Haryana

Ambala

CC/142/2018

Jaswinder Kaur - Complainant(s)

Versus

HDFC ERGO Gen Inss Co Ltd - Opp.Party(s)

16 Oct 2019

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, AMBALA.

 

                                                          Complaint case No.:  142 of 2018.

                                                          Date of Institution  :   08.05.2018.

                                                          Date of decision    :   16.10.2019.

 

Jaswinder Kaur wife of Sh. Sukhdev Singh resident of village Chotti Kohri, Thesil-Naraingarh, District Ambala, C/o UMA Industries Village Ogli, Nahan Road Kala Amb, Tehsil-Nahan, District Sirmour (H.P.)

          ……. Complainant.

                                                Versus

 

1. HDFC ERGO General Insurance Company Limited Ist Floor HDFC House 165-166 Backbay Reclamation H.T. Parekh Marg Churchgate Mumbai-400020.
2. HDFC ERGO General Insurance Company Limited SCO-124-125, Sector-8, Madhya Marg, Chandigarh-160008.

 

               ….…. Opposite Parties.

Before:        Smt. Neena Sandhu, President.

                   Smt. Ruby Sharma, Member.

Shri Vinod Kumar Sharma, Member.         

                            

Present:       Shri Amar Singh, Advocate, counsel for complainant.

Shri Mohinder Bindal, Advocate, counsel for the OPs.

 

Order:        Smt. Neena Sandhu, President

Complainant has filed this complaint under Section 12 of the Consumer Protection Act, 1986 (hereinafter referred to as ‘the Act’) against the Opposite Parties (hereinafter referred to as ‘OPs’) praying for issuance of following directions to them:-

1. To pay the claim amount of Rs.2,56,236/- alongwith interest @12% p.a.
2. To pay Rs.1,50,000/- as compensation for mental agony and physical harassment suffered by the complainant.
3. To pay travelling expenses @ Rs.5,000/- per day w.e.f 31.12.2017 for 90 days.
4. To pay Rs.50,000/- as cost of litigation.
   382.  

                   Any other relief which this Hon’ble Forum may deem fit.

 

Brief facts of the case are that the complainant is the owner of Toyota Kirloskar Car Corolla Altis J Diesel bearing registration No.HR-01-AM-3967. The said car was duly insured with the OP No.1 vide policy No.2311100259262200000, for the period from 20.12.2017 to 19.12.2018, having Insured’s Declared Value of Rs.8,00,000/-, against advance payment of premium quoted by OP No.1. On 30.12.2017, at 9:00 A.M. the complainant and her son were going to their work and the car was being driven by her son namely Ankush. On the said date there was dense fog and visibility was very low due to which 5-7 cars collided with each other, as a result whereof, the car of the complainant also got damaged badly from the front side. Intimation about the accident was given to opposite parties.  The spot survey was conducted by the Surveyor of the opposite parties, who clicked the photographs of the damaged car. On the advice of the surveyor the car was shifted to the authorized service centre i.e. Toyota Global Automobile Pvt. Ltd., for repairs, where again photographs were clicked and repair estimate was made to the tune of Rs.2,56,236/-. Complainant lodged the claim with the OP No.2. On 13.01.2018, vide E-mail, she provided all the requisite information and documents to the surveyor. On 18.01.2018, the OPs sent an E-mail to the Globe Automobiles Pvt. Ltd. stating therein that “please do not release the vehicle on cashless basis”. After her car for repair the complaint had hired a taxi/cab @ Rs.5,000/- per day from 31.12.2017 for 90 days. Thus, the OPs are liable to pay the said amount alongwith the repair charges, but the OPs instead of paying the said amount have wrongly repudiated her claim vide letter dated 15.02.2018. Complainant served a legal notice dated 04.04.2018, upon the OPs through registered post, but of no avail. By not paying the genuine claim of complainant, the OPs have committed deficiency in service. Hence, the present complaint.

2.                 Upon notice, OPs appeared through counsel and filed written version, raising preliminary objections regarding maintainability, not approached to the Forum with clean hands, suppressing of true and material facts, no jurisdiction, no cause of action has arisen to the complainant to file the present complaint. The complainant availed the insurance policy in question malafidely, by misrepresentation and concealment of facts by playing fraud upon the opposite party with the sole motive to get compensation for the damages to her car which were existed much prior to the commencement of insurance policy in question. On merits, it is stated that the OPs have not appointed any surveyor for spot survey, thus the question of giving direction by the surveyor to the complainant for shifting of the accidental car to the Globe Automobiles does not arise. After scrutinizing all the documents the OPs have rightly repudiated the claim. Rest of the allegations levelled by the complainant were denied for lack of knowledge and prayer has been made for dismissal of the present complaint with costs.

3.                The ld. counsel for the complainant tendered affidavit of complainant as Annexure CA alongwith documents as Annexure C-1 to C-9 and closed the evidence on behalf of complainant. On the other hand, learned counsel for OPs tendered affidavits of Shri Pankaj Kumar, Legal Manager & authorized signatory, HDFC Ergo General Insurance Company Limited and A.K.Chatwal, surveyor Prop., M/s Chhatwal & Associates, Insurance Surveyors & Loss Assessors as Annexure OP/A and Annexure OP/B alongwith documents Annexure OP1 to OP24 and closed the evidence on behalf of OPs.

4.                We have heard the learned counsel of the parties and carefully gone through the case file.

5.                 The learned counsel for the complainant has argued on 30.12.2017, the duly insured car of the complainant met with an accident and got damaged. Spot survey was conducted by the surveyor, appointed by the OPs and on his advice the accidental car was shifted to the authorized service centre of the Toyota Global Pvt. Ltd. for repairs. The said service centre assessed the loss to the tune of Rs.2,56,236/-. Complainant lodged the claim with the OPs. However, they did not bother to process the claim and vide their E-mail dated 13.01.2018, asked the service centre, not to release the car on cashless basis. Thereafter, vide letter dated 15.02.2018 (Annexure C-7), the OPs repudiated her genuine claim. The said act of the OPs amounts to deficiency in service.

6.                On the contrary, the learned counsel for OPs argued that the complainant has wrongly alleged that a spot survey was conducted by the surveyor. The complainant shifted the accidental car to the Toyota Global Pvt. Ltd. on her own sweet will. The surveyor who conducted the final survey of the damaged car has reported that complainant has played fraud by projecting her car damaged in a false incident on dated 03.12.2017. Accordingly, the matter was investigated in detail and it was found that the complainant, earlier got insured the car in question from New India Assurance Co. Ltd. for the period from 26.10.2017 to 25.10.2018, which was cancelled by the said insurance company due to dishonour of the cheque issued by the complainant. Thereafter, complainant took insurance policy in question from OPs on 20.11.2017, by concealing the above said fact. On comparison, it was found that the photographs taken by the New India Assurance Co., and the photographs of the damaged car taken by the surveyor are similar, but are different from the photographs provided at the time of taking the policy in question. He further argued that under the insurance contract utmost good faith must be observed by the insured, whereas, the complainant had taken the policy in question by misrepresentation, therefore, as per terms and conditions of the policy, the OPs have thus rightly repudiated the claim. The present complaint filed against them may kindly be dismissed with costs.

7.                The stand of the OPs is that the complainant had taken the insurance policy in question by mis-representation. To corroborate this fact, they have placed on record some photographs (Annexure OP8 to OP24) and the report of the Surveyor (Annexure OP6). On perusal of all the photographs it has been observed by us that there is no photograph showing the chassis and engine number either of the insured car or of the accidental car. Bare reading of surveyor report dated 14.02.2018 (Annexure OP6), reveals that the surveyor has opined that “Pre-inspection report dated 20.12.2017, found prepared by using the captioned accidental vehicle’s photo of back side, chassis No., Engine No. And speedometer reader + using another intact Altis car’s, photos of front side, front left side and front right side while both vehicles lying at nearby different location”. However, in the said report there is no mention of the chassis and engine number either of the insured car or of the accidental car. No substantive evidence has been produced by the surveyor in support of his report, therefore, no reliance can be placed on the said report to arrive at a conclusion that the complainant had taken the insurance policy in question by misrepresentation and the chassis and engine number of the accidental car was different from that of the insured car. Even, the OPs have not placed on record any cogent evidence to establish that the chassis and engine number of accidental car is different from the insured car. Merely, on the basis of photographs, inference cannot be drawn that insured car is different from the damaged car. Taking in view this factual position, we do not hesitate to conclude that OPs are not justified in not paying the repair charges to the complainant. From the invoice dated 15.01.2018, Annexure C-3, it is evident that the Globe Automobiles Pvt. Ltd., has raised the bill of Rs.2,56,236/- for the repair of car in question. As such, the OPs are liable to pay the said amount to the complainant after making necessary deduction, as per the terms and conditions of the policy. The OPs are also liable to compensate to the complainant for the mental agony and physical harassment suffered by her alongwith litigation expenses.

8.                In view of the aforesaid discussion, we allow the present complaint and direct the OPs in the following manner.

1.           To pay the repair charges of Rs.2,56,236/- after making necessary deduction, as per terms and conditions of the policy alongwith interest @ 7% per annum from the date of repudiation of the claim i.e15.02.2018 till realisation. 

2.           To pay Rs.5,000/- as compensation for mental agony and physical harassment suffered by complainant.

         3.            To pay Rs.3,000/- as litigation expenses.

                    The OPs are further directed to comply with the aforesaid directions within the period of 30 days from the date of receipt of the certified copy of this order. Certified copy of this order be supplied to the parties concerned, forthwith, free of cost as permissible under Rules. File be indexed and consigned to the Record Room.

Announced on :16.10.2019.

     (Vinod Kumar Sharma)            (Ruby Sharma)     (Neena Sandhu)              Member                                 Member             President