BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, KAITHAL.

Complaint No.365/2016.

Date of instt.: 19.12.2016.

                                                 Date of Decision:30.11.2017.

Satish Kumar s/o Shri Deva Ram, r/o VPO Kasan, Tehsil and Distt. Kaithal.

                                                        ……….Complainant.     

                                        Versus

1. Bajaj Allianz General Insurance Company Ltd., Regd. & Head Office GE Plaza, Airport Road, Yerawada, Pune (Maharashtra), through its authorized signature/ Manager.
2. Bajaj Allianz General Insurance Company Ltd., SCO 329, 1^st Floor, Sector-9, Panchkla through its Branch Manager.
3. Shriram Transport Finance Co. Ltd., Ambala Road, Kaithal through its Branch Manager.

..……..Opposite Party.

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

Before:      Sh. Rajbir Singh, Presiding Member.

Smt. Harisha Mehta, Member.

Present:    Shri Ramesh Kasan, Adv. for complainant.

                   Shri C.L. Uppal, Adv. for the Ops. No.1 & 2.

                   Op No.3 ex parte.

                   ORDER

(RAJBIR SINGH, PRESIDING MEMBER).

                   The complainant has filed the present complaint under Section 12 of Consumer Protection Act, 1986, with the averments that he purchased Qualis Jeep bearing Registration No.HR-37C-0843, financed by Op No.3 and insured the said vehicle with Ops No.1 and 2 vide Policy No.OG-16-9995-1801-00006204 on 27.07.2015. It is further alleged that above-said vehicle met with an accident on 29.9.2015 and his vehicle was burnt and information regarding this accident was given to the Ops. It is further alleged that he lodged a DDR No.0010/2015 dt. 01.10.2015 in PS Titram. It is further alleged that he supplied all the required documents and requested many times to the Ops No.1 & 2, but the Ops No.1 & 2 illegally rejected his claim. It is further alleged that he has filed the present complaint before this Forum titled as Satish Kumar Vs. Bajaj Allianz etc., which was dismissed as withdrawn on 5.10.2016 with the permission to file the fresh complaint on the same facts. This way, the Ops are deficient in service. Hence, this complaint is filed.  

2.     Upon notice, the opposite parties did not appear and proceeded against ex parte vide order dt. 02.2.2017. Thereafter, the Ops filed an application for setting aside the exparte order dt. 02.2.2017 and the said application was dismissed vide order dt. 24.4.2017. Further, on 13.7.2017, when the case was fixed for remaining ex parte arguments, an order from the Hon’ble State Commission received in which the revision petition filed by the Ops No.1 and 2 is accepted and according to that order, the order of ex parte is set aside and opportunity to file the written version and join the proceedings to Ops No.1 and 2 was granted. Thus, the Ops No.1 and 2 filed joint reply raising preliminary objections with regard to maintainability; locus-standi; cause of action; that the complainant is estopped by his own act and conduct to file and jurisdiction. It is submitted that after receiving motor claim intimation from the complainant, the Op vide letter dt. 4.12.2015 demanded the Technical report from manufacturer for root cause of fire, but no reply was received regarding this report from the complainant; that after scrutinizing the documents submitted by the complainant, the Op sent letter dt. 6.2.2016 with the observation that the cause of loss as narrated by the complainant in claim form does not co-relate with the nature of the damages seen on the vehicle which lead to misrepresentation of facts & violation of insurance contract; that Ops seeks seven days time for written clarification from the date of this letter; that again the Op sent letter dt. 6.2.2016, 15.2.2016 and 22.2.2016 to the complainant, but the Op did not receive any response from the complainant and on 10.3.2016, the claim of the complainant was repudiated; that photographs were also taken on the vehicle in question, as per insured statement, the cow suddenly came in front of the vehicle and hit the tree, but there is no major damage on the front of the vehicle; that the Op deputed a surveyor who assessed the loss to the vehicle of Rs.2,00,248/-, but the complainant is not entitled to any claim as stated above. On merits, the contents of complaint are denied and so, prayed for dismissal of complaint.   

3.     In support of his case, the complainant tendered in evidence affidavit Ex.CW1/A; documents Ex.C1 to Ex.C4, Mark C1 to C4 and closed evidence on 17.3.2017. On the other hand, Ops No.1 and 2 tendered in evidence affidavits Ex.RW1/A, Ex.RW2/A, Ex.RW3/A; documents Mark R-1 to Mark R-12 and closed evidence on 03.11.2017.

4.     We have heard ld. counsel for both the parties and perused the case file carefully and minutely and have also gone through the evidence led by the parties. 

5.     Ld. counsel for the complainant reiterated all the points mentioned in the complaint. He argued that the complainant insured his vehicle with Ops No.1 and 2 vide Policy No.OG-16-9995-1801-00006204 on 27.07.2015. It is further argued that above-said vehicle met with an accident on 29.9.2015 and the said vehicle was burnt and information regarding this accident was given to the Ops No.1 & 2. It is further argued that the complainant supplied all the required documents and requested many times to the Ops No.1 & 2, but they illegally rejected his claim.

6.     On the other hand, ld. counsel for the Ops No.1 & 2 argued that after receiving motor claim intimation, the Ops No.1 & 2 vide letter dt. 4.12.2015 demanded the Technical report from manufacturer for root cause of fire, but no reply was received regarding this report from the complainant. It is further argued that after scrutinizing the documents submitted by the complainant, the Op sent letter dt. 06.2.2016 with the observation that the cause of loss as narrated by the complainant in claim form does not co-relate with the nature of the damages seen on the vehicle which lead to misrepresentation of facts & violation of insurance contract. It is further argued that Ops No.1 & 2 sent letters dt. 6.2.2016, 15.2.2016 and 22.2.2016 to the complainant, but they did not receive any response from the complainant and on 10.3.2016, the claim of the complainant was repudiated. It is further argued that photographs were also taken on the vehicle in question, as per insured statement, the cow suddenly came in front of the vehicle and hit the tree, but there is no major damage on the front of the vehicle and so, prayed for dismissal of complaint.   

7.     As per the pleadings it is admitted by the parties that the complainant is the owner of vehicle i.e. Qualis Jeep bearing Registration No.HR-37C-0843 and the said vehicle was insured with Ops No.1 & 2 vide Policy No.OG-16-9995-1801-00006204 on 27.07.2015 (Ex.C4). (It is pertinent to mention here that copy of said policy was also produced by Ops No.1 & 2 as Mark R-12). It is also admitted that on 29.9.2015, the said vehicle was met with an accident due to which, the vehicle caught fire and the complainant lodged a DDR bearing No.10 dt. 01.10.2015 in PS Titram (Mark C-2) in this regard. (It is pertinent to mention here that copy of said DDR was also produced by Ops No.1 & 2 as Mark R-2). The Ops has appointed a Surveyor and Investigator, who submitted their reports. The complainant has made a claim with the Ops and the same was repudiated vide letter dt. 10.3.2016 (Mark R-9) on the ground that the complainant has failed to submit his reply to the letters dt. 06.02.2016, 15.2.2016, 22.2.2016 and 29.2.2016 and so, in the absence of any response from the side of the complainant, Ops have repudiated the claim.

8.     The dispute between the parties is that ‘according to the complainant, the Ops No.1 and 2 have wrongly repudiated his claim, whereas, according to the Ops, the cause of the loss ‘as narrated by the complainant in claim form, does not co-relate with the nature of the damages seen on the vehicle, which leads to the misrepresentation of the facts and violation of duties of utmost good faith by the complainant that lead to breach of insurance contract. The ld. counsel for the Ops No.1 & 2 has argued that as per the report of investigator, the nature of the damages does not co-relate. He further argued that the Ops demanded from the complainant vide letter Mark R-1 to submit technical report from the manufacturer for root cause of fire, but the same has not been supplied by the complainant and this is the one of the reason that the investigator came to the conclusion that the damages of the insured vehicle does not co-relate with the statement of insured. From the report of Investigator (Mark R-11), it is clear that the investigator gave his observations that the insured vehicle was affected in a controlled manner, which clearly indicates that the fire was a controlled fire and there are multiple point of fire on the insured vehicle and the origin of fire is not traceable. These observations of the investigator has no force, because the fire of the insured vehicle was got extinguished by calling the fire brigade and the report of Fire Brigade, Kaithal is Mark C-1. As the fire was controlled by the Fire Brigade, so, there are chances that there may be some points which were touched by the fire and some points which were not touched by the fire. Similarly, the observations of the investigator that there are no major damage with the impact which would ignite the fire and also that both the rear tyres were completely burned and the front tyres were partially burned. The ignition of fire does not depend on the impact only, even sometimes the fire was ignited in the standing vehicles, therefore, it cannot be said that when the impact is minor, there cannot be any ignition of fire. As already stated above, the fire was controlled by the fire brigade, so there might be some portion of the vehicle which may burnt partially. Moreover, it is not the case of the Ops that the fire has been ignited by the complainant himself. The observation of the investigator that rear both tyres were completely burned and the front both tyres were partially burned and this contradicts the statement of insured that smoke came from front side and then there was a fire breaking out from there. It is pertinent to mention here that the oil tank in the vehicles is almost behind side and when the fire is ignited, then the vehicle in the rear side receive fire towards the oil tank fastly and the maximum fire will broke out in the rear portion and due to this reason, the damage to the rear side might be maximum instead of front side. Moreover, in this case, the fire brigade rushed at the spot and extinguished the fire and this is also the reason that the damage to front side was less than the damage to the rear side. The next observation is that the side of insured vehicle that hit the tree which is front left hand side has no major electrical wiring or battery for a short circuit to happen and cause fire. This observation has also no force, because the electrical wires are in the entire vehicle and when a short circuit had happened, it may be happened from minor electrical wiring circuit. The next argument of the Ops is that the complainant has not produced any technical report from the manufacturer for root cause of the fire. This argument of the Ops has also no force, because it was for the investigator to get the said report from the manufacturer. Moreover, the Ops should have asked the investigator for the said report as he might be a technical expert. Therefore, the Ops have failed to prove their contentions by producing cogent evidence. In these facts & circumstances of the case, we are of the considered view that the Ops have wrongly repudiated the claim of the complainant.  

9.     The Ops have placed on file report of the Surveyor i.e. Grover Associates ‘appointed by them, and according to that report of Surveyor (Mark R-10), the loss was assessed to the tune of Rs.2,00,248/-. The surveyor is an independent person. So, this report of surveyor is taken into consideration for deciding the compensation amount in the complaint. In this regard, we rely upon a judgment 2(2008) CPJ page 182 (NC), United India Insurance Co. Vs. Maya, wherein it has been held that a surveyor report should not be dismissed summarily as the surveyor is independent and qualified person under the relevant provisions of Insurance Act, 1938. In view of the report of surveyor, we are of the considered view that the complainant is entitled for an amount of Rs.2,00,248/- on account of loss suffered by the complainant. 

10.    Thus, in view of above discussion, we allow the complaint partly and direct the Ops No.1 & 2 to pay Rs.2,00,248/- ‘as assessed by the surveyor, to the complainant, subject to submission of subrogation letter & to handover the salvage with the Ops and  cancellation of RC of the vehicle in question. Further the Ops No.1 & 2 also burdened to pay Rs.2,000/- to the complainant, as lump sum compensation on account of harassment, mental agony and costs of litigation charges. Let the order be complied with within 30 days, failing which, the complainant shall be entitled interest @ 8% p.a. from the date of commencement of this order till its payment. A copy of this order be sent to both the parties free of costs. File be consigned to the record room after due compliance.

Announced.

Dt.30.11.2017.

                        (Harisha Mehta),             (Rajbir Singh),       

                                Member.                        Presiding Member.

Present:     Shri Ramesh Kasan, Adv. for complainant.

                Shri C.L. Uppal, Adv. for the Ops. No.1 & 2.

                Op No.3 ex parte.

                Remaining arguments not advanced. On the request, case is adjourned to 24.11.2017 for remaining arguments.

Dated:20.11.2017.               Member            Presiding Member.

Present:     Shri Ramesh Kasan, Adv. for complainant.

                Shri C.L. Uppal, Adv. for the Ops. No.1 & 2.

                Op No.3 ex parte.

                Remaining arguments not advanced. On the request, case is adjourned to 30.11.2017 for remaining arguments.

Dated:24.11.2017.      Member                             President.

Present:     Shri Ramesh Kasan, Adv. for complainant.

                Shri C.L. Uppal, Adv. for the Ops. No.1 & 2.

                Op No.3 ex parte.

                Remaining arguments heard. Order pronounced, vide our separate order in detail of even dated, the present complaint is partly allowed. File be consigned to record-room after due compliance.

Dated:30.11.2017.               Member            Presiding Member.