Order by:
Sh.Amrinder Singh Sidhu, President
1. The complainant has filed the instant complaint under section 12 of the Consumer Protection Act, 1986 (now under section 35 of the Consumer Protection Act, 2019) on the allegations that the complainant got his car insured bearing RC No.PB-29X-5813 with Opposite Parties vide policy No.2012043117P113169689 for a sum of Rs.6,50,000/- for the period w.e.f. 16.12.2017 to 15.12.2018. The complainant alleges that said insured vehicle met with an accident and due intimation was given to the Opposite Parties in this regard and said vehicle was got repaired under the intimation to Opposite Parties from G.S.Gaidu Motors and a sum of Rs.99,765/- was spent by the complainant on account of repair charges of insured vehicle. Thereafter, the complainant lodged the claim for the reimbursement of his bills, but the Opposite Parties repudiated the claim of the complainant. Thereafter, the complainant approached the Opposite Parties time and again, but the Opposite Parties did not pay any heed to the request of the complainant. Due to the aforesaid illegal and unwarranted acts of the Opposite Parties, the complainant suffered huge mental tension and agony. In this way, said conduct of the Opposite Parties clearly amounts to deficiency in service and as such, the Complainant is left with no other alternative but to file the present complaint. Vide instant complaint, the complainant has sought the following reliefs.
a) Opposite Parties may be directed to pay the sum of Rs.99,765/- in respect of the policy in question alongwith interest @ 12% per annum from the date of payment till its realization and Rs.50,000/- as compensation on account of mental tension, physical harassment or any other relief to which this District Consumer Commission may deem fit be also granted.
2. Opposite Parties appeared through counsel and contested the complaint by filing the written version on the ground inter alia that the complaint is not maintainable; that there is no deficiency in service on the part of the Opposite Parties and that the complaint is absolutely false and frivolous. The true facts are that the complainant got insured his vehicle bearing RC No.PB-29X-5813 with Opposite Parties vide policy No.2012043117P113169689 for the period w.e.f. 16.12.2017 to 15.12.2018 and said vehicle met with an accident on 18.09.2018 and the complainant intimated the Opposite Parties about the accident on 19.09.2018 vide claim intimation and also filed the Motor Claim Form and after receiving the claim intimation, the Opposite Parties immediately appointed Sh.Manoj Goyal Surveyor and Loss Assessor to investigate the claim and the claim was investigated and said surveyor submitted his report dated 29.10.2018 and remarked that the complainant holds two driving licenses at same time which is the clear cut violation of the Motor Vehicle Act and terms and conditions of the insurance policy. One driving license bearing No.PB-2920080015629 and other license bearing No.4322/BPA placed on record. After going through the claim file and surveyor report, the Opposite Parties repudiated the claim of the complainant vide letter dated 01.11.2018 and hence, there is no deficiency in service on the part of the Opposite Parties. Moreover, the surveyor has assessed the loss to the extent of Rs.30,700/- subject to policy terms and conditions. As such, the Opposite Parties repudiated the claim of the complainant after thorough investigation. On merits, the Opposite Parties took up almost the same and similar pleas as taken up by them in the preliminary objections. Remaining facts mentioned in the complaint are also denied and a prayer for dismissal of the complaint was made.
3. In order to prove his case, the complainant has tendered into evidence his affidavit Ex.CW1/A alongwith copies of documents Ex.C1 to Ex.C8 and closed his evidence.
4. On the other hand, to rebut the evidence of the complainant, Opposite Parties tendered into evidence affidavit of Ms.Kamaljit Kaur Ex.Ops1 alongwith copies of documents Ex.OP2 to Ex.OP12 and closed the evidence on behalf of the Opposite Parties.
5. We have heard the ld.counsel for the parties, perused the written submissions filed by the parties and gone through the documents placed on record.
6. During the course of arguments, ld.counsel for the Complainant has mainly reiterated the facts as narrated in the complaint and contended that the written version filed on behalf of Opposite Party has not been filed by an authorized person. Therefore, the written version so filed is not maintainable. Opposite Party is limited Company and written version has been filed on the basis of special power of attorney given to ld.counsel for the Opposite Party. Further contended that the complainant got his car insured bearing RC No.PB-29X-5813 with Opposite Parties vide policy No.2012043117P113169689 for a sum of Rs.6,50,000/- for the period w.e.f. 16.12.2017 to 15.12.2018. The complainant alleges that said insured vehicle met with an accident and due intimation was given to the Opposite Parties in this regard and said vehicle was got repaired under the intimation to Opposite Parties from G.S.Gaidu Motors and a sum of Rs.99,765/- was spent by the complainant on account of repair charges of insured vehicle. Thereafter, the complainant lodged the claim for the reimbursement of his bills, but the Opposite Parties repudiated the claim of the complainant. Thereafter, the complainant approached the Opposite Parties time and again, but the Opposite Parties did not pay any heed to the request of the complainant. Due to the aforesaid illegal and unwarranted acts of the Opposite Parties, the complainant suffered huge mental tension and agony. In this way, said conduct of the Opposite Parties clearly amounts to deficiency in service.
7. On the other hand, ld.counsel for the Opposite Party has repelled the aforesaid contention of the ld.counsel for the complainant on the ground that that there is no deficiency in service on the part of the Opposite Parties and that the complaint is absolutely false and frivolous. Further contended that in fact the complainant got insured his vehicle bearing RC No.PB-29X-5813 with Opposite Parties vide policy No.2012043117P113169689 for the period w.e.f. 16.12.2017 to 15.12.2018 and said vehicle met with an accident on 18.09.2018 and the complainant intimated the Opposite Parties about the accident on 19.09.2018 vide claim intimation and also filed the Motor Claim Form and after receiving the claim intimation, the Opposite Parties immediately appointed Sh.Manoj Goyal Surveyor and Loss Assessor to investigate the claim and the claim was investigated and said surveyor submitted his report dated 29.10.2018 and remarked that the complainant holds two driving licenses at same time which is the clear cut violation of the Motor Vehicle Act and terms and conditions of the insurance policy. One driving license bearing No.PB-2920080015629 and other license bearing No.4322/BPA placed on record. After going through the claim file and surveyor report, the Opposite Parties repudiated the claim of the complainant vide letter dated 01.11.2018 and hence, there is no deficiency in service on the part of the Opposite Parties. Moreover, the surveyor has assessed the loss to the extent of Rs.30,700/- subject to policy terms and conditions. As such, the Opposite Parties repudiated the claim of the complainant after thorough investigation..
8. Perusal of the contention of the ld.counsel for the complainant shows that the written version filed on behalf of Opposite Party has not been filed by an authorized person. Therefore, the written version so filed is not maintainable. The Opposite Party is limited Company and written version has been filed on the basis of special power of attorney given to ld.counsel for the Opposite Party. In this regard, Hon’ble Supreme Court of India in a judgment (2011)II Supreme Court Cases 524 titled as “State Bank of Travancore Vs. Kingston Computers India Pvt. Ltd.” and in para no.11 of the judgment, has held that
“the plaint was not instituted by an authorized person. On the plea that one authority letter dated 02.01.2003 was issued by Sh. R.K.Shukla in favour of Sh. A.K.Shukla. Further plaint failed to place on record its memorandum/articles to show that Sh. R.k.Shukla has been vested with the powers or had been given a general power of attorney on behalf of the Company to sign, verify and institute the suit on behalf of the Company.”
Similar proposition came before the Hon’ble Delhi High Court in “Nibro Ltd. Vs. National Insurance Co. Ltd.”, 2 (2005) 5SCC 30 that the
“bear authority is not recognized under law and ultimately, it was held that the plaint was not instituted by an authorized person. Here also appellant has not placed on record any resolution passed by any Board of Director in favour of Mr. Soonwon Kwon and that he was further authorised to delegate his power in favour of any other person. Further there is no memorandum/articles of the Company to show that Mr. Soonwon Kwon is one of the Director of the Company. In the absence of that evidence on record we cannot say that the special power of attorney given by Director Soonwon Kwon is a competent power of attorney issued in favour of Sh. Bhupinder Singh. In the absence of any resolution of the Company or any memorandum/articles of the Company to show that Sh. Soonwon Kwon is Director and that he was further authorised to issue power of attorney in favour of Sh. Bhupinder Singh.”
Recently our own Hon’ble State Commission, Punjab Chandigarh in FAO No.1235 of 2015 decided on 25.01.2017 in case titled as L.G.Electronics India Private Limited Vs. Sita Ram Chaudhary also held that the plaint instituted by an unauthorized person has no legal effect.
9. For the sake of arguments, for the time being, if the written reply filed by Opposite Party is presumed to be correct, the next plea raised by Opposite Party is that as per the report of surveyor dated 29.10.2018, he remarked that the complainant holds two driving licenses at same time which is the clear cut violation of the Motor Vehicle Act and terms and conditions of the insurance policy. One driving license bearing No.PB-2920080015629 and other license bearing No.4322/BPA placed on record. After going through the claim file and surveyor report, the Opposite Parties repudiated the claim of the complainant vide letter dated 01.11.2018. Moreover, the surveyor has assessed the loss to the extent of Rs.30,700/- subject to policy terms and conditions. But perusal of the report of surveyor Ex.OP5, said surveyor has not clearly mentioned on which account or basis, he has assessed the said less amount of Rs.30,700/- against the loss of Rs.99,765/- occasioned by the complainant on repair of his insured vehicle. In this regard, Hon’ble State Consumer Disputes Redressal Commission, Punjab at Chandigarh has recently held in First Appeal No.370 of 2019 decided on 19.01.2022 in case Vishav Jindal Versus ICICI Lombard General Insurance Company Limited, that the surveyor’s report is not the last and final word. It is not that sacrosanct that it cannot be departed from; it is not conclusive. The approved surveyor’s report may be basis or foundation for settlement of a claim by the insurer in respect of the loss suffered by the insured but surely such report is neither binding upon the insurer nor insured. The relevant para of the judgement passed by Hon’ble State Consumer Disputes Redressal Commission, Punjab at Chandigarh is reproduced as under:-
“We are of the opinion that if there are some flaws in the surveyor’s report, it is not binding upon the insured/insurer. We are further fortified with the judgment of the Hon’ble Supreme Court reported in (2009) CPJ 46 (SC) titled “New India Assurance Company Limited v. Pardeep Kumar” wherein it has been laid First Appeal No. 370 of 2019 12 down that surveyor’s report is not the last and final word. It is not that sacrosanct that it cannot be departed from; it is not conclusive. The approved surveyor’s report may be basis or foundation for settlement of a claim by the insurer in respect of the loss suffered by the insured but surely such report is neither binding upon the insurer nor insured’
Hence, keeping in view the aforesaid judgement of Hon’ble Supreme Court reported in (2009) CPJ 46 (SC) as well as Hon’ble State Commission, Punjab at Chandigarh (supra), the aforesaid report of the surveyor can not be deemed to be correct.
10. Further, main plea raised by the Opposite Parties for the repudiation of the claim of the complainant is that the complainant holds two driving licenses at same time which is the clear cut violation of the Motor Vehicle Act and terms and conditions of the insurance policy. One driving license bearing No.PB-2920080015629 and other license bearing No.4322/BPA placed on record and after going through the claim file and surveyor report, the Opposite Parties repudiated the claim of the complainant vide letter dated 01.11.2018. Bare perusal of driving license bearing No.PB-2920080015629 (Ex.OP6), it is for driving the Transport/ non transport vehicle whereas other license bearing No.4322/BPA placed on record Ex.OP7, it is for driving Scooter/ Car only and in this way, the complainant could hold both the driving license at same time to drive the separate vehicles. However, we are of the view that even if the complainant has breached the terms and conditions of the policy in question by holding two driving licenses at same time, even then the Insurance Company ought to have settled the claim of the complainant on “non standard basis” even if some of the conditions of the insurance policy are not adhered by the insured. In this regard, we are supported with judgment in case titled National Insurance Company Limited versus Kamal Singhal IV (2010)CPJ297 (NC) wherein the Hon'ble National Consumer Disputes Redressal Commission, New Delhi relying upon various decisions of the National Consumer Disputes Redressal Commission in the matter of (1) National Insurance Company Ltd. v. J. P. Leasing & Finance Pvt. Ltd. (RP No. 643/2005), (2) Punjab Chemical Agency v. National Insurance Company Ltd. (RP No. 2097/2009), (3) New India Assurance Co. Ltd. v. Bahrati Rajiv Bankar, (RP) No. 3294/2009) and (4) National Insurance Company Ltd. v. Jeetmal, (RP No.3366/2009) and also judgment of the Hon'ble Apex Court in the matter of Insurance Company Versus Nitin Khandewal IV (2008) CPJ 1(SC), held the breach of condition of the policy was not germane and also held further that : “the appellant Insurance Company is liable to indemnify the owner of the vehicle when the insurer has obtained comprehensive policy to the loss caused to the insurer”. The Hon'ble Supreme Court has further held that; “even assuming that there was a breach of policy, the appellant Insurance Company ought to have settled the claim on “non-standard basis.” Hon'ble Apex Court in back drop of these features, in these cases, allowed 70% of the claim of the claimant on the “non-standard basis”. This view was again reiterated by the Hon'ble Apex Court in the matter of Amalendu Sahoo versus Oriental Insurance Company Limited. II(2010) CPJ 9(SC)=II (2010)SLT 672. Hon'ble National Commission in the case National Insurance Company Limited versus Kamal Singhal referred to above relying upon the law laid down by the Hon'ble Supreme Court has held that;
“there being a long line of decisions on this score, we have no option but to uphold the finding of Fora below with modification that the claim be settled on 'non-standard' basis”, in terms of the guidelines issued by the Insurance Company. In case petitioner company fails to carry out the direction contained therein, the amount payable on 'non-standard' basis, shall carry interest @ 6% p.a from the date of expiry of six weeks till the date of actual payment”.
11. In such a situation the repudiation made by Opposite Parties regarding genuine claim of the complainant appears to have been made without application of mind. It is usual with the insurance company to show all types of green pesters to the customer at the time of selling insurance policies, and when it comes to payment of the insurance claim, they invent all sort of excuses to deny the claim. In the facts of this case, ratio of the decision of Hon’ble Apex Court in case of Dharmendra Goel Vs. Oriental Insurance Co. Ltd., III (2008) CPJ 63 (SC) is fully attracted, wherein it was held that, Insurance Company being in a dominant position, often acts in an unreasonable manner and after having accepted the value of a particular insured goods, disowns that very figure on one pretext or the other, when they are called upon to pay compensation. This ‘take it or leave it’, attitude is clearly unwarranted not only as being bad in law, but ethically indefensible. It is generally seen that the insurance companies are only interested in earning the premiums and find ways and means to decline claims. In similar set of facts the Hon’ble Punjab & Haryana High Court in case titled as New India Assurance Company Limited Vs. Smt.Usha Yadav & Others 2008(3) RCR (Civil) Page 111 went on to hold as under:-
“It seems that the insurance companies are only interested in earning the premiums and find ways and means to decline claims. All conditions which generally are hidden, need to be simplified so that these are easily understood by a person at the time of buying any policy.The Insurance Companies in such cases rely upon clauses of the agreement, which a person is generally made to sign on dotted lines at the time of obtaining policy. Insurance Company also directed to pay costs of Rs.5000/- for luxury litigation, being rich.
12. Now come to the quantum of compensation. The complainant has claimed the repair charges amounting to Rs.99,765/- and in this regard, he has placed on record the bill Ex.C6 vide which he has paid the amount on account of repair charges. Hence, having regard to the position of the law, as has been laid down, by the Hon'ble Apex Court in the various decisions referred to here-in-above and also the view expressed by the Hon'ble National Commission, we are of the considered view that in the present case the complainant, if not entitled for the entire amount of repair charges, the Insurance Company definitely ought to have settled the complainant's claim on 'non-standard basis”, which in the facts and circumstances taking the assistance of the view expressed by the Hon'ble Apex Court and also by the Hon'ble National Commission, we allow 70% of the assessed amount on 'non-standard' basis” of the repair bills amount.
13. In view of the aforesaid facts and circumstances of the case, we allow the complaint of the Complainant partly and direct the Opposite Parties to make the payment of Rs.69,835.50 paisa i.e. Rs.69,835/- in round off (Rupees sixty nine thousands eight hundred and thirty five only) i.e. 70% of the bill amount of Rs.99,765/- to the Complainant alongwith interest @ 8% per annum from the date of filing the present complaint i.e. 22.04.2019 till its actual realization. Opposite Parties are also directed to pay the lump sum compensation to the complainant to the tune of Rs.10,000/- (ten thousands only) on account of harassment, mental tension and litigation expenses. The compliance of this order be made by the Opposite Parties within 45 days from the date of receipt of this order, failing which the complainant shall be at liberty to get the order enforced through the indulgence of this District Commission. Copies of the order be furnished to the parties free of cost. File be consigned to record room after compliance.
14. Reason for delay in deciding the complaint.
This complaint could not be decided within the prescribed period because the State Government has not appointed any of the Whole Time Members in this Commission for about 3 years i.e. w.e.f. 15.09.2018 till 27.08.2021 as well as due to pandemic of COVID-19.
Announced in Open Commission.
Dated:22.02.2022.
