Order by

Sh.Amrinder Singh Sidhu, President

1.       Sh.Robin Khurana, complainant  has filed the instant complaint under section 12 of the Consumer Protection Act, 1986 (as amended upto date) on the allegations that he is owner of Volvo XC 90 D5, bearing RC No.PB19H-5080 and said vehicle is insured with Opposite Party vide policy No.2012043116P116192185 valid for the period from 28.02.2017 to 27.02.2018 and said vehicle is hypothecated with Kotak Mahindra Bank. The case of the Complainant is that on 10.12.2017 he alongwith his friend was coming and when they reached near village Chahil, District Faridkot, a fire took place in the running car and said car was totally damaged. The Complainant and his friend escaped their life by jumping from the car with the grace of god. Due information was also conveyed to the office of Fire Brigade of Faridkot and Municipal Committee, Kotkapura. Said news was also published in the news paper.  With the help of fire brigade, the fire was controlled and thereafter, due information was also given to the police station and the matter was reported with P.S.Sadar, Kot Kapura and in this regard GD No.039 dated 11.12.2017 was duly lodged.  Thereafter, the matter was conveyed to the Opposite Party  for which they deputed their spot surveyor on 12.12.2017, who prepared his survey report dated 12.12.2017, but the Complainant raised objection to said survey report and requested the Opposite Party   for appointment of new surveyor. Thereafter, the Opposite Party   appointed new surveyor as per letter dated 12.01.2018 issued by Swift Investigation Agency who raised certain documents, but as a matter of fact the Complainant has already submitted the entire documents relating to said vehicle and the Complainant gave its reply vide letter dated 30.01.2018. But thereafter, said surveyor did not supply the copy of said report, but however, under the Rights to Information Act, the Complainant got this report which is false, frivolous and baseless. Thereafter, again a new surveyor Sh.A.S.Kapoor was appointed  and in this regard, various correspondence  were made and also joint meeting was conducted at Motor Technical Committee, Regional Office, Ludhiana on 30.05.2018 where the Complainant has fully satisfied  the said surveyor regarding the query raised by him on behalf of the Opposite Party. Said surveyor also submitted its report dated 30.06.2018 which is also false and frivolous. The Complainant further alleges that he has to bring the said vehicle with the help of crane and has to pay a sum of Rs.3000/- for conveyance charges and got parked the said vehicle in the house of one Avtar Singh son of Sadhu Singh, resident of village: Rajiana, District Moga w.e.f. 13.12.2017 and the Complainant is paying rent @ Rs.3000/- per month for parking the vehicle in question. But it is matter of great dismay and surmises that the claim of the Complainant has been repudiated by the Opposite Party   without any sufficient reason vide letter dated 17.08.2018.                         Hence this complaint is filed due to deficiency in service on the part of the Opposite Party.  Vide instant complaint, the complainant has sought the following reliefs.

1. Opposite Party be directed to pay a sum of Rs.12 lacs in regard to vehicle  Volvo XC 90 D5, bearing RC No.PB19H-5080 insured with Opposite Party vide policy No.2012043116P116192185 valid for the period from 28.02.2017 to 27.02.2018.
2. Opposite Party   be also directed to pay Rs.50,000/- as compensation on account of rental and other charges and  Rs.50,000/- on account of compensation for causing him  mental tension, harassment and agony to the Complainant and to grant any other relief to which this Commission deems fit and proper in the circumstances of the case. 

2.       After  the notice served upon  Opposite Party, they  appeared through counsel and contested the complaint by filing  the written version taking preliminary objections therein inter alia that the complaint is not maintainable and the complaint is bad  for non-joinder of necessary party as the insured car is hypothecated with Kotak Mahindra Prime Limited, who is necessary party. Moreover, complicated 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 Consumer Protection Act and appropriate remedy, if any, lies only in the Civil Court.  The Complainant has not disclosed the true and material facts from this Hon’ble Commission. It is not denied that the vehicle in question was insured with the Opposite Party  from 28.02.2017 to midnight of 27.02.2018.  It is alleged that on 11.12.2017 the Complainant informed the Opposite Party   vide claim intimation dated 11.12.2017 about the alleged loss of the car in fire. On receipt of the intimation, the Opposite Party   immediately appointed Sh.Devinder Singh Sandhu, Surveyor & Loss Assessor, on the spot, who submitted his report dated 12.12.2017 alongwith photographs copy of which is Ex.OP4 on record. Thereafter, Sh.A.S.Kapoor, gave his final report dated 30.06.2018  with the following findings:-

“i)        The insured purchased the car without any valid insurance which was well beyond the financial capacity to retain and maintain the said model car. He could not produce any record that how much amount was paid to the seller and mode of payment. 

ii)         After he realized, he was unable to retain this highly expensive car and further the car being not good working condition was demanding high maintenance cost, he wanted to get rid of this car for which he prepared a well planned scheme (expectedly under some experience guidance of some person having good Insurance Claim procedure knwoeldge) to burn the car by creating all the necessary evidences and get claim to clear his loan.

iii)        The insured further made the way clear & got model of the RC rectified first from the DTO Moga and then got the insurance record rectified by getting endorsement on 1.12.2017 and therefore, claim was lodged after days i.e. on 10.12.2017. These acts give us sufficient reasons to arrive at the motive of the insured which well designed.

iv)        The car was found burnt with the help of some flammable material underneath so that it burns and converts into junk. It has been observed practically that in the case of fire to car, the fire flames generally go up and it remains restricted to small portion either engine compartment or cable only remains restricted to fire loss wherever it occurs. Tyre rims mostly remain safe, but in this case even the metalled wheel rims two have been melted very badly. Further the dragging of the car away/ behind from the initial fire place and some residue remaining over there indicates that it was not and unpredicted/ accidental fire by short circuiting but was probable a man made fire and the insured also could not give the justified replies to our most relevant queries.

v)         The un-affordability of the  insured to get the car repaired from an authorized dealer costing about 2.5 lacs and bouncing of 24 cheques out of 29 further add to the observations that the insured was under heavy financial crunch and had acted in such away to get rid off the car and further clear his loan out of insurance claim.

vi)        We gave sufficient time to the insured by writing mails to give reply to our queries para wise and ultimately a registered letter dated 30.05.2018, but the insured never replied to any of our queries para wise.”

Opposite Party  further allege that  photo copy of the report of Sh.A.S.Kapoor Surveyor dated 30.06.2018 is Ex.OP5 on record and the relevant correspondence through emails and regular mail by the surveyor are Ex.OP6. The insured had got the loan approved on 1.4.2017 with a monthly installment of Rs.16,650/-, but as per the loan account statement obtained from the financier it has been observed that the insured paid only two installments upto June 2017 and after that  the cheques were dishonoured by the bank. From the financiers loan account statement, it has been observed that out of total 29 cheques issued by the insured, only 5 cheques were cleared and  24 cheques were bounced. From the two factors above,  this is the sufficient reason to believe that the insured is running under severe financial crunch as he could not afford paying Rs.2,50,000/- approx for getting his car repaired  and after that he was not affording paying  the loan installments (EMI) Rs.16,650/- per month. Therefore, the instant complaint is liable to be dismissed. On merits, the Opposite Party  almost took up same and similar pleas as taken up by them in preliminary objections. Remaining facts mentioned in the complaint are also denied and a prayer for dismissal of the complaint was made.

3.       In replication, the Complainant has specifically mentioned that all the installments have been paid by the Complainant to Kotak Mahindra Bank, from which the vehicle in question was hypothecated and the satisfactory letter was also issued by Kotak Mahindra, photo copy of the said letter is placed on record as Ex.C45, so the Opposite Party   has leveled a false allegations in its written reply that the Complainant is not in capacity to repay the loan amount which is completely false, frivolous and baseless one.  Moreover, all the replies to the query made by the Opposite Party   during the  investigation was given by the Complainant and all the evidence regarding the same is on record and hence, it is prayed that the complaint may kindly be accepted with costs as prayed for in the complaint.

4.       In order to prove  his case, the complainant has placed on record evidence his affidavit Ex.C1 and copies of documents Ex.C2 to Ex.C45.

5.       On the other hand,  Opposite Party also placed on record  affidavit of Sh.R.N.Bansal, Divisional Manger Ex.OP1  alongwith copies of documents Ex.OP2 to Ex.OP23.

6.       We have heard the ld.counsel for the parties  and  gone through the documents placed  on record.

7.       During the course of arguments, ld.counsel for the Complainant has mainly reiterated the facts as narrated in the complaint and contended that the  Complainant is owner of Volvo XC 90 D5, bearing RC No.PB19H-5080 and said vehicle is insured with Opposite Party vide policy No.2012043116P116192185 valid for the period from 28.02.2017 to 27.02.2018 and said vehicle is hypothecated with Kotak Mahindra Bank. The case of the Complainant is that on 10.12.2017 he alongwith his friend was coming and when they reached near village Chahil, District Faridkot, a fire took place in the running car and said car was totally damaged. The Complainant and his friend escaped their life by jumping from the car with the grace of god. Due information was also conveyed to the office of Fire Brigade of Faridkot and Municipal Committee, Kotkapura. Said news was also published in the news paper.  With the help of fire brigade, the fire was controlled and thereafter, due information was also given to the police station and the matter was reported with P.S.Sadar, Kot Kapura and in this regard GD No.039 dated 11.12.2017 was duly lodged.  Thereafter, the matter was conveyed to the Opposite Party  for which they deputed their spot surveyor on 12.12.2017, who prepared his survey report dated 12.12.2017, but the Complainant raised objection to said survey report and requested the Opposite Party   for appointment of new surveyor. Thereafter, the Opposite Party   appointed new surveyor as per letter dated 12.01.2018 issued by Swift Investigation Agency who raised certain documents, but as a matter of fact the Complainant has already submitted the entire documents relating to said vehicle and the Complainant gave its reply vide letter dated 30.01.2018. But thereafter, said surveyor did not supply the copy of said report, but however, under the Rights to Information Act, the Complainant got this report which is false, frivolous and baseless. Thereafter, again a new surveyor Sh.A.S.Kapoor was appointed  and in this regard, various correspondence  were made and also joint meeting was conducted at Motor Technical Committee, Regional Office, Ludhiana on 30.05.2018 where the Complainant has fully satisfied  the said surveyor regarding the query raised by him on behalf of the Opposite Party. Said surveyor also submitted its report dated 30.06.2018 which is also false and frivolous. The Complainant further alleges that he has to bring the said vehicle with the help of crane and has to pay a sum of Rs.3000/- for conveyance charges and got parked the said vehicle in the house of one Avtar Singh son of Sadhu Singh, resident of village: Rajiana, District Moga w.e.f. 13.12.2017 and the Complainant is paying rent @ Rs.3000/- per month for parking the vehicle in question. But it is matter of great dismay and surmises that the claim of the Complainant has been repudiated by the Opposite Party   without any sufficient reason vide letter dated 17.08.2018.  Ld.counsel for the Complainant has further contended that  all the installments have been paid by the Complainant to Kotak Mahindra Bank, from which the vehicle in question was hypothecated and the satisfactory letter was also issued by Kotak Mahindra, photo copy of the said letter is placed on record as Ex.C45, so the Opposite Party   has leveled a false allegations in its written reply that the Complainant is not in capacity to repay the loan amount which is completely false, frivolous and baseless one.  Moreover, all the replies to the query made by the Opposite Party   during the  investigation was given by the Complainant and all the evidence regarding the same is on record and hence, it is prayed that the complaint may kindly be accepted with costs as prayed for in the complaint. To support his case, the Complainant has produced on record  his affidavit Ex.C1, copy of receipt of rent Ex.C2,  copies of income tax returns Ex.C3 and Ex.C4,  copy of letter of Opposite Party   Ex.C5,  copy of spot survey report Ex.C6, copy of letter written to Branch Manager Ex.C7, copy of policy Ex.C8,  copy of GD  No.039 Ex.C9,  copy of intimation of Fire Brigade Station Ex.C10,  copy of fire report issued by the office of Fire Station, Municipal Committee, Kotpaura Ex.C11, copy of the proforma invoice issued by Krishan Auto Sales Ex.C12, copy of registration certificate of the vehicle in favour of Robin Khurana (complainant) Ex.C13,  copy of driving license Ex.C14, copy of claim is Ex.C15, copy of letter written to Incharge Swift Investigation Agency of Opposite Party  Ex.C16, copy of letter of Kotak Mahindra Prima Limited is Ex.C17, copy of receipt dated 26.3.2018 issued by Panesar Maruti Centre, Bagha Purana is Ex.C18, copies of letters Ex.C19 to Ex.C22,  copy of letter issued by Swift Investigation Agency written to Opposite Party  Ex.C23, copies of letters Ex.C24 to Ex.C32, copy of final report issued by Sh.A.S.Kapoor Ex.C33,  copies of bills Ex.C34 to Ex.C38, photographs of the damaged/ burnt vehicle Ex.C39 to Ex.C44 and copy of satisfactory letter issued by Kotak Mahindra Prima Ex.C45.

8.       On the other hand, ld.counsel for the Opposite Party has repelled the aforesaid contention of ld.counsel for the Complainant on the ground that the Complainant has not disclosed the true and material facts from this Hon’ble Commission. It is however admitted that the vehicle in question was insured with the Opposite Party  from 28.02.2017 to midnight of 27.02.2018.  It is further contended that on 11.12.2017 the Complainant informed the Opposite Party   vide claim intimation dated 11.12.2017 about the alleged loss of the car in fire. On receipt of the intimation, the Opposite Party   immediately appointed Sh.Devinder Singh Sandhu, Surveyor & Loss Assessor, on the spot, who submitted his report dated 12.12.2017 alongwith photographs copy of which is Ex.OP4 on record. Thereafter, Sh.A.S.Kapoor, gave his final report dated 30.06.2018  with the following findings:-

“i)        The insured purchased the car without any valid insurance which was well beyond the financial capacity to retain and maintain the said model car. He could not produce any record that how much amount was paid to the seller and mode of payment. 

ii)         After he realized, he was unable to retain this highly expensive car and further the car being not good working condition was demanding high maintenance cost, he wanted to get rid of this car for which he prepared a well planned scheme (expectedly under some experience guidance of some person having good Insurance Claim procedure knwoeldge) to burn the car by creating all the necessary evidences and get claim to clear his loan.

iii)        The insured further made the way clear & got model of the RC rectified first from the DTO Moga and then got the insurance record rectified by getting endorsement on 1.12.2017 and therefore, claim was lodged after days i.e. on 10.12.2017. These acts give us sufficient reasons to arrive at the motive of the insured which well designed.

iv)        The car was found burnt with the help of some flammable material underneath so that it burns and converts into junk. It has been observed practically that in the case of fire to car, the fire flames generally go up and it remains restricted to small portion either engine compartment or cable only remains restricted to fire loss wherever it occurs. Tyre rims mostly remain safe, but in this case even the metalled wheel rims two have been melted very badly. Further the dragging of the car away/ behind from the initial fire place and some residue remaining over there indicates that it was not and unpredicted/ accidental fire by short circuiting but was probable a man made fire and the insured also could not give the justified replies to our most relevant queries.

v)         The un-affordability of the  insured to get the car repaired from an authorized dealer costing about 2.5 lacs and bouncing of 24 cheques out of 29 further add to the observations that the insured was under heavy financial crunch and had acted in such away to get rid off the car and further clear his loan out of insurance claim.

vi)        We gave sufficient time to the insured by writing mails to give reply to our queries para wise and ultimately a registered letter dated 30.05.2018, but the insured never replied to any of our queries para wise.”

Ld.counsel for the Opposite Party  further contended that  photo copy of the report of Sh.A.S.Kapoor Surveyor dated 30.06.2018 is Ex.OP5 on record and the relevant correspondence through emails and regular mail by the surveyor are Ex.OP6. The insured had got the loan approved on 1.4.2017 with a monthly installment of Rs.16,650/-, but as per the loan account statement obtained from the financier it has been observed that the insured paid only two installments upto June 2017 and after that  the cheques were dishonoured by the bank. From the financiers loan account statement, it has been observed that out of total 29 cheques issued by the insured, only 5 cheques were cleared and  24 cheques were bounced. From the two factors above,  this is the sufficient reason to believe that the insured is running under severe financial crunch as he could not afford paying Rs.2,50,000/- approx for getting his car repaired  and after that he was not affording paying  the loan installments (EMI) Rs.16,650/- per month. Therefore, the instant complaint is liable to be dismissed. On the other hand, to support its case, the Opposite Party   has placed on record the same and similar documents which are placed on record by the Complainant itself,  except the affidavit Ex.OP1 of Sh.R.N.Bansal, Divisional Manager of the Opposite Party. 

9.       Ld.counsel for the complainant has mainly 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. He has relied upon the 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, it was 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.

10.     For the sake of arguments, if it is admitted that the written version filed by the Opposite Party is  legal. Now come to the merit of the case.  It is not the denial of the case of the parties that the Complainant is owner of Volvo XC 90 D5, bearing RC No.PB19H-5080 and said vehicle is insured with Opposite Party vide policy No.2012043116P116192185 valid for the period from 28.02.2017 to 27.02.2018 for IDV of Rs.12 lacs, copy of the policy is placed on record as Ex.C8. It is also not denied that the car took fire on 10.1.2017 when the Complainant was on its way at Kotkapura road and intimation was given to Fire Brigade Station, Faridkot, copy of intimation is placed on record as Ex.C10,  copy of fire report issued by the office of Fire Station, Municipal Committee, Kotpaura is Ex.C11, copy of the proforma invoice issued by Krishan Auto Sales is Ex.C12, copy of registration certificate of the vehicle in favour of Robin Khurana (complainant) is Ex.C13,  copy of driving license Ex.C14, copy of claim is Ex.C15, copy of letter written to Incharge Swift Investigation Agency of Opposite Party  Ex.C16, copy of letter of Kotak Mahindra Prima Limited is Ex.C17, copy of receipt dated 26.3.2018 issued by Panesar Maruti Centre, Bagha Purana is Ex.C18, copies of letters Ex.C19 to Ex.C22,  copy of letter issued by Swift Investigation Agency written to Opposite Party  Ex.C23, copies of letters Ex.C24 to Ex.C32, copy of final report issued by Sh.A.S.Kapoor Ex.C33,  copies of bills Ex.C34 to Ex.C38, photographs of the damaged/ burnt vehicle Ex.C39 to Ex.C44 and copy of satisfactory letter issued by Kotak Mahindra Prima Ex.C45.

11.     The ground of the repudiation of the claim of the Complainant appears to be  imaginatory and smelled out against the Complainant. In this final report 30.06.2018 Ex.C33 (OP5 same document produced by Opposite Party) Sh.A.S.Kapoor, has mainly mentioned the ground for the repudiation of the claim with regard to loan obtained by the Complainant from Kotak Mahindra Prima Limited stating that the insured purchased the car without any valid insurance which was well beyond the financial capacity to retain and maintain the said model car. He could not produce any record that how much amount was paid to the seller and mode of payment.  Not only this, said surveyor also submitted that after  the Complainant realized, he was unable to retain this highly expensive car and further the car being not good working condition was demanding high maintenance cost, he wanted to get rid of this car for which he prepared a well planned scheme (expectedly under some experience guidance of some person having good Insurance Claim procedure knowledge) to burn the car by creating all the necessary evidences and get claim to clear his loan. Not only this, he also submitted in his report that the  insured further made the way clear & got model of the RC rectified first from the DTO Moga and then got the insurance record rectified by getting endorsement on 1.12.2017 and therefore, claim was lodged after days i.e. on 10.12.2017. These acts give us sufficient reasons to arrive at the motive of the insured which well designed. He also mentioned that the car was found burnt with the help of some flammable material underneath so that it burns and converts into junk. It has been observed practically that in the case of fire to car, the fire flames generally go up and it remains restricted to small portion either engine compartment or cable only remains restricted to fire loss wherever it occurs. Tyre rims mostly remain safe, but in this case even the metalled wheel rims two have been melted very badly. Further the dragging of the car away/ behind from the initial fire place and some residue remaining over there indicates that it was not and unpredicted/ accidental fire by short circuiting but was probable a man made fire and the insured also could not give the justified replies to our most relevant queries. The un-affordability of the  insured to get the car repaired from an authorized dealer costing about 2.5 lacs and bouncing of 24 cheques out of 29 further add to the observations that the insured was under heavy financial crunch and had acted in such away to get rid off the car and further clear his loan out of insurance claim.  He further submitted that they  gave sufficient time to the insured by writing mails to give reply to our queries para wise and ultimately a registered letter dated 30.05.2018, but the insured never replied to any of our queries para wise. But on the other hand, ld.counsel for  the Complainant has specifically denied the aforesaid submission of said Surveyor and contended that  all the installments have been paid by the Complainant to Kotak Mahindra Bank, from which the vehicle in question was hypothecated and the satisfactory letter was also issued by Kotak Mahindra, photo copy of the said letter is placed on record as Ex.C45, so the Opposite Party   has leveled a false allegations in its written reply that the Complainant is not in capacity to repay the loan amount which is completely false, frivolous and baseless one.  Moreover, all the replies to the query made by the Opposite Party   during the  investigation was given by the Complainant and all the evidence regarding the same is on record. To support his version, the Complainant has placed on record the copy of satisfactory letter issued by Kotak Mahindra Prima as Ex.C45 which is nowhere denied by the Opposite Party   by filing any cogent and convincing evidence and hence, we do not agree with the aforesaid submission of the surveyor who gave his report dated 30.06.2018 Ex.C33 (OP5 same document produced by Opposite Party) on the basis of surmises and conjectures.

12.     But however, said surveyor Sh.A.S.Kapoor, appointed by Opposite Party itself has assessed the loss to the damaged vehicle to the tune of Rs.11,94,000/- after deducting Rs.2000/- on account of “Compulsory Deduction Clause’ and Rs.4000/- “less on account of salvage of the Wreck of the car converted into Junk.” On the other hand, the complainant has not denied the said detailed report by filing any other valid report of some independent surveyor.   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 24^th  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 can not be brushed aside without any cogent reasons.”    

13.     Keeping in view the aforesaid facts and circumstances and replying 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.

14.     In such a situation the repudiation made by Opposite Party  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.

15.     In view of the aforesaid facts and circumstances of the case, the instant complaint is allowed and the Opposite Party is  directed to make the payment of Rs.11,94,000/- (Rupees eleven lakh ninety four thousands only) to the complainant as compensation against his claim of insured vehicle in question, on the basis of report of surveyor alongwith interest @ 8% per annum from the date of filing the complaint i.e. 11.09.2018 till its realization. In this regard, the Complainant shall furnish the letter of subrogation, power of attorney or any other required documents for the transfer of RC of the vehicle in question in favour of the Opposite Party and the transfer expenses shall be borne by the Opposite Party. Opposite Party  is  also directed to pay lump compensation amounting to Rs.5,000/- to the Complainant on account of  harassment and litigation expenses. The compliance of this order be made by the Opposite Parties within 45 days from the date of receipt of copy of this order, failing which the Complainant shall be at liberty to get the order enforced through the indulgence of this Commission. Copies of the order be furnished to the parties free of costs. File is ordered to be consigned to the record room.

16.     Reason for delay in deciding the complaint.

This complaint could not be decided within the prescribed period because the government has not appointed any of the two Whole Time Members in this Commission since 15.09.2018. Moreover, the President of this Commission is doing additional duties at District Consumer Commission, Bhatinda as well as  Faridkot. There is only one working day in a week when the quorum of this Commission remains complete.  

Announced in Open Commission.

Dated: 12.03.2021.