Punjab

Ludhiana

CC/21/5

Malkit Singh - Complainant(s)

Versus

HDFC Ergo General Insurance Company Limited - Opp.Party(s)

Bhawandeep Kaura

12 Jan 2024

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, LUDHIANA.

                                                Complaint No:5 dated 01.01.2021.                                                   Date of decision: 12.01.2024.

 

Malkit Singh aged 37 years son of Sh. Gamdoor Singh son of Manna Singh, R/o. Village 8, Mandi Khurd, Ramanivas, Bathinda, Rampura Phul, Bathinda, Punjab-151003.                                                                                                                                                                               ..…Complainant

                                                Versus

1. HDFC Ergo General Insurance Company Limited, Registered Office at 1^st Floor, HDFC House, 165-166, Backbay Reclamation, H.T. Parekh Marg, Churchgate, Mumbai-400020, through its G.M./authorized signatory.        
2. HDFC Ergo General Insurance Company Limited, Bank Bazar, Bathinda, through its Assistant Manager Vishal (Mobile No.98727-63436)
3. HDFC Ergo General Insurance Company Limited, Regional Office, Surya Tower, 5^th Floor, 88, The Mal Road, Ludhiana-141001, through its Branch Manager/Authorized Signatory.
4. HDB Financial Services, Bank Bazar, Rampura Phul, District Bathinda, through its Manager Gagandeep Singh (Mobile No.82910-24667, 88476-81934).                                                                                                                                                                           …..Opposite parties 

Complaint Under Section 35 of the Consumer Protection Act, 2019.

QUORUM:

SH. SANJEEV BATRA, PRESIDENT

SH. JASWINDER SINGH, MEMBER

SH. MONIKA BHAGAT, MEMBER

 

COUNSEL FOR THE PARTIES:

For complainant             :         Sh. Bhawandeep Kaura, Advocate.

For OP1 to OP3             :         Sh. Vyom Bansal, Advocate.

For OP4                         :         Sh. Rahul Rajput, Advocate.

 

ORDER

PER SANJEEV BATRA, PRESIDENT

1.                Shorn of unnecessary details, the facts of the complaint are that the complainant is registered owner of commercial vehicle Ashok Leyland made DCM having model No.TRUCKS-AL 1214 HSD 22 Feet bearing registration No.PB03-AZ-7966, which he got financed from OP4. The said vehicle was got insured from OP1 to OP3 through online vide insurance policy No.2315202623411300000 having Insurance Distress Value (IDV) of Rs.18,00,000/- w.e.f. 28.06.2019 to 27.06.2020 by paying premium of Rs.58,777/-. The complainant stated that he is carrying out with occupation of service provider for delivering of goods/transport the goods from one destination to various destinations having State Permit and National Permit from the Government for the said work. On 23.12.2019, the complainant booked a consignment (Tyres and Tubes) from Sanjay Roadlines, Shop No.1, New Market, Opp. Mico Pump, Near Amar Dharam Kanta, Transport Nagar, Ludhiana to M/s. Ralson India Ltd., Begum Bazar, Hyderbad vide invoice NO.22485 and 22486 both dated 23.12.2019. The complainant further stated that on 23.12.2019 at about 06.00 PM he along with one Amrinder Singh started the vehicle from Sanjay Roadlines Transport Ludhiana with load of tyres and tubes weighing about 8.6 tons to be unloaded at Rason Company, Hyderabad. On 30.12.2019 at about 02.00 AM, the complainant reached at Muslimganj Bridge, Hyderabad and parked his vehicle at Yadav Parking, Near Bhu Laxmi Temple, Begum Bazar, Hyderabad and slept in the cabin of the truck. At about 0.50 AM some people woke him due to fire in the vehicle and then the complainant and Amrinder Singh got down from the vehicle. At that time, luggage of the complainant and Amrinder Singh as well as original documents of the vehicle were lying in cabin of the vehicle. Due to fire the truck and loaded Tyres and tubes were completely burnt. The fire also spread to nearby vehicle No.MP-06-HC-2415 and vehicle No.RJ-11-GA-7276 parked in the parking were also partially burnt. The complainant lodged one FIR Nio.430 dated 30.12.2019 at P.S. Afzalgunj, Hyderabad City. The Telangana State Disaster Response and Fire Services Department also reached at the spot. The complainant further stated that immediately on 30.12.2019, he informed OP1 to OP4 regarding accident and lodged claim No.C-230019426251. He also informed OP4 who told him to contact OP2 Mr. Vishal, Assistant Manager at his mobile No.98727-63436 who appointed Surveyor namely Suneendra Katgragadda, Manager, MOD Claims, HDFC Ergo Genera Insurance Company. The complainant contacted and provided all the documents to the surveyor, who recommended the settlement of the claim on total loss basis on mobile phone. Thereafter, OP1 to OP3 informed the complainant to send the vehicle to workshop of Automotive Manufactures Pvt. Td. Sy. No.34, 35, 36 and 38, PeddaAmberpet Abdullahpurmet Mandal R R District Hyderabad, Telangana for repair. The complainant further stated that he several times approached the OPs to settle his claim but they failed to settle his claim. The complainant sent a legal notice dated 19.03.2020 to the OPs through his Sh. Sukhpal Singh Gill, Advocate but no reply was received. After the repair of the vehicle, the workshop demanded Rs.9,02,856/- from the complainant. The complainant requested the workshop owner to release his vehicle and asked them to receive the payment from the insurance company but they disclosed that the insurance company had not paid the full payment and now amount is pending against the complainant. The complainant many times visited the office of the OPs with request to make full and final payment to the workshop but they put the matter on one pretext or the other despite writing letter dated 16.03.2020 to OP2 by the complainant. The complainant has suffered mental tension, agony, financial loss and physical harassment at the hands of the OPs due to deficiency in service and unfair trade practice on their part. In the end, the complainant has prayed for issuing directions to OP1 to OP3 to pay the amount of Rs.9,02,856/- as repair charges along with interest and compensation of Rs.2,00,00/- besides litigation expenses of Rs.25,000/-.

2.                Upon notice, OP1 to OP3 appeared and filed joint written statement by taking preliminary objections assailed the complaint on the ground of maintainability; lack of jurisdiction; lack of cause of action; misleading the Commission etc.

                   Under the column of Factual Submission, OP1 to OP3 stated that the vehicle being Ashok Leyland Truck AL1214 HSD 22 FEET bearing registration No. NEW Chasis No. JXEZ436794 Engine No. MB1A2HCDXKRJZ9254 was insured by them for the period of 28.01.2019 to 27.01.2020 vide policy No. 2315202623411300000 under Motor Insurance Goods Carrying Comprehensive Policy.  A claim was reported on 30.12.2019 by the Insured for Malicious damage to the insured vehicle on 29.12.2019 which was registered vide Claim No. C230019426251. Thereafter, the Insurance Company appointed IRDA licensed and independent Surveyor/Loss Assessor namely Sh. AJP Theertha to conduct the survey of the loss to the vehicle. who visited the spot and submitted his Spot survey report dated 09.01.2020 and thereafter submitted his final report dated 27.01.2021. The claim form was filled by the Insured and submitted to the company. OP1 to OP3 further stated that a letter dated 13.01.2020 was sent by them to the Insured whereby documents required for claim processing were demanded. Thereafter the Insured submitted a letter thereby accepting 25% deduction on the Liability of the Insurance Company. The surveyor assessed the Insurance Company's liability to the extent of Rs.5,25,601/-.  However, as per confirmation received from the IRDAI licensed surveyor, a cashless approval of Rs. 3,00,000 to the workshop to start the repair was given and the same had also been paid to the Workshop. In terms of the survey report and 25% deduction accepted by the Insured the total liability of the company was assessed at Rs. 5,25,000/- out of which an amount of Rs. 3,00,000/- had already been paid to the Workshop. OP1 to OP3 further stated that they are ready and willing to pay the remaining amount of Rs. 2,25,000/- to the repairer but the Insured has refused to accept the said offer. According to OP1 to OP3, in case of own damage insurance claim, the liability of the insurance company is limited to the extent of loss assessed by the IRDA licensed surveyor and hence without prejudice to other contention, their liability cannot exceed the liability as assessed by the surveyor and also subject to the terms and conditions of the insurance policy.               

                   On merits, OP1 to OP3 reiterated the crux of averments made in the preliminary objections as well as factual submission. OP1 to OP3 have denied that there is any deficiency of service and have also prayed for dismissal of the complaint.

3.                OP4 filed separate written statement and by taking preliminary objections assailed the complaint on the ground of maintainability; suppression of material facts; the complaint being false and frivolous one; lack of cause of action etc. OP4 stated that the complainant took commercial vehicle loan from it and Rs.17,48,359/- was financed which was to be payable in 59 EMIs having commencement form 04.03.2016 to 04.01.2024. There is no dispute regarding terms and conditions of the loan agreement between the parties. The complainant after reading and understanding the terms and conditions of the loan agreement appended his signature and as per clause 10.8 of the loan agreement, OP4 is not liable for any loss because of non-payment by the insurance company or any settlement of claim with the borrower. OP4 further stated that there is no privity of contract concerning the insurance between it and the complainant as the complainant has got the insurance policy from OP1 to OP3.  

                   On merits, OP4 reiterated the crux of averments made in the preliminary objections. OP4 has denied that there is any deficiency of service and has also prayed for dismissal of the complaint.

4.                In support of his claim, the complainant tendered his affidavit Ex. CA in which he reiterated the allegations and the claim of compensation as stated in the complaint. The complainant also tendered documents Ex. C1 is the copy of legal notice dated 19.03.2020, Ex. C2 to Ex. C4 are the postal receipts, Ex. C5 is the copy of application written by the complainant to insurance company, Ex. C6 is the copy of  insurance company w.e.f. 28.01.2019 to 27.01.2020, Ex. C7 is the copy of FIR No.430 of 2019, Ex. C8 is the copy of Fire Service Attending Certificate dated 30.12.2019, Ex. C9 are the copies of photographs, Ex. C10 is the copy of driving licence of the complainant, Ex. C11 is the copy of Aadhar card of the complainant, Ex. C12 is the copy of RC of vehicle No.PB03-AZ-7966, Ex. C13 is the copy of Goods Permit, Ex. C14 is the copy of National Permit (Goods), Ex. C15 is the copy of letter dated 06.03.2020 of written by HDB Financial Services, Ex. C16 is the copy of insurance invoice, Ex. C17 and Ex. C18 are the copies of consignment receipt dated 23.12.2019 of Sanjay Road Lines and closed the evidence.

5.                On the other hand, the counsel for OP1 to OP3 tendered affidavit Ex. RA of  Ms. Shweta Pokhriyal, Manager Legal – Claims, along with documents Ex. R1 is the copy of policy schedule, Ex. R2 is the copy of spot survey report dated 09.01.2020, Ex. R3 is the copy of final surveyor report dated 27.01.2021, Ex. R4 is the copy of insurance claim form dated 18.02.2020, Ex. R5 is the copy of application of complainant accepting 25% deductions on liability,  Ex. R6 is the copy of reminder letter dated 13.01.2020 and closed the evidence.

                   The counsel for OP4 tendered affidavit Ex. RW of Mr. Sukhjeet Singh, Legal Officer of OP4 at Ludhiana along with documents Ex. RW/1 is the copy of authority letter, Ex. RW/2 is the copy of loan agreement, Ex. RW/3 is the copy of account statement dated 14.06.2021 and closed the evidence.

6.                We have heard the arguments of the counsel for the parties and also gone through the complaint, affidavit and annexed documents and written statements along with affidavit and documents produced on record by both the parties.        

7.                It is un-controvertly emerges from the file that the complainant  is the owner of commercial vehicle Ashok Leyland bearing registration No.PB-03-AZ-7966, was engaged in business of transporting the consignment from one place to other. The complainant took Motor Insurance – Goods Carrying Comprehensive Policy Ex. C6 = Ex. R1 for a period from 28.01.2019 to 27.01.2020 having IDV of  Rs.18,00,000/-. On 30.12.2019 at about 02.00 AM, fire broke out in the vehicle of the complainant resulting in losses of insured vehicle and loaded goods i.e. tyres and tubes. A Fire Service Attending Certificate dated 30.12.2019 Ex. C8 was issued by Station Fire Officer, Fire Station Gowliguda, Hyderabad qua extinguishing of the fire. An FIR 430 dated 30.12.2019 Ex. C7 was also recorded at Police Station Afzalganj, Hyderabad City. On receipt of the intimation, Sh. AJP Theeratha, an IRDA approved Surveyor and Loss Assessor was deputed to survey and assess the loss. According to the surveyor, he visited the spot i.e. Jhadav Parking Yard, Near Dharti Mata Mandir, Begumbazar, Hyderabad on 31.12.2019 at 11.30 AM and inspected the insured vehicle. The surveyor vide his Private and Confidential Motor Survey Report (Spot) dated 09.01.2020 Ex. R2, submitted the particulars of the vehicle, driver details accident particulars and damage particulars occurred to the insured vehicle. The surveyor also mentioned the facts regarding receipt of Xerox copies of RC, DL, Permit, Fitness certificate in duplicate, photos. The complainant submitted the Motor Insurance Claim Form dated 18.02.2020 Ex. R4 with the insurance company. The aforesaid surveyor further submitted a Private and Confidential Motor Survey Report (Final) dated 27.01.2021 Ex. R3, the surveyor assessed the loss to the vehicle as per estimate given by M/s. Automotive Manufactures Pvt. Ltd., Peddamberpet, Hyderabad as Rs.7,32,608/- as net liability to the insurers.

8.                OP1 to OP3 demanded certain documents from the complainant vide reminder letter dated 13.01.2020 Ex. R6. However, no earlier or subsequent letters as well as rejection letter has been submitted by them on record. However, OP1 to OP3 have produced on record one letter Ex. R5, alleged to be submitted by the complainant accepting 25% deduction on liability. The counsel for OP1 to OP3 contended that on the basis of letter Ex.R5, the surveyor assessed the loss of the insured vehicle to be Rs.5,25,601/-, out of which Rs.3,00,000/- have been paid to the workshop to start the repair and now the company is ready and willing to pay the remaining amount of Rs.2,50,000/- to the repairer but the complainant had refused to accept the said offer.

9.                On the other hand, the counsel for the complainant has raised contention that the complainant is entitled to the total loss of the vehicle to the tune of Rs.9,02,856/- as per insurance invoice Ex. C16 issued by Automotive Manufacturers Pvt. Ltd. The counsel for the complainant further contended that the complainant never agreed to accept the 25% deduction on liability.  

10.              We have gone through the viral contentions of the parties and have also perused the record on file.

11.              It is established on record that the fire broke in the insured vehicle of the complainant which was extinguished with the help of fire service station. An FIR to this effect was also lodged and on receipt of intimation, OP1 to OP3 also deputed surveyor Sh. A.J.P. Theertha to survey and assess the loss occasioned due to fire incident. It is not the categorical case of OP1 to OP3 that there is a violation of any terms and conditions of the policy which could lead to reduction of the claim to the extent of 25%. It is further not the case of the insurance company that the complainant has not submitted the requisite documents/information with it. Further no clause of the policy terms and conditions has been invoked by the insurance company. The only contention of the OP1 to OP3 is that as per letter Ex. R5 of the complainant, the net liability of insurer was assessed by the surveyor to be Rs.5,25,601/-.

12.              Perusal of record shows that the surveyor submitted his spot survey report Ex. R2 on 09.01.2020 and he further submitted the final survey report Ex. R3 dated 27.01.2021 whereby he assessed the net liability to the insures to the tune of Rs.7,32,608/-. There is difference between the dates of spot survey report and final survey report. Further an undated letter Ex. R5 has been produced on record by OP1 to OP3 allegedly written by the complainant regarding waiving off 25% on liability so that the repair work of the vehicle may be expedited. In their written statement, OP1 to OP3 have stated that as per said letter Ex. R5, the surveyor had assessed the net liability to the tune of Rs.5,25,601/-, out of which they have paid Rs.3,00,000/- to the workshop and are ready to pay the remaining amount of Rs.2,50,000/-, to which the complainant refused to accept. However, the letter Ex, R5 appears t have been executed much before the net liability actually settled/assessed by the surveyor. Further there is no such provision in the policy where the complainant was bound to waive of 25% of the net liability.

13.              The complainant has produced on record Loan Recall notice dated 06.03.2020 Ex. C15 issued to him by OP4 HDB Financial Services, the financer of the vehicle, stating that the complainant had not paid 3 installments towards the repayment of loan and called the complainant to pay total outstanding amount of Rs.15,58,116/- within 7 days failing which the company within its rights will initiate legal proceedings (civil/criminal/arbitration) which deem fit. The complainant has further produced on record photographs Ex. C9 and Ex. C10 showing damage to the insured vehicle. Due to non-pliable condition of the vehicle in question, the complainant was unable to get any earnings from the vehicle and as such, he could not deposit the EMIs towards his loan account.

14.              In this case, the surveyor vide his report Ex. R3 has assessed the net liability to the tune of Rs.7,32,608/-. The complainant has not controverted the facts mentioned in the written statement, so far as the final survey report Ex. R3 is concerned as the complainant has neither filed any objections to controvert the averments made in the written statement. Neither the report Ex. R3 has been challenged by the complainant on any ground nor any evidence has been led by the complainant to prove that the report is faulty for some reason or the other. In the given facts and circumstances, it would be just and appropriate if OP1 to OP3 are directed to pay Rs.7,32,608/-, the loss assessed by the surveyor as per survey report Ex. R3 to the complainant along with interest @8% per annum from the date of filing of the complaint till date of actual payment. OP1 to OP3 are also burdened with composite cost of Rs.10,000/-.

15.              As a result of above discussion, the complaint is partly allowed with direction to OP1 to OP3 to pay Rs.7,32,608/-, the loss assessed by the surveyor as per survey report Ex. R3 to the complainant along with interest @8% per annum from the date of filing of the complaint till date of actual payment. OP1 to OP3 shall further pay a composite cost of Rs.10,000/- (Rupees Ten Thousand only) to the complainant. Payment of costs shall be made within a period of 30 days from the date of the receipt of the copy of this order. The complaint as against OP4 is hereby dismissed. Copies of order be supplied to parties free of costs as per rules. File be indexed and consigned to record room.  

 

 

16.              Due to huge pendency of cases, the complaint could not be decided within statutory period.

 

(Monika Bhagat)          (Jaswinder Singh)                   (Sanjeev Batra)                Member                     Member                                  President   

 

Announced in Open Commission.

Dated:12.01.2024.

Gobind Ram.