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 insured his car make Hyundai i20, Asta (O) Model 2016 Engine No.214975, Chassis Number 325339 bearing RC No.PB 29Y-7218 from Opposite Parties vide policy No. 2008013116N100331827 valid for the period w.e.f. 16.01.2017 to 15.01.2018  with Insured Declared Value of Rs.9,05,834/-. On 01.02.2018, the complainant came to know that the insurance of the vehicle was expired and he immediately made telephonic call to one employee of Opposite Parties namely Abhishek Goyal and he came to the complainant alongwith photographer and the photographer physically inspected the car and clicked some photographs and thereafter on 01.02.2018 after pre inspection, the Opposite Parties insured the vehicle of the complainant vide policy No. 2012043117P115661213. Not only this, on 2.2.2018 the complainant also got his Bullet Motor Cycle insured from the Opposite Parties. The complainant further alleges that on 18.03.2018 he alongwith his cousin Ravinder Singh were going to Shri Amritsar Sahib to pay the obeisance at holy Golden Temple and when they were on the way said car met with an accident on Jalalabad-Kot Ise Khan Road at about 9.30 PM and with the grace of god, nothing happened to the complainant except nose bleeding and small injuries occurred to his cousin. Air bags of car opened, but the vehicle  was damaged from front due to collision with stand tree. Thereafter, with the help of relatives at about 11 PM, the complainant moved the damaged car at ‘Humara Petrol Pump’ which was almost one kilometer far from accidental spot. On 19.03.2018 the complainant informed Mr.Abhishek Goyal, regarding the accident and asked for the claim as the car was badly damaged from its front. Said Abhishek Goyal filed the paper formalities for claim and asked to submit the papers in Ferozepur Agency, as Moga Hyundai agency is a small workshop as compared to Brar Workshop Ferozepur and as such, the complainant moved the car with the help of toe van at Brar Automotive, Moga Road, Ferozepur for its repair.  Thereafter, the Opposite Parties appointed spot surveyors and after thorough investigation, Mr.Baldev Kumar Surveyor told the complainant that “damaged car is beyond repair and is irreparable, so company has settled the claim without registration book”. The surveyor assessed the loss on the basis of repair estimates of M/s.Brar Automotives, Ferozepur and informed the complainant that as per the terms and conditions of the policy, the complainant has settled the claim of loss on net of salvage basis for Rs.6,99,000/- after deduction of the policy access. Said Baldev Kumar certified to the complainant on his letter pad that Opposite Parties have settled the claim without RC Book and he further prepared a affidavit of complainant with respect to above said facts and regarding full and final settlement at the instance of Baldev Saluja, the complainant signed the said affidavit on 04.08.2018.  Thereafter, the Opposite Parties sold the damaged car through Baldev Kumar to one Balwinder Singh. Both the surveyors told the complainant that ‘now you will receive the claim money very soon, but you have to pay Rs.20,000/- to Brar Automotive’, but the complainant failed to understand as to why Brar Automotive demanded Rs.20,000/- as the car was fully insured. Thereafter, vide letter dated 10.08.2018 issued by Branch Manager, Bagha Purana of Opposite Party  to complainant to cancel the RC book and to submit the cancelled RC book. After settlement, surveyor again raised demand of some documents and in this way, the Opposite Parties has settled the claim on salvage basis. The complainant on so many times, made requests to the Opposite Parties for settlement of his claim and to pay his settled amount, but the Opposite Parties did not pay any heed to the request of the complainant.  At last, the Opposite Parties repudiated the claim of the complainant vide letter dated 09.01.2019 on the false and frivolous grounds.    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 Party may be directed to pay the settled amount of rs.6,99,000/- alongwith interest @ 12% per annum and Rs.1,00,000/- as compensation on account of mental tension, physical harassment besides Rs.22,000/- as litigation expenses .

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 complicated questions of law and facts are involved in the present complaint. Moreover, the lengthy examination-in-chief and  cross examination of the parties/ witnesses are required in the complaint, so the complaint requires to be decided by the Civil Court and as such, this District Consumer Commission has got no jurisdiction to entertain, try and  dispose off the present complaint. The complaint of the complainant is false, frivolous, baseless, vague, malicious and thereafter, in the event of dismissal of the complaint the Opposite Parties are entitled to special costs.  The true facts are that the complainant got one insurance policy for the period 16.01.2017 to 15.01.2018 and thereafter, the complainant by misrepresenting and by playing a fraud upon the Opposite Parties managed to procure the insurance policy for the period 02.02.2018 to 01.02.2019 of the vehicle in question and after getting the insurance  policy, the complainant narrated a false story of accident of said insured vehicle and lodged a false claim. The date of accident was in the last week of January when the vehicle was not insured and not on 18.03.2018 as alleged by the complainant. The Opposite Parties appointed Swift Investigation Agency and Sh.Amar Nath Taneja for the reinvestigation of the claim and vide their reports, the Opposite Parties repudiated the claim of the complainant after thorough investigation. On merits, the Opposite Party 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.C1  alongwith copies of documents Ex.C2 to Ex.C8, photographs Ex.C9/A to Ex.C9/D and copies of other documents Ex.C10 to Ex.C20, Ex.C20-A, Ex.C21, Ex.C21/A, Ex.C22, Ex.C23, Ex.C23-A, Ex.C24 to Ex.C26 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.OP6 and closed the evidence on behalf of the Opposite Party.

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 insured his car make Hyundai i20, Asta (O) Model 2016 Engine No.214975, Chassis Number 325339 bearing RC No.PB 29Y-7218 from Opposite Parties vide policy No. 2008013116N100331827 valid for the period w.e.f. 16.01.2017 to 15.01.2018  with Insured Declared Value of Rs.9,05,834/-. On 01.02.2018, the complainant came to know that the insurance of the vehicle was expired and he immediately made telephonic call to one employee of Opposite Parties namely Abhishek Goyal and he came to the complainant alongwith photographer and the photographer physically inspected the car and clicked some photographs and thereafter on 01.02.2018 after pre inspection, the Opposite Parties insured the vehicle of the complainant vide policy No. 2012043117P115661213. Not only this, on 2.2.2018 the complainant also got his Bullet Motor Cycle insured from the Opposite Parties. Ld.counsel for the complainant further contended  that on 18.03.2018 he alongwith his cousin Ravinder Singh were going to Shri Amritsar Sahib to pay the obeisance at holy Golden Temple and when they were on the way said car met with an accident on Jalalabad-Kot Ise Khan Road at about 9.30 PM and with the grace of god, nothing happened to the complainant except nose bleeding and small injuries occurred to his cousin. Air bags of car opened, but the vehicle  was damaged from front due to collision with stand tree. Thereafter, with the help of relatives at about 11 PM, the complainant moved the damaged car at ‘Humara Petrol Pump’ which was almost one kilometer far from accidental spot. On 19.03.2018 the complainant informed Mr.Abhishek Goyal, regarding the accident and asked for the claim as the car was badly damaged from its front. Said Abhishek Goyal filed the paper formalities for claim and asked to submit the papers in Ferozepur Agency, as Moga Hyundai agency is a small workshop as compared to Brar Workshop Ferozepur and as such, the complainant moved the car with the help of toe van at Brar Automotive, Moga Road, Ferozepur for its repair.  Thereafter, the Opposite Parties appointed spot surveyors and after thorough investigation, Mr.Baldev Kumar Surveyor told the complainant that “damaged car is beyond repair and is irreparable, so company has settled the claim without registration book”. The surveyor assessed the loss on the basis of repair estimates of M/s.Brar Automotives, Ferozepur and informed the complainant that as per the terms and conditions of the policy, the complainant has settled the claim of loss on net of salvage basis for Rs.6,99,000/- after deduction of the policy access. Said Baldev Kumar certified to the complainant on his letter pad that Opposite Parties have settled the claim without RC Book and he further prepared an affidavit of complainant with respect to above said facts and regarding full and final settlement at the instance of Baldev Saluja, the complainant signed the said affidavit on 04.08.2018.  Thereafter, the Opposite Parties sold the damaged car through Baldev Kumar to one Balwinder Singh. Both the surveyors told the complainant that ‘now you will receive the claim money very soon, but you have to pay Rs.20,000/- to Brar Automotive’, but the complainant failed to understand as to why Brar Automotive demanded Rs.20,000/- as the car was fully insured. Thereafter, vide letter dated 10.08.2018 issued by Branch Manager, Bagha Purana of Opposite Party  to complainant to cancel the RC book and to submit the cancelled RC book. After settlement, surveyor again raised demand of some documents and in this way, the Opposite Parties has settled the claim on salvage basis. The complainant on so many times, made requests to the Opposite Parties for settlement of his claim and to pay his settled amount, but the Opposite Parties did not pay any heed to the request of the complainant.  At last, the Opposite Parties repudiated the claim of the complainant vide letter dated 09.01.2019 on the false and frivolous grounds.

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  complicated questions of law and facts are involved in the present complaint. Moreover, the lengthy examination-in-chief and  cross examination of the parties/ witnesses are required in the complaint, so the complaint requires to be decided by the Civil Court and as such, this District Consumer Commission has got no jurisdiction to entertain, try and  dispose off the present complaint. Further contended that the complainant got one insurance policy for the period 16.01.2017 to 15.01.2018 and thereafter, the complainant by misrepresenting and by playing a fraud upon the Opposite Parties managed to procure the insurance policy for the period 02.02.2018 to 01.02.2019 of the vehicle in question and after getting the insurance  policy, the complainant narrated a false story of accident of said insured vehicle and lodged a false claim. The date of accident was in the last week of January when the vehicle was not insured and not on 18.03.2018 as alleged by the complainant. The Opposite Parties appointed Swift Investigation Agency and Sh.Amar Nath Taneja for the reinvestigation of the claim and vide their reports, 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 the intricate questions of law and facts are involved in the present complaint which require voluminous documents and evidence for determination which is not possible in the summary procedure  under the Consumer Protection Act and appropriate remedy, if any, lies only in the Civil Court and this  District Consumer Commission has no jurisdiction to try and decide the present complaint. So far as the objection that complicated question of the fact is involved as such the Insured be relegated to go before Civil Court, is concerned, The Consumer Protection Act, 1986 (as amended upto date) (hereinafter referred to as the Act) was enacted with object to provide for better protection of the interests of the consumers and for that purpose, to make provision for the establishment of consumer council and other authorities for settlement of consumer disputes and other matter connected therewith. Section 13 (4) confers same powers upon the authorities under the Act, which are vested in Civil Court under Code of Civil Procedure, 1908, while trying a suit in respect of (i) The summoning and enforcing the attendance of any defendant or witness and examining the witness on oath, (ii) the discovery and production of any document or other material object producible as evidence, (iii) the reception of evidence on affidavits, (iv) the requisitioning of the report of the concerned analysis or test the appropriate laboratory or from other relevant source, (v) issuing of any commission for the examination of any witness and (vi) any other matter which may be prescribed. The authorities are conferred jurisdiction to decide the issue of “unfair trade practice” which has been defined under Section 2 (r) of the Act. This definition is similar to the definition of “fraud” as given under Section 17 of Indian Contract Act, 1872. From these provisions it is clear that this Commission can hold a full trail as held by civil court or adopt summary procedure for decision of any complaint. Under the Act, although the jurisdiction of the authorities is limited to consumer complaint, but while deciding such complaint no limit has been fixed for adjudicating of the dispute. Three Judges Bench of Supreme Court in Dr. J.J. Merchant Vs. Shrinath Chaturvedi, (2002) 6 SCC 635, (paragraph-7) held that the object and purpose of the Act is to render simple, inexpensive and speedy remedy to the consumer with complaint against defective goods and deficient services and the benevolent piece of legislation, intended to protect a large body of consumer from exploitation. Consumer Forum is an alternate Forum, established under the Act, to discharge the function of Civil Court. Under the Act, the consumers are provided with an alternative efficacious and speedy remedy. As such the Consumer Forum is an alternative forum established under the Act to discharge the functions of Civil Court. Therefore, delay in disposal of the complaint would not be a ground for rejecting the complaint and directing the complainant to approach the Civil Court. The argument that the complicated question of fact cannot be decided by the Forum, has been specifically rejected (In paragraph-12). Similar view has been taken in Amar Jwala Paper Mills Vs. State Bank of India, (1998) 8 SCC 387, CCI Chambers Coop. Hsg. Society Ltd. Development Credit Bank Ltd. (2003) 7 SCC 233. Recently, Hon’ble National Commission, New Delhi in CC No. 101 of 2009 titled as mahalaxmi Dyes & Chemicals Ltd. Vs. New India Assurance Company Limited decided on 07.09.2021 also held so.  Hence, this District Consumer Commission is  not convinced with the aforesaid contention of the ld.counsel for the Opposite Parties.

10.     It is not disputed that  the  complainant got insured his car make Hyundai i20, Asta (O) Model 2016 Engine No.214975, Chassis Number 325339 bearing RC No.PB 29Y-7218 from Opposite Parties vide policy No. 2008013116N100331827 valid for the period w.e.f. 16.01.2017 to 15.01.2018  with Insured Declared Value of Rs.9,05,834/-. The complainant further insured his vehicle in question from the Opposite Parties vide insurance policy for the period 02.02.2018 to 01.02.2019 of the vehicle in question and after getting the insurance  policy, however there was gap of 18 days. The only defence and reason for the repudiation of the claim of the complainant by the Opposite Parties is that the complainant by misrepresenting and by playing a fraud upon the Opposite Parties managed to procure the insurance policy for the period 02.02.2018 to 01.02.2019 of the vehicle in question and after getting the insurance  policy, the complainant narrated a false story of accident of said insured vehicle and lodged a false claim. The date of accident was in the last week of January when the vehicle was not insured and not on 18.03.2018 as alleged by the complainant. The Opposite Parties appointed Swift Investigation Agency and Sh.Amar Nath Taneja for the reinvestigation of the claim and vide their reports, the Opposite Parties repudiated the claim of the complainant after thorough investigation. But it is unbelievable because at the time of insurance (in case the previous policy covers expires), it is the duty of the insurance company or its employees to get the said vehicle fully checked up and after its thorough check up, the vehicle is again insured. In the instant case, as per the version of the complainant that on 01.02.2018, the complainant came to know that the insurance of the vehicle was expired and he immediately made telephonic call to one employee of Opposite Parties namely Abhishek Goyal and he came to the complainant alongwith photographer and the photographer physically inspected the car and clicked some photographs and thereafter on 01.02.2018 after pre inspection, the Opposite Parties insured the vehicle of the complainant vide policy No. 2012043117P115661213.  On the other hand, the Opposite Parties have nowhere rebut this version by filing any cogent and convincing evidence or call said Abhishek Goyal, who alongwith photographer physically inspected the car and clicked the photographs and thereafter Opposite Parties insured the vehicle of the complainant vide policy No. 2012043117P115661213.

11.     Second contention of the Opposite Parties is that if the insured vehicle was total damaged in accident, then why the complainant not got registered the FIR in this regard. On the other hand, the complainant has contended that with the grace of god, nothing happened to the complainant except nose bleeding and small injuries occurred to his cousin. Air bags of car opened, but the vehicle  was damaged from front due to collision with stand tree, and hence there was no need to get lodged the FIR in this regard. Moreover, the accident was occurred by striking the vehicle with a tree and not with some vehicle or person.  

12.     It is not disputed that the Opposite Parties appointed spot surveyors and after thorough investigation, Mr.Baldev Kumar Surveyor told the complainant that “damaged car is beyond repair and is irreparable, so company has settled the claim without registration book” and in this regard he also issued certificate, copy of which is placed on record as Ex.C10.  The surveyor assessed the loss on the basis of repair estimates of M/s.Brar Automotives, Ferozepur and informed the complainant that as per the terms and conditions of the policy, the complainant has settled the claim of loss on net of salvage basis for Rs.6,99,000/- after deduction of the policy access. As mentioned above, said Baldev Kumar certified to the complainant on his letter pad that Opposite Parties have settled the claim without RC Book and he further prepared an affidavit of complainant with respect to above said facts and regarding full and final settlement at the instance of Baldev Saluja, the complainant signed the said affidavit on 04.08.2018.  Thereafter, the Opposite Parties sold the damaged car through Baldev Kumar to one Balwinder Singh in a sum of Rs.1 lakhs. Thereafter, vide letter dated 10.08.2018 issued by Branch Manager, Bagha Purana of Opposite Party  to complainant to cancel the RC book and to submit the cancelled RC book. After settlement, surveyor again raised demand of some documents and in this way, the Opposite Parties has settled the claim on salvage basis. Keeping in view the aforesaid all the facts, we have failed to understand as to why, the Opposite Parties are lingering on the matter to settle the claim of the complainant and at last repudiated the claim of the complainant vide letter dated 09.01.2019. In view of the above discussions, we are of the opinion that Opposite Party was not justified in closing the case of the complainant  without any reason.

13.     In such a situation the repudiation made by the Opposite Party-Insurance Company regarding genuine claim of the complainant have been made without application of mind. It is usual with the insurance company to show all types of green pasters 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 seams 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.

14.     In view of the above discussion, we hold that the Opposite Party-Insurance Company have wrongly and illegally rejected the claim of the complainant. Resultantly, the instant complaint is allowed and the Opposite Parties are directed to pay the settled amount of Rs.6,99,000/- (Rupees six  lakhs ninety nine thousands only) of the insured vehicle in question, to the complainant within 45 days from the date of receipt of copy of this order, failing which the Opposite Parties  shall be liable to pay interest @ 8% per annum on the awarded amount from the date of filing the complaint i.e. 05.03.2019 till its 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. Copies of the order be furnished to the parties free of cost. File be consigned to record room after compliance.

15.     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:08.02.2022.