Order dictated by:
Smt.Mandeep Kaur, Member
1. The complainant has brought the instant complaint under section 12/14 of the Consumer Protection Act, 1986 on the allegations that the complainant is a registered society under the Societies Registration Act vide certificate no.58 of 2007/08 and Baltej Singh is its Chairman. Vide Resolution dated 1.11.2017 Baltej Singh is authorized to file case and to take appropriate legal action against the opposite party. The complainant is owner of the Bus bearing registration no.PB29R-4024. On 19.05.2016 the complainant insured his aforesaid bus from opposite party vide insurance policy no.233904/31/2017/665 and also paid Rs.24,674/- to the opposite party and after receiving the consideration amount opposite party insured the abovesaid vehicle of complainant and issued the insurance policy to complainant. Unfortunately on 17.06.2017 the abovementioned insured bus of the complainant met with accident and in this regard an FIR no.96 dated 18.06.2016 P.S. Dharmkot under section 279, 337, 338, 427 IPC was also registered against culprit. Due to such accident the insured bus of the complainant got damaged and complainant informed the opposite party about such incidence within time. Thereafter, the complainant at the instance of opposite party got his vehicle repaired from Gurvir Motors Pvt. Ltd. Ludhiana and said Gurvir Motors Pvt. Ltd. vide its invoice no.784 dated 06.08.2016 informed the complainant as well as the opposite party that the total loss cum damage caused to said bus is Rs.1,36,800/- including cost of repair and also informed that abovesaid payment has been due against them and then complainant paid Rs.51,380/- out of Rs.1,36,800/-. Thereafter the complainant submitted his claim of Rs.1,36,800/- in respect of loss caused to insured bus with the opposite party vide his claim no.233904/31/2017/000118 and also requested to pay the same as per insurance policy executed between them. Thereafter on 31.10.2016 opposite party send the letter to complainant and informing that the claim of the complainant of Rs.1,36,800/- in respect of the loss caused to the vehicle due to accident happened on 17.06.2016 has been declined on the ground of misrepresentation and concealment. The opposite party sent the said letter unnecessarily, unjustly, illegally and without any justify reason. The complainant has not made any misrepresentation and concealment regarding any fact from the opposite party and under insurance contract it is the legal liability of the opposite party to pay the claim amount to the complainant, but opposite party without any justified reason refused to pay the same and willfully and intentionally breached the insurance policy. Thereafter Gurvir Motors Pvt. Ltd. also informed the complainant that opposite party refused to make the payment to him in respect of cost of repair of insured bus vide letter dated 09.02.2017. Due to the aforesaid acts and conduct and deficiency in service on the part of the Opposite Party, the Complainant has suffered mental tension, harassment as well as financial loss. Vide instant complaint, the complainant has sought the following reliefs.
- To direct the Opposite Party to withdraw his letter dated 31.10.2016 vide which the claim of Rs.1,36,800/- under the insurance policy no.233904/31/2017/665 on account of accident occurred on 17.06.2016 has been declined by the opposite party unnecessarily, unjustly, illegally and without any jusify reason. Further to pay Rs.1,36,800/- alongwith interest @ 12% per annum to the complainant from the date of filing of present complaint till the realization and to pay Rs.50,000/- as compensation and Rs.5500/- as litigation expenses to the complainant.
- Or any other relief may kindly be granted as this Forum may deem fit and proper.
Hence, this complaint.
2. Upon notice, opposite party appeared through counsel and contested the complaint by filing written reply taking certain preliminary objections therein inter alia that the complaint is not maintainable; that the complainant is estopped by his own act and conduct; that the complainant has not complied with the terms and conditions of insurance policy; that the complainant has got no locus standi to file the complaint; that there is no deficiency of service on the part of opposite party. Thus, the complaint may kindly be dismissed on this score; that the complainant has not come to the Forum with clean hands and has concealed, suppressed and misstated the material facts from this Forum. The true facts are that the complainant insured its vehicle no.PB-29R-4024 from HDFC Ergo General Insurance Company for the period 26.03.2014 to 25.03.2015. The complainant has paid the premium by cheque, but the same was dishonoured and the policy stands cancelled by the HDFC Ergo General Insurance Company. The complainant concealed this fact and misrepresented the answering opposite party regarding previous insurance from the HDFC Ergo General Ins. Co without disclosing the cancellation of insurance policy and obtained the NCB (20%) from the answering opposite party at the time of insurance of vehicle for the period 09.04.2015 to 08.04.2016. Thereafter the complainant applied for the renewal of insurance policy with the answering opposite party for the period 09.04.2016 to 08.04.2017, policy no.233904/31/2017/160, but the cheque dated 08.04.2016 issued by the complainant for the payment of premium of the insurance policy was dishonoured. The answering opposite party vide letter dated 20.04.2016 informed the complainant that the cheque was dishonoured so the insurance policy stands cancelled ab-initio due to non receipt of premium/consideration. Lateron the complainant paid a sum of Rs.24,674/- in cash for the issuance of insurance policy and the complainant's vehicle was insured for the period 19.05.2016 to 18.05.2017 vide policy no.233904/31/2017/665. The complainant again obtained the NCB to the extent of Rs.25%. The contract of insurance is of utmost good faith but the complainant itself vitiates the contract by falsely declaring and concealing the information as to cancellation of insurance policy by HDFC (previous insurer). The vehicle of the complainant met with an accident on 17.06.2016 and the answering opposite party repudiated the claim of the complainant for the concealment of the fact that the previous insurance policy was cancelled by the HDFC for dishonouring of the cheque. But the complainant by misrepresenting the facts to the answering opposite party obtained NCB which is against the law. Further letter dated 31.10.2016, the insured was informed about the misrepresentation made by them and an opportunity was given to the insured to substantiate their claim but no reply was received from their side and thus the claim was repudiated. Therefore, the complainant is not entitled to any claim. On merits, it is admitted to the extent that the insurance policy no.233904/31/2017/665 was issued, but the insurance policy was issued subject to the terms and conditions of the insurance policy. It is further submitted that after receiving the information of accident, the opposite party assessed the loss to the extent of Rs.86,000/- as per policy's terms and conditions. It is further submitted that the complainant submitted the claim, but the same was repudiated as per terms and conditions of insurance policy. All other allegations made in the complaint have been denied and a prayer for dismissal of the complaint with special costs has been made.
3. In his bid to prove the case, complainant tendered into evidence his duly sworn affidavit Ex.C1 in support of the allegations made in the complaint and also produced copy of documents Ex.C2 to Ex.C15 and closed the evidence.
4. On the other hand, to rebut the evidence of the complainant, the Opposite Party tendered into evidence the affidavit of Sh.Jasvinder Singh, Senior Divisional Manager, Oriental Insurance Co. Ex.OP-1 and copies of documents Ex.OP-2 to Ex.OP-7 and closed the evidence.
5. We have heard the ld. counsel for the parties and have carefully gone through the evidence on record.
6. Ld.counsel for the Complainant has reiterated the averments as made in the complaint and contended that the complainant is owner of the Bus bearing registration no.PB29R-4024. It was the case of the Complainant that the vehicle in question has been insured on 19.05.2016 from opposite party vide insurance policy no.233904/31/2017/665 and in this regard, the Complainant also paid Rs.24,674/- to the opposite party and after receiving the consideration amount opposite party insured the abvoesaid vehicle of complainant and issued the insurance policy to complainant. It was further contended that unfortunately on 17.06.2017 the abovementioned insured bus of the complainant met with accident and in this regard an FIR no.96 dated 18.06.2016 P.S. Dharmkot under section 279, 337, 338, 427 IPC was also registered against culprit. Due to such accident the insured bus of the complainant got damaged and complainant informed the opposite party about such incidence within time. Thereafter, the complainant at the instance of opposite party got his vehicle repaired from Gurvir Motors Pvt. Ltd. Ludhiana and said Gurvir Motors Pvt. Ltd. vide its invoice no.784 dated 06.08.2016 informed the complainant as well as the opposite party that the total loss cum damage caused to said bus is Rs.1,36,800/- including cost of repair and also informed that abovesaid payment has been due against them and then complainant paid Rs.51,380/- out of Rs.1,36,800/-. Thereafter the complainant submitted his claim of Rs.1,36,800/- in respect of loss caused to insured bus with the opposite party vide his claim no.233904/31/2017/000118 and also requested to pay the same as per insurance policy executed between them. Thereafter on 31.10.2016 opposite party send the letter to complainant and informing that the claim of the complainant of Rs.1,36,800/- in respect of the loss caused to the vehicle due to accident happened on 17.06.2016 has been declined on the ground of misrepresentation and concealment and hence deficiency is alleged in service on the part of the Opposite Party. To corroborate the aforesaid contentions, the Complainant has produced on record the duly sworn affidavit of Baltej Singh, Chairman of the Society as Ex.C1, copy of certificate of registration of societies as Ex.C2, copy of proceeding book Ex.C3, copy of Memorandum of Association regarding Aims and Objects of the Society Ex.C4, copy of rules and regulations Ex.C5, copy of list of governing body Ex.C6, copy of policy valid for the period w.e.f. 19.05.2016 to 18.05.2017 as Ex.C7, copy of schedule of premium Ex.C8, copy of FIR registered with P.S.Dharamkot regarding the accident occurred to the insured vehicle Ex.C9, copy of letter Ex.C10, copies of bills of repair of the vehicle Ex.C11 and Ex.C12, copy of RC of the vehicle Ex.C13, copy of repudiation letter Ex.C15.
7. On the other hand, ld.counsel for the Opposite Party has repelled the aforesaid contention of the ld.counsel for the Complainant on the ground that the complainant has not complied with the terms and conditions of insurance policy. Moreover, the Complainant is not a consumer of the Opposite Party under the Act because the vehicle was being used by the Complainant society for commercial purposes. It was contended that the complainant insured its vehicle no.PB-29R-4024 from HDFC Ergo General Insurance Company for the period 26.03.2014 to 25.03.2015. The complainant has paid the premium by cheque, but the same was dishonoured and the policy stands cancelled by the HDFC Ergo General Insurance Company. The complainant concealed this fact and misrepresented the answering opposite party regarding previous insurance from the HDFC Ergo General Ins. Co without disclosing the cancellation of insurance policy and obtained the NCB (20%) from the answering opposite party at the time of insurance of vehicle for the period 09.04.2015 to 08.04.2016. Thereafter the complainant applied for the renewal of insurance policy with the answering opposite party for the period 09.04.2016 to 08.04.2017, policy no.233904/31/2017/160, but the cheque dated 08.04.2016 issued by the complainant for the payment of premium of the insurance policy was dishonoured. The answering opposite party vide letter dated 20.04.2016 informed the complainant that the cheque was dishonoured so the insurance policy stands cancelled ab-initio due to non receipt of premium/consideration. Lateron the complainant paid a sum of Rs.24,674/- in cash for the issuance of insurance policy and the complainant's vehicle was insured for the period 19.05.2016 to 18.05.2017 vide policy no.233904/31/2017/665. The complainant again obtained the NCB to the extent of Rs.25%. The contract of insurance is of utmost good faith but the complainant itself vitiates the contract by falsely declaring and concealing the information as to cancellation of insurance policy by HDFC (previous insurer). The vehicle of the complainant met with an accident on 17.06.2016 and the answering opposite party repudiated the claim of the complainant for the concealment of the fact that the previous insurance policy was cancelled by the HDFC for dishonouring of the cheque. But the complainant by misrepresenting the facts to the answering opposite party obtained NCB which is against the law. It was however, admitted that the opposite party assessed the loss to the extent of Rs.86,000/- as per policy's terms and conditions. To support its contention, the Opposite Party has produced on record the affidavit of Sh.Jasvinder Singh, Senior Divisional Managr Ex.OP1, copy of policy Ex.OP2, copies of letters Ex.OP3 to Ex.OP5, copy of surveyor report Ex.OP6, copy of repudiation letter Ex.OP7 and also relied upon the judgements i.e. (i) Hon’ble National Commission, New Delhi (2007)1 CPJ 204 titled as Ajitha Chit Funds Vs. Tata Engineering and Locomotive , (ii) North East Karnataka Road Vs. Pooja Travel (2009) 4 CPJ 297 of Hon’ble National Commission, New Delhi and (iii) Chandigarh Consumer Commission titled as Shivalik Agro Chemicals Vs. New India Assurance (2004) 2 CPC 300: (2004) 1 CPJ 364 arguing that the vehicle in question was being used for commercial purposes by the Complainant society.
8. It is not the denial of the case that the Complainant society got its vehicle i.e. Bus bearing registration no.PB29R-4024, copy of RC is placed on record as Ex.C13, insured with opposite party vide insurance policy no.233904/31/2017/665 valid for the period w.e.f 19.05.2016 to 18.05.2017, copy of policy accounts for Ex.C7. and also paid Rs.24,674/- to the opposite party and after receiving the consideration amount opposite party insured the abovesaid vehicle of complainant and issued the insurance policy to complainant. Unfortunately on 17.06.2016 (wrongly mentioned in the complaint as 17.06.2017 which fact was not disputed and is clear from the copy of FIR Ex.C9 that the actual date of accident is 17.06.2016) the abovementioned insured bus of the complainant met with accident and in this regard an FIR no.96 (Ex.C9) dated 18.06.2016 with P.S. Dharmkot under section 279, 337, 338, 427 IPC was also registered against culprit. The accidental vehicle was got repaired and thereafter, the claim was submitted with the Opposite Party, but the Opposite Party has repudiated the claim of the Complainant on the ground that the claim is not payable due to misrepresentation and concealment of material facts. Other ground taken by the Opposite Party for the repudiation of the claim of the Complainant is the Complainant used the vehicle in question for commercial purposes. But we are not in agreement with the aforesaid contentions of the Opposite Party. First of all, the Complainant has produced on record the copy of Memorandum of Association Ex.C4, in which he has specifically mentioned under the head Aims and Objections of the Society are: (a) that Ekta Educational Society do all the acts and things for Education purpose, charitable purpose, relief of poor and advancement of other charitable objections of general public utility not involving the carrying of any activity for profit, politics, unsocial and unsecular. This averment and contention has nowhere rebutted by the Opposite Party by filing any cogent and convincing evidence. In such a situation, the citations produced by the Opposite Party in this context, could not support the unrebutted conention of the Opposite Party. Second ground of the Opposite Party is that the claim is not payable due to misrepresentation and concealment of material facts i.e. regarding ‘No Claim Bonus’. But perusal of the Schedule of Premium Ex.C8 shows that the Complainant might have received the ‘No Claim Bonus’ amounting to Rs.1009.33 paisa seeking the confirmation within the stipulated period as provided in GR 27 of Indian Motor Tariff because it is specifically mentioned in the said Schedule of Premium (Ex.C8) i.e. Less No Claim bonus –GR27, hence we find no misrepresentation and concealment of material facts on the part of the Complainant. In such a situation, we are of the opinion that there is certainly deficiency in service on the part of the Opposite Party because the Opposite Party have withheld the genuine claim of the Complainant without any reasonable cause.
9. Hence, come to the quantum of relief to be given to the Complainant. It is admitted fact that after receiving the claim for reimbursement from the Complainant, the Opposite Party has deputed its surveyor Suresh Vashisht & Company, Surveyors & Loss Assessors, Civil Lines, Ludhiana who gone through the case minutely and after thorough investigation assessed the Net Assessed Amount, to the extent of Rs.86,000/-. It has been settled by the Hon’ble Supreme Court that the report of the Surveyor cannot be brushed aside without valid reasons. In this context, reference may be made to the judgment of the Hon’ble Supreme Court reported as “Sri Venkateshwara Syndicate v. Oriental Insurance Company Limited, II (2010) CPJ 1 (SC)” in which it was held by the Hon’ble Supreme Court that the report of the Surveyor is to be given due importance and weightage. Hon’ble National Commission in case titled as PRADEEP KUMAR SHARMA versus NATIONAL INSURANCE COMPANY, III(2008) CPJ 158 (NC), also held that “Surveyor Report is an important document and cannot be wished aside without any compelling evidence to the contrary”. In case New Horizon Sugar Mills Ltd. v. United India Insurance Co. Ltd. & Ors, 2003(3) CPR 136 (NC), the Hon’ble National Commission has also observed that “report of Surveyor appointed under the provisions of Insurance Act has to be given greater importance.” In M/s Natain Cold Storage & Allied Industries Ltd. v . Oriental Insurance Co Ltd. 2003(3) CPR 114 (NC) it has been observed “surveyor’s report in the insurance claim is an important document which cannot be brushed aside easily.” Same view has been taken by the Hon’ble National Commission in case of Bhawana Kumar versus General Manager Varun Webres Ltd. & Anr, 2008(4) CPR 82 (NC).
10. From the aforesaid discussion, it transpires that repudiation of claim has erroneously been made by the Opposite Party. Hence, we are of the view that the complainant is entitled to claim the reimbursement of his submitted bbills to the tune of Rs.86,000/- as per report of the surveyor Ex.OP6 on account of accident occurred to the insured vehicle and we hold accordingly
11. Consequently, the instant complaint is partly allowed and the Opposite Party is directed to pay a sum of Rs.86,000/- to the complainant on the basis of report of surveyor. Opposite Party is also directed to pay Rs.5,000/- to the Complainant on account of compensation besides Rs.2,000/- as costs of litigation. Compliance of this order be made within 30 days from the receipt of copy of the order, failing which amount awarded shall carry interest @ 9% per annum from the date of order until full & final recovery. Copies of the order be furnished to the parties free of costs. File is ordered to be consigned to the record room.
Announced in Open Forum
