Punjab

Faridkot

CC/16/170

Lovely Chawla - Complainant(s)

Versus

Bajaj Allianz General Insurance co. - Opp.Party(s)

Rakesh Bhatheja

06 Dec 2016

ORDER

 DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, FARIDKOT

 

Complaint No. :      170

Date of Institution:  16.06.2016

Date of Decision :   06.12.2016

 

Lovely Chawla aged about 32 years, w/o Dalip Chopra r/o Ward No. 4, Near SDP School, Faridkot, Tehsil and District Faridkot.

 ...Complainant

Versus

1. Bajaj Alianz General Insurance Co., Malwal Road, Opposite J&K Bank, Ferozepur City, Ferozepur through its Manager/authorized signatory.

2. Bajaj Alianz General Insurance Co. Ltd, SCO 14, 4^th Floor, Urban Estate, Sector 5, Panchkula through its Manager/authorized signatory.

3. Godawari Motors Pvt Ltd, Hyundai Service Station, Moga-Ludhiana G T Road, Moga through its Manager/authorized signatory.

   .....Opposite Parties

Complaint under Section 12 of the

Consumer Protection Act, 1986.

 

Quorum: Sh. Ajit Aggarwal, President,

               Sh P Singla, Member.

 

Present: Sh Rakesh Bhatheja, Ld Counsel for complainant,

              Sh S K Jain, Ld Counsel for OPs-1&2,

    OP-3 Exparte.

 

(Ajit Aggarwal, President)

                                         Complainant has filed the present complaint under Section 12 of the Consumer Protection Act, 1986 against OPs seeking directions to OPs to make payment of insurance claim on account of accident of vehicle of complainant with interest and for further directing OPs to pay Rs 50,000/- as compensation for deficiency in service, harassment, inconvenience, mental agony and litigation expenses besides Rs.40,000/-as parking charges.

2                                    Briefly stated, the case of the complainant is that i 20 Hyundai car of complainant bearing registration no. PB-29Q1675 was insured with OPs vide Insurance Policy No. OG-16-1213-1801-00000010 for the period from 30.03.2015 to 29.03.2016 on the name of Lovely Chawla w/o Dalip Chopra and during the existence of said policy, vehicle of complainant met with an accident on 6.06.2015 and  sustained loss.  On  8.06.2015, complainant brought the said vehicle to Hyundai Service Station, Moga on payment of towing charges worth Rs.4500/-. Complainant made available all the requisite documents to said Service Station at Moga, who assured to give intimation regarding this to OPs. thereafter, complainant  lodged claim bearing no.OC-16-1203-1801-00001068 with OPs. OPs appointed a Surveyor, who inspected the vehicle and after the mutual discussion and negotiation both complainant and OPs reached at final settlement of Rs.2,53,000/-as claim on “Net Salvage Basis. Out of settled amount of Rs.4,80,000/- Rs.2,25,000/-was to be deducted as salvage and Rs.1000/-as policy excess and Rs.1000/-as additional excess and remaining was to be paid to complainant. In August 2015, complainant received a letter from Hyundai Service Station wherein they demanded Rs.40,000/-as parking charges as OPs did not allow the agency to repair the insured vehicle. Thereafter, complainant approached OPs several times with request to release the settled amount of Rs.2,53,000/-, but to no effect. On 25.08.2015, OPs  issued a letter to complainant asking some queries just to delay and linger on her claim and then, complainant sent reply cum notice dated 1.09.2015 to OPs, but till date, OPs have not made any payment of insurance amount to complainant. Though OPs have admitted the claim of complainant but now, they are deliberately denying to release the payment. All this amounts to deficiency in service and trade mal practice on the part of Ops and it has caused harassment and mental agony to complainant for which she has prayed for directions to Ops to pay Rs.2,53,000/-as insurance claim amount and has also prayed for compensation of Rs 50,000/- and Rs 11,000/- as cost of litigation. Hence, the present complaint.

3                              The counsel for complainant was heard with regard to admission of the complaint and vide order dated 23.06.2016, complaint was admitted and notice was ordered to be issued to the opposite parties.

4                                    On receipt of the notice, OP-1 and 2 filed written statement taking preliminary objections that there is no deficiency in service on the part of answering OPs and it involves intricate questions of law and facts requiring voluminous evidence oral as well as documentary and therefore, it is not possible in summary procedure followed by this Forum. It is asserted that insurance policy is a contract between complainant and OPs and all the parties are bound by its terms and conditions and moreover, complaint filed by complainant is not maintainable as claim of complainant has yet not been repudiated by OPs. It is further submitted that complainant intimated regarding loss occurred in accident after 5 days of its occurrence, thereby, depriving answering OPs to inspect the vehicle on spot to ascertain the facts related to the cause, nature and quantum of loss, which are required to decide the admissibility of claim. This is a violation of condition no. 1 of insurance policy according to which, notice should have been given in writing to the Company immediately upon the occurrence of any accidental loss or damage, but complainant deliberately removed the vehicle from the sport and dismantled the same without any intimation to OPs and without giving them any opportunity to ascertain the real causes of loss. After receipt of complaint, a preliminary report was obtained from which it was observed that damages as alleged are not fresh and are not concurrent with the cause of loss and there are some differences in the vehicle shown in photographs of accidental vehicle. The present claim is a major loss claim and was referred for investigation to find the actual fact. It is further averred that as per statement given by complainant before H S Bedi of Bee Vee Investigation, her brother in law Vijay Chopra was driving the vehicle at the time of accident and  as statement of husband of complainant, Manjinder Singh Khera was the driver of said vehicle, but as per claim form Mr Madan Mohan was driving the vehicle. During this process, Manjinder Singh Khera gave affidavit to the effect that loss is old and insured is trying for fake claim and engine of the vehicle is also changed. Notice to this effect was also given to complainant. Investigation was also done from Zenith Investigator and Verifications through which it came to light that Sarabjit Kaur the original owner gave statement dt 29.01.2016 that she sold the said vehicle in February, 2014 to Maninderjit Singh Khera. As per Investigation Report, particulars given by complainant regarding claim are misleading as accident took place at some other place and on other date and vehicle was got repaired from Abohar. Moreover, complainant has not impleaded Sikander Singh, who disposed of the vehicle in the array of OPs. however, on merits, OP-1 and 2 have denied all the allegations levelled by complainant being wrong and incorrect and reiterated that there is no deficiency in service on their part and prayed for dismissal of present complaint.

5                              OP-3 also filed reply  taking preliminary objections that complaint is not maintainable as there is no deficiency in service on the part of OP-3. Complainant has not come to the Forum with clean hands as it is a misrepresentation of facts and complainant has filed a false, frivolous and vexatious complaint  and no cause of action arises against OP-3 and they have nothing to do with the claim sought by complainant. However, on merits OP-3 admitted that vehicle in question was brought to their Service Station on 8.06.2015 for accidental repair and complainant made available all the documents to them and OP-3 sent the intimation regarding accident to OP-1 and 2 and claim bearing registration no OC-16-1203-1801-00001068 was lodged with Insurance Company. It is also admitted by OP-3 that they sent notice to complainant for parking charges, but have denied all the other allegations levelled by complainant being wrong and incorrect and asserted that whatsoever claim is claimed by complainant, that is all between complainant and OP-1 and 2 and OP-3 has no role to play in it. He further asserted that there is no deficiency in service on the part of OP-3 and prayed for dismissal of complaint with costs.        

6                                               Parties were given proper opportunities to prove their respective case. The complainant tendered in evidence his affidavit Ex.C-1, and documents Ex C-2 to C-13 and then, closed his evidence.

7                                   In order to rebut the evidence of the complainant, OP-1 and 2 tendered in evidence, affidavit of Navjeet Singh as Ex OP-1,2/1 and documents Ex OP-1 & 2/-2 to OP-1 & 2/ 14 and then, closed the evidence.

8                           After filing reply, OP-3 did not appear in the Forum to contest the case and thereafter, vide order dated 1.11.2016, OP-3 was proceeded against exparte.  No evidence of OP-3 is present and therefore, reply filed by OP-3 is considered as arguments advance by them.

9                     The ld Counsel for complainant argued that the complainant is owner of i 20 Hyundai car bearing registration no. PB-29Q1675. This vehicle of complainant was insured with OPs for the period from 30.03.2015 to 29.03.2016 and during the existence of said policy, said vehicle met with an accident on 6.06.2015 and  sustained loss. On  8.06.2015, complainant brought the said vehicle to Hyundai Service Station, Moga on payment of towing charges of Rs.4500/-. Complainant made available all the requisite documents to Service Station at Moga, who assured to give intimation regarding this to OPs and then, complainant  lodged claim with OPs, who appointed a Surveyor to inspect the vehicle and after the mutual discussion and negotiation, both complainant and OPs reached at final settlement of Rs.2,53,000/-as claim on “Net Salvage Basis. Out of settled amount of Rs.4,80,000/- Rs.2,25,000/-was to be deducted as salvage and Rs.1000/-as policy excess and Rs.1000/-as additional excess and remaining was to be paid to complainant. In August 2015, complainant received a letter from Hyundai Service Station wherein they demanded Rs.40,000/-as parking charges as OPs did not allow the agency to repair the insured vehicle. Thereafter, complainant approached OPs several times with request to release the settled amount of Rs.2,53,000/-, but to no effect. On 25.08.2015, OPs  issued a letter to complainant just to delay the claim and then, complainant sent reply cum notice dated 1.09.2015 to OPs, but till date, OPs have not made payment of insurance amount to her. Though OPs have admitted the claim of complainant but now, they are deliberately denying to release the payments. The complainant made many requests to Ops to make payment of insurance claim, but all in vain. All these acts of OPs amount to deficiency in service and trade mal practice on their part. She has prayed for direction to OPs to pay insurance claim alongwith interest and compensation.

10                                        To controvert the arguments of ld counsel for complainant, ld counsel for OPs.1 and 2 asserted that there is no deficiency in service on the part of OP-1 and 2 and present complaint is not maintainable as claim of complainant has yet not been repudiated by OPs. It is further argued that complainant intimated regarding alleged accident after 5 days of its occurrence, thereby, depriving them to inspect the vehicle on spot to ascertain the facts related to the cause, nature and quantum of loss, which are required to decide the admissibility of claim. This is a violation of condition no. 1 of insurance policy according to which, notice should have been given in writing to the Company immediately upon the occurrence of any accidental loss or damage, but complainant deliberately removed the vehicle from the sport and dismantled the same without any intimation to OPs and without giving them any opportunity to ascertain the real causes of loss. After receipt of complaint, a preliminary report was obtained from which it was observed that damages as alleged are not fresh and are not concurrent with the cause of loss and there are some differences in the vehicle shown in photographs of accidental vehicle. The present claim is a major loss claim and was referred for investigation to find the actual fact. It is further averred that as per statement given by complainant before H S Bedi of Bee Vee Investigation, her brother in law Vijay Chopra was driving the vehicle at the time of accident and as statement of husband of complainant, Manjinder Singh Khera was the driver of said vehicle, but as per claim form Mr Madan Mohan was driving the vehicle. During this process, Manjinder Singh Khera gave affidavit to the effect that loss is old and insured is trying for fake claim and engine of the vehicle is also changed. Notice to this effect was also given to complainant. Investigation was also done from Zenith Investigator and Verifications through which it came to light that Sarabjit Kaur the original owner gave statement dt 29.01.2016 that she sold the said vehicle in February, 2014 to Maninderjit Singh Khera. As per Investigation Report, particulars given by complainant regarding claim are misleading as accident took place at some other place and on some other date and vehicle was got repaired from Abohar. Moreover, complainant has not impleaded Sikander Singh, who disposed of the vehicle in the array of OPs. All the other allegations levelled by complainant are refuted being wrong and incorrect and reiterated that there is no deficiency in service on their part.

11                        As per OP-3 complaint is not maintainable as there is no deficiency in service on the part of OP-3 and it is a misrepresentation of facts and complainant has filed a false, frivolous and vexatious complaint  and no cause of action arises against OP-3 and they have nothing to do with the claim sought by complainant. However, it is admitted by OP-3 that vehicle in question was brought to their Service Station on 8.06.2015 for accidental repair and complainant made available all the documents to them and OP-3 sent the intimation regarding accident to Insurance Company and claim bearing registration no OC-16-1203-1801-00001068 was lodged with OP-1 and 2. It is also admitted by OP-3 that they sent notice to complainant for parking charges, but have denied all the other allegations levelled by complainant being wrong and incorrect and asserted that whatsoever claim is sought by complainant, that is all between complainant and OP-1 and 2 and OP-3 has no role to play in it. He further asserted that there is no deficiency in service on the part of OP-3 and prayed for dismissal of complaint.        

12                                           We have heard the learned counsel for the parties and have very carefully gone through the affidavits and documents on the file.

13                            The case of complainant is that her vehicle was insured with OPs, which met with an accident on 6.06.2015 and got damaged. Complainant lodged claim with OPs and after completion of all formalities, claim of complainant was settled on “Net of Salvage Basis” and it was settled between parties that amount of Rs. 2,53,000/-would be given to complainant after deducting Rs. 2,25,000/- as salvage amount, Rs.1000/- as policy excess and Rs.1000/-as additional excess to be deducted from settlement amount of Rs.4,80,000/- and complainant gave consent for the same, but thereafter, OPs started lingering on the matter on one pretext or the other, which amounts to deficiency in service and trade mal practice on their part.  Though OP-1 and 2 have admitted that vehicle in dispute was insured with them, which met with an accident during the insurance period, but they are not making payment of insurance claim on false grounds.

14                                    The ld counsel for complainant produced copy of Consent Letter –Net of Salvage, Ex C-4 wherein it is clearly mentioned that complainant would get Rs.2,53,000/-as full and final payment of her insurance claim from Insurance Company. Ex C-3 also proves the pleading of complainant that he paid Rs.4500/-as towing charges for toeing the vehicle to service station. Ex C-6 Claim Discharge cum Satisfaction Voucher also narrates the story of complainant. Legal Notice Ex C-8 also reiterates the grievance of complainant. On the other hand, ld counsel for OPs admitted that the car in question was insured with them. They further admitted that complainant intimated them regarding damages to her car which are allegedly occurred on 6.06.2015. The claim was intimated after 5 days of alleged loss depriving the OPs from opportunity to inspect the vehicle on spot. Further during the inspection, it was found that vehicle was dismantled without any intimation and without giving any opportunity to inspect the vehicle to ascertain the exact cause of loss and damages. During the processing of claim one Maninderjit Singh Khera lodged complaint with OPs that loss is old one and insured is trying for fake claim. Investigator has recorded the statement of Maninderjit Singh Khera who has also filed his affidavit that loss is old and is not genuine and engine of the vehicle has also been changed. On it, preliminary report was obtained from Capital Risk Management Company,  on going through report dt 1.09.2015, it is observed that damages as alleged are not fresh and are not confirmed with the loss. There are differences in the vehicle shown  in the photographs and actual vehicle. The report of Capital Risk Management Company is Ex OP-1, 2/3. As per statement of complainant given to H S Bedi Investigator of Bee Vee Investigation Agency, she stated that her brother in law Vijay Chopra was driving the vehicle at the time of accident and as per statement of Dalip Chopra/husband of complainant the vehicle was being driven by Maninderjit Singh Khera, whereas as per Claim Form Mr Madan Mohan was driving the vehicle. Copy of the report of Bee Vee Investigation Agency dated 23.01.2016 is Ex OP-1, 2/7. Investigation was also conducted by Zenith Investigations and Verifications by which it came to light that Sarabjit Kaur the original owner of the vehicle gave statement that vehicle was sold by her in February, 2014 to Maninderjit Singh Khera. Copy of her statement dated 29.01.2016 and report of Zenith Investigations and Verifications dt 1.02.2016 is Ex OP-1,2/6. As per observations of Surveyor and Investigation Reports, the loss to the vehicle is old one. Further vehicle was already dismantled without giving any opportunity to OPs to ascertain the exact cause of loss, nature and quantum of loss. As per terms and conditions of the Insurance Policy,  the intimation should be given in writing to the Company immediately upon the occurrence of any accident. The vehicle was removed from the spot of accident without intimating the OPs and without their consent. In the investigation, it is found that particulars given by the complainant regarding claim are misleading and looking into the condition of the  damaged parts of car, it is observed that accident has occurred at some other place and at some other date. So, in above such circumstances, it is clear that accident as reported by complainant was never occurred on the same day, rather it occurred much prior to the date given in claim form. The OPs sent letters to complainant seeking queries regarding her claim but she gave no reply and thus, complainant is not entitled to any compensation for loss to her vehicle and present complaint may be dismissed.

15                            Ld Counsel for complainant argued that there is no delay in the intimation regarding accident to OPs. it is wrong that alleged accident occurred much prior to 6.06.2015 as alleged by complainant. She immediately reported regarding the incident to OPs and on their direction, she took the vehicle at Service Station of OP-3. The Surveyor of OPs duly inspected the vehicle and assessed it as total loss and settled the loss on Net of Salvage Basis for total amount of Rs.4,80,000/-. Out of it, the value of salvage was assessed as 2,25,000/- and after deducting the amount of excess clause from settled amount, it was settled for Rs.2,53,000/-to be paid to complainant payable by OPs. the complainant duly gave his consent for the same but lateron to avoid the payment of claim, they set up false story in connivance with Maninderjit Singh Khera, who was earlier a business partner with husband of complainant and later on there arose some dispute between them and now there are number of case pending in Civil and Criminal Courts between Maninderjit Singh Khera and husband of complainant Dalip Chopra and his brother Vinod Chopra and due to this enmity, to cause financial loss to complainant, Maninderjit Singh Khera made false complaint before OPs and set up a false story regarding prior loss to the vehicle. Objection of Ops is that there is mis-matching in the statements regarding the person driving the vehicle at the time of accident. Ops allege that as per statement of complainant, at the time of accident, vehicle was being driven by her brother in law Vinod Chopra, whereas as per statement of Dalip Chopra, at the time of accident vehicle was driven by Maninderjit Singh Khera and in the claim form it is mentioned that at the time of accident, vehicle was driven by Madan Mohan. To prove this, they produced copy of Investigation Report conducted by Capital Risk Management Company, who recorded the statements of parties. As per report of Capital Risk Management Company and statement of complainant, vehicle in question was borrowed by Maninderjit Singh Khera from her husband, who returned the vehicle to Vinod Chopra on 6.06.2015, when at night Vinod Chopra was returning to his home, in the way, the vehicle met with an accident. The Dalip Chopra, husband of complainant has also given statement to this effect. Even Vinod Chopra also gave statement to the Investigator stating the same fact. The allegations of OPs that in the claim form, the name of driver is mentioned as Madan Mohan whereas in claim intimation form, which was produced by Ops themselves, it is clearly mentioned the name of driver Vinod Chopra son of Madan Mohan. So, there is no discrepancy regarding driver at the time of accident of vehicle.

16                         Other objection of OPs is that the vehicle met with an accident and damaged much prior from the 6.06.2016, as alleged to be occurred by complainant. They argued that as per statements of Maninderjit Singh Khera, Bee Vee Investigations and Verifications Agency, the alleged accident occurred in Jan, 2015 and complainant wanted to get claim for the loss to her vehicle by reporting the date of accident as 6.06.2016. They further argued that in the Investigation conducted by OPs, it is found that the alleged damages are not fresh and damaged parts got rusted which prove that car met with accident much prior from the intimation of incident. To prove this fact, they relied on Investigation Report dated 1.09.2015 submitted by Capital Risk Management Company, copy of which is Ex OP-1, 2/3 and report dated 23.01.2016 of Bee Vee Investigating Agency Ex OP-1, 2/7. Admittedly, as per complainant the vehicle got damaged on 6.06.2015 whereas these Investigation Reports were prepared in September 2015 and January, 2016 respectively i.e about 3 months and 7 months later to the alleged loss reported by complainant. It is natural that with the passage of time the damaged parts got rusted and had dust over them and loss obviously did not observe to be as fresh one. Moreover, the OPs appointed a Surveyor to assess the loss to the vehicle immediately after receiving the intimation from complainant who inspected the vehicle and assessed loss as total loss and settled it on Net of Salvage Basis but did not produce the Survey Report of this Surveyor who inspected the vehicle immediately after intimation by complainant which can clear the picture that whether the loss was old one or fresh. Further it is not denied by OPs that prior to insurance policy in dispute, the car was insured for previous year also with them and that insurance continued for the next year. There is no breakage in the insurance and it is still continue with OPs. Moreover, in the Investigation Report dated 1.09.2015 conducted by Capital Risk Management Company, they duly mentioned in Pre-inspection Photos & Documents “Endorsement To Policy No.OG-15-1213-1801-00000124-EN03 was made on 4.03.2015 And Inspection Note Alongwith Photographs Attached. From it, it is clear that at the time of issuance of policy, the OPs conducted pre inspection of the vehicle in dispute and in that investigation they found vehicle in good condition and then how can they allege now that vehicle met with an accident in January, 2015. Moreover, when admittedly even in January, 2015, vehicle was fully insured  with OPs then, what is the fun for complainant not to intimate regarding loss at that time to OPs and for seeking claim for the loss of vehicle why she waited for about 5 months and got re-newed the insurance policy for fresh period by paying fresh premium even for  lesser insured value on depreciation amount. Further the ld counsel for OPs argued that during their investigation conducted by Zenith Investigation and Verification Agency, Sarabjit Kaur the previous owner of the vehicle in question stated that she sold this car in February, 2014 to Maninderjit Singh Khera, copy of report is Ex OP-1 & 2/6. It is not disputed that car in question is registered as owner in the name of complainant Lovely Chabbra with Transport Authority. The OPs insured the vehicle in question admittedly in the name of complainant as owner. The complainant is in possession of vehicle then, how can they challenge the ownership of vehicle at this stage.

17                               From the above discussion, we are of considered opinion that OP-1 and 2 have failed to prove that car of complainant was damaged in accident prior to issuance of insurance policy and she filed false claim with them stating wrong date of loss. Ops have failed to prove their allegations. Hence, present complaint in hand is hereby allowed against OP-1 and 2 and stands dismissed against OP-3. OP-1 and 2 are directed to make payment of Rs.2,53,000/- as settled by them on Net of Salvage Basis to complainant alongwith interest at the rate of 9 % per anum from 3.03.2016, when they repudiated the claim of complainant vide their letter Ex C-12 till final realization. OP-1 and 2 are also directed to pay Rs.3000/- to complainant as litigation expenses. Compliance of this order be made within one month of receipt of the copy of the order, failing which complainant shall be entitled to proceed under section 25 and 27 of the Consumer Protection Act. Copy of order be given to parties free of cost under rules. File be consigned to record room.

Announced in Open Forum

Dated : 6.12.2016         

                                       Member                  President

                   (P Singla)              (Ajit Aggarwal)