IN THE STATE COMMISSION: DELHI

(Constituted under section 9 of the Consumer Protection Act, 1986)

Date of Hearing:16.12.2020 

Date of Decision:14.01.2021

Complaint No.1075/2019

IN THE MATTER OF

BALWAN SINGH

S/o Late Narayan Singh

R/o 181, Mangolpur Kalan,

Rohini, Delhi-110085

Through its GPA Holder

Lalit Yadav….Complainant

VERSUS

BAJAJ ALLIANZ GENERAL INSURANCE CO. LTD.

Through its authorised officer

Having its office at:

R/o Block No. 4, 7^th Floor,

DLF Towers, 15 Shivaji Marg

New Delhi-110015                                           ....Opposite Parties

HON’BLE  SH. ANIL SRIVASTAVA, MEMBER 

1.   Whether reporters of local newspaper be allowed to see the judgment? Yes     

 2.   To be referred to the reporter or not?                                                        Yes

Present:       Sh. Jalaj Aggarwal, Counsel for the complainant

                   Sh. Virender Prabhakar, Counsel for the OPs

          ANIL SRIVASTAVA, MEMBER

JUDGEMENT

1.           Repudiation of the claim of submitted y the insured, Sh. Balwan Singh, consequent upon the insured vehicle having been damaged due to an accident, done by the Insurance Company, namely, Bajaj Allianz General Insurance Co. Limited and ors, led to filing of this complaint before this Commission under Section 17 of the Consumer Protection Act 1986, the Act, alleging deficiency of service and unfair trade practice.
2.           Facts of the case necessary for the adjudication of the complaint are these.
3.           The complainant the registered owner of the Audi Car bearing registration number DL1CP3916 got his vehicle insured with the OP for the period of 18.06.2018 – 17.06.2019, paying the premium of Rs. 80,295/-. The complainant had also paid the premium of Rs. 96,109/- renewing the policy for the next year i.e. 18.06.2019 – 17.06.2020. However on 14.06.2019, Lalit Yadav the SPA Holder of the complainant, the friend of complainant’s son was driving the car of the complainant at Narela Bawana Road Delhi and at about 12:00-12:30PM the above said insured vehicle met with an accident due to applying sudden brake by a fully loaded tempo in very negligent manner by its driver who was driving the tempo just ahead from the car of the complainant and due to which the car of the complainant got damaged from front side. Due to the negligent driving of tempo’s driver, the complainant’s car was got damaged from the rear side also by the driver of one Bolero car who was driving the bolero car just behind the complainant’s car and hit the car of the complainant from the back side. As a consequence thereof the car of the complainant got damaged from the front side as also from the back side. The complainant contacted the OP over phone soon thereafter and reported the said accident. The OP advised the complainant to place the vehicle at company’s authorised service centre/workshop. The complainant thus called the crane and placed the vehicle at authorised service station/workshop of the Audi Showroom, paying Rs. 3,500/- to the crane services. The authorised service station official had estimated the cost of the repair of the vehicle as Rs. 24,94,670/-.
4.           The complainant had consequently filed an insurance claim with the OP. A surveyor was appointed who inspected the car and done the “accident spot inspection” of the vehicle. But the claim has not been accepted till date. The complainant visited the office of the OP several times for acceptance of claim but all his efforts done in this behalf proved an exercise in futility. Finally the OP responded rejecting the claim on the ground that the complainant had done the mis-representation and concealment of material facts. The complainant vide letter dated 09.09.2019 took up the matter with the OPs on the issue of mis-representation stating that nothing has been concealed and requesting to release the amount as soon as possible. But the OPs vide letter dated 26.09.2019 repudiated the claim without assigning any reason therefor.
5.           The complainant took up the matter again with the OPs but of no avail. The complainant alleges that he has been subjected to harassment by the service station where the vehicle was sent for repairing on the advice of the OPs. Finding no response from the Ops the complainant has filed this complaint praying for the relief as under:-

It is therefore prayed that this honourable court grant the following relief to the complainant:

1. Direct the OP to pay the sum of Rs. 24,94,670/- alongwith the interest of 12% per annum on account of the insurance claim which is illegally repudiated by the OP with pendent lite and future interest at the same rate or such higher rate which this Hon’ble Commission may deemed fit in the interest of justice.
2. Direct the OP to pay a sum of Rs. 1,00,000/- to the complainants as compensation for harassment, inconvenience and mental agony caused by OP.
3. That a sum of Rs. 50,000/- be allowed as litigation costs.
4. Any other relief’s that this Hon’ble Court thinks fit and proper in favour of the complainant in the circumstances of the case.

6.           Ops were noticed and in response thereto they have filed their written statement both on technical ground as also on merit stating that there is no deficiency in service on the part of the insurance company as the claim has been duly processed after considering the documents submitted by the complainant, physical inspection of the vehicle and findings of the IRDA approved independent surveyor. Secondly the claim has been repudiated in accordance with the terms and conditions of the policy. The respondent company vide letter dated 31.08.2019 had asked the complainant to give clarification to the discrepancies noted in the claim documents. The complainant clarified to the position denying any mis-representation on his part and reiterating that damage was caused as a fall out of one accident.
7.           Since according to the OPs the complainant did not give any satisfactory explanation, his claim was repudiated vide letter dated 26.09.2019 duly communicated to the complainant. There is thus no deficiency in service on the part of respondent/insurance company and the present complaint is therefore liable to be dismissed being without any cause of action.
8.           Further the claim was investigated and the findings of the Accident Reconstruction Report clearly established that the vehicle had sustained damages over different dates and time. The report clearly mentioned that the insured had mentioned that the truck in the front applied sudden brakes due to which the front of the insured vehicle had hit the truck and the rear side of the insured vehicle was dashed by a Bolero Pick Up. But if the fault codes are considered then it is evident that the fault codes for the frontal impact generated does not match with the facts stated by the insured.
9.           The complainants have filed their rejoinder rebutting the contentions raised in the written statements and reiterating the averments contained in the complaint. Both the parties have filed their evidence by way of affidavit in support of their pleadings. Written arguments by both the parties have also been filed.
10. This matter was listed before this Commission for final hearing on 16.12.2020 when the counsel for both sides appeared and advanced their arguments, the complainant for approval of their claim and the OPs for dismissal of the complaint, no case having been made out for the relief claimed.
11.  Short question for adjudication in this complaint is whether there exists any infirmity in the decision of the OPs repudiating the claim preferred by the complainant as a fall out of the accident.
12. The counsel for the complainant alleged that the repudiation done by the OPs on the ground of mis-presentation and concealment of material fact cannot be appreciated in the absence of anything cogent submitting to this effect, nor anything to this effect was contained in the reply. It was at later stage the OP came out with motor accident reconstruction report a reporting that if fault code are considered, then it is evident that the fault codes for the frontal impact generated does not match with the facts stated by the insured.
13. The averment of the OP that the vehicle met with two different accidents at different times on different dates, appears to be without any basis since the OP did not disclose the two dates on which two accidents took place or two different times when the two accidents took place. It did not mention the number of the vehicles which caused two accidents, make of the vehicles which caused two accidents.  The plea of the OP is apparently based on mere guess work which is unsustainable in the absence of any cogent or tangible evidence. If that be the case the argument of the complainant appears to be convincing.
14. Besides the complainant has filed photographs of accident, alongwith his written submissions. The same would clearly show that vehicle met with an accident from front as well as from the back. That leaves no scope for defence taken by OP.
15. The counsel for complainants also argued that the initially surveyor appointed by the OP assessed the loss at Rs.18,91,233/- copy of which is Exbit R/1. Thereafter the OP engaged services of ICS Assure Services Pvt. Ltd. which gave report Exbit-R/5. It is this report which resulted in repudiation of claim. The counsel for the complainant urged that insurance company cannot go on appointing surveyor after surveyor till it gets report favourable.
16. Counsel for the complainant also relied upon decision of the Hon’ble NCDRC in FA no.96/15 titled as Bajaj Allianz General Insurance Company ltd vs. Mukul Aggrawal and others decided on 10.12.19. In the said case in para-21 it was held that minor discrepancy in version of accident given by the driver  regarding injuries to the insurance company or to the police is immaterial. Similarly suppression of the fact that there were three more persons in the vehicle at the time of accident and those persons ran away after the accident which came to light from the statement given by the driver of the third vehicle which was also damaged in the accident, is immaterial. The reason being that complainant did not file claim for injuries suffered by anyone in the incident. The claim relates to the damage done to the vehicle owing to the accident.
17.  The counsel for OP submitted that operation of the aforesaid judgement has been stayed by Hon’ble Supreme Court vide order dated 03.06.2020 passed in SLP (c) no.5911/20 titled as Bajaj Allianz  General Insurance Company Ltd. vs. Mukul Aggarwal copy of which has been filed by her. Stay of operation of the order is effective for the said case only. It does not affect the value of the judgement as a precedent. The judgement has not yet been set aside and continues to be in force for the purpose of precedence.
18.  The counsel for OP also relied upon decision of Hon’ble SC in Venkateshwara Syndicate vs. Oriental Insurance Company Ltd. (2009)  8 SCC 507 to make out that insurance company can appoint second surveyor.
19.  The law laid down in the aforesaid judgement is not disputable.  But the insurance company must give sufficient reasons for appointing second surveyor or third surveyor. In taking this view reliance can be placed on decision of Hon’ble Supreme Court of India in the matter of New India Assurances vs. Protect Manager (2010) 7 SCC 386 and in the matter of United India Insurance vs. Sheila III (2014) CPJ 64 NC holding that there can be no second surveyor primarily with a view to obtain the tailor made report.
20.  It is a trite law that report of a surveyor is an important piece of evidence and court should not differ from the  same unless it is shown that the assessment done by the surveyor is arbitrary or unjustified. No such case has been made out by the complainant.
21. Having regard to the discussion done and the legal position explained, I am of the considered view that the OP is guilty of deficiency in service and if that be the case, the repudiation done by the OP is unjustified. Accordingly the OP is directed to pay Rs.18,91,233/- with interest @6% p.a. from the date of filing the complaint till the date of payment.
22. Ordered accordingly leaving the parties to bear the cost. Directions be complied with within a period of two months from the date of receipt of this order.
23. A copy of this order be forwarded to the parties to the case free of cost as is statutorily required. File be consigned to records.

(ANIL SRIVASTAVA)

MEMBER

PRONOUNCED ON

14.01.2021

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