DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, LUDHIANA.



Complaint no.516 of 31.8.2007.

Date of Order 25.3.2009.



Sanjeev Malhotra, Proprietor of M/s Shivam Textiles Mills, situated at village Mehanban Seera Road, Ludhiana.

….Complainant.

Versus



1- Bajaj Allianz General Insurance Company Limited, G.E. Plaza, Airport Road, Yerwada, Pune, through its Head/Director V. Philip, Officer Incharge; and

2- Bajaj Allianz General Insurance Company Limited, branch office at Feroze Gandhi Market, Ludhiana through its Branch Manager/Branch Head.



….Opposite parties.



COMPLAINT UNDER SECTION 12 OF THE CONSUMER PROTECTION ACT, 1986.



Quorum:

Sh. T.N. Vaidya, President.

Sh. Rajesh Kumar, Member.



Present: Sh. C.S. Channa Adv. for the complainant.

Sh. Rajiv Abhi Adv. for opposite parties.

O R D E R



T.N. VAIDYA, PRESIDENT:



1- Complainant being owner of car bearing no.PB-10BL-7415, got the same insured with opposite party vide policy no.OG-07-1001-1801-00033377, valid from 28.3.2007 to 27.3.2008. The car on 6.4.2007, met with an accident, qua which lodged the claim with opposite party, which was wrongly and illegally repudiated by the opposite party. The car is still parked with Saluja Motors, Chandigarh, where it was got repaired. The bill of Rs.178764/- for repair and Rs.8200/- for parking charges from 29.5.2007 till date and interest, total Rs.186478/-, has been issued by Saluja Motors. Opposite party through after receipt of claim, appointed its surveyor to investigate the matter, but despite it, have not settled the same. Such act on part of opposite party amounts to deficiency in service. Hence, the complaint for payment of the bill of Rs.178764/- of Saluja Motors, alongwith compensation of Rs.50000/- for harassment and Rs.5500/- as litigation costs.

2- Opposite party in reply claimed that complaint is not maintainable, it is barred u/s 26 of the Consumer Protection Act. There is no deficiency in service or negligence on their part. Complainant had not answered queries and provided documentary evidence to the opposite party despite their letters dated 17.5.2007, 13.6.2007 and 16.7.2007. Hence, claim was repudiated vide letter dated 24.7.2007. Further claimed that they are not liable for the claimed loss because the vehicle was insured on 28.3.2007, whereas the accidental vehicle of the complainant was taken to workshop of Saluja Motors, Mohali on 23.3.2007, where it was opened and repaired on and after 24.3.2007. No outward gate pass after 23.3.2007 qua this vehicle, was issued by Saluja Motors. So, it was explicitly established that the vehicle was damaged prior to taking insurance policy by the complainant. There was break in the insurance of the vehicle. As previous insurance taken by the complainant, had expired on 12.12.2006. He obtained fresh policy from opposite party effective from 28.3.2007. Further claimed that on receipt of claim from the complainant, M/s Protech Engineers and Loss Assessors were appointed to assess the loss, who submitted their report dated 21.6.2007. Then, M/s Glide Investigation and Security Services, were appointed who investigated record of Saluja Motors, and submited report. So, claim of the complainant is not genuine, as the vehicle was already damaged prior to obtaining insurance policy from the opposite party. They were justified in repudiating the same.

3- Both parties adduced evidence in support of their claims and stood heard through their respective counsels.

4- Though complainant in support of his allegations, has filed his own affidavit Ex.CW1/A and copy of insurance policy Ex.C1. This policy shows that insurance coverage was taken qua the car in question on 28th March, 2007 which was valid upto 27th March, 2008.It is argued on behalf of the complainant that this insurance policy was issued by opposite party after inspecting the vehicle on 28.3.2007, as per document Ex.C7. No doubt, in this inspection report, mentioned that the vehicle was inspected on 28.3.2007 by agent of the opposite party, mentioning that previous policy of the vehicle had expired on 12.12.2006 and that the vehicle was in good condition.

5- However, on behalf of opposite party, argued that some other vehicle was shown instead of insured vehicle and consequently, obtained report Ex.C7. Though the vehicle on that day, was actually an accidental vehicle and parked in garage of Saluja Motors, Mohali, for repairs. This fact was concealed by the complainant and wrongfully obtained insurance coverage from opposite party on 29.3.2007.

6- Though qua non clearance of his claim, complainant issued legal notice Ex.C3 to opposite party, which they replied vide reply Ex.C12.

7- Qua defence of opposite party that the vehicle was damaged on 23.3.2007 prior to purchase of policy on 28.3.2007, reliance is placed on affidavit Ex.RW2/A of Sh. Vinod Madaan of M/s Glide Investigation and Security Services. In support of the report, he has placed on the record, documents obtained from Saluja Motors, to prove his report Ex.R10. Ex.R16 is the certificate issued by Saluja Motors, Mohali, certifying that the vehicle bearing registration no.PB-10BL-7415 arrived in their workshop on 23.3.2007 and was opened on 24.3.2007 vide job card ROAB6031650A dated 24.3.2007. Ex.R15 is entries in the workshop of Saluja Motors, of the different vehicles on that day. This vehicle of the complainant is entered at serial no.25, having taken to the workshop of Saluja Motors on 23.3.2007. As per job card Ex.R17, this vehicle was taken to workshop to do accidental job as per estimate. In affidavit, surveyor has stated that after taking the vehicle to the workshop on 23.3.2007, it was never brought out from the garage of Saluja Motors. Case of the complainant is also that he had taken accidental vehicle to the workshop after accident in April, 2007 and still due to non clearance, is parked in garage of Saluja Motors. Accident is alleged by the complainant on 6.4.2007. When that vehicle was taken to garage of Saluja Motors on 23.3.2007, for repairing accidental damage, there was no question of having taken place the accident on 6.4.2007.

8- In such circumstances, it is manifest that insurance policy was obtained by the complainant subsequent to accident and such accident had not taken place after purchase of the policy from the opposite party.

9- Hon’ble National Commission in Arjandas Brijlal & Co. Vs Oriental Insurance Co. Ltd. I(2007)CPJ-81(NC), has held that getting cover note issued after loss already occurred, complainant would not be entitled for any claim.

10- Similar view was taken by the Hon’ble National Commission in Anthony Rebello Vs New India Assurance Co. III(1996)CPJ-92(NC).

11- In these circumstances of the case, we feel that the insurance company won’t be liable to reimburse claim of the of the complainant. Hence, finding no merits in the complaint, the same stands dismissed, leaving the parties to bear own costs. Copy of order be provided to parties fee of charge. File be completed and consigned.



Announced on 25.3.2009. T.N. Vaidya, President.

(Gurmeet Singh).