Haryana

Karnal

CC/208/2019

Ved Pal - Complainant(s)

Versus

The Oriental Insurance Company Limited - Opp.Party(s)

S.S.Moonak

19 Dec 2022

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, KARNAL.

 

                                                        Complaint No. 208 of 2019

                                                        Date of instt.16.04.2019

                                                        Date of Decision:19.12.2022

 

Ved Pal, aged 42 years, son of Shri Bachna Ram, resident of VPO Sandhir, Tehsil Nilokheri, District Karnal (Aadhar no.6723 8349 4947).

 

                                               …….Complainant.

                                              Versus

 

1.     The Oriental Insurance Company Limited through its Divisional Manager, Near Bus Stand, Karnal.

2.     M/s Green Autos, near Arjun Gate, Old G.T. Road, Karnal through its Authorized person.

 

                                                                      …..Opposite Parties.

 

Complaint under Section 12 of the Consumer Protection Act, 1986 as amended under Section 35 of Consumer Protection Act, 2019.

 

Before   Sh. Jaswant Singh……President.       

      Sh. Vineet Kaushik…….Member

      Dr. Rekha Chaudhary….Member

 

 Argued by: Shri S.S.Moonak, counsel for the complainant.

                    Shri Naveen Khetarpal, counsel for OP no.1.

Shri Sukhdev Raj Kathuria, counsel for OP no.2.

 

                    (Jaswant Singh President)

ORDER:   

                

                The complainant has filed the present complaint under Section 12 of the Consumer Protection Act, 1986 as after amendment under Section 35 of Consumer Protection Act, 2019 against the opposite parties (hereinafter referred to as ‘OPs’) on the averments that complainant has filed earlier application under section 22 of Public Utility Act before the Permanent Lok Adalat, Karnal. This application was disposed of by the said court vide order dated 26.04.2018, wherein the applicant was directed to fulfill certain requirement of the insurance company and the insurance company was directed to settle the claim of the applicant within a period of one month from the date of order dated 26.04.2018. “In case the petitioner is not satisfied with the decision taken by the official of the OP, the petitioner would further be at liberty to file a fresh petition on the same cause of action, if so legally advised”.

2.             The brief facts of the case are that complainant has purchased a New Motorcycle (Star City) bearing temporary no.HR-99-TN (HQ) Temp-2456. Now is having RC no.HR-05-AN-7457.  Complainant got insured the said motorcycle with the OP no.1, vide cover note no.613470 dated 16.10.2014, valid upto 15.10.2015. The insured declared value of the vehicle was Rs.43,200/-.  On 18.12.2014, the said motorcycle met with an accident within the area of Police Station Taraori, District Karnal and in the said accident motorcycle was totally damaged. The matter was reported to local police and FIR no.308 of 2014 under section 279/304-A IPC was registered with the Police of Police Station Taraori (Karnal). The intimation was also sent to the OP no.1. Surveyor of the company was appointed who inspected the damaged vehicle and after inspection the vehicle was found to be total loss. The motorcycle is now lying at the premises of M/s Green Auto, near Arjun Gate, Karnal i.e. OP no.2 since 18.12.2014. The complainant had submitted all the relevant documents to the office of OP no.1 but despite waiting after long time no response was received from the OP. Complainant requested the OP no.1 several times to settle the claim but OP did not pay any heed to the request of complainant. Then complainant served a legal notice dated 23.03.2015 upon the OP no.1 but it also did not yield any result.

3.             It is further averred that in view of order dated 26.04.2018 passed by the Permanent Lok Adalat, Karnal and the complainant submitted all the required documents alongwith the original R.C. of the motorcycle on 29.05.2018 by hand, the same was duly acknowledged by the OP no.1 but official of the OP did not take any action and the claim was again repudiated vide letter dated 28.01.2019 without any reasonable cause. The complainant visited the OP no.2 and enquired about the fate of the motorcycle, then he came to know that the motorcycle has been disposed of by the OP no.2 in collusion with OP no.1. OP no.2 has charged Rs.3500/- at the time of sale of motorcycle to the complainant on account of preparing the RC and other misc. expenses. In this way there is deficiency in service and unfair trade practice on the part of the OPs. Hence this complaint.

4.             On notice, OP no.1 appeared and filed its written version raising preliminary objections with regard to maintainability; cause of action and concealment of true and material facts. On merits, it is pleaded that the claim of the complainant rightly done “No Claim” by OP due to not fulfill the requirements as desired by the OP to settle the claim. It is further pleaded that complainant filed earlier application before the permanent Lok Adalat, Karnal and this application disposed off by the said court, vide order dated 26.04.2018 wherein complainant was directed to fulfill the requirements of the insurance company, it is worthwhile to mention here that after the said order the complainant did not complete the formalities despite letters dated 08.05.2018, 18.06.2018 04.01.2019 and 28.01.2019. It is further pleaded that the amount shown for the damage is highly excessive. The actual damages assessed by the competent surveyor is Rs.21,000/- instead of total loss but the complainant is not entitled to the claim even assessed by the surveyor of company due to violation of terms and conditions of policy and Motor Vehicle Act.  It is further pleaded that at the time of accident, RC of vehicle was not valid the temporary number of vehicle was lapsed/expired on 18.12.2014 i.e. the day of accident and the complainant was not having valid R.C.(permanent) on the day of accident. The complainant is not entitled to claim damages on this sole ground for want of valid RC. It is further pleaded that surveyor of the OP visited to OP no.2 for re-inspection of the vehicle from where it reveals that the complainant took his vehicle unrepaired from OP no.2. It is wrong and denied that complainant had submitted all the relevant documents to the OP no.1. There is no deficiency in service on the part of the OP. The other allegations made in the complaint have been denied by the OP and prayed for dismissal of the complaint qua OP no.1.

5.             OP no.2 filed its separate written version raising preliminary objections with regard to maintainability; cause of action; mis-joinder and non-joinder of necessary parties and concealment of true and material facts. On merits, it is pleaded that one damaged bike belonging to Mr. Ved Pal (complainant) had been given to OP no.1 for accidental repair on 28.03.2015 and the vehicle could not be repaired due to incomplete documentation or other formalities required for the same. On 10.07.2015, OP had issued a letter vide which complainant was informed to collect his vehicle within five days. After which the parking charges @ Rs.25/- per day will be charged from the date of receiving of the vehicle. Inspite of this letter, OP neither received any payment for the parking charges. There is no deficiency in service on the part of the OP. The other allegations made in the complaint have been denied by the OP and prayed for dismissal of the complaint qua OP no.2.

6.             Parties then led their respective evidence.

7.             Learned counsel for the complainant has tendered into evidence affidavit of complainant Ex.CW1/A, copy of R.C. Ex.C1, copy of order dated 26.04.2018 passed by P.L.A. Karnal Ex.C2, copy of insurance policy Ex.C3, copy of FIR Ex.C4, acknowledgement Ex.C5, description of vehicle by Green Auto Ex.C6, copy of letter to complainant Ex.C7, copy of reply of application Ex.C8 and closed the evidence on 16.12.2019 by suffering separate statement.

8.             In additional evidence, learned counsel for the complainant has tendered into evidence copy of application to S.P. Karnal dated 05.01.2022 Ex.C9, postal receipt Ex.C10, statement of Ravinder Dhull dated 15.01.2022 and closed the additional evidence on 08.07.2022 by suffering separate statement.

9.             Learned counsel for OP no.1 has tendered into evidence affidavit of Dinesh Jain, Senior Branch Manager Ex.OP1/A, affidavit of Rajesh Sharma, Surveyor Ex.OP1/B, copy of letters dated 08.05.2018, 18.06.2018 04.01.2019 Ex.O1 to Ex.O3, registered envelope Ex.O4, letter dated 28.01.2019 Ex.O5, detail of temporary number Ex.O6, copy of covernote Ex.O7, copy of insurance policy Ex.O8, copy of survey report Ex.O9, copy of FIR Ex.O10, copy of letter of surveyor dated 16.06.2018 Ex.O11, copy of RC Ex.O12 and closed the evidence on 15.01.2021 by suffering separate statement.

10.           OP no.2 has tendered into evidence his affidavit Ex.OP2/1, copy of affidavit of Kashmir Ex.OP2/2, copy of notice and receipt Ex.OP2/3, copy of letter by OP no.2 to complainant Ex.OP2/4 and closed the evidence on 03.12.2021 by suffering separate statement.

11.           We have heard the learned counsel of the parties and perused the case file carefully and have also gone through the evidence led by the parties.

12.           Learned counsel for complainant, while reiterating the contents of the complaint, has vehemently argued that complainant had got insured the his motorcycle bearing registration no.HR-05-AN-7457 with the OP no.1. The insured declared value of the vehicle was Rs.43,200/-.  On 18.12.2014, the said motorcycle met with an accident and in the said accident motorcycle was totally damaged. An FIR no.308 of 2014 was got registered in this regard. The intimation was also sent to the OP no.1. On receipt of intimation, a surveyor was appointed by the OP no.1, who inspected the damaged vehicle and found the vehicle in total loss. The motorcycle is now lying at the premises of OP no.2 since 18.12.2014. Complainant requested the OP no.1 several times to settle the claim but OP did not do so and lastly prayed for allowing the complaint.

13.           Per contra, learned counsel for the OP no.1 while reiterating the contents of written version, has vehemently argued that the claim of the complainant has rightly done “No Claim” by the OP due to non- fulfilling of the requirements. He further argued that earlier application filed by the complainant before the permanent Lok Adalat, Karnal was disposed off, vide order dated 26.04.2018 wherein complainant was directed to fulfill the requirements of the insurance company but the complainant failed to complete the formalities despite letters dated 08.05.2018, 18.06.2018 04.01.2019 and 28.01.2019. He further argued that actual damages assessed by the surveyor of the OP is Rs.21,000/- instead of total loss but the complainant is not entitled to the claim even assessed by the surveyor of company due to violation of terms and conditions of policy and Motor Vehicle Act as at the time of accident complainant was not having valid R.C.(permanent) on the day of accident and lastly prayed for dismissal of the complaint.

14.           Learned counsel for the OP no.2, while reiterating the contents of written version, has vehemently argued that one damaged bike belonging to complainant had been given to OP no.1 for accidental repair on 28.03.2015 and the vehicle could not be repaired due to incomplete documentation or other formalities required for the same. On 10.07.2015, OP had issued a letter vide which complainant was informed to collect his vehicle within five days. After which the parking charges @ Rs.25/- per day will be charged from the date of receiving of the vehicle. Inspite of this letter, OP neither received any payment for the parking charges and lastly prayed for dismissal of the complaint qua OP no.2.

15.           We have duly considered the rival contentions of the parties.

16.           Admittedly, the vehicle in question met with an accident during the subsistence of the insurance policy. It is also admitted that the sum insured in the policy in question was Rs.43,200/-. The claim of the complainant has been closed by the OPs, vide letters Ex.C7/Ex.O5 and Ex.O3 dated 28.01.2019 and 04.01.2019 respectively.

17.           The claim of the complainant has been closed by the OP no.1 on the ground for non-submission of required documents. Documents sought by the OP no.1, vide letter Ex.O2 18.06.2018 reproduced as under:-

1.     Provide your vehicle for survey/re-inspection.

2.     After repair, please submit original repair bills and cash receipt.

3.     Please submit RC which was valid at the time of accident, RC submitted by your is not valid at the time of accident.

4.     Accident was occurred on 18.12.2014 and you have lodged the FIR at Police Station Taraori only on 23.12.2014 i.e. after a gap of five days.

17.           In No Claim letter, OP has taken a plea that complainant has failed to provide his vehicle for survey/re-inspection and also failed to submit the original repair bills and cash receipt. It is evident from the statement Ex.C11 of Shri Ravinder Dhull proprietor of OP no.2 that the vehicle in question has been sold in scrap by the OP no.2. Hence the question for providing the vehicle for re-inspection and submitted the repair bills does not arise.

18.           In No Claim letter, OP has also taken a plea that Registration Certificate of the vehicle was not valid at the time of accident. Admittedly, the complainant had purchased new motorcycle and OP no.2 had issued temporary registration certificate. On expiry of the temporary registration certificate, complainant has not applied for the permanent registration certificate and same was applied by the complainant lateron but in that eventuality, the claim of the complainant cannot be repudiated in toto.  In this regard, we are relying upon the authority cited in Revision Petition no.1870 of 2015(NC) decided on 14.08.2018 titled as New India Assurance Co. Ltd. Versus Thirath Singh Brar,  and authority of our own Hon’ble State Commission in First Appeal no.717 of 2016 decided on 6.4.2017 titled as United India Insurance Company Limited and others Versus Anshul Bansal.  In both judgments it was held that in case of any breach of warranty/condition of the policy the insurer is liable to pay 75% of admissible claim on non-standard basis.

18.           The last plea taken by the OP is that accident was occurred on 18.12.2014 and complainant lodged the FIR on 23.12.2014 i.e. after a gap of five days. In this regard, we are relying upon the case laws titled as Om Parkash Versus Reliance General Insurance and anr. in Civil Appeal no.15611 of 2017 decided on 4.10.2017 ; Gurshinder Singh Versus Shri Ram General Insurance Co. in Civil Appeal no.653 of 2020 decided on 24.01.2020;Dharamnder Versus United India Insurance Co. Ltd. and others in civil Appeal no.5705 of 2021 date of decision 13.09.2021 and Jatin Construction Company Versus Oriental Insurance Company Limited and Anr. in Civil Apeal no.1069 of 2022 date of decision 11.02.2022.

19.           Keeping in view that the ratio of the law laid down in aforesaid judgments, facts and circumstances of the present complaint, we are of the considered view that in accident cases delay of such short span does not matter.

20.           As per insurance policy Ex.C3/Ex.O8, the Insured Declared Value (IDV) of the vehicle in question is Rs.43,200/-, but surveyor of the OP has assessed the net liability of the company is of Rs.21,000/-, vide report Ex.O9, while applying the clause of non-standard basis and after deducting the scrap value. As per the insured declared value, the loss comes out of Rs. Rs.32,400/- i.e. 75% of the insured declared value. Hence, complainant is entitled for the said amount alongwith compensation and litigation expenses.

21.           It has been proved from the statement Ex.C11 of Ravinder Dhull, proprietor of OP no.2, the vehicle in question has been sold by the agency i.e. OP no.2 without permission or intimation to the OP no.1. Hence, the OP no.2 is also liable to pay the part of awarded amount.

22.           Thus, as a sequel to abovesaid discussion, we partly allow the present complaint and direct the OPs to pay Rs.32,400/- to the complainant. Out of the awarded amount OP no.1 is liable to pay Rs.21,000/- and remaining amount of Rs.11,400/- (32,400-21,000) is to be paid by the OP no.2. The said amount will carry interest @9% per annum from the date of repudiation/closing of the claim till its realization. We further direct the OPs to pay Rs.10,000/- to the complainant on account of mental agony and harassment and Rs.5500/- towards the litigation expenses in equal share. This order shall be complied with within 45 days from the receipt of copy of this order. However, the complainant is also directed to get all the formalities completed with regard to transfer/cancellation of RC of the vehicle in question in the name of OP no.1. The parties concerned be communicated the order accordingly and the file be consigned to the record room after due compliance.

Announced

Dated: 19.12.2022                                                                    

                                                                      President,

                                                      District Consumer Disputes

                                                      Redressal Commission, Karnal.

 

 

                (Vineet Kaushik)                (Dr. Rekha Chaudhary)

                        Member                             Member

Sushma

Stenographer