CONSUMER DISPUTES REDRESSAL COMMISSION – X
GOVERNMENT OF N.C.T. OF DELHI
Udyog Sadan, C – 22 & 23, Institutional Area
(Behind Qutub Hotel)
New Delhi – 110016
Case No.77/2017
- SANDEEP AGGARWAL
S/O RAM KUMAR AGGARWAL
R/O E-329 GK-II, NEW DELHI-110048
- KUNAL AGGARWAL
S/O ASHOK AGGARWAL
R/O E/212, GK-II, NEW DELHI-110048 …..COMPLAINANTS
Vs.
- ICICI LOMBARD GENERAL INSURANCE CO. LTD.
ICICI LOMBARD HOUSE,
414, VEER SAVARKAR MARG,
NEAR SIDDHI VINAYAK TEMPLE,
PRABHADEVI, MUMBAI, 400025
- MARUTI SERVICE MASTERS
JJ IMPEX (DELHI) PVT LTD
F-39, OKHLA INDUSTRIAL AREA PHASE-II,
(NEAR C LAL CHOWK), N, DELHI-20 ..….RESPONDENTS
Date of Institution-15/02/2017.
Date of Order-25/04/2022
O R D E R
MONIKA SRIVASTAVA– President
The complainant has the filed present complaint praying for a sum of Rs. 55,775/- with interest at the rate of 12% from 21.03.2016 along with a sum of Rs. 75,000/- on account of mental and physical harassment and Rs.60,000/- as compensation for payments made for alternate mode of transport as also for cost of litigation. OP no.1 is the insurance company while OP No. 2 is Maruti Service Masters workshop.
It is the case of the complainant that he got his vehicle Maruti Ertiga ZX1 having registration no. DLNC 887933 Insured by the OP company against policy no. 3001/112006330/00/000 for the period 06.01.2016 to 05.01.2017 and the same is annexed as Annexure 1.
Further, it is stated that on 16th January 2016 at about 6:30 AM, the car was being driven by complaint no. 2 i.e the nephew of the complainant met with an accident near Lodhi road, New Delhi. The car was sent for repair on 22nd January 2016 to OP no. 2 who assessed the vehicle for repair work for Rs.2,06,900/-. Thereafter when the external body repair work was completed and the car was taken for test drive by OP no. 2 it was communicated by them to OP no. 1 on 28th February 2016 that the engine will require repair since the same was overheating and approval for the same was sought from OP no. 1. It is the case of the complainant that OP no. 1 did not give approval for the said work and repudiated the claim by stating ‘the said loss was not relevant to cause of loss, it was d1 by mishandling of vehicle after accident.’
The complainant, thereafter made payments out of his own pocket to OP no. 2 and got the vehicle repaired at the earliest. After the engine repair work was done, during the test drive the complainant was informed that the steering of the vehicle was not performing adequately and needs to be replaced and the approval for the same was sought by OP no. 2 from OP no. 1. This claim was also rejected by OP no. 1 on 19.03.2016 citing “Subject vehicle has no accident impact on steering rack on basis of this steering rack is not admissible in this claim.”
It is the case of the complainant that OP no. 1 has wrongly repudiated his claim for an amount of Rs. 55,775/- out of the total claim amount of Rs. 1,59,948/- on baseless and vexatious ground. It is further averred by the complainant that he got the car back on 21.03.2016 i.e after 9 weeks during which Complaint no. 2 who is lawyer had to use various modes of transport for communicating within the city, for his work.
Per Contra OP no. 1 has taken preliminary objections and stated that the complainant has not approached the Commission with clean hands and has concealed material facts. It is also stated that there is no deficiency in service and the complaint as filed is frivolous and vexatious and therefore liable to be dismissed.
It is stated by the OP No.1 that the complainant, at the time of the accident did not call any PCR and also no FIR was registered and the OP no. 1 was also not informed about the accident on 16.01.2016 which deprived the OP from his legitimate right to investigate into the matter. It is also stated by the OP that they’ve settled the claim as per the assessment report of the surveyor and has paid an amount of Rs. 1,04,173/- to OP no. 2 and the same is annexed as Annexure D & E. OP no. 1 has further denied the allegation that it is after several rounds of communication and lapse of time that the complainant was compelled to authorise OP no. 2 to carry out the engine repair work so that he may get his vehicle prepared at earliest. OP no. 1 has also denied the allegation of complainant no. 2 that for travelling in the city, he had to use various modes of transport and faced a lot of trouble.
In its rejoinder to the reply of OP no. 1, the complainant has mostly denied the allegations of OP no. 1 and reiterated their complaint. It was once again reiterated that the claim was not repudiated on valid ground and stated that OP no. 1 is picking and choosing the claims as per their whims and fancies.
OP no. 2 has also filed his reply wherein he has taken a preliminary objection that complainant no. 2 has no concern with the present case nor has he any cause of action against the said OP. The insurance policy was taken by complainant no. 1 and therefore complainant no. 2 is not a consumer under the provisions of Consumer Protection Act 1986. It is further stated that the complaint as filed by the complainant is without any cause of action against OP no. 2 as the rule of OP no. 2 was only restricted to preparing of the external vehicle of the complainant as per his request and instructions. It is also stated that OP No. 2 is neither unnecessary nor proper party to be impleaded to this proceedings. It is also stated that the complaint has been filed in the name of wrong legal entity which is actually owned by M/s. J. J Impex (Delhi) Pvt. Ltd. is running the service centre under the name and style as Maruti Service Masters.
It is stated that OP no. 2 carried out the repairs as approved by the surveyor of OP no. 1. However it was noticed by the officials of OP no. 2 that the vehicle was overheating and the engine head needed to be overhauled. OP no. 2 sent an email on 28.02.2016 to OP no. 1 for allowing additional claim for overhauling of the engine as it could have been result of heavy impact in the accident, engine head in the vehicle was badly damaged from front side portion however the surveyor by his email dated 1.03.2016 refused to allow the claim “as the damage was caused by mishandling of vehicle after accident.” It is further stated that though the vehicle of the complaint met with an accident on 16.01.2016, the vehicle was brought to the workshop of OP no. 2 only on 21.01. 2016 and that too with the help of crane. It is averred by OP no. 2 that what happened between 16.01.2016 and 21.01.2016 to the vehicle is not within his knowledge and it may be possible that the damage to engine head could have occurred due to mishandling of vehicle as suspected by OP no. 1. It is also stated that the complainant was fully satisfied with the services provided by OP no. 2 and therefore has no cause of action against OP no. 2.
In their rejoinder to the reply of OP no. 2, the complainant has stated that there is a delay in the repair of the vehicle which is attributed to OP no. 2 as he should have been quick in identifying the problem with engine. It is further stated that no explanation has been given by OP no. 2 as to why the problem with the engine was identified much later. It is further stated that it was due to the impact on the front side that the steering rack was damaged which was also realised by OP no. 2 much later after the vehicle was test driven.
Reply, rejoinder, evidence affidavits as also written arguments of all the parties are on record. The Commission has carefully gone through all the pleadings and documents on record.
It is observed that the car of the complainant met with an accident on 16. 01.2016 however he took the vehicle to OP No.2 only on 21.01.2016 which as claimed by OP No.1 did not give them the right to investigate into the matter.
The report of the investigator, Sh. NK Singhal is also on record wherein it is categorically mentioned that though the accident occurred on 16.01.2016 however no FIR was done and also that no one was injured in that accident. The report also states that an inquiry was done at the spot and the people in the surrounding confirmed about the accident. However, it is also mentioned in the report that there was no divider, ever on that road. It is also been stated that the insured changed the accident spot and though the complainant had stated that the car was lifted with the help of a crane however no bill was ever given to them.
The explanation given by the complainant regarding this was that the vehicle had to be towed away to Tughlakabad as there was no space in their house to park the damaged vehicle. This Commission is of the view that the complainant has not given any cogent explanation as to why the information regarding the accident could not be given in time to OP No.1. It is also observed that there is really no case against OP No. 2 since no averment/prayer is made against them.
As far as OP No.1 is concerned, there are 2 issues
1. That the complainant was lax in informing OP No.1 about the accident
2. That it is on account of the complainant’s mishandling after the accident that the vehicle suffered more damage.
The complainant has relied on the judgment of the Hon’ble Supreme Court in Kamlesh vs Shriram General Insurance Co. Ltd. (C.A number 8796/2019) where in the Hon’ble Supreme Court has held that as far as the intimation to the company is concerned,
“in the event of an occurrence of any accidental loss or damage the condition does not contemplate issuance of any notice to the police. The case that the applicant came up with was of an accidental loss and therefore if no immediate notice was issued to the police, there was no infraction on the part of the applicant. The accident had occurred during the night of first and 2nd June 2009 and the intimation was given to the respondent 3rd of June 2009. In our view, the notice was not delayed on any count and did satisfy the requirements contemplated by the conditions in the policy.”
This Commission is of the view that the facts of this case are distinguishable from the facts at hand as in the case mentioned above, the accident took place on the night of 1st and 2nd June 2009 and the intimation was given to the OP No.1 on 3rd of June and therefore the Court had arrived at finding that there was no delay in the matter however in the matter at hand there is a delay of about 6 days in intimation to the OP No.1 and no cogent reason for the same is forthcoming from the complainant. However, as per the judgment of the Hon’ble Supreme Court in Gurshinder vs Shriram General Insurance (CA No. 653/2020) it has been stated by the Hon’ble court that delay in intimation to the company should not be a ground to repudiate the claim.
18. We concur with the view taken in the case of Om Prakash (supra), that in such a situation if the claimant is denied the claim merely on the ground that there is some delay in intimating the insurance company about the occurrence of the theft, it would be taking a hyper technical view. We find, that this Court in Om Prakash (supra) has rightly held that it would not be fair and reasonable to reject genuine claims which had already been verified and found to be correct by the investigator.
19. We find, that this Court in Om Prakash (supra) has rightly held that the Consumer Protection Act aims at protecting the interest of the consumers and it being a beneficial legislation deserves pragmatic construction. We find, that in Om Prakash (supra) this Court has rightly held that mere delay in intimating the insurance company about the theft of the vehicle should not be a shelter to repudiate the insurance claim which has been otherwise proved to be genuine.
20. We, therefore, hold that when an insured has lodged the FIR immediately after the theft of a vehicle occurred and when the police after investigation have lodged a final report after the vehicle was not traced and when the surveyors/investigators appointed by the insurance company have found the claim of the theft to be genuine, then mere delay in intimating the insurance company about the occurrence of the theft cannot be a ground to deny the claim of the insured.
In the present case, the report of the surveyor does not doubt the accident but the site of the accident was under a cloud. Surveyor has doubted that the accident took place at the so called divider as claimed by the complainants and in fact they have written in their report that this fact of the divider being there was cross checked with the MCD office and it was confirmed that there was no divider at the place of the accident.
Be that as it may, the OP No.1 has gone ahead and settled the claim of the complainant as per the assessment report of the surveyor and paid Rs. 1,04,173/- as per their own reply at para 7. The ground now taken by OP No.1 for further reputation of the claim is mishandling of vehicle after accident on account of the negligence of the complainant in their email dated 01.03.2016.
The complainant, in support of their contention has provided a judgment Hon’ble NCDRC in Reliance General Insurance Co. Ltd vs Aneesh Sebastian where in it has been held that “any normal person stuck in water would make an attempt to restart the car and drive out of the water and the same cannot be termed as negligence of the driver resulting in consequential damage”
Therefore, the complainant cannot be said to have caused any more damage to the vehicle.
This Commission is of the view that based on the same facts when once the OP No.1 has settled the claim of the complainant they are stopped from questioning the veracity of the same incident again when it has been written by them in their email dated 17.02.2016 “FURTHER APPROVAL AFTER DISMANTLING OF VEHICLE FROM FRONT SIDE”
OP No. 1 is directed to repay the balance amount of Rs. 55,775/- to the complainant within a period of three months from the date of this order failing which OP No. 1 is liable to further pay interest @ 6% pa. till its realization. The complainant is not found entitled to any other amount as claimed. The bills filed in respect of crane and taxi charges seem like an afterthought and not are proper paid invoices with taxes therefore the complainant is not entitled to any relief regarding these bills.
File be consigned to record room after giving copy of the order to the parties. Order be uploaded on the website.
(Dr. RAJENDER DHAR) (RASHMI BANSAL) (MONIKA SRIVASTAVA)
MEMBER MEMBER PRESIDENT
