Punjab

Patiala

CC/12/258

Parveen Kumar - Complainant(s)

Versus

U.I.I.Co. Ltd - Opp.Party(s)

Sh. Anand Puri

23 Apr 2015

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM,

PATIALA.

 

                                      Complaint No. CC/12/258 of 28.6.2012

                                      Decided on: 23.04.2015

 

Parveen Kumari widow of Shri Surinder Kumar son of Shri Sohan Lal, resident of village & Post Office, Badshahpur, Tehsil Patran, District Patiala.

         

                                                                   ………Complainant

                                      Versus

1.       United India Insurance Company Limited, Calibre Market, Patiala Road, Rajpura, District Patiala, through its Branch Manager.

2.       United India Insurance Company Limited, Divisional Office, PB No.66,Sai Market, Ankur Bhawan, Patiala through its Divisional Manager.

                                                                   ………Ops

                                      Complaint under Section 12 of the

                                      Consumer Protection Act.

 

                                      QUORUM

 

                                      Sh.D.R.Arora, President

                                      Smt.Neelam Gupta, Member

                                                                           

                                                                            

Present:

For the complainant:     Sh.Anand Puri , Advocate

For Op:                          Sh.D.P.S.Anand,Advocate               

                                     

                                         ORDER

D.R.ARORA, PRESIDENT

Late Surinder Kumar, husband of the complainant Smt.Parveen Kumari was the owner of the Maruti van bearing registration No.PB 11-E-4137 and the same was registered with the Motor Vehicle(Registering) Authority, Patiala. The vehicle was duly insured with the Ops vide cover note No.611807 for the period 2.1.2002 to 1.1.2003.Surinder Kumar expired on 17.3.2002.

On 28.12.2002, Sh.Jagan Nath, brother of the deceased Surinder Kumar had gone to see the exhibition  in the Parade Ground at Chandigarh in the said Maruti Van who parked and locked the same in the open side before Shivalik View Hotel. After 1/½ hours at about 6PM Jagan Nath found the Maruti van to be missing. Jagan Nath tried  his level best to locate the vehicle but to no effect. An FIR No.770 dated 28.12.2002 was lodged by Jagan Nath with P.P.Chandigarh.

After the death of Surinder Kumar, Jagan Nath has been pursuing all the matters relating to the vehicle and after the loss of the vehicle, the complainant lodged the claim with the Ops along with all the relevant documents as were demanded by the Ops. Sh.Jagan Nath approached the Op many a times and even wrote letters dated 31.5.2003, 15.5.2004 and 4.4.2005. The Ops sent letter No.1136 dated 26.5.2005 having asked for certain documents which were supplied but even then the ops failed to settle the claim of the complainant. Jagan Nath had also written a letter to the Ops which was received by them on 13.4.2007.

Ultimately, the complainant brought the complaint No.213 of 23.5.2007 before the ops, which was dismissed vide order dated 21.10.2008.However, the complainant was given the liberty by the District Forum to submit the claim afresh alongwith relevant documents to the ops for settlement of the claim and accordingly the complainant had lodged the claim with the ops vide there letter dated 20.11.2008 sent through UPC both to the Divisional Office and Branch office alongwith claim form as also the intimation letter, FIR no.770 dated 28.12.2002, driving licence, copy of the registration, cover note, un-traced report given by the court of C.J.M.,Chandigarh, untraced report given by the DSP, Chandigarh and the death certificate of Sh.Surinder Kumar. She approached the ops personally and also wrote letter dated 19.8.2009 followed by the reminder dated 14.6.2010 but the op delayed the settlement of the claim under one or the other pretext. Ultimately on 29.6.2010, the ops had written a letter no.1622, which is said to be meaningless as the ops failed to settle the claim of the complainant. The ops failed to comply with the order of the Forum dated 21.10.2008. Again the complainant wrote letter dated 11.5.2011 to the ops for the settlement of the claim. Then she submitted the application dated 11.1.2012 by hand to the ops, which was received by them on the said date and they assured to settle the claim. Then again she wrote letter on 24.4.2012 but the ops failed to pay any heed to the same. There is said to be deficiency in service  on the part of the ops to settle the claim of the complainant which resulted into the harassment and the mental agony experienced by her. It is alleged that she is entitled to a claim of Rs.1,60,000/- and further a compensation in a sum of Rs.2lac on account of the harassment and mental agony experienced by her. Accordingly she brought this complaint against the ops under Section 12 of the Consumer Protection Act,1986(for short the Act) asking for the said reliefs.

On notice, the ops appeared and filed their written version having raised certain preliminary objections, interalia , that the complainant had got no cause of action to file the complaint; that the complaint is barred by limitation and that the complaint is not maintainable as the complaint has already been dismissed twice vide orders dated 21.10.2008 and 16.7.2012 and the present complaint is barred by principle of resjudicata. As regards the facts of the complaint, it is admitted by the ops that they had issued the insurance policy in respect of the van make Maruti Omni PB 11-E-4137 for the sum insured of Rs.80,000/- covering the risk of third party, in the name of the husband of the complainant but the same had lapsed immediately after the death of Sh.Surinder Kumar on 17.3.2012 as the complainant failed to get the same renewed within the prescribed period of three months under condition No.9 of the policy .

It is denied that the van had been taken by Sh.Jagan Nath, brother of the deceased on 28.12.2002 to Chandigarh and that the same was stolen and the FIR was lodged by said Sh.Jagan Nath with the police. It is also denied that  Sh.Jagan Nath had written letters dated 31.5.2003, 15.5.2004 and 4.4.2005 or that he supplied all the documents on the basis of letter No.1136 dated 26.5.2005.Neither Sh.Jagan Nath had supplied the documents as required nor the complainant  lodged any claim with the ops. The complaint brought by the complainant was dismissed by the Forum on 21.10.2008. It is denied that the Forum had given any liberty to the ops to file the claim afresh alongwith other relevant documents before the ops. No direction was given to the ops to pass an order on the submission of the documents. The complainant had lodged the claim on 20.11.2008  alongwith the documents but it is denied that the complainant had written letter dated 19.8.2009. She had written only letter dated 14.6.2010, which was replied by the ops on 29.6.2010, and claim was repudiated. It is denied that the complainant had been visiting the office of the ops or that she had written a letter dated 19.8.2009 asking for the payment. No such letter was received by the ops. It is denied that the complainant had sent the letters dated 11.5.2011, 11.01.2012 and 24.4.2012. All the said letters were not received by the ops. They also denied the entitlement of the complainant in claiming Rs.1,60,000/- and Rs.2,00,000/-.After denouncing the other averments of the complaint, going against the ops, it was prayed to dismiss the complaint.

Vide our order dated 16.7.2012, the complaint was rejected being barred by limitation. In the appeal preferred by the complainant before the Hon’ble State Consumer Disputes Redressal Commission Punjab, Chandigarh, the order of the Forum dated 16.7.2012 has been setaside and the complaint has been remanded with the observations that the complaint was filed by the complainant within limitation and to decide the complaint on merits.

In support of her complaint, the complainant produced in evidence Ex.CA, her sworn affidavit alongwith the documents Exs.C1 to C23 and her counsel closed the evidence.

On the other hand, on behalf of the Ops, their counsel tendered in evidence Ex.OPA, the sworn affidavit of Sh.D.P.Garg,Divisional Manager of  OP no.2 alongwith documents Exs.OP1 to OP11 and their counsel closed the evidence.

The parties failed to file the written arguments. We have heard the learned counsel for the parties and gone through the evidence on record.First of all we take up the issue raised by the Ops that the present complaint is barred by the principle of resjudicata  in that the previous complaint brought by the complainant was dismissed by the Forum vide order dated 21.10.2008. By virtue of the order dated 21.10.2008 passed in complaint No.213 of 23.05.2007, it was observed, “In the result, we hold that the complaint is without any merit and the same is dismissed accordingly with no order as to costs. The complainant is at liberty to file a claim with the Ops if, she so desires……..”. In the discussion made by the Forum in para no.10 of the order, it was also observed, “ The complainant is however, at liberty to submit  fresh claim form alongwith other relevant documents to the Op for settlement of the claim. With these directions , we hold that there is no deficiency in service on the part of the Ops”.As per the averments made in the present complaint, the complainant as per the directions given by the Forum vide order dated 21.10.2008 lodged the claim with the Ops vide letter dated 20.11.2008 sent through UPC to the Divisional Office and Branch Office of the Ops alongwith the intimation letter, FIR No.770 dated 28.12.2012, driving licence, photo copy of the registration, cover note, untraced report of CJM, Chandigarh and death certificate of Sh.Surinder Kumar. Vide our order dated 16.7.2012, the complaint was rejected as it was observed that the claim was hopelessly barred by limitation. Against the said order of the Forum, the complainant preferred First Appeal No.1243 of 2012 and the same was decided by the Hon’ble State Consumer Disputes Redressal Commission Punjab , Chandigarh vide order dated 4.9.2014 having held that the complainant had filed the complaint with the period of limitation and therefore, the complaint was remanded with a direction to decide the complaint on merits.In the light of the observations made by the Forum in the order dated 21.10.2008,Ex.C10, it would appear that the complainant had file the claim afresh alongwith the relevant documents and the Ops were obliged to settle the claim. The complainant filed the claim before Op no.2 vide application, Ex.C11 dated 20.11.2008 sent against UPC Ex.C12. From the application, Ex.C11, it would appear that the same was submitted alongwith the claim form, intimation, police report, FIR No.770 dated 28.12.2012 of P.S. Sector 17 Chandigarh, driving licence, two copies of the RC, cover note No.611807 of Maruti Van No.PB-11E-4137, untraced report of CJM,Chandigarh, death certificate, Un traced report of the DSP of P.S.Central Division, Sector 17 Chandigarh alongwith other documents. The Ops have denied the complainant having lodged the claim vide letter dated 20.11.2008 alongwith said documents.It was submitted by Sh.D.P.S.Anand, the learned counsel for the Ops that no presumption can be drawn regarding the dispatch of the letter,Ex.C11 by the complainant Smt.Parveen Kumari to the Ops on the basis of the UPC, Ex.C12 dated 20.11.2008. The same should have been sent through registered post or through speed post. In this regard , he placed reliance upon the citation Bihar State Hydroelectric Power Corporation Ltd. Versus National Insurance Co.Ltd. 2015(1)CLT 292of the Hon’ble National Consumer Disputes Redressal Commission, New Delhi. In the case of the citation, the complainant company had informed the Op about the loss vide its letter dated 26.12.2006.The case of the Insurance Company was that the letter dated 26.12.2006 had never been received by it. The learned counsel for the complainant on a query disclosed before the Hon’ble National Commission that the said letter was sent by ordinary post after making an entry of  the said letter in the dispatch register . It was observed by the Hon’ble National Commission that it was highly unlikely that a letter seeking appointment of surveyor to carry out survey relating to loss of goods worth crores of rupees would be sent by ordinary post. Such a letter  would at least be sent by speed post or registered post so as to preserve the documentary proof of its dispatch to the Insurance Company.On the other hand, it was submitted by Sh.Anand Puri, the learned counsel for the complainant that the complainant had sent the claim vide letter,Ex.C11 dated 20.11.2008 against UPC,Ex.C12 and therefore, it could not be said on behalf of the Ops that there is no proof with regard to the claim having been submitted by the complainant with the Ops. Letter, Ex.C11, was followed by letters,Exs.C13 dated 14.8.2009, C14 dated 14.6.2010 and the Ops acknowledged the receipt of the letter dated 14.6.2010 vide their letter ,Ex.C15 dated 29.6.2010. Had the Ops not received the claim form sent by the complainant vide her letter,Ex.C11 dated 20.11.2008, the Ops could rebut the averments made in the letter,Ex.C14 dated 14.6.2010 that she had already submitted the claim documents in their office and visited them many a times but no heed had been paid and rather with reference to her letter dated 14.6.2010, she was informed vide letter,Ex.C15 by the Ops, “ Please refer to your letter dated 14.6.2010. In this connection please go through the contents of D.C.D.R.F.order dated 12.10.2008 which are self explanatory”. It was submitted by the learned counsel for the complainant that by virtue of the said letter,Ex.C15, the Ops declined to settle the claim of the complainant having  made a reference to the order dated 21.10.2008 of the Forum whereby her claim was dismissed. They however, over-looked the fact that the complainant had been given the liberty to submit the claim afresh alongwith relevant documents for settlement of the claim by the Ops. We are of the considered view that the complainant had not sent the claim form alongwith other documents through ordinary post and rather she sent the same against UPC, Ex.C12 and therefore, in the absence of any evidence to have been lead by the ops that they had not received the letter,Ex.C11, we have to presume that the claim form alongwith relevant documents sent by the complainant vide letter,Ex.C11 against UPC,Ex.C12 was received by the Ops. The Ops could collect the evidence from the Post- Office Samana, through which letter,Ex.C11 was sent against UPC,Ex.C12 to know whether the letter sent against UPC,Ex.C12  was delivered to the addressee or not.Now coming to the plea of the Ops that the complainant had not got the insurance policy transferred in her favor after the death of her husband namely late Surinder Kumar within a period of three months from the date of his death in compliance with condition No.9 of the policy Ex.OP11, which provides, “In the event of the death of the sole insured, the policy will not immediately lapse but will remain valid for a period of three months from the date of the death of insured or until the expiry of this policy( whichever is earlier)During the said period, legal heir(s) of the insured to whom the custody  and use of the Motor Vehicle passes may apply  to have this policy transferred to the name(s) of the heir(s) or obtain a new insurance policy for the Motor Vehicle”, it may be noted that the insured Sh.Surinder Kumar had died on 17.03.2002  and the policy was valid up to 1.1.2003. In that way, the policy had  to be got transferred by the complainant within a period of three months from the date of the death of the insured, the said period being the earliest one. The complainant submitted the application Ex.C2 dated 10.5.2002 before Op no.1 for the transfer of the policy/cover note No.611807 valid  from 2.1.2002 to 1.1.2003 on account of death of her husband having taken place on 17.03.2002, in respect of Maruti Van bearing registration No.PB 11E 4137. The said application bears the endorsement regarding the receipt of the same in the office of Op no.1. Thus, it would appear that the complainant had applied the Ops for the transfer of the insurance policy before the expiry of a period of three months from the date of the death of her husband(insured).It was submitted by Sh.D.P.S.Anand, the learned counsel for the Ops that the application, Ex.C2 has been manipulated lateron by the complainant because the same was not produced by the complainant in the previous complaint. The said submissions made by the learned counsel for the Ops cannot be given any weightage because in his  affidavit, Ex.OPA  Sh.D.P.Garg, Divisional Manager of Op no.2, has no where stated that the application Ex.C2 dated 10.5.2002 was never received by Op no.1 as per endorsement made thereon under the stamp of Op no.1, in the absence of which we are not inclined to find favour with the said submissions made by the learned counsel for the Ops. As a matter of fact, the affidavit of the concerned official in the office of Op No.1 should have been filed so as to rebut the receipt of the said application,Ex.C2 vide the endorsement made thereon. Consequently , we are of the considered view that the complainant had discharged her onus of  applying Op no.1 in transferring the insurance policy in her favor and the lapse/deficiency had occurred on behalf of the Ops.The Ops cannot escape from their liability to settle the claim of the complainant simply by way of stating that the policy was not got transferred by the complainant in her favor within a period of three months from the date of the death of the insured and that no claim was submitted by the complainant. We have already discussed the said two points and hold that the lapse occurred on the part of the Ops in transferring the policy in favor of the complainant and settling the claim of the complainant despite the same having been submitted vide application Ex.C11 dated 20.11.2008 alongwith relevant documents in compliance with the observations made by the Forum vide order dated 21.10.2008( Copy Ex.C10).Here, it is important to note that the theft of the vehicle of the insured had taken place on 28.12.2002 and the FIR regarding the same was lodged by Sh.Jagan Nath on the same day with P.S.Sector 17,Chandigarh at 9.40PM as would appear from Ex.C4, copy of the FIR. No specific time was granted by the Forum vide order dated 21.10.2008 for lodging the claim afresh by the complainant with the Ops but even then the complainant had lodged the claim with the Ops on 20.11.2008 i.e. within a period of one month from the date of the passing of the order and therefore, the Ops had no ground to say that the claim could not be settled in the light of the order dated 21.10.2008 passed by the Forum.Now coming to the entitlement of the complainant regarding the payment of the claim, as per the policy,Ex.OP11, the IDV of the vehicle was Rs.80,000/- but the complainant has claimed the payment of Rs.1,60,000/-. It was fairly submitted by Sh.Anand Puri, the learned counsel for the complainant that the claim of the complainant may be settled as per the IDV of the vehicle given in the insurance policy,Ex.C11. He also submitted that the complainant has been pursuing her claim with the Ops for the last more than 12 years and therefore, the Forum may award suitable compensation on account of the harassment and the mental agony experienced by the complainant. Consequently, we accept the complaint and direct the Ops to pay the amount of Rs.80,000/- to the complainant with interest @9% per annum from the date of the letter Ex.OP1   dated 29.6.2010,  vide which the Ops failed to settle the claim taking the shelter of the order dated 21.10.2008 till final payment. In view of the facts and circumstances of the case, the complaint is accepted with costs assessed at Rs.5000/-. The order be complied by the Ops within one month on receipt of the certified copy of the order.

Dated:23.04.2015

 

                                      Neelam Gupta                         D.R.Arora

                            Member                                   President

 

 

 

 

 

 

 

 

 

 

 

 

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