| Final Order / Judgement | DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, BATHINDA C.C. No. 82 of 19-03-2018 Decided on : 09-09-2022 Ghansham Dass Gupta aged about 54 years S/o Sh. Chotte Lal R/o #14135, Near Durga Mandir, St. No. 5, Ganesh Nagar, Bathinda. ..…..Complainant Versus United India Insurance Co. Ltd., (Vehicle No. PB 03 AK-1240) 7A, Mansa Road, Civil Lines, Bathinda. Surinder Kumar, Owner -cum- Driver of Vehicle No. PB 04 M-6070, Make Scorpio S/o Des Raj R/o Prem Nagar, Kotkapura, now Devi Wala Road, St. No. 9-L,Kotkapura, Distt. Faridkot.
.......Opposite parties
Complaint under Section 12 of the Consumer Protection Act, 1986 QUORUM Sh. Kanwar Sandeep Singh, President Sh. Paramjeet Kaur, Member. Present For the complainant : Sh.Ashu Bansal, Advocate For opposite parties : Sh.J.D. Nayyar Advocate, for OP No. 1 Sh.Shanky Jindal, Advocate, for OP No.2 ORDER Kanwar Sandeep Singh, President The complainant Ghansham Dass Gupta (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 United India Insurance Co. Ltd., & another (here-in-after referred to as opposite parties). Briefly stated the case of the complainant is that he got his car bearing registration No.PB03AK-1240 fully/comprehensively insured with opposite party No.1 vide insurance policy bearing No.2004013116P103987822 for the period from 7.6.2016 to midnight 6.6.2017 through agent Krishan Kapoor having agency code No.AGD0029750. It is alleged that the complainant alongwith his brother Sanjeev Kumar (now deceased), Santosh Gupta W/o Ghansham Dass/complainant, Nikhil Gupta S/o Ghansham Dass/complainant were coming to Bathinda from Ferozepur after attending the marriage of their sister's son Nitin Gupta solemnized on 30.11.2016 on his car. The complainant was driving the car and Sanjeev Kumar (deceased brother of complainant) was sitting by the side of complainant whereas Santosh and Nikhil Gupta were sitting on the rear seat of the car. When they reached near G.M. Resort, Guru Ki Dhal, the Scorpio Car bearing No.PB04M-6070 driven at high speed by opposite party No.2 in a rash and negligent manner, struck with the car driven by complainant by turning towards Kotkapura side. Due to this, Sanjeev Kumar (now deceased), Ghansham Dass (complainant), Santosh Gupta and Nikhil Gupta all suffered multiple severe injuries on their persons and they were taken to Civil Hospital, Faridkot. Sanjeev Kumar was declared dead and Santosh Gupta and complainant were referred to DMC, Ludhiana. Santosh Gupta was admitted on 2.12.2016 at DMC, Ludhiana and was discharged on 29.12.2016 and Ghansham Dass was admitted on 2.12.2016 and discharged on 16.12.2016. Both are still taking follow-up treatment. The complainant suffered permanently disability of 100%. It is further alleged that the complainant, Santosh Gupta (wife of complainant) and Usha Gupta wd/o Sanjeev Kumar filed separate claim petitions under MACT, which are pending adjudication with the court of Sh.Kanwaljit Singh Bajwa, Addl. District Judge (Exercising Power of Motor Accident Claims Tribunal), Bathinda fixed for 19.3.2018 for evidence of complainant. The car was fully damaged in the accident caused by opposite party No.2 and opposite party No.2 to avoid the consequences of accident, has filed false claim petition title 'Surinder Kumar Vs. Ghansham Dass' that is pending adjudication with the court of District Judge/MACT, Faridkot fixed for 27.3.2018 for cross-examination of complainant. It is alleged that FIR No. 146 dated 2.12.2016 U/s 279, 337, 338, 304-A, 427 IPC is registered at P.S Jaitu on the statement of Satish Kumar (brother of complainant), but opposite party No.2 got the false/biased report of cancellation at the back of the complainant to avoid the consequences of case FIR and claim petition filed by complainant and other family members. It is also alleged that the complainant lodged the claim with opposite party No.1 to indemnify him regarding loss suffered regarding the car. The car was inspected by the surveyor Sh.Raj Paul Singla of insurance company. He submitted his survey report to opposite party No.1, but nothing was conveyed either by surveyor or the insurance company to the complainant. The complainant is repeatedly visiting the office of opposite party No.1 for indemnifying his total loss of car, but to no effect It is further alleged that Due to non-payment, the complainant has to hire the car for travelling and spend Rs.8,000/- to Rs.10,000/- per month as the car in question is totally damaged and is lying at P.S Jaitu. On this backdrop of facts, the complainant has prayed for directions to opposite parties to make payment of total loss of car i.e. Rs.3,69,815/- and Rs.8000/- to Rs.10,000/- per month alongwith interest @ 18% p.a. since 1.12.2016 on account of expenses incurred on hiring car and to pay Rs.1,00,000/- as litigation expenses. Upon notice, opposite parties appeared through their respective counsel and contested the complaint by filing separate written versions. Opposite party No.1 in its written version has raised the preliminary objections that complaint is not maintainable in its present form. The complainant has no locus-standi to file the complaint . The complainant has no cause-of-action to file the complaint and this Commission has no jurisdiction to try and entertain the complaint. The complainant has filed this false and factious complaint against opposite parties and has unnecessarily harassed them by dragging them into uncalled for litigation and that he is not a 'consumer' as defined under 'Act'. It is pleaded that the actual facts of the case are that an intimation regarding accident of car bearing No.PB-03AK-1240 was received and opposite party No.1 on the same day deputed Er.Raj Pal Singhal, surveyor to assess the loss to the vehicle at the spot. He submitted his report dated 23.12.2016 that was merely a spot inspection report. Opposite party No.1 made various requests to the complainant vide letters dated 30.12.2017 mentioning that as per spot survey report, his vehicle was in the custody of P.S Jaito and he was requested to inform opposite party No.1 when the vehicle is released and present for repairs, so that the final surveyor may be deputed. The complainant has not only failed to provide the information in this regard to opposite party, but he also did not even bother to reply to the letter. Opposite party No.1 sent a reminder dated 7.1.2017, another reminder dated 21.2.2017 besides various telephone calls and final reminder dated 29.10.2017 to the complainant clearly mentioning that since nothing is being heard from him in this regard, as such if still he fails to provide the required information within 7 days, the file will be closed as 'No Claim'. The complainant did not provide the information and bother to contact opposite party No.1, so opposite party No.1 was left with no option except to file as 'No Claim' vide its letter dated 28.3.2018. The complainant is estopped by his own act and conduct from filing the complaint. There is no deficiency in service on part of opposite party No.1. As such, the complaint deserves dismissal. On merits, opposite party No.1 admitted that at the time of insurance, the complainant had been provided with the copy of the policy alongwith its terms and conditions. The claim, if any, was payable subject to rules and regulations and terms and conditions of the policy and providing all the required documents, information and completing required formalities. The claim petitions having been filed by different parties in different courts. No such loss of full damage has been caused to the car. The complainant lodged the claim with opposite party No.1 for indemnification of loss to the vehicle and spot surveyor inspected the spot and submitted his report. The actual position of the loss suffered would have come after the final survey report. The final loss suffered by the complainant would have come out in the final survey report, but same could not be conducted due to the negligence of the complainant. It is pleaded that opposite party No.1 has been working with all bonafide intentions to work further on the claim of the complainant, but it is the complainant who has not been providing the required information to opposite party No.1 despite repeated letters requests and telephone calls. It is denied that the complainant time and again approached to the office of opposite party No.1, rather opposite party No.1 had been writing various letters and reminders to the complainant, but he did not bother to act upon it. After controverting all other averments of the complainant, the opposite party No.1 prayed for dismissal of complaint. The opposite party No.2 filed separate written version and raised the legal objections that the complaint is not maintainable in its present form. This complaint has got no locus-standi and cause-of-action to file the complaint. The complainant has not come to this Commission with clean hands, rather he has suppressed the true and material facts. There is no relationship of consumer and service provider between complainant and opposite party No.2. This Commission has no jurisdiction to try, entertain and decide the complaint. This complaint is bad for mis-joinder of necessary party as opposite party No.2 has been unnecessarily impleaded as party in this complaint and that this complaint is false, frivolous and vexatious to the knowledge of the complainant. On merits, opposite party No.2 has pleaded that the true facts are that the opposite party No.2 was returning to Kotkapura after attending marriage at Jaitu in their Scorpio Car and when they reached near G.M. Resort, Guru ki Dhal, opposite party no.2 stopped his Scorpio Car bearing registration No. PB-04M-6070 on the Katcha path to his correct side of the road for waiting of other cars of Baraat to come. All the occupants of Scorpio Car came out the Scorpio car and were waiting for the other cars of the Baraat. The opposite party No.2 went to attend natural call/urinate and the meantime, a WagonR car bearing registration No. PB-03AK-1240 came from Ferozpur side, driven by the complainant in a high speed and rash and negligent manner and the same came out of control and struck with Scorpio car , which was on the Katcha Path of the road. The accident took place wholly due to rash and negligent driving of the WagonR car by the complainant himself. A wrong FIR was got registered against the opposite party No.2 by the complainant and his family with political pressure, which was later on, re-investigated by the police and in re-investigation, the opposite party No.2 was found innocent and recommended for cancellation of the said FIR. In this accident, Scorpio Car owned by the opposite party No.2 was badly damaged and opposite party No.2 has already filed claim petition under Section 166 of the M.V. Act against complainant and opposite party No.1, who is insurer of Car No. PB-03AK-1240, claiming compensation of damages of his Scorpio car before the court of Hon'ble MACT, Faridkot, which is still pending. The opposite party No.2 was not at all involved in the alleged accident, rather the accident had taken place due to fast speed of WagnoR car by the complainant himself, who struck his WagonR against the standing Scorpio car of the opposite party No.2. There was no occupant in the Scorpio car at the time of alleged accident, and as such no one from the side of Scorpio car including the opposite party No.2 got any injury in the alleged accident. In the end opposite party No.2 also prayed for dismissal of complaint. In support of his complainant, the complainant has tendered into evidence his three affidavits dated 16.3.2018, 7.6.2018 and 31.8.2022 (Ex. C-1, Ex. C-2 and Ex. C-39) and other documents, (Ex.C-3 to Ex. C-38). In order to rebut the evidence of complainant, opposite party No.1 has tendered into evidence affidavit of Baldev Singh dated 07-12-2018 (Ex. OP-1/1), photocopy of documents (Ex.OP-1/2 to Ex.OP-1/11). Opposite party No.2 has not tendered any evidence. We have heard learned counsel for the parties and gone through the record. The learned counsel for the parties have reiterated their stand as taken in their respective pleadings. We have given careful consideration to these submissions and gone through the record. In the case in hand, there is no dispute regarding insurance of vehicle of the complainant, accident and deputation of spot surveyor. The pleading of the opposite party No.1 is that they sent repeated reminders to complainant to inform when the vehicle is released and present for repairs so that the final surveyor may be deputed but the complainant failed to furnish such information due to which final surveyor could not be deputed and claim remained pending which ultimately files as no claim. During the proceeding of this complaint, the complainant has tendered into evidence affidavit dated 31.8.2022 (Ex. C-39) wherein he has deposed that payment of Rs. 2,04,000/- has been received by him against the insurance claim of accidental car in questions. He has further deposed that he his entitled to interest @ 18% p.a. on this claim amount from the date of loss till its actual payment. The complainant has also deposed in the said affidavit that he has not received any letter/reminder regarding informing them about release of vehicle and present for repair, as alleged by opposite party No.1 in their written reply. A perusal of file reveals that although opposite party No.1 has placed on file letters/reminders (Ex. OP-1/5 to Ex. OP-1/8) to prove that said letters have been sent to complainant but there is no proof/ postal receipt. Even these letters do no bear any dispatch number. Thus, it cannot be said that opposite party No.1 ever asked the complainant to inform regarding release of vehicle or when it was presented for repairs. Further perusal of file reveals that opposite party No.1 has neither shown its willingness to inspect the vehicle in question during the pendency of complaint nor in its pleadings i.e. in the written version as well as evidence for settlement of claim. We are of the view that opposite party No.1 kept the amount of the complainant for its gain and loss of the complainant for such a long period. Hence, opposite party No.1 filed/closed the claim of the complainant without any fault on his part and when he, under compelled circumstances, filed complaint before this Commission, opposite party No.1 paid claim amount to the tune of Rs. 2,04,000/- to the complainant, during pendency of the complaint without any interest. Therefore, complainant is entitled to interest @ 8% on the claim amount of Rs. 2,04,000/- with effect from date of filing of complaint till its payment. The complainant is also entitled to some amount of compensation for the harassment which he suffered without any fault on his part, alongwith litigation expenses. Resultantly, this complaint is partly allowed with Rs.10,000/- as cost and compensation against opposite party No.1 and stands dismissed qua opposite party No.2. Opposite party No.1 is directed to pay interest @ 8% on the claim amount of Rs.2,04,000/- with effect from date of filing of complaint i.e. 19.3.2018 till its payment. The compliance of this order be made by the opposite party No.1 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 room.
Announced : 09-09-2022 (Kanwar Sandeep Singh) President (Paramjeet Kaur) Member
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