Haryana

StateCommission

A/386/2023

ICICI LOMBARD GENERAL INSURANCE CO. LTD. - Complainant(s)

Versus

ANIL KUMAR RATHI - Opp.Party(s)

RAJNEESH MALHOTRA

21 Jun 2024

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION HARYANA, PANCHKULA

 

                                                Date of Institution:17.04.2023

                                                          Date of final hearing: 13.05.2024

                                                     Date of Pronouncement: 21.06.2024

 

First Appeal No.386 of 2023

 

ICICI Lombard General Insurance Company Limited, having office at No.208, Second Floor, Seva Corporate Park, Heritage City, Sector-25,Gurgaon, Insurer of offending vehicle (Hyundai Creta) No.DL-07-CM-8145)

Second Address:

The Legal Manager, ICICI Lombard General Insurance Company Ltd., Plot NO.149, 4^th Floor, Industrial Area, Phase-1, Chandigarh).          

....Appellant

•  

Anil Kumar Rathi aged 44 years S/o Sh.Sultan Singh, R/o Plot No.330, Second Floor, Sector-15, Rohtak road, D-Block, Omaxe City, Bahadurgarh, Jhajjar.

Second Address:

Anil Kumar Rathi S/o Sh.Sultan Singh, House No.3767-A, Kanhaya Nagar, Tri Nagar, Delhi Inder Lok Police Chowki North West Delhi, New Delhi 110035.

Third Address:

Anil Kumar Rathi S/o Sh.Sultan Singh, House No.C-110, Ashok Vihar, Phase-IT, Gurugram, Haryana..... Respondent

CORAM:             Mr.Naresh Katyal, Judicial Member

                             Mrs. Manjula Sharma, Member

 

Argued by:-       Mr.Rajneesh Malohotra, Advocate for the appellant.

Mr.Shubkarman Gill proxy counsel for Mr. Kshitij Sharma, counsel for the respondent.

 

                                                ORDER

NARESH KATYAL, JUDICIAL MEMBER:-

          Delay of one day in filing of this appeal is condoned for reasons stated in application for condonation of delay.

2.      Challenge in this Appeal No.386 of 2023 of appellant/OP/insurer has been invited to legality of order dated 07.02.2023 passed by District Consumer Disputes Redressal Forum, Gurgaon(In short “District Consumer Commission”) in Consumer Complaint No.892 of 2021, vide which complainant’s complaint has been allowed.

3.      Factual matrix:Complainant is registered owner of Hyundai Creta car No.DL-07CM-8145.  It was insured with insurer-appellant vide policy valid from 23.02.2021 to 22.02.2022 for IDV of Rs.8,00,000/- by paying premium of Rs.37,642/-.   On intervening night of 02-03.07.2021, vehicle was being driven by complainant’s friend.   In process to save “neel cow”, it struck against tree and badly damaged.  Subsequently, it was hit by a truck from left rear side, coming from back.  Intimation of loss/damage/accident was given to insurer on next day i.e. 03.07.201 and insurance claim was lodged.  OP appointed surveyor and loss assessor Sh.Yogesh Gupta, who through inspection and spot visit submitted his report thereby confirming that loss was genuine, admissible and qualified for total loss.  After 18 days of accident, another investigator was appointed, who conducted spot survey after 50 days of accident and submitted false report, thereby denying insurance claim. Thereafter, OP appointed third surveyor from Mumbai, who without investigation denied the claim. Complainant has alleged that despite having “return to invoice coverage insurance policy” and by paying add-on premium; OP has denied claim and on 04.09.2020 repudiated his claim (Note: As per OP-appellant; claim has been rejected vide rejection letter dated 18.09.2021).  It is pleaded that complainant has suffered mental pain, shock and harassment.  He is entitled to Rs.Five lacs as compensation.  OP-insurer has failed to deliver proper and efficient service to him. Complaint has been filed claiming reliefs as mentioned in para 18 (a) to (d) of complaint.

4.      Upon notice, OP-insurer-appellant raised contest.  In its written version, all averments have been denied.  It is admitted that complainant insured his vehicle No.DL-07CM-8145 with OP-appellant vide policy valid from 23.02.2021 to 22.02.2022.  Insurer-OP received claim request dated 03.07.2021 bearing claim No.MOT11143411 on behalf of complainant regarding insured car met with an accident on 02.07.2021 and parked at Royal Automobile, Bahadurgarh-Haryana (Authorised Service Centre).  Insurer-appellant appointed surveyor to assess loss on 03.07.2021 and he submitted report on 05.09.2021.  Insurer-OP-appellant after going through the report of surveyor triggered investigation in order to assess the manner of accident.  As per investigation report; manner of accident alleged by complainant does not match with spot of loss.  It has come into report that vehicle cannot met with an accident, in a manner alleged by complainant as spot of loss is narrow road and two cars cannot cross simultaneously. Width of road is not more 20 feet and is covered with forest bush from both sides. After going through report, OP-insurer, vide rejection letter dated 18.09.2021 rejected claim on ground of “Misrepresentation of facts (cause of loss not justified with existing damages on vehicle & try to hide material facts about loss)”. As per plea, complainant has willfully and with malafide intention, hide facts in order to gain illegal benefits.  It is pleaded that complainant has approached the court with unclean hands by not disclosing as well as mis-representing the material facts.  Car never met with an accident in a manner as alleged by complainant. No cause of action arose in his favour.    Insurer-OP has acted strictly on basis of terms and conditions contained in policy.    It is pleaded that complainant has made false and concocted story of the manner of accident, in collusion with his friend in order to extract exorbitant amount from insurance company as IDV value on policy is much more than market value of car.  It is denied that surveyor confirmed loss as genuine and admissible. On these pleas and by putting complainant to strictly prove the allegations; dismissal of complaint has been prayed.

5.      Parties to this lisled their respective evidence (oral as well as, documentary). On analyzing it; learned District Consumer Commission-Gurgaon vide order dated 07.02.2023 has allowedthe complaint. It has directed insurer-appellant to replace the accident vehicle with new vehicle of same make and model including registration and insurance as per, ‘Return to invoice Policy” charges or pay Rs.15,19,174/- @ 9% interest p.a. from date of order till realization within 45 days along with Rs.50,000/- as compensation and Rs.33,000/- as litigation expenses, failing which awarded amount will attract 12% interest p.a.

6.      Feeling dissatisfied; the unfazed and unsuccessful OP-insurer has filed instant appeal.

7.      We have heard learned counsel for parties at length on 13.05.2024 and examined record with their able assistance.

8.      Learned counsel for OP-appellant, while urging for acceptance of this appeal, has contended that; impugned order dated 07.02.2023 passed by Learned District Consumer Commission-Gurgaon is illegal.It is contended that after surveyor-Yogesh Gupta, appointed as such, to assess loss to car had submitted his report; appellant-insurer in its wisdom triggered forensic investigation in order to ascertain the manner of accident and in that context, it appointed M/s Pathfinders to investigate and M/s Bombay Forensic to conduct forensic investigation and prepare accident re-construction report to check mode and manner of alleged accident.  Learned District Consumer Commission-Gurgaon has ignored findings given by M/s Bombay Forensic.  As per this report; damages sustained at rear portion of vehicle does not co-relate with scenario mentioned by insured.  It is contended that insured’s mentioned scenario was false as fraud has been played upon insurer to get a false claim. This fraud played upon insurer vitiates the insurance contract between parties and policy became void. Non-disclosure of material facts is clear violation of terms and conditions of policy i.e. violation of principle of “Utmost Good Faith”.   It is urged that insurer was justified in repudiating and denying insurance claim.It is urged that learned District Consumer Commission-Gurgaon has illegally awarded exaggerated amount of Rs.15,19,174/-, which is contrary to assessment of loss as per first surveyor’s report. Mainly, on these submissions learned counsel for appellant has urged for acceptance of appeal.

9.      Per-Contra: learned counsel for complainant has supported the impugned order dated 07.02.2023 by urging that, it is the outcome of proper appreciation of material facts by learned District Consumer Commission-Gurgaon and no interference in same is warranted.

10.    It is admitted that vehicle No.DL-07CM-8145 was insured with insurer-appellant for a period from 23.02.2021 to 22.02.2022 and certificate of insurance-cum-policy schedule recites IDV value of this vehicle at Rs.8,00,000/-.  It is also admitted that complainant has paid premium of Rs.37,642/-. This vehicle, as per complainant’s case had met with an accident in intervening night of 2/3.07.2021, when it struck against a tree in an attempt to save “Neel Cow” and insurer appellant was intimated about this incident/accident promptly on 03.07.2021. Pursuant to claim lodged by complainant on account of damage suffered to the vehicle in said accident.  Insurer-appellant admittedly appointed its surveyor namely Sh.Yogesh Gupta promptly on 03.07.2021, who submitted his report dated 05.09.2021. Following is text of loss assessment and recommendation mentioned in said report:-

          “9.     Loss Assessment:-

          Under your instructions received on 03.07.2021 for inspection of Hyundai Creta 1.6 crdi at Royal Automobiles, Bahadurgarh.  Undersigned visited at workshop and surveyed the said Creta 1.6 crdi.  As per my physical verification, the said vehicle was found in damaged condition from front, left and right side.  Photographs of the said vehicle were taken from all angles showing its present state and highlighting the nature and extent of the damages.  Insured has submitted the estimate for repair and replacement in support of his claim for loss/damages and scrutinised by the item wise and then discussed with the repairer at length. The damages are fresh in nature and assessed accordingly.

          Recommendation:-

          Insurer may take right decision for claim admissibility and the same is subjected to your final approval and admission of liability as per Policy’s terms and conditions. “

           This report dated 05.09.2021 of first surveyor clearly and unambiguously suggest and indicate that vehicle was inspected at workshop, while lying there in damaged condition.   Surveyor has evaluated base claim amount of Rs.7,78,931/-. 

11.    Insurer-appellant in its wisdom had not accepted its own first surveyor report and went ahead with forensic analysis and investigation of factual scenario as pleaded by complainant.  Pathfinders Insurance investigators and Consultant submitted its report by observing that case seems to be non-genuine. The facts of accident found mis-represented.As many as, five mis-representation have been mentioned in report of Pathfinders, which runs as follows:-

          “Cause and Date of loss/loss location not matching.

On verification it was found that there  is a misrepresentation of facts.

1.      Based on the scenario correlation analysis, insured mentioned scenario of dashing to the tree is not correlating with the insured’s vehicle front portion damages analysis which proves that the insured’s mentioned incidence scenario is not true.

2.      In this case, accident would have not occurred at the shown alleged spot as no transfer of tree bark material occurred which indicates that the shown accident spot is not co-relating with the vehicle damages which proves that the shown incidence spot is fabricated.

3.      Based on the spot photographs analysis, it is observed that  the photographs captured during first and second visit of the  said spot do not correlate with each other which proves that the spot is different from each other and is fabricated.

4.      Based on the mentioned scenario and vehicle damages correlation analysis, damages sustained on the rear portion of the vehicle does not correlate with the insured mentioned scenario which proves that the insured’s mentioned incidence scenario is not true.

5.      Co-driver airbag panel in the insured vehicle observed to have multiple cut marks. Considering the nature and pattern of the cut mark, the airbag would have deployed deliberately by opening it manually with a tool and tool mark observed for the same.”

12.    Why and on what reasons; insurer-appellant has dissuaded itself from report dated 05.09.2021 of its own first surveyor-cum-loss assessor (Sh.Yogesh Gupta) in order to choose for Forensic Analysis and investigation of manner of accident, remained in the realm of insurer-appellant alone.  These reasons have not come on record, either in pleadings of insurer-appellant or through some documentary evidence.Hon’ble Apex Court in case titled as Sri Venkateswara Syndicate Vs Oriental Insurance Company Ltd and Anr. 2009 (4) RCR (Civil) 872 has held that: “Although there is no prohibition in the Insurance Act for appointment of second surveyor by Insurance Company, yet it has to give satisfactory reason for not accepting the report of first surveyor and need to appoint second surveyor.”  While placing reliance upon judgement, this Commission observes that since reasons and need to go ahead with forensic investigation, in utter dis-regard to the report of first surveyor Sh.Yogesh Gupta are not forthcoming at the behest of insurer-appellant, so it is held that insurer-appellant had chosen for forensic investigation from its second  surveyor in order to receive a tailor made report for itself, to wriggle out from the legal report and implication of policy of vehicle in question.  Hon’ble National Consumer Commission too has held in number of cases that indiscriminate appointment of surveyors by Insurance Company to get favourable report violates IRDA Regulations.For above reasons, this Commission discard the report of Pathfinders Insurance Investigators and Consultants.  This being so, the repudiation of insurance claim by Insurer-appellant on 18.09.2021 was illegal, unjust and wrong.  Rightly, it has been held as such by learned District Consumer Commission-Gurgaon.  This Commission upholds the veracity and genuineness of appellant’s first surveyor’s report dated 05.09.2021.

13.    This has led this Commission at final bone of contention of learned counsel for the appellant regarding quantum of amount awarded to complainant by learned District Consumer Commission-Gurgaon. It is contended that: amount of Rs.15,19,174/- with interest has been awarded exaggeratedly. To answer this poser; it is observed that appellant’s first surveyor-cum-loss assessor namely Sh.Yogesh Gupta, has evaluated base claim amount at Rs.7,78,931/-as per his report dated 05.09.2021. This has also been observed by learned District Consumer Commission-Gurgaon in ParaNo.6 of impugned order.Impugned order dated   07.02.2023, does not recite any fundamental reason or base to award Rs.15,19,174/- to complainant. Once, claim of this magnitude (Rs.15,19,174/-) has been raised by complainant in his complaint, which obviously entails civil and financial consequences for insurer-appellant, then reasons to award this amount of Rs.15,19,174/- as claimed, should have been there.  However, impugned order dated 07.02.2023 does not reflect any reasons on this pedestal, which is a fallacy on the part of learned District Consumer Commission-Gurgaon. This Commission is inclined to accept the contention of learned counsel for appellant-insurer regarding illegality committed by learned District Consumer Commission-Gurgaon while awarding Rs.15,19,174/-, over and above the evaluated base claim amount of Rs.7,78,931/- by first surveyor.   This Commission accepts the appellant’s first surveyor’s evaluation at the level of Rs.7,78,931/- being base claim amount as per his report dated 05.09.2021.  In opinion of this Commission, ends of justice would meet to award Rs.7,78,931/- to complainant with interest @ 9% from the date of order (07.02.2023) of learned District Consumer Commission-Gurgaon, till its realization.  Impugned order dated 07.02.2023 passed by learned District Consumer Commission-Gurgaon is modified to above extent, by partly allowing this appeal.  Amount of Rs.50,000/- awarded for compensation to complainant and amount of Rs.33,000/- awarded to complainant towards litigation expenses through impugned order 07.02.2023 would remain intact.

14.    Insurer-appellant had already deposited Rs.8,11,014/- with Registry of this Commission while filing of this appeal.  Since impugned order dated 07.02.2023 has been modified by reducing the amount of Rs.15,19,174/- (originally awarded) to Rs.7,78,931/-, therefore, the statutorily deposited amount of Rs.8,11,104/- is hereby ordered to be released to complainant-Anil Kumar Rathi, against proper receipt, identification and verification as per rules.  Registry of this Commission is accordingly directed.  For satisfaction of any balance claim; complainant is at liberty to enforce execution of this order by adopting appropriate legal recourse.

15.  

16.    A copy of this judgment be provided to all the parties free of cost as mandated by the Consumer Protection Act, 1986/2019. The judgment be uploaded forthwith on the website of the Commission for the perusal of the parties.

17.    File be consigned to record room.

                                    

Date of pronouncement: 21stJune, 2024

 

 

                             Manjula Sharma                            Naresh Katyal                                          Member                                 Judicial Member

Addl. Bench-I                       Addl. Bench-I