Before the District Consumer Disputes Redressal Commission, Rohtak.
Complaint No. : 340.
Instituted on : 16.07.2019.
Decided on : 06.02.2023.
Naresh Kumar, aged 37 years son of Sh. Surajbhan, R/o H. No.28, V.P.O. Rindhana(4), District Sonipat.
………..Complainant.
Vs.
HDFC ERGO General Insurance Company Limited, 1st Floor, HDFC House, Backbay Reclamation, H.T. Parekh Marg, Churchgate, Mumbai-400020 through its Manager.
……….Opposite party.
COMPLAINT U/S 12 OF CONSUMER PROTECTION ACT,1986.
BEFORE: SH.NAGENDER SINGH KADIAN, PRESIDENT.
DR. TRIPTI PANNU, MEMBER.
DR.VIJENDER SINGH, MEMBER
Present: Sh. Digvijay Singh Jakhar, Advocate for the complainant.
Sh. Gulshan Chawla, Advocate for opposite party.
ORDER
NAGENDER SINGH KADIAN, PRESIDENT:
1. Brief facts of the case as per the complainant are that he is a registered owner of vehicle i.e. Nissan Terrano XVD THP bearing registration No. HR11F4353, and the same was got insured from respondent vide policy no.2311201537352302000 dated 25.10.2018 for IDV of Rs.8,73,069/- and paid the premium of Rs.28,842/- for the period from 29.10.2018 to 28.10.2019 midnight. The above said vehicle met with an accident on 23.02.2019 around 9.00 p.m and was burnt 100% i.e. total loss as an animal (Neel cow) came in front of it and while saving the said Neel cow, the car collided with a tree and caught fire near village Titoli. In this regard, the complainant’s friend Sh. Varun Kumar informed the Fire Brigade Station, Rohtak and he also informed the police at No.100. The Fire Brigade authorities control the fire and police authorities registered the said incident under DDR no.3. On the next day, the intimation was also given at the respondent’s toll free number, and the respondent generated a claim no.C23001845260 for further proceedings. The complainant’s friend Sh. Varun Kumar again called at the respondent’s toll free number and they provided the contact number of Sh. Anoop and he provided the number of Surveyor namely, Sh. Sunny Goel, who was appointed as a Surveyor. He conducted the spot survey on 25-26.02.2019 and assured to settle the claim as the vehicle is total loss and asked him to sign some blank papers and told him for repairing estimate. After few days, the surveyor told the complainant that the claim is not registered and he has to register the same again and the respondent again registered it on 4.3.2019 and the complainant handed over the relevant documents as asked by the surveyor. Later on claim was deputed for forensic analysis by the respondent and the complainant’s vehicle was again inspected on 4.3.2019(as per letter dated 25.4.2019) by Institute of Forensic Science, Gujarat. The complainant was surprised that his claim was repudiated vide letter dated 25.04.2019 on the ground that: “From the above findings it takes us to conclude that material facts were misrepresented to take claim with mala fide intention”. Opposite party has intentionally repudiated the claim whereas complainant never hide anything from the respondent. Complainant has marked several emails and also served a legal notice dated 15.6.2019 to the opposite party, but no response has been received. Hence, this complaint and it is prayed that the opposite party may kindly be directed to make the payment of Rs.8,73,069/- on account of IDV alongwith interest @ 12% w.e.f. date of accident to till the date of final payment and also to pay an amount of Rs.75,000/- on account of harassment and litigation expenses to the complainant.
2. After registration of complaint, notice was issued to the opposite party. Opposite party in its reply has submitted that the alleged incident of fire was intimated to the answering OP on 10.06.2018(wrongly mentioned as the date of incident is 23.02.2019 and the same cannot be intimated earlier). After receiving information about the alleged accident, the answering respondent appointed an IRDA licensed Surveyor. An investigator cum forensic expert (Institute of Forensic Science, Gujrat) was also appointed to examine the loss to ascertain genuine cause of the fire. During the investigation and forensic analysis done by the expert, it was found that the fire was not accidental in nature but was incendiary. On getting the report from the Institute of Forensic Science, Gujrat, it came to the picture that Residual Petroleum Hydro Carbon(RPSC) were detected in both the debris sample collected. The expert of Institute of Forensic Science, Gujrat concluded that probable cause of fire to the insured vehicle is attributed to ARSON (Stage managed/fabricated incidence). Hence, claim under the policy was rightly repudiated under initiation to the complainant vide letter dated 25.04.2019. All the other contents of the complaint were stated to be wrong and denied and opposite party prayed for dismissal of the complaint with cost.
3. Ld. counsel for the complainant in his evidence has tendered affidavit Ex.CW1/A, documents Ex.C1 to Ex.C20 and has closed his evidence on dated 20.02.2020. Ld. counsel for the OP has tendered affidavit Ex.RW1/A, documents Ex.RW1/1 & Ex.RW1/5 and closed his evidence on dated 10.8.2021.
4. We have heard learned counsel for the parties and have gone through material aspects of the case very carefully.
5. In the present case as per copy of FIR Ex.C5, the incident had taken place in the intervening night of 23.02.2019 and the FIR was lodged on 24.02.2019. As per opposite party the loss was intimated to them on 04.03.2019 i.e. after 11 days. But as per Ex.C19, the surveyor Sunny Goel has admitted that the claim filed by the complainant was deleted from his system and he asked the complainant’s friend Varun to again intimate the claim. Meaning thereby the claim was immediately lodged with the company just after the incident and it was again lodged on asking by the surveyor Sh. Sunny Goel. Moreover the FIR was lodged immediately after the incidcent. So there is no delay on the part of complainant in lodging the claim. It is also observed that claim of the complainant has been repudiated by the opposite party vide its letter dated 25.04.2019 Ex.RW1/5 on the ground that on getting the report from the Institute the Forensic Science, Gujarat, it came to the picture that residual Petroleum Hydro Carbon(RPSC) were detected in both the debris sample collected. The Institute of forensic Science expert concluded that probable cause of fire to the insured vehicle is attributed to ARSON(stage managed/fabricated incidence). In this regard it is observed that the incident had taken place on 23.02.2019 whereas the inspection of the vehicle was made on 04.03.2019 i.e. after more than 11 days and during this period the vehicle might have turned to ashes. The alleged ashes might have contained RPSC because Residual petroleum hydrocarbons, also commonly known as fossil fuels, originate from naturally occurring geological sources such as crude oil, bitumen and coal. Moreover Petroleum Hydrocarbons are a large class of chemicals made up of carbon and hydrogen that are the primary compounds found in common fuels such as kerosene, gasoline, diesel, motor oil, and different jet fuels, including JP-5. Hence the detection of RPHC (Residual Petroleum Hydrocarbons) in debris does not mean that the probable cause of fire of insured vehicle was attributed to ARSON(Stage managed/Fabricated incidence). Moreover, we have also placed reliance upon order dated 17 January 2014 of Hon’ble National commission, New Delhi cited by ld. counsel for the complainant in case titled as ICICI Lombard Motors Ins. & Anr. Vs. Nikhil Syal, as per which Hon’ble National commission has held that : “Although in the forensic report, it was mentioned that the residues of petroleum hydrocarbon were detected in the contents of the exhibit, but that did not prove that the car was burnt deliberately by the complainant by sprinkling petroleum products, on the same”. The alleged law is fully applicable on the facts and circumstances of the case. As such the repudiation of claim on this ground is illegal and amounts to deficiency in service. Hence the complainant is entitled for the claim as per policy. As per policy Ex. C2 the policy is Zero dep. Policy and the consumable items are also insured. The IDV of the vehicle as per policy is Rs.873069/-. As such complainant is entitled for the IDV amount of vehicle.
6. In view of the facts and circumstances of the case we hereby allow the complaint and direct the opposite party to pay Rs.873069/- (Rupees eight lac seventy three thousand and sixty nine only) alongwith interest @ 9% p.a. from the date of filing the present complaint i.e. 16.07.2019 till its realization and shall also pay Rs.5000/-(Rupees five thousand only) as compensation on account of deficiency in service and Rs.5000/-(Rupees five thousand only) as litigation expenses to the complainant within one month from the date of decision.
7. Copy of this order be supplied to both the parties free of costs.
File be consigned to the record room after due compliance.
Announced in open court:
06.02.2023.
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Nagender Singh Kadian, President
………………………………..
Tripti Pannu, Member.
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Vijender Singh, Member.
