Order by:
Sh.Mohinder Singh Brar, Member
1. The complainant has filed the instant complaint under section 35 of the Consumer Protection Act, 2019 stating that the complainant is registered owner of vehicle bearing Registration No. PB04-AC-3064 and having valid public carrier goods route permit w.e.f. 04.12.2019 to 03.12.2024 for carrying the goods on hire or reward in the State of Punjab and vehicle is fit for carrying the goods as per certificate of fitness issued by the office of RTA Farikdot upto 27.12.2023 and the said vehicle was insured with opposite party vide policy No.2012043120P06535353 the period w.e.f. 04.10.2021 to 03.10.2022 (wrongly mentioned in complaint as 03.10.2022 to 02.10.2023) on payment of Rs.19,500/- as premium which was duly accepted by the opposite party. At the time of purchasing the policy it was disclosed to opposite party that vehicle may be used as public carrier used for hire and reward which was accepted by opposite party. Unfortunately on 08.04.2022 said vehicle bearing Registration No. PB-04AC-3064 which was driven by Lakhwinder Singh son of Gurdev Singh, having valid Driving Licence valid upto 20.09.2036 (wrongly mentioned in complaint as 20.09.2026), going to Khanna for unloading the cement, when vehicle reached near village: Ladowal, District Ludhiana. Then Bhagwan Singh son of Darshan Singh, resident of village: Janetpur was driving the Motor Cycle No.PB10GF-1927 hit with vehicle and Bhagwan Singh was died on the way and the said vehicle was damaged. FIR No.035 dated: 08.04.2022, u/s 279/304-A/427 IPC, in P.S. Ladowal was registered against the driver. The complainant informed the opposite party for the loss of insured vehicle on 08.04.2022 and surveyor for assessing the loss was deputed by the company and M/s Krishana Auto Sales estimated the loss upto the tune of Rs.4,53,231/- and complainant submitted all the required documents to opposite party. After obtaining all the documents opposite party never bothered to claim of insured vehicle. The complainant made so many requests to Opposite Party to make good the loss but the opposite party did not pay any heed to the request of complainant. Thereafter, vide letter dated 14.09.2022, the Opposite Party repudiated the claim of the complainant on the following grounds:-
i) R.C. Route permit, load challan/GR not found in order,
ii) Load challan is issued by Vee Tee Cement private Limited and issue to Verma Cement Store Khanna and no detail of regd. owner and insured on the load challan,
iii) That there is a breach of terms and conditions (Limited as to use) of insurance policy,
The aforesaid observations are totally wrong and incorrect whereas vehicle involved having a valid route permit for hire or reward. The complainant approached the Opposite Party time and again for making the payment of claim, but the Opposite Party did not pay any heed to the request of the complainant. Thereafter, the Opposite Party finally repudiated the claim of the complainant vide letter dated 14.09.2022. Alleged that the act of Opposite Party is illegal, unwarranted and uncalled for, due to which, complainant has suffered mental tension and harassment. Hence, this complaint. Vide instant complaint, the complainant has sought the following reliefs:-
a) Opposite Party may be directed to pay the claimed amount of Rs.4,53,231/- on account of loss of vehicle no.PB-04AC-3064.
b) To pay an amount of Rs.30,000/- as compensation on account of mental torture and agony.
c) To pay an amount of Rs.15,000/- as litigation expenses.
d) To pay future interest @ 12% p.a. from the date of accident till actual realization.
d) And any other relief which this Commission may deem fit and proper be granted to the complainant in the interest of justice and equity.
2. Opposite Party appeared through counsel and contested the complaint by filing written reply taking preliminary objections therein inter alia that the this Commission has got no jurisdiction to try and decide the present complaint since there is no deficiency in service or negligence as alleged on the part of answering Opposite Party. The complainant lodged the claim with the respondent regarding damage of his vehicle bearing registration no.PB-04-AC-3064 and immediately on receipt of the claim, it was duly registered and processed and Mr.Jaspreet Singh Malik, Surveyor & Loss Assessor was deputed for spot survey and he inspected the vehicle, clicked photographs, collected documents and he submitted his spot survey report dated 29.04.2022 with the answering Opposite Party. M/s K. S. Bawa & Co., Surveyor & Loss Assessors were deputed for survey and assessment of loss and they through their representative inspected the vehicle, clicked photographs of the vehicle, collected documents and they submitted their final survey report dated 20.07.2022 and they also submitted their addendum/corrigendum final survey report dated 02.08.2022 alongwith documents with Opposite Party. The surveyor assessed the loss to the tune of Rs.2,23,500/- subject to terms and conditions of the policy. Averred further that Er. Guewinder Singh Patheja, Surveyor were deputed for re-inspection of the vehicle and he also submitted his re-inspection report dated 30.07.2022. After receipt of the said reports along with documents, the claim file of the complainant was duly scrutinized in terms of insurance policy and after applying the mind by the official of the Opposite Party, the claim of the insured/complainant was found not payable as per terms and conditions of policy and claim was repudiated vide repudiation letter dated 14.09.2022 which is duly received by the complainant. Averred further that the complainant has violated the terms and conditions of the policy, so the claim is not payable as per terms and conditions of the policy and accordingly the Opposite Party has repudiated the claim of the complainant vide letter dated 14.09.2022. As such, the complainant is not entitled for any relief. Averred further that the insurance policy is contract between insured and insurer and both the parties are bound by the terms and conditions of the insurance policy. The insurance policy is a contract on the basis utmost good faith. The claim of the complainant is not payable as per terms and conditions of the policy; the present complaint is not maintainable since complicated question of law and facts are involved which required elaborated evidence both oral and documentary and as such it is only civil court of competent jurisdiction which can try and decide the present complaint. The complaint cannot be decided by this Commission in a summary manner; the complaint is barred u/s 26 of the Consumer Protection Act; the complainant is estopped by his own act and conduct from filing the present complaint since the complainant has not come to this Commission with clean hands and has concealed the material facts from this Commission. On merits, all other allegations made in the complaint are denied and a prayer for dismissal of the complaint is made.
3. In order to prove his case, the proprietor of complainant’s firm has placed on record his affidavit Ex.C1 alongwith copies of documents Ex.C2 to Ex.C12.
4. On the other hand, Opposite Party has placed on record affidavit of Smt.Shama Arora Mittal, Deputy Manager, United India Insurance Co. Ltd. as Ex.RW1/A alongwith copies of documents Ex.R1 to Ex.R54 and affidavit of Sh.Jaspreet Singh Malik, Surveyor & Loss Assessor as Ex.R55.
5. We have gone through all the documents/exhibits, written arguments submitted on behalf of Opposite Party. The vehicle in question i.e. Truck bearing registration no.PB-04-AC-3064 is registered in the name of Munayad Cement Company, Dharamkot (Moga) as per Ex.C3. As per Ex.C5 the vehicle in question has a valid permit for transportation valid for 04.12.2019 to 03.12.2024. As per Ex.C6, the vehicle in question has valid fitness certificate valid upto 27.12.2023. At the time of alleged accident said truck was being driven by driver Lakhwinder Singh who was having a valid driving licence bearing no.PB-0420160061198 valid for 18.01.2022 to 20.09.2036 as per Ex.C4. It is also not disputed that said vehicle was insured with United India Insurance for the period 04.10.2021 to 03.10.2022 as per Ex.C7.
7. As per Ex.R36, R37, the complainant firm i.e. M/s Munayad Cement Company is a proprietor firm and Sh.Vijay Amrit Pal Jindal s/o Yash Pal Jindal is Proprietor of the company. As per Ex.R38 Vee Tee Cement Private Limited is a limited company and Sh.Vijay Amrit Pal Jindal, Sh.Yash Pal and Smt.Meenu Jindal are the share holders of the company. From this document, it is clear that Sh.Vijay Amrit Pal (Proprietor of M/s Munyad Cement) is also partner of Vee Tee Cement Private Limited, which is their family firm.
8. On 08.04.2022 the vehicle in question, which is registered in the name of M/s Munyad Cement Company was going from Dharamkot to Khanna loaded with cement of Vee Tee Cement (as per invoice/bill (Ex.R30) bearing bill no.22 dated 08.04.2022) met with an accident at Village Ladowal, District Ludhiana and in this regard FIR no.035 dated 08.04.2022 (Ex.C9) got registered with P.S. Ladowal and intimation regarding the same was given to Opposite Party. On receipt of intimation, Mr.Jaspreet Singh Malik, Surveyor and Loss Assessor was deputed for spot survey who submitted a spot survey report dated 29.04.2022 (Ex.R39). Thereafter, Opposite Party deputed M/s K.S. Bawa & Co. to survey and assesses the loss, who submitted their final survey report dated 20.07.2022. Another surveyor Er.Guewinder Singh Patheja was also deputed for re-inspection of the vehicle and submitted his report dated 30.07.2022 (Ex.R6). Thereafter M/s K.S Bawa & Co. also submitted their addendum/corrigendum final survey report dated 02.08.2022 (Ex.R3) and assessed the loss to the tune of Rs.2,23,500/-. But however, the Opposite Party vide letter dated 14.09.2022 (Ex.R1) repudiated the claim of the complainant.
9. Perusal of the record reveals that the Opposite Party-Insurance Company has raised the objection that the vehicle is registered in the name of M/s Munyad Cement Company, but it is being used by Vee Tee Cement Company. Hence we can say that the vehicle was used for rent purpose and it is also clearly mentioned on the Goods Permit (Ex.C5) of the vehicle that it can be used for rent also.
10. Further perusal of the record reveals that as per Ex.C12, Krishna Auto Sales prepared the estimate of repair of the vehicle to the tune of Rs.4,53,231/- and the vehicle was got repaired by Krihsna Auto Sales. The total bill of repair as per Ex.R52 is Rs.3,08,220/-. Bare perusal of addendum/corrigendum final report dated 02.08.2022 of M/s K.S. Bawa & Co. (Ex.R3) reveals that after making some deductions the surveyor of the insurance company i.e. M/s K.S. Bawa & Co. assessed the loss to the tune of Rs.2,23,500/-. On the other hand, the complainant has not denied the said detailed report by filing any other valid report of some independent surveyor.
11. In view of the facts and circumstances of the case, we are of the concerted view that the complainant is entitled for the amount as assessed above by the surveyor. Further It has been settled by the Hon’ble Supreme Court of India 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 weight. Hon’ble National Commission in case cited as PRADEEP KUMAR SHARMA versus NATIONAL INSURANCE COMPANY, III(2008) CPJ 158 (NC), has been held that “Surveyor Report is an important document and cannot be brushed aside without any compelling evidence to the contrary”. Further in case New Horizon Sugar Mills Ltd. v. United India Insurance Co. Ltd. & Ors, 2003(3) CPR 136 (NC), the Hon’ble National Commission, New Delhi has 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). Not only this, recently Hon’ble National Consumer Disputes Redressal Commission, New Delhi in case National Insurance Company Limited Vs. M/s.Kiran Collector & Boutique 2019 (1) CLT 384 (NC), decided on 24th July, 2018 has held that “General rule is that the surveyors are appointed under the Insurance Act, 1938 and their reports are to be considered for settlement of insurance claims- The reports cannot be brushed aside without any cogent reasons.”
12. Keeping in view the aforesaid facts and circumstances and relying upon the judgements of Hon’ble Supreme Court of India as well as Hon’ble National Commission, New Delhi (supra) we are of the view that the instant complaint is to be decided on the basis of unrebutted surveyor report.
13. From the above discussion, we allow the present complaint in part and direct the Opposite Party to pay the amount of Rs.2,23,500/- (Rupees Two Lakh Twenty Three Thousand Five Hundred only ) (as assessed by the surveyor M/s K.S. Bawa & Co.) alongwith interest @ 7% p.a. from the date of repudiation i.e. 14.09.2022 till its actual realization. Further Opposite Party is directed to pay compository cost of Rs.20,000/- (Rupees Twenty Thousand only) as compensation and litigation expenses to the complainant. The pending application(s), if any also stands disposed of. The compliance of this order be made by the Opposite Party within 30 days from the date of receipt of copy of this order, failing which, the Opposite Party is further burdened with additional cost of Rs.10,000/-(Rupees Ten Thousand only) to be paid to the complainant for non compliance of the order. Copies of the order be furnished to the parties free of costs. File is ordered to be consigned to the record room.
Announced on Open Commission
