Punjab

Ludhiana

CC/15/680

Gurcharan Singh - Complainant(s)

Versus

HDFC Ergo Gen.Ins.Co.Ltd. - Opp.Party(s)

Gagandeep Singh Adv.

26 Sep 2016

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, LUDHIANA.

 

Consumer Complaint No. 680 of 23.11.2015

Date of Decision          :   26.09.2016

 

Gurcharan Singh Passi aged about 67 years son of Sh.Sarwan Singh r/o H.No.1, Atam Nagar, Ludhiana c/o Sarwan Service Station, Opp. Preet Palace, Link Road, Ludhiana.

….. Complainant

Versus 

1.HDFC ERGO General Insurance Company Limited, Registered & Corporate Office Ist Floor, 165-166, Backbay Reclamation, H.T.Parekh Marg, Church Gate, Mumbai-400020.

2.HDFC ERGO General Insurance Company Limited, Branch office at 5^th Floor, Surya Tower, 88, Mall Road, Ludhiana-141001, through its Manager/Branch Manager.

3.Manager Claims of HDFC Ergo General Insurance Company Limited, Unit No.502, 504, 506, 5^th Floor, Mahatta Tower, B-I, Community Center, Janakpuri, Delhi-110058.

..…Opposite parties

 

 (COMPLAINT U/S 12 OF THE CONSUMER PROTECTION ACT, 1986)

 

QUORUM:

SH.G.K.DHIR, PRESIDENT

MRS. VINOD BALA, MEMBER

 

COUNSEL FOR THE PARTIES:

For Complainant                     :       Sh.Gagandeep Singh, Advocate

For OPs                         :       Sh.Vyom Bansal, Advocate

 

PER G.K DHIR, PRESIDENT

 

1.                          Complainant, the owner of Mercedes Benz S-Class-320-CDI L car bearing registration No.CH-01-AY-5141, got the same insured with Ops vide policy No.231120105048700000 for the period from 13.4.2015 to 12.4.2016. This car on 12.10.2015 was driven by Sh.Chanpreet Singh (the son of the complainant) for travelling from Jalandhar towards Ludhiana. When this car reached near Phagwara, then it met with an accident, due to negligent driving by a truck driver. Chanpreet Singh was following a track, but the said truck negligently changed the lane on the road due to a big pit hole in the center of the road. Chanpreet Singh could not see the pit hole in the center of the road while following the truck, due to which, his car fell into the big pit hole in the center of the road, resulting in bursting of the front tyre of the car and breaking of the alloy wheel as well as front shocker. Chanpreet Singh was holding a valid and effective driving license to drive the car. After damage to the car,  said Chanpreet Singh went to the nearest service station namely Gurmukh Denting Works, Near St.Joseph Convent School, G.T.Road, Phagwara. Thereafter, employees of the said service station took the car to that service station and repaired the same, for which, the complainant incurred expenses of Rs.1,12,554/-. Claim was lodged with Ops for the loss and damage to the car by submitting the relevant documents, but Ops failed to settle the claim. Rather, claim was repudiated vide letter dated 29.10.2015 without assigning any reasonable cause and with malafide intention. By pleading deficiency in service on the part of Ops, directions sought against Ops for calling upon them to pay Rs.1,12,554/- and compensation for mental harassment, pain and agony of Rs.25,000/-. Interest @12% p.a. also claimed.

2.                In joint written statement filed by Ops, it is pleaded interalia as if complainant is estopped by his act and conduct from filing the complaint; complainant has no cause of action within the territorial jurisdiction of this Forum; complaint alleged to be false, vexatious and frivolous; complainant alleged to be twisting the true facts for extorting illegal money by pretending to be an innocent consumer; complicated question of law and facts are involved, due to which, matter liable to be decided by the Civil Court; complainant himself has not complied with the terms and conditions of the insurance policy. Admittedly, the vehicle in question was insured with the Ops for the period from 13.4.2015 to 12.4.2016. On submission of claim by the complainant, the same was duly registered by the OPs and thereafter, independent surveyor and loss assessor namely Mr.Rahul Sethi was appointed for assessing the damage. After inspecting the vehicle, the said surveyor and loss assessor submitted report dated 5.11.2015 along with claim form and other documents. Claim for damages was not falling within the purview of the losses covered under section 1 of the policy, because it was found that there was no external impact which had damaged the tyre, alloy wheel and shocker. Rather, the said damage was because of extension of the damage to the vehicle caused due to running of the same on a damaged tyre for long distance. Driver of the insured vehicle at the time of damage did not take necessary steps for avoiding any extension to the vehicle, but continued to run the same even on a damaged tyre, resulting in loss in question and as such, in view of the exclusionary clauses of the policy, the claim was duly repudiated. Further, it is claimed that there is no deficiency in service on the part of OPs. Each and every other averments of the complaint denied.

3.                Complainant to prove his case tendered in evidence his affidavit Ex.CA; affidavit Ex.CB of Sh.Chanpreet Singh (driver-cum-son of the complainant); Ex.CC of Sh.Gurmukh Singh( an expert running a workshop) and even tendered documents Ex.C1 to Ex.C7 and thereafter, counsel for complainant closed the evidence.

4.                On the other hand, counsel for OPs tendered in evidence affidavit Ex.RA of Sh.Pankaj Kumar, Manager Legal-Claims of Ops along with affidavit Ex.RB of Sh.Rahul Sethi, the appointed surveyor and loss assessor and even tendered documents Ex.R1 to Ex.R4 and thereafter, closed the evidence.

5.                          Written arguments not submitted by any of the parties. Oral arguments alone addressed and those were heard. Records gone through minutely. 

6.                Facts regarding insurance of the vehicle in question admitted by both the parties. Repudiation of the claim took place through letter Ex.C6=Ex.R4. After going through Ex.C6=Ex.R4, it is made out that repudiation of the claim took place because damage to the tyre, alloy wheel and right front shocker leakage was not due to any accidental external means, but the same was due to aggravation of loss because after tyre damage the vehicle was driven. It was found through this repudiation letter Ex.C6=Ex.R4 that claim falls under the exclusionary clauses of the terms and conditions of the policy. Bone of contention remains as to in what way the damage to the tyre, alloy wheel and right front shocker took place.

7.                Complainant has tendered in evidence affidavit Ex.CB of Sh.Chanpreet Singh, who was driving the car in question at the time of accident on 12.10.2015. It is claimed by this driver Sh.Chanpreet Singh through affidavit Ex.CB that in view of the obstruction of front view because of going ahead          of the truck, he could not see the big pit hole in the center of the road,          resulting in falling of the car in the same and damage to alloy wheel, front shocker etc. As per this affidavit Ex.CB, front tyre of the car got burst after falling of the same in the big pit hole in the centre of the road. Further, by taking us through affidavit Ex.CC of Sh.Gurmukh Singh, it is contended that this damage was due to external means.

8.                Even if affidavit Ex.CC of Sh.Gurmukh Singh there on record to show that he is running a reputed workshop under the name and style of Gurmukh Denting Works, Near St.Joseph Convent School situate at G.T.Road, Phagwara, but despite that this Gurmukh Singh has not disclosed his educational qualification or experience in the mechanical line of driving and testing of the motor vehicles. Rather, through affidavit Ex.CC, it is claimed by Sh.Gurmukh Singh that he is running Gurmukh Denting Works concern, which means that this Gurmukh Singh is conversant with denting works only. A person holding experience of        denting works cannot be said to be having experience of mechanically repairing  the cars and as such, statement of Gurmukh Singh not enough to hold that actually the damage to the car caused because of bursting of the tyre on account of fall of the front tyre of running car in the big pit hole alone. Non-mentioning of the educational qualification or experience longevity by Gurmukh Singh enough to hold that this witness produced just for corroborating the claim of the complainant, particularly when this Gurmukh Singh is not an independent surveyor or mechanic.

9.                Mr.Rahul Sethi is a registered surveyor and loss assessor holding SLA No.72924 with validity upto 6.4.2020. So, Mr.Rahul Sethi, whose affidavit Ex.RB tendered in evidence by Ops has experience of assessing the loss of motor vehicles. This Mr.Rahul Sethi due to registration with IRDA, certainly is an independent surveyor. After receipt of the report Ex.R2 of this Mr.Rahul Sethi, the claim was repudiated vide letter Ex.C6=Ex.R4. This Mr. Rahul Sethi through report Ex.R2 claimed that damage to the tyre, alloy wheel and leakage of right front shocker was not due to any accidental external means, but the same was due to aggravation of loss because even after damage to the tyre, the vehicle continued to be driven. This report Ex.R2 was submitted by this Mr.Rahul Sethi on the basis of physical inspection of the accidental car and as such, this report has more authenticity as compared to the version of Gurmukh Singh suffered through affidavit Ex.CC.

10.              Contents of para no.3 of affidavit Ex.CC of Sh.Gurmukh Singh discloses that said affidavit got drafted by the counsel for the complainant at the instructions and on disclosure of facts by Gurmukh Singh. However, contents of para no.5 of affidavit Ex.RB of Mr.Rahul Sethi discloses that report submitted by him is an independent in nature and is based on the facts disclosed by him after inspecting the vehicle. This affidavit Ex.RB does not disclose that it was drafted with the intervention of any legally trained mind. So, affidavit Ex.CC got prepared from the legally trained mind by the deponent, who has not disclosed the nature, type and longevity of his experience. Rather, to the contrary contents of affidavit Ex.RB of Mr.Rahul Sethi discloses as if the same prepared by an independent surveyor registered with IRDA on the basis of his factual observations. So, reliance on report Ex.R2 along with contents of affidavit Ex.RB should be placed instead of reliance on affidavit Ex.CC.

11.              Invoice Ex.C4 of Gurmukh Denting Works signed by Sukhdarshan Singh and not by Sh.Gurmukh Singh, whose affidavit Ex.CC tendered. Besides, on this invoice of Gurmukh Denting Works(Ex.C4), it is mentioned as if the said concern deals with body repair of Mercedes car and all other kind of body repair. So, invoice Ex.C4 fortifies our conclusion that actually Gurmukh Denting Work deals with the work of body repair only and not with the mechanical correction of the car. A person dealing with body repair of the vehicle definitely cannot  disclose the cause of damage to the alloy wheel and tyre. So, affidavit Ex.CC   does not prove that actually the car got tested from a mechanic of experience.

12.              Ex.C1=Ex.R1 is the copy of insurance policy cover note. Terms and conditions annexed with Ex.R1 discloses that as per section 1 of the terms and conditions of the insurance policy, the company to indemnify the insured against loss or damage to the vehicle insured and/or its accessories, caused thereto by accidental external means or by fire explosion self ignition or lightning etc. However, damage to the car in question caused not due to accidental external means, but because of running of the car on burst damaged tyre and as such, certainly submissions advanced by counsel for the Ops has force that repudiation of the claim is justified in view of Section 1(vi) of the terms and conditions of the insurance policy Ex.R1.In view of this, there is no deficiency in service on the part of Ops.

13.              Therefore, as a sequel of the above discussion, the present complaint merits dismissal and the same is hereby dismissed without any order as to costs. Copies of order be supplied to the parties free of costs as per rules.

14.                        File be indexed and consigned to record room.

 

                      (Vinod Bala)                                (G.K.Dhir)

                       Member                                          President

Announced in Open Forum

Dated:26.09.2016

Gurpreet Sharma.