DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, UNA, DISTRICT UNA, HIMACHAL PRADESH.
Consumer Complaint No.21/2008.
Date of institution : 12.02.2008.
Date of decision : 30.11.2009.
In the matter of :
Shri Shyam Handa son of Shri Keemti Lal, Resident of Village Jhalera, Tehsil and District Una, H.P.
… … … Complainant.
Versus.
The ICICI Lombard General Insurance Company Limited, Branch Office, Jalandhar, District Jalandhar, Punjab through its Branch Manager.
… … … Opposite party.
COMPLAINT UNDER SECTION 12 OF CONSUMER PROTECTION ACT, 1986.
……………………..
Before :-
1. Shri D. D. Sharma : President.
2. Shri Ajay Sharma : Member.
3. Mrs. Saroj Modgil : Member.
For the complainant : Shri Rakesh Chaudhary, Advocate.
For opposite party : Shri S.L. Thakur, Advocate.
…………………………………….
O R D E R
( Per Shri D.D. Sharma, President );
Complainant-Shri Shyam Handa son of Shri Keemti Lal, Resident of Village Jhalera, Tehsil and District Una, H.P. in his complaint under Section 12 of Consumer Protection Act, 1986 against the opposite party-The ICICI Lombard General Insurance Company Limited, Branch Office, Jalandhar, District Jalandhar, Punjab through its Branch Manager has alleged that he is the owner of Hundai Accent Car bearing No.PB-08-AB-2490, chassis No.003181 and engine No.002663 purchased from Shri Aseem Kalra son of Shri Waryam Kalra of Jalandhar by way of affidavit, which was insured vide Private Car Package Policy No.3001/1372774/00/000 valid from 03.03.2006 to midnight of 02.03.2007 and that on 02.06.2006, the complainant was coming from Una to Jhalera in his aforesaid car after boarding his brother-in-law in a bus and when he reached near Police Line Jhalera at about 8.45 p.m. suddenly a wild cow (Bain Gau) appeared from the bushes and came in front of his car and that the complainant tried to avoid the accident by steering his car to the right side, but could not avoid the same and the vehicle of the complainant fell into a deep gorge approximately 10 to 15 feet and the car was damaged and that the complainant incurred an amount of Rs.54,500/- for its repair. That the complainant also received injuries in the said accident and a police report was lodged by the complainant vide DDR No.14, dated 09.06.2006 at Police Station Una. That the complainant took appropriate steps to control his vehicle and to avoid accident and the matter was investigated by the police. That information regarding the accident was also given to the opposite party through agent Shri Vidya Sagar, but all in vain. That the complainant submitted all the papers including bills etc. pertaining to the claim to the opposite party, but the claim has not been settled till today despite repeated requests and that due to said accident, the complainant has suffered financial loss and he is being harassed by the opposite party by lingering on the matter for such a long period of 19 months which amounts to unfair trade practice and deficiency in service and thus, the complainant is entitled for Rs.54,500/- being the cost of repair and spare parts etc., Rs.2000/- charges paid by the complainant for bringing the accidental vehicle from village Jhallera to Una workshop besides Rs.10,000/- on account of mental tension, harassment and inconvenience and Rs.10,000/- as cost of litigation. The complainant has prayed that he be awarded the above relief with interest at the rate of 12% per annum.
2. Notice of complaint was issued to the opposite party to state its version of the case, who on appearance resisted and contested the complaint and raised preliminary objections in the reply that the complaint is not maintainable in the present form as the complainant has no locus standi to file the present complaint; that the complainant has no enforceable cause of action; that this Forum has no jurisdiction to try the present complaint; that the vehicle in question was being plied against the terms and conditions of the policy and that the complainant is not consumer as per the definition of Consumer Protection Act. On merit, it is alleged that the contract of insurance is based on good faith “ubi Rimma fides” and when there is concealment of material facts, the contract of insurance becomes void and that there is also violation of Section 157 (i) & (ii) of the Motor Vehicle Act and that the alleged affidavit relied upon by the complainant is outcome of direct connivance of registered owner Assem Kalra with a view to harass the innocent opposite party and thus, there is no insurable interest. It is further alleged that there is no deficiency in service as and when the claim was intimated, a Surveyor was appointed and he assessed the loss to the tune of Rs.41,295/-, but after going through the documents, it came to the notice that the accident took place on 02.06.2006, but the date of transfer of RC was 08.06.2006 and thus, the vehicle was not in the name of the insured at the time of accident. The opposite party has prayed for dismissal of complaint being without locus standie, valid cause of action, having no consideration and having no legs to stand upon, vexatious and frivolous, with special cost of Rs.10,000/-.
3. In the rejoinder, the contents of reply filed on behalf of opposite party have been controverted and that of complaint have been re-asserted.
4. In support and to prove their respective contentions, the complainant relied on and tendered in evidence documents annexure C-1 to C-7 besides his affidavit annexure C-8 and the opposite party relied on and tendered affidavits of Shri Sachin Ohri, Legal Manager and Er. Rajan Kumar Soni, Surveyor-cum-Loss Assessor annexure R-1 and R-2, respectively.
5. We have heard the learned counsel appearing for the parties and have perused the record of this case, carefully.
6. Document annexure C-1 is copy of affidavit which was attested and identified on 28.01.2006. Vide this document Shri Aseem Kalra sold his vehicle No.PB-08-AB-2490 to the complainant. Document annexure C-2 is copy of policy of the vehicle in the name of the complainant valid from 03.03.2006 to 02.03.2007. Document annexure C-3 is copy of daily diary report No.14, dated 09.06.2006 lodged by the complainant in Police Station Sadar Una. Documents annexure C-4 to C-8 are copies of bill dated 09.09.2006 relation to vehicle PB-08-AB-2490 issued by Motorways. Document annexure R-1 is affidavit of Shri Sachin Ohri Legal Manager of opposite party and document annexure R-2 is affidavit of Er. Rajan Kumar Soni.
7. On close scrutiny of complaint, reply of opposite party, rejoinder filed and the documents relied on and tendered by the parties and after hearing the learned counsel for the parties, it emerges that the complainant is owner of vehicle Car No.PB-08-AB-2490, which was duly insured with the opposite party with effect from 03.03.2006 to 02.03.2007. The case of the complainant is that on 02.06.2006 the vehicle met with an accident and was damaged. Further case of the complainant is that report was lodged with the police and the police party was also informed and despite several requests, the opposite party failed to indemnify the loss and the complainant had to incur an amount of Rs.54,500/- on repair of the vehicle.
8. The stand of opposite party is that there is concealment of material facts as there is no insurable interest of the complainant. Further stand of opposite party is that the loss was assessed by the Surveyor to the extent of Rs.41,295/-, but it came to notice that accident took place on 02.06.2006, but the RC was transferred on 08.06.2006 and at the time of accident, the vehicle was not in the name of the insured.
9. From document annexure C-1, it is evident that the ownership of the vehicle was transferred in the name of the complainant on 28.01.2006 and we find nothing on record to disbelieve the document which clearly establishes that ownership of the complainant. From document annexure C-2, it is proved that the insurance is in the name of the complainant for the period from 03.03.2006 to 02.03.2007. On such facts of the case, we are of the considered opinion that the repudiation of the claim as assessed by the Surveyor Er. Rajan Kumar Soni is not justified. As per document annexure R-2, the loss to the vehicle was assessed by Er. Rajan Kumar Soni, Surveyor to the tune of Rs.41,295/-. It is It is well settled law that the report of the Surveyor is an important document which cannot be brushed aside and assessment of loss made therein has to be specifically agreed or rebutted. An unscrutinized repair bill cannot go beyond the loss assessed by the Surveyor as held by the Hon’ble National Consumer Disputes Redressal Commission, New Delhi, in case tilted as National Insurance Company Ltd., versus Mrs. Aleyamma Verghese & Ors., reported as “2006 (1) CPR 235”. Accordingly, we pass the following order ;
10. The opposite party is ordered and directed to pay to the complainant a sum of Rs.41,295/- with interest at the rate of 9% per annum from the date of filing of the complaint i.e. 12.02.2008 till realization besides cost of litigation, which we assess at Rs.2,000/-. The complaint stands allowed, accordingly. Certified copy of this order, be supplied to the parties, free of cost. The file after its due completion, be consigned to record room.
ANNOUNCED IN THE OPEN FORUM;
30th Day of November, 2009.
( D.D. Sharma )
President.
I do agree. I do agree.
( Ajay Sharma ) ( Saroj Modgil )
Member. Member.