Order by:

Sh.Amrinder Singh Sidhu, President

1.       The complainant  has filed the instant complaint under section 12 of  the Consumer Protection Act, 1986 (as amended upto date) on the allegations that he purchased brand new motor cycle on 29.03.2017 from Hem Honda Agency, Moga worth Rs.50,000/-  bearing No.PB-29Z-2322 and the said vehicle was immediately got insured from Opposite Party No.2 by paying a sum of Rs.1816/- as premium, with policy No.2012003116P118366960 for the period w.e.f. 30.03.2017 to 29.03.2018. The Complainant further alleges that on 30.11.2017, Vikas Kumar nephew of the Complainant was going to Dargah situated at village: Landiana, Tehsil: Bagha Purana, District Moga and when he reached near village: Singha Wala, then a canter bearing No.PB-30K-518 from his back and while overtaking his canter from the motor cycle of the Complainant, hit the motor cycle of the Complainant and due to this the motor cycle in question stick to the body of canter and due to this, Vikas Kumar driver of the motor cycle injured. Not only this, the motor cycle of the Complainant also burnt and totally damaged in said roadside accident. DD No. 17 dated 12.12.2017 was lodged by the P.S.Charik. Thereafter, the Complainant immediately gave intimation to the Opposite Parties and the motor cycle was shifted to Agency. Thereafter, the Opposite Parties appointed surveyor and loss assessor who got completed various formalities  and also got signatures of the Complainant on some blank and printed  forms to process the claim. The Complainant number of times visited the office of Opposite Parties and requested  them to pay the insurance claim. On 21.03.2018, the Complainant  received a repudiation letter from the Opposite Parties vide which they closed the claim  file of the Complainant  on the ground that the insured has already received the compensation from the offending canter owner, but it is totally wrong and denied. No claim till today has been received by the Complainant as mentioned in the letter.   As such, there is deficiency in service on the part of the Opposite Parties. Vide instant complaint, the complainant has sought the following reliefs.

a)       To pay an amount of Rs.54,528/- on account of insurance claim of the motor cycle in question alongwith expenses and damages in the shape of compensation amounting to Rs.50,000/- as set out in the complaint alongwith interest and costs of the complaint and litigation expenses.

2.       Opposite Parties  No.1 and 2 appeared through counsel and contested the complaint by filing  the written version taking preliminary objections therein inter alia that admittedly the motor cycle in question was insured with the Opposite Parties for the period 30.03.2017 to 29.03.2018. On receiving the intimation regarding the accident, the Opposite Parties immediately appointed investigator/ surveyor to investigate the matter. As per the investigator report, it was found that the accident of the motor cycle took place on 30.11.2017 when canter bearing RC No.PB-30K-5188 and at the time of accident Vikas Kumar was driving the above said motor cycle.  The FIR in this regard was not registered with the police because a panchayati compromise was affected between the Complainant and the owner of the canter for a sum of Rs.57,000/- in lieu of compensation against the loss of motor cycle. The canter owner paid Rs.45,000/- on 12.12.2017 and Rs.12,000/- to be paid to the Complainant. As the Complainant has already received Rs.57,000/- from the offending canter owner being loss of motor cycle, so the demand of the claim of the insured from the Opposite Parties is not  genuine and hence the claim is not maintainable and the claim of the Complainant was repudiated vide letter dated 21.03.2018. On merits, the Opposite Parties took almost same and similar objections  as taken up by them in the preliminary objections.            

3.       In order to  prove  his  case, the complainant has tendered into evidence his affidavits Ex.C1 and Ex.C13  alongwith copies of documents Ex.C2 to Ex.C12 and closed his evidence.

4.       On the other hand,  to rebut the evidence of the complainant,  Opposite Parties  tendered into evidence the affidavit of Sh.R.N.Bansal, DM Ex.Ops1 alongwith copies of documents Ex.Ops2 to Ex.Ops8 and closed the evidence on behalf of the Opposite Parties.

5.       We have heard the ld.counsel for the parties, perused the written arguments submitted by the Complainant as well as Opposite Parties   and also  gone through the documents placed  on record.

6.       Perused the  written arguments submitted on behalf of the complainant which are on the lines of averments made in the complaint and during the course of arguments, ld.counsel for the Complainant has  mainly reiterated the facts as narrated in the complaint and contended that first of all, the written version  filed on behalf of the Opposite Parties has not been filed by an authorized person. Therefore, the written version so filed is not maintainable. Opposite Parties No.1 and 2 are limited Company and written version has been filed on the basis of special power of attorney given  to ld.counsel for the Opposite Parties  No.1 and 2. Further contended that the arguments of the ld.counsel for the Opposite Parties regarding taking of amount of compensation by the Complainant is totally false arguments. The Complainant has not taken any amount from the offending vehicle regarding the damage of the vehicle and moreover, a separate complaint under  MACT regarding the injuries of said Vikas Kumar is pending before the MACT court at Moga against the owner of the offending vehicle.  It is further contended that there is no such terms and conditions of the policy in question that in case insured taken the amount from the offending vehicle, then the insurance company  is not liable to pay the compensation amount of the vehicle duly insured and hence, the  Opposite Parties  are legally bound to pay the genuine claim of complainant.

7.       On the other hand, ld.counsel for the Opposite Parties No.1 and 2 has repelled the aforesaid contention of the ld.counsel for the Complainant and filed written arguments  on the lines of averments made in the written version and contended that admittedly the motor cycle in question was insured with the Opposite Parties for the period 30.03.2017 to 29.03.2018. On receiving the intimation regarding the accident, the Opposite Parties immediately appointed investigator/ surveyor to investigate the matter. As per the investigator report, it was found that the accident of the motor cycle took place on 30.11.2017 when canter bearing RC No.PB-30K-5188 and at the time of accident Vikas Kumar was driving the above said motor cycle.  The FIR in this regard was not registered with the police because a panchayati compromise was affected between the Complainant and the owner of the canter for a sum of Rs.57,000/- in lieu of compensation against the loss of motor cycle. The canter owner paid Rs.45,000/- on 12.12.2017 and Rs.12,000/- to be paid to the Complainant. As the Complainant has already received Rs.57,000/- from the offending canter owner being loss of motor cycle, so the demand of the claim of the insured from the Opposite Parties is not  genuine and hence the claim is not maintainable.

8.       Perusal of the contention of the ld.counsel for the shows  that  the written version  filed on behalf of the Opposite Party  has not been filed by an authorized person. Therefore, the written version so filed is not maintainable. The Opposite Party  is limited Company and written version has been filed on the basis of special power of attorney given  to ld.counsel for the Opposite Party. In this regard,  Hon’ble Supreme Court of India in a judgment (2011)II Supreme Court Cases 524 titled as “State Bank of Travancore Vs. Kingston Computers India Pvt. Ltd.” and in para no.11 of the judgment,  has held that

“the plaint was not instituted by an authorized person. On the plea that one authority letter dated 02.01.2003 was issued by Sh. R.K.Shukla in favour of Sh. A.K.Shukla. Further plaint failed to place on record its memorandum/articles to show that Sh. R.k.Shukla has been vested with the powers or had been given a general power of attorney on behalf of the Company to sign, verify and institute the suit on behalf of the Company.”

Similar proposition came before the Hon’ble Delhi High Court in “Nibro Ltd. Vs. National Insurance Co. Ltd.”, 2 (2005) 5SCC 30 that the

“bear authority is not recognized under law and ultimately, it was held that the plaint was not instituted by an authorized person. Here also appellant has not placed on record any resolution passed by any Board of Director in favour of Mr. Soonwon Kwon and that he was further authorised to delegate his power in favour of any other person. Further there is no memorandum/articles of the Company to show that Mr. Soonwon Kwon is one of the Director of the Company. In the absence of that evidence on record we cannot say that the special power of attorney given by Director Soonwon Kwon is a competent power of attorney issued in favour of Sh. Bhupinder Singh. In the absence of any resolution of the Company or any memorandum/articles of the Company to show that Sh. Soonwon Kwon is Director and that he was further authorised to issue power of attorney in favour of Sh. Bhupinder Singh.”

Recently our own Hon’ble State Commission, Punjab Chandigarh in FAO No.1235 of 2015 decided on 25.01.2017 in case titled as L.G.Electronics India Private Limited Vs. Sita Ram Chaudhary also held that the plaint instituted by  an unauthorized person has no legal effect.

9.       For the sake of arguments, for the time being, if the written reply filed by Opposite Parties  No.1 and 2 is presumed to be correct, the next  plea  raised by Opposite Parties  No.1 and 2  is that  the Complainant has already took the compensation amount from the owner of the offending vehicle, so he is not entitled to claim the insurance amount from the Opposite Parties under the policy. But we do not agree with the aforesaid contention of the ld.counsel for the Opposite Parties. For the sake of arguments, if it is presumed that the Complainant has  taken the compensation amount from the owner of the offending vehicle then there are no such terms and conditions in the policy to restrain the Complainant/ insured from claim the insurance amount. Undisputedly, the Complainant has insured his motor cycle    bearing No.PB-29Z-2322  from Opposite Party No.2 by paying a sum of Rs.1816/- as premium, with policy No.2012003116P118366960 for the period w.e.f. 30.03.2017 to 29.03.2018 for Rs.50,000/- and it is also not disputed that the vehicle in question was fully damaged as per the report of the surveyor of the Opposite Parties and now the Opposite Parties can not wriggle out from its legal liability to make good the genuine claim of the Complainant.    

10.     In such a situation the repudiation made by Opposite Parties regarding genuine claim of the complainant appears to have been made without application of mind. It is usual with the insurance company to show all types of green pesters to the customer at the time of selling insurance policies, and when it comes to payment of the insurance claim, they invent all sort of excuses to deny the claim. In the facts of this case, ratio of the decision of Hon’ble Apex Court in case of Dharmendra Goel Vs. Oriental Insurance Co. Ltd., III (2008) CPJ 63 (SC) is fully attracted, wherein it was held that, Insurance Company being in a dominant position, often acts in an unreasonable manner and after having accepted the value of a particular insured goods, disowns that very figure on one pretext or the other, when they are called upon to pay compensation.  This ‘take it or leave it’, attitude is clearly unwarranted not only as being bad in law, but ethically indefensible.  It is generally seen that the insurance companies are only interested in earning the premiums and find ways and means to decline claims. In similar set of facts the Hon’ble Punjab & Haryana High Court in case titled as New India Assurance Company Limited Vs. Smt.Usha Yadav & Others 2008(3) RCR (Civil) Page 111 went on to hold as under:-

“It seams that the insurance companies are only interested in earning the premiums and find ways and means to decline claims. All conditions which generally are hidden, need to be simplified so that these are easily understood by a person at the time of buying any policy.        The Insurance Companies in such cases rely upon clauses of the agreement, which a person is generally made to sign on dotted lines at the time of obtaining policy. Insurance Company also directed to pay costs of Rs.5000/- for luxury litigation, being rich.

11.     In view of the above discussion, we are of the opinion that the Opposite Parties have wrongly and illegally repudiated the claim of the complainant. Consequently, we allow the complaint and  the Opposite Parties  No.1 and 2 are  jointly and severally directed to make the compensation amount of Rs.50,000/- against the insurance claim of the motor cycle  in question alongwith interest @ 8% per annum from the date of filing the present complaint i.e. 26.03.2018 till its actual realization.  Opposite Parties No.1 and 2 are also directed to pay the lump sum compensation to the complainant to the tune of Rs.10,000/- (ten thousands only) on account of harassment, mental tension  and litigation expenses. The compliance of this order be made by Opposite Parties  No.1 and 2 within 45 days from the date of receipt of this order, failing which the complainant  shall be at liberty to get the order enforced through the indulgence of this District Commission. Copies of the order be furnished to the parties free of cost. File be consigned to record room after compliance.

12.     Reason for delay in deciding the complaint.

This complaint could not be decided within the prescribed period because the government has not appointed any of the two Whole Time Members in this Commission since 15.09.2018. Moreover, the President of this Commission is doing additional duties at District Consumer Commission, Faridkot. There is only one working day in a week when the quorum of this Commission remains complete.  

Announced in Open Commission.

Dated: 20.08.2021.