The complainant Manpreet 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 Oriental Insurance Co. Ltd., (here-in-after referred to as opposite party)
Briefly stated, the case of the complainant is that he got insured his Bolero vehicle bearing registration No. PBO3AW-5046 with the opposite party vide cover note No.528874 by paying premium of Rs. 19,150/- for the period from 27.12.2017 to 26.12.2018.
It is alleged that the said Bolero vehicle of complainant met with an accident at village Bagrian Distt. Sangrur and got damaged. The complainant immediately informed the opposite party regarding accident. The opposite party appointed Surveyor Er. Rakesh Kumar Mehta and on the asking of surveyor of opposite party, the complainant produced all the documents. The complainant made repeated requests to the opposite party to pay the loss amount, but all in vain. The opposite party has not paid single penny to the complainant and sitting over the claim of the complainant. Thus, there is deficiency in service and unfair trade practice on the part of the opposite party.
The complainant further alleged that opposite party has not admitted genuine claim of the complainant due to which he has suffered physical, mental agony and financial loss, for which he claims compensation to the tune of Rs. 50,000/-.
The complainant also alleged that he got served a legal notice upon the opposite party, in this regard, but to no response. The opposite party has not fulfilled the terms and conditions of the policy and failed to make the-payment of loss of the said vehicle as per terms and conditions of the policy.
On this backdrop of facts, the complainant has prayed for directions to the opposite party to make payment of Rs. 3,50,000/- on account of loss of vehicle in question and also pay Rs. 50,000/- as compensation in addition to any other additional alternative and consequential relief.
Upon notice, the opposite party appeared through counsel and contested the complaint by filing written reply raising legal objections that intricate questions of law and facts are involved in the complaint which require voluminous documents and evidence for determination which is not possible in summary procedure under the 'Act'. That the complainant has concealed material facts and documents from this Commission as well as the opposite party, therefore, the complainant is not entitled to any relief.
It has been pleaded that the complainant has concealed the fact that the vehicle was got Insured as Private vehicle whereas it was got registered and was used as a commercial/Public Transport vehicle. There is violation of mandatory terms and conditions of policy. Further at the time of alleged accident, the vehicle was allegedly being driven by Nanak Singh and said Nanak Singh was having driving license for driving only LMV, Motor Cycle with Gear and Tractor only as such he was not having any valid license for Transport for driving transport vehicles Including Mahindra & Mahindra Bolero Maxi Truck in question. The complainant failed to produce any valid license of Nanak Singh for driving said vehicle, as such, the claim of the complainant is not payable.
It has been further pleaded that the claim of the complainant was still pending decision with the opposite party and complainant filed the complaint before decision thereof. The opposite party reserves its right to decide the claim as per, terms and conditions of the policy. Therefore, the claim is premature. The opposite party appointed Er. Rakesh Kumar Mehta as spot surveyor who submitted spot survey report dated 14.07.18 and Er. Rakesh Kumar Gupta as final surveyor who submitted his report dated 19.09.2018 whereby he assessed the net loss at Rs.1,58,400/- after applying depreciation as per IMT & terms and conditions of policy.
Further legal objections are that the complainant is not consumer and complainant has no locus stendi or cause of action to file the present complaint.
On merits, the opposite party reiterated its version as pleaded in legal objections and controverted all the material averments of complainant and prayed for dismissal of complaint.
In support of his complaint, the complainant has tendered into evidence photocopy of RC of vehicle (Ex. C-1), photocopy of Insurance cover Note (Ex. C-2), photocopy of legal notice and potal receipt (Ex. C-3 & Ex. C-4), photocopy of claim intimation (Ex. C-5), photocopy of FIR (Ex. C-6), photocopy of DL (Ex. C-7), affidavit dated 6-10-2018 of complainant (Ex. C-8) and photographs (Ex. C-9 to Ex. C-14).
In order to rebut the evidence of complainant, the opposite party tendered into evidence photocopy of DL (Ex.OP-1/1), photocopy of RC (Ex. OP-1/2), photocopy of 2 survey reports (Ex. OP-1/3 & Ex. OP-1/4), photocopy of claim form (Ex. OP-1/5), photocopy of policy alongwith terms and conditions (Ex. OP-1/6), affidavit dated 21-11-2018 of Ashwani Kumar (Ex. OP-1/7), affidavit dated 22-11-2018 of Er. Rakesh Kumar Gupta (Ex. OP-1/8), affidavit dated 30-11-2018 of Rakesh Kumar Mehta (Ex. OP-1/9) and photocopy of investigation report (Ex. OP-1/10).
The learned counsel for the parties reiterated their stand as taken in their respective pleadings.
We have heared learned counsel for the parties and gone through the record.
It is not disputed that complainant got his vehicle bearing registration No. PB-03W-5046 insured with opposite party vide cover Note No. 528874 valid from 27-12-2017 to 26-12-2018 (Ex. C-2). The vehicle met with an accident and complainant lodged claim with the opposite party vide intimation letter (Ex. C-5). The opposite party has not decided the claim till filing of this complaint.
The opposite party has not decided the claim within reasonable time till the time of filing of the complaint. Therefore, in such circumstances, complainant cannot be expected firstly to wait for repudiation of claim and then approach this Commission There is also nothing to show that claim was pending for want of any information required from the complainant. Hence, it cannot be said that complaint is premature.
From the written version of the opposite party, it emerges that opposite party has not decided the claim of the complainant on the ground that at the time of accident, vehicle in question was being driven by Nanak Singh and said Nanak Singh was having drving licence for driving only LMV, Motor cycle with Gear and Tractor only, as such he was not having any valid licence for transport for driving transport vehicle.
The complainant has placed on record driving licence of Nanak Singh (Ex. C-5). It shows that driving licence was issued on 3-11-2016 and is valid for LMV, MCWG, Tractor till 2-11-2036. It is not disputed that vehicle falls under the definition of Light Motor Vehicle.
Hon'ble Supreme Court in the case titled Mukand Dewangan Vs oriental Insurance Company Limited ( 2017 (4) CPJ 13) has held that :-
“When a driver is holding a licence to drive 'light motor vehicle' he is competent to drive a 'transport vehicle' of that category without specific endorsement to drive the transport vehicle.”
Therefore keeping in view the above said opinion rendered by Hon'ble supreme Court, the conclusion is that the driver Nanak Singh was not debarred from driving the vehicle in question.
The contention of the opposite party that vehicle in question was got insured as private vehicle whereas the same was got registered and was used as a commercial/public transport vehicle is not tenable as Insurance Policy (Ex. OP-1/6) reveals that policy of vehicle is question is Commercial Vehicle Package Policy and limitation to use is “use only for carriage of goods”.
Therefore, there is deficiency in service on the part of the opposite party in not settling and paying the claim of complainant within reasonable time without any solid reason.
Now coming to the quantum of amount to which complainant can be held entitled. The complainant has claimed that he has spent a sum of Rs. 3,50,000/- on the repair of the vehicle. The opposite party has produced on record report of final surveyor (Ex. OP-1/4) whereby Er Rakesh Kumar Gupta, surveyor has assessed the loss to the tune of Rs. 1,63,900/-.
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.
There is no specific averments against the surveyor persuading this Commission to disbelieve the report/assessment of surveyor. Therefore, complainant is entitled to claim amount of Rs. 1,58,400/- (1,63,900/- minus Rs. 5500/- being salvage value) with interest @ 9% P.A.
In view of what has been discussed above, this complaint is partly accepted with Rs. 10,000/- as cost and compensation against the opposite party. The opposite party is directed to pay to complainant Rs. 1,58,400/- with interest @ 9% P.A. w.e.f. 10-10-2018 ( after three months of date of loss) till payment.
The compliance of this order be made by the opposite party 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 :
24-3-2022
(Kanwar Sandeep Singh)
President
(Shivdev Singh)
Member
(Paramjeet Kaur)
Member
