Order by:
Sh.Amrinder Singh Sidhu, President
1. This Consumer Complaint has been received by transfer vide order dated 26.11.2021 of Hon’ble President, State Consumer Disputes Redressal Commission, Punjab at Chandigarh under section 48 of CPA Act, vide letter No.04/22/2021/4 C.P.A/38 dated 17.1.2022 from District Consumer Commission, Ludhiana to District Consumer Commission, Moga to decide the same in Camp Court at Ludhiana and said order was ordered to be affected from 14th March, 2022.
2. The complainant has filed the instant complaint under section 12 of the Consumer Protection Act, 1986 (now section 35 of Consumer Protection Act, 2019) on the allegations that he purchased a new car bearing RC No.PB-10-GB-7015 from Opposite Party No.2 and got insured from Opposite Party No.1 vide policy No.35101031166139191216 valid for the period w.e.f.16.10.2016 to 15.12.2017. Further alleges that said insured vehicle of the complainant met with an accident on 22.04.2017 and in this regard, the complainant immediately informed the Opposite Parties and the vehicle was brought to Opposite Party No.2 and Opposite Party No.2 told that as per the clearance of Opposite Party No.1 or its surveyor the car was to be repaired. Thereafter, the surveyor was appointed by Opposite Party No.1 to assess the loss and as per the directions of Opposite Party No.1 and its surveyor, the vehicle in question was got repaired by the complainant from Opposite Party No.2 and accordingly, the surveyor accepted the proposal of Opposite Party No.2 to the extent of Rs.1 lakh for the repair of the car in question. But lateron, it has come to the notice of the complainant that the claim of the complainant was repudiated by the Opposite Party No.1 on the false and frivolous grounds and as such, there is deficiency in service on the part of the Opposite Parties. Vide instant complaint, the complainant has sought the following reliefs.
a) The Opposite Party No.1 may be directed to pay the entire claim for the loss suffered by the complainant on account of accident of the car and further Opposite Party No.2 be also directed to hand over the repaired car and to pay compensation of Rs.5 lakhs on account of mental tension and harassment who have got repaired the car without the consent of the complainant or any other relief to which this District Consumer Commission may deem fit be also granted.
3. Opposite Party No.1 appeared through counsel and contested the complaint by filing the written version taking preliminary objections therein inter alia that the complaint filed by the complainant is not maintainable and is liable to be dismissed as the complainant has attempted to misguide and mislead this District Consumer Commission. It is submitted that immediately on the receipt of the claim, it was duly registered, entertained and processed. It is further submitted that the vehicle in question bearing RC No.PB-10-GB-7015 from Opposite Party No.2 was got insured from Opposite Party No.1 vide policy No.35101031166139191216 valid for the period w.e.f.16.10.2016 to 15.12.2017. The insurance policy so obtained is a contract in itself and the parties are bound by the terms and condition of the policy. It is one of the conditions in the policy under the head Limitation as to Use that the policy dies not cover use for (i) Hire or reward (2) carriage of goods )other than samples or personal luggage (3) organized racing (4) pace making (5) speed testing (6) reliability trials (7) any purpose in connection with motor trade. The surveyor of the Opposite Party No.1 duly scrutinized the claim of the complainant and found and submitted his report that in view of gross violation of the terms and conditions of the policy under the head Limitation as to Use as the policy does not cover the use as narrated above, so since the surveyor has observed that the vehicle at the time of loss was being driven under hire and reward as the vehicle at the time of inspection was found having installed Advertisement Stickers of different companies on all the four doors, which is the gross violation of the terms and conditions of the policy under the head Limitation as to use and hence, the claim of the complainant was rightly repudiated as no claim. On merits, the Opposite Party No.1 took up the same and similar pleas as taken up by them in the preliminary objections. Hence, the instant complaint is not maintainable and the same may be dismissed with costs.
4. Opposite Party No.2 appeared through counsel and contested the complaint by filing the written version taking preliminary objections therein inter alia that the complaint filed by the complainant is not maintainable and is liable to be dismissed as neither there is any negligence nor deficiency in service on the part of the Opposite Party No.2. the complainant is himself liable to pay the repair charges of his car to take away his repaired car and deliver back the car of the Opposite Party No.2 so loaned out to him on his request. Opposite Party No.1 has repudiated the claim of the complainant qua his car so the complainant is personally liable to make the payment of the repair bills of his car amounting to Rs.1,08,467.25 paisa and hence, there is no deficiency in service on the part of Opposite Party No.2. Moreover, the answering Opposite Party has been unnecessarily arrayed as part must to extort money. On merits, Opposite Party No.2 took up the same and similar pleas as taken up by them in the preliminary objections. Hence, the instant complaint is not maintainable and the same may be dismissed with costs.
5. In order to prove his case, the complainant has tendered into evidence the affidavit Ex.CA alongwith copies of documents Ex.C1 to Ex.C8 and closed the evidence.
6. On the other hand, to rebut the evidence of the complainant, Opposite Party also tendered into evidence the affidavits Ex.RA, Ex.RB, Ex.RC alongwith copies of documents Ex.R1 to Ex.R40. Similarly, Opposite Party No.2 tendered into evidence affidavit Ex.RWA alongwith copies of documents Ex.R1/2 and Ex.R4/2 and thereafter, the Opposite Parties closed their evidence.
7. We have heard the ld.counsel for the parties, perused the written arguments of the Opposite Party No.1 and also gone through the documents placed on record.
8. Ld.counsel for the Complainant as well as ld.counsel for the Opposite Parties have mainly reiterated the facts as narrated in the complaint as well as in their written statements respectively. We have perused the rival contention of the ld.counsel for the parties. The only contention of the complainant is that the complainant purchased a new car bearing RC No.PB-10-GB-7015 from Opposite Party No.2 and got insured from Opposite Party No.1 vide policy No.35101031166139191216 valid for the period w.e.f.16.10.2016 to 15.12.2017. Further alleges that said insured vehicle of the complainant met with an accident on 22.04.2017 and in this regard, the complainant immediately informed the Opposite Parties and the vehicle was brought to Opposite Party No.2 and Opposite Party No.2 told that as per the clearance of Opposite Party No.1 or its surveyor the car was to be repaired. Thereafter, the surveyor was appointed by Opposite Party No.1 to assess the loss and as per the directions of Opposite Party No.1 and its surveyor, the vehicle in question was got repaired by the complainant from Opposite Party No.2 and accordingly, the surveyor accepted the proposal of Opposite Party No.2 to the extent of Rs.1 lakh for the repair of the car in question. But lateron, it has come to the notice of the complainant that the claim of the complainant was repudiated by the Opposite Party No.1 on the false and frivolous grounds and as such, there is deficiency in service on the part of the Opposite Parties. On the other hand, ld.counsel for the Opposite Party No.1 has repelled the aforesaid contention of the ld.counsel for the complainant on the ground that admittedly the vehicle in question bearing RC No.PB-10-GB-7015 from Opposite Party No.2 was got insured from Opposite Party No.1 vide policy No.35101031166139191216 valid for the period w.e.f.16.10.2016 to 15.12.2017. The insurance policy so obtained is a contract in itself and the parties are bound by the terms and condition of the policy. It is one of the conditions in the policy under the head Limitation as to Use that the policy dies not cover use for (i) Hire or reward (2) carriage of goods )other than samples or personal luggage (3) organized racing (4) pace making (5) speed testing (6) reliability trials (7) any purpose in connection with motor trade. The surveyor of the Opposite Party No.1 duly scrutinized the claim of the complainant and found and submitted his report that in view of gross violation of the terms and conditions of the policy under the head Limitation as to Use as the policy does not cover the use as narrated above, so since the surveyor has observed that the vehicle at the time of loss was being driven under hire and reward as the vehicle at the time of inspection was found having installed Advertisement Stickers of different companies on all the four doors, which is the gross violation of the terms and conditions of the policy under the head Limitation as to use and hence, the claim of the complainant was rightly repudiated as no claim.
9. In such a situation, we are of the view that even if the complainant has breached the terms and conditions of the policy in question, even then the Insurance Company ought to have settled the claim of the complainant on “non standard basis” even if some of the conditions of the insurance policy are not adhered by the insured. In this regard, we are supported with judgment in case titled National Insurance Company Limited versus Kamal Singhal IV (2010)CPJ297 (NC) wherein the Hon'ble National Consumer Disputes Redressal Commission, New Delhi relying upon various decisions of the National Consumer Disputes Redressal Commission in the matter of (1) National Insurance Company Ltd. v. J. P. Leasing & Finance Pvt. Ltd. (RP No. 643/2005), (2) Punjab Chemical Agency v. National Insurance Company Ltd. (RP No. 2097/2009), (3) New India Assurance Co. Ltd. v. Bahrati Rajiv Bankar, (RP) No. 3294/2009) and (4) National Insurance Company Ltd. v. Jeetmal, (RP No.3366/2009) and also judgment of the Hon'ble Apex Court in the matter of Insurance Company Versus Nitin Khandewal IV (2008) CPJ 1(SC), held the breach of condition of the policy was not germane and also held further that : “the appellant Insurance Company is liable to indemnify the owner of the vehicle when the insurer has obtained comprehensive policy to the loss caused to the insurer”. The Hon'ble Supreme Court has further held that; “even assuming that there was a breach of policy, the appellant Insurance Company ought to have settled the claim on “non-standard basis.” Hon'ble Apex Court in back drop of these features, in these cases, allowed 70% of the claim of the claimant on the “non-standard basis”. This view was again reiterated by the Hon'ble Apex Court in the matter of Amalendu Sahoo versus Oriental Insurance Company Limited. II(2010) CPJ 9(SC)=II (2010)SLT 672. Hon'ble National Commission in the case National Insurance Company Limited versus Kamal Singhal referred to above relying upon the law laid down by the Hon'ble Supreme Court has held that;
“there being a long line of decisions on this score, we have no option but to uphold the finding of Fora below with modification that the claim be settled on 'non-standard' basis”, in terms of the guidelines issued by the Insurance Company. In case petitioner company fails to carry out the direction contained therein, the amount payable on 'non-standard' basis, shall carry interest @ 6% p.a from the date of expiry of six weeks till the date of actual payment”.
10. In such a situation the repudiation made by Opposite Party No.1 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.
11. Now come to the quantum of compensation. As per the report of Surveyor UPS Sachdeva & Co. Ex.R1 produced by Opposite Party No.1 itself, said surveyor made detailed report and assessed the Net Amount Payable to Insured to the extent of Rs.96,700/- and 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 24th 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.” Hon’ble National Commission in the case of Ankur Surana v. United India Insurance Co. Ltd., reported in I (2013) CPJ 440 (NC), wherein it has been observed that "it is well established by now that the report of the surveyor is an important document and the same should not be rejected by the Fora below unless cogent reasons are recorded for doing so. The State Commission has stated that it did not see any legal ground before the District Forum to reject the report of the Surveyor. The report of the surveyor should have been rebutted on behalf of the complainant/petitioner since the respondents/OPs had filed the surveyor's report as their evidence." and hence having regard to the position of the law, as has been laid down, by the Hon'ble Apex Court in the various decisions referred to here-in-above and also the view expressed by the Hon'ble National Commission, we are of the considered view that in the present case the complainant, if not entitled for the entire sum assured as assessed by the surveyor, the Insurance Company definitely ought to have settled the complainant's claim on 'non-standard basis”, which in the facts and circumstances taking the assistance of the view expressed by the Hon'ble Apex Court and also by the Hon'ble National Commission, we allow 70% of the assessed amount on 'non-standard' basis” of the surveyor report.
12. In view of the aforesaid facts and circumstances of the case, we allow the complaint of the Complainant partly and direct the Opposite party No.1-Insurance Company to make the payment of Rs.67,690/- (Rupees sixty seven thousands six hundred ninety only) i.e. 70% of the assessment of surveyor of Rs.96,700/- of the insured vehicle to the Complainant alongwith interest @ 8% per annum from the date of filing the present complaint i.e. 31.10.2017 till its actual realization. The compliance of this order be made by Opposite Party No.1 within 60 days from the date of receipt of this order, failing which the complainant shall be at liberty to get the order enforced through the indulgence of this District Commission. Copies of the order be furnished to the parties free of cost by District Consumer Commission, Ludhiana and thereafter, the file be consigned to record room after compliance.
13. Reason for delay in deciding the complaint.
This Consumer Complaint was originally filed at District Consumer Disputes Redressal Forum (Now Commission) at Ludhiana and it keep pending over there until Hon’ble State Consumer Disputes Redressal Commission, Punjab vide letter No.04/22/2021/4 C.P.A/38 dated 17.1.2022 has transferred the instant Consumer Complaint alongwith Other Complaints to District Consumer Commission, Moga with directions to work on this file onward from 14th March, 2022 and accordingly District Consumer Commission, Moga has decided the present complaint at Camp Court, Ludhiana, as early as possible as it could decide the same
Announced in Open Commission at Camp Court, Ludhiana.
