BEFORE THE DISTRICT CONSUMER DISPTUES REDRESSAL FORUM, KAITHAL.

Complaint no.180/14.

Date of instt.: 10.09.2014. 

                                                 Date of Decision: 03.09.2015.

Mukesh Kumar son of Sh. Churia Ram, House No.104, Ward No.3, Cheeka, Tehsil Guhla, Distt. Kaithal.

                                                        ……….Complainant.      

                                        Versus

The Branch Manager, United India Insurance Company Ltd. Karnal Road, Opp. I.G. College, Kaithal.

..……..Opposite Party.

COMPLAINT UNDER SEC. 12 OF CONSUMER PROTECTION ACT, 1986.

Before:           Sh. Jagmal Singh, President.

                        Sh. Rajbir Singh, Member.

     Smt. Harisha Mehta, Member.

Present :        Sh. Ashok Gupta, Advocate for complainant.

Sh. M.R.Miglani, Advocate for the opposite party.

                       ORDER

(JAGMAL SINGH, PRESIDENT).

                       The complainant has filed the present complaint under Section 12 of Consumer Protection Act, 1986, with the averments that he got insured his truck bearing registration No.HR-64/5066 vide policy/cover note No.1105053112P300262315 valid w.e.f.06.08.2012 to 05.08.2013.  It is further alleged that the aforesaid truck met with an accident suddenly on 05.06.2013 near about Lakhnadon (M.P.) when it was coming from Raipur to Ludhiana.  Information regarding accident was given to the Op.  It is further alleged that Sh. Hemant Kumar Jaiswal r/o Shakti Nagar, Jabalpur (M.P.) was appointed as surveyor to conduct the spot survey, who visited the spot and charged Rs.3500/- in cash towards survey fee.  It is further alleged that the complainant lodged the claim with the Op along with all the necessary documents required by the Op.  It is further alleged that the Op appointed Sh. Manjit Singh Kohli through its R.O. Chandigarh to assess the loss of the aforesaid truck/vehicle as an surveyor, who conducted final survey of the damaged truck and assessed the damage to the tune of Rs.1,06,410/- apart from salvage value of Rs.200/- after checking all the required documents like fitness certificate, permit, route permit (All India), driving licence of Shamsher Singh driver which were found to be in order and submitted its report to the company and duly received in the office of opposite party in all respect.  It is further alleged that the complainant paid Rs.4750/- as survey fee and a sum of Rs.1650/- to Mr. Bansal for final inspection after repair and also spent Rs.17,000/- towards the toeing charges.  It is further alleged that the complainant approached the Op several times to settle the claim and in response to the letters dt. 12.12.2014 and 10.03.2014 clarified the false and wrong demand about submitting of driving licence of Mangal Singh, driver by giving an affidavit dt. 14.03.2014 clearly mentioned in its para No.2 that the copy of driving licence of Shamsher driver was submitted at the spot.  It is further alleged that despite several requests made by the complainant, the Op did not settle the claim of complainant.  This way, the Op is deficient in service.  Hence, this complaint is filed.   

2.     Upon notice, the opposite party appeared before this forum and filed written statement raising preliminary objections with regard to maintainability; cause of action; locus-standi; jurisdiction; that the complainant does not fall within the definition of consumer as the truck in question was insured for commercial purpose and insurance policy also issued for commercial vehicle; that the complicated question of law and facts are involved in the present complaint and for adjudication of which, only the Civil Court is the best platform; that the complainant has concealed the true and material facts from this Forum.  The true facts are that the answering Op has already repudiated the claim of complainant as “No claim” on the ground that the complainant had not submitted the requisite documents despite of repeated reminders.  It is further submitted that during investigation, it has found that Mangal Singh was driving the truck in question and the complainant had not submitted the driving licence of Mangal Singh.  There is no deficiency in service on the part of answering Op.  On merits, the contents of complaint are denied and so, prayed for dismissal of complaint.    

3.     In support of his case, the complainant tendered in evidence affidavits Ex.CW1/A & CW1/B and documents Ex.C1 to C12 and closed evidence on 19.02.2015.  On the other hand, the Op tendered in evidence affidavit Ex.RA and documents Ex.R1 to R3 and closed evidence on 08.06.2015.  

4.     We have heard ld. counsel for both the parties and perused the case file carefully and minutely and have also gone through the evidence led by the parties.

5.     It is admitted case of the parties that the complainant is the registered owner of truck bearing registration No. HR-64/5066 and he got insured the said truck comprehensively with the Op through its Branch Manager, Pehowa Chowk, Kaithal vide policy/cover note Ex.C2 bearing No.1105053112P30026231 valid w.e.f.06.08.2012 to 05.08.2013.  The fact that the said truck met with an accident on 05.06.2013 is also not disputed by the Op.  Further, the Op has not disputed the appointment of Hemant Kumar Jaiswal r/o Shakti Nagar, Jabalpur (M.P.) as surveyor to conduct the spot survey and Sh. Manjit Singh Kohli was appointed as surveyor to assess the loss of the said truck and he assessed the loss to the tune of Rs.1,06,410/-.  It is also admitted by the parties that the complainant lodged the claim with the Op through its Branch Manager at Pehowa Chowk, Kaithal.  But the controversy arose as the Op has closed the said claim as “No claim” on the ground that the complainant has not submitted the requisite claim documents/clarification inspite of repeated reminders.

6.     The point of controversy between the parties is that according to complainant, Shamsher Singh was the driver on the said truck on the day of accident and one Mangal Singh was with the said Shamsher Singh, driver as a cleaner/conductor on the said vehicle, whereas according to Op, Mangal Singh was the driver at that time.  Ld. Counsel for the complainant argued that Shamsher Singh was the driver on truck in question at the relevant time and this fact has been told to the surveyor in the very beginning and driving license of Shamsher Singh, Driver was given to him, who found the same in order.  The report Ex.C4 of Manjit Singh Kohli, Surveyor clearly shows that Shamsher Singh was the driver on the vehicle in question.  He further argued that in the complaint, this fact has been clearly mentioned that Shamsher Singh was the driver and Mangal Singh was the cleaner/conductor of the said truck at the relevant time.  He further argued that Mangal Singh had collected the bilty and so, his name is mentioned in the bilty by the concerned official.  He further argued that the Op has mentioned in para No.6 of preliminary objections of reply that during investigations, it was found that Mangal Singh was driving the truck in question but neither such investigation report has been placed on the file nor the concerned investigator has been examined by the Op.  He also argued that in the repudiation letter Ex.C6, the Op has not mentioned specifically that for want of what document, the claim has been closed and the Op has wrongly closed the claim file of the complainant.  On the other hand, the Ld. Counsel for the Op argued that in the bilty Ex.R3, in the column of driver name, the name of Mangal Singh has been mentioned, which means that Mangal Singh was the driver on the truck in question and the complainant has not submitted the driving license of Mangal Singh inspite of repeated demands.  The Op has further argued that said Mangal Singh was not having a valid license, so lateron the complainant showed Shamsher Singh as driver and the Op has rightly closed the claim as “No claim”.  The counsel for Op also argued that the truck was used for commercial purpose, so, the complainant is not a consumer.  In reply to this argument, the counsel for complainant stated that the complainant has filed an affidavit to the effect that the truck was the only source of his livelihood having no other source of income.  Ld. Counsel for the Op has submitted a catena of authorities titled as Alpha G. Corp. Development Private Ltd. Vs. Audi Gurgaon Show Room, 2014(1) CPC page 434 Haryana State Commission; LIC Vs. Nita Bhardwaj, 2014(1) CPC page 438 (NC) Jagrut Nagrik & others Vs. Cargo Motors Pvt. Ltd. & others, 2015(2) CLT page 274.

7.     From the facts and circumstances of the case, we found no force in the contention of Op.  No doubt, in the column of driver name in the bilty, the name of Mangal Singh is mentioned, but this can be possible as the bilty was collected by Mangal Singh being cleaner/conductor on the truck.  Further the Op has taken a specific plea that during investigations, it was found that Mangal Singh was the driver on the truck in question.  But neither the report of investigation nor the affidavit of investigator placed on the file nor the investigator has been examined by the Op.  When the complainant alleged that Shamsher Singh was the driver and Mangal Singh was the cleaner/conductor but the Op has denied this fact and specifically stated that as per investigation, Mangal Singh was the driver, in that eventuality the evidence of investigator becomes very material but the Op has withheld the same.  From this it is clear that the Op has concealed the material evidence.  It is further clear from Ex.C4/Ex.R2, the report of Manjit Singh Kohli, Surveyor that the date of survey is 16.07.2013 & 22.07.2013 and as per column No.5, Shamsher Singh was the driver.  This means that the complainant had told the name of driver as Shamsher Singh from the very beginning.  As per report Ex.R2, the surveyor Sh. Manjit Singh Kohli on checking found the driving license of Shamsher Singh in order.  Therefore, the Op has wrongly declined the claim in question.  So, there is deficiency in service on the part of Op.  The authorities produced by the Op are not applicable to the facts of the instant case.  The surveyor was appointed by the Op and he assessed the loss independently to the tune of Rs.1,06,410/.  In this regard, we rely upon a judgment 2(2008) CPJ page 182 (NC), United India Insurance Co. Vs. Maya, wherein it has been held that a surveyor report should not be dismissed summarily as the surveyor is independent and qualified person under the relevant provisions of Insurance Act, 1938.  As per the affidavit, Ex.CW1/B, the affidavit of complainant, the truck in question was the only source of his livelihood, so, the complainant is a consumer.  The complainant has placed on the file a bill of Rs.3500/- of surveyor fee only and has not placed any other bill regarding amounts of Rs.4750/-, Rs.1650/- and Rs.17,000/-. 

8.     Therefore, as a sequel of above discussion, we accept the complaint and order that the Op is liable to pay the complainant Rs.1,09,910/-(1,06,410/- as per surveyor report+Rs.3500/-, the surveyor fee).  The Op is also liable to pay Rs.5,000/- on account of harassment, mental agony and cost of litigation charges.  Let the order be complied with within 30 days, failing which, the complainant shall be entitled interest @ 8% p.a. on the awarded amount from the commencement of this order till its payment.  A copy of this order be sent to both the parties free of costs.  File be consigned to the record room after due compliance.

Announced.

Dt.03.09.2015.

                                                                (Jagmal Singh),

                                                                President.

                (Harisha Mehta),     (Rajbir Singh),       

                        Member.         Member.