Punjab

Ludhiana

CC/19/425

Alok Kumar - Complainant(s)

Versus

National Insurance Company Limited - Opp.Party(s)

Suresh Kumar Adv.

15 Dec 2022

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, LUDHIANA.

                                                Complaint No: 425 dated 05.09.2019.                                                        Date of decision: 15.12.2022.

 

Alok Kumar son of Shri Maghar Lal, Proprietor of M/s. A.K. & Brothers, Basant Nagar, Gaushala Road, Khanna, District Ludhiana.                                                                                                                   ..…Complainant

                                                Versus

1. National Insurance Company Ltd., Khanna Branch, G.T. Road, Khanna, Distt. Ludhiana through its Branch Manager.
2. National Insurance Co. Ltd., Divisional Office-III, Kochar Market, Ludhiana through its Divisional Manager.                                                                                                                          …..Opposite parties 

Complaint Under Section 12 of the Consumer Protection Act, 1986.

QUORUM:

SH. SANJEEV BATRA, PRESIDENT

SH. JASWINDER SINGH, MEMBER

MS. MONIKA BHAGAT, MEMBER

 

COUNSEL FOR THE PARTIES:

For complainant             :         Sh. Suresh Kumar, Advocate.

For OPs                          :         Sh. Rajeev Abhi, Advocate.

 

ORDER

PER SANJEEV BATRA, PRESIDENT

1.                Briefly stated, the facts of the complaint are that complainant Alok Kumar is the Proprietor of M/s. A.K. & Brothers which owns a truck make Tata 1212 bearing registration No.PB10-DC-5260 having been insured by the opposite parties vide policy No.404004/31/15/6300003793 valid up to 29.12.2016. This truck was purchased by the complainant to earn his livelihood. On 12.05.2016, goods were sent from Chopra Industries (P) Ltd., to Munjal Auto (P) Ltd., Bagoria (Vadodra) through Akal Sahai Transport Co. SCO 26, Ist Floor, Rajan Market, Transport Nagar, Ludhiana. However, on the way, on 17.05.2016, the said vehicle met with an accident at village Bhavanpur, Modasa-Shamli Highway Road, Gujarat when the truck was being driven by Gurpreet Singh. Gurpreet Singh was having a valid driving licence bearing No.PB-2320100035111 valid up to 28.09.2016 issued by L.A. Fatehgarh Sahib. The vehicle got damaged in the accident and intimation in this regard was given to the opposite parties. The opposite parties deputed spot surveyor Sh. Aftab A. Gujarati who conducted survey and gave report about the damage of the vehicle. Thereafter, on damage, a claim was lodged with the opposite parties and the complainant fulfilled all the formalities as per the demand of the opposite parties but the opposite parties on 29.12.2017 repudiated the claim on the ground that the vehicle was being driven by Sanjeev Kumar  and there is concealment of this fact and the complainant is not entitled to the claim. According to the complainant, the repudiation has been done on flimsy grounds. In fact, the vehicle was being driven by Gurpreet Singh at the time of accident and not by Sanjeev Kumar. In the report of the spot surveyor  Aftab A. Gujarati, the name of the driver is clearly mentioned as Gurpreet Singh and as such, the report of the surveyor cannot be disbelieved. Sanjeev Kumar is the helper/cleaner and it might be due to misunderstanding or oversight, the name of Sanjeev Kumar written in the documents/GR Builty issued by Akal Sahai Transport Co. whereas in fact Gurpreet Singh was driving the vehicle. After receiving the aforesaid letter, the complainant visited the opposite parties and requested the officials to settle the claim but nothing has been done on their part. The complainant had spent money from his own pocket and got repaired the vehicle of his own by incurring an amount of Rs.2,00,000/- approximately on the repair and for bringing the vehicle from place of accident to Khanna. Due to the aforesaid facts, there is a deficiency in service and unfair trade practice on the part of the opposite parties. The complainant has suffered mental harassment, agony and is entitled to compensation. The complainant has prayd that the opposite parties may be directed to

a. Sanction the claim of policy No.404004/31/15/6300003793 to the tune of Rs.2,00,000/- approx.

b. Pay Rs.1,00,000/- to the complainant as compensation due to harassment and humiliation suffered by the complainant.

c. Pay legal expenses to the tune of Rs.20,000/-.

2.                Upon notice, the opposite parties appeared and filed written statement by taking preliminary objections that the compliant is barred under Section 26 of the Consumer Protection Act. Further the present complaint is not maintainable. Since the immediately on receipt of the claim, it was duly registered, entertained and processed. The complainant has obtained the insurance policy No.404004/31/15/6300003763 valid from 30.12.2015 to 29.12.2016 in respect of truck No.PB-10-DC-5260 from opposite party No.1 which is a contract in itself and the parties are bound by the terms and conditions of the policy. After the receipt of intimation letter dated 13.06.2016, Mr. Aftab A. Gujarati, an IRDA approved Surveyor Loss Assessor and Valuer, 16, Haiz-E-Rasul Park Society, College Road, Modasa, District Sabar Kantha, Gujarat was appointed as spot surveyor, who had personally inspected the spot of the accident, took few necessary photographs, inspected and noted the visual damage to the vehicle and thereafter, prepared the report dated 22.05.2016 under his signatures and submitted the same  to the opposite parties along with enclosures/annexures with the report.

                   Thereafter, Sh. Rajesh Bhatia, an IRDA approved Surveyor and Loss Assessor Valuer (Motor, Machinery and Misc.), resident of B-XXIII-6813/18, Street No.1, New Hargobind Nagar, Ludhiana was appointed by the opposite parties to survey and assess the loss of the vehicle No.PB-10-AC-5260 of M/s. A.K. & Brothers. The said surveyor personally inspected the vehicle, took photographs and other documents and thereafter, prepared report dated 11.03.2017 assessing the loss to be Rs.62,000/- and submitted the same with the opposite parties along with enclosures and annexures  with remarks that “While going through the documents submitted, it was noticed that the name of the driver is mentioned as Sanjeev Kumar in the GR of M/s. Akal Sahai Transport Co. and weight of the goods is not mentioned in the GR and when asked from the insured about the change in the driver’s name he could not reply properly as the insured had submitted the driving licence of Gurpreet Singh son of Bharpur to the spot surveyor as well as to the undersigned. So the insurers are requested to look into the matter before finalizing the claim with the insured.”

                   Mr. Mandeep Sharma, Advocate, District Courts Complex, Ludhiana was appointed as investigator to investigate the OD claim of truck in question. The said investigator submitted his report on 16.10.2017 under his signatures and submitted that “upon the act and conduct of the insured, the insured is concealing the real facts of the case in order to take the ungenuine OD claim. From the totality of the facts and circumstances of the case shows that the version of the insured shows that he has concealing the facts regarding the alleged driver Sanjeev Kumar. But as per the statement of the transporter and as per copy of GR shows that Sanjeev Kumar was driver of truck No.PB-10-DC-5260 at the time of the accident. In my opinion that at the time of accident Sanjeev Kumar was the driver of the truck.” The said investigator had also obtained a certificate from Akal Sahai Logistics clearly stating that the truck No.PB-10-DC-5260 is owned by M/s. A.K. & Brothers, Khanna and the goods have been dispatched through the aforesaid transport company on 12.05.2016 to Chopra Industries Pvt. Ltd. and Sanjeev Kumar was the driver.  The name of Sanjeev Kumar as driver is mentioned on the GR No.5609 dated 12.05.2016.           M/s. Samridhi Associates, Surveyors and Loss Assessors were also appointed for verification of driving licence No.PB-232010035111 of Gurpreet Singh and after getting it verified from Licensing Authority Motor Vehicle, Fatehgarh Sahib, he submitted his report on 17.06.2016. Mr.Amar Nath Taneja, Surveyor & Loss Assessor and Investigators of Ludhiana was also appointed to verify the GR No.5609 dated 12.05.2016 and who submitted his report on 17.06.2017.

                   The opposite parties also sought clarifications from the complainant on 23.03.2017 asking them to clarify that in the GR issued by M/s. Transport Co., name of the driver is mentioned as Sanejev Kumar and the weight of the goods has not been mentioned.  The opposite parties have also demanded driving licence of Sanjeev Kumar from the complainant. The opposite parties after receipt of the reports of Sh. Aftab A. Gujarati dated 22.05.2016, Sh. Rajesh Bhatia dated 11.03.2017 and report of investigator Sh. Mandeep Sharma, Advocate dated 16.10.2017, Sh. Amar Nath Taneja dated 17.06.2017, certificate of M/s. Akal Sahai Logistics dated 05.09.2017, copy of GR No.5609 dated 12.05.2016, M/s Samridhi Associates dated 25.06.2016  and after scrutinizing the documents placed in claim file and after due application of mind by the officials of the opposite parties, the complainant was called upon by the opposite parties vide their letter dated 22.11.2017 to show cause within 7 days as to who was the actual driver of the truck No.PB-10-DC-5260 at the time of the accident i.e. Sanjeev Kumar or Gurpreet Singh since as per GR and certificate issued by the transporter the name of driver is mentioned and disclosed as Sanjeev Kumar whereas as per the claim form the spot surveyor and final surveyor the complainant had declared the name of the driver as Gurpreet Singh and the investigator Sh. Mandeep Sharma, Advocate had confirmed the concealment of the facts regarding the alleged driver Sanjeev Kumar driving the truck No.PB-10-DC-5260 at the time of accident. The complainant has failed to send the clarified as sought for vide letter dated 22.11.2017 and as such the claim of the complainant was repudiated as no claim by the opposite parties vide their letter dated 29.12.2017 on the grounds that there is a concealment of facts regarding the name of driver who was driving the truck in question at the time of the accident. The complainant has adopted fraudulent means and devices to get the claim and had misrepresented the facts. Even the driving licence of Sanjeev Kumar has not been produced which raises the presumption that Sanjeev Kumar was not holding a valid and effective driving licence on the date of the alleged accident. The claim of the complainant as such has rightly been repudiated as no claim. The grounds of repudiation are legal, valid and enforceable and are not in accordance with the terms and conditions of the policy obtained by the complainant. The opposite parties have also claimed that the complaint is not maintainable since M/s. A.K. & Brothers is neither a proprietorship concern nor Sh. Alok Kumar is its proprietors. The complainant is neither competent nor has got any locus standi to file the present complaint and same deserves dismissal.

                   On merits, the opposite parties reiterated the crux of averments made in the preliminary objections and they have denied that there is deficiency of service and have also prayed for dismissal of the complaint.

3.                In support of his claim, the complainant tendered his affidavit Ex. CA in which he reiterated the allegations and the claim of compensation as stated in the complaint. The complainant also tendered documents Ex. C1 is copy of insurance policy, Ex. C2 is copy of driving licence of Gurpreet Singh, Ex. C3 is copy of RC of the truck No.PB10-DC-5260, Ex. C4 is copy of Certificate of fitness of the truck in question, Ex. C5 is copy of Authorisation Certificate of N.P. (Goods) of the vehicle in question, Ex. C6 is the copy of the permit, Ex. C7 is copy of National Permit for Goods Carriage, Ex. C8 is the copy of survey report dated 22.05.2016 of Aftab A Gujarati, Surveyor, Ex. C9 is copy of verification of driving licence of Gurpreet Singh, Ex. C10 is copy of letter dated 10.04.2017 written by complainant, Ex. C11 is copy of letter dated 29.12.2017 written by the opposite parties, Ex. C12 to Ex.C26 are copies of estimate/bills of repair of the truck in question, Ex. C27 is copy of cash receipt of Sh. Aftab A. Gujarati, Surveyor. Mr. Sanjeev Kumar also tendered his affidavit Ex. CX stating therein that he is doing the job of cleaner/helper and Sh. Gurpreet Singh is he permanent driver. He further explained that how his signatures were obtained by one Karambir Singh on GR No.5809 dated 12.05.2016 in the driver column as there was no other column for receiver to sign. He was deputed by truck driver Gurpreet Singh for collecting said GR No.5809 dated 12.05.2016. He has also submitted that on 17.05.2016, the said truck met with an accident at Modasa-Shamli Highway Road, Gujarat being driven by Gurpreet Singh. The opposite parties deputed spot surveyor Sh. Aftab A. Gujarati who conducted spot survey and submitted his report about badly damage of the vehicle but the respondents repudiated the claim vide letter dated 29.12.2017 on the ground that the vehicle was driven by him. However, the vehicle was driven by Gurpreet Singh. Thereafter, the complainant closed the evidence

4.                On the other hand, counsel for opposite parties tendered affidavit Ex. RA of Ms. Kanchan Bansal, Divisional Manager of the opposite parties, affidavit Ex. RB of Mr. Aftab A. Gujarati, an IRDA approved Surveyor Loss Assessor and Valuer, District Aravli, Gujarat  affidavit Ex. RC of Sh. Rajesh Bhatia, an IRDA approved Surveyor and Loss Assessor Valuer (Motor, Machinery and Misc.) New Hargobind Nagar, Ludhiana, affidavit Ex. RD of  Sh. Mandeep Sharma, Advocate, Ludhiana, affidavit Ex. RE of Sh. Ankit Bharat of M/s. Samridhi Associates, Surveyors and Loss Assessors, Khalsa School Road, Khanna, District Ludhiana along with documents Ex. R1 is the repudiation letter dated 29.12.2017, Ex. R2 to Ex. R5, Ex. R9, Ex. R10, Ex. R16 to Ex. R19  is the interse correspondence between the parties,  Ex. R6 is the investigation report of Sh. Mandeep Sharma, Advocate, Ex. R7 is the certificate issued by Akal Sahai Logistics, Ex. R8 is toll receipt, Ex. R11 is letter dated 03.08.2017 of the opposite parties, Ex. R12 is the verification report of Sh. Amar Nath Taneja, Surveyor and Loss Assessor, Ex. R13, Ex. R14 and Ex. R54 are the copies of GR dated 12.05.2016, Ex. R15 is the receipt of weigh machine, Ex. R20 is the motor survey report of Sh. Rajesh Bhatia, Surveyor and Loss Assessor,  Ex. R21 to Ex. R28 and Ex. R58 to Ex. R61 are the photographs of the damaged vehicle, Ex. R29 to Ex. R44 are the copies of estimate/bill of the repair of the vehicle, Ex. R45 is the cash receipt of Aftab A. Gujarati, Surveyor, Ex. R46 is motor insurance claim form, Ex. R47, Ex. R62 and Ex. R79 are the copies of insurance policy No.404004/31/15/6300003793 valid from 30.12.2015 to 29.12.2016, Ex. R48 and Ex. R63 are the copies of registration certificate of vehicle No.PB10-DC-5260, Ex. R49, Ex. R66 and Ex. R74 are the copies of driving licence of Gurpreet Singh, Ex. R50, Ex. R64 and Ex. R75are the copies of certificate fitness of the vehicle No.PB10-DC-5260, Ex. R51 is the copy of permit of the vehicle, Ex. R52 and Ex. R65 are the copies of Authorisation Certificate of N.P. (Goods), Ex. R53 is the affidavit of Alok Kumar, Ex. R55 is the intimation letter, Ex. R56 is the copy of cash receipt of Sh. Aftab A. Gujarati, Surveyor and Loss Assessor, Ex. R57 and Ex. 76 are the Motor Spot Survey Report of Sh. Aftab A. Gujarati, Surveyor and Loss Assessor, Ex. R67 to Ex. R71 are the copies of  report/documents submitted by Sh. Randhir Singh, Investigator, Ex. R72 is the copy of report of Samridhi Associates, Surveyor and Loss Assessor, Ex. R73 is the report of District Transport Officer, Fatehgarh Sahib, Ex. R77 and Ex. R78 are the copies of letters dated 13.06.2016 of the opposite parties and Ex. R80 is the copy of Commercial Vehicles Package Policy of the opposite parties and closed the evidence.

5.                We have heard the arguments of the counsel for the parties and also gone through the complaint, affidavit and annexed documents and written reply along with affidavit and documents produced on record by both the parties.      

6.                The point of determination in this case is that who was driving the vehicle bearing registration No.PB10-DC-5260 at the time of accident on 17.05.2016 in the area of village Bhavanpur, Modasa-Shamli Highway Road, Gujarat.

7.                There is no dispute with the fact that immediately the opposite parties were intimated by the complainant regarding the accident. Sh. Aftab A. Gujarati, an IRDA approved Surveyor ad Loss Assessor and Valuer, District Aravli, Gujarat was appointed as spot surveyor who personally inspected the spot of accident, took necessary photographs, inspected and noted the visual damage of the vehicle and submitted his report dated 22.05.2016 Ex. C8. Mr. Aftab A. Gujarati has also submitted his affidavit Ex. RA and further mentioned that the spot inspection may be read as this affidavit. In the report, the particulars of the driver has been mentioned as under:-

Name of Driver              :         Mr. Gurpreet Singh S/o. Bharpoor Singh

Licence No.                    :`       PB-2320100035111

Date of issue                   :         29/09/2010

Valid up to                     :         28/09/2016

Issuing authority             :         RTO-Fatehgarh (Punjab)

Type of licence               :         MCWG, LMV, LMV-G.V., T.V.

Badge No.                      :

Authorized to Drive        :         T.V.

 

Meaning thereby that Mr. Gurpreet Singh was driving the vehicle at the time of accident. He also mentioned in the report that the insured cleaner Mr. Sanjiv Kumar S/o. Surendra Kumar got minor injuries. Driving licence of Gurpreet Singh was also got verified by the opposite parties through M/s. Samridhi Associates from Licensing Authority, Fatehgarh Sahib which was found to be valid. Mr. Sanejev Kumar in his affidavit Ex. CX also submitted that he is doing job of cleaner/helper and on 12.05.2017 he along with driver Gurpreet Singh went to the premises of M/s. Akal Sahai Logistics at SCO 26, Rajan Market, Transport Naga, Ludhiana. Mr. Karanbir Singh who is incharge and responsible for the conduct of that firm obtained his signatures on the said bilti in the driver column as there was no other column for receiver to sign. He was deputed by truck driver Gurpreet Singh for collecting said GR No.5809 dated 12.052016.

                   However, the other surveyors Mr. Rajesh Bhatia, Sh. Mandeep Sharma, Advocate found that since in the GR dated 12.05.2016 of Sh. Akal Sahai Logistics Ex. R13 mentions the name of Sanjeev Kumar as driver and hence it will be presumed that it is Sanjeev Kumar who was driving the vehicle and not Gurpreet Singh and the complainant had concealed this fact which lead to the repudiation of the claim. Perusal of Ex. R7 the certificate issued by Akal Sahai Logistics shows that GR was issued on 12.05.2016 and it has been mentioned in Ex. R7 that the GR was received by truck driver Sanjeev Kumar. The accident had occurred on 17.05.2016. The point of determination is that who was driving the vehicle on 17.05.2016 and not that who received the GR from Akal Sahai Logistics. Mere figuring of name of Sanjeev Kumar as driving five days prior t the accident cannot be made basis to conclude that at the time of accident, it is Sanjeev Kumar who was driving the vehicle and not Gurpreet Singh. It has also coming to the report that Sanjeev Kumar is a cleaner who was present at the time of spot inspection. As such, the repudiation of the claim is wrong and unjustified.

8.                Sh. Rajesh Bhatia, Surveyor, Loss Assessor and Valuer vide his report Ex. R20 has given his report in respect of cause and nature of accident and assessed the loss/damage to the truck in question as Rs.62,000/-. The complainant has not controverted the facts mentioned in the written statement, so far as the surveyor report Ex. R20 is concerned as the complainant has neither filed any objections to controvert the averments made in the written statement.

9.                As a result of above discussion, the complaint is partly allowed with an order that the opposite parties shall pay the claim of Rs.62,000/- to the complainant as per survey report Ex. R20 along with interest @8% per annum from the date of filing of the complaint till date of actual payment. The opposite parties shall further pay a composite cost of Rs.10,000/- (Rupees Ten Thousand only) to the complainant. Compliance of the order be made within 30 days from the date of receipt of copy of order. Copies of the order be supplied to the parties free of costs as per rules. File be indexed and consigned to record room.

10.              Due to huge pendency of cases, the complaint could not be decided within statutory period.

 

(Monika Bhagat)          (Jaswinder Singh)                      (Sanjeev Batra)                          Member                            Member                                      President         

 

Announced in Open Commission.

Dated:15.12.2022.

Gobind Ram.

 

 

Alok Kumar Vs National Insurance Co. Ltd.                            CC/19/425

Present:       Sh. Suresh Kumar, Advocate for complainant.

                   Sh. Rajeev Abhi, Advocate for OPs.

 

                   Arguments heard. Vide separate detailed order of today, the complaint is partly allowed with an order that the opposite parties shall pay the claim of Rs.62,000/- to the complainant as per survey report Ex. R20 along with interest @8% per annum from the date of filing of the complaint till date of actual payment. The opposite parties shall further pay a composite cost of Rs.10,000/- (Rupees Ten Thousand only) to the complainant. Compliance of the order be made within 30 days from the date of receipt of copy of order. Copies of the order be supplied to the parties free of costs as per rules. File be indexed and consigned to record room.

                 

(Monika Bhagat)          (Jaswinder Singh)                      (Sanjeev Batra)                          Member                            Member                                      President         

 

Announced in Open Commission.

Dated:15.12.2022.

Gobind Ram.