Punjab

Ludhiana

CC/16/157

Kirpal Singh - Complainant(s)

Versus

Bajaj Allianz General Ins.Co.Ltd - Opp.Party(s)

Varun Verma Adv.

20 Mar 2017

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, LUDHIANA.

 

Consumer Complaint No.157 of 26.02.2016

Date of Decision          :   20.03.2017

 

Kirpal Singh, aged 50 years, son of Shri Karnail Singh, resident of village Bodalwala, Tehsil Jagraon, District Ludhiana.

….. Complainant

Versus 

1.Bajaj Allianz General Insurance Company Limited, Feroze Gandhi Market, Ludhiana, through its Divisional Manager.

2.Bajaj Allianz General Insurance Company Limited, SCO 14, 4^th Floor, Urban Estate, Sector 5, Panchkula through its Divisional Manager.

3.Bajaj Allianz General Insurance Company Limited, Regd. & Head office at GE Plaza, Airport Road, Yerawada, Pune-411006, through its Authorized signatory.

 

 

..…Opposite parties

 

 (COMPLAINT U/S 12 OF THE CONSUMER PROTECTION ACT, 1986)

 

QUORUM:

SH.G.K.DHIR, PRESIDENT

SH.PARAM JIT SINGH BEWLI, MEMBER

 

COUNSEL FOR THE PARTIES:

For Complainant                     :         Sh.Varun Verma, Advocate      

For Ops                         :         Sh.G.S.Kalyan, Advocate

 

PER G.K DHIR, PRESIDENT

 

1.                          Complainant, owner of car bearing registration No.PB-10-EJ-5600 of Wolkswagon make Polo got the same insured with Ops vide policy No.OG-14-9991-1801-0002402. The validity of insurance was upto 27.8.2016. On 1.6.2015 at 10:00 AM, the complainant along with his son Paramvir Singh were coming back to village Sidhwan Bet after dropping the wife of complainant at village Ramgarh Bhullar in the above said car, driven by Paramvir Singh. When they crossed village Leelan Megh Singh, near Government School, Tehsil Jagraon, District Ludhiana, then a truck came from Sidhwan Bet side very rashly and negligently and without observing the traffic rules. The said truck struck into the car of the complainant from the driver side, due to which, driver Paramvir Singh lost control and the car went on the wrong side of the road for striking in the motor cycle No.PB-08-CV-2876 and thereafter, struck against the tress standing on the road side. Complainant and motorcyclist Gurneet Singh along with his son Paramvir Singh sustained injuries in the said accident. The insured car stood damaged in the accident.Motorcyclist Gurmeet Singh along with son of the complainant Paramvir Singh were shifted to Civil Hospital, Jagraon, from where, they were referred to DMC & Hospital, Ludhiana for treatment. Complainant got himself treated from the Civil Hospital, Jagraon. Application was sent to police authorities by Paramvir Singh through registered post, but despite that action was not taken against the truck driver. Paramvir Singh was holding valid driving license at the time of accident. Claim was lodged by the complainant with Ops, who demanded requisite documents and information vide letter dated 5.6.2015 and accordingly, the needful was done by supplying the documents. Car in question was totally damaged. M/s Lally Motors charged Rs.15,000/- as parking charges vide receipt No.2375 dated 25.7.2015, but Rs.2000/- as towing charges were paid to Satnam Motor for carrying the vehicle to repairer. Complainant has not committed breach of any of the terms and conditions of the policy, but despite that claim of the complainant illegally repudiated vide letter dated 27.1.2016 on false and wrong facts. Prayer made for directing Ops to make the payment of Rs.7,12,449.16P as repair charges along with interest @12% per annum from the date of accident till actual payment. Directions also sought against Ops for calling upon them to pay Rs.15,000/- as parking charges plus Rs.2000/- as towing charges. Compensation for mental harassment and agony of Rs.1 lac, but Rs.22,000/- as counsel feel also claimed along with Rs.50,000/- as conveyance charges for hiring the private vehicle.

2.                In joint written statement filed by Ops, it is pleaded interalia as if the complaint is not maintainable being filed without any cause of action. Besides, it is claimed that there is no deficiency in service on the part of Ops and complainant has not approached this Forum with clean hands because he has suppressed the material facts from this Forum. Admittedly, the vehicle in question was insured for period from 28.8.2014 to 27.8.2015 for sum of Rs.5,58,951/-, but subject to the terms and conditions of the policy. It is claimed that after receipt of the claim intimation, Ops deputed IRDA Licensed surveyor, who through report dated 23.6.2015 assessed the loss to the tune of Rs.3,15,790.94P. Without admitting any liability and without prejudice to the defence, it is claimed that liability of Ops will not be more than loss assessed by IRDA Licensed surveyor, provided the claim is admissible under the policy terms and conditions. However, due to the facts and circumstances of the claim, the Ops also deputed Unique Detective & Investigators, SCO No.1, Cabin No.4, Ist Floor, Phase-II, Mohali for investigating the matter and the said investigator submitted his report dated 31.12.2015 with following remarks:-

“To conclude, considering all the facts mentioned above and on the basis of the circumstantial evidence, it can be said that on 1.6.2015, the car was being driven by Mr.Kirpal Singh himself might have learners driving license but he has not permanent driving license and his driving license issued after one and half month and he was going on duty to Sidhwan Bet where he has been posted in Punjab Power Corporation Ltd.(PSEB). Our executive taken photographs of the car and he has not Market “L” on both the wind screen glasses as per Motor Vehicle Act and no spot survey and FI/r was arranged by the insured being major loss to the car and TP Loss is there which is clear violation of the Motor Vehicle Act. The insured has not disclosed the facts and not cooperated during the investigations. The MLC was also not conducted by Civil Hospital, Jagraon.

However, the underwriters may processed the claim and decide the liability as per policy terms and conditions keeping in view the above observations and attached papers and statements if the policy is enforcement otherwise.”

3.                After receipt of the survey report and investigation report, the claim was rightly repudiated vide letter dated 27.1.2016 by observing the following discrepancies:-

“i)There are suspicious circumstances as to involvement of insured vehicle as there is no FIR, No charge sheet and no GD entry immediately after accident.

ii)The Third party vehicle’s rider has not died on spot, initially he was admitted to hospital on 1.6.2015 and discharged on 14.6.2015. NO MLC record, Discharge summary, inquest and PMR of TP rider available.

iii)Insured vehicle driver has suo-moto written a letter after few days narrating the accident and alleging negligence against Third party truck. Whereas, if we look at the allegation of third party claim, there is no mention of TP truck which has fled away. IN TP Claim entire negligence is alleged on Insured Vehicle (Car) without any valid documentary proof.

iv)If we look at the photographs of insured vehicle, the impact of the accident is more on driver side. But it is surprising that insured vehicle’s driver has no injuries and moreover, insured does not have valid DL on the date of accident.

v) Even after letter has written to police by insured, there is no investigation, no statements are recorded, no motor vehicle inspection is conducted.

Thus you have failed to establish that the damage to the insured by accidental external means to invoke coverage under the policy. As there is delay in intimation to us and non-submission of necessary documents for processing the claim, there is breach of policy terms and conditions on your part. Moreover, by not furnishing the true and correct information as to the alleged loss, you have violated principle of utmost good faith, which is foundation of any contract of insurance.

In view of the above your claim stands repudiated, accordingly the same may please be noted.”

Kirpal singh complainant was not holding valid driving license on the date of accident and that is why he did not lodge the FIR. Besides, it is claimed that on having look of photographs of insured vehicle, it become obvious that the impact of the accident is more on the driver side, but despite that it is claimed as if the     insured has not sustained any injury. Each and every other averment of the complaint denied, but by claiming that policy always issued in good faith.

4.                Complainant to prove his case tendered in evidence his affidavit Ex.CA along with documents Ex.C1 to Ex.C19 and thereafter, his counsel closed the evidence.

5.                On the other hand, counsel for OPs tendered in evidence affidavit Ex.RA of Smt.Sarpreet Kaur Ahluwalia, Assistant Manager of Ops along with documents Ex.R1 to Ex.R19 and then closed the evidence.

6.                Written arguments not submitted by any of the parties. Oral arguments alone addressed and those were heard. Records gone through minutely. 

7.                Complainant in the complaint as well as in the application Ex.C6 sent through registered post to Ops through postal receipts Ex.C7 to Ex.C9, specifically claimed as if the accident took place due to rash and negligent driving of a truck by its driver, who came on wrong side resulting in striking of the car in question with motor cycle and then with the standing trees. Though, accident took place on 1.6.2015, but application with SSP, Ludhiana Ex.C6 was filed on 8.6.2015 through registered post,but by wrongly mentioning the date as 8.5.2015 underneath of Ex.C6. However, when earliest ever intimation through email dated 1.6.2015 sent on registration of claim by Mr.Manish, it was disclosed as if loss to the insured vehicle took place while saving animal. Specific reference to Ex.R1 in this respect can be made. However, story put forth by the complainant in this respect certainly is not correct because if at all the car would have struck against the truck first from the driver side, then owing to damaged position of the car as disclosed by photographs Ex.C16 to Ex.C18, injuries definitely would have been sustained by the driver, who is alleged as Paramvir Singh. However, no injury by the said Paramvir Singh alleged to be sustained. Rather, it is the claim of the complainant that injury was sustained by him, while he was sitting in the front seat by the side of driver. Certainly, investigation report Ex.R2 is believable that due manner of taking place of the accident is not disclosed by the complainant.

8.                After going through report Ex.R2, it is made out that information to the police was sent through Ruka by Civil Hospital, Jagraon on 1.6.2015 regarding which entry No.403 in DDR was recorded. If the complainant was unfit to suffer the statement on 1.6.2015, then why Paramvir Singh, who was allegedly driving the car in question, did not lodge the report with the police until sending of an application Ex.C6 on 8.6.2015 qua that no explanation offered at all. Even if lodging of the FIR/DDR is not essential or is “Sine Qua Non”, despite that over all facts and circumstances of the case has to be taken into consideration for finding as to whether versions of the complainant qua manner of taking place of accident are correct or not?

9.                Paramvir Singh in his statement suffered before the surveyor claimed as if the truck driver fled away with the truck from the spot after the accident and passerby took them to Civil Hospital at Jagraon. In that statement, Paramvir Singh disclosed as if the driver fled away with the truck from the spot. However, that version of Paramvir Singh was held to be a false version through para no.19 of judgment passed by the Court of Sh.A.P.Batra, Learned MACT, Ludhiana in MACT case No.80 of 29.7.2015 as revealed by para no.19 of that judgment Ex.C19. In para no.19 of said judgment, it has been specifically held that a concocted and false version has been put forth by Paramvir Singh regarding not noting down the number of the truck despite the fact that truck remained at the spot. There is no reason to arrive at different conclusion than the one arrived at through  para no.19 of Ex.C19, particularly when FIR or DDR not lodged at earliest , but complaint Ex.C6 sent to SSP, Ludhiana after seven days of the accident, by which time the surveyor stood appointed by the Ops. Before sending of application Ex.C6 dated 8.6.2015 to SSP, Ludhiana, the authorized surveyor of Ops called upon the complainant through letter Ex.C10 dated 5.6.2015 to produce the vehicle for initial survey and submit copy of FIR and other documents. This means that actually application Ex.C6 was sent by the complainant to SSP, Ludhiana for making a case for getting compensation. If really the accident in question would have  taken place in the manner alleged by the complainant, then FIR would have been lodged at earliest and application would    not have been filed after three days of issue of letter Ex.C10 dated 5.6.2015 by the Ops     to the complainant.

10.              Observations recorded by Unique Detective & Investigator in Ex.R2=Ex.R22 are not incorrect, particularly when the injuries sustained by the complainant Kirpal Singh and not by the driver and the loss to the car caused on the side of driver and not on side of passenger sitting in the front. Besides, observations recorded to the effect that the complainant being educated and employee of Power Corporation of Punjab would have lodged the FIR, if the truck driver would have been at fault are correct because in case fault of complainant or his driver would not have been there, then certainly they would have lodged the FIR/DDR at the earliest. It is on account of this that spot photographs were not taken at the spot by the insured at the earliest and nor any eye witness produced by the complainant before the investigator. The report of investigator is believable in view of the observations recorded in judgment Ex.C19 discussed in detail above and as such, we have no hesitation in holding that in fact though accident took place due to rash and negligent driving of the car in question by its driver, but despite that a false story has been concocted for claiming as if the same took place due to rash and negligent driving of passing by truck.

11.              Perusal of Ex.R4=Ex.R19 or Ex.C1 reveals that car was insured for sum of Rs.5,58,951/- and if that be the position, then certainly claim of the complainant for amount of Rs.7,12,449.16P incurred  as expenses on repair through bill Ex.C11 is incorrect. It is so because liability of insurance company to remain to the extent of IDV of the vehicle which was assessed at Rs.5,58,951/- through Ex.C1 or Ex.R4=Ex.R19.

12.              Provisional Survey Report Ex.R5=Ex.R21 shows as if the net assessed amount is Rs.3,15,790.94P. This report submitted by an IRDA licensed surveyor and as such, liability of Ops cannot be in excess of the assessed amount, particularly when certain depreciation amount in assessing the amount permissible, depending on the age of the vehicle as per terms and conditions of the insurance policy in question. Besides, certain deductions for depreciation amount is permissible in respect of  replaced parts, all rubber parts, nylon, plastic parts, tyre, battery and air bags etc. Letters Ex.R10 dated 22.6.2015; Ex.R11=Ex.R24 dated 15.6.2015 and Ex.R14=Ex.C10 dated 5.6.2015 were sent by the Ops to the complainant for calling upon him to produce certain documents consisting of copy of FIR, registration certificate and driving license etc, but as FIR was not lodged and that is why the same is not produced. However, intimation regarding the accident was submitted on 1.6.2015 itself is a fact borne from the contents of Ex.R1 itself and as such, there is no delay in sending intimation to the insurer.

13.     Merely because the death claim allowed through judgment Ex.C19, due to that alone, complainant does not become entitled for the claimed relief, particularly when he has suppressed the manner of taking place of accident. Copies of postal receipts of notice Ex.C6 also produced on record by Ops as Ex.R25 to Ex.R27.

14.              Repudiation of claim took place through letters Ex.R15=Ex.C15= Ex.R23 on ground that the complainant failed to establish the damage to the car in question by external means and also on account of delay in intimation and non submission of necessary documents. However, delay in intimation is not there because of contents of Ex.C1 as discussed above. Damage to the insured vehicle by external means is certainly proved as per photographic depiction and as per contents of Ex.C19, even though manner of taking place of accident disclosed by the complainant is not correct.

15.              Insurance company to indemnify the insured against loss or damage to the insured vehicle by accidental external means. That loss to the insured car by accidental external means is established by judgment Ex.C19 and photographic depiction and report of investigator and surveyor as discussed above and as such, certainly repudiation of claim is improper on the ground that loss to the car in question by accidental external means is not caused. As repudiation of claim due to non proof of damage in accidental external means is improper and as such order of repudiation is illegal to that extent as well as to the extent that there is delay in intimation. Counsel for Ops unable to point out the specific clause of the terms and conditions of the agreement as per which the claim can be repudiated due to non disclosure of the true facts qua manner of taking place of accident. If at all the claim to be repudiated on the ground of non disclosure of true facts qua manner of accident, then specific orders in that respect must be passed by the Ops. Therefore, it is fit and appropriate to direct Ops to reconsider the claim of the complainant within 30 days from the date of receipt of copy of this order. Specific clause of terms and conditions of the policy, on the basis of which, repudiation to take place on reconsideration, must be disclosed in the order to be passed by Ops. However, in case, on reconsideration, it is found that any amount of claim is payable, then the same must be paid within 30 days from the date of passing of order on reconsideration by Ops, failing which, the complainant should be paid interest on the adjudged amount @8% per annum from today onwards till payment. No amount of compensation for mental harassment or litigation expenses passed because of concealment of material facts regarding the manner of taking place of accident by the complainant. Rather, repudiation of claim on account of concealment of material facts may be justified, if there is any specific term and condition in the policy agreement in that respect. That term and condition not pointed out by any of the parties and as such, reconsideration of claim ordered with above observations.

16.              Therefore, as a sequel of the above discussion, complaint disposed of in terms that Ops will reconsider the claim of the complainant within 30 days from the date of receipt of copy of this order. In case, on reconsideration, it is found that amount is payable, then those be paid within 30 days from the date of passing of order, failing which, complainant will be entitled to interest on the adjudged amount, on reconsideration @8% per annum from today onwards till payment. However, in case, the claim again repudiated, then copy of same will be sent by the Ops to the complainant at the address given in the complaint and the complainant will be entitled to avail appropriate remedy by filing fresh complaint, if any. No order as to compensation for mental harassment and litigation expenses is passed. Copies of order be supplied to the parties free of costs as per rules.

17.                        File be indexed and consigned to record room.

 

                      (Param Jit Singh Bewli)                        (G.K.Dhir)

                                  Member                                        President

Announced in Open Forum

Dated:20.03.2017

Gurpreet Sharma.