Punjab

Faridkot

CC/15/116

Vikas Bhandari - Complainant(s)

Versus

Bharti AXA General Insurance Company - Opp.Party(s)

Vinod Kumar Monga

11 Mar 2016

ORDER

      DISTRICT  CONSUMER  DISPUTES  REDRESSAL  FORUM,  FARIDKOT

 

Complaint No. :         116

Date of Institution :   31.08.2015

Date of Decision :     11.03.2016

Vikas Bhandari s/o Gurcharan Bhandari r/o Street No. 3, New Cantt Road, Faridkot Tehsil & Distt Faridkot.                                                                                   

                                                                                                    .....Complainant

Versus

1. Bharti AXA General Insurance Company, Unit No. 6 and 7, 3^rd Floor, Kunal Tower, the Mall, Ludhiana through its Branch Manager.

2. Johar Associates, Mori Gate, Circular Road, Faridkot through its proprietor Sukhwinder Singh.

3. Godawari Motors, Opposite Focal Point, Ferozepur Road, Moga through its Managing Director.........Opposite Parties

    

   Complaint under Section 12 of the

   Consumer Protection Act, 1986.

   Quorum:     Sh. Ajit Aggarwal, President.

   Smt Parampal Kaur, Member,

   Sh P Singla, Member.

   Present:       Sh Vinod Monga,  Ld Counsel for complainant,

    Sh Neeraj Maheshwari, Ld Counsel for OP-1,

    OP-2 & 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 replace the wind screen of car or to pay price of wind screen i.e Rs 27,000/- and for also directing Ops to pay Rs 10,000/- as compensation for mental agony and harassment etc besides litigation expenses.

   2                                          Briefly stated, the case of the complainant is that complainant got insured his car bearing no. CH01-AQ-8200 Elentra of Hyundai Company from OPs vide Insurance Policy no. FPV/11844592/91/02/D1P119 valid from 9.02.2015 to 8.02.2016, but while issuing said policy, OPs wrongly mentioned the address of complainant as Ferozepur instead of Faridkot. It is contended that on 4.05.2015, the said car of complainant met with an accident in which both the bumpers, fog lamps and wind screen of the car were damaged. Complainant immediately informed about accident to OPs and Surveyor of OPs instructed complainant to bring the car to Godawari Motors, Moga, which is authorized repairer of OP-1. Complainant took the car at Godawari Motors, where employees of Godawari Motors got signed blank claim forms and other proforms and repaired the fog lamps and bumpers, but did not change the wind screen of car on the ground that wind screen was not available with them and same was kept pending and would be replaced after some days and they told that he would be called later on for replacement of wind screen. Surveyor also took photographs of the car and in good faith, complainant brought the car back. On 14.06.2015, complainant received a call from Godawari Motors asking him to bring the car personally alongwith claim forms. Complainant sent the car through his driver Ravi Kumar alongwith duly signed claim proforma as provided by OP-2.  It is further contended that employees and officials of Godawari Motors at their own filled the claim form showing the accident of his car on 14.06.2015 at 7.30 pm with a flying stone on wind screen and they themselves lodged the claim of wind screen with OP-1 but OP-1 did not allow the Godawari Motors for replacing the wind screen and accordingly, Godawari Motors did not replace the wind screen and refused to do so. In the meantime, employees of Godawari Motors obtained signatures of driver of complainant and returned the car without replacing the wind screen. When complainant came to know about this fact, he lodged a complaint to Customer Care Centre of Hyundai against Godawari Motors on 25.06.2015. It is further contended that complainant never lodged any claim of car on 14.06.2015 with regard to damage of wind screen but the employees of Godawari Motors who theselves tried to manage it wrongfully as the replacement of wind screen was kept pending by the Surveyor and the employees of Godawari Motors. Complainant received letter dt 27.06.2015 from Surveyor Rahul Sethi in which it was informed that wind screen of car was damaged in pre-claim and complainant was asked to explain the circumstances. Complainant also served legal notice dt 9.07.2015 to OPs, wherein made request to OPs to pay claim of wind screen, but that also bore no fruit. Thereafter, complainant received a letter dt 13.07.2015 from OP-1, wherein it is alleged that wind screen was damaged at the time of purchase of insurance policy. It is further contended that OP-1 and its Surveyor alongwith authorized repairer have not replaced the wind screen of the car and now they have refused to do so, which amounts to deficiency in service and trade mal practice and has caused much inconvenience, harassment and mental agony to complainant and due to this complainant has prayed for seeking direction to Ops to replace the wind screen of the car or to pay its price and for further directing Ops to pay Rs 10,000/-as compensation for mental agony and harassment etc besides litigation expenses. Hence, the complaint.

   3                                             The Counsel for complainant was heard with regard to admission of the complaint and vide order dated 29.09.2015, complaint was admitted and notice was ordered to be issued to the OPs.

   4                                     On receipt of the notice, OP-1 filed reply taking legal objections that this Forum has no territorial jurisdiction to try the present complaint as no branch office of OPs is situated at Faridkot. Moreover, complaint involves complex questions of law and facts requiring voluminous evidence, which is not possible in summary proceedings under Consumer Protection Act. It is averred that complainant has concealed the material facts as he has not disclosed that there was a break in the policy period, one claim was reported earlier against claim no. C0788519 on 4.05.2015. Pre-inspection photographs clearly show that damages to wind shield glass existed and it was damaged prior to inception of insurance policy and this damage existed at the time of previous claim also and as the claimed damaged were pre-existing and were found before the contract of insurance and therefore are not payable under the terms and conditions of the policy. It is further averred that complainant has violated the terms and conditions of the policy and has also not disclosed the material facts before this Forum. Moreover, complainant has tried to show the pre-existing damages as damages suffered in alleged accident dt 14.06.2015, which cannot be allowed and he is not entitled for any claim. It is asserted that complainant is not the consumer of OP-1 and complainant has no locus standi to file the present complaint. However, on merits OP-1 has denied all the allegations levelled by complainant being wrong and incorrect and asserted that the pre-inspection photographs clearly show that the damages to the front windshield glass existed at the time of present insurance. There was break in present insurance policy and the previous one and it is specifically denied that the windscreen of the car was damaged in accident that occurred on 4.05.2015. It is averred that windscreen of the car was not damaged in an accident on 4.05.2015 and claim regarding said accident was registered, processed and paid and at that time, complainant did not press for the claim of windshield glass as he was aware that damages to windshield glass were pre-existing at the time of insurance and had not occurred in the accident on 4.05.2015. It is further averred that Surveyor Mr Rahul Sethi took the photographs at the time of survey against date of loss dt 14.06.2015 and assessed the loss vide survey report at Rs26,232/-, but since the damages to windshield glass were pre-existing at the time of insurance and these are not payable. It is reiterated that there is no deficiency in service on the part of answering OP and all the other allegations and allegation with regard to relief sought were refuted with a prayer to dismiss the complaint with costs.

   5                                      Notice issued to OP-2 served, but despite waiting for long time till 4.30 pm, no body appeared in the Forum either in person or through counsel on behalf of OP-2 to defend the case and then after expiry of statutory period, OP-2 was proceeded against ex-parte vide order dt 10.11.2015. Notice issued to OP-3 through RC did not receive back undelivered. It is presumed that OP-3 is served, but as none appeared on behalf of OP-2 after repeated calls on date fixed, therefore, Op-3 was proceeded against ex-parte vide order dt 18.11.2015.

   6                                                  Parties were given proper opportunities to lead evidence to prove their respective pleadings. The complainant tendered in evidence his affidavit Ex.C-1 and documents Ex C-2 and C-14 and then, closed the evidence.

   7                                              In order to rebut the evidence of the complainant, Counsel for OP-1 tendered in evidence affidavit of Shivali Sharma as Ex OP-1/5 and documents Ex OP-1/1 to 4 and then, closed the same on behalf of OP-1.

   8                                          Ld Counsel for complainant argued that complainant is the owner of Elentra car bearing no. CH01-AQ-8200 and this vehicle was insured with OP-1 through OP-2 valid from 9.02.2015 to 8.02.2016. the OPs  duly issued cover note of the policy. The copy of the same is Ex C-4, copy of receipt of the premium is Ex C-3. Prior to insurance the OPs  duly checked the vehicle. Copy of  Pre-Insurance Inspection Report is Ex C-7. The said vehicle of the complainant met with an accident on 4.03.2015 and in accident the wind screen of the car alongwith other parts got damaged. The complainant duly informed regarding accident to OP-1 and 2, who appointed a Surveyor to check the car and to assess the loss and on the instructions of OPs, complainant took his car to the workshop of OP-3 at Godawari Motors, Moga, where one Jagjit Singh Purba surveyed the vehicle and employees of OP-3 got signed blank claim forms and other forms from complainant. they repaired/replaced the other parts of the car but wind screen was not changed because they told complainant that wind screen is not available with them and the same was kept pending and  they assured that it would be replaced after some time. They also told him that they would call him later on for replacement of wind screen. The Surveyor also took photographs of car at the time of survey. On 14.06.2015, complainant received a call from OP-3, who asked him to bring the car for replacement of wind screen. On their instructions, complainant sent his car alongwith duly signed blank claim forms on 18.06.2015 through his driver Ravi Kumar. The employees of OP-3 also obtained the signature of driver of complainant on various blank proforma. OP-3 and its employees themselves filled the blank claim forms in which they wrongly shown the time of the accident as 14.06.2015 and sent it to Op-1, but OP-1 did not allow OP-3 for replacing the windscreen and accordingly, OP-3 refused to replace the wind screen of the car.  Complainant never informed the date of accident as 14.06.2015. It is only filled by employees of Op-3. On coming to notice of this wrongful act, the complainant also lodged complaint with customer care centre of Hyundai. The car in question never met with any accident on 14.06.2015. It is only OP-3, who themselves tried to manage it wrongfully for replacement of windscreen which was kept pending by them earlier. The complainant received a letter dt 27.06.2015 from Rahul Sethi Surveyor, Ludhiana in which he informed that wind screen of the car was already damaged in pre claim and complainant was asked to explain the circumstances. Copy of the letter is Ex C-5. Complainant served a legal notice dt 9.07.2015 to OPs disclosing each and every thing to them and requested them to pay claim of insurance. Copy of the notice is ExC-8. Complainant received a letter dt 13.07.2015 from Op-1 in which they alleged that wind screen was damaged at the time of purchase of insurance policy and rejected the claim of complainant. copy of letter is Ex C-6. Ops and their Surveyor by their act and conduct have not replaced the wind screen of car and have refused to repair the same wrongfully. They did this act in connivance with each other and dishonestly. OPs are liable to replace the wind screen or to pay its price. All these acts of Ops amount to deficiency in service and trade mal practice on their part. These acts have caused a lot of harassment and inconvenience to complainant. he prayed that Ops may be directed to pay the cost of wind screen alongwith damages and compensation.

   9                                  To controvert the arguments of ld counsel for complainant, ld counsel for OP-1 argued that complainant is not their consumer and there is no deficiency in service on their part. The complainant has concealed the material facts from this Forum and as such, complainant is not entitled to any relief. However, they admitted that the vehicle in question was insured with them but there was a break in policy period. The complainant reported one claim on 4.05.2015 and that claim was duly processed and paid to them. He argued that at the time of inception of the policy, the wind screen of car was damaged. He argued that Ops made pre-inspection of vehicle in dispute prior to issuance of  policy and in pre-inspection, wind screen was damaged. Pre-inspection report shows that the damage in wind screen of the car. As the damage in the wind screen was pre-existing in nature, so, claim for wind screen is not payable under the terms and conditions of the Policy. The complainant has violated the terms and conditions of policy by concealing true facts of loss. He was duty bound to show all facts related to loss so, his claim was rightly repudiated vide letter dt 13.07.2015. Pre inspection photographs are Ex OP-1/2. The contract of insurance is based on uberimma fides i.e utmost on good faith. The complainant has tried to show the pre-existing damages as damages suffered in alleged accident on 14.06.2015, which cannot be allowed. He has tried to cheat OP-1. It is wrong that wind screen of the car was damaged in accident on 4.05.2015. Regarding accident of 4.05.2014, claim was registered, processed and paid and even at that time, complainant did not press for claim of wind screen as he was aware of the fact that damages to wind screen was pre-existing at the time of insurance and not occurred in accident. It is wrong that Surveyor and employees of OP-3 got signed blank claim forms and other proforma from complainant. It is wrong that employees of OP-3 told complainant that wind screen was not available with them and would be replaced later on, rather complainant admitted that wind screen was damaged prior to inception of policy. The whole story regarding it is made by him. The complainant alleged in the claim showing the date of accident on 14.06.2015 and OP-3 duly appointed a Surveyor Mr Rahul Sethi to assess the loss, who assessed the loss for wind screen for Rs 26,232/- but damages to wind screen were pre-existing at the time of insurance so, it is not payable. Copy of the letter of Surveyor Inspection Report is Ex Op-1/1, claim form dt 14.06.2015 is Ex Op-1/3. It is wrong that complainant got back his car in good faith after the accident on 4.05.2015 without replacement of wind screen. It is further wrong that employees of OP-3 called him on 14.06.2015 for replacement of wind screen and complainant sent signed blank claim forms through his driver alongwith car to them and they themselves fill the claim form stating the date of loss as 14.06.2015. The entire story has been concocted later on by the complainant. he himself filled the claim form on 14.06.2015. As the damages were pre-existing so, same were not paid by the OPs and they rightly and legally repudiated the claim of complainant. There is no deficiency in service and trade mal practice on their part. The complainant has filed this false and frivolous complaint against Ops only to get illegal monitory benefits. The present complaint may be dismissed with costs.

   10                                    We have heard the ld counsel for complainant as well as OPs and have carefully gone through the record placed on file and pleadings made by them.

   11                                  The case of the complainant is that he is the owner of car which was insured with OP-1 from 9.02.2015 to 8.02.2016. The car met with an accident on 4.05.2015 and got damaged alongwith other parts, the wind screen of the car was also damaged. He duly intimated regarding it to OP-1, who appointed Surveyor. He took his car for repair to the workshop of OP-3. As at that time, wind screen was not available with them so they told him to replace the same later on and also told that they would inform regarding it on phone and on 14.06.2015, he received a call from OP-3 and asked to replace the wind screen. On it, he sent his car to the work shop of OP-3 alongwith duly singed blank claim forms through his driver. Employees of Op-3 wrongly wrote the said claim stating the date of accident as 14.06.2015. OP-1 rejected his claim on the ground that the loss of wind screen was pre-existing in the prior claim and also prior to purchase of insurance policy, which is altogether wrong. He never lodged claim stating the date of loss as 14.06.2015. OPs themselves filled the calim forms in connivance with each other and rejected his rightful and genuine claim on false grounds. There was no damage to the wind screen at the time of purchase of insurance policy. To controvert it, OP-1 argued that there were pre-existing damages to wind screen prior to inception of policy. They admitted that complainant lodged claim on 4.05.2015 in which he has shown damages to wind screen. They denied that at that time, wind screen was not available with OP-3 and it was told to complainant that it would be replaced later on. They argued that there were damages to wind screen prior to the purchase of insurance policy which is clearly shown in the photographs taken at the time of pre inspection as the complainant had knowledge that damages to the wind screen is pre-existing and therefore, he did not force for the claim of wind screen. In the prior claim of 4.05.2015, claim for other damages in that accident was duly assessed and paid. The complainant wrongly lodged a fresh claim stating the date of accident as 14.06.2015 and damages to wind screen was prior to the purchase of policy. So, as per terms and conditions of the policy, they have rightly rejected the claim for damages to wind screen.

   12                             We have carefully gone through the file and evidence brought on file by both the parties. Plea of the OP-1 is that the damage to the wind screen was pre-existing and it is admitted that they conducted pre insurance inspection of the vehicle. They argued that at that time, they took photographs of vehicle and in those photographs, the loss to the wind screen is clearly visible. Photographs are Ex Op-1/2. After careful scrutiny of photographs, it is observed that on these photographs, the date of click is printed as 8.02.2015, but in these photographs damages to the wind screen are not visible. Moreover, the complainant also produced the copy of Pre-Inspection Report dt 9.02.2015 as Ex C-7. In this report, it is clearly mentioned that front wind screen glass laminated and intact. So, from the photographs, which are produced by OP-1 themselves and relied upon and from Pre-Inspection Report produced by complainant, it is clear that there was no damage to the wind screen at the time of inception of Policy. So, the plea taken does not support OP-1 that damages to the wind screen were pre-existing from the inception of policy. It is admitted case of OP-1 that they never paid claim for the damages to the wind screen neither in the claim dt 4.05.2015 nor on 14.06.2015. complainant argued that his vehicle met with an accident on 4.05.2015 and never met with an accident on 14.06.2015. it is only the employees of OP-3 who filled the claim form stating the date of loss as 14.06.2015 where the loss to the vehicle was occurred on 4.05.2015 and not on 14.06.2015. So, in these circumstances, we are of the considered opinion that OP-1 wrongly and illegally repudiated the claim of complainant for the damages to the wind screen of his vehicle and these acts of Ops amount to deficiency in service and trade mal practice and hence, the complaint in hand is hereby allowed. OP-1 is ordered to pay Rs26,232/-as charges for replacement of wind screen of car of complainant as assessed by the Surveyor vide his report Ex C-1/1 alongwith interest at the rate of 9 % per anum from 13.07.2015, when they repudiated the claim of complainant till final realization. OP-1 is also directed to pay Rs 5000/-as compensation for harassment and mental tension and Rs2000/-as litigation expenses. Op-1 is directed to comply with the order within one month from the date of receipt of the copy of the order failing which complainant shall be entitled to initiate proceedings under Section 25 and 27 of Consumer Protection Act. Copy of the order be supplied to parties free of cost as per law. File be consigned to the record room.

   Announced in open Forum:

   Dated: 11.03.2016

   Member                Member            President (Parampal Kaur)         (P Singla)             (Ajit Aggarwal)