DISTRICT CONSUMER DISPUTES REDRESSAL FORUM,<br /> BATHINDA (PUNJAB)<br /> <br /> C.C. No. 335 of 11.12.2008 Decided on : 23-07-2009 <br /> <br /> Jatinder Kumar Joshi S/o Som Nath Joshi, R/o H. No. 157, Green Avenue, Street No. 3/4, Behind Bharat Nagar, Bathinda. <br /> .... Complainant<br /> Versus<br /> <br /> 1. United India Insurance Co. Ltd., The Mall, Bathinda through its Divisional Manager.<br /> 2. United India Insurance Co. Ltd., Old Post Office Chowk, Malout through its Branch Manager.<br /> 3. Mahindra & Mahindra Financial Services Ltd., SCF No.5-6, Ist Floor, Opp. T.V Tower, Model Town, Phase-1, Bathinda through its Manager/Incharge. <br /> ..... Opposite parties<br /> <br /> Complaint under section 12 of the Consumer Protection Act, 1986<br /> <br /> QUORUM:-<br /> Sh. George, President <br /> Dr. Phulinder Preet, Member<br /> Sh. Amarjeet Paul, Member<br /> <br /> For the complainant : Sh. Naresh Garg, Advocate<br /> For the opposite parties : Sh. Sunder Gupta Advocate, counsel for <br /> opposite party No.1 & 2. <br /> Sh. K.K Vinocha Advocate, counsel for opposite party No 3<br /> <br /> O R D E R.<br /> GEORGE, PRESIDENT:- <br /> 1. Instant complaint has been filed by Sh. Jatinder Kumar Joshi complainant under section 12 of the Consumer Protection Act, 1986 (Here-in-after referred to as the 'Act') seeking direction from this Forum to the opposite parties to pay him the claim amount of Rs.2,98,317/- alongwith interest @ 18% P.A and Rs. 25,000/- on account of mental agony and pains. He has also claimed Rs. 10,000/- as litigation expenses.<br /> 2. Briefly stated, the case of the complainant is that he is the owner of Mahindra Scorpio Jeep bearing registration No. PB-03-N-2324. The said vehicle was purchased by him after obtaining loan from opposite party No. 3 and the same is hypothecated with them. He got the vehicle comprehensively insured with opposite parties No. 1 & 2 vide Insurance Cover Note No. 557386 for the period 11.6.2006 to 10.6.2007. On 20.1.2007, this vehicle met with an accident at about 10 PM with an unknown truck in the revenue limits of Police Station Sadar, Phagwara and the vehicle was totally damaged. FIR No. 21 dated 29.1.2007 was got registered in Police Station Sadar, Phagwara and intimation regarding the accident was also given immediately to opposite parties No. 1 & 2. At the time of accident, vehicle was being driven by Ranjit Singh. Opposite parties No. 1 & 2 deputed Spot Surveyor of Arun Kumar & Co. of Jallandhar who visited the spot on 21.01.2007 and submitted his report to them(Opposite parties No. 1 & 2). He also instructed the complainant to shift his vehicle at the authorised Service Centre of Mahindra Company. Accordingly, vehicle was shifted at M/s. Balak Autos Pvt. Ltd., Ludhiana (Authorised Service Centre of Mahindra & Mahindra Co.) after taking the Sapurdari from the Hon'ble court under the instructions and supervision of Surveyor of opposite parties No. 1 & 2 with the help of another vehicle. Complainant had to pay Rs. 3,500/- as shifting charges. Thereafter, opposite parties deputed final surveyor of R.P Bhasin & Co. from Ludhiana. Under his instructions, M/s. Balak Auto Pvt. Ltd. issued the estimates which were directly issued to M/s. R P Bhasin & Co. The repair of the vehicle was started under the instructions and supervision of the surveyor of opposite parties No. 1 & 2. The original bills for Rs. 2,98,317/- were submitted to opposite parties No. 1 & 2 through their Surveyor. Both the surveyors at the time of survey, obtained signatures of the complainant on different five/six papers, blank vouchers and gave the assurance that the full claim amount would be paid to him immediately after receiving the bills. Complainant asserts that the surveyors are under the thumb of the Insurance Companies and they are to oblige their master i.e. opposite parties No. 1 & 2 from where they have to obtain business. Complainant alleges that neither Surveyors nor opposite parties ever sent him any spot survey report and final survey report, although it is mandatory as per the rules of I.R.D.A and as per rules of contract. Complainant alleges that the opposite parties and their surveyors demanded unnecessary documents like the English translation of the FIR etc. The complainant is living in Punjab and the offices of the opposite parties are also situated in Punjab, but their officials refused to accept attested copy of the FIR in Punjabi. Complainant asserts that vehicle was not being used on hire at the time of accident and the driver and other persons travelling in the vehicle were not under the influence of any alcohol. He repeatedly made requests and also wrote letters dated 12.5.2007, 24.5.2007, 6.9.2007, 17.9.2007 and 4.10.2007 to the opposite parties to pay him the claim amount, but no satisfactory reply has been given. Sh. Robin Paul occupant of the vehicle lodged the claim of the injuries he received in the accident with the M.A.C.T, Bathinda and also gave his statement in the presence of counsel for opposite parties No. 1 & 2 that the vehicle was not being used on hire and that the occupants of the vehicle had not consumed alcohol, as they were going on a Jagran and Mata Chintpurni. Opposite parties after making inquiries, receipt of all the papers and statement of said Robin Paul have repudiated the claim as no claim vide letter dated 12.11.2008 on illegal grounds without any proof and after lapse of one year and ten months from the date of accident. Complainant asserts that opposite insurance company is service provider company and it is supposed to settle the claim within three/four months as per the rules and the law settled by Hon'ble Supreme Court. Due to non-payment of the claim amount, complainant has suffered mental agony, pains and suffering. In these circumstances, complainant alleges deficiency in service on the part of the opposite parties.<br /> 3. Opposite parties No. 1 & 2 filed a joint reply taking the legal objections that complainant got the vehicle insured for private/personal use only. However, at the time of alleged accident, vehicle was being plied as Taxi for commercial purposes on hire and reward against the terms and conditions of the policy. In this way, insured has violated the terms and conditions of the policy; at the time of alleged accident, Ranjit Singh driver of the insured vehicle was under the influence of intoxicating liquor/drug and he driven the vehicle rashly and negligently and caused the accident and has violated the terms and conditions of the policy; the insured vehicle was authorised to carry seven persons only and at the time of alleged accident, it was carrying nine passengers which has resulted in the accident and in this way, the insured has violated the terms and conditions of the policy; intricate questions of law and facts are involved in this complaint which require voluminous evidence for determination, which is not possible in the summary proceedings under the Act; after receipt of intimation regarding the alleged accident, M/s. Arun Kumar & Company was deputed to inspect the vehicle for spot survey who has submitted his report on 25.2.2007 and thereafter, final survey was conducted by M/s. R.P Bhasin and Company, who has submitted his report dated 22.3.2007. As per the said final survey report, the loss to the vehicle has been assessed to the tune of Rs. 2,46,846/- and salvage value of the vehicle has been assessed as Rs. 12,000/- only. Although Insurance Company is not liable to pay any compensation to the complainant as the complainant has violated the terms and conditions of the policy, yet if this Forum comes to the conclusion that the Insurance Company is liable to pay any compensation, then the liability of Insurance Company is limited to Rs. 2,46,846/- subject to deduction of salvage as per final survey report; the claim of the complainant has been rightly repudiated vide letter dated 12.11.2008 after receipt of report of Mr. Satish Kumar Bansal, Investigator who in his report has confirmed that the vehicle in question was being plied as Taxi at the time of alleged accident for hire and reward and the driver of the vehicle was under the influence of heavy dose of liquor; complainant has got no locus-standi and cause of action to file the present complaint; there is no deficiency in service on their part; the amount of compensation claimed is highly excessive and exorbitant and complaint is false and frivolous. On merits, opposite parties No. 1 & 2 admit that Mahindra Scorpio vehicle of the complainant bearing registration No. PB-03-N-2324 was insured with them for the period from 11.6.2006 to 10.6.2007 vide Cover Note No. 557386. Opposite parties No. 1 & 2 have reiterated the facts they have raised in the preliminary objections. The remaining averments in the complaint have been denied and a prayer has been made for its dismissal with special costs.<br /> 4. Opposite party No. 3 filed separate reply taking legal objections that replying opposite party is entitled to receive the amount of compensation on behalf of the complainant from the insurer in terms of loan agreement took place between the complainant and replying opposite party and also as per terms and conditions of insurance policy. On merits, opposite party No. 3 admit that complainant purchased the vehicle after obtaining loan from the replying opposite party. It is averred that replying opposite party has not received the policy with complete terms and conditions neither from the complainant nor from opposite parties No. 1 & 2. It has been asserted that replying opposite party is not aware about the fact of accident nor copy of F.I.R etc. has been supplied to them. Complainant has dealt with his claim in question directly with opposite parties No. 1 & 2 without any intimation and involvement of replying opposite party in any manner whatsoever. The remaining averments in the complaint have been denied and a prayer has been made for its dismissal.<br /> 5. In order to prove respective assertions, complainant and opposite parties have led evidence. Complainant tendered in evidence his own affidavit Ex.C.1, photocopy of insurance cover note Ex.C.2, photocopy of registration certificate Ex.C.3, photocopy of FIR Ex.C.4, photocopies of statements of Sh. Joginder Singh and Balwinder Singh Ex.C.5 & Ex.C.6 respectively; photocopy of release warrant Ex.C.7, photocopies of affidavits of Joginder Singh and Balwinder Singh which are Ex.C.8 & Ex.C.9 & Ex.C.25 & Ex.C.26 respectively; photocopies of affidavits of the complainant Ex.C.11 & Ex.C.24, photocopies of letters dated 12.5.2007, 24.5.2007, 6.9.2007, 17.9.2007, 4.10.2007, 12.11.2008, 3.6.2008, 12.9.2006, 10.9.2006, 15.5.2008, 25.3.2008 & 10.9.2007 Ex.C.10, Ex.C.12 to Ex.C.14, Ex.C.21 to Ex.C.23, Ex.C.27, Ex.C.28 and Ex.C.31 respectively; photocopy of survey report dated 25.1.2007 Ex.C.17, photocopy of final survey report dated 22.3.2007 Ex.C.18, photocopy of invoice Ex.C.19, photocopy of claim form Ex.C.20, photocopy of award dated 31.10.2008 Ex.C.29, photocopy of statement of Sh. Robin Paul Ex.C.30, photocopy of execution application dated 8.12.2008 Ex.C.32, photocopies of orders dated 14.1.2009, 27.1.2009 and 10.2.2009 Ex.C.33 to Ex.C.35 respectively, photocopy of report of Ahlmad and Nazar dated 11.12.2008 Ex.C.36 and photocopy of D.R.O Ex.C.37.<br /> 6. To controvert the evidence led by the complainant, opposite parties produced affidavit Ex.R.1 of Sh.Gaurav Vinocha, Legal Executive of opposite party No.3, photocopy of loan agreement dated 13.7.2005 Ex.R.2, photocopy of statement of account Ex.R.3, affidavits of S/Sh. Balwinder Singh, Divisional Manager of opposite part No.4, Satish Kumar Bansal, Investigator, Arun Kumar, Surveyor & Rishi Bhasin, Surveyor Ex.R.4 to Ex.R.6 & Ex.R.10 respectively; photocopy of report U/S 173 Cr.P.C Ex.R.7, photocopy of statement of Sh. Robin Paul Ex.R.8 and photocopy of Insurance Policy Ex.R.9. <br /> 7. We have heard the learned counsel for the parties and gone through the entire record of the case very carefully.<br /> 8. On the basis of averments and also various documents brought on record by the complainant and the opposite parties to prove the respective allegations, it can be safely concluded that the ownership of the vehicle, its insurance with opposite parties No. 1 & 2 and accident of the vehicle is not in dispute. As per the report of the surveyor M/s. R P Bhasin & Company Ex. C-18, he has assessed the loss payable amounting to Rs. 2,46,845.73 whereas according to the estimate of the authorised centre of Mahindra Company, the actual loss incurred amounts to Rs. 2,98,317/-. This is the one aspect of the case whereas the opposite parties No. 1 & 2 have repudiated even the amount of loss assessed by the surveyor as per his report Ex. C-18. As per repudiation of claim letter dated 12-11-2008 Ex. C-16, the claim of the complainant was repudiated on the grounds that vehicle was being used as 'taxi' and that the vehicle was being driven by Sh. Ranjit Singh, driver under the influence of liquor at the time of accident as one of the occupant of the vehicle at the time of accident namely Sh. Robin Paul stated to have admitted before Sh. Satish Kumar Bansal, Investigator of opposite parties No. 1 & 2 that the vehicle was being run by the complainant as 'taxi' for hire purposes and the said Sh. Robin Paul got the FIR registered in which he narrated the cause of accident of vehicle that the vehicle was being driven by Ranjit Singh under the influence of liquor. In fact the perusal of record reveals that the accident of the vehicle occurred on 20-01-2007 and FIR Ex. C-4 was lodged against the driver of the vehicle on 29-01-2007 i.e. after about 9 days of the accident whereas the surveyor of opposite parties No. 1 & 2 examined the vehicle on the spot on 21-01-2007. As discussed above, opposite parties No. 1 & 2 have repudiated the claim of the complainant vide letter Ex. C-16 on the basis of investigations carried out by Sh. Satish Kumar Bansal, Investigator of opposite parties No. 1 & 2 who has filed his affidavit in evidence Ex. R-5. According to para No. 4 of his affidavit, he has recorded his finding on the basis of statement of Sh. Robin Paul, occupant of the vehicle at the time of accident who in his statement in the FIR has stated that driver Ranjit Singh was under the influence of liquor while going from Bathinda to Tanda and he consumed more liquor after stopping the vehicle on the way and the Investigator also concluded in para No. '3' of his affidavit Ex. R-5 that at the time of accident on 20-01-2007, the aforesaid vehicle was being plied as 'taxi' as the said insured vehicle was carrying 9 passengers from Bathinda to Tanda on hire and reward basis. He has placed on record the statement of Sh. Robin Paul as Ex. R-8. The complainant has filed his own affidavit Ex. C-1 and photocopies of statements of Joginder Singh and Balwinder Singh Ex. C-5 & Ex. C-6 alongwith their respective affidavits Ex. C-8 & Ex. C-9. The statement of Sh. Robin Paul recorded by police Ex. R-8 and FIR Ex. R-7, do find mention about the fact that the driver of the vehicle consumed liquor and the vehicle was taken on hire basis whereas claim of the complainant is that these statements have not been recorded properly and to controvert these statements, the complainant has brought on record the affidavits of Sh. Joginder Singh and Balwinder Singh Ex. C-8 & Ex. C-9 which reveal the position totally otherwise wherein both these witnesses have very clearly stated that they are friendly with the complainant and they travelled in the vehicle for social and religious purposes and none of them including driver consumed liquor as they were going to pay obeisance to temple of 'Mata'.<br /> 9. This aspect of the case also find support from the findings Ex C-29 arrived at by Motor Accident Claims Tribunal, Bathinda in a claim petition arising out of this accident filed by Sh. Robin Pal one of the occupant wherein in respect of issue No. 5 i.e. whether violation of the terms and conditions of the Insurance policy committed ? The Tribunal after recording detailed evidence in the matter in para No 5 of the award have concluded that :<br /> “ Onus to prove this issue was upon respondent No. 3 i.e United India Insurance Company Limited, in the present case. Learned counsel for respondent No. 3 has argued that respondent No. 3 is not liable in any manner as the vehicle in question was a private vehicle which was being used as a taxi at the time of accident in violation of the terms of the policy due to which insurance company stands absolved of entire liability. It has been held that however, I am unable to agree with the learned counsel for respondent No. 3 as respondent No. 3 has utterly failed to prove this contention. Sh. Robin Paul in his affidavit has clearly stated that the vehicle was boarded for social purpose and was not hired for the journey. Similar is the statement of driver RW1. Allegations of the Insurance company simply amount to suggestion which stands denied. Insurance company has not led any positive evidence to establish that the vehicle had infact been hired for the journey and had not been socially lent for the trip. Under these circumstances, no violation of any kind is made out. So this issue was decided against opposite parties No.3 i.e. opposite parties No. 1 & 2 in the present case.”<br /> 10. Otherwise also, no positive evidence has been brought on record by opposite parties No. 1 & 2 except FIR Ex. C-4 and the statement of Sh. Robin Paul Ex. R-8 recorded by Investigator of opposite parties No. 1 & 2 that driver of the vehicle consumed liquor which stand fully controverted from the affidavit of S/Sh. Joginder Singh and Balwinder Singh Ex. C-8 & Ex C-8 respectively. Even otherwise, the words like heavily drunk or smell of alcohol from breath etc., cannot be held that person to be under the influence of intoxicating substance at the time of driving the vehicle, unless there was any clear cut medical finding to that effect as has been held by the Hon'ble Chattisgarh State Commission, Raipur in the case titled Life Insurance Corporation of India & Another Vs. Seema Aggarwal I(2009) CPJ 546. <br /> 11. It is also settled position of law as emerged from Section 185 of the Motor Vehicle Act that driving by a drunken person or by a person under the influence of drugs whoever, while driving or attempting to drive a motor vehicle has in his blood alcohol exceeding 30 mg. per 100 ml. of blood detected in a test by a breath analyser or is under the influence of a drug to such an extent as to be incapable of exercising proper control over the vehicle. <br /> 12. Admittedly, there is no evidence brought on record by opposite parties No. 1 & 2, so as to satisfy us that the driver of the vehicle was under the influence of liquor at the time of accident and that the cause of accident was none else except that the driver had taken liquor and he was under its influence.<br /> 13. The repudiation of the claim of the complainant by opposite parties No. 1 & 2 as per Ex. C-16 that the vehicle was being used for hire purposes as taxi, also stands repelled in view of the affidavits of S/Sh. Joginder Singh and Balwinder Singh Ex. C-8 & Ex. C-9 respectively brought on record by the complainant. Opposite parties No. 1 & 2 have definitely repudiated the claim of the complainant without any sufficient reason and they are deficient in providing service as per required norms to the complainant. The record reveals that the accident occurred on 20-01-2007 and claim of the complainant was repudiated on 12-11-2008 vide Ex. C-16, i.e. after about two years which itself amounts to deficiency in service. The Hon'ble national Commission as well as Hon'ble Apex Court have held in various orders that the Insurance Companies being service providers to their consumers are required to settle the insurance claims within a period of approximately not more than three months whereas in the present case, opposite parties No. 1 & 2 shown their inaction even in finally repudiating the claim for about two years and withhold the claim without any sufficient reason putting the consumer to harassment, mental tension and agony. This shows callous attitude of opposite parties No. 1 & 2 towards their consumer. In the present case, the surveyor of opposite parties No. 1 & 2 assessed the loss to the vehicle of the complainant to the tune of Rs. 2,46,846/-. Even this amount has been withheld which appears to be totally invalid and unsustainable.<br /> 14. In view of the above discussion, the complaint is accepted against opposite parties No. 1 & 2 with cost of Rs. 500/- and is dismissed qua opposite parties No. 3. Opposite parties No. 1 & 2 are directed to do as under :-<br /> i) Pay to the complainant Rs. 2,46,846/- alongwith interest @ 9% P.A. from 21-04-2008 (The date calculated on expiry of three months from the date of lodging of claim/ intimation, a period required for processing the claim in an effective manner in normal course) till payment alongwith compensation for mental tension and harassment to the tune of Rs. 2,000/- besides litigation expenses to the tune of Rs. 500/- after deducting an amount of Rs. 12,000/- being salvage value as assessed by surveyor, within a period of 45 days from the date of receipt of copy of this order. <br /> Copy of this order be sent to the parties concerned free of cost and file be consigned.<br /> Pronounced :<br /> 23-07-2009 <br /> (George)<br /> President<br /> <br /> <br /> (Dr. Phulinder Preet)<br /> Member <br /> <br /> (Amarjeet Paul) Member