Before the District Consumer Disputes Redressal Commission, Rohtak.
Complaint No. : 313
Instituted on : 13.07.2018
Decided on : 18.04.2023
Sandeep Kumar aged-34 years son of Om Parkash resident of House No. 410/7, Partap Mohalla, Gali Sher Singh Wali, Rohtak. ..............Complainant.
Vs.
- HDFC ERGO General Insurance Company Limited Office at 1st Floor, 165-66, Backbay Reclamation, H.T.Parek Marg, Church Gate, Mumbai through its Manager.
- HDFC Ergo General Insurance Company Limited, Office at 2nd Entrance Delhi Bye Pass, Rohtak, Opposite Sector-1, Rohtak-124001, through its Manager/Authorized Signatory/Principal Officer.
……….Opposite parties.
COMPLAINT U/S 12 OF CONSUMER PROTECTION ACT,1986.
BEFORE: SH.NAGENDER SINGH KADIAN, PRESIDENT.
DR. VIJENDER SINGH, MEMBER.
Present: Shri D.S.Chauhan, Advocate for the complainant.
Shri Gulshan Chawla, Advocate for the opposite party No. 1.
Opposite party no.2 given up.
ORDER
NAGENDER SINGH KADIAN, PRESIDENT:
1. Brief facts of the case as per complainant are that he is registered owner of the vehicle car (Hyundai) bearing registration no. HR-12W-1900. The vehicle was got insured with the opposite party company and the insured value of the said vehicle was Rs.4,40,000/- as per policy issued by opposite party. It is further submitted that during the period of insurance policy, the insured vehicle met with an accident on 16.02.2018 as a stray dog had come suddenly in front of the car and the car struck with the divider and overturned. Complainant also suffered injuries in this accident. The alleged vehicle was totally damaged in the said accident. The complainant intimated the opposite party well within time about the damage of the said vehicle and lodged claim vide email. After receiving the intimation, the opposite party company appointed surveyor Sunny Goel for inspection of the damaged vehicle at M/s Shristi Motors Pvt. Ltd. Rohtak, who inspected the damaged vehicle and submitted his final survey report dated 09.04.2018 in the office of opposite party without assessing the loss of the said damaged vehicle. So, the report of the surveyor is not acceptable. Thereafter opposite party also deputed investigator Mr. Rajiv who has submitted his report in the office of the opposite parties but the said report has not been supplied to the complainant by the opposite parties despite the demand made by the complainant. It is further submitted that the opposite parties vide letter dated 16.04.2018, treated the claim of the complainant as “No Claim”. It is further submitted that the said damaged vehicle is still lying in Shristi Motors Pvt. Ltd., Rohtak and they are demanding Rs.250/- per day as parking charges from the complainant. The complainant contacted the opposite parties through email repeatedly to get his genuine claim amount but they did not pay any heed and not disbursed the claim amount till date. Hence, there is deficiency in service on the part of opposite parties and it is prayed that opposite parties may kindly be directed to pay the claim amount of Rs.4,40,000/- alongwith interest @18% per annum from the date of accident i.e. 16.02.2018 till its realization, Rs. 250/- per day as parking charges, Rs.25,000/- for harassment and Rs.11,000/- as litigation expenses to the complainant as explained in relief clause.
2. After registration of complaint, notices were issued to the opposite parties. Opposite parties in their reply has submitted that the content regarding vehicle bearing no.HR-12w-1900 being insured from answering respondent vide policy no.2311100251525500000 for the period of 19.11.2017 to 18.11.2018 for the IDV of Rs.440000/- subject to terms and conditions is correct. On receipt of the claim intimation regarding alleged loss on 16.02.2018, the same was reistered vide claim No.C230017272371 for better communication for the present claim. That an independent IRDA surveyor Sh. Sunny Goyal was appointed to assess the quantum of loss and its genuineness. That an independent surveyor Sh. Sunny Goyal submitted his detailed report assessing the loss to an amount of Rs.362797/- and provided his observation in respect of damages which itself speaks of the factum that there has been misrepresentation of claim fact as mentioned in the claim form. It is further submitted that during the correspondence with the complainant, answering respondent got the foul smell and thus appointed an Independent investigator to confirm about the observation as made by Independent surveyor Sh. Sunny Goel in regard to the claim. That independent investigator also submitted his report with the observation “Multiple points of impacts are observed on insured vehicle. Insured vehicle roof top damages are not co-relating with the insured mentioned accident scenario”. Taking into the observation made by an independent surveyor and independent investigator answering respondent were left with no other option, except to repudiate the claim vide letter dated 16.04.2018, duly served upon the complainant. It will be pertinent to mention here that complainant has not rebutted observation made by the independent surveyor and independent investigator which were part of repudiation letter dated 26.04.2018 Answering opposite party is not liable to pay the claim which are filed with the misrepresentation of facts. Hence, there is no deficiency in service on the party of opposite party. All the other contents of the complaint were stated to be wrong and denied and opposite party prayed for dismissal of complaint with costs.
3. Ld. Counsel for the complainant in his evidence has tendered affidavit Ex.CW1/A, documents Ex.C-1 to Ex.C-8 and has closed his evidence on dated 14.09.2020. Ld. counsel for the opposite party No. 1 has tendered affidavits Ex.RW1/A & Ex. RW1/B, documents Ex.RW1/1 to Ex.RW1/5 and closed his evidence on 16.08.2021. Ld. Counsel for the complainant given up OP No. 2 due to the reason that the company has been closed. Smt. Meetu Sindhu, Navjeevan Hospital appeared in person and brought the record which is placed on record as Ex. P1.
4. We have heard learned counsel for the parties 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. After the accident, complainant filed the claim with the opposite parties but the opposite parties vide their letter Ex.C8 has repudiated the claim of the complainant on the ground that surveyor in his report has observed that the damages were not correlating with the narrated cause of loss and thereafter during investigation it was observed by the investigator that : “Multiple points of impacts are observed on insured vehicle. Insured’s vehicle roof top damages are not correlating with insured’s mentioned accident scenario.” In view of observation of surveyor and investigator it has been found that damages sustained to vehicle are not correlating with cause of loss.
6. After going through the file and hearing the parties it is observed that as per Ex.RW1/4, the motor accident re-construction report has been placed on record by the insurance company to prove the manner of accident. We have minutely perused the claim form placed on record by the insurance company as Ex.RW1/2. As per claim form, suddenly a dog came in front of insured vehicle & insured vehicle got unbalanced & strucked with a divider & overturned. But as per re-construction report the vehicle struck against an another vehicle so re-construction report Ex.RW1/4 cannot be believed or taken into consideration because the manner of accident are different in claim form and reconstruction report. Real facts have been mentioned in the claim form by the complainant. Moreover as per the survey report Ex.RW1/3, the cause and nature of accident are as under: “As stated in the enclosed claim form that the insured was driving the vehicle near the site of accident, suddenly a dog came in front of the insured car and insured car got imbalance and collided with divider from left hand side and got overturned on divider & thus the vehicle got damaged”. As per Ex.RW1/3 the surveyor has not mentioned that any another vehicle was involved in the accident but he has submitted that the damages are not co related with the cause of accident but no cogent evidence has been placed on record to prove this fact. Hence the re-construction report cannot be believed. As per Ex.RW1/5 the damages were caused by external means by object. But these allegations have not been proved by the insurance company. So the same are mere allegations and cannot be believed without any cogent evidence. It is also on record that as per repudiation letter Ex.RW1/5, Sh. Sunny Goel surveyor has inspected the vehicle on 19.02.2018 and the claim was repudiated vide letter dated 09.04.2018. Thereafter opposite party issued another letter Ex.C8 dated 16.04.2018, as per which they also appointed the investigator to verify the actual facts. But the alleged report of investigator has not been placed on record by the opposite party. Hence there is deficiency in service on the part of opposite party no.1 and opposite party no.1 is liable to pay the claim amount to the complainant. As per the report of surveyor he has assessed the loss of Rs.362797/-, which is more than 75% of IDV. Hence there is total loss in the vehicle in question. Complainant has also placed on record estimate prepared by Shristhi Motors Pvt. Ltd. as Ex.C7, as per which the estimate of loss is Rs.560974/-. Meaning thereby there is total loss in the vehicle in question and the opposite party is liable to pay the IDV of vehicle after deducting the salvage value which we have assessed as Rs.40000/-. In this regard law cited by ld. counsel for the complainant of HP State Commission, Shimla 2020(1)CLT 215 titled as Oriental insurance Co. Ltd. Vs. Asha Sharma decided on 05.11.2019, 2021(3)CLT605 of Hon’ble National Commission titled as New India Assurance Co. Ltd. Vs. Srinivasan Automobile Pvt. Ltd. decided on 13.07.2021 and 2021(3)CLT 268 of Hon’ble State Commission, Punjab Chandigarh titles as Mrs. Kanika Gupta Vs. New India Assurance Co. Ltd. are fully applicable on the facts and circumstances of the case. The IDV of the vehicle is Rs.440000/-. Hence the complainant is entitled for the loss of Rs.400000/-(Rs.440000/- less Rs.40000/- as salvage).
7. In view of the facts and circumstances of the case we herby allow the complaint and direct the opposite party No.1 to pay Rs.400000/-(Rupees four lac only) alongwith interest @ 9% .a. from the date of filing the present complaint i.e. 13.07.2018 till its realization and shall also pay a sum of Rs.5000/-(Rupees five thousand only) as compensation on account of deficiency in service and Rs.5000/-(Rupees five thousand only) as well as litigation expenses to the complainant. Order shall be complied within one month from the date of decision. However, complainant is directed to send a letter to the Registration Authority for cancellation of R.C.
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:
18.04.2023.
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Nagender Singh Kadian, President
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Vijender Singh, Member.
