Tamil Nadu

South Chennai

CC/310/2018

Mrs Saira Banu - Complainant(s)

Versus

HDFC Ergo General Insurance - Opp.Party(s)

M/s C Shankar

28 Mar 2023

ORDER

                                                  Date of Complaint Filed : 25.07.2018

                                                  Date of Reservation      : 13.03.2023

                                                   Date of Order               : 28.03.2023

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION,

CHENNAI (SOUTH), CHENNAI-3.

 

PRESENT:    TMT. B. JIJAA, M.L.,                                                 : PRESIDENT

                        THIRU. T.R. SIVAKUMHAR, B.A., B.L.,                :  MEMBER  I 

                        THIRU. S. NANDAGOPALAN., B.Sc., MBA.,        : MEMBER II

 

CONSUMER COMPLAINT No. 310/2018

TUESDAY, THE 28^th DAY OF MARCH 2023

Mrs.Sairabanu,

W/o.Salman Ahamed,

Residing at No.41/18,

Barracks Road, 3^rd Floor,

Periyamet,

Chennai-600 003.                                                                                                                                 ... Complainant            

..Vs..

The Manager,

HDFC ERGO General Insurance Company Limited,

RR Towers, 2^nd Floor,

94/95,T.V.K.Industrial Estate,

Guindy,

Chennai - 600 032.                                                                                                                            ...  Opposite Party

 

******

Counsel for the Complainant          : M/s. C. Shankar

Counsel for the Opposite Party       : M/s. M.B. Gopalan Associates

 

On perusal of records and after having heard the oral arguments of the Counsel for the Complainant and the Counsel for the Opposite Party, we delivered the following:

ORDER

Pronounced by the President Tmt. B. Jijaa, M.L.,

1.      The Complainant has filed this complaint as against the Opposite Party under section 12 of the Consumer Protection Act, 1986 and prays to direct the Opposite Party to pay a sum of Rs.58,106/- towards vehicle service charges and to pay a sum of Rs.50,000/- towards expenses met out by the Complainant and to pay a sum of Rs.2,00,000/- towards the mental agony and for deficiency of service on their part and to pay a sum of Rs.5000/- towards cost.

2.     The averments of Complaint in brief are as follows:-

The Complainant is the owner of the vehicle Hyundai Xcent bearing Registration No.TN04-AR-0752 covered under the Insurance Policy No.2311 2017 1246 7900 000 issued by the Opposite Party covering the period from 19.03.2017 to 18.03.2018. On 06.09.2017 around 5.30 pm her husband Mr.R.SalmanAhamed who is holding a valid driving license have drove the vehicle from Sulurpet to Chennai and when he reached Redhills a buffalo suddenly crossed the highway, the Complainant’s husband lost control and hit the buffalo and the vehicle ran over the median and got damaged. The vehicle was taken to the Hyundai service outlet and thereafter the accident was informed to the Opposite Party over phone. On 12.09.2018 the Complainant had submitted the intimation letter to the Opposite Party, who inspected the location and agreed to release the claim within 15 days. But on 26.09.2017, the Complainant had received a letter from the Opposite Part for clarification and on receipt of the letter the Complainant had submitted a detailed reply to the Opposite Party. Even after the expiry of a month the Opposite Party was not prepared to release the insurance claim. The Hyundai service centre had issued a communication to release the vehicle from the parking yard failing which parking charges would be paid, so in view to avoid additional expenses the Complainant paid a sum of Rs.58,106/-  to the service dealer and released the vehicle. Unfortunately the Opposite Party issued a letter on 30.10.2017, closing the Complainant’s claim petition in an arbitrary manner. The Complainant had issued legal notices dated 19.12.2017 and 04.01.2018 to the Opposite Party. But the Opposite Party failed to issue any reply. Due to the deficiency in service on the part  of the Opposite Party, the Complainant had suffered a lot of mental agony and loss and the same shall be compensated. Hence the complaint.

3. Written Version filed by the Opposite Party in brief is as follows:-

The Opposite Party submitted that the complaint involves serious factual disputes requiring a full-fledge trial, more particularly in regard to the manner in which the Complainant’s vehicle sustained damage. The version of the Complainant, that her vehicle hit a buffalo and centre median while being driven by her husband, on 06.09.2017 is not found to be true on investigation. It is to be tested by proper evidence and the Complainant must be relegated to civil court. Without prejudice to the above, the Opposite Party submitted that the Complainant had insured her HyndaiXcent with the Opposite Party under Policy No.2311201712467900000. The insurance is subject to terms and conditions stipulated in the policy. Immediate intimation is vital for the Opposite Party to verify the circumstances and confirm liability under the policy. Delayed intimation causes grave prejudice in verification and establishing coverage under the policy. On 12.09.2017 the Complainant reported damage to the vehicle after one week and in the meanwhile the vehicle was shifted to workshop. The Opposite Party had appointed Surveyor Mr.Muralidhar who found that the cause of damage and the manner of occurrence did not tally. Moreover the Complainant’s husband is shown as Salman Ahamed in the record such as RC and in the letter of intimation mentioned the name as Gowri Shankar in which name Driving License is produced. In this regard, the delay in intimation was crucial and that the Complainant had committed breach of policy. The Opposite Party after careful enquiry had repudiated liability for various reasons stated in the letter dated 30.10.2017. Hence prayed to dismiss the complaint.

4. The Complainant submitted her Proof Affidavit and Written Arguments. On the side of the Complainant, documents were marked as  Ex.A-1 to Ex.A-11. The Opposite Party submitted its Proof Affidavit and Written Arguments. On the side Opposite Party documents were marked as Ex.B-1 to Ex.B-4.

5.    Points for Consideration

1. Whether there is deficiency in service on the part of the Opposite Party?

2. Whether the Complainant is entitled for reliefs claimed?

3. To what other reliefs the Complainant is entitled to?

 

 

Point No.1:

6.     Upon perusal of Ex.A-1, the Registration Certificate  it is evident that the Complainant is the owner of the vehicle Hyundai Xcent bearing Registration No.TN04-AR-0752, who had taken insurance policy for the said vehicle from the Opposite Party vide Policy No.2311 2017 1246 7900 000 covering the period from 19.03.2017 to 18.03.2018. The contention of the Complainant is that On 06.09.2017 around 5.30 pm while her husband Mr.R.Salman Ahamed was driving the vehicle from Sulurpet to Chennai at Redhills a buffalo suddenly crossed the highway, where the Complainant’s husband lost control and hit the buffalo and the vehicle ran over the median and got damaged. The vehicle was taken to the Hyundai service outlet and thereafter the accident was informed to the Opposite Party the next day over phone. The Opposite Party submitted that the Complainant had reported damage to the vehicle on 12.09.2017, the Claim Letter by the Complainant, Ex.B-2 though dated 17.09.2017. It is the contention of the Opposite Party that the Complainant are bound by the terms and conditions of the policy. According to the Opposite Party the Complainant had reported the damage to the vehicle with a delay of nearly one week. Hence by highlighting Condition No.1 of the Policy which reads as “Notice shall be given in writing to the Company immediately upon the occurrence of any accidental loss or damage in the event of any claim and thereafter the insured shall give all such information and assistance as the Company shall require”, the Opposite Party by its letter dated 30.10.2017, Ex.A-6 had expressed their inability to settle the claim and closed as “NO CLAIM”.

7.     A perusal of Ex.A-3 would reveal that the Complainant had submitted her claim on 07.09.2017 which was registered as Claim No.C230017125683 by the Opposite Party and to process the claim the Opposite Party had sought for clarification after investigation by their Surveyor that

“Cause of the Accident reported is not matching with the damages – The damages which were found on the car is not seen to be of the cattle fall. And moreover there was blood stains on the center grill and Hair were found on the wind shield. The damage seems to be hit by a sharp object. Kindly clarify the same.” In response to this letter the Complainant contended to have issued a detailed reply.

8.     The Opposite Party by their letter dated 26.09.2017, Ex.A-3 had admitted that the Complainant had submitted their claim on 07.09.2017, which is the next date of the occurrence.  However in their version by relying on Ex.B-2, contend that the Claimant had submitted her claim with delay of one week, which is contrary to their own admission in Ex.A-3.

9.       Moreover, the investigator Sujaini Manohar who investigated the incident had found discrepancies that the vehicle suffered bumper damage, especially piercing in the bumper and human hair/ blood in the windshield which could not have occurred in an accident of collision with cattle or any rock in the centre median as alleged by the Complainant. However there is no proof of report of the human hair / blood samples and / or as to the registration of FIR in respect of the said vehicle. It is pertinent to note that the claim was closed highlighting Condition No.1 of the policy which is delay in giving intimation to the Opposite Party.

10.    The contention of the Opposite Party that the Complainant’s husband is shown as Salman Ahamed in RC and in the complaint, while the letter of intimation mentions the name of Gowri Shankar in which name Driving Licence is produced will not hold good as in the representation dated 17.09.2017 to the Opposite Party, Ex.B-2, it is clearly mentioned that R.Gowri Shankar (Alias) Salman Ahamed. Hence R.Gowri Shankar and Salaman Ahamed is one and the same person who is the husband of the Complainant.

11.       On perusal of records and considering the facts and circumstances of the case this Commission is of the considered view that on 12.09.2017 the Complainant had submitted the intimation letter to the Opposite Party, who inspected the location and on 26.09.2017, after receipt of a letter from the Opposite Party for clarification the Complainant had submitted a reply to the Opposite Party, in the meanwhile as the Hyndai service centre had issued a letter to take the vehicle from the parking yard failing which parking charges would be paid, the Complainant had paid a sum of Rs.58,106/-  to the service dealer and got release of the vehicle. The Opposite Party issued a letter on 30.10.2017, closing the Complainant’s claim petition stating delay in giving intimation the Opposite Party which is factually incorrect as Ex.A-3 makes it clear that the claim was submitted by the Complainant on 07.09.2017, the next day of the accident and hence repudiation of the claim of the Complainant quoting clause 1 of the Policy that intimation ought to have given immediately to the Opposite Party is not justified. Hence the act of repudiating the genuine claim of the Complainant amounts to deficiency in service. Accordingly, Point No.1 is answered in favour of the Complainant.

Point Nos.2 and 3:

12.     As discussed and decided Point No.1 against the Opposite Party, the Opposite Party is liable to pay a sum of liable to pay a sum of Rs.58,106/-  towards vehicle service charges, and to pay a sum of Rs.20,000/-  towards deficiency in service along with a sum of Rs.5,000/-. Accordingly Point Nos. 2 and 3 are answered. 

In the result, the complaint is allowed in part. The Opposite Party is directed to pay a sum of Rs.58,106/- (Rupees Fifty Eight Thousand One Hundred and Six Only) towards vehicle service charges, and to pay a sum of Rs.20,000/- (Rupees Twenty Thousand Only) towards deficiency in service along with a sum of Rs.5,000/- (Rupees Five Thousand Only) towards cost of the litigation to the Complainant within 8 weeks from the date of receipt of this order,  failing which the above said amount of Rs.58,106/- shall carry interest @9% p.a from the date of  receipt of this order till the date of realization.                                                                                                                                                                                                                                                                                                                                                                                                         

Dictated to Steno-Typist, transcribed and typed by her, corrected and pronounced by us in the Open Commission, on 28^th of March 2023.

 

 

S. NANDAGOPALAN               T.R. SIVAKUMHAR                 B.JIJAA

         MEMBER II                       MEMBER I                        PRESIDENT

 

List of documents filed on the side of the Complainant:-

 

Ex.A1	22.03.2016	R.C. Book stands in the name of the Complainant
Ex.A2	18.03.2017	Certificate of insurance cum policy schedule stands in the name of the Complainant
Ex.A3	26.09.2017	Certification letter sent by the Opposite Party
Ex.A4	07.10.2017	Reply letter to the Opposite Party by the complainant
Ex.A5	24.10.2017	E-mail request made by the Complainant
Ex.A6	30.10.2017	Closure notice sent by the Opposite Party to the Complainant
Ex.A7	17.10.2017	No objection certificate
Ex.A8	17.10.2017	Invoices
Ex.A9	19.12.2017	Legal notice returned cover sent by the Complainant to the Opposite Party
Ex.A10	04.01.2018	Legal Notice issued by the Complainant to the Opposite Party along with the postal receipt
Ex.A11	-	Online track report

 

 

List of documents filed on the side of the Opposite Party:-

 

Ex.B1	-	Insurance Policy with terms and conditions
Ex.B2	17.09.2017	Claim lodged by Complainant and her husband to Opposite Party lodging claim
Ex.B3	24.10.2017	Investigation Report
Ex.B4	-	Survey Report

 

 

 

S. NANDAGOPALAN               T.R. SIVAKUMHAR                    B.JIJAA

         MEMBER II                       MEMBER I                         PRESIDENT