Chandigarh

StateCommission

A/147/2020

Bajaj Allianz General Insurance Company Ltd. - Complainant(s)

Versus

Harmeet Kaur Walia - Opp.Party(s)

Nikhil Sabharwal Adv.

18 Jan 2022

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

U.T., CHANDIGARH

 

Appeal No.	:	147 of 2020
Date of Institution	:	11.11.2020
Date of Decision	:	18.01.2022

 

Bajaj Allianz General Insurance Company Limited through its Director, SCO No.14, 4^th Floor, Urban Estate, Sector 5, Panchkula (Haryana).

……Appellant/Opposite Party No.1

 

V e r s u s

1. Harmeet Kaur Walia wife of Gursimran Singh, resident of House No.523, Sector 36-B, Chandigarh.

…..Respondent No.1/Complainant

2. Lally Automobiles (P) Ltd. through its Director, Plot No.6, Industrial Area, Phase-1, Chandigarh 160002. (deleted vide order dated 22.04.2021).

..Proforma Respondent

 

BEFORE:              JUSTICE RAJ SHEKHAR ATTRI, PRESIDENT

                             MRS.PADMA PANDEY, MEMBER.

                             MR.RAJESH K. ARYA, MEMBER.

 

Present through Video Conferencing:-

                             Sh.Nikhil Sabharwal, Advocate for the appellant.

                             Sh.Deepak Aggarwal, Advocate for respondent no.1.

                             Name of Respondent no.2 deleted vide order dated 22.04.2021.

                            

PER PADMA PANDEY, MEMBER

                  

                   This appeal has been filed by the appellant/opposite party no.1 (in short the appellant), as it is aggrieved of the order dated 28.07.2020 passed by the District Consumer Disputes Redressal Commission-I, U.T., Chandigarh (in short the District Commission), whereby the consumer complaint bearing no.226 of 2018 filed by respondent no.1/complainant (in short the respondent) was partly allowed and the appellant was directed as under:-

 “………i) to pay Rs.8,47,060.03 (as assessed by the surveyor) to the complainant alongwith interest @ 9% per annum from the date of repudiation i.e. 26.7.2016 till realization subject to the condition that the complainant will get the RC of the vehicle transferred in the name of OP-1 for its salvage value or get it cancelled plus the fact that it is not misused.

2. to pay an amount of Rs.20,000/- to the complainant as compensation for causing mental agony and harassment to her;
3. to pay Rs.10,000/- to the complainant as costs of litigation.

This order be complied with by OP-1 within thirty days from the date of receipt of its certified copy, failing which, it shall make the payment of the amounts mentioned at Sr.No.(i) & (ii) above, with interest @ 12% per annum from the date of this order, till realization, apart from compliance of direction at Sr.No.(iii) above……”.

2.           The District Commission noted down the following facts out of the consumer complaint filed by respondent no.1:-

“…..The averments in brief are, complainant is the owner of a Honda City car bearing registration No.CH-01-AU-0600 which was comprehensively insured with OP-1 for IDV of Rs.9,67,278/- on payment of premium of Rs.33,612/- through OP-2 and the insurance was valid w.e.f. 14.1.2015 to 13.1.2016.  Her case is, on 28.10.2015 during the currency of the insurance policy, the said vehicle while being driven by one Sh. Gursahib Singh Sidhu (family friend of the complainant and having valid driving licence), met with an accident and had turned turtle at Kashmir Gardens on Khanna-Doraha Road. A case for rash and negligent driving was registered against Gursahib Singh Sidhu and investigated by the police and chargesheet was put up.  Claim was submitted to OP-1 through OP-2 and certain documents were demanded and were also investigated into by the surveyor of OP-1/insurer. However, the claim was repudiated on the ground learned JMIC, Barnala had held Gursahib Singh Sidhu was not driving the vehicle in question on the material date and there was delay in intimation. The vehicle was total loss. Hence, the complainant filed the present consumer complaint for directing the OPs to pay IDV of Rs.9,67,278/- alongwith interest, compensation of Rs.2.00 lakhs and Rs.65,000/- as litigation expenses…...” 

3.           The contents of reply filed by the appellant to the consumer complaint filed by respondent no.1 were noted down by the District Commission in the order impugned, as under:-

“….OP-1 contested the consumer complaint, filed its written reply and, inter alia, raised preliminary objections of consumer complaint being not maintainable. The matter was processed as per the terms and conditions and it was found by the criminal court, Gursahib Singh Sidhu was not driving the vehicle and he was acquitted on this ground.  There was delay of 51 days in sending intimation by the complainant regarding the loss caused to the vehicle. Maintained the claim was rightly repudiated. On these lines, the cause is sought to be defended…”.

4.           Respondent no.2 also filed written reply to the consumer complaint filed by respondent no.1, which was noted down by the District Commission in the order impugned, as under:-

“….the insurance was facilitated through it from OP-1/insurer. As such, the facilitator cannot be burdened with the claim as it was processed by OP-1/insurer and the premium was also received by it. On these lines, the cause is sought to be defended….”

5.           The District Commission after hearing the contesting parties and  on going through the material available on record, partly allowed the consumer complaint in the manner stated above.
6.           Hence this appeal.         
7.           We have heard the contesting parties; gone through the material available on the record; and are of the considered opinion that this appeal deserves to be dismissed for the reasons to be recorded hereinafter.
8.           It is not in dispute that when the vehicle in question met with an accident on 28.10.2015 during the currency of the insurance policy, claim was filed with the appellant, yet, the same was repudiated on two grounds:-

 

1. firstly that the criminal court had held that Gursahib Singh was not driving the vehicle and he was acquitted on this ground; and
2. secondly that there was delay of 51 days in intimation by the complainant regarding the loss caused to the vehicle.

 

9.           First coming to the question, as to whether, Gursahib Singh was driving the vehicle at the relevant time or not, it may be stated here that we have gone through the FIR dated 28.10.2015 and found that it was clearly mentioned therein that Gursahib Singh was driving the vehicle at the relevant time, when it met with an accident. Not only as above, it is also coming out from the record that an application under Section 166 of Motor Vehicles Act, 1988 was filed by the claimants namely Kamli Devi wife of Gobind Kamat and others before the Court of Sh.Sukhdev Singh, Motor Accident Claims Tribunal, Barnala against Gursahib Singh and two others for grant of compensation on account of death of Gobind Kamat on 28.10.2015 in the said accident. In the said case, one of the issues involved was whether Gursahib Singh was driving the vehicle in question rashly and negligently or not. It is pertinent to mention here that it was specifically recorded in the order dated 05.04.2017, Annexure C-14 by the MACT Barnala, to the effect that acquittal of Gursahib Singh by any court, is of no help because the claimants have proved their case that it was he (Gursahib Singh Sidhu)only who was driving the vehicle in question. Resultantly, the claim was paid by the appellant company to the claimants.  This fact has not been disputed by the appellant. At the same time, there is nothing on record that the said order of MACT, Barnala, which was allowed in favour of the claimants holding in para no.18 that Gursahib Singh/respondent no.1 was driving the vehicle in question, stood challenged by the appellant. Had there been any order in favour of the appellant against the said findings, it could have placed on record but it is not so.

                   Similarly, undisputedly, in another application filed under Section 166 of MV Act by claimants namely Charanjit Kaur widow of Surinder Singh and others, before the Court of Sh.Harpal Singh Motor Accident Claims Tribunal, Barnala also, the above said issue that Gursahib Singh was driving the vehicle in question stood decided vide award Annexure C-15 passed  by the MACT, Branala, holding that it was he (Gursahib Singh) who was driving the vehicle in question.  Now, appeal under the said award is pending before the High Court.

                   In this view of the matter, plea taken by the appellant that Gursahib Singh was not driving the vehicle at the relevant time being devoid of merit stands rejected. At the same time, the defence taken by the appellant while placing reliance on order dated 17.3.2016 (Annexure R-4) to the effect that Gursahib Singh Sidhu was not proved to have been driving the vehicle and was acquitted, was rightly rejected by the District Commission while holding as under:-

 

“……The other point of defence raised by OP-1 is learned JMIC through its order dated 17.3.2016 (Annexure R-4) had held, Gursahib Singh Sidhu was not proved to have been driving the vehicle and the identity of the driver was not established, therefore, he was acquitted. It is not the case of the OP somebody else, who was not in possession of driving licence, was driving the vehicle at the relevant point of time. It is a question of standard of proof that the state could not establish to the hilt Gursahib Singh Sidhu was driving the vehicle and it was a criminal offence and the proof beyond reasonable doubt was required before Gursahib Singh Sidhu was held guilty and convicted for the act of rash driving. Even otherwise, criminal and civil proceedings or to say the quasi judicial proceedings which are being held by this Forum are separate, distinct and independent in its nature and does not make out under what rule of evidence contained in the Evidence Act, 1872 this judgment of criminal court can be used for the purpose of debarring the complainant for maintaining the instant consumer complaint against the Insurance Company. The judgment operates as a res judicata or to say the second trial of criminal offence on the same facts is barred and not a civil suit likewise that of the present consumer complaint. It is well-settled that a decision by a Criminal Court does not bind the Civil Court. Here we place reliance on the judgment of the Hon’ble Apex Court in case titled “Vishnu Dutt Sharma Vs. Smt. Daya Sapra”, Civil Appeal No.3238 of 2009 wherein it was held as under:-

“29. If judgment of a civil court is not binding on a criminal court, it is incomprehensible that a judgment of a criminal court will be binding on a civil court. We have noticed hereinbefore that Section 43 of the Evidence Act categorically states that judgments, orders or decrees, other than those mentioned in sections 40, 41 and 42 are irrelevant, unless the existence of such judgment, order or decree, is a fact in issue, or is relevant in some other provisions of the Act, no other provisions of the Evidence Act or for that matter any other statute had been brought to our notice.

30. Another Constitution Bench of this Court had the occasion to consider the question in Iqbal Singh Marwah & Anr. vs. Meenakshi Marwah & Anr. [(2005) 4 SCC 370]. Relying on M.S. Sheriff (supra) as also various other decisions, it was categorically held:

"32. Coming to the last contention that an effort should be made to avoid conflict of findings between the civil and criminal courts, it is necessary to point out that the standard of proof required in the two proceedings are entirely different. Civil cases are decided on the basis of preponderance of evidence while in a criminal case the entire burden lies on the prosecution and proof beyond reasonable doubt has to be given."

10.           As far as second ground taken by the appellant to the effect that there was delay on the part of respondent no.1 in intimating the said accident; it may be stated here that it is the definite case of respondent no.1 that intimation was given to respondent no.2 immediately, as he was the sole channel through which the policy in question was obtained by him from the appellant and also to the insurance company, by his father-in-law. Secondly, the intimation with regard to the accident in question was given immediately to the police station concerned, which is evident from the FIR dated 28.10.2015. Be that as it may, in Om Prakash Vs. Reliance General Insurance and ANR., [Civil Appeal No. 15611 of 2017 arising out of SLP (C) No.742 of 2015], decided on October 4, 2017, the Hon’ble Supreme Court has held as under:-

“…..It is also necessary to state here that it would not be fair and reasonable to reject genuine claims which had already been verified and found to be correct by the Investigator. The condition regarding the delay shall not be a shelter to repudiate the insurance claims  which have been otherwise proved to be genuine. It needs no emphasis that the Consumer Protection Act aims at providing better protection of the interest of consumers. It is a beneficial legislation that deserves liberal construction. This laudable object should not be forgotten while considering the claims made under the Act….”

11.           Not only as above, the Hon’ble National Commission also, in National Insurance Company Ltd.  Vs. Hukam Bai Meena , Revision Petition No. 3216 of 2016, decided on 01.08.2018 has held that a genuine claim is not to be rejected by the insurer only on account of delay in its submission. Relevant part of the said order reads as under:-

“…. It is thus evident that a genuine claim is not to be rejected by the insurer only on account of delay in its submission.  The insurer is required to enquire from the claimant as to what was the reason or the delay in submission of the claim.  The claim should be rejected only where the insurer finds that it was liable to be rejected even if it had been submitted in time.  In the present case, admittedly, no attempt was made by the insurer to ascertain the reasons for the delay in submission of the claim from the complainant.  Therefore, she did not get an opportunity to explain the said delay.  This is not the case of the petitioner that the husband of the complainant had not died in an accident or that he was not a depositor with Sahara India Commercial Corporation.  Therefore, it cannot be said that the claim would have been rejected even if it had been submitted in time..”.

12.           In the present case also, it is evident from the surveyor report Annexure R/3 that it has been opined that on account of the accident, the car is extensively damaged and beyond economical repairs. Relevant part of the said survey report is reproduced hereunder:-

“CAR EXTENSIVELY DAMAGED BEYOND ECONOMICAL REPAIRS. AGGREGATE COST OF REPAIR EXCEEDS 75 PERCENT OF THE IDV THEREFORE THIS IS A CASE OF CONSTRUCTIVE TOTAL LOSS SUBJECT TO ADMISSIBILITY OF THE CLAIM BY THE INSURER ON THE BASIS OF FINAL INVESTIGATION REPORT AND COURT ORDERS.”

Thus, when the surveyor itself has held that the car in question has been extensively damaged and beyond repairs, meaning thereby the fact that the accident in question took place has not been disputed, as such, it can be said that the claim raised is not fabricated and false. In this view of the matter also, in our considered view, once it has been proved that the claim filed by the insured is not fabricated and false, it would not be fair and reasonable for the insurance company to reject the claim, already found and verified to be corrected by the investigator.

13.           In view of peculiar facts and circumstances of this case, we are of the considered opinion that the act and conduct of the appellant in repudiating the genuine claim of respondent no.1 is not tenable and also amounts to deficiency in providing service and adoption of unfair trade practice. The District Commission was thus right in partly allowing the consumer complaint, in the manner stated above, which needs no interference of this Commission. Thus, the order impugned stands upheld. Resultantly, this appeal being devoid of merit is dismissed, with no order as to cost.
14.           Certified copies of this order be sent to the parties, free of charge.
15.           The concerned file be consigned to Record Room, after completion.

 

Pronounced

18.01.2022

Sd/-

 [JUSTICE RAJ SHEKHAR ATTRI]

PRESIDENT

 

 

Sd/-

 (PADMA PANDEY)

          MEMBER

 

 

Sd/-

 (RAJESH K. ARYA)

MEMBER

Gp.