| Final Order / Judgement | DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, BATHINDA CC.No.362 of 12-12-2017 Decided on 09-10-2018 Balwinder Singh aged about 51 years S/o Sukhdev Singh R/o Village Behman Jassa Singh Wala, Tehsil Talwandi Sabo, District Bathinda. ........Complainant Versus 1.United India Insurance Co. Ltd., The Mall, Bathinda, through its Divisional Manager.
2.United India Insurance Co. Ltd., Branch Office Verka Chowk, Talwandi Sabo, thorough its Branch Manager. .......Opposite parties Complaint under Section 12 of the Consumer Protection Act, 1986 QUORUM Sh.M.P Singh Pahwa, President. Sh.Jarnail Singh, Member. Smt.Sukhwinder Kaur Member Present:- For the complainant: Sh.Deepak Singla, Advocate. For opposite parties: Sh.Sunder Gupta, Advocate. ORDER M.P Singh Pahwa, President The complainant Balwinder Singh (here-in-after referred to as complainant) has filed complaint U/s 12 of Consumer Protection Act, 1986 against opposite parties United India Insurance Co. Ltd. and Other (here-in-after referred to as opposite parties). Briefly stated, the case of the complainant is that he is having one LPS 4018 vehicle bearing No.PB-03Y-5251. It was comprehensively insured with opposite parties for Rs.13,00,000/- w.e.f. 31.8.2016 to 30.8.2017 vide policy bearing No.2004063116P107225928. It is alleged that opposite parties never issued the policy with terms and conditions to the complainant. As per complainant, his vehicle was being driven by himself and it turtled near Gandhi Gram on Main Highway Road within the jurisdiction of P.S. Narsinghgarh, District Raj Garh. At that time, the truck was loaded with cotton. After calling J.S.B. machine, the complainant was taken out from the truck and he was got admitted in Government Hospital, Narsinghgarh. DDR No.016/2017 dated 18.4.2017 was lodged with the police of P.S. Narsinghgarh. The truck was badly damaged. It is further alleged that the complainant informed about the accident to opposite parties, they deputed the spot surveyor. The surveyor took the necessary documents and conducted the spot survey. As per instructions of the surveyor, the vehicle was shifted to Talwandi for its necessary repair. The surveyor instructed the complainant to get the vehicle repaired and submit the bills of repair. He also assured that the claim will be paid. The complainant shifted the vehicle to M/s Vishkarma Bus & Truck Repairs Work, Talwandi Sabo, which prepared the repair estimate of truck for Rs.2,71,000/- approximately. It is further alleged that under the instructions of surveyor of opposite parties, the complainant got the truck repaired from Talwandi Sabo as well as from Rampura Phul and spent Rs.2,49,506/- on repair. He submitted all the bills to the surveyor. Opposite parties deputed M/s G.S. Associates as final surveyor, which assured the complainant that the entire repair amount will be paid. The complainant spent Rs.4500/- on account of shifting the damaged vehicle from Gandhi Gram to Talwandi Sabo. The vehicle was totally damaged and not roadworthy. The final surveyor M/s G.S Associates has also taken all the necessary documents. He obtained the signatures of the complainant on blank consent forms, vouchers, forms and blank papers with the understanding that opposite parties will pay repair claim as per IDV alongwith shifting charges of Rs.4500/-. It is further alleged that as per complainant, now opposite parties after about 5 months, illegally and arbitrarily closed the claim vide letter dated 12.9.2017 on the ground that 'Breach of Policy Conditions' by mentioning that the vehicle was overloaded whereas it was not overloaded. The complainant has also referred to circular dated 6.2.2016 issued by National Highways Authorities of India regarding permitting of 5% of gross weight, but opposite parties without considering this fact, have illegally and arbitrarily closed the legal and rightful claim of the complainant. It is also alleged that the surveyor is under the thumb of opposite parties. He cannot afford to disoblige his master. He is to obtain business from opposite parties. The surveyors never sent any spot survey report and final survey report to the complainant whereas they are bound to do so. The complainant got served legal notice dated 25.9.2017 to opposite parties to which they replied vide letter dated 4.10.2017 on totally false facts. On this backdrop of facts, the complainant has alleged deficiency in service on the part of opposite parties. He has claimed Rs.2,49,506/- on repair basis alongwith interest @18% per annum; Rs.4500/- spent for shifting charges; Rs.50,000/- as compensation for damages, mental agony and sufferings etc. and Rs.11,000/- as cost of litigation. Hence, this complaint. Upon notice, opposite parties appeared through their counsel and contested the complaint by filing their joint written version. In the written version, opposite parties have raised the legal objections whereby it is admitted that the insured truck bearing registration No.PB-03Y-5251 was insured with them vide policy No.2004063116P107225928 effective from 31.8.2016 to 30.8.2017 with IDV of Rs.13 lakhs. After receipt of intimation regarding accident, spot survey was conducted by Er.Vivek Kak Surveyor and Loss Assessor. He submitted his report dated 19.4.2017. Thereafter final survey was conducted by Er.Gurjinder Singh of G.S Engineer Associates. He submitted his report dated 29.7.2017 to opposite parties and assessed the net loss to the tune of Rs.94,150/- only as per terms and conditions of policy. As such, the insured has replaced the disposal cabin after adjusting damaged cabin from the repairer. It is further pleaded that amount was not paid to the complainant as the vehicle was overloaded at the time of accident. As such, the complainant has violated the terms and conditions of insurance policy as well as Motor Vehicle Rules. As per R.C of the insured truck, insured vehicle was carrying 175 numbers of FP cotton bales vide GC No.13794 dated 11.4.2017 of M/s HS Freight Carrier, Nagpur. As per weight bridge slip No.7198 dated 12.9.2017, the insured truck/trailer was loaded with 28900 kg of cotton. As per R.C of the insured vehicle, the carrying capacity of vehicle was only 28000 kg. Since the vehicle was overloaded, so the accident has occurred. Balwinder Singh alleged driver of insured truck/trailer is holding a valid and effective driving licence to drive the insured vehicle. He was disqualified to have a valid licence. This fact was well within the knowledge of the complainant. As such, opposite parties are not liable to pay any compensation to the complainant. It is further revealed that after receipt of surveyor report, claim of the complainant has rightly been repudiated vide letter dated 12.9.2017 on the ground of breach of policy condition as the truck was overloaded. If this Forum comes to to the conclusion that the complainant is entitled for any compensation, he is only entitled to compensation amount as assessed by the surveyor. The complainant of his own free will has consented to accept amount as assessed by the surveyor. Complainant has not come with clean hands before this Forum and concealed the true and material facts. The complaint is false and frivolous to the knowledge of the complainant. On merits, it is asserted that terms and conditions of policy were duly supplied to the complainant at the time of insurance of vehicle. In further written version, opposite parties have reiterated their stand as taken in the legal objections and detailed above and controverted all the averments of the complainant. In the end, they have prayed for dismissal of complaint. Parties were asked to produce the evidence. In support of his claim, the complainant has tendered into evidence his affidavit dated 21.3.2018, (Ex.C1); photocopy of policy, (Ex.C2); photocopy of R.C, (Ex.C3); photocopy of national permit, (Ex.C4); photocopy of weight slip, (Ex.C5); photocopy of retail invoice, (Ex.C6); photocopies of bills, (Ex.C7 to Ex.C12 and Ex.C14); photocopy of receipt, (Ex.C13); photocopy of legal notice, (Ex.C15); photocopy of postal receipt, (Ex.C16); photocopy of reply to legal notice, (Ex.C17); photocopy of circular, (Ex.C18); photocopy of DDR, (Ex.C19); affidavit of Gurpreet Singh dated 6.4.2018, (Ex.C20) and closed the evidence. To rebut the claim of the complainant, opposite parties have tendered into evidence photocopy of final survey report, (Ex.OP1/1); photocopy of letter, (Ex.OP1/2); photocopy of pan card and R.C, (Ex.OP1/3); photocopy of D.L, (Ex.OP1/4); photocopy of retail invoice, (Ex.OP1/5); photocopy of builty, (Ex.OP1/6); photocopy of R.C, (Ex.OP1/7); affidavit of Baldev Singh dated 28.8.2018, (Ex.OP1/8); affidavit of Gurjinder Singh dated 28.8.2018, (Ex.OP1/9); photocopy of verification report of D.L, (Ex.OP1/10); photocopy of extract of D.L, (Ex.OP1/11); photocopy of payment receipt, (Ex.OP1/12); photocopy of verification of D.L, (Ex.OP1/13); photocopies of inspection report, (Ex.OP1/14 and Ex.OP1/15); photocopies of tax receipts, (Ex.OP1/16 to Ex.OP1/18); photocopy of claim intimation, (Ex.OP1/19); photocopy of policy, (Ex.OP1/20) and submitted written arguments. We have heard learned counsel for parties and gone through the file as well as written arguments submitted by learned counsel for opposite parties. Learned counsel for complainant has reiterated his stand as taken in the complaint and detail above. It is further submitted by learned counsel for complainant that the material facts are not in dispute. It is not disputed that the vehicle in question was insured with opposite parties with IDV of Rs.13 lakhs. The accident is also not disputed. Opposite parties appointed surveyor and then final surveyor, but they have repudiated the claim vide letter dated 12.9.2017. This fact is admitted by opposite parties also. Opposite parties have repudiated the claim on the plea that the vehicle was overloaded. This conclusion is based on weighment slip dated 12.4.2017, (Ex.C5). As per this receipt also, gross weight of vehicle is 41520 kg. and weight of unloaded vehicle is 12620 kg. and net weight of load is 28900 kg. The complainant has also placed on record copy of R.C, which shows gross vehicle weight was 40200 kg. The notification, (Ex.C18) was issued by National Highway Authority of India. This notification is based on Amendment of Rules under Motor Vehicle Act Maximum GVW. As per this notification, tolerance up to 5 percent in gross vehicle weight and safe axle weight is to be allowed. Therefore, in this case 2010 kg. excess weight was allowed being 5% of GVW, which is 40200 kg. Opposite parties have relied upon the final surveyor report, (Ex.OP1/1). Vide this report, surveyor has also observed that D.L is verified and found in order. He has nowhere noticed any violation of Motor Vehicle Act or Rules. Therefore, conclusion of opposite parties that the vehicle was overloaded is unsustainable. As such, repudiation is illegal. The complainant has placed on record estimate bills, (Ex.C8, Ex.C11 to Ex.C14) to prove that he spent an amount of Rs.2,49,506/- for repair of vehicle and Rs.4500/- as shifting charges. The repair was under the supervision of surveyor. Therefore, report of surveyor regarding assessed loss is not to be accepted. The complainant is entitled for reimbursement of full amount. He has pleaded that the surveyor obtained his signatures on blank forms and papers. Therefore, alleged consent letter, (Ex.OP1/2) cannot be used against the complainant. It is not by free will of the complainant. The complaint be accepted in terms of reliefs as claimed for. On the other hand, learned counsel for opposite parties has reiterated their stand as taken in the legal objections and detailed above. It is further submitted by learned counsel for opposite parties that R.C, (Ex.C3) relied upon by the complainant proves that gross weight is 40200 kg. Weighment slip, (Ex.C5) proves that the vehicle was having weight of 41520 kg., which is certainly in excess. The complainant has also pleaded that the vehicle turtled near Gandhi Gram near Highway. Keeping in view the nature of accident, it is to be safely concluded that the accident took-place only due to overweight. Opposite parties have also placed on record copy of builty, (Ex.OP1/6), which also shows that the vehicle was carrying 175 FP Cotton Bales, which occupies sufficient volume. As only cause of accident was overweight, therefore, the complainant cannot be allowed to take benefits of notification also. As such, opposite parties are justified to repudiate the claim. We have given careful consideration to these rival submissions. Admitted facts are that the complainant being owner of vehicle in question got it insured from opposite parties vide insurance policy, (Ex.C2). The covered period was from 31.8.2016 to 30.8.2017. The vehicle met with an accident on 11.4.2017 within covered period. Of-course, opposite parties appointed the surveyor and got the loss assessed, but they repudiated the claim vide letter dated 12.9.2017. The letter dated 12.9.2017 is on file. Although, this document is not tendered into evidence by either of party. Since none of party has disputed this fact, therefore, this document is marked as CX for ready reference by this Forum. A perusal of this letter reveals that the claim has been repudiated solely on the ground that the vehicle was overloaded. Slip No.7198 dated 12.4.2017 is also on file as Ex.C5. As per this slip, total weight was 41520 kg. and weight of unloaded vehicle was 12620 kg. Therefore, net weight was calculated as 28900 kg. Copy of registration certificate, (Ex.C3) shows that the gross vehicle weight is 40200 kg. Therefore as per this calculation, vehicle was overloaded to the extent of 1320Kg. The complainant has also placed on record copy of notification dated 6.2.2016, (Ex.C18) i.e. before date of accident. This circular is based on amendment made in Central Motor Vehicles Act/MV Act vide notification dated 7.1.2016. As per this circular, tolerance upto 5% in the gross vehicle weight and safe axle weight may be allowed for the purpose of compliance to sub-section(3) of Section 113 of Motor Vehicles Act 1988. Therefore, as per this circular, 2010 kg. weight i.e. 5% of 40200 kg. is permissible. In this case, there was excessive load to the extent of 1320 kg. Therefore, load weight falls within the permissible quantity. As such, it cannot be concluded that the vehicle was overloaded. Sequal to these observations, conclusion is that repudiation of claim is not justified. Now, question is regarding amount for which the complainant is held entitled to. Opposite parties have admittedly appointed the surveyor. His final report is on file as Ex.OP1/1. As per this report, the total net liability of insurer is Rs.94,150/-. Although, the complainant has alleged that the surveyor appointed by opposite parties 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 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 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. Therefore, keeping in view the aforesaid law also, the surveyor report is to be accepted. The surveyor has assessed the loss to the tune of Rs.94,150/-. The complainant is held entitled to claim to this extent. Opposite parties have repudiated the claim illegally. Therefore, complainant is also entitled to interest @ 9% per annum from the date of repudiation i.e. 12.9.2017 till date of payment. For the reasons recorded above, the complaint is partly accepted with Rs.10,000/- as cost and compensation against opposite parties. Opposite parties are directed to pay Rs.94,150/- alongwith interest @ 9% per annum from the date of repudiation i.e. 12.9.2017 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 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:- 09-10-2018 (M.P Singh Pahwa) President (Jarnail Singh) Member (Sukhwinder Kaur) Member
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