Haryana

Karnal

CC/603/2020

Vijay Kumar Verma - Complainant(s)

Versus

Cholamandalam MS General Insurance Company Limited - Opp.Party(s)

Rakesh Sharma

19 May 2023

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, KARNAL.

                                                        Complaint No. 603 of 2021

                                                        Date of instt.22.12.2020

                                                        Date of Decision:19.05.2023

 

Vijay Kumar Verma proprietor of Lucky Goods Carrier, 229, G.T. Road, New Grain Market, Karnal.

                                               …….Complainant.

                                              Versus

 

Cholamandalam MS General Insurance Co. ltd. SCO NO.334, Basement Mugal Canal Market, Karnal, through its Branch Manager, (Insurer of the vehicle).

                                                                      …..Opposite party.

 

Complaint Under Section 35 of Consumer Protection Act.

 

Before   Sh. Jaswant Singh……President.       

      Sh. Vineet Kaushik…….Member

      Dr. Rekha Chaudhary….Member

 

 

 Argued by: Shri Rakesh Sharma, counsel for the complainant.

Shri Naveen Khetarpal, counsel for the OP.

 

                    (Jaswant Singh President)

 

ORDER:  

 

                The complainant has filed the present complaint Under Section 35 of Consumer Protection Act, 2019 against the opposite party (hereinafter referred to as ‘OP’) on the averments that the complainant is the registered owner of vehicle No.HR45C-1821 and got the same insured with the OP against Policy No.3379266961889 which was valid upto 11.08.2020 to 10.08.2021 for an amount of Rs.58,606/-. On 19.09.2020, the vehicle was hired for carrying the goods from Jaipur to Ambala by Dwarika Roadline, Jaipur. The said vehicle was being driven by its driver Vijender Kumar. When the vehicle reached ahead Jaipur then suddenly an unknown car came at a very high speed acrossing the aforesaid vehicle and came in front of the vehicle and when the driver noticed then he turned the vehicle in order to save the persons of unknown car, resultantly, the aforesaid vehicle fell down in a ditch adjacent to the berm of road and front portion as well as frame/chassi etc got damaged. After the accident, complainant sent intimation regarding accident to the OP forthwith and according to the instruction of OP, complainant brought the damaged vehicle to workshop of Tata Motors, Karnal and surveyor of OP inspected the damaged vehicle and gave all the necessary papers, blank cheque etc to the surveyor. The surveyor has assessed the damage estimate as Rs.1,36,100/- on 24.10.2020. Inspite of submitted the required documents, the OP did not make the payment of aforesaid damaged vehicle. Complainant many times visited and requested the OP to repair the vehicle but the OP neither the vehicle got repaired nor paid the assessed amount. Hence, the act of the OP by not paying the amount of damaged vehicle amounts to deficiency in service and unfair trade practice. Thus, prayed for allowing the complaint.

2.             On notice, OP appeared and filed its written version raising preliminary objections regarding suppression of true and material facts, jurisdiction, mis-joinder, etc. On merits, it is submitted that vehicle bearing No.HR45C-1821 in the name of Lucky Goods Carrier, was insured from 11.8.2020 to 10.8.2021 with the OP. It was clearly stated in the policy schedule that “the insurance under this policy is subject to conditions, clauses, warranties, exclusions etc.” The complainant has accepted the policy agreeing and being fully aware of such terms and conditions. It is further submitted that after getting the intimation regarding damage of complainant’s vehicle, OP immediately appointed an independent IRDA approved licensed surveyor for loss assessment and survey of vehicle. During initial survey, it was found that damages reported to vehicle are not due to any kind of external accidental impact. Impact to vehicle may be due to mechanical or material fault, which is not covered under the said policy. OP has sent a letter dated 06.10.2020 to complainant in this regard and asked him to let us have the documents/information within 7 days from the date of receipt of this letter to enable OP to proceed further but neither any reply nor any document was received from complainant. OP again sent letter dated 12.10.2020 while stated that the claim cannot be kept open for indefinite period of time. Failing the receipt of documents within stipulated period, OP shall be constrained to treat the said claim as No claim. The other allegations made in the complaint have been denied and prayed for dismissal of the complaint.

3.             Parties then led their respective evidence.

4.             Learned counsel or the complainant has tendered into evidence affidavit of complainant Ex.CW1/A, copy of policy Ex.C1, copy of letter dated 19.8.2020 Ex.C2, copy of RC Ex.C3, copy of statement Ex.C4, copy of letter Ex.C5, copy of Aadhar Card Ex.C6, coy of authorization Certificate Ex.C7, copy of permit Ex.C8, copy of permit Ex.C9, copy of Aadhar Card Ex.C10, copy of letter dated 19.10.2020 Ex.C11, copy of receipt Ex.C12, copy of invoice  Ex.C13, copy of RC Ex.C14 and closed the evidence on 05.04.2022 by suffering separate statement.

5.             On the other hand, learned counsel for the OP has tendered into evidence affidavit of Sujeet Kumar Sahu, Legal Manager as Ex.RW1/A, copy of survey report Ex.R1, copy of letter dated 6.10.2020 Ex.R2, copy of letter dated 12.10.2020 Ex.R3, copy of letter dated 19.10.2020 Ex.R4, copy of policy Ex.R5, copy of policy wording of motor package Ex.R6, and closed the evidence on 29.08.2022 by suffering separate statement.

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

7.             Learned counsel for complainant, while reiterating the contents of the complaint, has vehemently argued that complainant is the registered owner of vehicle No.HR45C-1821 which was insured with the OP, valid upto 11.08.2020 to 10.08.2021 for an amount of Rs.58,606/-. On 19.09.2020, the vehicle was hired for carrying the goods from Jaipur to Ambala by Dwarika Roadline, Jaipur and in the way in order to save the another vehicle, the driver turned the vehicle in question, due to which, the vehicle fell down in a ditch adjacent to the berm of road and front portion as well as frame/chassi etc got damaged. After the accident, complainant sent intimation regarding accident to the OP forthwith and according to the instruction of OP, complainant brought the damaged vehicle to workshop of Tata Motors, Karnal and surveyor of OP inspected the damaged vehicle and gave all the necessary papers, blank cheque etc to the surveyor. The surveyor has assessed the damage estimate as Rs.1,36,100/- but despite repeated requests the neither the OP paid the assessed amount nor got the said vehicle repaired. Hence, the act of the OP by not paying the amount of damaged vehicle amounts to deficiency in service and unfair trade practice and lastly prayed for allowing the present complaint.

8.             Per contra, learned counsel for the OP, while reiterating the contents of written version, has vehemently argued that the vehicle bearing No.HR45C-1821 is in the name of Lucky Goods Carrier, and was got insured from 11.8.2020 to 10.8.2021 with the OP. It was clearly stated in the policy schedule that “the insurance under this policy is subject to conditions, clauses, warranties, exclusions etc.” The complainant has accepted the policy agreeing and being fully aware of such terms and conditions. It is further submitted that after getting the intimation regarding damage of complainant’s vehicle, OP immediately appointed an independent IRDA approved licensed surveyor for loss assessment and survey of vehicle. During initial survey, it was found that damages reported to vehicle are not due to any kind of external accidental impact. Impact to vehicle may be due to mechanical or material fault, which is not covered under the said policy. Further, the complainant neither submitted the documents within stipulated period and thus, complainant is not entitled for any claimand lastly prayed for dismissal of the complaint.

9.             The claim of the complainant has been repudiated by the OP vide letter Ex.C11 on the ground that the damage to the vehicle is not due to any “Accidental External Means. As the damage to the vehicle are not one arising out of an accident as represented by him.

10.           Admittedly, complainant is owner of the vehicle in question bearing registration No.HR45C-1821 being proprietor of Lucky Goods Carrier. It is also an admitted that the vehicle was got insured with the OP.  

11.           The onus to prove that the vehicle was not damaged due to an accident was lying upon the OP but the OP has miserably failed to prove this fact by leading cogent and convincing evidence.

12.           The OP has taken another plea that they have demanded documents from the complainant vide letter Ex.R2 and Ex.R3 but the complainant failed to provide the documents within stipulated time, thus they repudiate the claim of the complainant. In the alleged letters Ex.R2 and R3, it has not mentioned that what documents had been demanded by them from the complainant. Further the said letters Ex.R2 and Ex.R3 does not bear any receiving of the complainant nor the OP had placed on record any postal receipts in order to prove the fact that they have sent the letters to the complainant by post. On the other hand, as per version of the complainant he has already supplied the requisite documents to the OP. Thus, this plea of the OP is not tenable in the eyes of law.

13.           Further,  Hon’ble Punjab and Haryana High Court in case titled as New India Assurance Company Ltd. Versus Smt. Usha Yadav & others 2008 (3) RCR (Civil) 111, has held as under:-

“It seems that the Insurance Companies are only interested in earning the premiums which are rather too stiff now a days, but are not keen and are found to be evasive to discharge their liability. In large number of cases, the Insurance companies make the effected people to fight for getting their genuine claims. The Insurance Companies in such cases rely upon clauses of the agreements, which a person is generally made to sign on dotted lines at the time of obtaining policy. This is, thus pressed into service to either repudiate the claim or to reject the same. The Insurance Companies normally build their case on such clauses of the policy, but would adopt methods which would not be governed by the strict conditions contained in the policy”.

14.           As per the survey report dated Ex.R1, loss has been assessed by the surveyor of the OP to the tune of Rs.1,18,053/- but complainant has claimed Rs.1,36,100/- thus, the complainant is entitled for Rs.1,18,053/- as the report of the surveyor will prevail. In this regard we are relying upon the authority 2(2008) CPJ paged 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 provision of Insurance Act, 1938.

15.           Keeping in view the ratio of the law laid down in the abovesaid judgments as well as the facts and circumstances of the case, we are of the considered view that the OP is liable to pay the loss assessed by the surveyor alongwith interest, compensation for mental agony and harassment and litigation expenses.

16.           In view of the above discussion, we partly allow the present complaint and direct the OP to pay Rs.1,18,053/- (Rs. One lac eighteen thousand and fifty three only) to the complainant alongwith 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 of the order accordingly and the file be consigned to the record room after due compliance.

Announced

Dated:19.05.2023                                                                   

 

                                                                  President,

                                                       District Consumer Disputes

                                                       Redressal Commission, Karnal.

      

(Vineet Kaushik)             (Dr. Rekha Chaudhary)

                     Member                          Member