Order by:
Sh.Amrinder Singh Sidhu, President
1. The complainant has filed the instant complaint under section 12 of the Consumer Protection Act, 1986 (now under section 35 of the Consumer Protection Act, 2019) on the allegations that the complainant got his vehicle NISSAN SUNNY XV having RC No.PB-05V-927 Model 2012, Engine & Chassis No.EOO26052005576 with the Opposite Parties vide policy No.233990/31/2019/1093 valid for the period w.e.f. 12.03.2019 to 11.03.2020 for a sum of Rs.3,50,000/-. Further alleges that said vehicle of the complainant met with an accident on 27.05.2019 and the complainant immediately informed the Opposite Parties and they appointed their surveyor who visited the accidental place. At the instance of surveyor, the complainant taken the insured vehicle to workshop and got repaired the vehicle and paid Rs.50,350/- on account of repair charges from his own pocket. Thereafter, the complainant lodged the claim for the reimbursement of his claim and also completed all the formalities. Thereafter, as per the message received from the Opposite Parties, they approved the claim amounting to Rs.25,300/- on account of repair charges, but till date, the complainant has not even a single penny from the Opposite Parties despite repeated requests and reminders. As such, there is deficiency in service on the part of the Opposite Parties. Vide instant complaint, the complainant has sought the following reliefs.
a) The Opposite Parties may be directed to pay Rs.50,350/- on account of repair charges of the insured vehicle alongwith interest @ 12 % per annum from the date of claim till its actual realization.
b) The amount of Rs.50,000/- be allowed to be paid by the opposite parties on account of compensation due to mental tension and harassment caused by the complainant.
c) The cost of complaint amounting to Rs.5,000/- may please be allowed.
d) And any other relief to which this Hon’ble Consumer Commission, Moga may deem fit be granted in the interest of justice and equity.
2. Opposite Parties appeared through counsel and contested the complaint by filing the written version taking preliminary objections therein inter alia that the intricate questions of law and facts are involved in the present complaint which require voluminous documents and evidence for determination which is not possible in the summary procedure under the Consumer Protection Act and appropriate remedy, if any, lies only in the Civil Court. The complainant has not approached this District Consumer Commission with clean hands, rather he has wilfully concealed the material and patent facts from this District Consumer Commission which ipso-facto disentitles the complainant to seek any relief against the Opposite Parties. The true facts are that on receipt of intimation regarding the accident of insured vehicle, the Opposite Parties immediately appointed surveyor and as per the report of the surveyor, the claim of the complainant was passed amounting to Rs.25,300/-, however, inadvertently, the payment wrongly got credited into the account of Brar Automobiles, Moga through UTR No.N295190305549697 dated 22.10.2019 and now the Opposite Parties have recovered the amount and Opposite Parties have asked the complainant to provide the bank account to enable the Opposite Parties to release the claim amount and as such, the mistake is bonafide and Opposite Parties regret the same. On merits, the Opposite Parties took up the same and similar pleas as taken up by them in the preliminary objections and prays for dismissal of the complaint.
3. In order to prove his case, the complainant has placed on record his affidavit Ex.CW1/A alongwith copies of documents Ex.C2 to Ex.C7 and closed the evidence on behalf of the complainant.
4. On the other hand, to rebut the evidence of the complainant, Opposite Parties also tendered into evidence the affidavit of Sh.Sukhwinder Singh, Sr.Divisional manager Ex.Ops1 alongwith copies of documents Ex.Ops2 to Ex.Ops12 and closed the evidence.
5. We have heard the ld.counsel for the parties and also gone through the documents placed on record.
6. Ld.counsel for the Complainant has mainly reiterated the facts as narrated in the complaint and contended that first of all, the written version filed on behalf of the Opposite Party has not been filed by an authorized person. Therefore, the written version so filed is not maintainable. Opposite Party is limited Company and written version has been filed on the basis of special power of attorney given to ld.counsel for the Opposite Party. Further contended that the complainant got his vehicle NISSAN SUNNY XV having RC No.PB-05V-927 Model 2012, Engine & Chassis No.EOO26052005576 with the Opposite Parties vide policy No.233990/31/2019/1093 valid for the period w.e.f. 12.03.2019 to 11.03.2020 for a sum of Rs.3,50,000/-. Further contended that said vehicle of the complainant met with an accident on 27.05.2019 and the complainant immediately informed the Opposite Parties and they appointed their surveyor who visited the accidental place. At the instance of surveyor, the complainant taken the insured vehicle to workshop and got repaired the vehicle and paid Rs.50,350/- on account of repair charges from his own pocket. Thereafter, the complainant lodged the claim for the reimbursement of his claim and also completed all the formalities. Thereafter, as per the message received from the Opposite Parties, they approved the claim amounting to Rs.25,300/- on account of repair charges, but till date, the complainant has not even a single penny from the Opposite Parties despite repeated requests and reminders.
7. On the other hand, ld.counsel for the Opposite Party has repelled the aforesaid contention of the ld.counsel for the complainant on the ground that first of all, the intricate questions of law and facts are involved in the present complaint which require voluminous documents and evidence for determination which is not possible in the summary procedure under the Consumer Protection Act and appropriate remedy, if any, lies only in the Civil Court and this Hon’ble District Consumer Commission has no jurisdiction to try and decide the present complaint. It is further contended that the complainant has not approached this District Consumer Commission with clean hands, rather he has wilfully concealed the material and patent facts from this District Consumer Commission which ipso-facto disentitles the complainant to seek any relief against the Opposite Parties. Further contended that the true facts are that on receipt of intimation regarding the accident of insured vehicle, the Opposite Parties immediately appointed surveyor and as per the report of the surveyor, the claim of the complainant was passed amounting to Rs.25,300/-, however, inadvertently, the payment wrongly got credited into the account of Brar Automobiles, Moga through UTR No.N295190305549697 dated 22.10.2019 and now the Opposite Parties have recovered the amount and Opposite Parties have asked the complainant to provide the bank account to enable the Opposite Parties to release the claim amount and as such, the mistake is bonafide and Opposite Parties regret the same.
8. Perusal of the contention of the ld.counsel for the complainant shows that the written version filed on behalf of the Opposite Party has not been filed by an authorized person. Therefore, the written version so filed is not maintainable. The Opposite Party is limited Company and written version has been filed on the basis of special power of attorney given to ld.counsel for the Opposite Party. In this regard, Hon’ble Supreme Court of India in a judgment (2011)II Supreme Court Cases 524 titled as “State Bank of Travancore Vs. Kingston Computers India Pvt. Ltd.” and in para no.11 of the judgment, has held that
“the plaint was not instituted by an authorized person. On the plea that one authority letter dated 02.01.2003 was issued by Sh. R.K.Shukla in favour of Sh. A.K.Shukla. Further plaint failed to place on record its memorandum/articles to show that Sh. R.k.Shukla has been vested with the powers or had been given a general power of attorney on behalf of the Company to sign, verify and institute the suit on behalf of the Company.”
Similar proposition came before the Hon’ble Delhi High Court in “Nibro Ltd. Vs. National Insurance Co. Ltd.”, 2 (2005) 5SCC 30 that the
“bear authority is not recognized under law and ultimately, it was held that the plaint was not instituted by an authorized person. Here also appellant has not placed on record any resolution passed by any Board of Director in favour of Mr. Soonwon Kwon and that he was further authorised to delegate his power in favour of any other person. Further there is no memorandum/articles of the Company to show that Mr. Soonwon Kwon is one of the Director of the Company. In the absence of that evidence on record we cannot say that the special power of attorney given by Director Soonwon Kwon is a competent power of attorney issued in favour of Sh. Bhupinder Singh. In the absence of any resolution of the Company or any memorandum/articles of the Company to show that Sh. Soonwon Kwon is Director and that he was further authorised to issue power of attorney in favour of Sh. Bhupinder Singh.”
Recently our own Hon’ble State Commission, Punjab Chandigarh in FAO No.1235 of 2015 decided on 25.01.2017 in case titled as L.G.Electronics India Private Limited Vs. Sita Ram Chaudhary also held that the plaint instituted by an unauthorized person has no legal effect.
9. For the sake of arguments, for the time being, if the written reply filed by Opposite Party is presumed to be correct, the next plea raised by Opposite Party is that on receipt of intimation regarding the accident of insured vehicle, the Opposite Parties immediately appointed surveyor and as per the report of the surveyor, the claim of the complainant was passed amounting to Rs.25,300/-, however, inadvertently, the payment wrongly got credited into the account of Brar Automobiles, Moga through UTR No.N295190305549697 dated 22.10.2019 and now the Opposite Parties have recovered the amount and Opposite Parties have asked the complainant to provide the bank account to enable the Opposite Parties to release the claim amount. But perusal of the letter dated 28.09.2021 allegedly issued by the Opposite Parties to the complainant (Ex.OP12) requesting him to provide his bank account particulars to enable them to release the claim amount. This letter was allegedly issued by the Opposite Parties to the complainant on 28.09.2021 i.e. after filing the present complaint i.e.on 17.07.2021 by spending counsel fee and preparing the complaint etc. and hence, we can understand such harassment and mental tension caused by the complainant due to non payment of alleged approved amount to the complainant and on this account, though the complainant has claimed the amount of Rs.50,000/- for causing him mental tension and harassment, but definitely the complainant must have suffered a lot at the hands of the Opposite Parties for want of repair charges which were borne by him from his own pocket and in this account, we feel that the Opposite Parties must be punished.
10. With regard to other claim of Rs.50,350/- as claimed by the complainant on account of repair charges of the insured vehicle, we have perused the detailed Motor (Final) Survey Report Ex.OP5 of Er.Gurwinder Singh Patheja in which he has assessed the net liability on repair basis amounting to Rs.25,300/-. It has been settled by the Hon’ble Supreme Court of India that the report of the Surveyor cannot be brushed aside without valid reasons. In this context, reference may be made to the judgment of the Hon’ble Supreme Court reported as “Sri Venkateshwara Syndicate v. Oriental Insurance Company Limited, II (2010) CPJ 1 (SC)” in which it was held by the Hon’ble Supreme Court that the report of the Surveyor is to be given due importance and weight. Hon’ble National Commission in case cited as PRADEEP KUMAR SHARMA versus NATIONAL INSURANCE COMPANY, III(2008) CPJ 158 (NC), has been held that “Surveyor Report is an important document and cannot be brushed aside without any compelling evidence to the contrary”. Further in case New Horizon Sugar Mills Ltd. v. United India Insurance Co. Ltd. & Ors, 2003(3) CPR 136 (NC), the Hon’ble National Commission, New Delhi has observed that “report of Surveyor appointed under the provisions of Insurance Act has to be given greater importance.” In M/s Natain Cold Storage & Allied Industries Ltd. v . Oriental Insurance Co Ltd. 2003(3) CPR 114 (NC) it has been observed “surveyor’s report in the insurance claim is an important document which cannot be brushed aside easily.” Same view has been taken by the Hon’ble National Commission in case of Bhawana Kumar versus General Manager Varun Webres Ltd. & Anr, 2008(4) CPR 82 (NC). Not only this, recently Hon’ble National Consumer Disputes Redressal Commission, New Delhi in case National Insurance Company Limited Vs. M/s.Kiran Collector & Boutique 2019 (1) CLT 384 (NC), decided on 24th July, 2018 has held that “General rule is that the surveyors are appointed under the Insurance Act, 1938 and their reports are to be considered for settlement of insurance claims- The reports can not be brushed aside without any cogent reasons.” Hon’ble National Commission in the case of Ankur Surana v. United India Insurance Co. Ltd., reported in I (2013) CPJ 440 (NC), wherein it has been observed that "it is well established by now that the report of the surveyor is an important document and the same should not be rejected by the Fora below unless cogent reasons are recorded for doing so. The State Commission has stated that it did not see any legal ground before the District Forum to reject the report of the Surveyor. The report of the surveyor should have been rebutted on behalf of the complainant/petitioner since the respondents/OPs had filed the surveyor's report as their evidence."
11. Keeping in view the aforesaid facts and circumstances and replying upon the judgements of Hon’ble Supreme Court of India as well as Hon’ble National Commission, New Delhi (supra) we are of the view that the instant complaint is to be decided on the basis of unrebutted surveyor report.
12. In such a situation the non payment of the assessed amount by the surveyor till date by Opposite Party regarding genuine claim of the complainant appears to have been unwarranted. It is usual with the insurance company to show all types of green pesters to the customer at the time of selling insurance policies, and when it comes to payment of the insurance claim, they invent all sort of excuses to deny the claim. In the facts of this case, ratio of the decision of Hon’ble Apex Court in case of Dharmendra Goel Vs. Oriental Insurance Co. Ltd., III (2008) CPJ 63 (SC) is fully attracted, wherein it was held that, Insurance Company being in a dominant position, often acts in an unreasonable manner and after having accepted the value of a particular insured goods, disowns that very figure on one pretext or the other, when they are called upon to pay compensation. This ‘take it or leave it’, attitude is clearly unwarranted not only as being bad in law, but ethically indefensible. It is generally seen that the insurance companies are only interested in earning the premiums and find ways and means to decline claims. In similar set of facts the Hon’ble Punjab & Haryana High Court in case titled as New India Assurance Company Limited Vs. Smt.Usha Yadav & Others 2008(3) RCR (Civil) Page 111 went on to hold as under:-
“It seems that the insurance companies are only interested in earning the premiums and find ways and means to decline claims. All conditions which generally are hidden, need to be simplified so that these are easily understood by a person at the time of buying any policy. The Insurance Companies in such cases rely upon clauses of the agreement, which a person is generally made to sign on dotted lines at the time of obtaining policy. Insurance Company also directed to pay costs of Rs.5000/- for luxury litigation, being rich.
13. In view of the aforesaid facts and circumstances of the case, the instant complaint is allowed partly and the Opposite Parties are directed to make the payment of Rs.25,300/- (Rupees twenty five thousands three hundred only) to the complainant on account of repair charges of the insured vehicle in question, on the basis of report of surveyor alongwith interest @ 8% per annum from the date of filing the complaint i.e. 17.07.2020 till its realization. Opposite Parties–Insurance Company is also directed to pay lump-sum compensation to the complainant for causing him mental tension and harassment to the tune of Rs.10,000/- (Rs.Ten thousands only) and Rs.5,000/- (Rupees five thousands only) as litigation expenses. The compliance of this order be made by Opposite Parties within 45 days from the date of receipt of this order, failing which the complainant shall be at liberty to get the order enforced through the indulgence of this District Commission. Copies of the order be furnished to the parties free of cost. File be consigned to record room after compliance.
14. Reason for delay in deciding the complaint.
This complaint could not be decided within the prescribed period because the State Government has not appointed any of the Whole Time Members in this Commission for about 3 years i.e. w.e.f. 15.09.2018 till 27.08.2021 as well as due to pandemic of COVID-19.
Announced in Open Commission.
Dated:22.02.2022.
