| Final Order / Judgement | DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, BATHINDA C.C.No. 52 of 20-2-2020 Decided on :08-06-2023 Harwinder Singh aged about 49 years S/o Sh. Jagjit Singh, R/o #465, Model Town, Phase-I, Bathinda-151001. ........Complainant Versus United India Insurance Company Limited, B.O.:7-A, Mansa Road, Civil Lines, Bathinda-151001 through its Branch Manager. Kotak Mahindra Bank, 3-A, Civil Lines, 83, Liberty Chowk, Bathinda 151001, through its Auth. Signatory/Manager/Incharge. Rajasthan State Road Transport Corporation (R.S.R.T.C), Depot Jhunjhunu, Road No.1, Station Road, Jhunjhunu-333001, through its Auth. Signatory/Manager/Incharge.
.......Opposite parties Complaint under Section 12 of the Consumer Protection Act, 1986 QUORUM Sh. Lalit Mohan Dogra, President Sh. Shivdev Singh, Member Present : For the complainant : Sh. Sahil Bansal, Advocate. For opposite parties : Sh. S.M. Goyal, Advocate, for OP No.1. Sh. R.P Singh, Advocate, for OP No.2. Sh. Naresh Garg, Advocate, for OP No.3 ORDER Lalit Mohan Dogra, President The complainant Harwinder Singh (here-in-after referred to as complainant) has filed this complaint U/s 12 of Consumer Protection Act, 1986, ( Now C.P. Act, 2019 here-in after referred to as 'Act') before this forum (Now Commission) against United India Insurance Company Limited & others (here-in-after referred to as opposite parties). Briefly stated, the case of the complainant is that he is Regd. Owner of the Bus Regd. No. RJ-18-PA-8866. The said vehicle is hypothecated with the opposite party No.2 & under hire Agreement with the opposite party No.3, and no claim is filed against opposite parties No.2 & 3. The said bus is comprehensively insured (Package Policy) with opposite party No.1 vide insurance Policy No.2004013118P107434620 w.e.f. 8.9.2018 to 7.9.2019 for the IDV of Rs.17,00,000/- with cover of IMT 23 and the opposite party No.1 charged extra premium of coverage of IMT23. The opposite party No.1 also took the signatures of the Insured on blank Proposal Form. The 1DV was fixed by the opposite party No.1 as per IMT and under GR-8. It is alleged that on 13.03.2019 at about 8.45. p.m. the above said Bus of the complainant met with an accident in Beed, Jhunjhunu. At that time, the vehicle was being driven by Rajesh Kumar. In accident, the vehicle was totally damaged (Total Loss) and in this regard, FIR was got Regd. in P.S. Sadar, Jhunjhunu. The Complainant lodged claim with the opposite party No.1 and they appointed Spot Surveyor. On 14.03.2019 Next day Mr. Jaheer Ahamed Khan reached at the Spot and surveyed the loss under the instructions of opposite party No.1. The accidental vehicle was shifted with M/s Onkar Coach Builder, Bhadaur from the spot by spending Rs.21,500/- under the instructions of opposite party No.1 through their Spot Surveyor Mr. Jaheer Ahamed Khan. It is further alleged that thereafter the opposite party No.1 appointed Mr. R. P. Gupta of M/s Gupta & Co. from Ludhiana who visited the workshop at M/s Onkar Coach Builder, Bhadaur and after getting the estimates to the tune of Rs.25,55,979/- against the IDV of Rs.17,00,000/-, he duly declared the vehicle as Total Loss. The original estimates directly obtained by the said surveyor from workshop. The complainant also submitted all the papers i.e. Claim Form, FIR, RC, DL Fitness, Permit etc. to the opposite party No.1 through said surveyor. There after the said surveyor of opposite party No.1 also took signatures of the complainant on some blank forms and Voucher etc. with the understanding that this is total loss as per GR-8 of the India Motor Tariff (IMT) and the total claim as per 1DV, will be paid within 15 days as the survey done on 15.05.2019. The complainant alleged that the final surveyor made his report on 21.09.2019 against his appointment dated 14.05.2019 after delay of more than 4 Months. The value of salvage of the vehicle was assessed by Mr.R.P. Gupta as Rs.1,25,000/- but the opposite party No.1 used the coercive method and took the consent for Rs.2,50,000/- (Including RC) from the complainant as they withheld the total claim amount and under financial crunch and threat, the complainant signed the same as he was paying heavy interest on the said amount to opposite party No.2. It is also alleged that opposite party No.1 paid the part payment of Rs.14,18,500/- through RTGS on 24.12.2019 against the IDV of Rs.17,00,000/- alter deducting the wreck value of the vehicle as Rs. 2,80,000/- and Rs.1,500/- as excess Clause whereas the complainant is always ready to give the wreck to opposite party No.1. It is alleged that the Claim of Rs.3,01,500/- i.e. Rs.2,80,000/- (Rs.17,00,000/- (-) Rs. 4,20,000/- { Excess Clause 1,500/-}) Balance amount as per IDV of the Bus as Total Loss and Rs.21,500/- as Towing charges are till date pending with opposite party No. l. Due to non- payment of the above said claim, the complainant has suffered mental agony and pains for which he claims compensation to the tune of Rs.50,000/-. The complainant alleged that now the opposite party No.1 issued illegal letter dated 07.01.2020 addressed to RTA mentioning therein that FIR No.251 at PS Kotwali Bathinda, has no relevancy with the claim or complainant or with vehicle and also illegally requested for cancellation of RC of the vehicle whereas the wreck value duly mentioned including RC even in the survey report. This act and conduct of the opposite party No.1 is illegal, arbitrary and cannot be sustained in the eyes of law and the opposite party No.1 be directed to withdraw the said letter immediately. On this backdrop of facts, the complainant has prayed for directions to the opposite parties to pay total claim amount of Rs.3,01,500/- i.e. balance amount as per IDV of the Bus and Rs.21,500/- as Towing Charges alongowith interest @ 18% p.a. with damages to the extent of Rs.50,000/- on account of mental agony, pains and Rs.25,000/- as litigation expenses. Besides this, complainant has also prayed that opposite party No.1 be directed to withdraw letter dated 7.1.2020. Upon notice, opposite party No.1 appeared through counsel and contested the complaint by filing written reply raising legal objections that complaint is not maintainable in the present form. That complainant has no locus standi or cause of action to file present complaint. Even bare perusal of complaint does not find mention any cause of action to the complainant. It is also added that on one hand the complainant has alleged that the rejection of part of his claim by opposite party No.1 is wrong and on other hand it has alleged that still opposite party No.1 is sitting on matter and claim case is pending before opposite party No.1. Though the claim case of complainant has already been decided finally and opposite party No.1 has already paid full and final amount of claim payable to the complainant, hence the complaint is vague, baseless, wrong, illegal, misuse of process of law and the opposite party No.1 has un-necessarily been made to suffer by litigation charges and as such complaint deserves to be dismissed with special costs. The complaint is bad for misjoinder of parties, as opposite party No.1 has been impleaded illegally and against facts, as it has already paid full and final amount to the complainant and now nothing remains due of complainant against the opposite party No.1. An admission is best evidence as against the person who makes it and in case the complainant wants to withdraw its admission, then it is very complicated matter and requires to be proved by leading oral and also documentary evidence, for which detailed cross examination is also required. Hence this Commission is not proper authority to decide this case and accordingly the complainant is liable to be directed to seek his legal redress through the competent court of law, if so desired. Similarly the opposite party No.2 and 3 have also been impleaded un-necessarily. That the parties are bound by terms and conditions of insurance policy. As per clause 7 of conditions on page no.8 of policy, if complainant raises any dispute regarding quantum then he can ask the Insurance Company for arbitration only. That the complainant had been using the bus in question for commercial purpose as such, he does not fall within the definition of consumer as provided under the C.P. Act. That this Commission has got no jurisdiction to try & entertain this complaint. The complainant has not come with clean hands and has concealed true & material facts. That the complainant is estopped from filing the present complaint due to his acts, conducts, admissions, omissions and acquiescence. It has been pleaded that as per the contents of complaint, it has come to the notice of opposite party No.1 that the vehicle in question was being plied under hire purchase agreement with opposite party No.3 and as such it would mean that the same was not in actual possession of the complainant. Thus in such like circumstances the complainant is not entitled to get any amount and as such it appears that even the amount in question has been received by the complainant by concealing the truth and wrongly and as such legally the opposite party No.1 is liable to seek refund of the amount already paid and is not liable to pay any amount to the complainant and reserves his right in this regard. The opposite party No. 1 has pleaded that the IDV of the vehicle as per policy is Rs.17,00,000/-. Final surveyor Sh RP Gupta assessed the loss as under:-Liability on Net of salvage basis: WITH RC WITHOUT RC IDV of the vehicle 17,00,000/- 17,00,000/- Less Wreck Value 2,50,000/- 1,25,000/- (-) 14,50,000/- 15,75,000/- Less Excess 1500/- 1500/- NET 14,48,500/- 15,73,500/- As per norms for settlement of total loss of vehicle 2nd valuation of wreck value of damaged vehicle is required, so Sh. Yashwinder Goyal was deputed who submitted his report for valuation of wreck value as Rs.2,80,000/-. Accordingly loss was finally settled as:- WITH RC WITHOUT RC IDV of the vehicle 17,00,000/- 17,00,000/- Less Wreck Value 2,80,000/- 1,40,000/- (-) 14,20,000/- 15,75,000/- Less Excess 1500/- 1500/- NET 14,18,500/- 15,58,550/- As vehicle was released on Superdari due to involvement of death in accident, the claim settlement on net of salvage without RC was not possible. In without RC settlement mode, RC is required to be disposed off which is not possible till final decision of court where third-party death case is lodged. Therefore, competent authority approved the claim of net of salvage with RC basis which means claim was paid for Rs.14,18,500/-and damaged vehicle with original RC left to insured considering its value Rs.2,80,000/- as per opinion of surveyor. On merits, the opposite party No.1 has reiterated its version as pleaded in legal objections and detailed above. After controverting all other avements of the complainant, the opposite party No. 1 prayed for dismissal of complaint. The opposite party No.2 in its separate written reply raised preliminary objections that the present complaint has been filed by the complaint being aggrieved against opposite party No.1 and opposite party No. 2 has been impleaded as Performa party. It has been pleaded that the complainant has availed the finance facility from opposite party No. 2 to purchase the vehicle. The entry of hypothecation is entered in the office of DTO/RTO and the entry is duly mentioned in the Registration Certificate of vehicle in question. At the time of availing the loan facility interalia the complainant had executed the consent letter in which it is clearly mentioned that in case of any loss or theft is occurred with regard to financed vehicle, the Insurance company will transfer the payment to the Bank instead of making payment to the borrower. In the present case, similar situation has taken place and accordingly opposite party No. 2 is entitled for claim amount being hypothecated owner of vehicle in question so as to adjust the insurance amount in the loan account of borrower/complainant. On merits, the opposite party No. 2 has reiterated its version as pleaded in legal objections and detailed above. In the end, the opposite party No. 2 has prayed for dismissal of complaint. The opposite party No. 3 in its separate written reply has pleaded that Harwinder Singh is the Regd. Owner of Bus No.RJ-18-PA-8866 duly entered in Hire Agreement with opposite party No. 3 The said bus met with an accident on 13.3.2019 and after the accident bus is not road worthy and as such, the complainant till date did not provide the bus to opposite party No. 3 under Hire Agreement. The opposite party No. 3 denied all other averments of the complainant and prayed for dismissal of complaint. In support of his complaint, the complainant has tendered into evidence his affidavit dated 19.2.2020 (Ex. C-1) and documents (Ex.C-2 to Ex.C-12). In order to rebut the evidence of complainant, the opposite party No.1 has tendered into evidence documents (Ex.OP-1/1 to Ex.OP-1/11). The opposite party No.2 has tendered into evidence affidavit of Vijender Singh dated 1.10.2020 (Ex.OP-2/1). The opposite party No.3 has tendered into evidence documents (Ex.OP3/1 to Ex.OP-3/3). The learned counsel for the complainant has argued that complainant is registered owner of Bus Regd. No. RJ-18-PA-8866, which was insured with opposite party No. 1. Unfortunately, said bus met with an accident on 13-3-2019 in the area of Beed Jhunjhunu. On intimation being given to opposite party No. 1, spot survey was conducted on 14-3-2019. Thereafter as per instructions of opposite party No. 1, the bus was brought to M/s Onkar Coach Builder, Bhadaur by spending Rs. 21,500/-. Thereafter surveyor Mr R P Gupta, was appointed for assessment of loss who carried out survey on 15-5-2019 and thereafter submitted his report on 21-9-2019 after delay of 4 months in utter violation of IRDA regulations 2000 rule (1) as per which surveyor or loss assessor shall submit his report to the insurer as expeditiously as possible, but not later than 30 days of his appointment. It is further argued that IDV of the bus was Rs. 17,00,000/-. However, on the basis of report of surveyor, opposite party No. 1 had paid Rs. 14,18,500/- to the complainant on 24-12-2019 after deducting Rs. 2,80,000/- as wreck value of vehicle and Rs. 1500/- less excess clause. It is further argued that surveyor has assessed the wreck value of the vehicle as Rs. 1,25,000/- and complainant signed consent for getting wreck for Rs. 2,50,000/- under coercion, which is against rules and regulations and against law settled by Hon'ble Supreme Court and National Commission. In the last, learned counsel for the complainant has prayed for directions to opposite party No. 1 to pay Rs. 2,80,000/- as wreck value plus Rs. 21,500/- as towing charges and damages and further prayed that Insurance Company be directed to withdraw its letter Ex. C-11, written to RTA, Bathinda, which is against law. In support of his submissions, learned counsel for complainant has placed reliance on the judgements of Hon'ble National Commission, New Delhi & Hon'ble Supreme Court of India : i) Case titled United India Insurance Co. Ltd., Vs. Vishesh Creations reported as II (2023) CPJ 124 (NC) ii) Case titled Wilhelm Textiles India Pvt. Ld., Vs. Oriental Insurance Co. Ltd. reported as III (2022) CPJ 380 (NC) iii) Case titled Sigma Diagnostics Ltd., Vs. Bajaj Allianz General Insurance Co. Ltd., reported as IV (2019) CPJ 539 (NC). iv) Case titled New India Assurance Co. Ld., Vs. Pradeep Kumar reported as IV(2009) CPJ 46 (SC). On the other hand, learned counsel for opposite party No. 2 argued that admission is best evidence as against the person who makes it and since the complainant has himself admitted to retain the wreck of the bus in question for Rs. 2,50,000/-, a such, he cannot go beyond his admission. It is further argued that value of the wreck was deducted on the basis of report and assessment made by Yashwinder Goyal & Co., vide its report Ex. OP-1/3 to the tune of Rs. 2,80,000/-. It is further argued that although the complainant has claimed towing charges to the tune of Rs. 21,500/-, however, as per policy of insurance, clause No. '3' only Rs. 2500/- is admissible which can be paid to the complainant and has prayed for dismissal of complaint. We have heard learned counsel for the parties and gone through the record. It is admited fact that bus owned by complainant was insured with opposite party No. 1 which met with an accident on 13-3-2019 regarding which FIR Ex. OP-1/2 was registered. It is further admitted fact that spot survey was carried out vide report Ex. C-4 on 14-3-2019. It is further admitted fact that surveyor M/s. R P Gupta & Company, had carried out assessment of loss on 15-5-2019 as per report Ex. C-6 and vehicle was declared as total loss. It is further admitted fact that opposite party had paid Rs. 14,18,500/- to the complainant on 24-12-2019 against IDV of Rs. 17,00,000/- after deducting wreck value of vehicle as Rs. 2,80,000/-. The only disputed question before this Commission is whether opposite party No. 1 is having any right to deduct Rs. 2,80,000/- as wreck value from the claim payable to complainant and whether the complainant is entitled to receive Rs. 21,500/- as towing charges and damages. As per report of surveyor Ex. C-6, the surveyor M/s. R P Gupta & Company, has in very clear words mentioned that wreck value of the bus in question is not more than 1,25,000/- and there are no buyers for the said bus. However, it is also mentioned that complainant is ready to retain the vehicle with R.C. being on superdari for Rs. 2,50,000/-. It is further mentioned that complainant is entitled to receive Rs. 2500/- as towing charges instead of Rs. 21,500/- as claimed by complainant as per Ex. C-5. However, instead of settling the claim on the basis of report of Ex. C-6 of M/s. R P Gupta & Company, Insurance Company with malafide intention deputed another surveyor i.e. Yashwinder Goyal & company, who assessed the wreck value as Rs. 2,80,000/- vide his report Ex. OP-1/3. Therefore, this Commission is of the view that since the surveyor had already assessed the value of the wreck as Rs. 1,25,000/- as per report Ex. C-6 and as mentioned that there is no buyer for the wreck and it is only complainant who is interested to retain the wreck as the vehicle is on superdari, in that case, act of opposite party No. 1 of having deputed another surveyor Yashwinder Goyal & Company is totally arbitrary and seems to have been appointed only with a motive to deprive the complainant of his rightful claim. Even this Commission is of the considered opinion that complainant has given his consent to retain the wreck under compelled circumstances as the vehicle was already on superdari and it was not possible to transfer the vehicle in the name of any other person. As such, this Commission is of the view that deduction of Rs. 2,80,000/- as wreck value by opposite party No. 1 is totally unjustified. So far as question of towing charges is concerned, the opposite party No. 1 has only allowed only Rs. 2500/- against Rs. 21,500/- spent by complainant as towing charges. The opposite party No. 1 has denied the said claim very cleverly on the basis of clause No. 3 of the policy of Insurance, but even amount of Rs. 2500/- was also not given to the complainant. However, a perusal of said terms and conditions shows that said terms and conditions are written in very small words and are not readable properly. Moreover, the opposite party No. 1 has not claimed that said terms and conditions were explained to the complainant. As such, this Commission is of the view that complainant is entitled to Rs. 21,500/- as towing charges as per Ex. C-5 from opposite party No. 1. A perusal of file shows that opposite party No. 1 illegally and arbitrarily written a letter to RTA, Bathinda, on 7-1-2020 which is Ex. C-11, to the effect that registration certificate of bus in question should not be transferred in the name of any person except insurer United India Insurance Co. Ltd., Branch Bathinda. The complainant has replied the said letter and had even requested the opposite party to withdraw the said letter vide reply dated 20-02-2020 Ex. C-12, but till today said letter has not been withdrawn by opposite party No. 1 deliberately and willingly to harass the complainant for none of his fault. Hence, writing of letter Ex. C-11 by opposite party No. 1 is totally arbitrary as opposite party No. 1 has already obtained legal opinion dated 13-09-2019 Ex. OP-1/7 as per which Sh. Sunder Gupta, Advocate, has opined that vehicle be given to the complainant alongwith RC but still opposite party No. 1 had written letter Ex. C-11 against legal advice. Thus, this Commission is of the view that said letter has been written by opposite party No. 1 intentionally and deliberately to harass the complainant for none of his fault. Accordingly by relying upon the evidence on record and judgements referred above, present complaint is partly allowed with following directions : - 1) Opposite party No. 1 is directed to refund the amount of Rs. 30,000/- to complainant deducted on account of wreck value out of total amount of Rs. 2,80,000/-. 2) Opposite party No. 1 is directed to pay Rs. 2500/- as towing charges to the complainant. 3) Opposite party No. 1 is directed to withdraw letter dated 7-1-2020 written to RTA, Bathinda (Ex. C-11) and write a fresh letter for cancellation of registration certificate of the bus after release of the R.C. from the Trial Court where trial is pending. 4) Since the claim was settled by Insurance Company after considerable delay and opposite party No. 1 has intentionally and deliberately written letter dated 7-1-2020 to RTA, Bathinda, to harass the complainant, as such, opposite party No. 1 is directed to pay damages to the tune of Rs. 20,000/- to the complainant on account of harassment, mental tension, agony and Rs. 5,000/- as cost of litigation. 5) The amount of Rs. 30,000/- plus Rs. 2500/- shall carry interst @9% p.a. w.e.f 21-9-2019 i.e. date of report of surveyor. The compliance of this order be made by opposite party No.1 within 45 days from the date of receipt of copy of this order. The complaint could not be decided within the statutory period due to heavy pendency of cases. Copy of order be sent to the parties concerned free of cost and file be consigned to the record room. Announced:- 08-06-2023 (Lalit Mohan Dogra) President (Shivdev Singh) Member
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