BEFORE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, SHIMLA, H.P.
Consumer Complaint No: 225/2007
Date of presentation: 06.07.2007
Date of decision: 22.07.2009
Smt. Deepa Verma W/O Shri Sunil Kumar Verma,
R/O Village Spella, P.O. Baragaon, Tehsil Kumarsain,
District Shimla, H.P.
… Complainant.
Versus
National Insurance Company Ltd.,
Branch Office, Isha Niketan, Newland Estate,
Circular Road, Himland Shimla-171001
Through its Branch Manager.
…Opposite Party
For the complainant: Mr. Manoj Chauhan, Advocate.
For the Opposite Party: Mr. Virender Tajta, Advocate.
O R D E R:
Sureshwar Thakur (District Judge) President:- This complaint has been filed by the complainant, by invoking the provisions of Section 12 of the Consumer Protection Act, 1986, against the OP-National Insurance Company Ltd. “in short OP-Company” on the allegations that she is owner of Eicher Truck, which bears registration No.HP-63-1274. It is averred that the aforesaid vehicle, was, insured with the OP-Company, vide insurance policy bearing No.421101/31/05/6300000993 valid from 07.07.2005 to 06.07.2006 vide Annexure C-1, which met with an accident on 24.01.2006, resulting in extensive damage. The complainant, further, proceeded to aver, that, the factum of accident was brought to the notice of the OP-Company, as also, to the Police upon which Rapat bearing No.3, dated 24.01.2006 was lodged with Police Station, Dharampur. It is averred that she spent Rs.1,46,621/- on the repair of the vehicle and lodged insurance claim with the OP-Company. The OP-Company, informed the complainant that the claim to the tune of Rs.62,168/- has been approved, but she declined to receive the said amount on the ground that she had suffered loss to the tune of Rs.1,46,621/- on the repairs of the vehicle. It is averred that thereafter, the OP-Company, dispatched the aforesaid amount, through registered post, which was received by her under protest. Hence, it is averred that there is apparent deficiency in service on the part of the OP-Company and accordingly relief to the extent as detailed in the relief clause be awarded in favour of the complainant.
2. The OP-Company, in its version, to the complaint, raised preliminary objections vis-à-vis maintainability of the complaint, lack of deficiency in service, and breach of terms and conditions of the insurance policy. On merits, it is contended that at the time of accident, there was gratuitous passenger sitting in the vehicle, hence, the claim, as per the terms and conditions of the insurance policy, was settled on non-standard basis. Consequently, an amount of Rs.62,168/- was paid to the complainant. Hence, it is denied, that, there was any deficiency in service on their part or that they have indulged in an unfair trade practice.
3. Thereafter, the parties adduced evidence, by way of affidavits, and, documents in support of their respective, contentions.
4. We have heard the learned counsel for the parties at length and have also thoroughly scanned the entire record of the case.
5. The complainant on being indemnified, on, a non-standard basis, inasmuch, as, the vehicle qua whose damage in a collision, the, indemnification, is, sought, was contrary to the terms and conditions of the insurance cover purchased by the complainant from the OP-Company ordaining indemnification on an nonstandard basis, in case, the vehicle was carrying a gratuitous passenger in the relevant time, such manner of indemnification by the insurer, is, contended by the counsel for the complainant to be not a justifiable assessment. However, in the light of the fact that, in, paragraph 2, the complainant avers, that, FIR Annexure C-2 was lodged with the concerned Police Station, and a reading of Annexure C-2, reveals, the, fact that, one, person namely Shri Sunil Verma, who, has not been demonstrated to be traveling in the vehicle, as, an owner of the goods, which was purportedly carried in the vehicle, therefore, his being obviously, a gratuitous passenger traveling in the vehicle, whose occupying the vehicle at the relevant time, in, such, a, capacity is prohibited by the insurance cover, indemnification on a non-standard basis by the insurer for loss/damage to the vehicle, caused to it, in, an collision with a truck or tanker, is, to be construed to be tenable.
6. However, the complainant has, also, proceeded to assail the loss computed on the strength of the report of the Automobiles & Mechanical Engineer, as, also Surveyor and Valuer bearing Annexure R-1 and the loss to the vehcle as assessed by one Kuljeeet Singh Baweja, in his report bearing Annexure R-4, is, sought to be urged to be untenable, rather, it has been contended, that , the bills reflecting the amount as expended by him to make the vehicle road worthy bearing Annexure C-3 to C-7, reflect the actual amount expended and their credit worthiness ought to have been discarded, as, discarded by the insurer, while indemnifying his claim and that, too, on a abysmally low scale. It is not denied by the OP-Company that under receipt Annexure C-3 furnished by Raj Crane & Recovery Service who had been engaged by him to tow the vehicle for the carrying out its repairs to Rajindera Auto Workshop at Manimajra Chandigarh, she has paid a sum of Rs.3,000/- for the said job being performed by them which came to be performed on 29.01.2006. Hence, when the vehicle came to be removed for carrying out the necessary repairs to the destination as referred in paragraph 3 of the complaint, Annexure R-1, which is the report of the valuer assessing the loss caused, to it, in, it the collision appears not to be done either at the place of the accident or at the workshop where the vehicle was removed for carrying it, as in his affidavit, bearing Annexure R-2, the surveyor does not recite in it, that, he, had assessed the loss to the vehicle, either, at the place where it had suffered loss or at the place where it was removed for carrying out repairs to make it road worthy. Hence, for lack of recital of the above material fact in it, we would proceed hence not, to, countenance his report more so, when, necessary photographs of the vehicle as reflected in Annexure R-1 to have been taken of the damaged vehicle, has not been, placed on record. Further more, Annexure R-2, loses its probative tenacity, when, it does not also detail, assumingly, its maker, did carry not the, inspection of the vehicle, at the venue it was towed to for effecting repairs, that, the complainant was present at the time of the inspection, by the maker of Annexure R-2, hence, Annexure R-2 was prepared in the absence of the complainant, rendering her disabled to present the bills, as exist on record portraying the expenses incurred by the complainant to make it roadworthy. Therefore, unless, she had been present at the time of inspection of the vehicle by the maker of Annexure R-2, whereby, she could have the opportunity to present them to the valuer, who carried, its inspection, who would then, hence, considered them and for valid reason reflected there. As such, for non- participation of the complainant, at such a stage, when obviously, the bills of purchase are not shown to have been considered, they cannot be discarded, especially, when further, it, has not been, shown that the purchase of items reflected in them, was, necessitated, at a place other than Rajinder Workshop, as, the later did not possess these items, nor when the authorized representative or the auto mechanic who repaired it, has not been examined to demonstrate that, none of the items reflected in them, were not used in the vehicle to make it road worthy. In the absence of the above, it is, to be held that the various items, reflected in the bills were used in the damaged vehicle. The expenses reflected on them, hence, ought to have been borne in mind.
7. Moreover, when the bills remarking the fact of money expended by the complainant to make the vehicle road worthy has not been controverted by the OP-Company, hence, when they have not been demonstrated to be fictitious, it, was not open for the insurer to discard the bills of repairs furnished by the complainant to the OP-Company. Obviously, the OP-Company, then, has under assessed the claim of the complainant, hence, has under indemnified her.
8. Even though, the OP-Company takes to estop the complainant from agitating the grievance as agitated before this Forum on the ground that the complainant had received an amount of Rs.62,118/-, whereas, the said amount was received under protest as pronounced by Annexure C-8 & C-9. Therefore, receipt of the above amount by the complainant from the OP-Company does not estop her claim ventilating the grievance now before this Forum.
9. In the light of the above discussion, the OP-Company, is, directed to re-assess the claim of the complainant on a non-standard basis on the strength of the bills of repairs furnished by the complainant to the OP-Company. The OP-Company shall proceed to re-assess the claim within a period of three weeks after the date of receipt of copy of this order, and thereafter, the admissible amount shall be defrayed to the complainant by the OP-Company, within two weeks thereafter. However, there shall be no order as to the costs. The learned counsel for the parties undertook to collect the certified copy of this order from the office, free of cost, as per rules. The file after due completion, be consigned to record room.
Announced on this, the 22nd day of July, 2009.
(Sureshwar Thakur)
President.
NMehta) (Karuna Machhan) (Charanjit Singh)
Member Member.
Tags: National Insurance