Haryana

Karnal

CC/252/2022

Surender Kumar - Complainant(s)

Versus

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

Radhe Shyam Sharma

04 Sep 2023

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, KARNAL.

 

                                                      Complaint No. 252 of 2022

                                                      Date of instt.27.04.2022

                                                      Date of Decision:04.09.2023

 

Surender Kumar, age 45 years son of Shri Jagbir Singh, resident of village Harsinghpura, tehsil Gharaunda, District Karnal. Aadhar card no.3567 2250 8839.

 

                                               …….Complainant.

                                              Versus

 

HDFC ERGO General Insurance Company Limited,  SCO-237, Second floor, Sector-12, Urban Estate, Karnal through its Manager.

 

…..Opposite Party.

       

Complaint Under Section 35 of Consumer Protection Act, 2019.

 

Before   Shri Jaswant Singh……President.

              Shri Vineet Kaushik…….Member

              Dr. Rekha Chaudhary……Member

          

Argued by:  Shri Radhe Shyam, counsel for the complainant.

                    Shri Atul Mittal, counsel for the OP.

 

                    (Jaswant Singh, President)

ORDER:                     

          

                 The complainant has filed the present complaint Under Section 35 of Consumer Protection Act, 2019 against the opposite party (hereinafter referred to as ‘OP’) on the averments that complainant got insured his Mohindera XUV-500, bearing registration no.HR-29AE-2457 with the OP, vide policy no.2311202591060800000, valid from 08.01.2019 to 07.01.2020. The insured declared value(IDV) of the vehicle was Rs.8,75,000/-. On 05.01.2020, complainant was driving the abovesaid vehicle and was going to Samalkha. At about 9.00 p.m. when complainant reached at Panipat flyover and reached near Arya Nagar, a vehicle which was coming from rear side and when the vehicle was overtaking the vehicle of complainant, complainant took a little turn to save his vehicle, as a result of which, complainant lost the balance of his vehicle and struck with a stationed dumper at the road, as a result of which the vehicle of the complainant was badly damaged. In this regard, a DDR no.18 dated 07.01.2020 was got registered with Police Station, Sector 13/17, Panipat but while recording the DDR, the police official has wrongly mentioned the registration number of the vehicle as HR-29AE-2157 instead of HR-29AE-2457. Soon after the accident, complainant informed the OP regarding the abovesaid accident without any delay. The complainant was directed to shift his vehicle to the workshop of P.P. Automobiles, Panipat. OP deputed his surveyor to inspect the vehicle and to assess the loss and the surveyor inspected the vehicle thoroughly and took all the relevant papers of the vehicle including the copy of insurance policy and he was fully satisfied. The surveyor also prepared the estimate of the vehicle. Complainant requested the surveyor to disclose the amount of loss, but the surveyor did not inform the complainant about the estimate despite repeated requests. After sometime, complainant went to the office of OP and requested them to settle the claim. The workshop incharge told the complainant that the vehicle is totally damaged and cannot be repaired and if it is repaired, the estimate will got over and above insured value and even then the vehicle is not safe to drive. After sufficient long time, complainant again and again approached the OP and requested to settle the claim and to pay compensation. In the month of July, 2020, complainant received a letter from OP stating the following reasons therein:

1. Date of accident was 05.01.2020, whereas matter was reported in the police station on 07.01.2020.
2. At the time of purchasing the policy, wrong vehicle purchase date was provided. As per registration certificate of the vehicle, the date of registration is 26.04.2013, but provided purchase date 31.12.2015. How can be purchased date of vehicle can be post registration. Here the material information was clearly misrepresented at the time of the purchasing of policy.

It is further averred that the vehicle is insured as per the particulars mentioned in the R.C. At the time of accident the complainant is owner of vehicle no.HR-29AE-2457 and the complainant is entitled to seek compensation. The OP told the complainant that after the payment of compensation, complainant is liable to transfer the abovesaid vehicle in favour of OP. The complainant consented the said demand of OP. Thereafter, complainant visited the office of OP so many times and requested to release the claim of complainant but OP did not pay any heed to the request of complainant and lingered the matter on one pretext or the other and ultimately on 20.04.2022, OP refused to pay the compensation amount. It is further averred that on 29.03.2019, the front screen glass of the vehicle was broken and OP has released the compensation and thus, the vehicle was rightly insured with the OP under the abovesaid policy. So, the OP is liable to pay the compensation equal to the insured value and on account of damaged of vehicle and OP is liable to pay the parking charges as per the demand of P.P. Automobiles. The OP repudiated the claim of the complainant knowingly, intentionally and deliberately on the false and frivolous ground. In this there is deficiency in service and unfair trade practice on the part of the OP. Hence this complaint.

2.             On notice, OP appeared and filed its written version raising preliminary objections with regard to maintainability and concealment of true and material facts. On merits, it is pleaded that complaint is in regard to the own damage claim of insured vehicle which allegedly met with an accident on 05.01.2020 having policy no.2311202591060800000 valid from 08.01.2019 to 07.01.2020. As reported the vehicle in question has suffered a loss on 05.01.2020, as alleged by the complainant in claim form. OP duly appointed an IRDAI approved surveyor in order to assess the loss and damaged sustained by the insured vehicle and to further verify the genuineness of the facts of the alleged accident. Thereafter, the surveyor after inspection filed his survey report. During survey, it has been observed by the surveyor that “the damages sustained by the vehicle were no co-relating with the cause of accident as narrated”. The surveyor in justification gave the following contentions that:-

1. Date of accident was 05.01.2020, whereas matter was reported in the police station on 07.01.2020.
2. Purchase date of insured vehicle was provided wrongly. As per registration certificate of the vehicle, the date of registration is 26.04.2013, but provided purchase date 31.12.2015.
3. Registration date of insured vehicle was provided wrongly. As per registration certificate of the vehicle, the date of registration is 26.04.2013, but provided purchase date 31.12.2015.
4. RTO was provided wrongly. As per registration certificate of vehicle RTO is Ghraudna whereas provided RTO was Daman (Gujarat)
5. Insured vehicle model was provided wrong. Insured vehicle is manual transmission while in policy it was provided as AT model.
6. Previous insurance policy copy was not provided.
7. Service history of insured vehicle was not provided.
8. Toll tax receipt before date of accident was not provided.
9. As per surveyor opinion, on going through the impact to insured vehicle. It is clear that dumper was being entangled to insured vehicle, but till date dumper detail was provided by you.
10. As per surveyor opinion damages sustained to the engine parts, cowl panel, dash panel, inner part of Bonnet were not co-relating with cause of loss as narrated on the claim form.
11. As per investigator observation at spot there were no brake marks found on the road even in snaps submitted by your there were no marks in road. Dumper broken tail light or related parts were not on road.

The surveyor also sent letters to complainant for the clarification on above points but he never replied. By misrepresenting the false facts of the accident/loss/damage, the complainant himself had played the fraud upon the OP. Hence, the claim of complainant was rejected as per policy terms and condition vide letter dated 12.08.2020. There is no deficiency in service and unfair trade practice on the part of the OP. The other allegations made in the complaint have been denied by the OP and prayed for dismissal of the complaint.

3.             Parties then led their respective evidence.

4.             Learned counsel for the complainant has tendered into evidence affidavit of complainant Ex.CW1/A, copy of insurance policy Ex.C1, copy of reminder letter dated 29.05.2020 Ex.C2, cop of DDR dated 07.01.2020 Ex.C3, copy of GS Caltex letter Ex.C4, copy of reminder letter dated 17.07.2020 Ex.C5, copy of RC Ex.C6, copy of DL Ex.C7, photographs of vehicle Ex.C8 to Ex.C11, copy of aadhar card of complainant Ex.C12 and closed the evidence on 06.10.2022  by suffering separate statement.

5.             On the other hand, learned counsel for the OP has tendered into evidence affidavit of Manoj Kumar Prajapat, Manager Ex.OPW1/A, affidavit of Gurmeet Singh Makkar, Surveyor and Loss Assessor Ex.OPW2/A, copy of terms and conditions of the policy Ex.OP1, copy of claim form alongwith documents Ex.OP2, copy of surveyor report Ex.OP3, copy of rejection letter dated 12.08.2020 Ex.OP4 and closed the evidence on 05.04.2023 by suffering separate statement.

6.             We have heard the learned counsel of the parties and perused the case file carefully and have also gone through the evidence led by the parties.

7.             Learned counsel for complainant, while reiterating the contents of complaint, has vehemently argued that complainant got insured his Mohindera XUV-500 with the OP. On 05.01.2020, the said vehicle met with an accident and in this regard, a DDR no.18 dated 07.01.2020 was got registered with Police Station, Sector 13/17, Panipat. Complainant shifted his vehicle to the workshop of P.P. Automobiles, Panipat. OP deputed his surveyor to inspect the vehicle and to assess the loss. The vehicle was totally damaged.  Complainant requested the OP so many times to settle the claim but OP did not settle the same and lastly on 20.04.2022, rejected the claim on the false and frivolous ground. He further argued that on 29.03.2019, the front screen glass of the vehicle was broken and OP had released the compensation and thus, the vehicle was rightly insured with the OP under the abovesaid policy. From the day of accident, vehicle is parking in P.P. Automobiles and thus the OP is also liable to pay the parking charges and prayed for allowing the complaint.

8.             Per contra, learned counsel for the OP, while reiterating the contents of written version, has vehemently argued that the vehicle in question had suffered a loss on 05.01.2020 and on receipt of intimation, OP duly appointed an IRDAI approved surveyor in order to assess the loss and damaged sustained by the insured vehicle and to further verify the genuineness of the facts of the alleged accident. During survey, it has been observed by the surveyor that the damages sustained by the vehicle were no co-relating with the cause of accident as narrated. He further argued that the date of accident was 05.01.2020 and the matter was reported to the police on 07.01.2020. He further argued that the date of insured vehicle was provided wrongly. As per registration certificate of the vehicle, the date of registration is 26.04.2013, but provided purchase date 31.12.2015.  Thus, the claim of complainant was rightly rejected by the OP on the ground of misrepresenting the false facts of the accident/loss/damage and prayed for dismissal of the complaint.

9.             We have duly considered the rival contentions of the parties.

10.           Admittedly, complainant got insured his vehicle from the OP. It is also admitted that the said vehicle met with an accident during the subsistence of the insurance policy.

11.           The claim of the complainant has been closed, vide letter Ex.O4 dated 12.08.2020 on the following grounds, which are reproduced as under:-

1. Date of accident was 05.01.2020, whereas matter was reported in the police station on 07.01.2020.
2. Purchase date of insured vehicle was provided wrongly. As per registration certificate of the vehicle, the date of registration is 26.04.2013, but provided purchase date 31.12.2015. How can be purchase date of vehicle can be post registration.
3. Registration date of insured vehicle was provided wrongly. As per registration certificate of the vehicle, the date of registration is 26.04.2013, but provided purchase date 31.12.2015.
4. RTO was provided wrongly. As per registration certificate of vehicle RTO is Ghraudna whereas provided RTO was Daman (Gujarat)
5. Insured vehicle model was provided wrong. Insured vehicle is manual transmission while in policy it was provided as automatic.
6. Previous insurance policy copy was not provided.
7. Service history of insured vehicle was not provided.
8. Toll tax receipt before date of accident was not provided.
9. As per surveyor opinion, on going through the impact to insured vehicle. It is clear that dumper was being entangled to insured vehicle, but till date dumper detail was provided by you.
10. As per surveyor opinion damages sustained to the engine parts, cowl panel, dash panel, inner part of Bonnet were not co-relating with cause of loss as narrated on the claim form.
11. As per investigator observation at spot there were no brake marks found on the road even in snaps submitted by your there were no marks in road. Dumper broken tail light or related parts were not on road.      

12.           The claim of the complainant has been repudiated by the OP on the abovesaid grounds. Admittedly, accident took place on 05.01.2020. As per the version of the complainant, matter was reported in the police station immediately but police lodged the DDR on 07.01.2020 and there is no fault on the part of the complainant. Generally, police would not lodge the DDR/FIR immediately. Hence, plea taken by the OP has no force.

13.           The OP has also alleged that as per registration certificate of the vehicle, the date of registration is 26.04.2013, but complainant had provided the purchased date as 31.12.2015 and also not submitted the previous insurance policy. Generally, the vehicle got insured by the insurance company on the inspection of vehicle and registration certificate of the vehicle and also while considering the previous policy. It is not possible that the OP had insured the vehicle without inspection of the vehicle, seeing the registration certificate of the vehicle as well as considering the previous policy. Admittedly, on 29.03.2019, the front screen glass of the vehicle was broken and OP had paid the compensation for that. Furthermore, as per the insurance policy Ex.C1/Ex.O1 issued by the OP, the year of manufacturing of the vehicle has been specifically mentioned as 2013, the vehicle was rightly insured with the OP under the abovesaid policy. Hence, the plea taken by the OP has no force.

14.           Further, the most of the queries raised and documents sought by the OP are irrelevant and there is no legal hitch to decide the claim without the submission of the pending documents, when the complainant had already submitted the required documents for settlement of the claim. Hence, the demand of abovementioned documents is unnecessary and irrelevant and just to harassing the complainant and denying the claim of the complainant. Moreover, it is also unbelievable that an insured whose personal interest is involved for such amount why he will not supply the documents to the insurance company for getting his claim amount and will indulge himself in unwanted litigation. Hence, in view of the above, we found no substance in this contention of the OP.

15.              Further,  Hon’ble Punjab and Haryana High Court in case titled as New India Assurance Company Ltd. Versus Smt. Usha Yadav & others 2008 (3) RCR (Civil) 111, has held as under:-

“It seems that the Insurance Companies are only interested in earning the premiums which are rather too stiff now a days, but are not keen and are found to be evasive to discharge their liability. In large number of cases, the Insurance companies make the effected people to fight for getting their genuine claims. The Insurance Companies in such cases rely upon clauses of the agreements, which a person is generally made to sign on dotted lines at the time of obtaining policy. This is, thus pressed into service to either repudiate the claim or to reject the same. The Insurance Companies normally build their case on such clauses of the policy, but would adopt methods which would not be governed by the strict conditions contained in the policy”.

                Keeping in view the ratio of the law laid down in aforesaid judgments, facts and circumstances of the present complaint, we are of the considered view that act of the OP while repudiating the claim of the complainant amounts to deficiency in service.

16.           As per surveyor report Ex.O3 dated 20.08.2020, the net loss assessed by the surveyor as Rs.14,11,192/- but the insured declared value of the vehicle is Rs.8,75,000/-. The loss has been assessed by the surveyor of the OP to the tune of Rs.7,98,000/- after deduction of Rs.75,000/- wreck value of the vehicle without RC. Complainant is ready to get cancel the RC and transfer the same in the name of insurance company. Hence, the report of the surveyor will prevail and complainant is entitled for the insured declared value of the vehicle.  In this regard we are relying upon the authority 2(2008) CPJ paged 182 (NC), United India Insurance Co. Vs. Maya, wherein it has been held that a surveyor report should not be dismissed summarily as the surveyor is independent and qualified person under the relevant provision of Insurance Act, 1938. In view of this authority as well as the facts and circumstances of the case, we are of the considered view that the OP is liable to pay the loss assessed by the surveyor alongwith interest, compensation for mental agony and harassment and litigation expenses.

17.            In view of the above discussion, we allow the present complaint and direct the OP to pay Rs.8,75,000/- (Rs.eight lakhs seventy five thousand only) the insured declared value (IDV) of the vehicle alongwith interest @ 9% per annum from the date of repudiating the claim i.e. 12.08.2020 till its realization. We further direct the OP to pay Rs.25,000/- to the complainant on account of mental agony and harassment suffered by him and Rs.11,000/- for the litigation expense. This order shall be complied within 45 days from the receipt of copy of this order. The complainant is also directed to complete all the formalities with regard to transfer/cancel of the RC of the vehicle in question. The parties concerned be communicated of the order accordingly and the file be consigned to the record room after due compliance.

Announced

Dated:04.09.2023

                                                                       

                                                                  President,

                                                     District Consumer Disputes

                                                     Redressal Commission, Karnal

 

(Vineet Kaushik)        (Dr. Rekha Chaudhary)

                          Member                      Member