This case arose out of application U/s 35 of the Consumer Protection Act, 2019.
The case of the complainant is that he is the registered owner of vehicle bearing No:WB06A/0505 (Maruti Swift Dzire VDI), insured with Bajaj Allianz General Insurance Limited (in short O.P/Insurance Company) vide Policy No:OG-21-2414-1801-00000918.
That on 08.04.2021 at about 6:00 pm when the said vehicle proceeded towards Mohiniganj from Raiganj, on the way said vehicle suddenly caught fire in engine due to technical or mechanical problem, immediately vehicle stopped on road side and local people safe them and extinguished the fire and vehicle was partly damaged but fortunately the complainant and his co-rider of the vehicle has not received body injury.
That on 11.04.2020 complainant filed a written complaint before Bhatol Police camp under Raiganj P.S as well as on 09.04.2021 informed the matter through telephone to O.Ps and thereafter complainant produced connecting papers and claimed before the O.Ps.
That after receiving information O.P’s Surveyor Mr. Jayram Das came for survey and assessment of loss as well as visit garage or showroom: therefore instructed the complainant to repair the damaged vehicle and produce all the bills. Complainant got his vehicle repaired spending Rs.268405/-.
That after lapse of several times neither O.Ps paid complainant’s claim nor informed any reason. When complainant meet with O.P.No-2 & 3, O.P.No-2 said the loss of estimated damage amount is extremely high so we verify again and for that need some time more & O.P.No-3 said that they could not process the claim due to complainant’s fault.
That on 22.06.2021 O.Ps informed the complainant that “there was mis-representation of material fact was found” and thus did not pay any claim and repudiated complainant’s claim on 30.06.2021. Due to the negligent acts complainant filed this case for getting Rs.2,68,405/- as damage claim amount + interest, compensation of Rs.1,00,000/- & litigation cost of Rs.10,000/-.
O.P.No:3 did not contest the case and case is heard ex-parte against him.
O.P.No-1 & 2 contested the case by filing written version admitting complainant’s ownership of the vehicle, insurance with O.P Insurance Company with coverage for the period from 15.12.2020 to 14.12.2021 subject to terms, conditions and exclusions mentioned in the insurance policy.
That upon intimation from the complainant about the damage of said insured vehicle O.P/Insurance Company duly registered the claim.
That the complainant informed the O.P/Insurance Company on 05.05.2021 in long days delay after the alleged accident and also delay to lodge F.I.R in concerned Police Authority on 11.04.2021 which is contravention of both the terms & conditions of the insurance policy & Motor Vehicle Act.
That the complainant did not inform said matter to the nearest Fire Brigade station within stipulate time after the incident, which is mandatory to process the insurance claim in regard to any property damage caused by fire accident on road or anywhere and the complainant has violated the norms of insurance policy and he is not entitled to get any claim.
That O.P/Insurance Company deputed a Surveyor to assess the said alleged damaged vehicle of the complainant and also investigate alleged incident in details.
That it is found there is mis-match between the statement of complainant and his brother in regard to said incident which shows that the complainant is trying to suppress the actual fact of alleged accident so he is not entitled to get claim, as per policy general exclusion so the claim was repudiated. There was no deficiency of service so the complaint is liable to be dismissed.
Point for consideration
- Whether there was any deficiency of service on the part of O.P/Insurance Company which gives rise cause of action of the case?
- Whether the complainant is entitled to get the relief(s) claimed in the petition of complaint?
D e c i s i o n w i t h r e a s o n s
Admittedly, the complainant is the registered owner of vehicle bearing No:WB06A/0505 (Maruti Swift Dzire VDI), insured with Bajaj Allianz General Insurance Limited (in short O.P/Insurance Company) vide Private Car Package Policy No:OG-21-2414-1801-00000918, for the period from 15.12.2020 to 14.12.202 subject to terms, conditions and exclusions mentioned in the insurance policy.
The case and evidence of the complainant is that on 08.04.2021 at about 6:00 pm when the said vehicle proceeded towards Mohiniganj from Raiganj, on the way said vehicle suddenly caught fire in engine due to technical or mechanical problem, immediately vehicle stopped on road side and local people safe them and extinguished the fire and vehicle was partly damaged but fortunately the complainant and his co-rider of the vehicle has not received body injury.
Dispute exits as to date of intimation of the accident. According to complainant on 09.04.2021 it was informed through telephone to the O.Ps & written complaint was also filed before Bhatol Police Camp under Raiganj Police Station on 11.04.2020 (actually on 11.04.2021).
It is admitted that upon intimation from the complainant about the said alleged accident for which damage caused to the vehicle of the complainant, O.P/Insurance Company registered the claim and deputed Surveyor Mr. Jayram Das to assess alleged damaged vehicle who commented that “found damages are consistent with cause of loss.” As per ILM Report insured trying to hide actual matter and mis-represent all fact. Another Surveyor Dibakar Mondal gave same comment.
ILM done by adhikaryassociates@investigator.com and also investigate alleged incident in details, who commented that-there is a mis-match of the date or time of loss. As per police intimation, statement and claim form insured was alone in the vehicle whereas as per Google time line, insured was not present at the spot. He was out of station for one month as per documentary information. Misrepresentation of fact. As per one documentary information Gopen Roy (brother of Bimal Roy) along with his son Sanjay was present at the spot. Mismatch of occupant. As per one documentary information at the time of loss insured’s brother Gopen Roy was driving the said vehicle. Mismatch of driver. In spite of a huge burning of the car happened, insured/Representative did not call Fire Brigade and unable to provide Fire Brigade report, which is mandatory to know the root cause of fire. Reasons stated by insured that as the Fire Brigade phone number was busy so unable to call Fire Brigade which is not acceptable/not justified.
Settled position of Law is-A person may lie but a document can’t. Whatever Gopen Roy stated that said vehicle was parked in front of his house at Mahiniganj Hat on 01.04.2021 and suddenly caught fire in the car and Bimal Roy owner of the car (his brother) was out of station for nearly a month cannot stand as against the documentary evidence.
Whatever Bimal Roy stated in his complaint petition and in F.I.R lodged dated 11.04.2021 at Bhatol outpost under Raiganj Police station that at the time of said accident i.e 08.04.2021 complainant himself was driving the said vehicle and coming from Raiganj to Mohiniganj and damaged the said vehicle for alleged catching on fire, supported by documentary evidence. G.D.E No:94, dated 11.04.2021 corroborated said statement of complainant as correct.
Complainant/P.W.1 denied that on 01.04.2021/02.04.2021 Gopen Roy was driving said vehicle and at that time he had no valid driving license. The argument advanced by Ld. Advocate of Insurance Company relying on the report of Surveyor/Investigator that Gopen Roy was driving the said vehicle and his son Sanjay was also present, adding further that as Gopen Roy had no valid driving license, the complainant having valid driving license came into picture & did everything. As P.W.1 specifically denied the same and documents mentioned above corroborate complainant’s case, the burden shifted to O.P/Insurance Company to disprove the same by cogent evidence but O.P side has failed to discharge the onus.
Though O.P/Insurance Company stated that they received intimation on 05.05.2021 but Claim Summary Sheet submitted by O.P/Insurance Company depicts date of intimation 09.04.2021. The G.D.E No:94 , dated 11.04.2021 which was lodged for the accident dated 08.04.2021 do not contravene the terms and conditions of insurance policy and provision of M.V.Act.
Admittedly the complainant did not inform the said matter to the nearest Fire Brigade station in time. The explanation given by him that as the Fire Brigade phone number was busy so he was unable to call Fire Brigade. Such explanation which was not acceptable/not justified to the investigator, in our considered view not proper.
The complainant’s case is that the Surveyor instructed him to repair the damaged vehicle and produce all the bills. No written instruction is produced by the complainant so whatever he spent i.e Rs.2,68,405/- for repairing of the damaged vehicle, done at his own wish and risk.
Letter dated 22.06.2021 of O.P/Insurance Company for date of loss 08.04.2021 runs as:-
You had lodged an intimation of accident your above vehicle to our Call Centre on 09.04.2021 and we had appointed Jayram Das Surveyor, for survey and assessment of loss.
On perusal of the report submitted by the Surveyor, it is observed that:
Fire originated from Ihs headlamp, bulb used in higher wattage 100/90 without upgrading proper wiring, in place of 60/55 W which is oem spec.
Therefore, we unable to process your claim further so kindly let us know within 07 days as to why your cliam should not be repudiated due to the above reasons.
It is not disputed that the O.Ps informed the complainant his claim was repudiated, on 30.06.2021 as stated in the complaint petition or on other date it might be.
Be that as it may, fact remains the engine of vehicle No:-W.B06A/0505 of the complainant caught on fire on 08.04.2021 due to technical or mechanical fault causing damage to the vehicle. The burden lies on O.P/Insurance Company that such incident happened due to installation of high power bulb (100/90)instead of 60/55W, as the complainant denied the same, but the O.P/Insurance Company is unable to prove its case by cogent evidence and failed to discharge the onus too. So we are of the considered view that the complainant is entitled to get repairing cost & repudiation held improper.
Next we are to consider what would be the repairing cost. As per Terms & Conditions of the policy the insured/complainant has to secure written instruction from the insurer for repairing the vehicle. No such document is produced by the complainant, rather he at his own took the damaged vehicle to a garage, namely, Sujan Body Garrage, Raiganj, which is an unemployed motor engineering works not authorized by the insurer. The estimate given by said garage shows Rs.2,68,405/-. We are of considered view that the complainant is not entitled to get said amount, being unauthorized, rather he at least may get Rs.1,39,263/- as Net Assessed Amount (Parts & Labor) as assessed by authorized Surveyor/Investigator. The complainant is not entitled to get any amount as interest, compensation and litigation cost for mis-representation & mis-leading facts, as recorded by the investigator and for not reporting the incident in written to the local Fire Brigade Station, in time.
In the result the case succeeds.
Hence, it is
O R D E R E D
that the C.C-24/2021 be and the same is allowed in part on contest against the O.P.No-1 & 2 and ex-parte against O.P.No-3 but without any cost.
We do direct O.P.No-1 & 2 to pay Rs.1,39,263/- to the complainant within 01 month from the date of order, in default, it shall carry interest @6% p.a from the date of order till realization in full and the complainant is at liberty to put the decree in execution.
Let a copy of this order be given to the parties free of cost.
