| Final Order / Judgement | DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, BATHINDA CC No.25 of 29-01-2019 Decided on 28-07-2022 Harmail Singh son of Sh. Hardev Singh, resident of Vill. Guram, Tehsil & Distt. Barnala through his special Attorney Davinder Singh son of Sh.Dalip Singh, resident of Gali no.4 Gurdas Nagar, Barnala. …......Complainant Versus United India Insurance Company Limited, H.O. 24 whites Road Chennai-600014 through its authorized Signatory. United India Insurance Company Limited, 2090-B, The Mall Road, Bathinda, through its General Manager. United India Insurance Company Limited, through its Branch Manager Khati Bazzar, Rampura Phul, Distt. Bathinda.
….....Opposite parties Complaint under Section 12 of the Consumer Protection Act, 1986 QUORUM Kanwar Sandeep Singh, President Sh. Shivdev Singh, Member Smt. Paramjeet Kaur, Member Present:- For the Complainant: Sh.Vikas Singla, Advocate. For Opposite parties: Sh. J.D Nayyar, Advocate. ORDER Kanwar Sandeep Singh, President:- The present complaint has been filed by the complainant under Section 12 of the Consumer Protection Act, 1986 as amended up-to-date (Here-in-after referred to as an 'Act'). The brief facts of the complaint are that the complainant himself is unable to come present appear before the Hon'ble Forum on each and every date of hearing and is unable to pursue the aforesaid complaint. The complainant has appointed Sh. Davinder Singh son of Sh. Dalip Singh, resident of St. no.4, Gurdas Nagar, Barnala as his special Attorney vide Special Power of Attorney dated 20.10.2016 and authorized him to transact, manage, carry on and to do every matter and things necessary, in any manner in respect of the aforesaid vehicle. To file and pursue any case against any person regarding the said vehicle and generally to do all things and Sh. Davinder Singh is also fully conversant with the facts of the present case and as such the present complaint is being filed by the complainant through his special attorney Davinder Singh who is fully authorized and competent to file and pursue the complaint. It is pleaded that the complainant is registered owner of Truck-Trailer bearing registration No. PB-46M-5204, Chassis No. MAT447212C3B03512, Engine No. 21A63229212. This vehicle of the complainant was validly insured with the opposite parties vide Insurance Policy No.2004043117P101003201 which was valid w.e.f. 10.4.2017 to 9.4.2018. Davinder Singh attorney of the complainant was managing the aforesaid vehicle and he has engaged Simarjeet Singh son of Sh. Dawinder Singh, resident of Near ITI Chowk, Barnala as driver on the said vehicle and the said Simarjeet Singh was also holding a legal and valid driving license. It is pleaded that Davinder Singh got loaded the abovesaid truck/tralla from Green Transport Company, Ludhiana in the first week of November 2017 and it was to be unloaded at Bangalore and after unloading the material, the said vehicle was loaded from Angol for Mandi Gobingarh (Punjab) and when the said vehicle reached in the area of Ramgarh (Ranchi) on 04.12.2017, the said truck/tralla met with an accident because all of a sudden, some stray animal came on the road in front of the said vehicle and the driver applied sudden brakes as a result of which, the truck/tralla turned turtle and was badly damaged in the said accident. The said accident took place all of a sudden, due to the coming of stray cattle in front of the said vehicle and no one was at fault and as such, no FIR was got lodged regarding the said accident. It is further pleaded that the intimation regarding the aforesaid accident was given to the opposite party no.3 telephonically and the opposite party no.3 provided the telephone number of the Surveyor Sh. Bishan Kumar, Mob.No. 94311-74832 and 72095-07300 who was further informed about the accident and the Surveyor reached at the place of accident and prepared his detailed report and reported “Total Loss”. It is pleaded that the said report of the surveyor was brought to the notice of the opposite party No.3 and opposite party No.3 directed Davinder Singh Special attorney of the complainant and the driver Simarjeet Singh to bring the said vehicle at Barnala and accordingly, the vehicle in question was brought at Barnala by toeing the same with the help of Crain and was parked in the Workshop of M/s Kissan Motors, Barnala for repair in the month of January 2018 and it is still lying parked in the workshop of M/s Kissan Motors, Barnala. The opposite parties no 2&3 had also assured the complainant and his attorney to honour the claim of the complainant on account of accident of the said vehicle. M/s Kissan Motors, Barnala prepared Estimate regarding expenses to be incurred for the Repair of the said vehicle which is amount to Rs.11,35,103/-. It is also pleaded that the complainant lodged the insurance claim with the opposite parties and furnished copies of all the relevent documents as detailed above and in the month of April 2018, the abovesaid accidental vehicle was fully repaired by M/s Kissan Motors, Barnala but the opposite parties failed to make payment of the bill prepared by M/s Kissan Motors, Barnala regarding repair of the said vehicle and the vehicle in question is still lying parked in the premises of M/s Kissan Motors, Barnala. It is also pleaded that the complainant repeatedly approached the opposite parties no.2&3 and the requested to honour the lawful claim of the complainant and to make payment of the insurance claim to M/s Kissan Motors, Barnala so that the complainant may be able to get the delivery of the said vehicle but to no effect rather the opposite parties kept on putting the matter off under one or the other false pretext and ultimately, the opposite parties refused to honour the claim of the complainant by raising a false and frivolous objection that the date of fitness certificate of the damaged truck has been expired on 23.11.2017 i.e. prior to the date of accident and as such the complainant is not entitled to the insurance claim. The said objection is wrong, illegal, null and void, arbitrary, nonest and against the principles of natural justice as the vehicle of the complainant was having a valid registration certificate and valid insurance certificate at the time of accident and so far as the fitness certificate, the same is not required for the honouring of the claim as the vehicle in question was never declared unfit by the surveyor of the opposite party before issuance of the insurance cover note which was valid w.e.f. 10.4.2017 to 9.4.2018 and the insurance cover note was issued by the opposite parties after inspecting the vehicle in question as the same was road worthy. Even as per the terms and conditions of the insurance policy, there is no reference of any Fitness Certificate and the claim of the complainant has been illegally repudiated by the opposite parties on the basis of most flimsy grounds in order to escape from their liability. It is further pleaded that it is also not out of place to mention here that the new Fitness certificate could not be obtained by the complainant due to the strike in the Office of District Transport Officers/RTOs in November 2017 for which the complainant is not at fault. Moreover, the accident of the vehicle never took place due to any technical fault in the said vehicle owing to the fitness of the vehicle rather the same took place due to the coming of a stray cattle in front of the said vehicle and the driver of the vehicle was forced to apply sudden brakes as a result of which, the vehicle turned turtle and as such the complainant is entitled to the amount of insurance claim and the opposite parties are liable to make payment of the insurance claim regarding repair of the aforesaid vehicle to M/s Kissan Motors, Barnala. On the backdrop of these facts, complainant has filed the present complaint seeking directions of this Forum to the opposite parties to pay Total amount of insurance claim, damages/compensation of Rs. 5,00,000/- on account of loss of income, Rs. 3,00,000/- on account of mental tension, agony, harassment and humiliation suffered by him and also to pay Rs.22,000/- as legal charges. Upon notice, Opposite parties put an appearance through counsel and contested the complaint The opposite parties filed joint written statement and pleaded that the actual facts of the case are that after receiving the intimation with regard to the alleged accident, the opposite parties with all bonafidies had immediately deployed the surveyor for assessing the loss who after inspecting the vehicle had submitted his spot survey report. Thereafter another surveyor was appointed for final survey report who had also submitted his report. It is pertinent to mention that the claim if any was payable subject to rules and regulations, terms and conditions of the policy and on the complainant providing all the required documents, information and completing the required formalities in this regard and on the basis of genuineness of vehicular documents on the alleged date of accident. As such all the documents so supplied by the insured were got verified by the opposite parties and on receiving the verification report it had been found that the insured was not possessing a valid fitness certificate on the alleged date of accident. Since the Fitness Certificate was valid for the period 24.11.2016 to 23.11.2017 and thereafter 08.01.2018 to 07.01.2019 as such there is a gap from on 24.11.2017 to 07.01.2018. Since the accident has been alleged to have taken place on 04.12.2017 as such is no valid fitness certification the said date. Hence the claim of the insured was not found to be payable and had been repudiated with proper intimation to the insured vide letter no YPS: RB: 2018-19:593 dated 06.07.2018. On merits, the opposite parties after reiterating their version as pleaded in legal objections and detailed above, further controverted all other averments of complainant and prayed for dismissal of complaint. In support of his complaint, complainant tendered affidavit of Davinder Singh (Ex. C-1), photocopy of Special Power Of Attorney (Ex.C2), Photocopy of fitness Certificate (Ex.C-3), Photocopy of Insurance Certificate (Ex.C-4), Photocopy of D.L.(Ex. C-5), Photocopy of Survey Report (Ex. C-6) and Photocopy of Estimate containing Pages 1 to 4 (Ex. C-7). In order to rebut the evidence of complainant opposite party tendered into evidence affidavit of Baldev Singh (Ex. OP-1/1), Photocopy of Letter (Ex. OP-1/2), Photocopy of Survey Report Dated 28.05.2018 (Ex. OP-1/3) , Photocopies of Final Survey Report Dated 02.05.2018 (Ex. OP-1/4), Photocopy of Verification of fitness Of Vehicle (Ex. OP. 1/5), Photocopy of Motor Claim Form (Ex. OP-1/6) and Photocopy of Insurance Policy (Ex. OP-1/7). We have heard learned counsel for parties and gone through the file carefully. The learned counsel for the parties reiterated their stand as taken in their respective pleadings. In the case in hand, these are admitted facts of the parties that complainant is owner of truck no. PB-46M-5204 and this vehicle is insured with the opposite parties No. 1 to 3. Aforesaid vehicle of the complainant was validly insured with the opposite parties vide Insurance Policy No.2004043117P101003201 which was valid w.e.f. 10.4.2017 to 9.4.2018. The above Truck met with an accident on 4.12.2017 and turned turtle. The intimation regarding the aforesaid accident was given to the opposite party no.3 and claim was repudiated by the opposite parties. The learned counsel for the opposite parties submitted that since the Fitness Certificate was valid for the period 24.11.2016 to 23.11.2017 and thereafter 08.01.2018 to 07.01.2019 as such there is a gap from on 24.11.2017 to 07.01.2018. Since the accident has been alleged to have taken place on 04.12.2017 as such is no valid fitness certification on the said date. Hence, the claim of the insured was not found to be payable and had been repudiated with proper intimation to the insured vide letter no YPS: RB: 2018-19:593 dated 06.07.2018. Hon'ble National Commission, New Delhi, in the case titled G Kothainachair Vs. United India Insurance Co. Ltd., & Ors., cited as IV (2007) CPJ 347 (NC) has held that:- “Consumer Protection Act, 1986 – Section 21 (b) – Insurance – Motor Accident – Reimbursement of loss/damage Claim repudiated – Contention vehicle not having fitness certificate on date of accident – Provisions of Motor Vehicles Act violated – Insured not entitled to have reimbursement from Insurance Company – Contention not acceptable – Claim allowed by Forum on basis of Surveyor's assessment – Compensation for mental agony and cost awarded – Order set aside in appeal – Hence revision – Insurance is matter of contract between parties – Insurance Company cannot repudiate claim when there is no breach of policy conditions”. Hon'ble Punjab State Consumer Disputes Redressal Commission in case of New India Insurance Co. Ltd and another Vs. Yogesh Gupta Insurance Company 2010 (12) RCR Civil 354 has observed that Insurance claim - Repudiation - Insured vehicle met with accident – Claim filed by owner of vehicle repudiated on ground that the vehicle was not having fitness certificate at the time of the accident – Appellants had no right to repudiate the insurance claim on the ground that by driving the vehicle without fitness certificate the respondent has violated the statutory provisions – Held, repudiation is valid only if conditions of insurance policy are violated – In case of violation of statutory provision authority have right to punish the violator but insurer will have no right to repudiate the claim. Moreover, In present case the vehicle in question met with an accident because all of a sudden some stray animal came on the road in front of said vehicle and not because of any mechaniacal break down of insured vehicle. Hence, this commission is of the view that repudiation of claim amounts to deficiency in service on the part of opposite parties and complainant is entitled to the claim amount as assessed by surveyor. In view of what has been discussed above, this complaint is accepted with Rs.10,000/- as cost and compensation. The opposite parties are directed to pay Rs. 2,72,003/- ( As Assessed by surveyor) to the complainant being the claim amount alongwith interest @ 8% p.a. From the date of repudiation i.e. dated 06-07-2018. The complaint could not be decided within statutory period due to Covid pandemic and heavy pendency of cases. The compliance of this order be made by opposite parties jointly and severally within 45 days from the date of receipt of copy of this order. Copy of this order be sent to the parties concerned free of cost and the file be consigned to the record room.
Announced : 28-07-2022 (Kanwar Sandeep Singh) President
(Shivdev Singh) Member (Paramjeet Kaur) Member
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