DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, BATHINDA

C.C. No. 73 of 12-03-2018

Decided on : 16-03-2022

Harnish Mehta S/o Sh. Amarjeet Pal Mehta, aged about 31 years, R/o H. No. 19149, Street No. 9, Guru Teg Bahadur Nagar, Bathinda.

........Complainant

Versus

Oriental Insurance Co. Ltd., 4501, Bank Street, Bathinda, through its Senior Divisional Manager

.......Opposite party

Complaint under Section 12 of the Consumer Protection Act, 1986

QUORUM

Sh. Kanwar Sandeep Singh, President

Sh. Shivdev Singh, Member.

Smt. Paramjeet Kaur, Member

Present

For the complainant : Sh. S M Goyal, Advocate

For opposite party : Sh. Sunder Gupta, Advocate

ORDER

Kanwar Sandeep Singh, President

1. The complainant Harnish Mehta (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 Oriental Insurance Company Limited, (here-in-after referred to as opposite party).

2. Briefly stated, the case of the complainant is that he is owner of one Maruti Swift VDI Car bearing no.PB-03-AH-0192, manufacturing year 2014. That complainant was allured by opposite party /its agent and also by the Manager of Maruti Car Seller Bathinda, with whom opposite party is having tie-up for their insurance business, to purchase the insurance policy of their company and they undertook that in case of any OD or TP claim/ loss, the complainant is just to report the same and will have not to pay any amount on account of repair or damages and further that complainant would be duly indemnified all expenses/amounts, if any, had to be spent / paid by complainant, the same would be reimbursed immediately as and when demanded. That in consideration of the above said allurement, the complainant purchased policy No. 215700/31/2018/20391 valid w.e.f. 09.05.2017 to 08.05.2018 after paying the requisite premium amount of Rs.12,981/-. However, no insurance policy with complete terms and conditions was ever sent or supplied by opposite party to complainant except issuing one certificate of one page.

3. It is alleged that car of the complainant met with an accident on 15.09.2017 with Bolero Police Vehicle No. PB-03-AP-4615 at 100 Feet/Power House Road Chowk, Bathinda, in which the said Swift Car of complainant as well as above said Bolero Police Vehicle was also damaged. Complainant Harnish Mehta who himself was driving his car also suffered injuries on his body. FIR No.91 dated 16.09.2017 u/s 279/337/427 IPC was duly registered by PS Cantt Bathinda against complainant on the statement of one Sukhmander Singh son of Sh. Gurcharan Singh of Mandi Dabwali, working as Constable/Police Driver on above said Bolero Police Vehicle No.PB-03-AP-4615, who was driving said Balero.

4. It is also alleged that intimation regarding the said accident/damage to the car of complainant and also damage to third party vehicle/Bolero Vehicle No. PB-03-AP-4615 was duly given to opposite party by complainant. After receiving intimation of accident, opposite party appointed Surveyor for spot survey and also for physical inspection of both the vehicles. At the instance of opposite party and said Surveyor, the Car of complainant was shifted to Tara Automobiles, Bathinda where the same was repaired under the aforesaid cashless policy of insurance. The complainant spent Rs.1,500.00 as towing charges of said Car which were paid to M/s Rajdeep Crane & Recovery Service, Bathinda.

5. It is further pleaded that surveyor of the opposite party asked the complainant that in case some compromise is possible with owner & driver of Bolero Vehicle No.PB-03-AP-4615, then he should do the same and opposite party would pay/reimburse the charges, to be born for repair of Bolero Police Vehicle No. PB-030AP-4615, to complainant and of compromise amount and that the complainant will be duly indemnified. Accordingly the said third party Bolero Police Vehicle was shifted to M/s AVC Motors, Mansa Road, Bathinda and they made necessary/required repairs of the same and issued bill for an amount of Rs. 1,59,602/-. However on request they gave discount of Rs.9,602/- and full amount of repair charges was settled and paid by complainant was Rs.1,50,000/- i.e. vide cheque No.168939 dated _ 26.09.2017 for Rs.70,000/- & cheque No. 168482 dt.14.11.2017 for Rs.80,000/- to AVC Motors as third party compromise claim amount regarding repair of Bolero Police Vehicle no.PB-03-AP-4615.

6. The complainant alleged that he had given due intimation to the opposite party even before entering into compromise with above said third party, but opposite party did not sign the copy of letter after receiving the intimation letter. The complainant also sent the same through registered letter dated 22.09.2017 to opposite party in this regard with specific request to the effect that he was compelled to undergo compromise with above said third party and again requested the opposite party to register his third party claim and also to send representative of the company at the time of compromise. But, the opposite party neither gave any reply to the above said letter of complainant nor sent any representative regarding the compromise. Thereafter, complainant intimated that he paid a cheque of Rs.70,000/- to M/s AVC Motors vide his letter dated 31.10.2017 and thereafter on 14.11.2017 made the final settlement/payment but till date opposite party has neither given any reply nor paid/reimbursed third party compromise amount of Rs.1,50,000/- paid by complainant to the AVC Motors for third party vehicle.

7. It is also alleged that by entering into third party compromise, complainant has mitigated and minimized the liability of opposite party qua third party claim and as such complainant should have been paid/reimbursed the above said amount of Rs.1,50,000/- regarding third party claim and Rs.1,500/- regarding towing charges of the vehicle, but despite repeated requests of complainant, the opposite party did not listen and miserably failed to pay the compromise amount.

8. The complainant alleged that due to illegally and wrongly withholding the above said third party claim by the opposite party, the complainant has suffered great tension mental agony, pain, botheration, harassment besides economic loss.

9. On this backdrop of facts, the complainant has prayed for directions to the opposite party to pay an amount of Rs. 1,50,000/- plus Rs. 1500/- as towing charges to complainant with interest @24% p.a. alongwith compensation to the tune of Rs. 1,00,000/- in addition to litigation expenses.

10. Upon notice, the opposite party put an appearance through counsel and contested the complaint by filing written reply raising legal objections that this Commission has got no jurisdiction to try and entertain the complaint That own damage claim of the insured car bearing registration No.PB 03AH 0192 which was insured with opposite party vide Policy No.215700/31/2018/20391 effective from 09.05.2017 to 08.05.2018 has been duly paid to the complainant as per terms and conditions. Nothing remains due, as such, complaint is not maintainable.

11. It has been pleaded that after receipt of intimation regarding alleged accident, Er. Pawan Kumar Pahwa was deputed to assess the loss to the insured car who submitted his report dated 09.12.2017 assessing the net loss to the insured vehicle to the tune of Rs.90,609/- including the towing charges as per terms and conditions of the Insurance Policy and aforesaid amount was duly paid to the repairer and complainant has issued satisfaction voucher dated 02.11.2017 for the same as full and final settlement of claim. That there is specific Clause No.2 of terms and conditions of Insurance Policy that no admission, offer, promise, payment or indemnity shall be made or given by or on behalf of the insured without the written consent of company. As such any compromise effected by the complainant with Owner of Bolero vehicle registration No.PB 03AP 4615 is not binding upon the opposite party nor opposite party is liable to make any such payment to the complaint. Moreover, since the aforesaid Bolero vehicle registration No.PB 03AP 4615 is owned by Punjab Police and no authority of any competent police official has been placed on file to effect the compromise.

12. Further legal objections are that it is set principal of law that no one can take advantage of his own wrongs. As per FIR No.91 dated 16.09.17 registered in P.S.Cantt, Bathinda against complainant the alleged accident has occurred due to sole negligence of complainant. As such, the present complaint is not maintainable. That no intimation regarding the damage to the insured vehicle/Bolero bearing registration No.PB 03AP 4615 has been given to the opposite party nor complainant has intimated for the repair of the damaged vehicle under supervision of the opposite party. That the amount of compensation claimed is highly excessive and exorbitant one. That the present claim is false, frivolous to the knowledge of the complainant, as such the same is liable to be dismissed with heavy costs.

13. On merits, the opposite party has admitted that opposite party has insurance tie-up with Maruti Udhyog/Maruti Dealer at Bathinda and own damage claim of insured car has been duly paid to the complainant as full and final settlement of the claim. Insurance Company is not liable to indemnify the insured for any compensation made by him for the repair of Bolero bearing registration No.PB 03AP 4615.

14. The opposite party has pleaded that no intimation regarding damage to the insured vehicle/Bolero bearing registration No. PB-03AP 4615 has been given to the opposite party. An amount of Rs. 1000/- as towing charges has been duly paid to the complainant as per terms and conditions of the insurance policy. The opposite party denied that surveyor of the opposite party asked the complainant to compromise for payment of compensation with owner and driver of Bolero neither surveyor nor police official have got any power to go for out of court compromise. Moreover, as per terms and conditions of the Insurance policy, no compromise can be affected out of court. The complainant has not obtained any consent of opposite party to effect the alleged compromise for repair of above said police vehicle.

15. The opposite party admitted that letter dated 22-9-2017 was received by it intimating that complainant was compelled to undergo compromise with above said third party and requested the opposite party to register his third party claim. After controverting all other averments of the complainant, the opposite party prayed for dimissal of complaint.

16. In support of his complaint, the complainant has tendered into evidence certificate cum policy schedule (Ex. C-1), photocopy of FIR No. 91 (Ex. C-2), photocopy of bill dated 26-9-2017 (Ex. C-3), photocopy of bills of AVC Motors (Ex. C-4 & Ex. C-5), photocopy of letter dated 22-9-2017 & postal receipt (Ex. C-6 & Ex. C-7), photocopy of letter dated 31-10-2017 & postal receipt (Ex. C-8 & Ex. C-9), copy of legal notice dated 7-12-2017 & postal receipt (Ex. C-10 & Ex. C-11), affidavit dated 17-5-2017 of complainant (Ex. C-12), phtocopy of cheques (Ex. C-13 & Ex. C-14) and affidavit dated 6-7-2018 of Sanjeev Kumar (Ex. C-15).

17. In order to rebut the evidence of complainant, the opposite party tendered into evidence affidvit dated 11-10-18 of Sh. R L Baleem (Ex. OP-1/1), photocoy of claim payment vouchers (Ex. OP-2 & Ex. OP-1/3), photocopy of compliance of Section 64VB (Ex. OP-1/4), photocopy of survey reports (Ex. OP-1/5 & Ex. OP-1/6), photocopy of re-inspection report (Ex. OP-1/7), photocopy of photographs (Ex. OP-1/8), photocopy of compliance of Section 64VB (Ex. OP-1/9), photocopy of Job Cards (Ex. OP-1/10 to Ex. OP-1/18), photocopy of Claim Form (Ex. OP-1/19), photocopy of FIR (Ex. OP-1/20), photocopy of estimate detail (Ex. OP-1/21), photocopy of Invoice (Ex. OP-1/22), photocopy of estimate detail (Ex. OP-1/23), photocoopy of insurance policy schedule (Ex. OP-1/24), photocopy of RC of vehicle (Ex. OP-1/25), photocopy of DL (Ex. OP-1/26), photocopy of photographs (Ex. OP-1/27), photocopy of satisfaction voucher (Ex. OP-1/28), photocopy of e-mail (Ex.OP-1/29), photocopy of claim intimation (Ex. OP-1/30), photocopy of policy (Ex. OP-1/31) and photocopy of payment receipt (Ex. OP-1/32).

18. Learned counsel for the parties reiterated their stand as taken in their respective pleadings.

19. We have heard learned counsel for the parties and gone through the record.

20. These are admitted facts of the parties that Maruti Swift VDI car bearing registration No. PB-03-AH-0192 was insured with opposite party vide Insurance Policy No. 215700/31/2018/20391 for the period from 9-5-2017 to 8-5-2018 (Ex.C-1). The said car of the complainant met with an accident on 15-9-2017 with vehicle of Police, Bolero bearing registration No. PB-03AP-4615. FIR No. 91 dated 16-9-2017 (Ex. C-2) was registered at P.S. Cantt, Bathinda, in this regard. The complainant intimated the loss to the opposite party for own damage and opposite party deputed Pawan Kumar Pahwa as surveyor and loss assessor to assess the loss. The said surveyor vide his report (Ex. OP-1/6) assessed the loss to the tune of Rs. 90,609/- which has been paid by the opposite party. Therefore, there is no dispute regarding policy or own damage claim.

21. Now, this complaint has been filed by complainant claiming third party loss as the Bolero vehicle of the police with which accident took place was also damaged. The complainant alleged that compromise was effected between the parties and he paid an amount of Rs. 1,50,000/- directly to the repairer of the vehicle in question.

22. Ex. C-1 is the policy in question. This document reveals that complainant paid premium of Rs. 2863/- against Third party liability. This policy also reveals that liability under the policy – damage to third party property is Rs. 7,50,000/-. Ex. C-2 is the copy of FIR No. 91 dated 16-9-2017 which shows that car of the complainant met with an accident with aforesaid Bolero vehicle of police.

23. The complainant has proved that he delivered letter dated 22-9-2017 (Ex. C-6) to the opposite party intimating third party loss and requested the opposite party to register third party claim but the opposite party did not sign the said letter. Thereafter, complainant sent said letter to opposite party by registered post. A perusal of this letter (Ex, C-6) reveals that complainant has given a note on the bottom of this letter that he visited the office of opposite party to deliver said letter but opposite party refused to sign letter, hence he is sending this letter by registered post and requested the opposite party to register third party claim. Ex. C-7 is the copy of postal receipt vide which complainant sent this letter to opposite party and in para No. 12 on merits of written reply, the opposite party has admitted receipt of said letter dated 22-09-2017.

24. Ex. OP-1/6 is the survey report of Sh. Pawan Kumar Pahwa. While assessing own damage loss, the said surveyor has also mentioned in this report :

    “Was any Third Party involved in the said accident :

    Reportedly, Third Party Bolero involved in the accident overturned on road after hitting the captioned car. Driver of Bolero also got injured and was admitted to Civil Hospital, Bathinda, for his treatment.

25. A perusal of file reveals that complainant vide letter dated 22-9-2017 requested the opposite party to register third party claim and also requested to send representative at the time of compromise. Thereafter complainant sent letter dated 31-10-2017 to the opposite party whereby he intimated the opposite party that he deposited Rs. 70,000/- to M/s. AVC Motors, Bathinda (Repairer) and balance of Rs. 92,000/- was to be given within 3-4 days on account of repair of third party Bolero vehicle. The opposite party remained silent and did not take any action against both the letters of the complainant. Since there was involvement of police vehicle, under compelled circumstances, complainant made payment to the repairer i.e. AVC Motors, Bathinda, of Bolero vehicle through two cheques dated 26-9-2017 for Rs. 70,000/- and 14-11-2017 for Rs. 80,000/- (Ex. C13 & Ex. C-14) respectively, after getting some discount with his efforts.

26. The submission of learned counsel for the opposite party that compromise was effected without permission of opposite party is not tenable because when there was no response from the opposite party, after admitted intimation, and complainant was under pressure being third party Bolero vehicle was of police, no other option was available to complainant except to make payment to repairer. Moreover, complainant has made the payment directly to repairer of third party accidental vehicle and not to any individual person that too through cheques. The documents/bills (Ex. C-4 & Ex. C-5) of repairer AVC Motors, Bathinda reveals the expenses of Rs. 1,59,602/- on repair of third party Bolero vehicle and photocopy of cheques (Ex. C-13 & Ex. C-14) proved that complainant paid Rs. 1,50,000/- to AVC Motors, Bathinda.

27. The complainant has also placed on file receipt dated 26-9-2017 of M/s Deep Crane & Recovery Service, Bathinda, (Ex. C-3) which shows that Rs. 1500/- has been paid to as towing charges for vehicle bearing Registration No. PB-03H-0192.

28. The opposite party has not challenged the aforesaid documents placed on file by complainant to prove payment i.e. Ex. C-3 to Ex. C-5 and Ex. C-13 & Ex. C-14.

29. Hon'ble Jharkhand High Court in the case The New India Assurance co. Ltd., & Ors Vs. Amna Khatoon 2017 (4) J.C.R. 526 has held that : “Insurance Company has paid own damage claim of vehicle to insured/owner and in absence of any finding regarding violation of condition of permit denial of liability on ground of violation of condition of permit or on ground of violation of condition of policy pales into insignificance. - Insurance company has not challenged order directing them to deposit amount for own damage claim and in fact has made payment, appellant/insurance company cannot deny its statutory liability and contractual obligation to pay compensation to third party.”

30. Hence, there is deficiency in service on the part of the opposite party in holding and not settling/paying third party claim in question to complainant, without any valid reason.

31. In view of what has been discussed above, this complaint is partly allowed with Rs. 10,000/- as cost and compensation. The opposite party is directed to pay Rs. 1,51,500/- to complainant with interest @9% p.a. w.e.f the date of payments made by complainant, till realization.

32. The compliance of this order be made by the opposite party within 45 days from the date of receipt of copy of this order.

33. The complaint could not be decided within the statutory period due to heavy pendency of cases.

34. Copy of order be sent to the parties concerned free of cost and file be consigned to the record.

    Announced :

    16-3-2022

    (Kanwar Sandeep Singh)

    President

     

     

    (Shivdev Singh)

    Member

     

    (Paramjeet Kaur)

    Member