DISTRICT CONSUMER DISPUTES REDRESSAL FORUM,

BATHINDA

C.C. No. 360 of 12-12-2017

Decided on : 30-10-2018

Rekha Rani aged about 36 years Wd/o Harbans Singh R/o Ward No. 7, Barnala Road, Dasmesh Nagar, Near Taxi Stand, Rampura Phul, District Bathinda.

…...Complainant

Versus

1. United India Insurance Co. Ltd., Khati Bazar, Rampura Phul 151013 through its Branch Manager

2. Kansal Finance Co. Barnala Road, Rampura Phul 151103, through its Owner/Prop/Partner/Auth. Signatory (Deleted vide order dated 22-2-2018)

.......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. Sahil Bansal, Advocate.

For the opposite parties : Sh. Ishwinder Pal Singh, Advocate, for OP No. 1

OP No. 2 deleted.

O R D E R

M. P. Singh Pahwa, President

1. Rekha Rani, 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 United India Insurance Co. Ltd., (here-in-after referred to as 'opposite party').

2. Briefly stated, the case of the complainant is that she is owner of one Innova LMV bearing Registration No. HR-38-M-1094. This vehicle was comprehensively insured (Package Insurance) with opposite party No. 1 vide comprehensive Insurance Policy No. 2004043116P105413992 w.e.f. 27-07-2016 to 25-07-2017 for the IDV of Rs.1,70,000/-. The said vehicle is duly hypothecated with opposite party No. 2.

3. It is alleged that opposite party No.1 took signatures of the complainant on the Proposal Form as per Regulations of the IRDA under Regulation (4)(1) of 2002. At the time of issuing said insurance, the complainant told to Ms. Anju Development Officer/Agent of opposite party No.1 that she has no driving licence with them. The vehicle is being driven and used by her husband Harbans Singh, who is having valid driving licence. This fact is duly mentioned in the Proposal Form. Thereafter the agent and opposite party No.1 issued Insurance Policy and charged Rs.100/- extra for PA Insurance of Harbans Singh under Owner Driver as per Clause GR-36 of IMT.

4. It is alleged that opposite party No. 1 duly covered Harbans Singh under PA Insurance of Rs. 2,00,000/- as under GR-36 of the IMT the PA mandatory Insurance cannot cover owner if she had no driving licence. In this insurance, Harbans Singh was insured as Rekha Rani, complainant, declared that she had no license and the vehicle had been used and driven by Harbans Singh.

5. It is pleaded that said vehicle met with an accident on 11-12-2016 at about 9.10 a.m near village Amritpur, revenue limits of P.S. Fattu Dhinga, Kapurthala with Bus No. PB-08-BL-8951. At that time, the car was being driven by Harbans Singh. He died in this accident. The vehicle was totally damaged. The accident took place due to sole negligence of Sarwan Singh who was driving Bus No. PB-08-BL-8951, but the police in-connivance with the driver and owner of Bus, registered only DDR dated 14-12-2016 and did not register FIR against Bus driver.

6. It is alleged that police took thumb impressions of the witnesses on blank papers with impression that they will register FIR against Bus driver but they only registered DDR. The complainant also sent registered letter to S.S.P. Kapurthala, in this regard but to no effect. The complainant lodged claim with opposite party No. 1 and Insurance Company appointed surveyor (Er. Gurjinder Singh M/s G.S, Associates, Bathinda). The surveyor declared the vehicle as total loss. The surveyor and opposite party No. 2 took possession of the damaged vehicle with the remarks that the same is total loss and the total payment as per IDV will be given to the complainant at the earliest but till date, Insurance Company has not released single penny although the damaged vehicle is in the custody of opposite party No.1 (through their said surveyor) and opposite party No. 2.

7. The further averments of the complainant is that the final surveyor of opposite parties took signatures of the complainant on blank claim Form, blank consent letter, blank full and final voucher and other blank Forms with the understanding that it is total loss. The complainant got served legal notice upon opposite party No.1 and demanded claim amount to the tune of Rs.1,70,000/- as per IDV and also demanded Rs. 2,00,000/- under PA claim of Harbans Singh but the opposite party No.1 did not release the same and replied to the notice through counsel that the claim of the car is under process on 21-06-2017 whereas the accident took place on 11-12-2016. Thereafter surveyor and opposite parties compelled the complainant to cancel the registration certificate of the vehicle against law and rules and told that they will not release any amount on account of vehicle loss.

8. It is also alleged that surveyor is under the thumb of Insurance Company and he cannot afford to disoblige their master i.e. opposite party No. 1 from where he has to obtain business. He is always to toe the dictates of opposite party No. 1 and prepare reports under their directions. The complainant is ready to sign the transfer papers in favour of opposite party No. 1 as per Motor Vehicle Act. The opposite party No. 1 and their surveyor never supplied survey report to the complainant whereas it is is mandatory.

9. It is also pleaded that due to non payment of total claim, the complainant has suffered mental agony and pains. For these sufferings, she has claimed compensation to the tune of Rs.1,00,000/- in addition to payment of Rs. 1,70,000/- i.e. IDV of the vehicle, with interest and Rs. 50,000/- as litigation expenses.

10. Upon notice, the opposite parties appeared through their respective counsel and contested the complaint by filing written version.

11. 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 requires voluminous documents and evidence. It is not possible in summary procedure under the 'Act'. The appropriate remedy, if any, lies only in the civil court. That complainant has concealed material facts and documents from this Forum as well as opposite party. She is not entitled to any relief. The complainant has concealed the fact that opposite party has already settled the claim for Rs.93,000/- on NOS without registration certificate after applying depreciation. The opposite party written letter dated 24-10-2017 to complainant for getting RC cancelled from the concerned RTO and submission of No Due Certificate from Financer of the vehicle. The complainant was also asked to supply Voter Card, Adhar Card and PAN Card, but she neither replied to the letter nor submitted documents. As such, the opposite party did not release the amount in favour of complainant. That the complainant is not consumer of the opposite Party. She has no locus standi or cause of action to file the complaint.

12. On merits, ownership, insurance and accident is not denied but stated to be matter of record. It is further stated that insurance is subject to terms and conditions of the policy. It is denied that opposite party took signatures of the complainant on proposal form as per Regulations of IRDA under Regulation (4)(1) of 2002. It is stated that complainant signed proposal form after reading all the terms and conditions of the policy. It is denied that copy of proposal form was never supplied to complainant. It is rather asserted that the same was supplied to complainant with terms and conditions of the policy. It is denied that Ms. Anju Development officer/agent of opposite party was told by the complainant that she has no driving licence with her or the vehicle was driven or used by her husband Harbans Singh. It is admitted that Rs.100/- were charged extra for PA insurance. It is denied that the said amount was charged for PA Insurance of Harbans Singh as alleged It is also denied that opposite party covered Harbans Singh under PA Insurance of Rs. 2,00,000/-.

13. Regarding accident, it is stated to be matter of record. It is further revealed that opposite party after receiving claim regarding damage of vehicle, settled it at Rs.93,000/- after applying depreciation on the basis of 'Net of Salvage' without registration certificate of the vehicle in question and written letter dated 24-10-2017 to complainant for submission of documents, but she failed to supply the same. As such, claim could not be paid to her. All other averments of the complainant are denied. In the end, the opposite party prayed for dismissal of complaint.

14. The opposite party No. 2 in its separate written reply also raised legal objections regarding maintainability, locus standi or cause of action and estoppel. That the complainant has not approached this Forum with clean hands and that the complaint is false, frivolous and vexatious.

15. On merits, it is admitted that vehicle No. HR-38M-1094 was hypothecated with opposite party No. 2. The complainant has already cleared the entire outstanding dues on 11-10-2017. The opposite party No. 2 issued No Due Certificate in favour of the complainant and it has no charge over the vehicle in question since 11-10-2017. All other averments of the complainant are denied. In the end, the opposite party No. 2 prayed for dismissal of complaint.

16. Thereafter, keeping in view the statement dated 22-2-2018 of learned counsel for the complainant, name of opposite party No. 2 was deleted.

17. Parties were afforded opportunity to produce evidence. In support of her claim, complainant has tendered into evidence her affidavit dated 5-2-2018 (Ex. C-1), photocopy of letters (Ex. C-2 & Ex. C-3), photocopy of e-mail (Ex. C-4), photocopy of payment receipt (Ex. C-5), photocopy of register page (Ex. C-6), photocopy of RC (Ex. C-7), photocopy of policy (Ex. C-8), photocopy of driving licence (Ex. C-9), photocopy of legal notice (Ex. C-10), photocopy of postal receipt (Ex. C-11) and photocopy of letter (Ex. C-12).

18. In order to rebut this evidence, opposite party has tendered into evidence affidavit dated 11-4-2018 of Baldev Singh (Ex. OP-1/1), photocopy of spot survey report (Ex. OP-1/2), photocopy of Interim survey report (Ex. OP-1/3), photocopy of photographs (Ex. OP-1/4 to Ex. OP-1/7), photocopy of letter dated 15-8-2017 (Ex. OP-1/8), photocopy of photograph (Ex. OP-1/9), photocopy of letters (Ex. OP-1/10 & Ex. OP-1/11), photocopy of reply to legal notice (Ex. OP-1/12) and photocopy of policy (Ex. OP-1/13).

19. The complainant has also submitted written arguments.

20. We have heard learned counsel for the parties, gone through the record and written arguments of complainant.

21. Learned counsel for the parties have reiterated their stands as set up in their respective pleadings and as detailed above.

22. We have carefully gone through the record and have considered the rival contentions.

23. It is not disputed that vehicle in question met in accident and opposite party appointed surveyor. The report of surveyor is Ex. OP-1/3. The surveyor has assessed the loss on 'Net of Salvage Basis' to the tune of Rs. 2,63,500/- and on repair basis for Rs. 1,35,500/-. The IDV of the vehicle is Rs. 1,70,000/-. The loss assessed on repair basis Rs. 1,35,500/- is certainly more than 75% of the IDV. Therefore, it is a case of total loss of the vehicle. The complainant is entitled to IDV of the vehicle.

24. The surveyor in his report has further mentioned that insured is ready to settle the claim on 'Net of Salvage basis' for Rs. 95,000/- in lump-sum, but there is nothing on record to prove that complainant has agreed to settle the claim on 'Net of Salvage basis'. The opposite party cannot force the complainant to settle the claim on 'Net of salvage basis'. Of course in written version, the opposite party has also pleaded that complainant has failed to supply Voter Card, Adhar Card and PAN Card. No rules and regulations produced on record that these documents are mandatory to settle the claim. Therefore, calling of these documents is not justified.

25. The opposite party has referred to letter dated 24-10-2017 but copy of same is not brought on record. It is further mentioned that vide this letter complainant was asked to get the registration certificate cancelled from the concerned RTO and submit No Due Certificate from financer. The financer (opposite party No. 2) has admitted in its written version that No Due Certificate has already been issued and it has no charge over the vehicle.

26. Therefore, keeping in view the facts, circumstances and the evidence on file, this Forum is of the considered opinion that the complainant is entitled to claim amount to the tune of Rs. 1,70,000/- being IDV of the vehicle, subject to surrender of salvage/damaged vehicle. The complainant will also be liable to execute other documents, if any, legally required by opposite party.

27. Resultantly, this complaint is partly accepted against opposite party with Rs. 10,000/- as cost and compensation. The opposite party is directed to pay to complainant claim amount of Rs. 1,70,000/- with interest @ 9% p.a. from the date of filing of complaint i.e. 12-12-2017 till realization subject to surrender of salvage/damaged vehicle. The complainant will also be liable to execute other documents, if any, legally required by opposite party.

28. The compliance of this order be made within 45 days from the date of receipt of copy of this order.

29. The complaint could not be decided within the statutory period due to heavy pendency of cases.

30. Copy of order be sent to the parties concerned free of cost. File be consigned to the record room.

    Announced :

    30-10-2018

    (M.P.Singh Pahwa )

    President

     

     

    (Jarnail Singh )

    Member

     

    (Sukhwinder Kaur)

    Member