| Final Order / Judgement | DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, BATHINDA C.C. No.233 of 31-08-2018 Decided on: 14-09-2022 Navdeep Singh aged about 32 years S/o Kartar Singh, #14005, Gali No.11, Ganesh Nagar, Bathinda. ........Complainant Versus The New India Assurance Co. Ltd., The Mall, Bathinda-151001, through its Divisional Manager. .......Opposite party Complaint under Section 12 of the Consumer Protection Act, 1986 QUORUM Sh.Kanwar Sandeep Singh, President Sh.Shivdev Singh, Member Present For the complainant : Sh.Naresh Garg, Advocate. For opposite party : Sh.Vinod Garg, Advocate. ORDER Kanwar Sandeep Singh, President:- The complainant Navdeep Singh (here-in-after referred to as complainants) 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 The New India Assurance Co. Ltd. (here-in-after referred to as opposite party). Briefly stated, the case of the complainant is that he is the owner of car bearing No.PB-10DN-9786. This car is comprehensively insured (Package Insurance) with opposite party vide insurance certificate No.36060131160100007393 w.e.f 30.3.2017 to 29.3.2018 for IDV of Rs.3,00,000/-. Opposite party also took the signature of the insured on blank proposal form as per regulations of IRDA under Regulations (4) (1) of 2002 and IDV was fixed by opposite party as per IMT and under GR-8 of the IMT. It is settled principal that in case of total loss, the IDV will be paid by the insurer and it is also settled rule in GR-8 that if the loss exceeds 75% then it is a case of total loss. It is alleged that opposite party never supplied any insurance policy or its terms and conditions to the insured till date. On 11.1.2018 at about 6 P.M, the car of the complainant met with an accident with one scooter bearing No.PB-10AY-6275 while going from Doraha to Ludhiana bye-pass road. At that time Sandeep Singh was driver of the car. He reached near canal bridge Dugri, one scooter bearing No.PB-10AY-6275 was suddenly coming from opposite side and car became out of control and struck with scooterist and road side railings. In this accident, Balwinder Singh died, but the police in connivance with the legal heirs of Balwinder Singh i.e. Harpreet Singh (Son) registered the false FIR No.5 dated 11.1.2018 at P.S. Doraha, District Khanna by molding the actual facts of the accident with fertile mind. Thereafter the challan was produced in the court by the concerned police at SDJMIC Payal and finally, the court acquitted Sandeep Singh from FIR as the version in the FIR is not correct as per actual facts of accident. It is further alleged that the complainant also lodged the claim with opposite party on account loss of vehicle, it appointed surveyor M.L. Mehta and Co. from Jalandhar as the vehicle was totally damaged in this accident. The surveyor also sent letter dated 4.4.2018 to opposite party regarding the difference in cause of loss report of FIR and in claim intimation letter. In this regard, the complainant supplied the court order regarding the contents of FIR are wrong and claim intimation letter is correct. It is also common knowledge that FIR was registered against the driver of the complainant and there is no version of the complainant with the police and same is the version of the third party, which has no relevancy with the complainant and complainant mentioned the true version in the claim form. It is further alleged that thereafter opposite party appointed Krish Associates as investigator, he investigated the matter and complainant replied the letters of the investigators, but opposite party till date neither supplied the investigation report nor paid the claim amount to the complainant nor supplied any survey report etc. Opposite party appointed illegal Krish Associates as investigator without any approval from the controller although it is mandatory U/s 64 UMG (3) of Insurance Act. The surveyor and investigator are doing the illegal work and working as an agent of the company and they are not working as independent persons. The investigator also demanded illegal documents vide letter dated 27.5.2018. This letter is duly replied by the complainant on 12.6.2018. Under the instructions of the surveyor and opposite party, the vehicle was shifted to M/s Raja Motors, Hyundai Authorized Service Centre, Mansa Road, Bathinda for estimates and repairs. It is also alleged that the vehicle is not repairable as the estimates comes to the tune of about Rs.5,57,645.48/- against IDV of Rs.3,00,000/- which exceeds 75%. As such, the vehicle is total loss. The complainant spent Rs.7000/- for shifting the vehicle from spot to Bathinda and prepared the estimates due to illegal instructions of opposite party for which Raja Motors charged Rs.10,000/- as they said that without estimates, they cannot assess the loss. He also submitted all the papers i.e. claim form, FIR, R.C, D.L etc. to opposite party through surveyor. Thereafter the surveyor also took the signatures of the complainant on some blank forms and voucher etc. with the understanding that this is total loss as per GR-8 of the India Motor Tariff (IMT). As such, the vehicle is total loss as the estimate charges are exceeds 75% of the IDV. It is also alleged that the original estimates supplied to opposite party through surveyor by Raja Motors, Bathinda. The complainant approached opposite party and wrote several letters to opposite party and its high officials and demanded his total loss claim of the vehicle, but they did not listen. He also demanded the copy of the final survey report from opposite party, but it did not supply the report till date. Raja Motors demanded Rs.250/- per day as parking charges from the complainant. The complainant wrote opposite party and demanded the claim as Raja Motors demanded Rs.250/- per day as parking charges, but it did not listen. The complainant also alleged that opposite party and its surveyor never sent any final survey report to him whereas it is mandatory to supply to the insured under guidelines of IRDA. Till date opposite party neither rejected the claim of the complainant nor paid the claim amount as the car is total loss and claim is pending for last 8 months whereas the gestation period to settle the claim is 2-3 months as per Hon'ble Apex Court. In support of his contentions, complainant has cited some cases law, reference of which is not necessary at this stage. It is also alleged that due to non-payment of the total claim of Rs.3,00,000/- as per IDV of the total loss, Rs.7000/- as shifting charges and estimation charges Rs.10,000/- and Rs.15,000/- as parking charges etc. and opposite party neither denied nor pay the claim, caused the complainant mental agony, pains and suffering to the tune of Rs.50,000/-. On this backdrop of facts, the complainant has prayed for directions to opposite party to pay Rs.3,00,000/- on account of total loss of the vehicle, Rs.7000/- as shifting charges, Rs.10,000/- as estimate charges taken by Raja motors and Rs.15,000/- being the parking charges by M/s Raja Motors due to illegal act of opposite party and it surveyor and to pay Rs.50,000/- as compensation with interest @18% p.a. from 11.1.2018 and Rs.50,000/- as litigation expenses. Upon notice, opposite party appeared through its counsel and contested the complaint by filing written version. In written version, opposite party has raised the legal objections that the intricate questions of law and facts are involved in this complaint. They require voluminous documents and evidence for determination. It is not possible in the summary procedure under 'Act' and appropriate remedy, if any, lies only in the civil court. Further legal objections are that the complainant has concealed the material facts and documents from this Forum and opposite party. As such, he is not entitled to any relief. He has concealed the facts that the claim was under process and consideration when he filed this complaint. The survey and investigation were in progress. The survey and investigator had sent numerous letters and e-mails to the complainant for submission of documents and for completing formalities and for cooperation in completion of survey and investigation, but the complainant failed to cooperate and complete formalities and submit documents, rather he filed this complaint, which is premature and misuse of process law. The contract of insurance is that of 'Uberrima fides' i.e. utmost good faith, but the complainant has concealed the facts regarding accident. The facts mentioned in the claim form and FIR regarding accident and other circumstances are different. The date of accident has been alleged as 11.1.2018 whereas the intimation to opposite party was given on 15.3.2018 i.e. after more than 2 months. As such, the claim required thorough investigation in order to determine the true facts regarding accident including place and manner of accident and actual driver at the time of accident and also other facts regarding claim. The complainant wants to get the claim one way or other. It is further pleaded that opposite party deputed M/s M.L Gupta and company surveyors to conduct survey and assess the loss, it inspected the vehicle and submitted interim report dated 22.3.2018, but the surveyor recommended investigation vide latter dated 4.4.2018 as there was difference in cause of loss mentioned in FIR and claim form and further since the damages to vehicle did not coincide with the cause of loss. Accordingly, M/s Krish Associates investigators were deputed to conduct investigation, it contacted the complainant various times for cooperation and assistance in investigation and to supply documents vide e-mails dated 27.5.2018, 10.6.2018, 4.6.2018, 12.6.2018 and letter dated 27.5.2018 and others and for arrange meeting with driver Sandeep Singh, but the complainant instead of doing the same filed this complaint on false facts. The circumstances speak for themselves as per maxim 'Res Ipsa loquitor'. Opposite party represents a public institution and reserves its right to decide the claim as per law, facts and circumstances of the case, as per terms and conditions of the policy as and when the complete documents are submitted, formalities are completed and necessary cooperation is proved by the complainant to opposite party and surveyor and investigator deputed in the case. The complainant is not 'consumer' of opposite party. He has no locus-standi or cause-of-action to file the complaint against opposite party. The complaint is not maintainable in law. It is liable to be dismissed. On merits, opposite party has pleaded that the insurance is subject to terms and conditions of policy and provisions of Indian Motor Tariff (IMT). It is denied that any signature of complainant were taken on any blank papers and policy has not been supplied to the complainant, rather the insurance policy with terms and conditions was supplied to him. After denying and controverted all other averments, opposite party has prayed for dismissal of complaint. In support of his complaint, the complainant has tendered into evidence his affidavit dated 31.8.2018 (Ex. C1) and other documents (Ex. C2 to Ex. C18). To rebut the claim of the complainant, opposite party has tendered into evidence affidavit of Ashish Pal dated 22.10.2018 (Ex.OP1/5); affidavit of R.P Kalotra dated 22.10.2018 (Ex.OP1/6); affidavit of Om Parkash dated 22.10.2018 (Ex.OP1/7) and other documents (Ex. OP1/1 to Ex. OP1/4). We have heard learned counsel for parties and gone through the file carefully. Learned counsel for parties have reiterated their stand as taken in their respective pleadings and detailed above. We have given careful consideration to these submissions. Admitted facts are that the complainant is the owner of car bearing No.PB-10DN-9786 and this car is insured with opposite party vide insurance certificate No.36060131160100007393 w.e.f 30.3.2017 to 29.3.2018 for IDV of Rs.3,00,000/- vide Ex.C3. On 11.1.2018 at about 6 P.M, the car of the complainant met with an accident with one scooter and FIR No.5 dated 11.1.2018 at P.S. Doraha, Distt. Khanna was registered. A perusal of file reveals that after receiving the intimation from the complainant regarding accident of his car, opposite party deputed M/s M.L Gupta and company surveyors to conduct survey and assess loss. His interim report is on file as Ex.OP1/1. As per this report, the provisional loss of insurer is Rs.2,25,000/-. Although, the complainant has alleged that the surveyor appointed by opposite party is not independent surveyor, but this fact cannot be accepted only on the basis of mere allegations. There is nothing to show that the surveyor was bias or his report is not correct. Hon'ble National Commission in case of Narinder Kumar Joshi Vs. Reliance General Insurance Company Limited IV 2017 CPJ 366 (NC) has observed that the insurance claim is to be settled on the basis of surveyor report unless legitimate reasons are pointed out for not accepting the surveyor report. Similarly, in case of Sri Venkatshwar Sindikat Vs. Oriental Insurance Company and Anr., II (2010) CPJ 1 (SC), Hon'ble Supreme Court of India has observed that the surveyors were appointed under statutory provisions and they are linked between insurer and insured when question of settlement of loss or damage arises. The report of the surveyor could become base for settlement of claim by the insurer in respect of loss suffered by the insured. Affidavit of surveyor Sh.Om Parkash is Ex. OP1/7 wherein it has been stated that deponent was deputed to conduct the final survey of accidental Car No. PB-10DN-9786 and submitted interim survey report dated 22-3-2018 (Ex. OP1/1). Perusal of Ex. OP1/1 reveals that estimated loss is Rs. 5,60,000/- (approx), sum insured Rs. 3,00,000/- and provisional loss of Rs. 2,25,000/- (approximately) total loss basis. The surveyor inspected the vehicle and submitted his interim report dated 22.3.2018. Now, question is regarding amount for which the complainant is to be held entitled to. Complainant has also brought on file estimate bill amounting to Rs. 5,57,645/- as Ex. C-11, receipt of towing charges as Ex. C-13 and receipt of estimates charges as Ex. C-12. Though, surveyor mentioned estimate loss of Rs. 5,60,000/- (approximately) on the basis of estimate bills Ex. C-11 but the surveyor has not given any reason to decline towing charges as well as estimate charges so the complainant is also entitled to towing charges as well as estimate charges. Ex. C-4 is the photocopy of Indian Motor tariff and in GR-8 insured's declared value (IDV), it has been mentioned that for the purpose of TL/CTL (Total Loss /Constructive Total Loss) claim settlement, this IDV will not change during the currency of the policy period in question. It is clearly understood that the liability of the insurer shall in no case exceed the IDV as specified in the policy schedule less the value of the wreck, in “as is where is” condition. So, we are of the view that opposite party should not be allowed to take double benefit i.e. on one hand less of value of wreck/salvage from IDV and on the other hand demand of wreck/salvage itself. So, in this case salvage/wreck will be kept by complainant. For the reasons recorded above, the complaint is partly accepted with Rs.10,000/- as cost and compensation against opposite party. Opposite party is directed to pay Rs.2,42,000/- i.e. Rs. 2,25,000/- (assessed by surveyor) + Rs. 7,000/- (towing charges) + Rs. 10,000/ (estimate charges) alongwith interest @ 9% per annum from the date of report of surveyor dated 22.3.2018 till date of payment, to the complainant. 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 statutory period due to Covid pandemic and heavy pendency of cases. Copy of order be sent to the parties concerned free of cost and file be consigned to the record room. Announced:- 14-09-2022 (Kanwar Sandeep Singh)
President (Shivdev Singh) Member
| |
