Chandigarh

DF-II

CC/190/2024

NAVJEEVAN JIT SINGH - Complainant(s)

Versus

BAJAJ ALLIANZ GENERAL INSURANCE CO. LTD. - Opp.Party(s)

SUKHANDEEP SINGH

27 Nov 2024

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION-II, U.T. CHANDIGARH

======

Consumer Complaint  No	:	190 of 2024
Date  of  Institution	:	13.05.2024
Date   of   Decision	:	27.11.2024

 

 

 

 

Navjeevan Jit Singh s/o Gurdial Singh, R/o H.No.232, Sector 15-A, Chandigarh-160015.

             … … … Complainant

 

Versus

 

1.  Bajaj Allianz General Insurance Co. Ltd., GE Plaza, Airport Road, Yerwada, Pune-411006 through its General Manager/Chairman.

    E-mail id:bagichelp@bajajallianz.co.in

2.  The Branch Manager/Authorized Officer, Bajaj Allianz General Insurance Co. Ltd., Plot No.149, 4^th Floor, Industrial Area, Chandigarh-160002.

3.  Krishna Automobiles situated at Plot No.125, Industrial Area, Phase 1, Chandigarh through its Authorized Officer.

    E-mail id: info@bmw-krishnaautomobiles.in

   … … … Opposite Parties

 

BEFORE:  MR.AMRINDER SINGH SIDHU,       PRESIDENT

                MR.BRIJ MOHAN SHARMA,     MEMBER

                               

Argued by:    Sh.Sukhandeep Singh, Counsel for Complainant.

Sh.P.H.S.Pannu, Counsel for OP No.1 & 2.

None for OP No.3.

ORDER BY AMRINDER SINGH SIDHU, M.A.(Eng.),LLM,PRESIDENT

 

1]       The complainant has filed the present complaint pleading he is owner of vehicle BMW X5 Car bearing Registration No.TO124CH0931A and the same was got insured from the OP No.1 & 2 Insurance Company valid w.e.f. 13.01.2024 to 12.01.2027. Copy of the Cover Note is placed on record as Exhibit C-1. At the time of issuance of the policy, only cover note was supplied to the complainant. The terms and conditions of the policy were neither informed nor supplied to the complainant.

 

    It is stated that on 30.01.2024, the aforesaid insured vehicle met with an accident with vehicle No.HR-10-AS-5348. The insured vehicle was being driven by one of the family relative of complainant namely Sh.Ikram Singh Bhattal who is having a valid driving license. Since there was no fault of any of the parties, they compromised the matter in the presence of concerned police officials of Police Chowki, Sector 21, Panchkula. Copy of the Settlement is placed on record as Exhibit C-2. In view of the compromise effected between the parties, the concerned police officials did not pursue the matter further, hence, no police case was registered. Since the driver of the insured vehicle was suffered with some minor injuries in the accident, he was taken to the Government Hospital, Sector 6, Panchkula, where first aid was given to him but neither any medical report was supplied to the driver/insured nor any further investigation was got done by the police officials.

 

         The complainant immediately thereafter informed the insurer/OP regarding the aforesaid accident and accordingly claim was lodged on 03.02.2024 by the insurer/OP. The OP No.3 issued the repair estimate of the insured vehicle to the tune of Rs.49,58,118.69/-. Copy of the Estimate Report is placed on record as Exhibit C-3. It was informed by OP No.3 through e-mail to the complainant that they are still waiting for the repair approval from OP No.1 & 2 and only thereafter they will be able to proceed with the repair of the insured vehicle. Copy of the E-mail is placed on record as Exhibit C-4. It is stated that complainant had received one letter dated 27.03.2024 from OP Insurance Company wherein reference was drawn to declaration No.9(1) of the claim form and stated that the driver of the vehicle is refusing for police report as well as medical report. Copy of the letter dated 27.03.2024 is placed on record as Exhibit C-5. The complainant, vide letter dated 01.04.2024, replied to the said letter and stated that since the matter related to simple road accident which was compromised between the parties in the presence of police officials, no case was ever registered by police authorities regarding the accident dated 30.01.2024 and complainant is not in possession of any MLC Report as the same was never provided by the police authorities. Copy of the letter dated 01.04.2024 is placed on record as Exhibit C-6. The OP Insurance Company, vide its letter dated 05.04.2024, again insisted the complainant for providing copy of MLC. Copy of the letter dated 05.04.2024 is placed on record as Exhibit C-7. It is stated that police authorities issued one certificate dated 28.03.2024 that due to compromise between the parties on 30.01.2024, neither any proceedings were carried out nor any samples from the hospital were collected, therefore no medical legal report is available. Copy of the Certificate dated 28.03.2024 is placed on record as Exhibit C-8. The copy of the said certificate of the police authorities was duly supplied to the OP No.2 for the settlement of the claim of the complainant but of no use. A legal notice dated 12.04.2024 was issued to OP No.1 & 2 to settle the claim of complainant, but with no result. Copy of the Legal Notice alongwith Postal Receipts are placed on record as Exhibit C-9 & C-10. The aforesaid act of the OPs amounts to deficiency in service and unfair trade practice. Hence, the present complaint has been filed with a prayer to direct the OPs to settle the genuine claim of the complainant in respect of his vehicle BMW X5 Car and to pay compensation for mental agony & harassment and cost of litigation. 

 

2]       The OP No.1 & 2 in their written version, while admitting the factual matrix of the case, stated that they conducted a survey where the investigator was not provided with the documents i.e. Police Report, MLC as well as Chemical Report of the driver who allegedly sustained injuries during the accident. The documents are required to determine the authenticity of the claim. No such documents were provided by the complainant to OP No.1 & 2 even after repeated letters dated 27.03.2024 and 05.04.2023 which clearly shows non-cooperation on the part of the complainant.

 

         It is stated that investigator during investigation communicated with the police authority and DDR was found in respect of the accident, wherein it has been clearly mentioned that driver of the vehicle in question was under influence of alcohol or other form of intoxication. The Surveyor/Investigator further visited the hospital wherein the driver was allegedly treated, however, the hospital authority did not provide the MLC/Chemical Report of the driver. Copy of the Investigation Report is placed on record as Annexure R/A-2.

 

        It is further stated that after giving ample opportunities to the complainant and failure of the complainant to provide with the requisite documents, the OP No.1 & 2 had no other option but to repudiate the claim of the complainant vide repudiation letter dated 27.05.2024. Copy of the Repudiation Letter is placed on record as Annexure R/A-5. Denying any deficiency in service or unfair trade practice as well as all other allegations, the OPs have prayed for dismissal of the complaint.    

 

3]      The OP No.3 in its written version has stated that OP No.3 is required to undertake the accidental repairs of the car in question only on the asking of the owner of the car/vehicle in question or after the grant of permission by the Insurance Company. Neither the complainant nor the OP No.1 & 2 have granted permission to OP No.3 to carry out accidental repairs. The dispute exists between the complainant and OP No.1 & 2, therefore, OP No.3 is neither a necessary party nor is concerned to the deficiency alleged by the complainant. Hence, a prayer for dismissal of the complaint against OP No.3 has been made.

 

4]      Replication has also been filed by the complainant controverting the assertions of OP No.1 & 2 as made in their written version. However, it is stated that during the pendency of the present complaint, OP No.3 has repaired the insured vehicle on the instructions of the complainant and has raised the bill of Rs.40,13,236.72/- which has been paid by complainant to OP No.3. Copy of the Repair Bills are placed on record as Exhibit C-11.

 

         Despite giving opportunity, complainant did not file replication to the written version of OP No.3.   

 

5]       Parties led evidence in support of their contention.

6]       We have heard the learned counsels for the complainant & OP No.1 & 2 and have gone through entire documents on record.

7]       It is an admitted case of the parties that the complainant is the registered owner of the vehicle in question and he got the same insured with OP No.1 & 2 w.e.f. 13.01.2024 to 12.01.2027 and the subject car, having been driven by one of the family relative of complainant namely Sh.Ikram Singh Bhattal, met with an accident on the relevant date, time and place, which resulted in causing damage to the subject car. Since there was no fault on the part of any of the parties, they compromised the matter in the presence of concerned police officials of Police Chowki, Sector 21, Panchkula. The driver of the vehicle in question was taken to the hospital for his treatment, as he was also injured in the accident and the first aid was given to him but neither any medical report was supplied to him. The claim was lodged with the OP No.1 & 2 Insurance Company but the same has been closed by the OP No.1 & 2 Insurance Company on finding that “Due to non-cooperation and non-submission of essential requirements, we are unable to process your claim and hence the same stands closed”, as is also evident from the copy of letter dated 27.05.2024 (Annexure R/A-5).  

8]       The main issued involved in the present complaint is whether OP No.1 & 2 closed the claim of the complainant rightly or not?

         In order to find answer to this question, the following facts and circumstances alongwith relevant law are necessary to be discussed:-

9]       The complainant has specifically stated that no MLC Report was ever provided by the hospital and as such the OP No.1 & 2 cannot be allowed to harass the complainant by compelling him to produce the report/documents which are not in possession. The complainant has placed on file copy of the certificate dated 28.03.2024(Exhibit C-8) issued by Police Chowki, Sector 21, Panchkuka, mentioning therein “mutual agreement was reached between both the parties regarding the accident on 30.07.2024 and no other action has been taken in this regard. Further samples were not taken by the hospital for further action and there is no report of the same.” Despite having the said certificate, the closing of the claim of the complainant by OP No.1 & 2 cannot held to be justified.

    So far as the other ground of OP No.1 & 2 i.e. at the time of the accident, the driver was under the influence of alcohol or other intoxication, the burden to prove this fact was upon the OP No.1 & 2. However, to prove the same, no reliable documentary evidence has been produced by the OP No.1 & 2 and accordingly there is no merit in this ground.

    Reliance has been placed on the judgement of Hon’ble Apex Court in ‘Mahakali Sujatha vs. Branch Manager, Future Generali India Life Insurance Co. Ltd.’ II (2024) CPJ 66 (SC) and the relevant portion of the same reads as under:-

“50. …… The cardinal principle of burden of proof in the law of evidence is that “he who asserts must prove”, which means that if the respondents herein had asserted that the insured had already taken fifteen more policies, then it was incumbent on them to prove this fact by leading necessary evidence. The onus cannot be shifted on the appellant to deal with issues that have merely been alleged by the respondents, without producing any evidence to support that allegation………. A fact has to be duly proved as per the Evidence Act, 1872 and the burden to prove a fact rests upon the person asserting such a fact………”

    It is the duty of the OP Insurance Company/their investigating officers to collect the documents required to determine the authenticity of the claim, in case, they are not satisfied with the documents so furnished by the complainant but they failed to do so. The complainant should not be harassed by the OPs by demanding unnecessary documents which are not in his possession. No doubt, OP No.1 & 2 Insurance Company has closed the claim of the complainant due to non-submission of documents i.e. Police Report, MLC Report etc but OP No.1 & 2 have neither summoned the concerned record nor examined the concerned police official/doctor before this Commission. Moreover, the complainant has placed on file ‘Police Report’ dated 28.03.2024 as Exhibit C-8 wherein it is mentioned that there is no report as samples were not taken from the hospital. So, it is clear that when blood samples of the driver of accidental vehicle were not taken for medical purpose to determine the intake of alcohol by the driver at the time of accident then question regarding its report does not arise. 

    In nutshell, OP No.1 & 2 failed to discharge its burden of proof that driver of the accidental vehicle was under the influence of alcohol at the time of accident.

    Reliance has been placed on order of Hon’ble State Consumer Disputes Redressal Commission, New Delhi, in an Appeal No.453 of 2008 decided on 18.03.2011 titled as ‘New India Assurance Co. Ltd. vs. Ravi Narang’ wherein it is held that:-

“Medical Examination Reports were filed by appellant/O.P. but none of them contains name of examinee injured person or patient – Therefore, it cannot be said that they relate to complainant – No affidavit has been filed of their author (Doctor) in evidence to establish these reports in evidence – Thus these documents don’t help in any manner to substantiate contention of appellant/O.P. that complainant has driven vehicle at the time of accident in a drunken state – Order of District Commission is upheld – Appeal is dismissed”

    Further Hon’ble National Consumer Disputes Redressal Commission, New Delhi in First Appeal No.90 of 2017 titled as ‘Oriental Insurance Co. Ltd. vs. M/s Bombay Traders’ decided on 10.05.2024, dismissed the appeal against the order of Hon’ble State Consumer Disputes Redressal Commission, Chandigarh, wherein it has been held that:-

“Although DDR was registered against the driver at the time of accident but there is no evidence to prove the level of alcohol in the blood of the driver was such high that he could not drive the vehicle, as such, there was no violation of Condition No.2(c) of the Policy”.

    Moreover, Hon’ble Supreme Court of India in complaint titled as “IFFCO Tokio General Insurance Co. Ltd. vs. Pearl Beverage Ltd. (2021) 7 SCC, held that:-

“Driving under the influence of alcohol’ is to be understood that on account of Consumption of Alcohol, either before commencement of driving skill had been affected (influenced). It means that alcohol consumed earlier was the cause or it contributed to the occurrence of accident”

    In the present complaint, OPs failed to prove on file that driver has consumed alcohol at the time of accident. Moreover, police authorities of Sector 21, Panchkula has reported that no medical sample of blood was taken by hospital of the concerned driver. So the question of Medical Report does not arise. Hence, OP No.1 & 2 are wrong for asking the documents which are not in possession with the complainant and wrongly closed his claim.

10]      Not only this, it is usual with the insurance company to show all types of green pastures to the customer at the time of selling insurance policies, and when it comes to payment of the insurance claim, they invent all sorts of excuses to deny the claim. In the facts of this case, ratio of the decision of Hon’ble Apex Court in case of Dharmendra Goel Vs. Oriental Insurance Co. Ltd., III (2008) CPJ 63 (SC) is fully attracted, wherein it was held that, Insurance Company being in a dominant position, often acts in an unreasonable manner and after having accepted the value of a particular insured goods, disowns that very figure on one pretext or the other, when they are called upon to pay compensation.  This ‘take it or leave it’, attitude is clearly unwarranted not only as being bad in law, but ethically indefensible.  It is generally seen that the insurance companies are only interested in earning the premiums and find ways and means to decline claims.

11]      In similar set of facts the Hon’ble Punjab & Haryana High Court, Chandigarh in case titled as New India Assurance Company Limited Vs. Smt.Usha Yadav & Others, 2008(3) RCR (Civil) Page 111 went on to hold as under:-

“It seems that the insurance companies are only interested in earning the premiums and find ways and means to decline claims. All conditions which generally are hidden, need to be simplified so that these are easily understood by a person at the time of buying any policy.  The Insurance Companies in such cases rely upon clauses of the agreement, which a person is generally made to sign on dotted lines at the time of obtaining policy. Insurance Company also directed to pay costs of Rs.5000/- for luxury litigation, being rich”

 

12]      In view of the above discussion, it can be safely concluded that the act of OP No.1 & 2/Insurer in closing the genuine claim of the complainant is not only wrong and arbitrary but also certainly amounts to deficiency in service on their part. The complaint of the complainant is partly allowed. OP No.1 & 2 are directed to pay Rs.40,13,236.72/- (i.e. the amount paid by complainant to OP No.3 for repair of insured vehicle) to the complainant alongwith interest @ 6% per annum from the date of closing the claim of the complainant, i.e. 27.05.2024, till the date of its actual realization alongwith lump sum compensation of Rs.40,000/- on account of mental agony & harassment including litigation expenses to the complainant within 45 days from the date of receipt of certified copy of this order.

 

13]      The complaint qua OP No.3 stands dismissed.

14]      The pending application(s) if any, stands disposed of accordingly.

 

        The Office is directed to send certified copy of this order to the parties, free of cost, as per Rules under The Consumer Protection Rules, 2020. After compliance file be consigned to record room.

Announced

27.11.2024                                                               

Sd/-

 (AMRINDER SINGH SIDHU)

PRESIDENT

 

 

Sd/-

 (BRIJ MOHAN SHARMA)

MEMBER

as