Gurdeep Singh, complainant (here-in-after referred to as 'complainant') has filed this complaint under Section 12 of the Consumer Protection Act, 1986 (here-in-after referred to as 'Act') 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 the new vehicle Truck bearing registration No. PB-03-AJ-9463. The said vehicle is comprehensively insured (Package Policy) with opposite party No.1. vide Cover Note No.051957 w.e.f. 28-04-2015 to 27-04-2016.
It is alleged that opposite party No.1 issued only Cover Note for the IDV of Rs. 24,50,000/- and charged heavy amount Rs. 41,755/- as annual premium. This Truck is under the Hypothecation of opposite party No. 2. There is no claim against opposite party No. 2.
It is alleged that opposite party No.1 never issued any complete policy with terms and conditions, although the same is mandatory. The opposite party No. 1 also took Proposal Form from complainant under mandatory provision before issuing Cover Note, but did not supply photocopy of Proposal Form whereas the same is mandatory under IRDA Regulations.
On 07-01-2016 said truck met with an accident with one Bus No. RJ-07-PB-5077 in the revenue limits of PS Chattargarh, Distt. Bikaner which was coming from opposite side and was being driven by Shyam Lal Meghwal in a rash and negligent manner and came on the wrong side of the road i.e. side of complainant's Truck and struck with Truck . As a result of this accident, truck was completely damaged. Gurdeep Singh, driver of the Truck, died at the spot due to rash and negligent driving of Shyam Lal Meghwal (Driver of Bus No. RJ-07-PB-5077). The Police of P.S. Chattargarh Regd. FIR against Shyam Lal Meghwal on the statement of Gurpyar Singh and Lakhpreet Singh who were witnesses of occurrence and coming behind the aforesaid Truck. At that time, Truck of the complainant was empty. As per settled law and rules, the empty commercial vehicle can go anywhere in India as two years permit is validly issued along with R.C with new vehicle. The complainant is having National Permit upto 06-01-2017 and Basic Goods Permit upto 04-05-2020. The police arrived at the spot and registered FIR on the same day against Bus Driver who is solely negligent for this accident. Intimation of the accident was immediately given by complainant to the office of opposite party No.1 at Bathinda. They appointed Er. S.K. Sachdeva, Surveyor at the spot through their Bikaner office. The surveyor duly visited the spot and reported that he conducted survey at spot and the accident took place on 07-01-2016 at 3.00 P.M. The vehicle was empty at the time of accident. He confirmed the accident.
It is alleged that spot Surveyor Er. S.K. Sachdeva also illegally charged Rs.3,800/- from complainant against the rules whereas the Survey Fee is payable by the Insurance Company. After spot survey, Truck was shifted with M/s Gobind Motors, Rampura Phul, Authorised Service Centre of the manufacturer under the instructions of opposite party No.1 and their surveyor. The complainant spent Rs. 5,000/- for shifting the vehicle. Thereafter opposite party No. 1 appointed final Surveyor R.P. Bhasin & Co. from Ludhiana. Service Centre of the manufacturer issued estimates to the tune of Rs.11,68,097/-. The complainant started repair under the supervision and directions of opposite party No.1 and their surveyor. The original estimate is in the possession of opposite party No. 1. The total repair was carried under the supervision of R.P. Bhasin & Co. who is agent of opposite party No.1 and working for them. All the necessary documents were already supplied to opposite party No.1 through surveyor.
It is alleged that at the time of survey, the surveyor obtained signatures of the complainant on blank Claim Form, different 5-6 blank papers, blank full and final vouchers etc., He gave assurance that the full claim will be paid as the vehicle is new one.
It is alleged that surveyors and opposite party No. 1 never sent any spot or final survey report to the complainant although the same is mandatory under the regulations of IRDA Rules.
It is also alleged that the surveyors of the opposite party No.1 are under the thumb of Insurance Company and they cannot afford to disoblige their master i.e. opposite party No.1 from where they have to obtain business and payment. They are always to toe the dictates of opposite party No.1 and make reports under the instructions of Insurance Company. It is alleged that opposite party No.1 appointed the surveyors from panel and not from IRDA independent surveyors.
It is pleaded that vide letter dated 10-08-2016, the opposite party No. 1 repudiated the claim illegally on the flimsy grounds that the permit of the truck was issued after accident.
It is also pleaded that permit is issued only after inspection of the vehicle.
It is relevant to mention that in support of his pleadiangs, complainant has quoted some case law, the reference of which is not considered necessary at this stage for the sake of brevity.
As per complainant, due to non-payment of claim amount of Rs. 11,76,897/-, he has suffered mental agony and pains to the tune of Rs.1,00,000/-. The complainant has claimed Rs. 11,76,897/- as repair charges, Crain Charges and Surveyor Fee with interest @ 18% P.A ; Rs. 1,00,000/- compensation and Rs. 50,000/- as litigation expenses. Hence, this complaint.
Upon notice, the opposite parties appeared through their respective counsel and contested the complaint by filing separate written reply.
The opposite party No. 1 in its written reply raised legal objections that intricate questions of law and facts are involved in the complaint which require voluminous documents and evidence. It is not possible in the summary procedure under the 'Act'. The appropriate remedy, if any, lies only in Civil Court. That the complainant has concealed material facts. The complainant has concealed the fact that he reported that accident took place on 07-01-2016 at 3.00 P.M but the investigation revealed that it took place at 7.30 a.m. and not at 3.00 p.m. The RTI information obtained from PHC Chhattargarh confirmed that the accident has taken place on 07-01-2016 at 7.30 a.m. The complainant breached the mandatory condition of insurance i.e. 'Uberima fides' and tried to change the time of accident as the truck in question had no permit at the time of alleged accident i.e. 7.30 a.m. on 07-01-2016. The complainant obtained permit by depositing fee for permit at 11.35.17 a.m. on 07-01-2016 to show that accident took place after depositing the fee for permit i.e. 3.00 p.m. in order to get compensation one way or the other.
It is further pleaded that the complainant has concealed the fact that he filed MACT No.132 of 2016 which was decided by the court of MACT, Bathinda on 23-01-2017. The complainant received compensation of Rs.7,50,000/- from the insurer of Bus No. RJ-07PB-5077 i.e. Cholamandlam MS GIC Limited vide cheque No.770541 dated 24-02-2017 drawn on HDFC Limited. The complainant cannot claim the same amount from the opposite party. The intention of law is to reimburse the loss only. This complaint has been filed after decision of said MACT case but this fact has not been disclosed in the complaint.
The other legal objections are that the complainant is not consumer of the opposite party. He has no locus standi or cause of action to file the complaint.
On merits, ownership of complainant over the vehicle and its insurance is stated to be matter of record. It is denied that at the time of accident vehicle was unloaded. It is also mentioned that complainant got the vehicle insured w.e.f. 28-04-2015 but did not obtain permit for plying the truck in Rajasthan from that date till the date of accident i.e. 07-01-2016.
It denied that empty commercial vehicle can go anywhere in India. It is admitted that the surveyor visited the spot, conducted spot survey and submitted report dated 23-01-2016. It is pleaded that opposite party deputed Mr. Hari Ram Gehlot who conducted detailed Investigation and recorded statements. He collected documents. It is pleaded that Gurdeep Singh driver of truck No.PB-03AJ-9463 of complainant had reached at 10.20 a.m. on 07-01-2016 and Ambulance of 108 had rushed to bring the injured from P.S. Chhattargarh at 7.40 a.m. This fact was confirmed under RTI from the office of Primary Health Centre, Chhattargarh. The bus No.RJ-07PB-5077 had started from Chhattargarh to Suratgarh at 7.00 a.m. and the accident took place 2 km before head 507. The distance and time taken to reach at the place of occurrence is only half an hour. It is admitted that final surveyor R.P. Bhasin & Co. was appointed from Ludhiana who conducted final survey and assessed the loss at Rs.7,19,709/- after applying depreciation and other provisions as per terms and conditions of the policy and IMT. It is denied that the surveyor obtained signatures of complainant on any blank claim form, blank papers, vouchers etc., All other averments of the complainant are denied. In the end, the opposite party No. 1 prayed for dismissal of complaint.
The opposite party No. 2 in its written reply raised legal objections that it is financer of the complainant. It has first charge/first claim of the vehicle. According to account books of opposite party No.2, a sum of Rs.5,71,800/- being the future installments is due. This amount is to be paid to opposite party No. 2 and the balance amount is to be paid to complainant.
On merits, it is admitted that truck was purchased by complainant by getting financial assistance from opposite party No. 2. All other averments of the complainant are denied mainly for want of knowledge or relating to opposite party No. 1.
In support of his complaint, the complainant has placed on record his affidavit daated 22-05-2017 (Ex. C-1), photocopy of cover note (Ex. C-2), photocopy of R.C. (Ex. C-3), photocopy of No Claim Letter (Ex. C-4), photocopy of F.I.R. (Ex. C-5), photocopy of Permit (Ex. C-6), affidavit dated 14-3-2017 of Gurpiar Singh (Ex. C-7), photocopy of bill (Ex. C-8), photocopy of claim petition (Ex. C-9), photocopy of reply (Ex. C-10), photocopy of statement of Gurpiar Singh (Ex. C-11), photocopy of order (Ex. C-12), photocopy of Claim Form (Ex. C-13), photocopy of spot survey report (Ex. C-14), photocopy of spot survey fee (Ex. C-15) and closed the evidence.
In order to rebut this evidence, the opposite party No. 1 has tendered into evidence affidavit dated 4-9-2017 of Tara Singh (Ex. OP-1/1), affidavit dated 4-9-2017 of R P Bhasin, Surveyor (Ex. OP-1/2), photocopy of claim petition (Ex. OP-1/3), photocopy of order dated 23-1-2017 (Ex. OP-1/4), photocopy of statements (Ex. OP-1/5 & Ex. OP-1/6), photocopy of cheque dated 24-2-2017 (Ex. OP-1/7), photocopy of letter (Ex. OP-1/8), photocopy of permit verification (Ex. OP-1/9), photocopy of final survey report (Ex. OP-1/10), photocopy of Investigation report (Ex. OP-1/11), photocopy of letter (Ex. OP-1/12), photocopy of letter (Ex. OP-1/13), photocopy of RTI application (Ex. OP-1/14), photocopy of certified copies (Ex. OP-1/15), affidavit dated 14-11-2017 of Hariram Gahlot (Ex. OP-1/16) and closed the evidence.
The opposite party No. 2 has tendered into evidence affidavit dated 23-10-2017 of Yatin Sheel Bakshi (Ex. OP-2/1), photocopy of statement of transactions (Ex. OP-2/2) and closed the evidence.
All the parties have also submitted written arguments.
The learned counsel for the complainant after reiterating his stand as taken in the complaint has further submitted that claim is regarding loss to the insured vehicle and the loss was due to accident. The complainant has pleaded and proved that total loss was to the tune of Rs. 11,76,897/-. Of course the complainant has received a sum of Rs. 7,50,000/- from the insurer of the Bus involved in the accident but the complainant has independent remedy against the opposite party as the complainant has paid premium to the opposite party. The opposite party cannot escape from its liability only for the reason that complainant has taken claim from insurer of the bus involved in the accdent. Even otherwise there was still shortage of more than Rs. 4,00,000/- to the loss. As such, the complainant was not fully compensated by insurer of the bus. The claim of the complainant is not to be denied only for the reason that partly claim has been received from other insurer.
It is further submitted by learned counsel for the complainant that this Forum has to examine whether repudiation on the ground mentioned in the repudiation letter is justified. No further ground can be taken by the opposite party and no further ground is to be considered by this Forum. The claim was repudiated vide letter dated 10-6-2016 (Ex.C-4) on the ground that there was no valid permit. As per complainant, accident took placed on 7-1-2016 at 3.00 p.m. The complainant has produced on record copy of permit (Ex. C-6) which proves that this authorisation is issued on 7-1-2016 and valid upto 6-1-2017. Of course, the opposite party has pleaded that complainant has concocted the facts but there is no evidence to support this version. The Investigator in his report (Ex. OP-1/9) has also reported that vehicle was having permit from 7-1-2016 to 6-1-2017 and the permit is genuine. Therefore, the repudiation of the claim is not justified. The complainant has produced on record bill Ex. C-8. This bill is issued by authorised service station of manufacturer. The opposite party cannot make any cut in the bill. The complainant has suffered mental tension, harassment and botheration. As such, he is also entitled to compensation as claimed.
To support this submission, learned counsel for the complainant has relied upon :-
i) 2000 ACJ 701 case titled Madhya Pradesh State Road Transport Corpn. Vs. Priyank
ii) 2005 (2) ACJ 434 case titled NIC Vs. R K Abrol
iii) 1998 ACJ 379 case titled Dr. A C Mehra Vs. Behari Lal
iv) State Commission Original Complaint No. 5 of 2003 decided on v) 21-11-2006 case titled Mandeep Singh Vs. NIA
vi) National Commission FAO No. 12 of 2007 case titled NIA Vs. Mandeep Singh
vii) Supreme Court SLP No. 37762/2012 case titled NIA Vs. Mandeep Singh
viii) State Commission FAO No. 156 of 2008 case titled UIIC Vs. Hari Krishan
ix) 2007 (1) CPJ 3 (NC) case titled Maya Appliances Vs. United India
x) 2011 92) RCR Civil 591 case titled Mrs. Rubbi Dutta Vs.UIIC
xi) First Appeal No. 147 of 2007 case titled M/s. Ganeshlal Ghanshyam Dass Tambi Vs. New India Assurance Co. Ltd.,
xii) FAO No. 5176 of 2005 decided on 11-3-2016 case titled Vishal Vs. Bugga Singh & Others (Hon'ble Punjab & Haryana High Court).
On the other hand, learned counsel for the opposite party has submitted that contract of insurance is based on 'Uberima Fides'. Both the parties are to exhibit good faith. Contract of Insurance is also not a tool of enrichment. It is only to compensate the insured for the loss suffered by insured and as per terms and conditions of contract. The complainant is also expected to approach the Forum with clean hands to reveal all the factual position. Although the claim was repudiated on the ground that there was no valid permit. The claim was repudiated on 10-8-2016. Some facts came to light after repudiation of claim when the complainant received claim from another insurer on 23-1-2017. These facts were also mentioned in the written version. No pre-judice has been caused to the complainant. The complainant was also made aware that he has already received claim from another insurer. Therefore, this Forum is not pre-cluded from considering this fact also.
It is further submitted by learned counsel for the opposite party that the complainant has alleged that manufacturer issued estimate to the tune of Rs. 11,68,097/- but the complainant has submitted Invoice (Ex. C-8) vide which he got the vehicle repaired. As per this Invoice, total expenditure was of Rs. 8,59,404/-. The opposite party also appointed surveyor. The report of surveyor is Ex. OP-1/10. The surveyor has assessed the loss to the tune of Rs. 7,19,708/- only. It is admitted case of the complainant that accident was due to negligence of driver of Bus RJ-07-PB-5077 which was being driven by Shyam Lal Meghwal. The complainant also filed claim petitition under MACT. Copy of claim petition is Ex. OP-1/3. In this claim petition, the complainant has pleaded and claimed Rs. 11,82,450/- as damages to the truck and Rs. 3,17,000/- as business loss. Therefore, the claim in claim peititon filed against insurer of the bus, bus driver and owner was only for claiming loss to the vehicle and business. The order passed by Motor Accident Claims Tribunal is dated 23-1-2017 (Ex. OP-1/4). This order was passed on compromise and statement of the parties through Advocates. The statement of counsel for the complainant recorded on 23-1-2017 is Ex. OP-1/5. Vide this statement, the complainant has accepted Rs. 7,50,000/- as full and final settlement of claim on account of damage to the truck. The complainant has admittedly received this amount. He has aknowledged this fact in his affidavit (Ex. C-1). It is proved that claim petition was only for loss to the vehicle and loss of business on account of damage to the vehicle. It is proved that complainant settled this loss for Rs. 7,50,000/- and received this amount but these facts were not mentioned in the complaint whereas matter was settled before filing of this complaint. The complainant has already received the loss and has not approached this Forum with clean hands. The complaint is liable to be dismissed with special cost.
To support above submissions, learned counsel for opposite party No. 1 has cited :-
i) 2015 (II) CLT 6 (NC) case titled Sauhrashtra Chemicals Ltd., Ns. National Insurance Company Limited.
ii) 2015 (9) SCC 150 case titled Shashikala and Others Vs Gangalakshmamma and another
iii) 2009(13) SCC 422 case titled Reshma Kumari & Others Vs. Madan mohan and another
iv) 2016 (4) R.C.R. (Civil) 223 case titled Oriental Insurance Company Ltd., Vs. Krishan Singh & Others
We have carefully gone through the record, case law cited by learned counsel for the parties and have considered the rival contentions.
The admitted facts are that the complainant got his vehicle insured with the opposite party for the period from 28-4-2015 to 27-4-2016. The vehicle met with an accident on 7-1-2016 within covered period. Complainant lodged claim with the opposite party and opposite party has repudiated the claim vide letter dated 10-8-2016 on the ground that there was no valid permit at the time when accident took place. The complainant has impugned the repudiation on this ground.
The opposite party has taken additional plea that the complainant in another claim petition before MACT has received the loss suffered by him. The complainant has contended that the opposite party cannot take additional plea except the plea on which the claim was redpudiated but in the case of Saurashtra Chemicals (Supra) Hon'ble National Commission has obsserved that :-
“When the plea is based on admitted facts, this plea can be allowed to be taken for the first time in reply filed by Insurance Company.”
Therefore, this plea taken by the opposite can also be examined. Although, the opposite party has also pladed and argued that complainant has twisted the facts to prove validity of permit but since these facts were not mentioned in the repudiation letter, therefore, this plea cannot be accepted on the basis of admitted facts. As such, this Forum will not examine this plea of the opposite party.
The claim is for the loss suffered by complainant on account of accident on 7-1-2016. As per complainant, the estimate of loss was to the extent of Rs. 11,68,097/-. The complainant himself has produced on record Invoice (Ex. C-8) vide which he got the vehicle repaired. As per this invoice, gross amount spent was Rs. 8,59,404/-. The complainant has not pleaded that he filed claim petition before MACT and got claim. The documents prove that complainant settled the claim with Insurer of the offending bus on 23-1-2017 and this complaint (case in hand) was filed on 14-3-2017. It shows that complainant was fully aware of the fact that he has already received the loss suffered by his vehicle and has concealed this fact.
The contention of the complainant corroborated with the case law is that the complainant can claim loss from the opposite party despite the fact that he has received the loss from the offender of the bus but case law relied upon by the complainant to support this fact is not applicable. In all cited cases, the claim was not for the actual loss suffered by complainant. The amount awarded was a compensation for the loss suffered.
It is well settled that contract of insurance cannot be allowed as a source of profit nor as a windfall to the persons affected. It was also observed by Hon'ble Supreme Court in the case of Shashikala and Others (Supra).
The opposite party has placed on record statement suffered by counsel for the present complainant in another case before MACT, which is Ex. OP-1/5. Vide this statement, complainant has accepted the offer of sum of Rs. 7,50,000/- in lumpsum as full and final settlement of claim on account of damage to truck. The complainant has also suffered statement in the same line which is Ex. OP-1/6. In affidavit (Ex. C-1), the complainant has acknowledged receipt of this amount of Rs. 7,50,000/- from the opposite party but he has again concealed this fact that this amount was received on account of damage to vehicle involved in the accident.
From the documentary evidence brought on record, it is proved that complainant has already accepted Rs. 7,50,000/- as full and final settlement of account against damage to the vehicle. The complainant cannot claim the same loss from the opposite party despite the fact that he has paid separate premium to the opposite party.
Resultantly, this complaint fails and is hereby dismissed with no order as to costs.
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. File be consigned to the record room.
Announced :
27-11-2019 (M P Singh Pahwa)
Member
(Manisha)
Member
