Before the District Consumer Disputes Redressal Commission, Rohtak.
Complaint No. : 316.
Instituted on : 17.07.2018.
Decided on : 16.08.2021.
Pankaj s/o Ranbir Singh resident of village Bahu Akbharpur Tehsil and District Rohtak.
.......................Complainant.
Vs.
- The Manager, HDFC ERGO General Insurance Co. Ltd. D-301, 3rd Floor, Eastern Business District(Magnet Mall), LBS Marg, Bhandup(West), Mumbai-40007.
- The Manager, H.D.F.C. ERGO, SCO, 257, 2nd Floor, Sector-12, Karnal-132001.
……….Opposite parties.
COMPLAINT U/S 12 OF CONSUMER PROTECTION ACT,1986.
BEFORE: SH.NAGENDER SINGH KADIAN, PRESIDENT.
MS.TRIPTI PANNU, MEMBER.
Present: Sh.Naveen Aladia, Advocate for the complainant.
Sh.Gulshan Chawla, Advocate for the opposite parties.
ORDER
NAGENDER SINGH KADIAN, PRESIDENT:
1. Brief facts of the case are that complainant had purchased a motor car bearing registration no.HR12AF 9041, Make Hyundai Motor India Limited(I10 Sportz CRDI), which was insured with the opposite party vide policy no.2311 201940826300000, valid w.e.f. 11.10.2017 to 10.10.2018. The said car of the complainant met with an accident on dated 05.04.2018 when the complainant was returning from village Julana after dropping his friend Amit at his residence. On the way suddenly a neel-cow came in front of car and due to which the complainant steered the vehicle towards right hand side, in order to save the cow. Resulting which the insured vehicle hit into the divider and overturned, leading to total damage of the car. Complainant also suffered some injuries in the alleged accident. He filed a claim with the opposite party on dated 07.04.2018 and submitted all the required documents and he was given claim no.C230018008230. It is further contended that one Investigator Sunil Malhotra demanded money for passing the genuine claim of complainant, to which complainant flatly denied and as such the claim was rejected for giving irrational reasons. The act of opposite parties is illegal and amounts to deficiency in service. Hence this complaint and it is prayed that opposite parties may kindly be directed to pay the IDV of the vehicle amount of Rs.750000/- alongwith interest, compensation and litigation expenses to the complainant as explained in relief clause.
2. After registration of complaint, notice was issued to the opposite parties. Opposite parties in their reply has submitted that the contents regarding issuance of policy to the vehicle of complainant for the period 11.10.2017 to 10.10.2018 for the IDV of Rs.732453/- is correct. It is wrong and denied that the vehicle in question met with an Accident on 05.04.2018. On 05.04.2018, during meeting with an Independent Investigator complainant confirmed the investigator that he was returning from village Julana after dropping his friend Amit at his residence when on the way at New Jind Bye Pass Rohtak, suddenly a neelgai came in front of the vehicle, due to which complainant had steered the vehicle towards right hand side, in order to save neel cow resulting which the insured vehicle hit into divider and overturned leading to damages. On second meeting with complainant on 08.05.2018, complainant confirmed that his friend was going to somewhere, when on the way near Shyam Temple of village, the insured vehicle hit into the dumper. Both the statements are contrary and entirely different. Therefore, there has been misrepresentation of facts material to the claim and which goes against the declaration as given by the complainant. The investigator has submitted his report and has concluded that the damages are not co-related with the cause of loss. Hence the claim of the complainant has been rightly repudiated. There is no deficiency in service on the part of opposite parties and dismissal of complaint has been sought.
3. Ld. Counsel for the complainant in his evidence has tendered his affidavit Ex.CW1/A, documents Ex.C1 to Ex.C9 and closed his evidence on dated 01.05.2019. On the other hand, ld. Counsel for the opposite parties in his evidence has tendered affidavit Ex.RW1/A, documents Ex.OP1/1 to Ex.OP1/7and closed his evidence on dated 03.12.2019.
4. We have heard learned counsel for the complainant and have gone through material aspects of the case very carefully.
5. In the present case insurance and accident of the vehicle is not disputed. But the claim of the complainant has been repudiated by the opposite party vide letter dated 29.05.2018 on the ground that during investigation following observation come in light:
i) At the time of accident your friend was driving your vehicle and he was not having valid driving licence.
ii) During meeting of investigator with you on dated 05.04.2018 you confirmed him that you were returning from Village Julana after dropping your friend Mr. Amit at his residence. When on the way at New Jind Bypass, Rohtak, Haryana suddenly a Neelgai came in front of your vehicle due to which you had steered the vehicle towards right hand side in order to the save Neelgai, resulting which the insured vehicle hit into the divider and overturned leading to the damages. But on 2nd meeting with yourself on dated 08.05.2018 you confirmed that your friend was going to somewhere when on the way near Shyam Temple of his village the insured vehicle hit into a dumper. Both statement were different.
6. To prove this fact, opposite party has placed on record a CD. We have minutely watched the CD. As per the CD, the person has stated that his friend has taken the car from him and near Shyam Temple of his village the insured vehicle met with an accident. Whereas as per claim form Ex.OP1/2, the complainant has stated that the accident had taken place due to coming of a neel cow in front of insured vehicle and the vehicle got unbalanced and struck against the divider. No doubt there is discrepancy in both the versions. But first of all it is not proved by the respondent that the person in the CD is complainant himself. If we assume that the person in the CD is the complainant himself, then it is noticed that he states to the surveyor that he is an illiterate person and earlier also he had write the same whatever was asked by the surveyor. Meaning thereby, the surveyor was earlier involved with the complainant/person in the CD and whatever was asked by the surveyor, was written and signed by the complainant. Moreover in the alleged CD, the number of the vehicle is not shown, hence it is not proved that the vehicle shown in the CD is insured vehicle. It is also on record, that the opposite party has not placed on record any affidavit of the surveyor/investigator, who investigated the matter from the complainant. As per the survey report Ex.OP1/3, the surveyor has repudiated the claim on the ground that the damages are not co-related with the cause of loss & till the submission of report insured/repairer not submitted the estimates. In this regard, it is observed that when the estimates were not submitted, then how the claim has been assessed by the surveyor. The surveyor has assessed the loss of Rs.601724/- based upon the estimates. It is admitted that the vehicle met with an accident and got damaged and the complainant suffered a huge loss in his vehicle. Moreover false and fraudulent damages have not been pleaded by the respondent anywhere in the written statement or affidavit. So it is proved that the vehicle damaged in an accident. We have also perused other documents placed on record by both the parties. As per document Ex.OP1/7, a letter sent by the insurance company to the complainant on dated 22.05.2018 and a postal receipt is also affixed on this document. In this documents 5 days time has been given for reply to the complainant. On perusal, it is found that on the postal receipt, there is a cutting on account of name and place. So it cannot be presumed that it was ever delivered to the complainant. Hence the repudiation of claim is illegal and amounts to deficiency in service.
7. In view of the facts and circumstances of the case, complainant is entitled for the claim on sub-standard basis i.e. 75% of the IDV after deduction of salvage value. As per the survey report, the surveyor has estimated the amount of repair of the vehicle Rs.834022/- and the net amount of loss as per survey report comes to Rs.601724/-. The IDV of the vehicle is Rs.732453/-. The loss is more than 75% of IDV. Hence the vehicle comes under total loss. Hence salvage value has not been assessed by the surveyor in his report. So we came into the conclusion that the salvage value of the vehicle is Rs.80000/-. As such the complainant is entitled to the IDV of vehicle(Rs.732453/-) less salvage value of Rs.80000/- less 25% amount for sub-standard claim. The assessment is made without R.C. Accordingly we hereby allow the complaint and direct the opposite parties to pay the amount of Rs.489340/- alongwith interest @ 9% p.a. from the date of filing the present complaint i.e. 02.07.2020 till its realization and also to pay a sum of Rs.10000/-(Rupees ten thousand only) as compensation on account of deficiency in service and Rs.5000/-(Rupees five thousand only) as litigation expenses. At the time of arguments, a document “Annexure-JN-A” has been placed on record, as per which the vehicle in question was hypothecated with Magma Fincorp Ltd.. As such opposite parties are directed to pay the alleged amount in favour of the financer for the settlement of loan amount of the complainant and after payment of loan amount, if any amounts remains, the same be paid to the complainant. However complainant is directed to complete the formalities e.g. letter to the RTO for cancellation of R.C. and to send the copy of the same to the insurance company for information, to submit signed form no.29-30, indemnity bond and subrogation letter in favour of the company within 15 days from today and thereafter opposite party shall comply with the order dated 11.08.2021 of this Commission within one month from the date of submission of alleged documents by the complainant.
8. 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:
16.08.2021.
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Nagender Singh Kadian, President
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Tripti Pannu, Member.
