Order by:
Sh.Amrinder Singh Sidhu, President
1. This Consumer Complaint has been received by transfer vide order dated 26.11.2021 of Hon’ble President, State Consumer Disputes Redressal Commission, Punjab at Chandigarh under section 48 of CPA Act, vide letter No.04/22/2021/4 C.P.A/38 dated 17.1.2022 from District Consumer Commission, Ludhiana to District Consumer Commission, Moga to decide the same in Camp Court at Ludhiana and said order was ordered to be affected from 14th March, 2022.
2. The complainant has filed the instant complaint under section 12 of the Consumer Protection Act, 1986 (now section 35 of Consumer Protection Act, 2019) on the allegations that the complainant got his vehicle PB-10-CB-4491 insured with Opposite Parties vide Private Car Package Policy bearing No. 200110003113/P/102950083 for the period w.e.f. 16.08.2013 to 15.08.2014. During the policy period, the vehicle in question met with an accident on 21.01.2014 which was driver by son of the complainant namely Gaurish and thereafter false FIR No. 21 dated 21.10.2014 was lodged against the son of the complainant. The intimation of the damaged vehicle was given to the Opposite Parties. On this, the Opposite Parties appointed surveyor who after investigation, has reported the claim of the complainant as no claim on the false and frivolous allegations and 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 make the claim amount alongwith interest @ 18% per annum and also to pay of Rs.1,00,000 on account of compensation due to mental tension and harassment caused by the complainant besides costs of litigation and also to pay any other relief to which this District Consumer Commission may deem fit.
3. Opposite Parties appeared through counsel and contested the complaint by filing the written version taking preliminary objections therein inter alia that the complaint filed by the complainant is not maintainable and is liable to be dismissed as the complainant has attempted to misguide and mislead this District Consumer Commission. Admittedly, the complainant lodged the claim with the Opposite Parties and immediately on receipt of the claim, it was duly registered, entertained and processed. Er.Kuldeep Singh, Surveyor and Loss Assessor was deputed to conduct spot survey and for the assessment of the loss. Er.Kuldeep Singh visited the spot, inspected vehicle, took photographs and submitted his interim survey report and he submitted his final survey report dated 15.08.2014 making the assessment of total loss of Rs.3,88,000/- and recommended the claim as No Claim on the ground that the company shall not be liable to make any payment in respect of any accidental loss or damage suffered whist the insured or any person driving the vehicle with the knowledge and consent of the insured is under the influence of intoxicating liquor or drugs, therefore, it is clear that the claim is not payable if the person driving the vehicle at the time of accident is under the influence of liquor. On merits, the Opposite Parties took up almost same and similar pleas as taken up by them in the preliminary objections and the complaint may be dismissed with costs.
4. In order to prove her case, the complainants tendered into evidence his affidavit Ex.C-A alongwith copies of documents Ex.C1 to Ex.C4 and closed the evidence on behalf of the complainant.
5. On the other hand, to rebut the evidence of the complainant, Opposite Parties also tendered into evidence the affidavit Ex.RW1A and Ex.RW2/A/alongwith copies of documents Ex.R1 to Ex.R32 and closed the evidence.
6. We have heard the ld.counsel for the parties, written submissions of the Parties and also gone through the documents placed on record.
7. During the course of arguments, ld.counsel for the Complainant has mainly reiterated the facts as narrated in the complaint and contended that the written version filed on behalf of Opposite Parties-Insurance Company 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 PB-10-CB-4491 insured with Opposite Parties vide Private Car Package Policy bearing No. 200110003113/P/102950083 for the period w.e.f. 16.08.2013 to 15.08.2014. During the policy period, the vehicle in question met with an accident on 21.01.2014 which was driver by son of the complainant namely Gaurish and thereafter false FIR No. 21 dated 21.10.2014 was lodged against the son of the complainant. The intimation of the damaged vehicle was given to the Opposite Parties. On this, the Opposite Parties appointed surveyor who after investigation, has reported the claim of the complainant as no claim on the false and frivolous allegations and as such, there is deficiency in service on the part of the Opposite Parties.
8. 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 aadmittedly, the complainant lodged the claim with the Opposite Parties and immediately on receipt of the claim, it was duly registered, entertained and processed. Er.Kuldeep Singh, Surveyor and Loss Assessor was deputed to conduct spot survey and for the assessment of the loss. Er.Kuldeep Singh visited the spot, inspected vehicle, took photographs and submitted his interim survey report and he submitted his final survey report dated 15.08.2014 making the assessment of total loss of Rs.3,88,000/- and recommended the claim as No Claim on the ground that the company shall not be liable to make any payment in respect of any accidental loss or damage suffered whist the insured or any person driving the vehicle with the knowledge and consent of the insured is under the influence of intoxicating liquor or drugs, therefore, it is clear that the claim is not payable if the person driving the vehicle at the time of accident is under the influence of liquor and as such, there is no deficiency in service on the part of the Opposite Parties.
9. Perusal of the contention of the ld.counsel for the complainant shows that the written version filed on behalf of 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 case titled as Shubh Shanti Services Limited v. Manjula S.Agarwalla and others (2005) 5 SCC 30, decided on 11.05.2005 has and observed to the following effect:
“..............As already stated, it has not been averred in the plaint nor sought to be proved that any resolution had been passed by the Board of Directors of the plaintiff company authorising Shri A.K. Shukla to sign, verify and institute the suit. It has also not been averred that the memorandum/articles of the plaintiff company give ny right to Shri A.K. Shukla to sign, verify and institute a suit on behalf of the plaintiff company. It, therefore, follows that the plaint has been instituted by Shri A.K. Shukla only on the authority of Sh. Raj K.Shukla, CEO of the plaintiff company. Such an authority is not recognized under law and, therefore, I held that the plaint has not been instituted by an authorised person. Issue No.1 is accordingly, decided against the plaintiff and in favour of the defendants.”
Further, 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.”
Recently Hon’ble State Consumer Disputes Redressal Commission, Punjab at 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.
10. The main plea raised by Opposite Party is that since the driver of the insured vehicle was under the influence of liquor at the time driving, and hence, he has violated the terms and conditions of the policy and as such, the claim of the complainant was rejected as No Claim. Undisputedly, due to the accident, FIR No. 21 of 21.01.2014 was registered with P.S. Sector 31, Chandigarh under section 279, 337 & 427 of IPC and in this regard, the criminal case was lodged against the son of the complainant and in this regard, the challan was presented in the court of Sh.Ashish Thathai, PCS, Judicial Magistrate Ist Class, Chandigarh and vide judgement dated 21.04.2017, the Hon’ble Court has held that the prosecution could not prove the rashness and negligence driver of son of the complainant and therefore, in the absence of any proof qua the identity of the accused as well as rashness and negligence, the benefit of doubt can be given to the accused Gouresh Singla for the offence punishable under section 279, 338 and 427 IPC and thus, the accused Gouresh Singla is acquitted of the charges framed against him under section 279, 338 and 427 of IPC and this order passed by the Hon’ble Court has nowhere denied by the Opposite Parties and as such, the plea of the Opposite Parties that driver of the insured vehicle was under the influence of liquor at the time driving, and hence, he has violated the terms and conditions of the policy, can not be admitted as correct and hence, the repudiation of the claim of the complainant is illegal and not valid. Hence, from the aforesaid discussion, it transpires that the claim of the complainant has been wrongly repudiated by Opposite Parties.
11. Now come to the quantum of compensation. Admittedly, the IDV (Insured Declared Value) of the insured vehicle was Rs.4,50,000/- but Er.Kuldeep Singh visited the spot, inspected vehicle, took photographs and submitted his interim survey report and lastly submitted his final survey report dated 15.08.2014 making the assessment of total loss of Rs.3,88,000/- and this report has nowhere denied or rebutted by the Complainant by filing any cogent and convincing evidence. 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.”
12. 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.
13. In such a situation the repudiation made by Opposite Parties regarding genuine claim of the complainant appears to have been made without application of mind. 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.
14. In view of the aforesaid facts and circumstances of the case, the instant complaint is allowed against Opposite Parties-Insurance Company and Opposite Parties-Insurance Company are directed to make the payment of Rs.3,88,000/- (Rupees three lakh eighty eight thousands only) to the complainant as compensation against her claim of 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. 27.10.2017 till its actual realization. Opposite Parties–Insurance Company are also directed to pay compensation to the complainant for causing mental tension and harassment to the tune of Rs.10,000/- (Rupees ten thousands only). The compliance of this order be made by Opposite Party-Insurance Company within 45 days from the date of receipt of copy of this order, failing which the complainant shall be at liberty to get the order enforced in accordance with law. Copies of the order be furnished to the parties free of cost by District Consumer Commission, Ludhiana and thereafter, the file be consigned to record room after compliance.
15. Reason for delay in deciding the complaint.
This Consumer Complaint was originally filed at District Consumer Disputes Redressal Forum (Now Commission) at Ludhiana and it keep pending over there until Hon’ble State Consumer Disputes Redressal Commission, Punjab vide letter No.04/22/2021/4 C.P.A/38 dated 17.1.2022 has transferred the instant Consumer Complaint alongwith Other Complaints to District Consumer Commission, Moga with directions to work on this file onward from 14th March, 2022 and accordingly District Consumer Commission, Moga has decided the present complaint today i.e.23.05.2022 at Camp Court, Ludhiana, as early as possible as it could decide the same
Announced in Open Commission at Camp Court, Ludhiana.
Dated: 23.05.2022.
