| Final Order / Judgement | DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, BATHINDA C.C. No. 205 of 07-08-2018 Decided on : 25-11-2021 Angrej Singh aged about 38 years, S/o Labh Singh R/o # 608 Near R O System, Village Mehma Sarja, District Bathinda. ........Complainant Versus The New India Assurance Co. Ltd., Branch Office, Mal Godam Road, Rampura Phul, District Bathinda 151 103. Punjab Kashmir Finance Limited, SCF-70, Ist Floor, Phase -1, Model Town, Bathinda, through its Manager
.......Opposite parties
Complaint under Section 12 of the Consumer Protection Act, 1986 QUORUM Kanwar Sandeep Singh, President Sh. Shivdev Singh, Member. Smt. Paramjeet Kaur, Member Present For the complainant : Sh. Naresh Garg, Advocate. For opposite parties : Sh. Ishwinder Pal Singh, Advocate, for OP No. 1. OP No. 2 exparte ORDER Kanwar Sandeep Singh, President The complainant Angrej Singh (here-in-after referred to as complainant) has filed this complaint U/s 12 of Consumer Protection Act, 1986 (Now C.P. Act, 2019, here-in after referred to as 'Act') before this Forum (Now Commission) against New India Assurance Co. Ltd., and another (here-in-after referred to as opposite parties). Briefly stated, the case of the complainant is that he is the owner of Truck bearing Registration No. PB-10-DZ-7155 and the vehicle is duly hypothecated with opposite party No. 2. It is alleged that the vehicle is comprehensively insured (Package Policy) vide Insurance Certificate No.36060431170100000715 w.e.f. 12-06-2017 to 11-06-2018 with opposite party No.1. The opposite party No.1 issued said Certificate only and they never issued complete policy to complainant in this regard, although the same is mandatory. It is also alleged that 13-03-2018 at about 9 p.m. the above said truck met with an accident Near Takhrawali, P.S. Lalgarh Jattan, Distt. Ganga Nagar. At that time the vehicle was being driven by the complainant himself. FIR No.59 dated 15-03-2018 was duly registered at P.S. Lalgarh Jattan, in this regard. At the time of accident, the truck was loaded with 560 cement bags i.e. 28 metric tonne i.e. within permitted sanctioned load as per R.C. GR No.FGS/RRCB/3124 dated 13-03-2018 of Shree Cement Ltd., Hoshiarpur already given to opposite party No. 1 in this regard. It is further alleged that intimation of accident was immediately given to the office of opposite party No.1 and they appointed Spot Surveyor from Sri Ganganagar Mr. A.K. Sarawagi, who visited spot on 16-03-2018 and surveyed the vehicle at spot. Thereafter, the truck was shifted to repairer at Rampura Phul, Distt. Bathinda with the help of another vehicle by spending Rs.5,000/-. Thereafter opposite party No.1 appointed another surveyor Mr. A.S. Sodhi (A.S. Sodhi & Co.) from Jalandhar. It is pleaded that the complainant spent about Rs.9,89,467/- (Rs.9,84,467/- + Rs.5,000/-) on repair of the vehicle and shifting charges. All the original bills are in possession of opposite party No.1 through the above said surveyor. The total repair carried under the supervision of the surveyor of opposite party No.1 under their instructions. All the necessary documents i.e. photocopy of the R.C, D.L, F.I.R, Insurance cover certificate, original bills and G.R etc., were already supplied to the opposite party No. 1. At the time of survey, the surveyor of opposite party No.1 obtained signatures of complainant on Blank Claim Form, different 5/6 blank papers, blank vouchers, blank consent Form and blank full and final voucher and gave the assurance that the full claim will be paid after applying depreciation clause as per GR-9 of the IMT. The surveyor and opposite parties never sent any spot or final survey report to complainant, although the same is mandatory. It is alleged that the complainant inquired many times regarding his claim from the office of opposite party No.1, but they failed to give satisfactory reply till date and sitting over the claim of the complainant. Due to non-payment of the claim i.e. Rs.9,89,467/- (Rs.9,84,467/- + Rs.5,000/-) the complainant suffered mental agony and pains for which he claimed compensation to the tune of Rs.1,00,000/-. The complainant also sent letters dated 20-07-2018 and 31-07-2018 to opposite party No.1 and demanded his claim, but to no effect. It is further alleged that vide dated 01-08-2018, opposite party No.1 illegally rejected the claim of complainant on the basis of report of Mr. Subash C. Ahuja alleged Investigator. The opposite party No.1 appointed Subash C. Ahuja alleged investigator without any authority and without any approval whereas the same is mandatory under Insurance Act. He prepared the report as per wishes of opposite party No. 1 without any authority. It is pleaded that truck was not overloaded and the same is duly proved from G.R. Moreover, the truck is not met with an accident due to cement bags loaded in the vehicle. The complainant has detailed various authorities in his complaint, but for the sake of brevity, the same are not reproduced here. On this backdrop of facts, the complainant has prayed for directions to opposite party No.1 to pay total loss amount of Rs.9,89,467/- (Rs.9,84,467/- + Rs.5,000/-) with interest @ 18% P.A. alongwith damages to the extent of Rs.1,00,000/- in addition to Rs.50,000/- as litigation expenses. Registered A.D. notice of complaint was sent to the opposite parties, but none appeared on behalf of opposite party No. 2. As such, exparte proceedings were taken against it. The opposite party No. 1 appeared through counsel and contested the complaint by filing written reply. In written reply, the opposite party No. 1 took legal objections that intricate questions of law and facts are involved in the complaint, which requires voluminous documents and evidence for determination. It is not possible in the summary procedure under the 'Act' and appropriate remedy, if any, lies only in the Civil Court. That the complainant has concealed material facts and documents. It is pleaded that complainant has concealed the fact that opposite party No. 1 deputed Mr. Subhash C. Ahuja as investigator, who conducted investigation of the vehicle in question. As per report of investigator, the photographs of the trailer captured from behind, it can easily estimate the number of bags as per rows and line-wise. As per trailer (Height x Length x Width) and also as per cement bag (Height & Length x width) total 840 bags can be seen loaded in the trailer easily. As per measurement of cement bags & Trailer, it was the possibility of total 07 rows having twelve bags in single row. As per height of the trailer, there may be 10 rows. After calculation, possibility of loading of total 840 bags can be found. As per volume of the Trailer & Cement Bag, it is found that (920 cft divide by 1.25 cft) 736 bags were in the trailer. Further that as per R.C. book of the vehicle in question the vehicle was authorized to carry 27890 KG (40200 Kg-12310 Kg) meaning thereby weight near about 28 MT. If minimum 736 bags were counted in the truck, then this weight comes to 36800 Kgs i.e. that the insured vehicle was carrying more goods than its fixed capacity (36,800 Kg 36.8 MT). As such, the vehicle was overloaded. Further Er. lnderpreet Singh Johar, Valuer, Surveyor & Loss Assessor, visited at Ramgarh to verify the G.R. He found that there is no dump or dealer of Shree Cement as per address of consignee on GR. It is pleaded that opposite party No. 1 also deputed A.S. Sodhi & Company, Surveyor & Loss Assessors & Investigators. He surveyed the vehicle in question and assessed the loss at Rs.3,87,662.34 after applying depreciation and other provisions of IMT. Further legal objections are that the present complaint is bad for non joinder of necessary parties. That the complainant is not consumer. That the complainant has no locus standi or cause of action to file the complaint. On merits, the opposite party No. 1 has pleaded that insurance is subject to terms and conditions of policy and provisions of Indian Motor Tariff (IMT). It is admitted that at the time of accident, the vehicle was loaded with cement but it is denied that the truck was loaded with 560 cement bags i.e. 28 MT within the permitted sanctioned load as per RC. As per investigation report the truck at the time of alleged accident was loaded with 36.8 MT cement, which is against the provisions of IRDA and IMT. The opposite party admitted that claim of the complainant was rejected vide letter dated 01-08-2018 but denied that opposite party illegally rejected the claim. The opposite party has pleaded that if this Commission comes to the conclusion that the complainant is entitled to any relief, in that event complainant is entitled to Rs.3,87,662.34 only as per survey report and assessment of loss after applying salvage and depreciation. After controverting all other averments, the opposite party prayed for dismissal of complaint. In support of his claim, the complainant has tendered into evidence his affidavit dated 7-8-2018 (Ex. C-1), photocopy of Insurance Certificate (Ex. C-2), photocopy of FIR (Ex. C-3), photocopy of GR (Ex. C-4), photocopy of RC (Ex. C-5), photocopy of DL (Ex. C-6), photocopy of no claim letter (Ex. C-7) and closed the evidence. In order to rebut the evidence of complainant, opposite party No. 1 has tendered into evidence photocopy of Investigation Report (Ex. OP-1/1), photocopy of letter (Ex. OP-1/2), photocopy of letter (Ex. OP-1/2), photocopy of survey report (Ex. OP-1/3), photocopy of letters (Ex.OP-1/4 & Ex. OP-1/5), affidavit of Sh. Ashish Pal dated 4-10-2018 (Ex. OP-1/6) and closed the evidence. We have heard learned counsel for the parties and gone through the record. There is no dispute regarding ownership and insurance of Truck of complainant bearing registration No. PB-10-DZ-7155. There is also no dispute that accident of the vehicle in question took place on 13-3-2018 and upon intimation by complainant at Sri Ganganagar office of opposite party No. 1, they deputed Mr. A K Sarawagi, spot surveyor from Sri Ganganagar. Thereafter vehicle was shifted at Rampura Phul for repair. It is admitted fact of the parties that thereafter opposite party No. 1 appointed Mr. A S Sodhi, final surveyor from Jallandhar. It is also not disputed that opposite party No. 1 also appointed Investigator Mr. Subash C Ahuja and that the claim of the complainant has been rejected vide letter dated 1-8-2018. A perusal of letter dated 1-8-2018 (Ex. C-7) reveals that claim of the complainant was rejected by opposite party No. 1 on the basis of report dated 19-5-2018 (Ex. OP-1/1) of Mr. Subash C Ahuja, Investigator, vide which he has concluded that vehicle in question was carrying load of 36800 Kgs which was more than its carrying capacity and the overloading comes to 8910 Kgs i.e. 22.16% whereas RC, GVW is 40200 and unladen weight is 12310 Kgs and that the claim is not payable as overloading is beyond permissible limit. The said Investigator has arrived at this conclusion by calculation method considering height, width and length of trailor and cement bags. He has considered the size/volume of cement bag by getting information through internet. He has also mentioned in his report that after accident cement bags were spread all over the body shell of trailor. The investigator has given finding that as per measurement of cement bags and trailer it is possiblity of 7 rows having 12 bags in single row. He has further mentioned that as per height of trailer total 10 rows may be and after going through the whole calculation total 840 bags loading possibility found. The opposite party No. 1 has not placed on file spot survey report, which is a material document in this case. If bags were spread after accident, then what prevented the spot surveyor to count the bags or to mention exact size/volume of cement bags. At the time of spot survey, all the documents must have been checked by surveyor. The complainant has placed on file copy of G.R. (Ex. C-4) which reveals that 560 Bags Cement (28 MT) was loaded in the vehicle in question at the time of accident. The opposite parties have failed to rebut this evidence of complainant and have not placed any document on file to prove that if 560 bags were not loaded then how many bags exactly were loaded in the vehicle in question at the time of accident. As detailed above, the said Investigator has arrived at conclusion on the basis of measurement of vehicle and volume of cement bags. He has not referred any document in his report on the basis of which he opined that vehicle in question at the time of accident was overloaded. The formula adopted by Investigator is purely hypothetical. The cause of accident is very much mentioned in copy of FIR (Ex. C-3). The opposite party No. 1 has not brought on file any evidence to prove that the accident took place due to overloading, if any. The complainant suffered loss. The opposite party No. 1 appointed spot surveyor, then final surveyor and thereafter Investigator and ultimately rejected the claim of the complainant on findings given on the basis of possibility, by the Investigator. The opposite party No. 1 has rejected the claim of the complainant on flimsly ground without any basis. Thus, there is deficiency in service on the part of the opposite party No. 1. Now coming to the quantum of loss amount. The complainant has claimed that he has spent a sum of Rs. 9,84,467/- on the repair and Rs. 5000/- as shifting charges, but he has not produced any document on file regarding payment of Rs. 5,000/- as shifting charges. The opposite party No.1 has produced on record report of final surveyor (Ex. OP-1/3) whereby the surveyor has assessed the loss to the tune of Rs. 3,87,662/-. Hon'ble National Commission in the case titled New India Assurance Co. Ltd Vs. Kamal Naryan 2007(1) CLT 112 (N.C) has held :- “Report of Surveyor is an important piece of document and evidence – Cannot be brushed aside without sufficient reasoning.” There is no specific averments against the surveyor persuading this Commission to disbelieve the report/assessment of surveyor. Therefore, the loss assessed by surveyor is accepted. The complainant is entitled to claim amount of Rs. 3,87,662/- with interest @ 9% P.A. from the date of repudiation till payment. In view of what has been discussed above, this complaint is partly accepted with Rs. 10,000/- as cost and compensation against opposite party No. 1 and dismissed qua opposite party No. 2. The opposite party No. 1 is directed to pay to complainant Rs. 3,87,662/- with interest @ 9% P.A. w.e.f. 1-08-2018 (date of repudiation) till payment. The compliance of this order be made within 45 days from the date of receipt of copy of this order. The complaint could not be decided within the statutory period due to heavy pendency of cases.
Copy of order be sent to the parties concerned free of cost and file be consigned to the record. Announced : 25-11-2021 (Kanwar Sandeep Singh) President (Shivdev Singh) Member (Paramjeet Kaur) Member
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