DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-II, U.T. CHANDIGARH

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Gian Prakash Gupta son of Sh. Milkhi Ram Gupta, resident of House No. 3112, Sector 37-D, Chandigarh.

                   ---Complainant

V E R S U S

[1]     HDFC ERGO General Insurance Co. Limited, having its Corporate Office at 6^th Floor, Leela Business Park, Andheri Kurla Road, Andheri (East), Mumbai 400 059, through its Managing Director.

[2]     HDFC ERGO General Insurance Co. Limited, having its Branch Office at SCO No. 124-125, Sector 8-C, Madhya Marg, Chandigarh – 160008, through its Branch Manager.

---- Opposite Parties

BEFORE:      SH. LAKSHMAN SHARMA                    PRESIDENT

MRS.MADHU MUTNEJA                       MEMBER

                   SH.JASWINDER SINGH SIDHU             MEMBER

Argued By:             Sh. Harsh Garg, proxy Counsel for Sh. Yogesh Kumar, Counsel for Complainant.

Sh. Hitender Kansal, proxy Counsel for Sh. P.M. Goyal, Counsel for Opposite Parties

PER JASWINDER SINGH SIDHU, MEMBER

1.                Briefly stated, the Complainant got his new Maruti Swift Dzrie – VDI, bearing Regn. No. CH-04-J-5779, comprehensively insured from the Opposite Parties, on 21.04.2011 (cover note & the insurance policy are at Annexure C-2). It is averred that on 29.7.2011, when the son of the Complainant was going to Patiala from Chandigarh, the said car was involved in an accident, with a loaded cart. The said cart hit by the left side of the car, thereby causing damage to left side mirror and rear bumper, and to escape major accident when the son of the Complainant turn the car sharply towards right it struck with another car, causing major dent of the right side fending. Fortunately, there was no injury to anyone and with the intervention of the other commuters matter was sorted out. As the accident had taken place on a highway, there was no mechanic shop, so finding no other way, son of the Complainant drove the vehicle with hanging bumper to the nearby mechanic, who fixed the bumper by putting a few wires in it to fix the crack and also removing the loosing side mirror and placed a tape on it, as it was raining, and the water was pouring in car from the broken mirror. On his return from Patiala, the son of the Complainant reported the matter to the Opposite Parties on 2.8.2011 through M/s Berkley Automobiles where car of the Complainant was under repairs. A claim form was filled by giving short description of the accident. Thereafter, a surveyor was appointed to carry investigation and in that process Complainant was called up by the surveyor to know the details of the accident which was fully detailed to the surveyor. Thereafter, to the surprise of the Complainant, M/s Berkley Automobiles informed him that his insurance claim was repudiated by the Opposite Parties. On this, the Complainant tried to contact the officials of the Opposite Parties, but there was no response. On this the complaint sent an e-mail to the Opposite Parties detailing all the facts and requested them to at least intimate the reasoning behind repudiation of the claim (Annexure C-3). Responding to the e-mail of the Complainant, Opposite Parties wrote to the Complainant that his claim was repudiated because the cause was not matching with the actual loss (Annexure C-4). Thereafter, the Opposite Parties sent a repudiation letter to the Complainant, which is a totally non-speaking letter without any mention of discrepancy between cause and actual loss (Annexure C-5).  As the claim of the Complainant was repudiated, he himself had paid an amount of Rs.12,500/- for the repairs of his car (invoice for repairs at Annexure C-6). Hence, this complaint.

                   The complaint of the Complainant is duly verified, and is supported by his detailed affidavit.

2.                Notice of the complaint was sent to Opposite Parties seeking their version of the case.

3.                Opposite Parties in their joint reply while admitting the factum of insurance being taken from them, have pleaded that the policy was subject to its terms and conditions (Annexure R-1). It is asserted that immediately upon lodging of the claim, Mr. Mohit Sharma, who is an IRDA approved Surveyor, conducted his survey over the damaged vehicle and gave his report dated 19.2.2011 after physically inspecting the vehicle vis-à-vis the terms and conditions of the policy (Annexure R-2). It is pleaded that during the processing of the claim of the Complainant it transpired that the cause of loss as detailed by the Complainant in the claim (Annexure R-3) did not co-relate with the loss which took place upon the vehicle as such the claim was repudiated vide letter dated 21.9.2011 (Annexure R-4). It is also pleaded that on physical inspection, it was found that the alleged damage were previous and the bumper was already repaired. A false story was concocted to take a false claim from the answering Opposite Parties. Denying all other allegations and stating that there is no deficiency in service on their part, opposite parties have prayed for dismissal of the complaint.  

                   The reply of Opposite Parties is not verified, but is supported by a detailed affidavit of Praman Preet Singh Gujral, claims Manager – Legal, HDFC ERGO General Insurance Co. Limited.

4.                Having gone through the entire complaint, version of the Opposite Parties, the evidence of the parties and with the able assistance of the learned counsel for the parties, we have come to the following conclusions.

5.                The Complainant has preferred the present complaint on the ground that he is the owner of a Maruti Swift Dzire VDi car, bearing Regn. No. CH-04-J-5779, which was insured with the Opposite Party No.2, vide insurance cover note dated 21.4.20011, valid for the period 22.4.2011 to 21.4.2012.  As per the Complainant, the vehicle which was purchased in the year 2009 has regularly been under insurance cover, subscribed from the Opposite Parties. 

6.                The Complainant is aggrieved of non-settlement of his genuine claim of loss suffered by him. The Complainant had duly intimated the happening of the accident on 29.7.2011 in which his car which was being driven by his son had met with an accident with an animal cart, but some how no major damage was caused, except for minor losses to the left rear view mirror and rear bumper of the car, along with its attachments. Even the son of the Complainant too escaped any inquiry. As per the Complainant there not being any major loss as well as the vehicle in question was in running condition, so the son of the Complainant, preferred to complete his journey to Patiala, and reported the matter to the Opposite Parties on his return back to Chandigarh.  The vehicle was taken to the workshop of M/s Berkeley Automobiles Limited (Authorized Maruti Dealer) for necessary repairs. On intimation, a surveyor was deputed by the Opposite Party No.2, who inspected the vehicle, at the premises of M/s Berkeley Automobiles Limited and assessed the loss amounting to Rs.7,740/-.

7.                The Opposite Parties while repudiating the claim vide Annexure C-5 have claimed that during survey it has been observed that the damage claimed in the accident are unrelated to the cause of accident reported in the claim form and that the actual damage does not commensurate with the cause of loss.  The Opposite Parties during arguments have reiterated that as per the observations of the Surveyor, the claim of the Complainant does not deserve to be paid. 

8.                We have gone through the surveyor report attached by the Opposite Parties at Annexure R-2, wherein the surveyor has opined that the damages sustained by the vehicle do not tally with the history of the accident and the rear bumper was found already repaired and left hand rear view mirror was not shown, whereas tap was found on its place. So, the subject claim in question may be treated on its merits by the Insurance Company. The insurance company in their repudiation letter (Annexure C-5) has mentioned this factor as a ground for repudiation of the claim of the Complainant. However, the insurance company which was advised by the surveyor to treat the claim on its merits has itself failed to conclude as to whether the loss of rear bumper was because of the happening of the accident as claimed by the Complainant or by any other cause. To our mind, the insurance company before reaching any conclusion should have investigated the matter at its own end by appointing an independent person or an agency to remove all doubts or ambiguities about the happening of the accident, as well as the relation of the claimed damages with such an accident, conclusively.   

9.                It is observed that the insurance company while taking a cue from the observations of the surveyor, has simply presumed that the nature of the claim did not commensurate with the cause of loss, without falsifying the claim of the Complainant in any manner. As the Opposite Parties have failed to bring on record any proof in support of their version that the loss or damage to the vehicle in question having happened prior to the accident claimed by him and prove that the Complainant had concocted a false story to take a false claim from the company.

                   It is not denied that the vehicle had suffered a loss. Same is proved from the surveyor report. No other proof is required to ascertain whether the loss to the vehicle had occurred or not, for this purpose, the surveyor’s report is sufficient. The only question whether this loss was caused prior to the accident reported by the Complainant or not, in such a situation it was incumbent upon the Opposite Parties to substantiate the same by assessing the age of the damage to the vehicle and come out clear in uncertain terms about this fact.  However, it would not be out of place to quote that the damage to the vehicle was of minor nature and it is also noticed that only two parts reported damaged are the left rear view mirror as well as the rear bumper. Hence, it is also not the case that the Complainant had lodged a claim without having actually suffered a loss and for such a reason; he was disqualified to be compensated for his loss. 

10.              In the given situation, as the Opposite Parties which were left with the option whether to honour or repudiate the claim of the Complainant, by the surveyor, the Opposite Parties alone were responsible to satisfy us about the conclusions they had arrived at and that too with a cogent, reliable and trust worthy evidence. In the absence of any such proof, the Opposite Parties are found deficient in rendering proper service to the Complainant. Hence, the present complaint of the Complainant deserves to succeed against them.

11.              In the light of above observations, we are of the concerted view that the Opposite Parties No.1 & 2 are found deficient in giving proper service to the complainant. Hence, the present complaint of the Complainant deserves to succeed against the Opposite Parties No.1 & 2, and the same is Allowed jointly and severally qua them. The Opposite Parties No.1 & 2 are directed, to:-

[a]    To pay the assessed amount of Rs.7740/- as per surveyor report;  

[b]    To pay Rs.5,000/-on account of deficiency in service and causing mental and physical harassment to the Complainant; 

[C]    To pay Rs.3,000/- as cost of litigation;

12.              The above said order shall be complied within 45 days of its receipt by the Opposite Parties; thereafter, they shall be liable for an interest @18% per annum on the amount mentioned in per sub-para [a] & [b] of para 11 above, apart from cost of litigation of Rs.3,000/-, from the date of institution of this complaint, till it is paid.  

13.              Certified copy of this order be communicated to the parties, free of charge. After compliance file be consigned to record room.

Announced

08^th February, 2013.                                                                                          

Sd/-

(LAKSHMAN SHARMA)

PRESIDENT

Sd/-

(MADHU MUTNEJA)

MEMBER

Sd/-

 (JASWINDER SINGH SIDHU)

MEMBER