKHAR, PRESIDENT :
1. The present complaint has been filed by the complainants with the averments that they are registered owner of tractor No.HR-13B-1411, chassis No.318153, Engine No.75492 and they insured their tractor No.HR-13b-1411 with the opposite party vide cover note No.532985 which was valid from 05.07.07 to 04.07.08 and said policy was comprehensive and all risk was covered under the said policy. It is averred that the above said tractor met with an accident on 29.09.2007 near HUDA Sector-3, Rohtak and due to that accident, the said tractor fell into ditch on road side and was badly damaged, which was driven by Ashok s/o Dharambir. It is averred that intimation was given to the opposite party no.1 alongwith original estimated bills of Rs.150000/- and spot survey was also conducted by the company. A surveyor was also appointed by the company and he assessed the loss of Rs.120000/- on repair basis and submitted his report in the company. It is averred that the tractor was plied for livelihood and same was financed (HPA) with HKG Bank now Haryana Gramin Bank Sampla in the year 2004 and complainants paid the heavy rate of interest. It is averred that as per terms and conditions of the loan agreement the said tractor was insured by the said bank and insurance premium was paid by the bank through the complainant’s account. In continuation of the insurance of the said tractor vide cover note no.542982 dated 04.07.2007 was issued in favour of the complainant by name from 05.07.2007 to 04.07.2008 but inadvertently registration No.HR-14B-1411, engine No.0927475 and chassis no.498345 of the said tractor were wrongly mentioned in the cover note No.542982 whereas the correct tractor no. is HR-13B-1411, Chassis No.318153, Engine No.75492. It is averred that the above said act of O.Ps was deliberately in collusion with each other and liable to pay complainant jointly and severally. It is averred that complainant contacted the opposite party no.2 regarding the mistake while issuing the cover note, which was done by the opposite party no.1 but the opposite party No.2 neither cooperate nor ready to supply the concerned documents to prove his complaint. It is averred that complainant visited the office of opposite party many times but the opposite party avoided the matter on one pretext or the other. It is averred that the act of opposite parties is illegal and amounts to deficiency in service. As such it is prayed that opposite parties may kindly be directed to make payment of amount of Rs.150000/- to the complainant alongwith interest, compensation and litigation expenses.
2. On notice, the opposite parties appeared and filed their separate written reply. Opposite party no.1 in its reply has submitted that the tractor of the complainant having registration No.HR-13B-1411, Engine No. 75492, Chassis No.318153 is/was not insured with the answering opposite party. The answering opposite party insured the tractor bearing no.HR-13B-1411 having engine no.0927475 and Chassis no.498345 and the insured tractor was not damaged and as well as tractor number mentioned in the complaint also not damaged as per report of surveyor and photographs taken by the surveyor at the spot survey. It is averred that the final survey was conducted by Sh. Ashok Kumar Surveyor who assessed the loss of tractor which was found at the spot which was shown by the complainant to Rs.26417-42p as per report dated 21.01.2008. But the complainant is not entitled for any claim from the answering opposite party for the reasons stated above. It is wrong that the surveyor assessed the loss of Rs.120000/- on repair basis as alleged. It is averred that the claim of the complainant is not genuine and insured vehicle was not damaged and complainant under the fraud want to extract compensation, hence complainant is not entitled for any claim. There is no deficiency in service on the part of opposite party.. As such dismissal of complaint has been sought.
3. Opposite party no.2 in its reply has submitted that it is correct to the extent that the said tractor was financed from Haryana Gramin Bank Sampla. The said loan has been repaid. It is also correct that the said tractor was insured with the opposite party No.1. It is submitted that if any particular of the tractor were wrongly mentioned in the cover note, there was no fault of the answering opposite party and it was the fault of opposite party no.1. It is averred that the answering opposite party supplied correct information to the opposite party no.1 and the mistake, if any, is on the part of opposite party no.1. It is averred that there is no deficiency in service on the part of answering opposite party and dismissal of complaint has been sought.
4. Both the parties led evidence in support of their case.
5. Ld. Counsel for the complainants in his evidence tendered documents Ex.C1 to Ex.C13 and has closed his evidence. On the other hand, ld. Counsel for the opposite party no.1 tendered affidavit Ex.R1, documents Ex.R2 to Ex.R5 and has closed the evidence of opposite party no.1. However opposite party no.2 did not tender any evidence despite availing sufficient opportunities and the evidence of opposite party no.2 was closed by the Court order dated 29.05.2014 of this Forum.
6. We have heard learned counsel for the parties and have gone through material aspects of the case very carefully.
7. In the present case the main dispute is that as per the opposite party no.1 the vehicle in question was not insured with the opposite party as the vehicle particulars mentioned in the cover note does not match with the R.C. and physical/spot verification. On the other hand, contention of ld. Counsel for the complainant is that the alleged vehicle bearing no.HR-13B-1411 having Chassis No.318153 and Engine No.75492 was insured with the opposite party no.1 and financed with the opposite party no.2 and the difference if any in the vehicle particulars was fault of the opposite parties.
8. After going through the file and hearing the parties it is observed that as per the statement of account Ex.C8, the opposite party no.2 has financed the amount for the vehicle to the complainant and got the same insured with the opposite party no.1 vide policy no.542985 and has also deducted/charged the premium amount of Rs.2674/- as shown in cover note Ex.R3 as well as statement of account Ex.C8. As per the Invoice Ex.C11 issued in the name of complainant, the Engine no. of the vehicle is 75492 and chassis number of the vehicle is 318153 and the same was H.P.A.with H.K.G.B. Sampla. As per copy of cover note Ex.R3 the Registration no. of the vehicle is HR14B/1411 but the engine no. and chassis number are different. As per survey report Ex.R4 also the vehicle no.HR13B-1411 was insured with the opposite party no.1 and as per physical verification the Chassis number of the vehicle is 318153 and Engine number is 75492. Hence from the documents placed on record it is proved that the vehicle bearing registration no. HR14B/1411 in the name of complainant was financed by the opposite party no.2 and was insured with the opposite party no.1. The change of engine number and chassis number in the cover note if any was due to the fault of opposite party no.1 itself. The other plea taken by the opposite party no.1 is that the complaint is not maintainable as the same has been earlier dismissed by this Forum vide order dated 08.11.2011 of this Forum. In this regard it is observed that as per this order dated 08.11.2011 placed on record as Ex.R5, the complainant was given liberty to file fresh complaint qua the said vehicle if legally found insured with the insurance company. As such the plea taken by the opposite party is wrong and the reliance has been placed upon the law cited in 2013(4)CLT 87 titled as Lucky Mittal & Others Vs. Oriental Insurance Company whereby Hon’ble National Commission, New Delhi has held that: “The District Forum allowed complainant to withdraw the complaint and impliedly permitted complainant to file fresh complaint-Subsequent complaint in compliance to order of District Forum cannot be treated a fresh complaint-State Commission has committed error in allowing appeal and dismissing complaint being barred by limitation-Revision accepted”. It is also observed that the opposite party no.1 in its reply has submitted that the final survey was conducted and as per report the amount of Rs.26417/- was assessed as loss but the alleged report has not been placed on record by the opposite party. In this regard reliance has been placed upon the law cited in II(2012)CPJ 1(NC) titled as United India Insurance Co. Ltd. & Ors. Vs. Col. Randhawa Singh, whereby Hon’ble National Commission, New Delhi has held that: “Non production or Surveyor’s report before Fora below and attempt to raise a false claim of driving license of petitioner being invalid definitely goes to show that petitioner Insurance company has not been fair in dealing with complainant-Lump sum compensation awarded”.
9. In view of the aforesaid law which are fully applicable on the facts and circumstances of the case it is observed that the complainants are entitled for the insurance claim as assessed by the surveyor which has been admitted by the opposite party no.1 in its written statement i.e. amounting to Rs.26418/-. As such opposite party no.1 is directed to pay Rs.26418/-(Rupees twenty six thousand four hundred eighteen only) alongwith interest @ 9% p.a. from the date of filing the present complaint i.e. 08.01.2009 till its realization and shall also pay a sum of Rs.3000/-(Rupees three thousand only) as litigation expenses to the complainants maximum within one month from the date of decision, failing which opposite party no.1 shall be liable to pay further interest @ 12% p.a. from the date of decision. Complaint is disposed of accordingly.
10. Copy of this order be supplied to both the parties free of costs. File be consigned to the record room after due compliance.
Announced in open court:
08.03.2016.
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Joginder Kumar Jakhar, President
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Komal Khanna, Member.
……………………………….
Ved Pal, Member.
