| ORDER | DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, BATHINDA
C.C.No. 65 of 13-02-2013 Decided on 29-05-2013
Ashwani Kumar aged about 28 years S/o Pawan Kumar R/o Jawaharke Road, Mansa.
........Complainant Versus
Universal Sompo General Insurance Co. Ltd., 5th Floor, SCO No. 10-11, Feroze Gandhi Market, Ferozepur Road, Ludhiana through Manager/Incharge. Allahabad Bank, Old Court Road, Mansa through its Branch Manager M/s. Krishna Auto Sales, Near Thermal Plant, Malout Road, Bathinda through its Manager/Incharge/Owner/Partner/Director .......Opposite parties
Complaint under Section 12 of the Consumer Protection Act, 1986.
QUORUM Smt. Vikramjit Kaur Soni, President Sh. Amarjeet Paul, Member Smt.Sukhwinder Kaur, Member For the Complainant : Sh. Naresh Garg, counsel for the complainant. For the opposite parties : Sh. Sunder Gupta, counsel for opposite party No. 1. Sh. S.M. Goyal, counsel for opposite party No. 2. Sh. Hanish Bansal, counsel for opposite party No. 3.
O R D E R
VIKRAMJIT KAUR SONI, PRESIDENT
The complainant has filed the present complaint under section 12 of the Consumer Protection Act, 1986 as amended upto date (here-in-after referred to as an 'Act'). Briefly stated the case of the complainant is that he got insured his Skoda Fobia Car Model 2012 bearing registration No. PB-31-J-3260 purchased from opposite party No. 3 after obtaining loan from opposite party No. 2, with opposite No. 1. The complainant alleged that the said insurance was issued by opposite party No. 2 being the agent of opposite party No. 1. The said insurance is Dep. Cap insurance i.e. without depreciation i.e. 0% depreciation and the opposite parties also charged Rs. 3388/- under depreciation waiver plan. The opposite parties never supplied complete insurance policy to the complainant. On 18-02-2012 at 10.00 p.m. the said car of the complainant met an accident in the revenew limits of Sangat near Village Jassi Bagh Wali, District Bathinda with one unknown tralla. At the time of the accident, the car was being driven by Sumit Garg, Vinod Kumar was sitting on the front seat of the car and Bhupesh and Manoj Kumar was sitting on the rear seats of the car. In the accident, all the persons received multiple injuries and Vinod Kumar succumbed to the injuries at DMC Ludhiana on 23-2-2012 and in this regard DDR No. 12 was recorded at P.S. Sangat. The complainant immediately lodged the claim with the opposite party Nos. 1 & 2. The opposite party No. 1 appointed Mr. Raj Paul Singhal as surveyor. He inspected the vehicle at site and opposite party No. 3 prepared the estimate to the tune of Rs. 6,43,594.18 under the supervision of said surveyor. The opposite party No. 3 charged Rs. 7,000/- for preparation of estimate and service tax. The complainant further alleged that the said surveyor of the opposite party No. 1 took the signatures of the complainant on blank claim form and consent form with the understanding that this is a total loss. Thereafter the complainant requested many times to the opposite party Nos. 1 & 2 for his claim and supplied all the necessary documents to them i.e. photocopy of driving licence, post mortem report, medical record and permanent registration certificate of the car, but all in vain. The complainant also got issued legal notice to opposite party No. 1, but to no avail. The complainant further alleged that the opposite party No. 1 appointed one Glide Investigation services and they also demanded illegal and unnecessary documents although the same were aready in their possession. The complainant filed complaint under section 12 of the 'Act' against opposite party No. 1 at DCF, Mansa on 8-1-2013 and the said Forum gave finding that they do no have the jurisdiction and the jurisdiction lies either with DCF, Ludhiana or DCF, Bathinda. The opposite party No. 1 in the written statement filed before DCF, Mansa has stated that claim is no claim as the car was not registered and their investigator reported that the driver was changed in the claim, which is totally wrong and illegal. Hence, the complainant has filed the present complaint seeking directions to the opposite party Nos. 1 & 2 to pay the claim amount of Rs. 5,64,584/-; opposite party Nos. 1 & 3 to return Rs. 7,000/- and the opposite parties be held liable to pay compensation and cost. The opposite parties filed their separate written statements. The opposite party No. 1 has taken legal objection that this Forum has got no jurisdiction. On merits, the opposite party No. 1 has admitted that the car in question is new one and is insured with it vide cover note No. 931823 effective from 13-01-2012 to 12-01-2013 for the IDV of Rs. 5,64,584/-. It has been pleaded that the complainant has violated the terms and conditions of the policy as well as provisions of Motor Vehicle's Act as the insured vehicle was being plied on the road without any permanent registration number. The car in question was purchased on 13-01-2012, it met with an accident on 18-02-2012 and till the date of accident, it was not having any permanent registration number. The opposite party No. 1 has further pleaded that after receipt of intimation, Mr. Rajpal Singal was deputed to assess the loss to the insured vehicle, who submitted his report dated 10-05-2012 and as such the net loss on total loss basis to the tune of Rs. 3,14,084/- and on net of salvage basis to the tune of Rs. 3,00,000/- if complainant got his vehicle repaired from authorized dealer and if complainant does not get the car repaired, then he will not be allowed for the taxes (VAT) allowed in the said survey report. The opposite party No. 1 has further pleaded that at the time of giving intimation regarding the accident, complainant has telephonically conveyed that insured car was being driven by deceased Vinod Kumar but in the present complaint, the complainant has stated that the car in question was being driven by Sumit Garg. The complainant has changed the driver of the insured car as Vinod Kumar was not holding any valid and effective driving licence to drive the car. The estimate obtained by the complainant from opposite party No. 3 is on higher side. As per terms and conditions of the policy, depreciation is applicable on metal and non-metal parts, which has not been mentioned in the estimate submitted by the complainant. The terms and conditions of the insurance policy were duly supplied to the complainant. The opposite party No. 1 has admitted that M/s. Glide Investigations and Security Services was deputed to investigate the aforsaid claim and the claim of the complainant was declared as 'no claim' as the car was not registered till the date of accident which is violation of terms and condtions of the policy and Motor Vehicles Act. The opposite party No. 2 filed written statement and has taken legal objection regarding jurisdiction on the ground that accident took place at Sangat; loan was raised at Mansa and the insurance policy was issued from Ludhiana. The opposite party No. 2 has pleaded that it has been unnecessarily dragged into litigation. The vehicle in question was hypothecated with opposite party No. 2 and as per terms and conditions, it is deemed to be owner of the vehicle and in case the opposite party No. 1 is directed to make the payment, then under the circumstances, the opposite party No. 2 is entitled for the payment. The opposite party No. 2 has pleaded that since the vehicle was purchased through loan and it becomes the duty of financer to make it sure that the vehicle is comprehensively insured for the future incidents. The insurance premium was received by opposite party No. 1 and the matter is in between the complainant and the opposite party No. 1 to comply with the terms and conditions thereof. The opposite party No. 3 in its separate written statement has pleaded that the claim which has arisen because of the accident is to be settled by the Insurance company i.e. opposite party No. 1. The opposite party No. 2 has issued the cover note after receiving the payment from the complainant and handed over the same to opposite party No. 1. The only allegation against the opposite party is that it has charged Rs.7,000/- for preparing the estimate of repairs as the car in question was to be repaired and it is the common knowledge that a great deal of time and manpower is required to prepare the estimate of repair for which 2% charges of total amount to be charged for the repairs, are being charged from the owner of the vehicle. In the present case only Rs. 7,000/- instead of Rs. 12,871/- being 2% of the total amount of estimate for repairs of the car i.e. Rs. 6,43,594.18 has been charged. The opposite party No. 3 has rightly charged a sum of Rs. 7,000/- from the complainant. Parties have led their evidence in support of their respective pleadings. Arguments heard. Record alongwith written submissions submitted by the parties perused. These are undisputed facts between the parties that Skoda Fobia Car Model 2012 of the complainant bearing registration No. PB-31-J-3260 purchased from opposite party No. 3, hypothecated with opposite party No. 1 is comprehensively insured with opposite No. 1 vide cover note No. 931823 effective from 13-01-2012 to 12-01-2013 for the IDV of Rs. 5,64.584/-. It met with an accident on 18-02-2012 at 10.00 p.m. in the revenue limits of P.S. Sangat near Village Jassi Bagh Wali, District Bathinda. The complainant intimated the loss to opposite party no.1. It deputed Mr. Raj Pal Singal as surveyor, who inspected the accidental car and submitted his report. The opposite party No. 3 prepared the estimate and charged Rs. 7,000/-. Thereafter the opposite party No. 1 deputed M/s. Glide Investigations and Security Services to investigate the aforesaid claim. The claim of the complainant has not been paid till date. The submission of the learned counsel for the complainant is that the complainant has not received any repudiation letter till date, but the opposite party No. 1 has stated in the written statement filed before this Forum that the claim in question is 'no claim' as on the date of the accident, the car of the complainant was not having permanent registration certificate. He submitted that there is no breach of policy condition i.e. contract of insurance and the breach, if any, is with regard to the provisions of the Motor Vehicles Act. He submitted that the plea of the opposite party No. 1 that the driver of the car in question has been changed as Vinod Kumar was not having valid driving licence is wrong as at the time of accident Sumit Garg was driving the said car. On the other hand, the submission of the learned counsel for opposite party No. 1 is that claim is not payable as the vehicle in question was not registered on the date of accident which is a violation of section 39 of Motor Vehicles Act. Moreover, the claim petition regarding the death of Vinod Kumar arising out of the same accident to the insured vehicle has been dismissed by Sh. Gurbir Singh, Hon'ble District Judge, Mansa, on the ground that vehicle was not registered on the date of accident. So, this Forum can neither decide the present dispute nor can sit as appellate authority against said judgement. A perusal of file reveals that no repudiation letter has been placed on file by the opposite parties. However, the opposite party No. 1 has pleaded in para No. 18 on merits in its written statement that the claim of the complainant was declared as 'no claim' as the car was not registered till the date of accident. As per Ex. C-2 the date of registration of the car in question is 15-03-2012 i.e. after the date of accident. The Hon'ble State Commission, Chandigarh, in its order in First Appeal No. 1145 of 7-10-2008 decided on 10-04-2013 titled as Surinder Kumar Bansal Vs. New India Assurance Co., has mentioned in para No. 11 that :- “The matter was considered by the Hon'ble National Commission in a judgement reported as “G Kothainachiar V. United India Insurance Co. Ltd, & Ors., IV (2007) CPJ 347 (NC)” and the distinction was found between the violation of the provisions of the Motors Vehicles Act and the violation of the terms and conditions of the insurance policy. It was held by the Hon'ble National Commission that if the condition of the insurance policy is violated, the repudiation would be legal and valid but if the statutory provisions of the Motor Vehicles Act are violated, the authority under the Act have the right to punish the violator but the insurer will have no right to repudiate the claim. It was held by the Hon'ble National Commssion as under :- “In this case the contention of the opposite party Insurance Company is that the complainant is not entitled to reimbursement of loss/damage caused to his vehicle, from the insurance company as the vehicle was plied without 'fitness certificate', which is in violation of the Motor Vehicles Act, 1988. In support of his contention, reliance is placed upon a decision of this Commission. Against that the complainant has relied on some of the judgements of the 'Apex Court'. 9. It was held by the Hon'ble National Comission as under :- “Findings : At the outset, if is to be stated that liability of the insurance company is two-fold : (i) statutory liability as provided under the Motor Vehicles Act and (ii) liability to the insured as per the terms of the contract. From the facts stated above, it is apparent that there is no breach of policy condition, that is to say that there is no breach of contract of insurance. Hence, on the ground of breach of condition of the policy, the claim cannot be repudiated. The alleged breach is with regard to the provisions of Motor Vehicles Act. Therefore, the question would be whether the Insurance Company can repudiate the claim on the alleged ground of breach of some provisions of the Motor Vehicles Act or some other Act. It is not the case of the Insurance Company that the policy is statutory policy. In our view the Insurance Company cannot repudiate the claim when there is no breach of terms of the policy, because insurance is a matter of contract between the parties. 10. Therefore, the appellants are not entitled to repudiate the claim merely on the ground that the vehicle involved in the accident was not having fitness certificate on the date of accident.” Hence, keeping in view the aforesaid decision of the Hon'ble State Commission, Chandigarh, this Forum is of the considered view that there is deficiency in service on the part of opposite party No. 1 in denying the claim of the complainant. The contention of the opposite party no. 1 that at the time of accident, Vinod Kumar was driving the car in question is not tenable as they have failed to prove this version by placing any cogent and convincing evidence on file. The opposite parties have themselves placed on file the survey report of Mr. Raj Paul Singhal OP-8 wherein he has mentioned the name of driver Sumit Garg. Moreover, in the order Ex. OP-15 filed by the claimants under MACT it has been held that the insurance company has failed to prove that the car in question was being driven by Vinod Kumar at the time of accident. The opposite party No. 1 has also taken a plea that the claim peition regarding the death of Vinod Kumar arising out of the same accident to the insured vehicle has been dismissed by Sh. Gurbir Singh, Hon'ble District Judge, Mansa, on the ground that vehicle was not registered on the date of accident, so, this Forum can neither decide the present dispute nor can sit as appellate authority against said judgement, is without any basis as the matter in the said case is entirely different. The claim filed under MACT is under Motor Vehicles Act whereas the present complaint has been filed under the contract of insurance to get the claim of vehicle. Hence, there is no question of sitting as appellate authority against said judgement in the light of precedent laid down by the Hon'ble State Commission, Punjab, Chandigarh, in the case titled Surinder Kumar Vs. New India Assurance Co. Ltd (supra), as the petition before the Ld. District Court was under the statutory provisions of the Motor Vehicles Act and the complaint before this Forum is for the agreement entered between the parties i.e. liability of the insured as per the contract. Moreover, the remedy under the 'Act' is an additional one. The opposite parties have taken legal objection regarding jurisdiction of this Forum. It is the admitted fact that the accident in question has taken place in District Bathinda. DDR Ex. C-11 has been registered at police station Sangat, District Bathinda. Hence, this legal objection is not tenable as this Forum has the territorial jurisdiction to entertain and try this complaint. Now the matter before us is that to what extent the vehicle in question has suffered loss. The opposite party No. 1 has admitted in para No. 4 of its written statement that the vehicle is a new one. As per Ex. C-5 insurance cover note of the vehicle in question, the IDV of the car in question is Rs. 5,64,584/- and the complainant has paid additional sum of Rs. 3388/- under depreciation waiver plan 'A' . According to Ex. OP-8, the survey report of Mr. Raj Paul Singhal, he has assessed the loss on total loss basis to the tune of Rs. 3,14,084/- and on nett of salvage basis to the tune of Rs. 3,00,000/-. He has assessed the salvage value to the tune of Rs. 2,50,000/-. The surveyor vide his aforesaid report has admitted that the vehicle in question is a total loss. Hence, keeping in view the facts, circumstances and the evidence placed on file, this Forum is of the considered opinion that the complainant is entitled to insurance claim on sub-standard basis i.e. 75% of the IDV Rs.5,64,584/- i.e. Rs. 4,23,438/- becuase there is violation of Motor Vehicles Act as the vehicle was being plied without permannent registration certificate. The opposite party No. 1 can take the salvage of the car in question. Admittedly the car in question is hypothecated with opposite party No. 2 and the said bank has prayed for payment of claim amount to it. Sh. Dheeraj Kachhwaha, Manager, Allahabad Bank, Mansa, District Mansa i.e. opposite party No. 1 has deposed in para No. 1 of his affidavit OP-3 that the complainant has obtained loan from opposite party No. 2 and is not depositing the due installments or accrued interest, but no specific due loan amount is mentioned by him. In such circumstances, no direction can be given for payment of specific amount. So far as return of Rs. 7,000/- charged by opposite party No. 3 is concerned, this Forum is of the view that being the car in question as total loss, charging the said amount is genuine for preparing the estimate keeping in view the manpower involved in it. With utmost regard and humility to the authorities cited by the learned counsel for the opposite parties, they are distinguishable on facts. In view of what has been discussed above, this complaint is accepted against opposite party No. 1 with Rs. 5,000/- as compensation and cost and dismissed qua opposite party Nos. 2 & 3. The opposite party No. 1 is directed to get the ownership documents of the car in question signed from the complainant and at the same time, the complainant will handover the key and salvage of the car in question to the opposite party No. 1. The opposite party No. 1 is directed to pay the amount due against loan account of the complainant in connection with the car in question to opposite party No. 2 with complete detailed statement to the complainant mentioning therein the principal amount and the interest accrued thereon. The opposite party No. 1 will pay the remaining amount of claim to the complainant out of the claim amount of Rs. 4,23,438/-.
The compliance of this order be made within 45 days from the date of receipt of copy of this order. In case of non-compliance within the stipulated period, the amount of Rs. 4,23,438/- will carry interest @ 9% P.A. till realization.
Copy of this order be sent to the parties concerned free of cost and the file be consigned. Pronounced 29-05-2013 (Vikramjit Kaur Soni) President (Amarjeet Paul) Member
(Sukhwinder Kaur) Member | |
