BEFORE THE DISTRICT CONSUMER DISPUTES

REDRESSAL COMMISSION, JALANDHAR.

Complaint No.45 of 2022

      Date of Instt. 14.02.2022

      Date of Decision: 19.06.2023

Sunil Dutt aged about 53 years son of Amarjit Singh resident of Patti Bhaudhipur, VPO Virk, Tehsil Phillaur, Distt. Jalandhar.

..........Complainant

Versus

1.       ICICI Lombard General Insurance Co. Ltd. registered office at ICICI Lombard House, 414, Veer Savarkar Marg, Near Sidhi         Vinayak Temple, Prabhadevi, Mumbai 400025.

2.       ICICI Lombard General Insurance Co. Ltd., Second Floor,      Nirmal Complex (Sawagat Palace), Plot No. EH-198, GT Road,           Jalandhar, Punjab 144001.

….….. Opposite Parties

Complaint Under the Consumer Protection Act.

Before:        Dr. Harveen Bhardwaj             (President)

                   Smt. Jyotsna                            (Member)

                   Sh. Jaswant Singh Dhillon       (Member)   

Present:       Sh. Gaurav Chopra, Adv. Counsel for the Complainant.

                    Sh. R. K. Sharma, Adv. Counsel for OPs No.1 & 2.

Order

Dr. Harveen Bhardwaj (President)

1.                The instant complaint has been filed by the complainant, wherein it is alleged that the complainant purchased a Toyota Innova (Crysta), bearing registration no.PB01-C-3789, having Chassis No.MBJJB8EM301570408-0719 and Engine No.2GDA342680 from Castle Toyota and insured the above said vehicle from OPs vide policy no.TIL/10678673 valid from 06.09.2020 to 05.09.2021, for a sum of Rs.54,364/- paid to the OPs. Unluckily, on 10.06.2021, the above said vehicle met with an accident and a DDR bearing no.036 dated 16.06.2021 was also registered at P.S. Phillaur. At that time, the vehicle was driven by the driver of the complainant namely Amandeep Chamba who also got injuries on his person. The complainant with the help of crane, picked up the above said vehicle and sent it to Pioneer Toyota, GT Road, Sirhind, Near Sahil Hotel, Mandi Gobindgarh through transport for necessary action and repair. The complainant also informed the OPs about the above said accident as earlier as possible. The surveyor and investigator of the opp. parties inspected the spot where the accident took place. They were fully satisfied with the accident and made their report for the claim. The complainant also submitted all the documents which were demanded by the investigator and surveyor of the OPs. The complainant also submitted bank foreclosure statement and third party affidavit to the OPs. After taking all the documents from the complainant, the OPs did not settle the claim of the complainant. The complainant many time issued request letters to the OPs to settle the claim as earlier as possible because the complainant had suffered a huge loss in terms of money, because the vehicle was totally damaged and he has no other source of income except the above said vehicle. The complainant has to pay the bank installments of the above said vehicle. After sometime, the complainant astonished when he came to know that the OPs rejected the claim of the complainant on the ground that the accident was not genuine, manipulated and the driver was not injured, which was totally a false, baseless and illegal ground taken by the OPs, on the basis of which, the claim of the complainant was rejected. In fact, the surveyor and investigator of the OPs inspected the spot and collected all the documents related to the claim and they were fully satisfied with the claim of the vehicle. So, the acts of the OP of not issuing the claim with regard to the vehicle knowing-fully well that the accident took place genuinely, which lead to deficiency in service and unfair trade practice on the part of the OPs. Due to deficiency in service on the part of the OPs, the complainant suffered mental tension, harassment as well as agony and as such, necessity arose to file the present complaint with the prayer that the complaint of the complainant may be accepted and OPs be directed to pay the amount of Rs.17,00,000/- as total damages of the above said vehicle and to pay Rs.6550/- charged by Ganpati Golden Transport Company to take vehicle from the spot to Sirhind and Rs.4000/- charged by the crane and Rs.15,000/- charged by the Pioneer Tata Sirhind for parking charges and Rs.1,00,000/- as compensation for causing mental tension and harassment to the complainant and Rs.10,000/- as litigation expenses.

2.                Notice of the complaint was given to the OPs, who filed reply and contested the complaint by taking preliminary objections that the complaint is not maintainable against the OP, as such the same is liable to be dismissed. It is further averred that there is misrepresentation of facts by showing Amandeep Chamba as driver of the insured vehicle by concealing the actual fact of some other person driving the insured vehicle at the time of accident. The DDR No. 365 dated 16-06-2021 has been got recorded with PS Phillaur, Distt. Jalandhara by complainant Sunil Dutt after six days from the date of accident, by wrongly showing Amandeep Chamba as driver of vehicle bearing No.PB-01-C-3789. The complainant in the claim form has stated that suddenly a stray animal came in front of the ahead going truck and due to sudden applying of brakes by the driver of ahead going truck, the insured vehicle struck behind the said ahead doing truck, but the as per version of the complainant in DDR No.36 dated 16-06-2021 registered with PS Phillaur, Distt. Jalandhar, accident occurred due to coming of stray animal in front of the insured vehicle whereupon, driver of the insured in process of saving stray animal applied brakes but the vehicle went out of control and struck behind the ahead going truck resulting in the accident and loss to the insured vehicle. On intimation of loss, the OP besides getting the loss surveyed and assessed also deputed M/s Bombay Forensic, Mumbai for Accidental Reconstruction Report, whereupon M/S Bombay Forensic submitted its Accident Reconstruction Report Reference No.BFSL/R2122/415 dated 13-09-2021 concluding by demonstrating the Diagrams/Photographs of the damaged vehicle that in both the cases whether the insured vehicle would have dashed behind the truck either due to sudden applying of the brakes by the driver of truck due coming of stray animal in front of the truck OR coming of stray animal in front of the insured vehicle and in process of saving stray animal application of brakes by its driver and vehicle went out of control and striking behind the ahead going truck, the driver of the insured vehicle would have moved forward due to momentum present in his body and on dashing would have interacted with the interior of the vehicle and would have sustained major injuries on his head, face, chest, abdomen hands and legs due to dashing over the frontal object with or without wearing belt and would not have escaped with minor injuries as alleged. The expert has concluded that in this case, based upon the vehicle damages, it is not possible for the driver to escape with minor injuries if he was present in the vehicle, as the vehicle found majorly impacted from driver side and as such alleged driver is not correlating on driver seat at the time of accident as the actual driver would have received major injuries and would have required major hospitalization. It is further averred that the repudiation of the claim which is not payable as per terms and conditions of the insurance policy does not amount to any deficiency in service or unfair trade practice. The claim of the complainant has been De rightly repudiated vide letter dated 07-10-2021 after due application of mind by the OP. On merits, the factum with regard to issuance of Commercial Vehicle Insurance Policy bearing No.TIL/10678673 for the period 06-09-2020 to 05-09-2021 in the name of Sunil Dutt subject to terms and conditions of insurance policy is admitted, but the other allegations as made in the complaint are categorically denied and lastly submitted that the complaint of the complainant is without merits, the same may be dismissed.

3.                Rejoinder not filed by the complainant.

4.                In order to prove their respective versions, both the parties have produced on the file their respective evidence.

5.                We have heard the learned counsel for the respective parties and have also gone through the case file very minutely.

6.                The complainant has proved on record the copy of the RC in the name of complainant of Toyota Innova (Crysta). The complainant has also proved on record the insurance policy Ex.C-3, which was valid from 06.09.2020 to 05.09.2021. This has also been admitted by the OP and this insurance policy has been proved by the OPs also as Ex.O-1. The complainant has alleged that his vehicle met with an accident on 10.06.2021 and DDR was got registered on 16.06.2021. It has been alleged that the vehicle was being driven by the driver of the complainant namely Amandeep Singh Chamba, who got injuries on his person. The claim was lodged with the OPs, but the OPs have rejected the claim. He has proved on record DDR Ex.C-4 and the prescription of the doctor has been proved as Ex.C-5. The complainant’s grudge is that despite he made request letters to the OPs for settling his claim Ex.C-6, but his claim has not been settled rather the same has been repudiated, vide Ex.C-7/O-5. The complainant has alleged that he has suffered a financial loss, to the tune of Rs.17,00,000/- as he had paid Rs.6550/- to Ganpati Golden Transport Company for taking the vehicle from the spot to Sirhind, Rs.4000/- to Crane and Rs.15,000/- to Pioneer Tata Sirhind for parking charges. He has proved the receipts Ex.C-8, Ex.C-9 and Ex.C-10. He has claimed all these charges alongwith his claim as the vehicle was totally damages.

7.                The case of the OP’s is that complainant is not entitled to the any relief as the complainant has not come to the Commission with clean hands. There are two versions of the complainant in the DDR as well as in the claim form. The driver did not get any injury. As per the report of the expert, way the accident took place clearly show that the person who suffered accident must have faced major injuries. He has relied upon the report of the expert of Bombay Forensic Ex.O-4 and has alleged that the Driver Amandeep Chamba was not on the driver seat as alleged by the complainant.

8.                As discussed above, the insurance is not disputed and ownership is also not disputed. The claim form furnished by the complainant before the OPs Ex.O-2 shows that the reasons of the accident has been mentioned that the complainant was going from Phillaur to Nagar Road, near Isharwal Village, when a stray animal came infront of the truck which was going ahead of the complainant’s vehicle. The driver of the truck applied immediate brakes with the result the vehicle of the complainant hit against the truck. The version in the DDR Ex.C-4/O-3 is that at about 01:30 am, the driver of the complainant namely Amandeep Singh Chamba was going towards the village Lasara and in order to save the stray animal, the driver applied brakes to slow down the vehicle with the result he got the vehicle became imbalanced and it hit against the back side of the truck. The claim form Ex.O-2 shows that the claim form that the statement nowhere bears the signatures of the driver of the complainant nor the statement was got recorded by the driver of the complainant namely Amandeep Chamba nor the driving license of the driver of the complainant has been produced on record. There is no document on the record to show that Amandeep Chamba as alleged was the driver of the complainant. The reason mentioned in DDR that the driver was alone going to his relative village Lasara without accompanying the owner or any member of the complainant’s family and there is no document on the record to show that he was ever appointed by the complainant as a driver. Even Ex.C-5, the prescription of the doctor shows merely a pain in Arm and Shoulder of the Amandeep Chamba. There is no reference of any accidental injury as alleged by the complainant. Though, the complainant has written a letter to the OP Ex.C-6 that investigator and Surveyor appointed by the OPs were fully satisfied, but the claim has not been settled and the reply to the letter Ex.C-7/O-5 shows that the same was repudiated on the ground that mis-representation of facts (driver details are misrepresented at intimation/claim form from actual and try to hide the material facts). Causes of loss not justified with the existing damages on vehicle. Claimed damages are manipulated, not matching with loss description mentioned in claim form. The report of the Bombay Forensic Science gave the opinion that:-

                    ‘1. Based on the vehicle damages and injury record      analysis, it is not possible for the insured's driver to escape with          minor injuries if he was present in the vehicle in the mentioned   scenario at the time of said accident. In this case, driver would          have required major hospitalization. Hence, alleged driver         Amandeep Chamba is not correlating on the driver seat at the   time of the said accident.

                   2. In this case, statement given by the Insured about the           said accident scenario does not correlate with the insured's statement given in police which indicates that the insured is           either unaware of the incidence fact or is hiding the fact of the          said accident.

                   So, there is no rebuttal to the expert opinion of Forensic Department to prove that Amandeep Chamba was driving the vehicle at the relevant time. The complainant has proved on record the investigation report alongwith the RC, insurance and DDR. To prove that the accident was genuine and the surveyor has also recommended for claim. Perusal of the investigation report of Ravi Kuamr shows that there is no reference of the driving license of the driver. He has not mentioned anywhere that he has seen or taken into possession the driving license of the driver Amandeep Chamba. The investigator has opined that there is no delay in police report as per date of loss mentioned in claim form whereas in the written statement the OPs have categorically alleged in preliminary objections that the DDR No.36 dated 16.06.2021 has been got recorded with police station Phillaur after 6 days from the date of accident. As per his opinion, the damages are co-relating with the description of the accident provided by insured, whereas as per the report of Forensic Expert, the damages are not co-relating with the description of the accident provided by the insured. The Surveyor in the conclusion has himself stated that they don’t have any concrete evidence regarding the driver. Once he is saying that they have no concrete evidence regarding the driver and he is recommending the claim to be payable causes suspicion. The claim of the complainant was repudiated on the ground that there is misrepresentation of the details of the driver and this fact has also been admitted by the surveyor. Therefore, the report of the Surveyor cannot be relied upon. The statement was given by the complainant Sunil Dutt. The statement has been produced, but where did he get recorded his statement, has not been proved and he has depicted the facts as per the DDR. In this statement, he has mentioned that after sometime, police came on the spot, but the complainant has not produced on record the investigation report or investigation done by the police to rebut the case of the OPs.

9.                From all the documents produced on record by both the parties, it is proved that there is a contradictory statement in the claim form as well as in the DDR and the statement produced on record by the complainant. The driving license has not been proved on record. From the different statements of the complainant, it is proved that the complainant himself is not aware of the fact that how the accident took place. The driver of the complainant i.e. Amandeep Chamba has not gone to the police station or has given the statement anywhere to prove the actual incident, therefore the OP has rightly repudiated the claim on the ground of misrepresentation. Even the claim form has not been signed by the complainant. Thus, the complainant has failed to prove his case and accordingly, the complaint of the complainant is without merits and the same is dismissed with no order of cost. Parties will bear their own costs. This complaint could not be decided within stipulated time frame due to rush of work.

10.              Copies of the order be supplied to the parties free of cost, as per Rules. File be indexed and consigned to the record room.

Dated          Jaswant Singh Dhillon    Jyotsna               Dr. Harveen Bhardwaj     

19.06.2023         Member                          Member              President