Haryana

Fatehabad

CC/264/2018

Ved Parkash - Complainant(s)

Versus

HDFC ERGO General Insurance - Opp.Party(s)

M.S Godara

08 Aug 2023

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION; FATEHABAD

          C.C.No.264 of  2018.              Date of Instt.:13.09.2018 Date of Order: 08.08.2023.

 

Ved Parkash son of Udhmi resident of Bhatia Colony, Fatehabad Tehsil &  District Fatehabad.

..Complainant.

          Versus

1. HDFC ERGO General Insurance Company Limited, 6^th Floor, MBC Tower, Old No.90, New No.199, Luz Church Road, Mylapore, Chennai-04 through its Managing Director/authorized signatory.

2.HDFC ERGO General Insurance Company Limited, SCO 237, Second Floor, Sector-12, Karnal through its Manager.

3.M/s Mittal Automobiles, Kulan Road, Bhuna Tehsil & District Fatehabad through its Manager.

          ..Opposite parties.

Complaint under Section 12 of the Consumer Protection Act, 1986

Before:        Sh. Rajbir Singh, President.                                                               Smt.Harisha Mehta, Member.                                                             Dr.K.S.Nirania, Member

 

Present:       Sh.M.S.Godara, counsel for the complainant.                                    Sh.U.K.Gera, counsel for the opposite parties No.1 & 2.                      OP No.3 exparte vide order dated 22.10.2018.

 

ORDER

SH.RAJBIR SINGH, PRESIDENT;

                   By way of this complaint, the complainant has submitted that he is owner of vehicle bearing registration No.HR22K-8561 which was insured with OPs No.1 & 2 vide policy No.2311100265089500002 having validity for the period 08.01.2018 to 07.01.2019; that the vehicle in question met with an accident on 27.04.2018; that the complainant intimated about the accident to the insurance company; that the complainant took his vehicle to Op No.3 after inspection of the surveyor; that the complainant spent Rs.1,77,371/- on the repairing of the vehicle but the complainant was compelled to deposit Rs.1,15,717/-; that the complainant requested the Ops to refund the amount of Rs.1,15,717/-  and further got served legal notice upon the Ops but to no effect. The act and conduct of the OPs clearly amounts to deficiency in service. In evidence, the complainant has tendered affidavit and documents Annexure CW1/A and Annexure C1 to Annexure C15.

2.                          Ops No.1 & 2 appeared and filed their joint reply wherein it has been submitted that  the surveyor was appointed who in his report has opined that the damages sustained by the vehicle were not co-relating with the cause of accident ;  that the complainant has filed the present complaint by concealing the material facts therefore, the complainant is not entitled for any claim; that the replying Ops have rightly repudiated the claim of the complainant vide letter dated 24.07.2018 on the ground of mis-representation of facts. There is no deficiency in service on the part of answering OPs. In the end, prayer for dismissing the complaint has been made. In evidence, the Ops No.1 & 2 tendered affidavit of Smt.Shweta Pokhriyal as Annexure RW1/A alongwith documents Annexure RW1/1 to Annexure RW1/5.

3.                          None has appeared on behalf of Op No.3 despite issuance of notice through registered post, hence, the Op No.3 was proceeded against exparte vide order dated 22.10.2018.

4.                          Heard. The counsel for the complainant reiterated the averments made in the complaint and prayed for its acceptance whereas the counsel for appearing OPs reiterated the averments made in the reply and prayed for its dismissal.

5.                          Undisputedly, the complainant is registered owner of vehicle bearing registration No.HR22K8561 (Annexure C1) and the same was insured with Ops No.1 & 2 (Annexure C2). The complainant has come with the plea that his vehicle met with an accident during the subsistence of the policy; therefore, it is the boundened duty of the Ops No.1 & 2 to pay the loss suffered by him on account of damage of the vehicle but the Ops did not do so.  

6.                          Learned counsel for the appearing Ops has stressed hard that the damages sustained by the vehicle were not co-related to the cause of accident by the surveyor, therefore, the claim of the complainant was rightly repudiated vide letter dated 24.07.2018 on the ground of misrepresentation of facts.  In support of his arguments learned counsel for the Ops drew the attention of this Commission towards the surveyor report Annexure RW1/4 and photographs (four in numbers) Annexure RW1/3.

7.                          The Ops No.1 & 2 in their reply have specifically mentioned that the claim of the complainant was repudiated as per the report of surveyor but in the present case though the Ops No.1 & 2 have produced the same on the case file  as Annexure RW1/4 but Ops No.1 & 2 have not produced the loss assessment report with regard to loss to the insured vehicle despite the fact that oral directions were given to the learned counsel for the Ops No.1 & 2 to produce the same before this Commission during the course of arguments.  The main ground for repudiation of the claim of the complainant by the Ops No.1 & 2 is that the damages sustained by the vehicle were not co-related to the cause of accident.  In the report Annexure RW1/4, the surveyor in the column of remarks has mentioned at Sr. No.2 that as per the cause of accident your vehicle hit with a tree whereas there were no vertical impression, neither on fr bumber or front bonnet.   It is a settled law that report of surveyor is not a final verdict and reliance on this point can be taken from case law titled as “National Insurance Company Ltd. versus Vedic Resorts and Hotels Pvt. Ltd.” Civil Appeal No. 4979 of 2019 decided on 17.05.2023 wherein Hon’ble Apex Court has held that: surveyor’s report is not the final one, nor it is so sacrosanct as to be incapable of being departed from. More so loss/damage has not been assessed by the surveyor its report Annexure RW1/4.  More-so, the opinion taken by the surveyor in its report Annexure RW1/4 is contrary to the photographs Annexure R1/3 because damage to the front bonnet and bumper can be seen with bare eyes. Perusal of bill/invoice (Annexure C9) also reveals that replaced items mentioned at Sr. No.1 to 30 are related to front bumper and front part of the damaged insured car. Moreover, it is seen in general that the insurance company treats the report of surveyor as per its own betterment and benefits and used the report as a weapon to repudiate the claim or to settle the claim on such a meager amount and the same has also happened in the present case. Further, legally, insurer’s surveyor’s report is unilateral in nature but it does not bear the signature of insured. It only bears signature and stamp of surveyor.  Meaning thereby that whatever has been reported by insurer surveyor is at the back of insured. Consequently, this Commission is of firm view that there is solid reason to depart the surveyor report and to award compensation to complainant as per actual loss caused to the insured car and expenses (Rs.1,15,717/-) incurred on its repair as mentioned in Annexure C9.  Hence we discard the surveyor report. On this point reliance can be taken from case  law titled as  Magma HDI General Insurance Company Versus Dhramjeet decided on 07.06.2023 by Hon’ble State Consumer Disputes Redressal Commission, Haryana, Panchkula in FA No.433 of 2017.

8.                          The fact regarding accident of the insured vehicle during the subsistence of the policy as well as its repair from Op No.3 (Annexure C9) is not disputed. Perusal of the bill/invoice Annexure C9 reveals that the complainant had spent Rs.1,15,717/- for the repairing of the damaged insured car, therefore, being the insurer it was the duty of the Ops No.1 & 2 to indemnify the loss, if any, suffered by the insured vehicle during the subsistence of the policy but in the present case it appears that the Ops No.1 & 2 want to avoid the genuine claim of the complainant by using the surveyor report as a weapon. There is nothing on the case file to show that the complainant has not spent Rs.1,15,717/- on the repairing of the damaged insured vehicle, therefore, we deem it proper to direct the Ops No.1 & 2 to pay the amount of Rs.1,15,717/- to the complainant being repairing cost of the damaged insured vehicle (Annexure C9).

9.                          Keeping in view the above facts and circumstances of the case it is held that the insurance company has wrongly rejected the claim of the complainant and the repudiation letter dated 24.07.2018 is hereby quashed. The Ops No.1 & 2 are hereby directed to pay a sum of Rs.1,15,717/- to the complainant alongwith with simple interest @ 6 % per annum from the date of filing of complaint till actual realization. We further direct the Ops No.1 & 2 to pay Rs.11,000/- in lump sum for mental agony, harassment and litigation expenses to the complainant. Compliance of this order be made within 45 days failing which the amount would carry simple interest @ 9 % per annum from the date of filing of the complaint till its realization. Complaint against Op No.3 stands dismissed.

10.                        In default of compliance of this order, proceedings against respondents shall be initiated under Section 72 of Consumer Protection Act, 2019 as non-compliance of court order shall be punishable with imprisonment for a term which shall not be less than one month, but which may extend to three years, or with fine, which shall not be less than twenty five thousand rupees, but which may extend to one lakh rupees, or with both. A copy of this order be sent to the parties free of cost. File be consigned to the record room after due compliance.     

Announced in open Commission.                                                           Dated: 08.08.2023

                  

          (K.S.Nirania)               (Harisha Mehta)                     (Rajbir Singh)                      Member                                 Member                               President