State Consumer Disputes Redressal Commission
National Insurance Company Limited vs Chahal Bus Service on 4 June, 2018
FIRST ADDITIONAL BENCH
STATE CONSUMER DISPUTES REDRESSAL COMMISSION, PUNJAB
SECTOR 37-A, DAKSHIN MARG, CHANDIGARH.
First Appeal No.138 of 2018
Date of Institution : 09.03.2018
Order Reserved on: 29.05.2018
Date of Decision : 04.06.2018
1. National Insurance Company Limited, Sultanpur Road,
Kapurthala-700071 through its Sr. Branch Manager.
2. National Insurance Company Limited, Divisional Office-I, Near
Atam Park, Jalandhar through its Sr. Divisional Manager.
now both through their authorized signatory M.L. Maini,
Administrative Officer, Regional Office, SCO No.332-334,
Sector 34-A, Chandigarh.
.....Appellants/opposite parties
Versus
Chahal Bus Service CH-199, Civil Lines, Jalandhar through its
partner/authorized representative Sh. Jaskirat Singh Chahal son of
Shri Tej Singh, aged about 62 years, resident of EH-199, Civil Lines,
Jalandhar City.
.....Respondent/complainant
First Appeal against order dated
05.01.2018 passed by the District
Consumer Disputes Redressal Forum,
Kapurthala.
Quorum:-
Shri J. S. Klar, Presiding Judicial Member
Smt. Surinder Pal Kaur, Member Present:-
For the appellants : Sh. J.P. Nahar, Advocate For the respondent : Sh. Lovekirat Singh Chahal, Advocate ............................................ J.S. KLAR, PRESIDING JUDICIAL MEMBER :-
Challenge in this appeal by appellants is to order dated 05.01.2018 of District Consumer Disputes Redressal Forum First Appeal No.138 of 2018 2 Kapurthala (in short the 'District Forum'), partly accepting the complaint of respondent of this appeal by directing appellants to pay IDV value of the vehicle to the tune of Rs.6,00,000/- to the respondent with interest @ 9% per annum from the date of repudiation of the claim i.e. 11/1/2012 till its realization and further directing appellants to pay compensation to the respondent of this appeal for mental tension, harassment to the tune of Rs.20,000/- and Rs.7,000/- as litigation expenses. Respondent of this appeal is complainant in the complainant before the District Forum and appellants herein are opposite parties (in short OPs) therein and they be referred as such hereinafter for the sake of convenience.
2. The complainant filed complaint U/s 12 of the Consumer Protection Act, 1986 (in short, "the Act") against OPs, through its partner Jaskirat Singh Chahal, on the averments that complainant has been running a transport service to earn livelihood, in the name and style 'Chahal Bus Service' and got its bus number NL-02-B-1519 insured with OPs insurance company bearing policy no.401111/31/09/63000001840 valid from 18.08.2009 to 17.08.2010 for an insured declared value (IDV) of Rs.6,00,000/- covering all risks, as mentioned in the schedule of the same. The OPs did not supply the terms and conditions of the policy of insurance to the complainant. Previous partner Smt. Lavleen Chahal of complainant's firm was retired by assigning all her assets and liabilities in favour of her husband Sh. Jaskirat Singh Chahal by way of deed of retirement dated 31.03.2016. The insured vehicle caught fire on 16.08.2010 First Appeal No.138 of 2018 3 between 2.00 AM to 4.50 AM, while it was plying from Ghorewaha towards Bhaini Mian Khan Road due to short circuit and the occupant of the same came out of the bus. There were no habitants nearby and insured bus was totally burnt and damaged therein. Police report no.40 dated 16.08.2010 was lodged with Kahnuwan Police Station in this regard. Intimation was given to insurance company vide letter dated 17.08.2010 by complainant regarding this damage to bus by the episode of fire. The complainant got the estimate prepared from the authorized service station, vide annexure C-6 in this regard. Letter of communication in this regard dated 08.02.2011 was sent to OP insurance company and surveyor and loss assessor was deputed by the OP insurance company to assess the los to the insured vehicle. The complainant supplied all the requisite documents, information by completing the formalities to OPs and surveyor. OPs served registered letter upon complainant closing the case as no claim. The above letter dated 11.01.2012 closing the case as no claim was non-speaking bereft of any reasons. The complainant moved various letters to OPs thereafter and OPs divining mistake of surveyor and loss assessor H.S. Bawa, wrote letter dated 24.12.2013 to complainant and requisitioned certain documents. The correspondence exchanged between the parties, vide letter dated 24.12.2013, 06.01.2014, 11.06.2014 and 30.09.2015 in this regard. Vide letter dated 30.09.2015, OPs refused to re-open the file of the insurance claim of the complainant in an arbitrary manner. The repudiation letter dated 30.09.2015 First Appeal No.138 of 2018 4 refusing to re-open the insurance file of complainant by OPs without any valid reason gave cause of action to complainant against OPs on 30.09.2015, when OPs finally refused to accept the general request of complainant for the insurance claim. The complainant, thus, prayed that OPs be directed to pay the claim amount of insurance policy i.e. Rs.6,00,000/- towards loss of the insured vehicle and further OPs be directed to pay compensation for mental harassment to the tune of Rs.50,000/- and further OPs be directed to pay consequential losses suffered by the complainant due to non operation of the bus on account of non settlement of claim and further OPs be directed to pay interest @18% per annum and OPs be further directed to pay litigation expenses of Rs.33,000/- and OP be also directed to pay charges for storage towards the wreckage of the damaged vehicle since the date of fire till payment of the claim.
3. Upon notice, OPs appeared and filed written reply and contested the complaint of the complainant vehemently. It was averred in preliminary objections that the complaint is barred by time, since the claim has been repudiated on 11.01.2012 and the said repudiation can be challenged within 12 calendar months against the insurance company and further averred that once the complainant had not challenged the letter of repudiation, no amount of correspondence after repudiation would extend the limitation to file the complaint. It was further averred that all the paper work, documents, reports, photographs etc. were considered and found that after repudiation of the claim, the claim could not be reopened First Appeal No.138 of 2018 5 after the expiry of limitation of one year from 11.01.2012. The complainant firm has been running the vehicle for commercial purposes and therefore complainant is not consumer under the Act. The complaint is alleged to be frivolous and vexatious and deserves to be dismissed. On merits, it was admitted that complainant purchased the insurance policy from OPs and it was also admitted that an accident took place with the vehicle on 16.08.2010 and DDR was got recorded in the Police Station Kahnuwan in this regard. It was admitted that complainant lodged the insurance claim, but the same was not fit for paying the insurance claim and after consideration OPs repudiated the insurance claim, vide letter dated 11.01.2012. The OPs controverted the other averments of complainant by denying any deficiency in service and unfair trade practice on their part. OPs prayed for dismissal of the complaint.
4. The complainant tendered in evidence affidavit of Jaskirat Singh Chahal Ex.CA alongwith copies of documents Ex.C-1 to Ex.C-13 and closed evidence. As against it, OPs tendered in evidence affidavit of Mohit Chawla Assistant Manager Ex.OP1 & 2/A alongwith document Ex.OP1&2/2 and closed evidence. On conclusion of evidence and arguments, the District Forum partly accepted the complaint of the complainant, as referred to above. Aggrieved by above order, the OPs now appellants has directed this appeal against the same.
5. We have heard the learned counsel for the parties and have also examined the record of the case. This fact is not in dispute First Appeal No.138 of 2018 6 in this case that above bus belonging to complainant was insured with OP Insurance Company, vide policy no.401111/31/09/63000001840 for the period from 18.08.2009 to 17.08.2010 for IDV of Rs.6,00,000/-. The vehicle met with incident of fire on 16.08.2010 between 02:00 AM to 4:50 AM, while it was plying from Ghorewala towards Bhaini Mian Khan Road and complainant lodged the insurance claim with OPs in that regard. On the other hand, the version of OPs is that they have repudiated the insurance claim of complainant on 11.01.2012 and cause of action accrued to complainant on 11.01.2012 and hence the complaint is patently barred by time. The OPs alleged that complainant was negligent in not challenging the repudiation letter dated 11.01.2012 within time. The complainant Jaskirat Singh Chahal, the partner of complainant's firm tendered in evidence his affidavit Ex.C-A on the record. He proved the copy of insurance policy Ex.C-1, whereunder this vehicle was insured with OPs. The resolution passed by the complainant firm in his favour is Ex.C-2. We observe that there is no need to pass resolution because complainant is a Firm and not a Private Limited Company. Any partner, who is conversant with the facts of the case is competent to file the complaint on behalf of the firm under law. The partnership deed is Ex.C-3 on the record. Ex.C-4 is the copy of roznamcha no.40 dated 16.08.2010 with regard to catching the fire by the insured vehicle. Mrs. Loveleen Chahal wrote letter to OPs vide Ex.C-5 intimating the loss of the insured vehicle in the incidence of fire. The estimate prepared by Ashoka Leyland regarding the loss First Appeal No.138 of 2018 7 of the insured vehicle is Ex.C-6. Loveleen Chahal also wrote letter to OPs vide Ex.C-7 on 08.02.2011 intimating them about the incidence of fire of the insured vehicle. Ex.C-8 is copy of letter from Loveleen Chahal to OPs regarding disposal of insurance claim. Vide Ex.C-9, the complainant supplied the documents to OPs. Ex.C-10 is the document of repudiation treating the claim as no claim dated 11.01.2012. The complainant moved representation vide Ex.C-11 to OPs in this regard. Ex.C-13 is the newspaper report regarding engulfing of insured vehicle in the fire. The OPs also tendered in evidence affidavit of Mohit Chawla Assistant Manager Ex.OP1 & 2/A in support of their averments. Ex.OP1&2/2 is the commercial vehicle package policy with terms and conditions on the file.
6. First contention raised by counsel for the appellants is that complainant is not consumer of OPs, because complainant deals in commercial activities by running the fleet of buses. We do not find any force in this submission of counsel for appellants. The complainant firm took insurance policy for indemnification of loss and not for generating any profits therefrom. Since the insurance policy has been taken for the purpose of indemnification of the loss and as such it cannot be said that complainant is not consumer of OPs. We are fortified by law in this regard laid down by the National Commission in "Harsolia Motors Vs. National Insurance Company Limited" 2005(1)CPJ-27, wherein it has been held that an insurance policy is availed for indemnifying the loss, which may be suffered by the assured. It is for protection and not making any First Appeal No.138 of 2018 8 profit. It would be unjustified to arrive at a conclusion that where complainants are carrying on business/trading activity and they having taken the insurance policy, there are not entitled to approach the Consumer Fora.
7. The next point for controversy in this case is whether the complaint is within time or it is barred by time. The submission of counsel for the appellants is that appellants repudiated the claim of complainant on 11.01.2012 vide Ex.C-10 and as such the complaint is filed in the year 2017 and it is barred by time. On the other hand, the submission of counsel for complainant now respondent in this appeal is that the representations were moved in the shape of letters to OPs against this repudiation of the claim, as no claim, whereupon OPs again asked for certain documents from complainant. The contention of counsel for complainant is that OPs have not finally closed the claim on 11.01.2012, but kept it open by demanding documents and by entering into correspondence with complainant. Our attention has been drawn to letter Ex.C-11 and C-12 on the record. Ex.C-12 is letter from surveyor H.S. Bawa to complainant on 24.12.2013 through courier to the complainant that complainant has not submitted the documents, which were required and requested complainant to submit the same at the earliest namely claim form duly completed/signed stamped; registration book; driving licence of Narinder Singh; copy of way bill and route permit. This letter is dated 24.12.2013 through courier to the complainant. Had OPs drawn the final curtain on 11.01.2012 by treating the claim as no First Appeal No.138 of 2018 9 claim, then there was no purpose for writing this letter Ex.C-12 by surveyor H.S. Bawa to complainant asking for the submission of documents, as referred to above. This letter Ex.C-12 goes a long way in proving that the surveyor H.S. Bawa demanded the documents, as referred to above from complainant on 24.12.2013. There was no purpose in demanding these documents by surveyor on 24.12.2013 had OPs finally repudiated the claim on 11.01.2012 vide Ex.C-10. Even letter Ex.C-11 dated 12.03.2012 written by complainant to OPs. On this point, the Apex Court has held in "Oriental Insurance Co. Limited Vs. Prem Printing Press"
2009(1)CPJ-55 that insurance company suggested that the matter of repudiation was being taken under fresh consideration. A legal notice served on the appellant company, in answer to which again the insurance company promised to take up the matter for further consideration. Final decision about the repudiation was conveyed on 28.07.1994 and till then, the appellant kept on dangling a carrot of hope before the respondent herein that the matter regarding repudiation of claim was being considered afresh. The Supreme Court held that complaint is within time in the above authority. The Apex Court also held in "National Insurance Company Limited Vs. Hindustan Safety Glass Works Limited" 2017(2)CPJ-1 that provision of limitation in the Consumer Protection Act cannot be strictly construed to disadvantage a consumer in a case, where a supplier of goods or services itself is instrumental in causing a delay in the settlement of the consumer's claim. Madras High Court has First Appeal No.138 of 2018 10 also held in "M/s Tarapore & Co. Versus M/s United India Insurance Co. Ltd." 2017(5) LW-535 that after amendment of Section 28, both curtailment of the period of limitation for specific period and extinction of the right itself held not permissible. Therefore, any clause to that effect in an agreement would be barred by the provisions of the amended Section 28 of Contract Act- Considering entire material, clause 10(3) of the insurance policy is held hit by the provisions of the amended Section 28 of Contract Act. The District Forum directed OPs now appellants to pay the insured declared value of the vehicle to the complainant. There is no report of the surveyor on the file as to what extent he had assessed the loss to the bus in question. As to whether the loss was repairable or it was a case of total loss. In the absence of the report of surveyor on the record, this point cannot clinched. The complainant relied upon the photostat copy of estimate prepared by Ashoka Leyland vide Ex.C-6. There is no affidavit of the proprietor of Ashoka Leyland on the record to support it. So, in the circumstances of the case, the order of the District Forum straightway directing OPs to pay insured declared value of the vehicle to the complainant is not sustainable without the report of surveyor on the record.
8. As a result of our above discussion, we hold that the complaint is within time in view of law laid down by the Supreme Court (Supra) and Madras High Court (Supra). The order of the District Forum is reversed in this appeal and appeal is accepted by ordering that the OPs now appellant shall reopen the case of the First Appeal No.138 of 2018 11 complainant and take the documents from the complainant within a period of one months from the date of receipt of certified copy of the order and then OP shall take into account the report of the surveyor, if not appointed earlier then be appointed and to decided the case afresh as to whether it was a case of total loss or it was a case of repairable basis only. With this observation, the order of the order of the District Forum is modified and appeal stands disposed off accordingly.
9. Arguments in this appeal were heard on 29.05.2018 and the order was reserved. Certified copies of the order be communicated to the parties as per rules.
10. The appeal could not be decided within the statutory period due to heavy pendency of court cases.
(J. S. KLAR) PRESIDING JUDICIAL MEMBER (SURINDER PAL KAUR) MEMBER June 04, 2018 MM