STATE CONSUMER DISPUTES REDRESSAL COMMISSION, PUNJAB, CHANDIGARH.
First Appeal No.707 of 2018
Date of institution : 24.12.2018
Date of decision : 06.05.2019
Cholamandalam MS General Insurance Company Ltd., Regd and Head Office 2nd Floor, Dare House, 2 NSC Bose Road, Chennai-600001 through its Managing Director.
Now through its authorized signatory, Vikash Kumar Goyal, Deputy Manager Claims (Legal) Cholamandalam MS General Insurance Company Ltd. Plot No.6, Pusa Road, Karol Bagh, New Delhi-110005.
….Appellant/Opposite Party No.2
Versus
1. Bhupinder Singh aged 35 years son of Singar Singh resident of village Ladhu Wala Hithar, Tehsil Jalalabad District Fazilka, Mobile No.9465050074.
…..Respondent No.1/Complainant
2. Cholamandalam Investment and Finance and General Insurance Company Ltd., Above Sonalika Agency, First Floor, Opposite Nand Da Dhabha, Malout Road, Abohar-152116, Phone No.01634-226555 through its authorized signatory.
….Respondent No.2/OP No.1
First Appeal against the order dated 14.09.2018 of the District Consumer Disputes Redressal Forum, Ferozepur.
Quorum :-
Hon’ble Mr. Justice Paramjeet Singh Dhaliwal, President
Mrs. Kiran Sibal, Member.
Present:-
For the appellant : Sh. J.P. Nahar, Advocate
For the respondents : Ex-parte
MRS. KIRAN SIBAL, MEMBER
The instant appeal has been preferred by the appellant/opposite party No.2 challenging therein order dated 14.09.2018 passed by District Consumer Disputes Redressal Forum, Ferozepur (for short, “District Forum”) whereby the complaint filed by respondent No.1/complainant was allowed and OPs (appellant and respondent No.2) were directed to pay Rs.2,90,738/- to the complainant for repair of his vehicle vide bill Ex.C-9 and receipts Ex.C-7 and Ex.C-8 alongwith interest at the rate of 9% per annum from the date of filing the present complaint i.e. 26.10.2017 till final realization. OPs were further directed to pay Rs.6,000/- as consolidated compensation to complainant for harassment and mental agony suffered by him and on account of litigation expenses incurred by him within one month of receipt of the copy of the order.
2. It would be apposite to mention that hereinafter the parties will be referred, as have been arrayed before the District Forum.
Facts of the Complaint
3. Brief facts, as averred in the complaint, are that complainant got his vehicle make Renault Duster RXL (D) bearing registration No.PB-22K-4116 insured vide policy cover note No.3362/01343552/000/00 on 17.03.2017 on payment of premium amount of Rs.23,744/- for a period of one year from 17.03.2017 to 16.03.2018 with the OPs. Unfortunately the above said vehicle of the complainant met with an accident on 23.04.2017. Information in this regard was given to the OPs, who advised the complainant to park the vehicle in Benchmark Motors Pvt. Limited, 8th Mile Stone, Goniana Road, Bathinda for repair. The complainant after paying towing charges got the said vehicle parked at Bathinda on the next day. The opposite parties appointed a surveyor who visited the agency and got the photographs of the damaged vehicle and the opposite parties orally instructed the complainant to get the vehicle repaired and they would pay the insurance amount for the same. The surveyor submitted the estimate of Rs.3 lacs. Further it has been pleaded that the vehicle was got repaired and the dealer gave a bill of Rs.2,90,738/-. The complainant approached the opposite parties and requested them to pay the above said amount, which was spent on repair, but all in vain and the complainant had to pay the said amount as repair charges from his own pocket. Thereafter, he requested the opposite parties to reimburse the said amount and they asked to furnish documents, which were sent to the opposite parties. But the opposite parties repudiated the claim of the complainant on false ground that some spare parts of the vehicle were changed after the insurance and the same were not tallied with the earlier photographs clicked at the time of inspection of vehicle before insuring the same. Alleging deficiency in service and unfair trade practice on the part of the opposite parties. Complainant sought the following reliefs:-
(i) to pay Rs.2,90,738/- being the amount spent on the repair of the vehicle along with interest till payment.
(ii) to pay Rs.,1,00,000/- as compensation and damages on account of mental pain and agony and harassment.
(iii) to pay Rs.11,000/- as costs of litigation expenses.
4. Upon notice, only the opposite party No.2 appeared through counsel and contested the complaint by filing written reply, whereas, OP No.1 did not appear and was proceeded against ex parte vide order dated 21.12.2017.
5. OP No.2 in its written reply to the complaint raised certain objections that the complaint is not maintainable; complainant had no cause of action and locus standi to file the present complaint; that intricate questions of law and facts were involved; that the vehicle in question was used for commercial purpose; the complaint is bad for non-joinder and mis-joinder of necessary and proper parties. Complainant is estopped from filing the complaint; there was no deficiency in service on the part of the OP and the complaint is false, frivolous and vexatious. On merits, it was submitted that the vehicle in question is commercial vehicle. On receipt of information from the complainant, the OPs after verification with BI photos and alleged accident photo submitted by the complainant before OP, the same were found to have the following variations:-
1. Alloy Wheel
2. Door Rain Visor
3. Door and Mirror Stickers
4. Rear Bumper Bull Bar
5. Rear W.S. Glass Sticker
As such, the claim submitted by the complainant was repudiated on the ground of misrepresentation of fact on 24.08.2017. Complainant had violated the basic terms and conditions of the insurance policy of vehicle in question, as such, the claim of the complainant was rightly repudiated by the OP. All other allegations as made in the complaint were categorically denied and OP No.2 prayed for dismissal of the complaint.
Finding of the District Forum
6. Both the sides produced evidence in support of their respective averments before the District Forum, which after going through the same and hearing learned counsel on their behalf, allowed the complaint, vide impugned order. Hence this appeal.
7. Notice of the appeal was issued to the respondents. But they did not appear despite service and were proceeded against ex parte vide order dated 25.02.2019.
Contentions of the Parties
8. We have heard learned counsel for the appellant and have also gone through the record of the case.
9. Learned counsel for the appellant/OP No.2 vehemently contended that the District Forum did not appreciate that there is a marked difference between the photos taken at the time of pre-inspection of the vehicle while issuing the policy and the photos that were taken after the occurrence of loss by the surveyor. The District Forum had ignored the repudiation letter dated 29.08.2017 wherein the appellant had clearly stated that there is deliberate and wilful misrepresentation on the part of the complainant. The complainant by misrepresenting the facts had clearly breached the terms and conditions of the insurance policy. Averring on similar lines as stated in the grounds of appeal, learned counsel for the appellant/OP No.2 prayed for allowing the appeal.
Consideration of Contentions
10. We have given our thoughtful consideration to the contentions raised by the learned counsel for the appellant.
11. Admittedly, the vehicle of the complainant was insured with the OPs, which met with an accident and subsequent to the lodging of the claim for the loss of his vehicle with OPs, the OPs rejected the claim of the complainant. The only ground taken by the OPs for the rejection of the claim is that after verification with B1 photos and the alleged accident photos, submitted by the complainant are different from each other. The relevant portion of the repudiation letter is reproduced as under:-
“We wish to state on careful perusal of the documents it is evident that there has been a deliberate and wilful misrepresentation on your part regarding the date of loss at the material time of accident. Vehicle is different from Pre inspection photos & Final survey photo.
Observation- (1) Alloy wheel 2) Door rain visor 3) Door and Mirror stickers 4) Rear Bumper Bull bar and 5) Rear W.s glass sticker).
Hence we regret our inability to consider your claim on the ground of misrepresentation of facts”.
12. To determine this controversy, we have gone through the pleadings and evidence on record. A perusal of the photographs taken at the time of pre-inspection, which are placed on record as Annexure A-2(Colly) and the photographs taken by the surveyor after the accident exhibited as Annexure A-3, show that the variations relating to the Alloy wheel, Door Rain viser, Door and Mirror Stickers, Rear Bumper Bull Bar and 5) Rear W.S glass sticker only appear to be the cosmetic changes done to the said vehicle by the complainant as per his personal interest. The OPs have also not claimed that the insured vehicle and the accidental vehicle are different. The District Forum while considering the above facts has given its observations which are reproduced as under:-
“ Moreover, if there was any doubt regarding the identification of vehicle, it can be ascertained from engine and chassis number of the vehicle and there is no case of OPs that engine number and chassis number of accidental vehicle do not tally with insured vehicle. Moreover, there is no case of the OPs that due to these alleged variations there is any effect on the performance of the insured vehicle and the same is cause of accident in the present case. The alleged variations such as alloy wheel; door rain visor; door and mirror stickers; rear bumper bull bar and rear W.S Glass Sticker cannot change the identification of the vehicle or performance of the vehicle. It seems that Insurance Companies find lame excuses to deny the genuine claims of consumers on false grounds. Admittedly, vehicle of the complainant was insured with OPs under comprehensive Insurance Policy. The OPs cannot deny the claim of complainant on false grounds such as these minor variations i.e stickers etc. This act of repudiation of genuine insurance claim of complainant by OPs amounts to deficiency in service and trade mal practice”.
Furthermore, the OPs have failed to establish that at the time of insurance some other vehicle was brought to get the insurance cover by way of evidence. The vehicle registration number is mentioned as PB22K4116, and the engine number is mentioned as EO26367 and the chassis number is also mentioned as 5D6025275. This fact has not been disputed by the OPs in their written statement as well as in the appeal before us. The complainant on the other hand, vide Ex.C-2, Ex.C-3 and Ex.C-4 have produced the copies of the certificate of registration, insurance policy and the proposal form in which the said details are clearly mentioned. In the absence of any evidence and rebuttal by the OPs, the onus shifts on the OPs to prove that the said registration vehicle number and chassis and engine number are different for the vehicle in question. Therefore, we do not find any merit with this plea raised by the appellants and accordingly rejected.
13. Sequel to the above discussions, we find no merit in the appeal and the same is hereby dismissed.
14. The appellant/opposite party No.2 had deposited a sum of Rs.25,000/- at the time of filing of the appeal. This amount, along with interest which has accrued thereon, if any, shall be remitted by the registry to the District Forum forthwith. The complainant may approach the District Forum for the release of the above amount and the District Forum may pass the appropriate order in this regard after the expiry of limitation period in accordance with law.
(JUSTICE PARAMJEET SINGH DHALIWAL)
PRESIDENT
(MRS. KIRAN SIBAL)
MEMBER
May 6, 2019
SK/-
