Order by

Smt.Aparana Kundi, Member

1.       The complainant has brought the instant complaint under section 35 of the Consumer Protection Act, 2019 on the allegations that complainant is the owner of Honda ACTIVA bearing registration no.PB-76A-6750 having Engine no. JF50EA0075847 and Chassis no.ME4JF50AHKA076088 and he got his vehicle insured from opposite party no.1 vide Insurance policy no.233904/31/2022/2450 for the period from 20.01.22 to 19.01.2023. Unfortunately on 09.05.2022 at about 12.00 pm the above mentioned insured vehicle of complainant had met with an accident near main bazaar while going from Dana Mandi to Bank which was driven by his Employee Balwinder Singh son of Prem Singh and due to such accident the insured vehicle of complainant got damaged and then complainant informed to opposite parties about such incidence and also submitted his claim with them. Thereafter opposite parties appointed a Surveyor and Investigator to verify about the loss caused to the insured vehicle, but he never visited at the spot and verify about such loss. Thereafter, the complainant got his vehicle repaired from Opposite party no.2 i.e. M/s Hem Honda vide its invoice No.PB11000222001633 having Job Card no.PB110002-02-2223-001293, who also informed complainant as well as opposite parties that the total loss cum damage caused to said insured vehicle due to such accident is Rs.18532/- including cost of repair of said vehicle, but opposite parties no.1 did not pay any amount to said agency and then in order to release his vehicle from said agency complainant has to paid whole amount of the bill under protest. Further alleged that the Opposite Party No.1 illegally and falsely rejected the claim of the complainant. The complainant also issued legal notice to the Opposite Parties, but to no effect. Such act and conduct of the Opposite Parties caused mental tension, harassment and agony to the complainant.  Hence, this complaint. Vide instant complaint, the complainant has sought the following reliefs from this Commission:-

a)       Opposite Parties no.1 & 2 may be directed to pay Rs.18,532/- with regard to loss/damage cause to his insured vehicle alongwith interest @ 24% p.a. to complainant from the date of accident i.e. 09.05.2022 till its realization.

b)      To pay an amount of Rs.1,00,000/- as compensation on account of mental tension, harassment and agony caused to the complainant.

c)       To pay an amount of Rs.5500/- as cost of complaint.

d)      Any other relief which this Commission may deem fit and proper in the interest of justice and equity be also granted.

2.       Upon service of notice, Opposite Party No.1 appeared through counsel and filed written reply taking certain preliminary objections therein inter alia that the complaint is not maintainable. The complainant has got no locus-standi. No deficiency in service has been attributed to the opposite party and from the allegations in the complaint no deficiency in service is made out. The complaint is barred by the terms and conditions of the insurance policy. The complaint is absolutely false and frivolous. Further averred that the claim was reported to the opposite party no.1 on 12.05.2022 and immediately Surveyor Sh.Piara Singh was deputed. The Surveyor Sh.Piara Singh immediately visited and inspected the Honda Activa and taken the pictures of the Honda Activa at the spot and found following old damaged parts.

i.        Fender old Damaged. (Shown in the PI Report)

ii.       Cover Comp. R/S FR Dented/scratched (old Damaged. Clear in the PI Report)

iii.      Cover Comp. L/s FR old/scratched (shown in the PI Report)

iv.      Cover Inner. Old Broken. (old broken. shown in the PI Report)

v.       Panel comp. Floor R/s old Damages (shown in the PI Report)

vi.      Cover Handle FR old/scratched (shown in the PI Report)

These old damages and scratches were shown in the TP/COMP. / vehicle pre inspection Report no.13428 dated 19.01.2022 at the time of insurance, so these parts could not be considered in the assessment. Further averred that there was break in insurance vehicle was Inspected by Er.Gurwinder Sigh Patheja prior to the issuance of Policy No.233904/31/2022/2450. As per the Pre insurance inspection Report of Er. Gurwinder Sigh Patheja, the following losses/damages existed prior to the issuance of Policy No.233904/31/2022/2450 for the period from 20.012022 to 19.01.2023 & are to be treated as uninsured/outside the scope of the Policy:-

a)       Front Mudgard Scratched

b)      Front Left Side Palla dented

c)       Front Right Side Palla dented

d)      Scratches on Silencer Muffler

e)       Scratches on footrest.

The claim file regarding the alleged claim is premature as the complainant had not completed the requirements for processing the claim though the complainant asked telephonically and later on complainant was sent many letters dated: 28.07.2022, 01.09.2022 & regd. postal receipt dated 29.07.2022 & 05.09.2022 through registered post by Piara Singh Surveyor vide which complainant was asked to complete formalities and furnish claim form duly signed and filled, final repair bill, bank detail, Aadhar & PAN card and to produce the vehicle with replaced items for re-inspection survey. However, the surveyor submitted his independent report on 09.09.2022 & allowed an amount of Rs.11,242.94 NP to the insurer and salvage value was Rs.306.44 NP. In case salvage not deposited then net payable was Rs.10,936.50 NP.  Further averred that the Branch Manager vide letters dated 19.09.2022 asked the complainant to complete formalities and furnish claim form duly signed and filled, final repair bill, bank detail, Aadhar & PAN card and to produce your vehicle with replaced items for re-inspection survey within 7 days, but complainant has not completed the formalities up to date. So the question of rejection of claim does not arise at all. The complainant was asked to complete the above mentioned formalities for processing the claim. On merits, all other allegations made in the complaint are denied and a prayer for dismissal of the complaint is made.

3.       Upon service of notice, none appeared on behalf of Opposite Party No.2, hence Opposite Party No.2 was proceeded exparte.

4.       In order to prove his case, the complainant has tendered in evidence, his affidavit Ex.C1 alongwith copies of documents Ex.C2 to Ex.C8.

5.       To rebut the evidence of complainant, Opposite Party No.1 tendered in evidence affidavit of Sh.Ravi Shankar Bansal, Branch Manager, The Oriental Insurance Co. Ltd. Ex.OP1/1 alongwith copies of documents Ex.OP1/2 to Ex.OP1/13.

6.       There is no dispute that the complainant is the owner of Honda ACTIVA bearing registration no.PB-76A-6750 and he got his vehicle insured from opposite party no.1 vide Insurance policy no.233904/31/2022/2450 for the period from 20.01.22 to 19.01.2023. It is also not disputed that during the policy period on 09.05.2022, the above mentioned insured vehicle of complainant met with an accident and at that time complainant’s employee was driving the vehicle and he had a valid driving license, which has been duly placed on record. The complainant got repaired his vehicle from Opposite Party No.2, vide invoice dated 27.05.2022, who assessed the repair amount of the vehicle as Rs.18,532/- is also not disputed. However, the main grouse of the complainant is that till date the Opposite Parties have not paid the said amount to the repairer and the complainant has to pay the said amount from his own pocket. On this, the plea taken by the Opposite Parties is that after receiving the intimation about the accident, they appointed Surveyor Sh.Piara Singh, who inspected the Honda Activa and taken the pictures of the Honda Activa at the spot and found that certain parts are old damaged parts. Further as per the Pre insurance inspection Report of Er. Gurwinder Sigh Patheja certain losses/damages existed prior to the issuance of policy and were treated as uninsured/outside the scope of the Policy.

7.       We have gone through the rival contentions of ld. counsel for both the parties and have gone through the record.  The pre insurance inspection of the vehicle was done by Opposite Parties before issuing the policy and report was also submitted by them for the same and copy of the pre inspection report is Ex.OP1/4. Pre inspection photographs were also taken by the Opposite Parties before issuing the policy, which was duly placed on record vide Ex.OP1/5. In the pre inspection photographs the date is mentioned as 19.01.2022 i.e. one day before issuing the policy. All these facts have been admitted by both the parties as there is no denial from either of the parties have been raised regarding any of the fact discussed above. Vide Tax Invoice Ex.C6, the Opposite Party No.2 raised an amount of Rs.18,532/- for repair of the vehicle. However, the Surveyor and Loss Assessor Piara Singh, vide its report dated 09.09.2022 assessed the amount to the extent of Rs.11,342/- only, which has been placed on record (Ex.OP1/12).

8.       The reason for lesser payment supplied by the surveyor is that certain damages to the vehicle which was got repaired by the complainant was present prior to issuance of the policy, which has been excluded. In support of its plea Opposite Parties have placed on record copy of post inspection and pre inspection photographs of the vehicle in question Ex.OP1/3 and Ex.OP1/5 respectively and also placed on record report of Surveyor and Loss Assessor Ex.OP1/12. On the other hand, nothing has been placed on record by complainant to falsify the documents submitted by the Opposite Parties. Ld. counsel for the Opposite Party No.1 contended that any claim arising out of the damages to the vehicle in question already occurred prior to the inspection of the policy under no circumstances can be granted to the complainant, rather complainant should come with clean hands to the courts and for not approaching with clean hands, the entire claim of the complainant should be rejected, but by taking the lenient view, we allow the claim to the extent of Rs.11,342/- as assessed by the surveyor and loss assessor vide his report dated 09.09.2022 Ex.OP1/12 and as admitted by the Opposite Parties in its written reply and the same is deemed fit to be granted.

9.       In view of the discussion above, we partly allow the complaint of the complainant and direct Opposite Party No.1 to pay an amount of Rs.11,342/-(Rupees Eleven Thousand Three Hundred Forty Two only) to the complainant. Keeping in view the peculiar circumstances of the case, the parties are left to bear their own costs. The compliance of this order be made by the Opposite Parties within 45 days from the date of receipt of copy of this order, failing which, the Opposite Parties are further burdened with additional cost of Rs.5,000/-(Rupees Five Thousand only) to be paid to the complainant for non compliance of the order. Copies of the order be furnished to the parties free of costs. File is ordered to be consigned to the record room.

Announced on Open Commission