Punjab

Faridkot

CC/19/257

M/s Dhaliwal Brothers - Complainant(s)

Versus

ICICI Lombard General Insurance Co. - Opp.Party(s)

Sunny Kumar

30 Jan 2023

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, FARIDKOT

 

Complaint No. :        257 of 2019

Date of Institution :    15.10.2019

Date of Decision :      30.01.2023

M/s Dhaliwal Brothers, New Cantt Road, Street No. 05, Faridkot, Punjab through its Proprietor Gurdeep Singh.

....Complainant

Versus

ICICI Lombard General Insurance Company Limited, Tower-D, 12^th Floor, Global Business Park, M.G. Road, Gurgaon (NR)-122002, through its Authorized Signatory.

..............OP

Complaint under Section 12 of the

Consumer Protection Act, 1986.

 

Quorum: Sh Kanwar Sandeep Singh, President,

                Smt Param Pal Kaur, Member,

                Sh Vishav Kant Garg, Member.

 

Present: Sh Sunny Kumar, Ld Counsel for Complainant,

              Sh Neeraj Maheshwary, Ld Counsel for OP,

ORDER

(Kanwar Sandeep Singh, President)

                                          Complainant Firm Dhaliwal Brothers through its proprietor Gurdeep Singh (hereinafter referred to as complainant) has filed this complaint under Consumer Protection Act

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1986 (hereinafter referred as ‘Act’ before this Commission against ICICI Lombard General Insurance Company Ltd (hereinafter referred as Opposite party).

2                                   Briefly stated, the case of the complainant is that he got insured his registered vehicle bearing no.PB04R-9967 with OP vide Policy No.3008/169743144/00/B00 dated 20.04.2019 valid for the period from 20.04.2019 to 20.04.2020 and paid premium of Rs.14,757/-to Opposite Party. During the subsistence said policy, vehicle of complainant met with an accident on 06.05.2019 at about 11.00 p.m. in Gurgaon. Accident took place due to leakage of water pipe in the construction site and vehicle was completely got sunk in water during night. Accident took place during late night when operator had left after parking the same at construction site. on 07.05.2019, the very next day, when JCB Operator and Site Engineer came at site, they saw that site was full of water and vehicle was sunk in water. Complainant was out of station and therefore, vehicle operator and site engineer were unable to get in touch with him. After ten days, site engineer came in contact with complainant and he

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informed about said accident to him and on 16.05.2019, complainant lodged claim with OP who appointed Surveyor. Said Surveyor inspected the spot on 03.06.2019 and assessed the loss and gave his Survey Report.

3                                It is alleged that OP refused to make payment of his genuine insurance claim on the ground of delay. It is submitted that delay in lodging claim is genuine and he has fully proved the reason for delay that at the time of accident he was out of station.

4                               It is further alleged that complainant sent many e-mails to OP wherein requested to clear his claim amount, but all in vain. Vehicle of complainant has been completely damaged. It is neither pliable nor repairable. He has suffered huge loss of Rs.8,50,000/- and OP is legally liable to pay the same, but OP has wrongly and incorrectly repudiated the claim of complainant.

5                                      Complainant has alleged that he has suffered huge financial loss as well as harassment and mental agony due to this act of OP, which amounts to deficiency in service and trade mal practice.

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6                               On this backdrop of facts, the complainant has prayed for directions OP to make payment of his genuine insurance claim of Rs.8,50,000/-alongwith interest at the rate of 18% per anum from the date of accident till final realization and for further direction to OP to pay compensation to the tune of Rs.50,000/-  for harassment and mental agony suffered by him besides litigation expenses of Rs.20,000/-.

7                                     The counsel for complainant was heard with regard to admission of the complaint and vide order dated 22.10.20219, complaint was admitted and notice was ordered to be issued to the opposite party.

8                               Upon notice, OP appeared and filed written statement taking preliminary objections that complainant has no locus standi to file the present complaint as no cause of action arises against answering OP. Complainant does not fall within the definition of consumer and he has violated the terms and conditions of the policy and thus, OP is not liable to pay any claim to him. Moreover, intricate questions of law and facts requiring voluminous evidence are

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involved in present case that cannot be decided by way of summary procedure of this Commission. Complainant has concealed the material facts from this Commission. OP has denied all the allegations of complainant being wrong and incorrect but admitted before the Commission that complainant purchased the policy in question from them which was valid for the period from 22.04.2019 to 21.04.2020. it is averred that alleged loss was reported to be on 06.05.2019, whereas intimation regarding same was given to answering OP after long delay of 11 days and on receiving the intimation, answering OP deputed a Surveyor and Loss Assessor who submitted his report on 18.07.20219 wherein assessed the loss at Rs.35,594/-. During survey, it was found that insured vehicle was in stationery condition at under construction site where levelling and digging work was going on. A water pipe line crossing that area got damaged due to which water leaked out from the pipe and water level rose up in that area and after some time, JCB standing in that area got sunk in water. On enquiry, it was found that owner and driver left the JCB in un-attending condition and never came back to check it again. He neither made any communication with the persons working at the

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site nor put any effort for safety of machine and even did not authorize anybody to look after the machine to avoid any loss. As per Spot Survey Photographs, it is clearly seen that site location is too big and it cannot be filled in single night. Surveyor advised Operator for taking out the JCB from water filled area, but he did not do anything useful to take out JCB from that area and it remained in that water filled area for 20 days due to which some parts of vehicle got damaged. Loss occurred due to negligence on the part of complainant and therefore, his claim was repudiated vide letter dated 01.09.2019. However, on merits, OP has denied all the allegations of complainant being wrong and incorrect and reiterated the same pleadings as taken in preliminary objections. Prayer for dismissal of complaint with costs is made.

9                                         Proper opportunities were given to complainant as well as OP to lead evidence to prove their respective case. Ld   counsel for complainant tendered in evidence, affidavit of complainant as Ex C-1, documents Ex C-2 to C-28 and then, closed the evidence.

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 10                         To controvert the allegations of complainant, ld counsel for OP also tendered in evidence affidavit of Aditya Pandey Ex OP-1, documents Ex OP-2 to Ex OP-3 and thereafter despite availing several opportunities, OP did not conclude evidence and therefore, vide order dated 18.02.2022, evidence of OP was closed by order of this Commission.

11                        We have heard the arguments advanced by ld counsel for complainant as well OP and have very carefully gone through and perused the affidavits & documents placed on the record file by respective parties.

12                                   From the careful perusal of record placed on file and arguments advanced by the counsel for complainant and OP, it is observed that case of the complainant is that insured vehicle of complainant met with an accident during subsistence of insurance policy purchased by him. He lodged claim with OP, who made spot survey, inspected the vehicle and assessed the loss but thereafter, OP repudiated the same on the ground of delay in providing intimation to them. Complainant submitted that at the time of accident, he was out

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of station and he was not in touch with vehicle operator and after about ten days, when complainant came to know about the accident, he lodged claim with OP. Delay occurred due to the reason that complainant was out of station. There is deficiency in service on the part of OP in repudiating the claim of complainant. To contradict the contention of complainant, OP averred that they have rightly repudiated the claim on the ground that accident occurred due to gross negligence that does not fall under the purview of insurance. Another plea taken by OP is that complainant caused delay in giving intimation regarding said accident to them within time. Accident occurred on 06.05.2019, but claim was lodged on 16.05.2019. Plea taken by OP that there is delay in giving intimation by complainant, does not make them free to escape from their liability to pay the genuine claim of insured.

13                                Careful perusal of document Ex C-12 shows that when survey was done by Surveyor Mr Verma, water level was very high and vehicle was totally sunk in water and there was no way to prevent further loss. Said Surveyor at that time could have

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suggested some better measures to prevent the further loss to the insured instead of waiting to get the vehicle out of water. He was himself aware that water level was very high and vehicle could not be removed from water and the final option left with them was to wait until the water level goes down. As the water level was high so it was not possible to remove the vehicle from deep water. There seems to be no negligence on the part of complainant. Complainant has reiterated that at the time of said accident, he was not at that place, he was out of station and he himself received information regarding said accident after about 10 days and thereafter, he lodged claim with OP without any delay.

14                                 To prove his pleadings complainant counsel has placed on record copy of document Ex C-2/A, bare perusal of which shows that vehicle of complainant was insured with OP against policy in question. He has further placed on record Travel Insurance Policy Ex C-4/A that proves his pleadings that at the time of said accident, complainant was out of station and was quite away from the site. Ex C-12 further proves the pleadings of complainant that

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accident was uncertain and it did not happen due to negligence or any kind of carelessness on the part of driver. It is very much normal that driver of the vehicle left the vehicle parked after working hours and he was not aware about the untoward situation. Accident happened due to leakage of water pipe at construction site and vehicle sunk into water during night. Had the driver of vehicle any knowledge about said leakage, he would not have parked the vehicle at that place. This is normal to park the vehicle at working site after working hours and nobody had any knowledge about water leakage. Construction site was full of water and vehicle was totally immersed into it and even after conduction of survey, Surveyor did not suggest any measures to remove the vehicle from the water filled area and to prevent further loss. Complainant has fully proved that he was out of station and he also received information about this accident after about 10 days. There is neither any negligence on the part of driver of vehicle in leaving the vehicle at construction site, as accident was uncertain and he had no prior knowledge about leakage in water pipe, nor there seems to be any delay on the part of complainant as he has fully proved that at the time of said accident, he was out of station. From

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the correspondence occurred between complainant and OP through e-mails vide Ex C-3 to Ex C-26, it is transpired that despite repeated requests for clearing the genuine claim of complainant, OP did not do anything useful to redress his grievance, which amounts to deficiency in service on the part of OP. There is no rebuttal from OP side. From the careful perusal of documents placed on record by complainant party, it is crystal clear that OP has failed to clear the genuine insurance claim of complainant and did not redress the grievance of complainant. On the other hand complainant has produced sufficient and cogent evidence to prove his pleadings. All the documents furnished before the Commission by complainant are fully authentic and are beyond any doubt.

15                             Ld Counsel for complainant has relied upon 2009 (3) CLT 417 wherein it is held that Survey Report is an important documents and it has to be accepted unless there are cogent reasons for rejecting the same. Moreover, Hon’ble National Commission in case of Narinder Kumar Joshi Vs Reliance General Insurance Company Ltd 2017 CPJ 366 (NC) has observed that the insurance

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claim is to be settled on the basis of Surveyor Report unless legitimate reasons are pointed out for not accepting the surveyor report. Similarly in case of Sri Venkateshwar Sindikat Vs Oriental Insurance Company Ltd and another, II CPJ 1 (SC), Hon’ble Supreme Court of India has observed that the surveyors were appointed under statutory provisions and they are linked between insurer and insured when question of settlement of loss or damage arises. The report of surveyor could become base for settlement of claim by the insurer in respect of loss suffered by the insured.

16                              So far as the contention of the Opposite Party that this Commission has no territorial jurisdiction is concerned, is not tenable as perusal of record reveals that cause of action partly arose to complainant at Faridkot (where complainant received repudiation letter) falls within the territorial jurisdiction of this Commission.

17                          In the light of above discussion, this Commission is of considered opinion that there is deficiency in service on the part of OP in not making payment of insurance claim of damaged vehicle

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to him. Had OP paid sufficient attention to redress the grievance of complainant and had they initiated appropriate & effective steps to clear his claim amount as per survey report, case of complainant would have been different or there would have been no complaint at all. Complainant has succeeded in proving his case and therefore, complaint in hand is hereby partly allowed. OP is hereby directed to make payment of insurance claim  amount of Rs.35,594/- as per survey report Ex OP-3/D and Ex C-3/E given by Surveyor alongwith interest at the rate of 8% per anum from the date of institution of complaint till final realization. OP is further directed to pay Rs.5,000/-as consolidated compensation on account of harassment and mental agony suffered by complainant and for litigation expenses.

18                                 Compliance of this order be made within 45 days from the date of receipt of copy of this order, failing which complainant shall be entitled to proceed as per Consumer Protection Act.

 

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19                                       The complaint could not be decided within stipulated time due to heavy pendency of cases.

20                                             Copy of the order be supplied to parties free of cost as per rules. File be consigned to record room.

Announced in Commission :

Dated: 30.01.2023

 

(Vishav Kant Garg) (Param Pal Kaur)     (Kanwar Sandeep Singh)

 Member                  Member                    President