Chandigarh

DF-I

CC/887/2022

HARWINDER SINGH - Complainant(s)

Versus

HDFC ERGO GENERAL INSURANCE COMPANY LIMITED - Opp.Party(s)

DEVINDER KUMAR

05 Feb 2024

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION-I,

U.T. CHANDIGARH

                                     

Consumer Complaint No.	:	CC/887/2022
Date of Institution	:	26/10/2022
Date of Decision	:	05/02/2024

Harwinder Singh son of Sh. Sardara Singh, aged about 34 years r/o Village : Mote Majra, District SAS Nagar, Mohali

… Complainant

V E R S U S

1. HDFC Ergo General Insurance Company Limited, SCO No.124-125, First Floor, Madhya Marg, Sector 8-C, Chandigarh through its Branch Manager.
2. HDFC Bank Limited, Plot No.28, Industrial Area, Phase-I, Chandigarh through its Branch Manager.

… Opposite Parties

CORAM :	SHRI PAWANJIT SINGH	PRESIDENT
	SHRI SURESH KUMAR SARDANA	MEMBER

 

                                                                               

ARGUED BY	:	Sh. Devinder Kumar, Advocate for complainant
	:	Sh. Nitesh Singhi, Advocate for OP-1 (through VC)
	:	Ms. Niharka Goel, Advocate, Proxy for Sh. Paras Money Goyal, Advocate for OP-2

 

Per Pawanjit Singh, President

1. The present consumer complaint has been filed by Harwinder Singh, complainant against the aforesaid opposite parties (hereinafter referred to as the OPs).  The brief facts of the case are as under :-

1. It transpires from the allegations, as projected in the consumer complaint, that the complainant, who is driver by profession and is having 10 years’ experience to drive light and heavy vehicles, with a view to earn livelihood, had purchased an Eicher Pro 3015 truck bearing registration No.PB-65-AR-5748  (hereinafter referred to as “subject truck”) from M/s Swami Auto Care Company vide invoice dated 5.2.2018 (Annexure C-2) for total sum of ₹18,18,000/-. Out of the said amount, complainant had paid ₹1,80,000/- from his own pocket and the remaining amount of ₹15,84,000/- was financed by OP-2 (financier). After obtaining loan, complainant was continuously paying the monthly installments to the said financier. At the instance of OP-2, complainant had purchased a Goods Carrying Comprehensive Policy from OP-1, which was valid w.e.f. 16.2.2020 to 15.2.2021 (hereinafter referred to as “subject policy”) vide which the subject truck was insured for IDV of ₹15.00 lacs.  Copies of the insurance policy, registration certificate, registration certificate, fitness certificate, tax receipt and permits are Annexure C-3 to C-9.  On 10.9.2020, complainant alongwith his helper namely Balbir Singh started their journey after loading apples from Subzi Mandi, Khegsu, District Kullu to Darbanga (Bihar) and copy of GR dated 10.9.2020 is Annexure C-10.  However, on the intervening night of 12/13.9.2020, when the subject truck, being driven by complainant, reached at Katya, District Basti, UP, it met with an accident, as a result of which complainant and his helper, Balbir Singh sustained injuries and both of them were taken to the nearby hospital where Balbir Singh died on 13.9.2020 whereas the complainant was referred to Lucknow hospital. Due to spread of COVID-19 in the year 2020, the Lucknow Hospital was not ready to admit the complainant immediately and in view of his critical condition, family members of the complainant brought him to Cheema Hospital, Mohali, where he remained admitted w.e.f. 14.9.2020 to 21.9.2020. Copies of death certificate of Balbir Singh and the medical record of the complainant are Annexure C-12 to C-14. Due information qua the accident was given to OP-1 and on the direction of OP-1, family of the complainant availed the services of M/s Santosh Crane Services and towed the subject truck to authorised repairer i.e. M/s Swami Auto Care Private Limited, Derabassi by paying the amount of ₹49,560/-.  Loss estimate was prepared by the authorised repairer for a sum of ₹21,96,591/- and since the estimate of loss was more than the IDV, subject truck was declared as total loss by OP-1. Copies of the towing bill and repair estimate are Annexure C-15 and C-16.  On receipt of the estimate of loss, OP-1 deputed surveyor, Kavinder Singh Nayal to assess the loss who submitted his report to OP-1, but, despite of repeated requests of the complainant, copy of the same was not supplied by OP-1 to him.  Thereafter the complainant approached OP-1 to release the claim amount, but, instead of paying the genuine claim, OP-1 with malafide intention issued letter dated 17.12.2020 and demanded copy of police report (FIR). Complainant had already submitted the requisite documents as were required for settlement of the claim, but, despite of that OP-1 did not settle his claim.  Finally, OP-1 repudiated the claim of complainant vide letter dated 29.12.2020 (Annexure C-18) on the ground that damages of all parts claimed in the alleged accident are unrelated to the cause of the accident as reported in the claim form and also that the damage does not commensurate with the cause of loss as mentioned in the claim form and due to violation of the motor package policy condition No.1 and misrepresentation of material facts by the complainant. In this manner, the aforesaid acts of OP-1 amounts to deficiency in service and unfair trade practice. OP-1 was requested several times to admit the claim, but, with no result.  Hence, the present consumer complaint.
2. OPs resisted the consumer complaint and filed their separate written versions.
3. In its written version, OP-1, inter alia, took preliminary objections of maintainability, cause of action, concealment of facts etc.  However, it is admitted that the subject truck was got insured by the complainant from the answering OP and the subject policy was valid w.e.f. 16.2.2020 to 15.2.2021.  It is alleged that as the surveyor and investigator have found during investigation and conducting survey that the damage does not commensurate with the cause of loss as mentioned in the claim form, the claim of the complainant was repudiated as the complainant had misrepresented facts which is fundamental breach of the terms and conditions of the subject policy.  On merits, the facts as stated in the preliminary objections have been reiterated. The cause of action set up by the complainant is denied.  The consumer complaint is sought to be contested.
4. In its written version, OP-2, inter alia, took preliminary objections of maintainability, cause of action and also that there is no deficiency in service on the part of the answering OP.  However, it is admitted that the subject truck was financed by the answering OP and the same was insured by OP-1. On merits, the facts as stated in the preliminary objections have been reiterated. The cause of action set up by the complainant is denied.  The consumer complaint is sought to be contested.
5. Despite grant of sufficient opportunity, rejoinder was not filed by the complainant to rebut the stand of OPs.

2. In order to prove their case, parties have tendered/proved their evidence by way of respective affidavits and supporting documents.
3. We have heard the learned counsel for the parties and also gone through the file carefully.
   1. At the very outset, it may be observed that when it is an admitted case of the parties that complainant is the registered owner of the subject truck, which was got insured by him from OP-1/insurer  vide subject policy and the same met with an accident on the relevant date time and place, which resulted in causing death of Balbir Singh, helper and multiple injuries to the complainant, who was driving the subject truck at the relevant time, and the subject truck was total loss in the accident as the cost of repair was more than its IDV and the claim of the complainant was repudiated by OP-1 on the ground that the damage does not commensurate with the cause of loss as mentioned in the claim form,  the case is reduced to a narrow compass as it is to be determined if OP-1/insurer is unjustified in repudiating the claim of the complainant and the complainant is entitled to the reliefs prayed for in the consumer complaint, as is the case of the complainant, or if OP-1/insurer has rightly repudiated the claim of the complainant and the consumer complaint of the complainant, being false and frivolous, is liable to be dismissed, as is the defence of OP-1/insurer.
   2. In the backdrop of the foregoing admitted and disputed facts on record, one thing is clear that the entire case of the parties is revolving around the terms and conditions of the subject policy, medical record and the investigator’s report and the same are required to be scanned carefully for determining the real controversy between the parties.
   3. The learned counsel for the complainant contended with vehemence that as it stands proved on record that, on the relevant date, time and place, complainant was driving the subject truck, which met with an accident due to sudden appearance of an animal on the road, as a result of which the complainant lost control of the subject truck and the same struck against a tree, OP-1/insurer has wrongly repudiated the claim of the complainant on the ground that the damage caused to the subject truck is not related to the facts as stated by the complainant in the claim form as well as in other documents and the consumer complaint of the complainant deserves to be allowed.
   4. On the other hand, learned counsel for OP-1/insurer contended with vehemence that as it has been found by the investigator during investigation on the spot that the subject truck did not strike against any tree, rather it was found that the same collided with another vehicle, as a result of which the same was damaged, and the complainant has failed to lodge FIR with the police, complainant has failed to prove the facts as set up in the claim form as well as other documents, submitted by him with OP-1, as a result of which complainant has misrepresented the facts, which is a fundamental breach of the terms and conditions of the subject policy and the claim of the complainant was rightly repudiated by OP-1/insurer.
   5. There is no force in the contention of learned counsel for OP-1 as it stands proved on record that in the said accident complainant had suffered multiple grievous injuries, as a result of which firstly he was shifted to nearby hospital and from there he was referred to Lucknow and due to COVID-19 pandemic, since he was not given any treatment there, his family had brought him to Cheema Hospital, Mohali where he remained admitted w.e.f. 14.9.2020 to 21.9.2020 and there was no occasion with the complainant to lodge FIR with the police.
   6. So far as the other person accompanying the complainant namely Balbir Singh, helper is concerned, when it further stands proved on record that he had died immediately after the accident, there was no occasion with him also to lodge an FIR with the police. 
   7. Moreover, when the copy of DDR/General Diary (Annexure C-11) has already been proved on record, which clearly states about the factum of accident and the police has further investigated the case, the claim of the complainant cannot be thrown out simply on the ground that no FIR was lodged after the accident.
   8. As far as the report (Annexure OP-5) of the investigator deputed by OP-1 is concerned, who had come to the conclusion that the subject truck did not strike against any tree rather there was collision between two vehicles, is concerned, as there is no evidence on record by OP-1/insurer in order to prove that the subject truck struck against any vehicle, onus of which lies upon OP-1 itself,  it is unsafe to hold that the damage does not commensurate with the cause of loss as mentioned in the claim form or that the complainant has misrepresented the facts, especially when it is an admitted case of the parties that the subject truck was damaged in the accident.
   9. In view of the foregoing, it is unsafe to hold that the insurer/OP-1 was justified in repudiating the claim of the complainant and accordingly the present consumer complaint deserves to succeed.
   10. So far as the quantum of relief to be granted to the complainant is concerned, when the IDV of the subject truck is ₹15,00,000/- and the same was declared as total loss and the cost of repair i.e. ₹21,96,591/- was higher than the IDV, it is safe to hold that OP-1/insurer is liable to pay IDV amount i.e. ₹15,00,000/- less compulsory deductible/excess clause i.e. ₹1,000/- = ₹14,99,000/- to the complainant alongwith interest and compensation etc. for the harassment suffered by him.
4. In the light of the aforesaid discussion, the present consumer complaint succeeds, the same is hereby partly allowed and OP-1 is directed as under :-

1. to pay ₹14,99,000/- to the complainant alongwith interest @ 9% per annum from the date of repudiation of the claim i.e. 29.12.2020 onwards.
2. to pay ₹40,000/- to the complainant as compensation for causing mental agony and harassment;
3. to pay ₹10,000/- to the complainant as costs of litigation.

5. This order be complied with by OP-1 within forty five days from the date of receipt of its certified copy, failing which, the payable amounts, mentioned at Sr.No.(i) & (ii) above, shall carry interest @ 12% per annum from the date of this order, till realization, apart from compliance of direction at Sr.No.(iii) above.
6. It is, however, made clear that the bank/financier (OP-2) shall have first charge over the aforesaid awarded amount, to the extent the same is due to be paid by the complainant towards the discharge of loan liability, if any.
7. Since no deficiency in service or unfair trade practice has been proved against OP-2, the consumer complaint against it stands dismissed with no order as to costs.
8. Pending miscellaneous application(s), if any, also stands disposed of accordingly.
9. Certified copies of this order be sent to the parties free of charge. The file be consigned.

05/02/2024 hg	Sd/- [Pawanjit Singh] President
	Sd/- [Suresh Kumar Sardana] Member