Complaint No.324 of 2019.
Date of Institution:29.10.2019.
Date of Decision:14.09.2023.
Deepak Kapila son of Banarsi Dass Kapila, resident of Police Lines Road, Gurdaspur.
……. Complainant.
VERSUS
- The New India Assurance Company Ltd., through its Branch Manager, G.T. Road, Mandi, Gurdaspur.
- Maruti Insurance Broking Private Limited, Nelson Mandela Toad, Vasant Kunj, New Delhi-110070.
…Opposite parties.
Application/Complaint u/s 12 of Consumer Protection Act.
Present: For the complainant: Sh.Bishwajeet Uppal, Adv.
For the opposite party no.1: Sh.Rajesh Kapoor, Adv.
For the opposite party no.2: Sh.Sachin Mahajan Adv.
QUORUM: Sh.Lalit Mohan Dogra, President, Sh.Bhagwan Singh Matharu, Member.
ORDER
Lalit Mohan Dogra, President
Complainant Deepak Kapila has filed the present complaint against the opposite parties U/S 12 of the Consumer Protection Act (for short, C.P.Act.) seeking necessary directions to the opposite parties to pay Rs.85,980/- alongwith 18% interest from the date of policy till its realization. Opposite parties be further directed to pay Rs.2,00,000/- as mental pain and harassment alongwith Rs.20,000/- as litigation expenses, in the interest of justice.
2. The case of the complainant in brief is that he is owner of car Maruti Ciaz having registration No.P.B.AG-3869 which was got insured vide policy no.98000031170305478937. He had been availing service of opposite parties for consideration as per contract of insurance. The said vehicle was involved in an accident regarding which FIR no.0092 dated 27.6.2018 was registered against his son Sahil Kapila u/s 304-A of IPC at Police Station Dasuya, District Hoshiarpur. It is further pleaded that the accident took place on 20.5.2018 and police had entered the same on 22.5.2018. It is further pleaded that on account of the aforesaid accident, extensive damage was caused to the vehicle in question and the said fact was brought to the notice of opposite parties who had appointed a Surveyor to assess the damage and as per his report the expenses for the repair were assessed at Rs.85,980/-. It is further pleaded that as per letter dated 24.8.2018 it was alleged by the opposite parties that "As per FIR submitted by the complainant, the driver Sahil Kapila son of Sh.Deepak Kapila, but as per Surveyor report and claim form the driver at the time of accident is Deepak Kapiala son of Sh.Banarsi Dass. Please clarify the same. We request you please submit as the above to settle the claim". The detailed reply was submitted by him vide letter dated 3.9.2018. His claim was repudiated by the opposite parties vide letter dated 15.11.2018 whereby he was informed that opposite parties is closing the claim file on account of the following reasons:-
"As per surveyor and our divisional office remarks there is clearly mis-representation of material facts, so
the claim is not payable."
It is further pleaded that the complainant paid the entire amount from his own pocket amounting to Rs.85,980/- and the car was got repaired from Pathankot Vehicleades Pvt. Ltd and the Insurance policy was a Zero depreciation policy and by rejecting the claim on flimsy grounds the opposite parties had violated the terms and condition. It is further pleaded that there is clear cut deficiency in service on the part of the opposite parties.
3. Notice of the complaint was issued to the opposite parties. Opposite party no.1 appeared through its counsel and filed its written reply by taking the preliminary objections that complainant has not disclosed any deficiency in service on the part of the opposite party as such the complaint is not maintainable. It is further pleaded that the relation between the insured and insurer depends upon utmost good faith but the complainant misrepresented the opposite party while lodging claim before the opposite party as such the claim is not payable and the complaint has been filed without any cause of action. On merits, it was submitted that the surveyor assessed the loss to the tune of Rs.85,045/-. It is further pleaded that after receiving the intimation on dated 28.05.2018, the opposite party deputed Sh.Hardeep Singh Bedi (Surveyor) to access the loss and the above mentioned surveyor inspected the vehicle on the same day and during inspection of the vehicle, the complainant submitted duly filled claim form, in which he disclosed that he was driving the vehicle at the time of accident and also submitted his driving license alongwith other documents but later on FIR No.92 dated 27.06.2018 was registered in P.S.Dasuya and as per FIR the driver of the vehicle was Sahil Kapila and accordingly the opposite party asked to clarify the facts vide letter dated 24.08.2018 but the reply filed by the complainant was not satisfactory and as per above mentioned facts, it reveals that the complainant tried to misrepresented the opposite party to get the claim and after proper application of mind the opposite party repudiated the claim of the complainant on dated 15.11.2018 and intimation of the same was given to the complainant vide letter dated 15.11.2018. It is further pleaded that there is no deficiency in service on the part of the opposite party and all other averments made in the complaint has been vehemently denied and lastly prayed that the complaint may be dismissed.
4. Opposite party no.2 appeared through its counsel and filed its written reply by taking the preliminary objections that the complainant has not approached this Hon'ble Commission with clean hands and the complainant has no locus standi to initiate the present proceedings against the opposite party and the complaint is based on erroneous submissions and conjectures against the opposite party and the same is liable to be rejected/dismissed by this Hon'ble Commission and the complainant has illegally invoked the jurisdiction of this Hon'ble Commission without any cause of action against the opposite party. On merits, it was submitted that the vehicle of the complainant has been insured by opposite party no.1 in lieu of the premium charged from the complainant and the insurance policy in question has been sourced through the opposite party qua facilitator of insurance. It is further pleaded that no premium or consideration has been received by the opposite party from the complainant. It was further submitted that the Surveyors are appointed solely by Insurance companies to investigate the accident and assess the accidental damage and the opposite party has no role to play in this process of appointment and assessment. No documents have been submitted by the complainant. It is further pleaded that letter dated 15.11.2018 as referred by the complainant and also submitted by the complainant alongwith his complaint, it is clearly evident that his claim has been repudiated by opposite party no.1 qua insurer of the vehicle. It is, therefore, submitted that the opposite party has been improperly impleaded in the present matter in dispute by the complainant in order to obtain unjustly gains. All other averments made in the complaint has been vehemently denied and lastly prayed that the complaint may be dismissed.
5. Alongwith the complaint, complainant has filed his own Affidavit alongwith other documents Ex.C-1 to Ex.C-7.
6. Alongwith the written statement, Ld. counsel for the opposite party no.1 has filed affidavit of Sh.Charan Dass, Senior Divisional Manager Ex.OP-1 alongwith other documents Ex.OP-2 to Ex.OP-13.
7. Alongwith the written statement, Ld. counsel for the opposite party no.2 has filed affidavit of Sh.Surendra Srivastava, CEO of Opposite Party No. 2 Ex.OP-2/1 alongwith other documents Ex.OP-2/2 to Ex.OP-2/4.
8. Rejoinder not filed on behalf of complainant.
9. Written arguments filed by the Opposite Party No. 1 but not filed by the complainant and Opposite Party No. 2.
10. Counsel for the complainant has argued that the car of the complainant which was insured with the opposite party No.1 met with an accident on 20.05.2018 while it was being driven by son of Deepak Kapila but the opposite party No.1 repudiated the claim of the complainant on the ground that as per the FIR name of driver is mentioned as Sahil Kapil but in the report of surveyor name of driver is mentioned as Deepak Kalipa and the claim was repudiated for misrepresentations of the facts.
11. Counsel for the opposite party No.1 has argued that policy of insurance and accidental loss and loss to the tune of Rs.85045/- is admitted but the claim is not payable because as per the FIR Ex.OP-6 name of the driver is Sahil Kapila whereas it was disclose as Deepak Kapila to the surveyor as such complaint is liable to be dismissed.
12. Counsel for the opposite party No.2 has argued that claim is to be settled and paid by the opposite party No.1 and as such complaint against op No.2 is not maintainable.
13. We have heard the Ld. counsels for the parties and gone through the record. It is admitted fact that complainant is registered owner of car No.PB-06-AG-3869 as per copy of R.C. Ex.C4. It is further admitted fact that car was insured with opposite party No.1. It further admitted fact that during the continuation of the policy of insurance the said car owned by the complainant met with an accident on 20.05.2018. The claim has been repudiated by the opposite party No.1 on the ground of misrepresentations in the facts.
14. To prove his case complainant has placed on record documents in respect of vehicle which met with an accident and also placed on record driving licence of Deepak Kapila Ex.C3 and driving licence of Sahil Kapila Ex.C5.
15. Perusal of both the licences shows that both the licences were valid for LMV on the date of accident but the counsels for the opposite parties have not been able to explain as to what benefit complainant was going to obtain by wrongly having mentioned the name of the driver as Deepak Kapila to the surveyor, otherwise it is proved on record that at the time of accident Sahil Kapila was driving the car against whom FIR was registered and who faced the trial in the court of Sub Divisional Magistrate Dasuya and was acquitted vide judgment dated 01.12.2022 by the said court. Moreover, perusal of letter Ex.OP-8 shows that complainant has clearly mentioned that his name was mentioned by the surveyor due to some mistake and infact the vehicle was being driven by Sahil Kapila.
16. From the evidence on record particularly copy of judgment dated 01.12.2022, copy of FIR Ex.OP-6, copy of driving licence E.xC5 it is proved that Sahil Kapila was driving the car at the time of accident and was having a valid driving licnece to drive the car, as such act of the opposite parties of having failed to settle and pay the claim amounts to deficiency in service.
17. Accordingly, present complaint is partly allowed and opposite party No.1 is directed to pay Rs.85045/- as assessed by the surveyor vide his report Ex.C7 alongwith interest @ 9% P.A. w.e.f. date of filing of the complaint till its realization. Opposite party No.1 also burdened with costs of Rs.5,000/- for mental tension, harassment and cost of litigation. Entire exercise shall be completed within 30 days from the date of receipt of copy of this order.
18. The complaint could not be decided within the stipulated period due to heavy pendency of Court Cases, vacancies in the office and due to pandemic of Covid-19.
19. Copy of the order be communicated to the parties free of charges. After compliance, file be consigned to record.
(Lalit Mohan Dogra)
President
Announced: (B.S.Matharu)
Sept. 14, 2023 Member
*YP*
