Haryana

Karnal

CC/169/2019

Pawan Kumar - Complainant(s)

Versus

Bajaj Allianz General Insurance Company Limited - Opp.Party(s)

Naveen Bansal

11 Feb 2021

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, KARNAL.

 

                                                         Complaint No.169 of 2019

                                                        Date of instt. 26.03.2019

                                                        Date of decision 11.02.2021

 

Pawan Kumar aged 32 years son of Shri Ram Saran, resident of village Mangalpur, District Karnal. Aadhar no.397620386020. Phone no.9992454259.

…….Complainant       

                                        Versus

 

Bajaj Allianz General Insurance Company Ltd., through its authorized signatory, office at: 156-159, 2^nd floor, Sector-9-C, Chandigarh registered and Head office: GE Plaza Airport Road, Yerawada, Pune-411006.

Local Office: SCO-226, 1^st & 2^nd floor, Sector-12, Karnal, Haryana.

 

…..Opposite Party.

 

       Complaint u/s 12 of the Consumer Protection Act, 1986.              

 

Before   Sh. Jaswant Singh……President.       

      Sh.Vineet Kaushik ………..Member

              Dr. Rekha Chaudhary……Member

 

 Present: Shri Vinay Bansal Advocate for complainant.

                Shri Rohit Gupta Advocate for opposite party.

               

                (Jaswant Singh President)

ORDER:                    

 

                This complaint has been filed by the complainant u/s 12 of the Consumer Protection Act 1986 on the averments that on 16.03.2018 complainant purchased a Car, Marka ‘DATSUN REDI-GO’S bearing registration no.HR-05-AY-9436 from Malwa Car Zone Pvt. Ltd. by taking financial assistance from MAGMA PIN CORP. Ltd. Karnal. The said car was got insured from the opposite party (hereinafter referred as to OP), vide policy no.NBA/MI042496 w.e.f. 16.03.2018 to 15.03.2019. On 30.06.2018, one Roshan Lal son of Karam Chand, by borrowing the vehicle in question from the complainant was going to Sector-6, from his house by the abovesaid car and when the said car reached near Udham Singh Chowk, the stray cow came in front of the Car and to avoid the accident, the car of the complainant climbed on the divider of the Road and turned turtle and as such, the car of the complainant became damaged. The damaged vehicle was parked at nearby place and the information was sent to the police and the police of P.P.Sector-9, Karnal recorded the DDR no.4 dated 02.07.2018 in this regard. Complainant informed about the abovesaid accident to the OP immediately and the damaged vehicle was taken to Malwa Car Zone Pvt. Ltd. G.T. Road, Karnal, as per directions of the OP and the surveyor appointed by the OP reached there and inspected the vehicle in question. The complainant showed all the documents pertaining to the vehicle to the surveyor, whereupon, the surveyor of the company told to the complainant that firstly, the estimate of loss to the vehicle will be prepared and thereafter, the vehicle will be repaired. The surveyor and the other officials of the OP directed the complainant to submit all the documents and the signatures of the complainant was also obtained on so many blank papers and printed papers, in order to complete the process of the claim. Thereafter, the estimate of loss was prepared on 29.07.2018 and the Service Request Form was prepared and handed over to the complainant on 30.07.2018. Complainant was directed to contact with the officials of the OP. The complainant immediately after collecting the documents reached to the office of the OP and enquired about the further process of claim. The complainant visited the office of the OP several times and enquired about the process of claim. When the complainant lastly visited in the month of March, 2019, they openly proclaimed that the claim of the complainant has been repudiated, vide letter dated 23.08.2018 and the same has been sent to the postal address of the complainant.

3.              Further, due to this illegal act and conduct of the OP, the complainant suffered huge financial losses, as due to the non-deciding the claim of the complainant, the vehicle of the complainant has been totally damaged and even the official of M/s Malwa Carzone Pvt. Ltd. are seeking huge amount, as parking charges, on the daily basis from the complainant and the complainant has suffered losses to the tune of Rs.3,65,741/- as estimated by the said Malwa Carzone Pvt. Ltd. as per the assessment of Insurance Surveyor. By not granting the claim of insurance and by not getting the vehicle of complainant repaired, the OP has committed great deficiency in service. Hence complainant filed the present complaint.

4.             Notice of the complaint was given to the OP, who appeared and filed written version raising preliminary objections with regard to jurisdiction; cause of action and concealment of true and material facts. On merits, it is pleaded that the policy of insurance was issued from Jalandhar and the claim of the complainant was processed & stands repudiated by the OP-Bajaj General Insurance Co. Ltd. from Chandigarh/Pune, where the OP is having its office. OP is having no branch office at Karnal as alleged, as such the present complaint is not maintainable before this Commission, for want of territorial jurisdiction and the present complaint deserves to be returned back to the complainant for want of territorial jurisdiction. The claim of the complainant was duly processed by Bajaj Allianz General Insurance Co. Ltd. by way of appointment of an IRDA approved independent surveyor & Loss Assessor Mr. Ajay Mahajan for conducting the preliminary survey and provisional assessment of loss of vehicle bearing no.HR-05-AY-9436 who has conducted the preliminary survey, assessed the provisional loss and submitted Provisional Survey Report dated 03.08.2018 and Grover Associates for the investigation of the claim. The spot opportunity was not provided and there was a delay in intimation of the loss, manipulation of the date of loss appears to have been affected as per the report of the investigator. Further, the insured has failed to provide any TP loss details, injury records.

5.             Further, as per the investigations report it was found that the DDR was lodged on 02.07.2018 vide number 4 but copy of police report was not provided. Car was not registered and the insured managed to get it registered somehow and intimated the new date of loss. As per the visit, it was found that car was lying in a damaged condition in a garage, and there is a change in date of loss.

6.             Further, while during the investigation it was also found out that the vehicle had been parked in a petrol pump on 14.06.2018 in accidental condition and as per the experiment testing of rust the same appeared to be prior to 2 months from the investigation. Whilst the driver change factum was also suspected as the insured was not having a valid driving licence and the insured gave license of the Relative stating he was driving.

7.             Further, as per the survey report it had been observed that the vehicle was in a rusted condition, no medical records submitted. The defect in the date of accident becomes evident from the fact that as per the statement of the insured in the investigation report the accident occurred on 28.05.2018 while as per the claim form the date is 30.06.2018 also as per the loss report to the underwriters is on 01.08.2018 after 1.5 months and the deal of purchase from the dealer on 16.03.2018 and was insured on the same date but the vehicle (as per statement to the investigator met with accident on 28.05.2018) after 2 months 12 days, that means temporary RC was expired and he managed to get it registered with RTO lateron.

8.             Further, after seeing the complexity of claim the investigator, who has submitted the investigation report. The claim of the complainant stands repudiated vide letter dated 03.10.2018 by the OP since the complainant has failed to respond and submit any reply to the letters dated 29.08.2018 and 06.09.2018.

9.             Further, vide letter dated 06.09.2018 the complainant was requested/reminded by Bajaj Allianz to respond to, as to why he deliberately removed the vehicle from the spot of accident without intimating to the OP as the OP was deprived of the opportunity to ascertain the necessary facts as to cause of loss. It was further observed as per Query no.2 of the letter that there was delay in intimation of 32 days after the loss, which is contrary to the terms of the policy. It is further pleaded that temporary RC was expired at the time of accident and complainant has violated the terms and conditions Section 39 of Motor Vehicles Act. Hence, there is no deficiency in service on the part of the OP. The other allegations made in the complaint have been denied and prayed for dismissal of the complaint.

10.           Complainant tendered into evidence his affidavit Ex.CW1/A, Temporary R.C. Ex.C1, copy of R.C. Ex.C2, insurance policy Ex.C3, copy of DDR Ex.C4, estimate of low Ex.C5, request from Ex.C6 and closed the evidence on 03.02.2020, vide separate statement.

11.           On the other hand, OP tendered into evidence affidavit of Saurav Khullar, Senior Executive Ex.OP1/A, repudiation letter dated 03.10.2018 Ex.OP1, sheet dispatch Ex.OP2, letter dated 06.09.2018 Ex.OP3, letter dated 29.08.2018 Ex.OP4, dispatch sheet Ex.OP5, letter dated 23.08.2018 Ex.OP6, dispatch sheet Ex.OP7, provisional survey report Ex.OP8, approval sheet Ex.OP8/A, photographs Ex.OP8/B, investigation report Ex.OP9, claim from Ex.OP10, statement of Pawan Kumar Ex.OP11 and closed the evidence on 02.12.2020, vide separate statement.

12.           We have heard the learned counsel of both the parties and perused the case file carefully and have also gone through the evidence led by the parties.

13.           Learned counsel of complainant argued that on 16.03.2018 complainant purchased a Car, Marka ‘DATSUN REDI-GO’S bearing registration no.HR-05-AY-9436 from Malwa Car Zone Pvt. Ltd. by taking financial assistance from MAGMA PIN CORP. Ltd. Karnal. The said car was got insured from the OP. On 30.06.2018 the said car met with an accident and badly damaged. An information was sent to the police and the police of P.P.Sector-9, Karnal recorded the DDR no.4 dated 02.07.2018 in this regard. Complainant immediately informed about the abovesaid accident to the OP and the damaged vehicle was taken to Malwa Car Zone Pvt. Ltd. G.T. Road, Karnal, as per directions of the OP and the surveyor appointed by the OP. The complainant submitted all the documents to OP including his signatures on some blank and printed papers in order to complete the process of the claim. Thereafter, complainant visited the office of OP several times and enquired about the process of claim. Lastly, the claim of the complainant has been repudiated, vide letter dated 23.08.2018 without any cogent reason. Learned counsel of complainant prayed for allowing the complaint.

14.           Per-contra, learned counsel for OP argued that this Commission has no territorial jurisdiction to try the present complaint because policy of insurance was issued from Jalandhar and the claim of the complainant was processed & stands repudiated by the OP-Bajaj General Insurance Co. Ltd. from Chandigarh/Pune. It is further argued that claim of the complainant was duly processed by Bajaj Allianz General Insurance Co. Ltd. by way of appointment of an IRDA approved independent surveyor & Loss Assessor Mr. Ajay Mahajan for conducting the preliminary survey and provisional assessment of loss, who has conducted the preliminary survey, assessed the provisional loss and submitted Provisional Survey Report dated 03.08.2018. It is further argued that spot opportunity was not provided and there was a delay in intimation of the loss, manipulation of the date of loss appears to have been affected as per the report of the investigator. The insured has failed to provide any TP loss details, injury records. As per the investigations report it was found that the DDR was lodged on 02.07.2018. It is further argued that during the investigation it was also found out that the vehicle had been parked in a petrol pump on 14.06.2018 in accidental condition and as per the experiment testing of rust the same appeared to be prior to 2 months from the investigation. It is further argued that complainant did not submit documents related to details of loss to third party involved in the accident, details of injuries sustained by the driver. It is further argued that as per statement to the investigator vehicle in question met with accident on 28.05.2018 after 2 months 12 days, that means temporary RC was expired and the complainant’s act of driving the motor vehicle without registration certificate was a violation of Section 39 of Motor Vehicles Act.  Hence, prayed for dismissal of the complaint with heavy cost.

15.           Admittedly the accident took place during the subsistence of the insurance policy. The complainant lodged his claim with the OP, which as been repudiated by OP, vide repudiated letter dated 03.10.2018 Ex.OP1 on the following grounds:-

1.  The vehicle in question removed from the spot without intimation to the OP and deprived the opportunity to ascertain the necessary facts.

2.     There is delay of 32 days in intimation to the OP with regard to accident.

3.    As per claim intimation, DDR and claim form the accident took place on 30.06.2018, whereas written statement submitted by the complainant, it has been found that vehicle met with accident on 28.05.2018.

16.           Learned counsel of OP has taken a plea that this Commission has no territorial jurisdiction to decide the present complaint as the policy in question has been issued from Jalandhar and the claim of the complainant was processed & stands repudiated by the OP-Bajaj General Insurance Co. Ltd. from Chandigarh/Pune.  This plea of OP, has no force because the accident took place at Karnal. Hence, the cause of action has arisen at Karnal. Thus, this Commission has jurisdiction to decide the present complaint.

17.           First ground for repudiation of the claim of complainant is that the vehicle has been removed from the spot without intimation to the OP. The complainant intimated the OP immediately after the accident. The accidental spot is a very busy road, so the vehicle in question removed from the spot on the direction of the surveyor of the OP then how can OP takes such plea lateron. In this regard we are of the considered opinion that claim of the complainant cannot repudiated in toto on this alone ground.

18.           Second ground for repudiation of the claim of the OP that there was 32 days delay to intimate the claim. The OP had written two letters to the complainant. This plea negated on seeing the contradictory letters dated 23.08.2018 and 29.02.2018 of OP Ex.OP6 and Ex.OP4 in which delay mentioned is of 8 days and 32 days respectively. Thus, OP failed to stand on their own legs and OP himself is not confirmed regarding intimation of delay. Thus, this plea taken by the OP, has no force. Moreover, DDR was recorded on the very next day.

19.           The third ground of repudiation is that as per the DDR and claim from the vehicle met with an accident on 30.06.2018 but as per written statement of the complainant it has been found that vehicle met with accident on 28.05.2018. There is contradiction regarding the date of accident and complainant violated the terms and conditions of the policy. During the course of arguments learned counsel of complainant submitted that complainant has never submitted the written statement as alleged by OP. The onus lies upon the OP to prove this plea but OP failed to prove his version by leading any cogent and convincing evidence.

20.           The other plea taken by the OP is that vehicle had been parked at petrol pump on 14.06.2018 in an accidental condition and as per the experiment testing of rust the same appeared to be prior to 2 months from the date of investigation. The onus to prove this fact was upon the OP, but in order to prove the aforesaid plea the OP had not even examined a single employee who was working at the petrol pump where the vehicle in question was allegedly parked. With regard to the plea that rust appeared on the vehicle in question, is two months prior to the investigation,  there is no science from which it can be calculated that the rust which appeared to be on the vehicle in question is of two months old. The rust may appear on a vehicle in one or two days due to pollution. Furthermore, if a person does not clean/wash his vehicle, in that case also, the vehicle appears to be full of rust. Therefore, the plea taken by the OP, has no force.

 21.          No doubt, complainant removed the vehicle in question from the spot without spot inspection done by the surveyor of the OP and thus complainant deprived the right of the OP to ascertain the necessary facts. In this regard we are relying upon the authorities titled as New India Assurance Co. Ltd. Versus Thirath Singh Brar in Revision Petition no.1870 of 2015(NC) decided on 14.08.2018 and authority of our own Hon’ble State Commission titled as United India Insurance Company Limited and others Versus Anshul Bansal in First Appeal no.717 of 2016 decided on 6.4.2017  and Amalendu Sahoo Vs. Oriental Insurance Co. Ltd. II(2010) CPJ 9 (SC).  In all judgments it was held that in case of any breach of warranty/condition of the policy the insurer is liable to pay 75% of admissible claim on non-standard basis.

22.           The proposition of law laid down by Hon’ble  Supreme Court, Hon’ble National Commission and Hon’ble State Commission Haryana is fully applicable to the facts of the present case. In the present case complainant violated the terms of the policy regarding delay in intimation to the OP but the complainant lodged the DDR on the same day. Consequently, the complainant is held entitled to get 75% of the insured amount.

23.           Keeping in view the findings in the above authorities, we are of the considered view that there is no inordinate delay in giving intimation to the OPs. Therefore, in view of the proposition of law laid down by the Hon’ble Supreme Court, complainant is entitled to get 75% only of the admissible claim. Therefore, in view of the above facts and circumstances of the case, we are of the considered view that the OP has committed a mistake in repudiating the claim of the complainant in toto. Hence, the act of OP while repudiating the claim of complainant amounts to deficiency in service and unfair trade practice, which is otherwise proved genuine one. 

24.           Complainant produced the estimate given by the Malwa Carzone Pvt. Ltd. to the tune of Rs.3,65,741/- as Ex.C5 but as per insurance policy Ex.C3 the insured declared value (IDV) of the vehicle in question is to the tune of Rs.3,42,451/-. The estimated cost is more than the IDV. Hence, complainant is entitled for 75% of the insured amount alongwith compensation and litigation expenses.

25.           Thus, as a sequel to abovesaid discussion, we allow the present complaint partly and direct the OP to pay Rs.2,56,838/- (75% of the insured amount) to the complainant with interest @ 9% per annum from the date of repudiation of the claim till its realization. We further direct the OP to pay Rs.20,000/- to the complainant on account of mental agony and harassment suffered by him and Rs. 11,000/- for the litigation expenses. This order shall be complied within 45 days from the receipt of copy of this order. The parties concerned be communicated the order accordingly, and the file be consigned to the record room, after due compliance.

Announced

Dated: 11.02.2021                                                                    

                                                                      President,

                                                      District Consumer Disputes

                                                      Redressal Commission, Karnal.

 

 

         (Vineet Kaushik)               (Dr. Rekha Chaudhary)

            Member                              Member