THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM KARNAL.
Complaint No.860 of 2011
Date of instt. 22.12.2011
Date of decision:23 .10.2015
Paramjit Singh son of Shri Gurnam Singh resident of village Gonder tehsil Nissing District Karnal.
……….Complainant.
Versus
HDFC ERGO General Insurance company through its Branch Manager, Karnal Opp.Mini Secretariat Sector 12, Karnal.
……… Opposite party.
Complaint U/s 12 of the Consumer
Protection Act.
Before Sh.K.C.Sharma……. President.
Sh.Anil Sharma ………Member.
Smt.Shashi Sharma…..Member.
Present: Sh.S.S.Moonak Advocate for the complainant.
Sh.Sanjeev Vohra Advocate for the OP.
ORDER:
This complaint has been filed by the complainant u/s 12 of the Consumer Protection Act, 1986 on the averments that he had purchased one Combine bearing registration No. PB-04/L: 4065 for self employment for earning his livelihood. He got insured the said vehicle with the Opposite party ( in short OP) vide cover note No.002300568974. OP issued policy no. 2316200084604500001 valid from 23.4.2011 to 22.4.2012. The combine met with an accident on Nasirabad Road within the area of P.S.Kishangarh(Rajasthan) on 24.4.2011 and FIR NO.67 was registered in the police station Kishangarh regarding the said accident. One Baldish was driving the combine at the time of accident. The combine was totally damaged in the said accident. The matter was brought to the notice of OP immediately. Surveyor was appointed who inspected the combine and took photographs of the combine. All the relevant documents were also submitted to the OP. Combine was brought to Bhunnaheri District Patiala from the place of accident. A sum of Rs.61000/- was paid as transportation and Rs.8000/- as crane charges. The complainant also got assessed the loss through approved surveyor and spent Rs.25000/- for that purpose and the surveyor found that there was total loss. However, OP neither settled nor repudiated the claim and lingered on the matter on one pretext or the other. The complainant was told orally that claim was repudiate4d but no written communication was sent to the complainant. Later on complainant got a letter from the office of OP at Karnal on13..12.2011 and was surprised to know that claim was closed without assigning any reason. In this way, there was deficiency in services and unfair trade practice on the part of the OP, which caused mental harassment and agony the complainant apart from financial loss.
2. Notice of the complaint was given to the OP who appeared and filed written statement controverting the claim of the complainant. Objections have been raised that complainant is not maintainable in thepresent form; that the complainant has not approached this Forum with clean hands; that the complainant gave intimation of the alleged accident to the OP after one month of the accident, in violation of the terms and conditions of the policy and that this Forum has no jurisdiction to entertain and adjudicate the present complaint as complicated questions of law and facts are involved.
On merits, it has been submitted that at the time of purchasing the insurance policy from the OP, the complainant produced policy bearing No.74329276 issued from the previous insurer and since the same was in continuity, no physical inspection of the vehicle in question was carried out by the OP at the time of issuance of the policy. During verification of the previous policy from the previous insurer, it revealed that no such policy was issued by the previous insurer and policy produced by the complainant was forged and fabricated in order to avoid inspection of the vehicle. This act of the complainant amounted to suppression of material fact and fundamental breach of contract of insurance, therefore, no liability can be fastened upon the OP. The claim of the complainant was made as “No Claim” on that ground and that fact was conveyed to the complainant, vide letters dated 2.7.2011/28,7,2911. It has been denied that combine was damaged to the extent of total loss. It has further been averred that surveyors who was appointed by the OP, had assessed the loss to the tune of Rs.4,05,900/- on repair basis. It has also been pleaded that as per first information report Baldish Singh son of Anop Singh was driver on the insured vehicle at the time of accident, but the driving licence of one Kalvinder Singh son of Harbhajan Singh was submitted and mentioned in the claim form.
3. In evidence of the complainant affidavit of Baldish Singh, Paramjit Singh complainant and Iqbal Singh Arora Ex.C1 to Ex.C3 respectively and documents Ex.C4 to Ex.C16 have been tendered.
4. On the other hand, in evidence of OP affidavit of Sh.Abhishek Kushwah Assistant Manager Ex.O1 and and documents Ex.O2 to Ex.O5 have been tendered.
5. We have heard the learned counsel for the parties and have gone through the case file very carefully.
6. There is no dispute between the parties regarding factum of accident and damage to the combine of the complainant in the said accident. The claim of the complainant has been made as “No Claim” by the OP on the ground that at the time of issuance of insurance policy, the complainant had produced previous policy of another insurance company which on verification was found forged and fabricated.
7. A perusal of the copy of letter dated 2.7.2011 Ex.O2 shows that while informing about repudiation of the claim to the complainant, the OP mentioned that during verification of the previous policy issued by Reliance General Insurance Co. Limited bearing No. 74329276 submitted by the complainant at the time of issuance of the insurance policy by the OP, was found forged and fabricated and no such cover note/insurance policy was issued by the previous insurer. The contents of the letter dated 28.7.2011 Ex.O3 are to the same effect. The learned counsel for the complainant vehemently argued that complainant had not produced any previous policy of any insurance company what to talk of Reliance General Insurance Co. Limited. Thus, the material question arises as to whether the complainant had produced any previous policy before the OP at the time of purchasing the insurance policy from the OP.
8. If, the complainant had produced any previous policy to the OP at the time of getting issued the policy in question, the same must have been in possession of the OP but no such policy has been produced for the reasons best known to the OP. Thus, the best available evidence with the OP has been withheld , therefore, adverse inference is to be drawn against the OP.
9. The complainant produced the copy of insurance policy Ex.C10 which indicates that no reference was made in the policy regarding the previous policy of Reliance General Insurance Co. Limited bearing No. 74329276. In the space against the name of previous insurer and policy number, only Iffco Tokio General Insurance Company Limited was mentioned. Even, policy number of Iffco Tokio was not mentioned. There is no evidence worth the name of OP, which may show that complainant had produced the insurance policy of Reliance General Insurance Co. Limited. Therefore, the ground on which the OP repudiated the claim of the complainant was not justified at all.
10. The next plea raised by the OP in the written statement for repudiating the claim of the complainant is that he had given intimation of the accident to the OP after one month whereas according to the terms and conditions of the insurance policy, intimation must have been sent immediately. It is pertinent to mention that in the repudiation letters Ex.O2 and Ex.O3, there is no mention that claim of the complainant was being repudiated on this ground also. Thus, it is clear that OP has raised the ground of delay in giving intimation for repudiation of the claim for the first time which is after thought. Even otherwise, there is no cogent evidence that intimation was given to the OP after one month delay. Had there been any violation of the terms and conditions of the insurance policy regarding giving intimation, the OP would not have appointed any surveyor but the surveyor was appointed who inspected the vehicle and assessed the loss. Even the factum of accident and damage to the vehicle in the said accident has been admitted by the OP. Therefore, plea of the OP that intimation regarding accident was given after one month cannot be accepted and the claim of the complainant cannot be repudiated by the OP on the ground of delay in intimation regarding the accident.
11. The Loss was assessed by the surveyor of the OP and his report is Ex.O4 according to which the net loss on repair basis was assessed as Rs.4,05,900/-. It was also mentioned that salvage of the vehicle might fetch Rs.15000/- as its value. Therefore, after deducting salvage, the net amount payable was Rs.,3,90,000/- as per surveyor’s report appointed by the OP. The complainant also got the loss assessed from one surveyor namely Iqbal Singh Arora and according to his report Ex.O5, the loss was assessed as Rs.7,01,000/- and salvage value approximately Rs.19019/-.The accident had taken place on 24.4.2011, whereas surveyor of the complainant assessed the loss on 15.,7.2012. No defect in the report of surveyor appointed by the OP has been pointed in the report of surveyor appointed by the complainant. The report of surveyor appointed by the OP is an important document and cannot be brushed aside until or unless there is cogent material on record that report is not correct. We find no reason to discard the report of the surveyor appointed by the OP, therefore, the same to be accepted.
11. As a sequel to the foregoing discussion, we accept the present complaint and direct the OP to make the payment of Rs.3,90,900/- to the complainant alongwith interest @ 9 per cent per annum from the date of filing of the present complaint i.e. 22.12.2011 till its actual realization. The complainant shall also lbe entitled for a sum of Rs.10000/- as compensation for the mental agony and harassment caused to him and a sum of Rs.2200/- for the litigation expenses. The OP shall make the compliance of this order within a period of thirty days from the date of receipt of the copy of this order. . The parties concerned be communicated of the order accordingly and the file be consigned to the record room after due compliance.
Announced
dated:23.10.2015
(K.C.Sharma)
President,
District Consumer Disputes
Redressal Forum, Karnal.
(Anil Sharma) (Smt.Shashi Sharma)
Member. Member.
Present: Sh.S.S.Moonak Advocate for the complainant.
Sh.Sanjeev Vohra Advocate for the OP.
Arguments heard. For orders, the case is adjourned to 23.10.2015.
Announced
dated:20.10.2015
(K.C.Sharma)
President,
District Consumer Disputes
Redressal Forum, Karnal.
(Anil Sharma) (Smt.Shashi Sharma)
Member. Member.
Present: Sh.S.S.Moonak Advocate for the complainant.
Sh.Sanjeev Vohra Advocate for the OP.
Vide our separate order of the even date, the present complaint has been accepted. The parties concerned be communicated of the order accordingly and the file be consigned to the record room after due compliance.
Announced
dated:23.10.2015
(K.C.Sharma)
President,
District Consumer Disputes
Redressal Forum, Karnal.
(Anil Sharma) (Smt.Shashi Sharma)
Member. Member
Present: Sh.S.S.Moonak Advocate for the complainant.
Sh.Sanjeev Vohra Advocate for the OP
Arguments heard. For orders, the case is adjourned to 23.10.2015.
Announced
dated:20.10.2015
(K.C.Sharma)
President,
District Consumer Disputes
Redressal Forum, Karnal.
(Anil Sharma) (Smt.Shashi Sharma)
Member. Member.
Present: Sh.S.S.Moonak Advocate for the complainant.
Sh.Sanjeev Vohra Advocate for the OP
Vide our separate order of the even date, the present complaint has been accepted. The parties concerned be communicated of the order accordingly and the file be consigned to the record room after due compliance.
Announced
dated:23.10.2015
(K.C.Sharma)
President,
District Consumer Disputes
Redressal Forum, Karnal.
(Anil Sharma) (Smt.Shashi Sharma)
Member. Member
