Haryana

Panchkula

CC/115/2015

CHARANJIT SINGH. - Complainant(s)

Versus

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

VIKRAM TANDON.

31 Dec 2015

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM,  PANCHKULA.

                                                    

Consumer Complaint No	:	115 of 2015
Date of Institution	:	22.06.2015
Date of Decision	:	31.12.2015

                                                                                          

Charanjit Singh s/o Sh.Harmail Singh, R/o H.No.522/2, Sector 45-A, Chandigarh through attorney Sh.Jaipal Kamia s/o Sh.Munge Ram, R/o 2030, Village Burail, Sector-45, Chandigarh.

 

                                                                                      ….Complainant

Versus

 

1.       Bajaj Allianz General Insurance Co. Ltd., SCO No.329, 1^st Floor, Sector-9, Panchkula-160055 through its Branch Manager.

2.       Ultimate Automobiles Pvt. Ltd., 355, Industrial Area, Phase-II, Panchkula-134109 through its owner/Manager.

                                                                      ….Opposite Parties

 

COMPLAINT UNDER SEC. 12 OF THE CONSUMER PROTECTION ACT, 1986.

 

Before:                 Mr.Dharam Pal, President.

              Mrs.Anita Kapoor, Member.

              Mr.S.P.Attri, Member.

 

For the Parties:     Mr.Vikram Tandon, Advocate, for the complainant. 

Mr.Rajesh Verma, Advocate, for the Op No.1.

Mr.Amardeep Sharma, Advocate, for the Op No.2.

 

ORDER

 

(Dharam Pal, President)

 

1. The complainant-Charanjit Singh has filed this complaint against the opposite parties (hereinafter referred as OPs) with the averments that he insured his vehicle bearing No.CH-01-AQ-8300 make Hyundai Verna from the OP No.1 vide policy No.OG-15-1201-1801-00006821 dated 30.01.2015 valid from 16.01.2015 to 15.01.2016. There was some gap between the earlier insurance policy and the above said insurance policy, therefore, as per their policy, the Op No.1 got the vehicle inspected and photographed on 15.01.2015, cover note dated 15.01.2015 and the complainant paid an amount of Rs.32,324/- to OP No.1 against the receipt dated 20.01.2015. At the time of insurance, Op No.1 also got one letter from the complainant regarding excess clause of Rs.5000/- on the pretext that it was their general policy. On 21.01.2015, the agent of Op No.1 approached the complainant and asked the complainant to further deposit an amount of Rs.2570/- for some excess clause and the complainant objected on it. On this, the agent of Op No.1 told the complainant that it was the policy of their company that if the vehicle was un-insured for some time then to revive its insurance policy that excess clause was compulsory and the agent also got one letter from the complainant in this regard. The complainant paid the amount of Rs.2570/- to Op No.1. Unfortunately, on 05.02.2014 at about 9/9.30 PM at Doraha, the vehicle met with an accident in order to save a stray dog, who suddenly came in front of the car and the vehicle struck against the berm of the road and it was damaged badly. Thereafter, the complainant called Mittal Crane Service, Sector-45, Chandigarh, who brought the vehicle by towing, to the agency of Op No.2 on 06.02.2015 at about 10/11AM and after thorough inspection of the vehicle, Op No.2 issued gate pass/entry pass dated 06.02.2015. Thereafter, the Op No.2 sent the intimation of accident to the OP No.1 alongwith claim form, estimate etc. At the time of receiving the vehicle for the repair, the OP No.2 took the details of accident from the complainant in their form i.e. Accidental Repair Form, OP No.2 had inadvertently mentioned the date of accident as 05.01.2015 instead of 05.02.2015 and in the claim form also Op No.2 had inadvertently mentioned wrong date of period of insurance and date of accident and Op No.2 also issued a certificate dated 11.03.2015 in this regard. Op No.1 registered the claim of the complainant vide their claim No.0C-15-1201/1801-00003909 and sent a surveyor to the agency of Op No.2 who thoroughly inspected the vehicle and took the photographs of the same. On 09.03.2015, the Op No.1 issued a letter to the complainant and made certain objections which were replied by the complainant vide letter dated 13.03.2015. On 21.03.2015, the OP No.1 again issued a letter to the complainant that the reply given to their earlier letter by the complainant was not satisfactory and the complainant tried to mislead the Op No.1 by suppressing material facts and repudiated the claim of the complainant (Annexure C-14). Again on 10.04.2015, the complainant issued a letter to OP No.1 for releasing the claim amount but again on 27.04.2015, OP No.1 repudiated the claim of the complainant (Annexure C-16). The vehicle is still lying in the agency and the complainant had also paid an amount of Rs.75,000/- in advance to the Op No.2 for the repair of vehicle but the Op No.1 repudiated the claim of the complainant. The act and conduct of the Ops amounts to deficiency in service on their part. Hence, the complaint.
2. The Op No.1 appeared before this Forum and filed written statement. It is submitted that the vehicle of the complainant bearing No.CH01AQ-8300 make Hyundai Verna was insured with the Op No.1 vide policy No.0G-15-1201-1801-00006821 with effect from 16.01.2015 to 15.01.2016. It is submitted that there was a gap of insurance, the pre risk inspection was conducted and photographs were taken of the vehicle of the complainant at the time of issuance of the cover note/policy. It is submitted that the policy was issued on the strength of the good faith. It is submitted that receipt dated 21.01.2015 for payment of Rs.2570/- was received by the OP/company towards short premium of Rs.2570/-. It is submitted that issuance of receipt does not amount to acceptance of risk by the company/OP and the risk shall be covered as per the condition of the policy. It is submitted that the vehicle of the complainant met with an accident on 05.02.2015 but as per the information gathered by the OP/company, it was found that the vehicle was reported to the workshop for repairs in the damaged condition on 05.01.2015. It is submitted that as per letter date 09.03.2015, the complainant was informed that as per the claim intimation, the date of accident was 05.02.2015 and the vehicle was reported in the damaged condition on 05.01.2015 which is a violation of condition No.1 of the policy which states that “Notice shall be given in writing to the company immediately on the occurrence of any accident, loss or damage and in the event of any claim and thereafter the…….”. It is submitted that by reviewing survey photographs and “pre enrolment inspection”, report dated 15.01.2015, few re-arrange on damaged parts during pre inspection to hide actual accident and to get free insurance cover. It is submitted that the complainant replied the letter dated 09.03.2015 sent by the Ops vide reply dated 13.03.2015. It is submitted that the Op No.1 vide letter dated 21.03.2015 intimate the complainant that the explanation submitted by him was found not to be satisfactory and not supported with any document. It is submitted that the claim of the complainant was repudiated vide letter dated 21.03.2015. It is submitted that investigator Sh.A.P.Singh, was appointed to investigate the matter. It is submitted that the vehicle was pre-inspected on 16.01.2015 and KM reading was noted during pre inspection was 68242KMs and when the surveyor inspected the damaged vehicle, the KM reading was also the same i.e. 68242KMs. It is submitted that the claim was not payable as there was mis-match of the date of accident confirmed by the complainant and as per the claim form. It is submitted that the spot survey inquiry was conducted by the surveyor and found that the area where accident took place was not same. It is submitted that the Police Station record was also verified and found that no accident of Verna No.CH01AQ-8300 was reported. It is submitted that final survey report dated 31.03.2015 was also submitted to the office of Op and as per report of surveyor has observed that at the time of survey, the damages were not fresh. It is submitted that pre-inspection report and photographs were checked and found that (i) the mileage at the pre-inspection was 68242 kms and at the time of survey was also 68242 kms. The accident took place at Ludhiana. (ii) As per the pre-inspection report, the steering back was notice to be missing and upper cover sealed whereas at the time of final survey noticed that air deployed bag was cut from its original place. Thus, there is no deficiency in service on the part of the Op No.1 and prayed for dismissal of the complaint.
3. The Op No.2 appeared before this Forum and filed written statement by taking some preliminary objection and submitted that the OP No.2 is an authorized dealership of M/s Hyundai Motors India Ltd. and deals in sale and service of the Hyundai Make cars. It is submitted that the vehicle was reported to the OP No.2 for estimate repair on 06.02.2015 and Job Card was opened which was a computer generated document and consisting a Sr. No.01501. It is submitted that to substantiate the veracity of the documents, the OP No.2 was producing job card of the vehicle prior to the above serial number and after the serial number for its authenticity. It is submitted that due to date of accident of vehicle, the insurance company has repudiated the claim. It is submitted that inadvertently, typographical mistake occurred while preparing the estimate quotation. It is submitted that the date wrongly mentioned as 06.01.2015 and the same was signed by the complainant. It is submitted that neither the concerned official checked the date nor the complainant as it was due to human error. It is submitted that the complainant brought the fact to the notice of Op No.2 and the same was rectified and a certificate was issued in this regard. It is submitted that when the vehicle was brought to the workshop of Op No.2, in computer generated job card the date was mentioned as 06.02.2015. It is submitted that the repair work could only be done after receiving the part payment either from the complainant or an assurance given by the Insurance Company. It is submitted that the Op No.2 has rightly charged for the repair work. Thus, there is no deficiency in service on the part of the Op No.2 and prayed for dismissal of the complaint.
4. The counsel for the complainant has tendered the evidence by way of affidavit Annexure C-A alongwith documents Annexure C-1 to C-19 and closed the evidence. On the other hand, counsel for the Op No.1 has tendered the evidence by way of affidavits Annexure R1/A & R1/B alongwith documents Annexure R1/1, R1/2, R1/4 to R1/7 and R1/8 to R1/10 and closed the evidence. The Op No.2 has tendered the evidence by way of affidavit Annexure R2/A alongwith documents R2/1 & R2/2 and closed the evidence.
5. We have heard learned counsel for the parties and have also perused the case file as well as written arguments submitted by the counsel for the complainant carefully and minutely.
6. It is not disputed that the vehicle of the complainant bearing No.CH01AQ-8300 is insured with the OP No.1 vide policy No.0G-15-1201-1801-00006821 with effect from 16.01.2015 to 15.01.2016 as is evident from Annexure C1. Learned counsel for the complainant has argued that the OP No.1 has wrongly and illegally repudiated the genuine claim of the complainant. He has further submitted that prior to issuance of insurance policy, the vehicle was got inspected and photographs were also taken on 15.01.2015 and the cover note was also issued. He further submitted that on 05.02.2015 the vehicle met with an accident at Droha, Ludhiana-Chandigarh road. The vehicle was brought to the OP No.2 by towing on 06.02.2015. Intimation regarding the accident was sent to OP No.1 by OP No.2 after receiving the vehicle. OP No.2 also took the details of the accident from the complainant in the form i.e.the accidental repair form. The OP No.1 sent the surveyor to inspect the vehicle and he after inspecting the vehicle also took the photographs of the vehicle.  Learned counsel for the complainant has further submitted that the claim of the complainant was repudiated vide letters dated 10.04.2015 and 27.04.2015.  On the other hand, learned counsel for the Op No.1 has argued that the complainant has not come to this Forum with clean hands and has suppressed the material facts because the surveyor in his report Annexure R4 has categorically mentioned that At the time of survey it was observed that the damages claimed for were not fresh. Pre-risk inspection report and photographs were checked and few discrepancies such as (1) The mileage at the time of pre risk inspection done at Sector 45 Chandigarh is 68242. The mileage noted at the time of final survey at garage is also 68242. The place of accident is Ludhiana. (2) As per pre-risk inspection the steering bag was noticed to be missing and upper covering sealed whereas at the time of final survey it is noticed that the air the deployed air bag was cut from its original place. The above mentioned discrepancies were brought to the notice of insured and insured has failed to submit any satisfactory relief. In or opinion the damages observed on the vehicle are not recent and are pre-existing. We are submitting our independent assessment report to restrict the liability of insurer.  Learned counsel for the OP No.1 has further argued that the complainant has failed to produce/lead any evidence to rebut the report of surveyor. We are fully convinced with the arguments advanced on behalf of the OP No.1-insurance company because the complainant has failed to satisfy the insurance company and even failed to explain the answer the irregularities raised by surveyor in his report. It  is settled proposition of law that Surveyor is the best person to assess the loss and his report cannot be brushed aside unless there is cogent and convincing evidence. In the instant case also, no credible evidence has been produced on the basis of which Surveyor’s report could be dis-believed. On this point reliance can be taken from case law titled as Suryachem Industries Vs. Oriental Insurance Co. Ltd, I (2007) CPJ 278 (NC), wherein Hon’ble National Commission has held that the report of the surveyor, could only be successfully challenged, by producing tangible, evidence, by the complainant.
7. Complainant has filed the present complaint on 22.06.2015 and the Op No.1-insurance company had filed the reply to the complaint on 20.08.2015. In its reply the OP No.1 has taken specific plea that during spot inquiry the area where alleged accident had taken place was not the same and there is no police record/evidence to show that any accident with the vehicle bearing No.CH01AQ-8300 had taken and the damage to the vehicle was no fresh. It is established on the case file that the surveyor had inspected the vehicle after the accident as alleged by the complainant. The surveyor had inspected the vehicle and submitted his report in the month of March, 2015 with the insurance company. The report of surveyor was tendered in evidence on 20.11.2015, therefore, there was ample opportunity for the complainant  to rebut the submission made by the insurance company by way of filing re-joinder   the complainant, in his own discretion, did not opt to file a rejoinder. Without at all suggesting that the filing of rejoinder is mandated under the current procedural law, it needs to be stressed that the filing of rejoinder would be required, nay ideal, to rebut a fact which appears for the first time in the written statement, therefore, we have no hitch to reach at a conclusion that the complainant has not come to this Forum with clean hands. Another surprising fact which this Forum has noticed that the present complaint has been filed by one Jaipal Kamia and he had also filed his affidavit in support of complaint filed on behalf of the complainant being attorney. In the complaint the complainant has mentioned that the vehicle met with an accident in order to save the stray dog but Charanjit/insured in his statement recorded before the investigator has stated that the vehicle had struck against divider. It was for the insured to explain this fact by filing his affidavit as he was the best person to depose the true story but he has failed to appear in the witness box to narrate the true story. That fact disentitles them from the grant of relief by the forum. Hon’ble National Consumer Disputes Redressal Commission, New Delhi in case titled as S.Girija Selvaraj Vs. The Proprietor decided on 04.02.2013 in Revision Petition No.3092 of 2012 has held as under:

12.      It is well settled that any party who seeks an equitable relief must approach the judicial Forum with clean hands and should not conceal the material facts. Honble Supreme Court in Faquir Chand Gulati Vs. M/s Uppal Agencies P. Ltd. & Anr. Special Leave Petition (c) No. 18225-18226 of 2011 dated 14.08.2011 observed ;

From what we have stated above, it is clear that the petitioner has not approached the Court with clean hands. Therefore, he is not entitled to be heard on the merits of his grievance. Reference in this connection can usefully be made to the judgment of this Court in Dalip Singh Vs. State of UP (2010) 2 SCC 114, the first two paragraphs of which are extracted below ;

1. For many centuries Indian Society cherished two basic values of life i.e. satya (truth) and Ahinsa (non-violence) Mahavir, Gautam Budha and Mahatma Gandhi guided the people to ingrain these values in their daily life Truth constituted an integral part of the justice-delivery system which was in vogue in the pre-Independence era and the people use to feel proud to tell truth in the courts irrespective of the consequences. However, post-independence period has seen drastic changes in our value system. The materialism has overshadowed the old ethos and the quest for personal gain has become so intense that those involved in litigation do not hesitate to take shelter of falsehood, misrepresentation and suppressions of facts in the court proceedings.

2.           In the last 40 years, a new creed of litigants has cropped up. Those who belong to this creed to not have any respect for truth. They shamelessly resort to falsehood and unethical means for achieving their goals. In order to meet the challenge posed by this new creed of litigants, the courts have, from time to time, evolved new rules and it is now well established that a litigant, who attempts to pollute the stream of justice or who touches the pure fountain of justice with tainted hands, is not entitled to any relief, interim or final.

8. Another surprising factor which this Forum has noticed that the alleged accident had taken place on 05.02.2015 and the vehicle was brought to the Op No.2 on 06.02.2015 but perusal of the case file reveals that the bill (Annexure-C6) regarding towing of the vehicle by Mittal Crane Service was issued on 08.02.2015. The complainant has failed to explain the delay in issuing the bill.  Moreso, the complainant has not led any evidence that the Speedo meter was not in working condition and the same was ever got repaired from 15.01.2015 to 05.02.2015. Charanjit/insured in his statement recorded before the investigator has stated that he was coming from Faridkot to Chandigarh but it is strange that the Speedo meter has not recorded any reading and had shown the same reading on 05.02.2015 i.e. 68242 KM as was shown on 15.01.2015. The complainant has failed to prove any deficiency on the part of Op and the complaint deserves dismissal. Therefore, we dismiss the present complaint. There is no order as to cost. Copy of this order be supplied to both the parties free of cost.  File be consigned after due compliance

Announced

31.12.2015     S.P.ATTRI         ANITA KAPOOR        DHARAM PAL

                       MEMBER                        MEMBER                    PRESIDENT

 

Note: Each and every page of this order has been duly signed by me.

 

    

                                                         DHARAMPAL

                                                           PRESIDENT