Punjab

Ludhiana

CC/21/306

M/s Kaur Sain Kundra - Complainant(s)

Versus

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

Gagandeep Singh

28 Sep 2023

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, LUDHIANA.

                                                Complaint No:306 dated 18.06.2021.                                                         Date of decision: 28.09.2023.

 

M/s. Kaur Sain Kundra and Sons, Mandi Machhiwara, Near Truck Union, Machhiwara, Tehsil Samrala, Distt. Ludhiana, partnership firm through its partner Sh. Mohit Kundra S/o. Sh. Sohan Lal Kundra, r/o. H. No.4714, Prem Nagar, Machhiwara Sahib, Tehsil Samrala, Distt. Ludhiana.                      

..…Complainant

                                                Versus

1. ICICI Lombard General Insurance Co.  Ltd., ICICI Lombard House 414, P. Balu Marg, Off Veer Sawarkar Marg, Near Siddhivinayak Temple, Prabhadevi, Mumbai-400205, through its Manager/Branch Manager.
2. ICICI Lombard General Insurance Co.  Ltd., TFI, 3^rd Floor, Kunal Towers, 88, The Mall, Ludhiana, Punjab-141001, through its Manager/Branch Manager.                                 

.….Opposite parties.

Complaint Under Section 35 of the Consumer Protection Act.

QUORUM:

SH. SANJEEV BATRA, PRESIDENT

SH. JASWINDER SINGH, MEMBER

MS. MONIKA BHAGAT, MEMBER

 

COUNSEL FOR THE PARTIES:

For complainant             :         Sh. Gagandeep Singh, Advocate. 

For OPs                          :         Sh. Rajeev Abhi, Advocate.

 

ORDER

PER SANJEEV BATRA, PRESIDENT

1.                In brief, the facts of the case are that the complainant firm is a partnership firm and Sh. Mohit Kundra is one of its partner. The complainant firm is the owner of one Toyota Fortuner car bearing No.PB32-W-0005, which was got insured from the opposite parties vide policy No.TIL/10502634 having validity from 16.11.2018 to 15.11.2019. The complainant stated that it paid extra premium other than regular premium to purchase an add-on feature option i.e. Return To Invoice (RTI) which covers the gap between the insured declared value and the invoice value of the car along with registration and other applicable taxes. Further RTI helps one in fetching purchase value (On road price) of the car in case of theft or total loss. The complainant paid a premium of Rs.83,698/- for purchasing insurance policy where the opposite parties have specifically mentioned that the RTI sum insured of the car is Rs.33,89,804/- meaning thereby in case of theft or total loss of the car the complainant shall get an amount of Rs.33,89,804/- from them.

                   The complainant further stated that on 27.10.2019 at about 09.00 PM i.e. during subsistence of the insurance policy, Sh. Mohit Kundra went to meet his friend Baljinder Singh at his residence Khukhrain Colony, Khalsa School Road, Khanna on the said insured car, which was being driven by the driver Sukhpal Singh. The car was parked outside the house of Baljinder Singh and Mohit Kundra and driver Sukhpal Singh went inside his house. At about 09.00 PM, Mohit Kundra came to know that his car has caught fire and Fire Brigade extinguished the fire but the car got damaged in the fire. A DDR No.10 dated 28.10.2019 was got registered by Mohit Kundra with Police Station City Khanna upon which one investigating officer from PS City Khanna visited the spot to enquire the matter and he found that the car has damaged in the said incident and also entered his findings in the DDR. A Fire Call report dated 22.10.2019 was also issued by Municipal Council, Khanna. The said car was brought to Global Toyota Agency, Ludhiana by towing service provided B.S. Breakdown who issued bill dated 29.10.2019. The complainant lodged a claim with the opposite parties submitting the required documents. The complainant applied certificate of cancellation of registration certificate of the car with the appropriate authority as per demand of the opposite parties. Due to Covid-19 pandemic situation, it took some time more time but the SDM, Nawanshahar issued cancellation certificate of RC vide certificate dated 03.02.2021, which the complainant supplied to the opposite parties. However, despite receipt of the documents, the opposite parties had not paid the whole amount of the complainant and only deposited a sum of Rs.10,31,356/- on 30.04.2020 with HDFC Bank in loan account of the complainant with which the car was financed and finally settled the loan account. HDFC Bank issued loan closure letter dated 10.08.2020 and also issued no objection certificate dated 10.08.2020 for removal of hypothecation. According to the complainant, he is entitled to get a claim of Rs.33,89,804/- from the opposite parties as the policy was purchased by the complainant by paying extra premium with an option of ad-on premium i.e. Return to Invoice (RTI). However, the opposite parties paid only Rs.10,31,356/- out of the claim amount of Rs.33,89,804/- and the complainant is entitled to receive an amount of Rs.23,58,448/- from the opposite parties regarding which the complainant made may requests to the opposite parties but they paid no heed to his request. As such, the opposite parties are guilty of committing deficiency in service and unfair trade practice due to which the complainant suffered physical as well as mental pain, agony and harassment etc. In the end, the complainant prayed for issuing direction to the opposite parties to pay the claim amount of Rs.23,58,000/- along with compensation of Rs.5,00,000/- and litigation expenses of Rs.55,000/-.

2.                Upon notice, the opposite parties appeared and filed joint written statement in which they assailed the complaint on the ground of maintainability; concealment of material facts; lack of jurisdiction etc. The opposite parties alleged that the complainant firm is not a consumer of the opposite parties as the complainant firm being a partnership firm running commercial business to earn huge profits. The Toyota Fortuner No.PB-32W-0005 was purchased by the complainant and insured with opposite parties to be used for commercial purpose by the firm. The opposite parties stated that M/s. Kaur Sen Kundra & sons is neither a registered partnership firm nor Sh. Mohit Kundra is its registered partner. On receipt of the claim, it was duly registered, entertained and processed. The policy was purchased by the complainant for insuring his Toyota Fortunre No.PB-32W-0005. According to the opposite parties, the insurance policy is a contract in itself and the parties are bound by the terms and conditions of the policy. Nothing can be added of subtracted out of it. M/s. Bansal & Co., Ludhiana an IRDA approved and licensed surveyor and loss assessor was appointed as surveyor and loss assessor who personally inspected the vehicle, took the photographs and thereafter, prepared his report and submitted the same under his signatures along with enclose and annexures with the opposite parties. The opposite parties further appointed M/s.Star Investigators, Inside Mission Estate, Court Road, Backside Vidhya Dhar Petrol Pump, Near Doaba Automobiles, Amritsar to investigate the own damage claim of the vehicle in question who made thorough investigation and thereafter, prepared report and submitted the same with the opposite parties.

                   M/s. Bombay Forensic, 2^nd Floor, Jasia House, 137, Modi Street, Fort, Mumbai was appointed by the opposite parties to submit fire forensic report of the fire caused to the vehicle No.PB-32W-0005, who also made thorough investigation and prepared report dated 07.02.2020 and submitted the same to the opposite parties with the following conclusion:-

“Based on the Fire Forensic and Analysis of the fire affected vehicle of incident followed by search, identifications, collection and analysis of physical evidence, it is concluded that the incident of fire reported to have occurred on 27^th October, 2019 at about 10.00 P.M. in the vehicle No.PB-32-W-0005 was,

• Not due to any electrical short circuit
• Not due to any natural causes
• Not due to sabotage/arson or malicious act, but
• Due to external source of fire, as there is higher possibility of particulars of burning cracker went down underneath front-portion of the insured’s parked vehicle which leads to catching of the fire by plastic underneath cover part of the vehicle as it was day of Diwali.”

The opposite parties further stated that after scrutinizing the documents placed in the claim file and after due application of mind by their officials, the complainant was called upon to furnish the documents vide letter dated 19.01.2020 followed with reminder dated 18.06.2020 and final reminder dated 30.07.2020.

                   The opposite parties further averred that the vehicle was financed and hypothecated with HDFC Bank Ltd. and the complainant could not submit the RC cancellation and loan foreclosure letter till the adjustment of the loan and as such, on the request of the complainant, a sum of Rs.10,31,356/- was paid to the complainant in his loan account towards settlement of the loan so that he could process for RC cancellation of the vehicle and submit the loan foreclosure letter/no due certificate along with the demanded documents, which were sought for processing of the claim. However, the complainant failed to submit the aforesaid material documents and as such, vide letter dated 30.07.2020, the claim file was closed as no claim on account of non-submission of documents demanded vide aforesaid letters. According to the opposite parties the claim of the complainant has been rightly closed as no claim on account of non-submission of documents.

                   On merits, the opposite parties reiterated the averments made in the complaint by denying the averments made in the complaint as incorrect and in the end, a prayer for dismissal of the complaint has been made.

3.                In support of his claim, Sh. Mohit Kundra, Partner of the complainant firm tendered his affidavit Ex. CA in which he reiterated the allegations and the claim of compensation as stated in the complaint. The complainant also tendered documents Ex. C1 is the copy of partnership deed, Ex. C2 is the copy of registration certificate No.PB-32W-0005, Ex. C3 is the copy of insurance policy w.e.f. 16.11.2018 to 15.11.2019, Ex. C4 and Ex. C5 is the copy of DDR No.10 dated 28.10.2019, Ex. C6 is the copy of Fire Call Report dated 29.10.2019, Ex. C7 is the copy of receipt of towing charges, Ex. C8 is the copy of certificate dated 03.02.2021 issued by Registering and Licensing Authority, Nawanshahr, Ex. C9 is the copy of loan account statement of HDFC Bank, Ex. C11 is the copy of loan closure letter, Ex. C11 is the copy of No Objection Certificate of HDFC Bank, Ex. C12 is the cop of driving licence of Sukhpal Singh, Ex. C13 is the copy of Aadhar card of Sh. Mohit Kundra, Ex. C14 is the copy of repair invoice dated 12.06.2021 of Toyota Global Automobiles Pvt. Ltd. and closed the evidence.

4.                On the other hand, the counsel for the opposite parties tendered affidavit Ex. RA of Sh. Rohan Mishra, Manager Legal of the opposite parties as well as affidavit Ex. RB of Sh. Vijay Bansal, Prop. of M/s. Bansal & Co., an IRDA licensed and approved Surveyor and Loss Assessor, Ludhiana, affidavit Ex. RC of Sh. Gopal E. Relkar, Assistant Director of M/s. Bombay Forensic, Mumbai, affidavit Ex. RD of Sh. Sahil Kumar, Manager of M/s. Star Investigator, Amritsar along with documents Ex. R1 to Ex. R21 and closed the evidence.

5.                We have heard the arguments of the counsel for the parties and also gone through the complaint, affidavit and annexed documents and written reply, affidavit and documents produced on record by both the parties.

6.                It is un-controvertly emerges from the file that M/s. Kaur Sain Kundra & Sons is a partnership firm and Sh. Mohit Kundra is one of its partners. The complainant took Private Car Package Policy Ex. C3 from the opposite parties for its Toyota  Fortuner car bearing registration No.PB-32W-0005 for a period from 16.09.2018 to 15.09.2019 for  RTI sum insured of Rs.33,89,804/-. On 27.10.2019 at about 09.00 PM, the vehicle in quesiton caught fire when it was parked outside the house of Baljinder Singh, a friend of the complainant at Khukhrain Colony, Khanna. Fire call report dated 29.10.2019 Ex. C6 was made by the Fire Station Officer, Fire Brigade, Municipal Council, Khanna qua extinguishing of the fire. A DDR No.10 dated 28.10.2019 Ex. C4 was also recorded at Police Station City, Khanna. On receipt of the intimation, M/s. Bansal & Co., Ludhiana an IRDA approved and licensed Surveyor and Loss Assessor was deputed to survey and assess the loss. According to the surveyor, he personally inspected the vehicle, took photographs and assessed the expected net loss payable as Rs.35,50,000/- vide survey report dated 05.12.2019 Ex. R21 and also made the following observation:-

                   “12. Observation:

As the expected repair assessment is on the higher side & it is not economical to get the vehicle repair & it seems that the vehicle is not road worthy, so the claim is recommended for settlement on NOS Basis without RC. So it is advised to the underwriters to procure its salvage quotation through online auction without RC & settle the claim on NOS basis.”

The opposite parties further appointed M/s. Bombay Forensic, Mumbai to submit the fire forensic report, who submitted its report dated 07.02.2020 Ex. R16 by arriving at a conclusion that “due to external source of fire, as there is higher possibility of particulars of burning cracker went down underneath front-portion of the insured’s parked vehicle which leads to catching of the fire by plastic underneath cover part of the vehicle as it was day of Diwali.”

The opposite parties also appointed Star Investigator, Amritsar to investigate the claim of the complainant, who submitted its report Ex. R1 by observing that on 27.10.2019, due to Diwali, insured went to his friend’s house for dinner on IV and parked IV outside his friend’s house. Later around 9-9.30, due to crackers, IV caught fire. The report of the surveyor was scrutinized by the opposite parties and thereafter, they demanded certain documents from the complainant vide letters Ex. R18 and Ex. R19 but due to non-submission of the documents by the complainant, the claim was closed as no claim vide letter dated 30.07.2020 Ex. R17=Ex. R20.

7.                However, the opposite parties in their written statement stated that they have already paid a sum of Rs.10,31,356/- in the loan account of the complainant maintained with HDFC Bank for the purpose of obtaining NOC as well as to process the RC cancellation of the vehicle with competent authorities. As per letter Ex. R17=Ex. R20, the opposite parties required the following documents from the complainant:-

• Purchase invoice
• Indemnity bond
• NOC form No.35
• Letter to RTO – RC cancellation
• AML documents
• Loan foreclosure
• Claim form duly filled and signed by insured
• Invoice
• PAN card

8.                In view of the aforesaid admitted position regarding breaking of fire of the insured vehicle of the complainant and extinguishment of the fire by the fire brigade, the lodging of DDR by the police and visit of the surveyor all show that the fire actually had broken to the insured vehicle. It is not the case of the opposite parties that there is violation of any terms and conditions contained in the policy which could lead to denial/repudiation of the claim. It is also evident that no clause of the policy has been invoked in order to repudiate the claim of the complainant. In the given set of circumstances, it was the duty of the opposite parties to assess the loss even when the documents were submitted to them. The delay on the part of the complainant in submitting the documents cannot be made a sole ground to repudiate the claim of the complainant. The insurance companies are required to be more liberal in their approach without being too technical. Bare reading of repudiation letter Ex. R17=Ex. R20 inevitably suggest that the opposite parties were too technical and harsh. In this regard, reference can be made to 2022(2) Apex Court Judgment 281 (SC) in case title Gurmel Singh Vs Branch Manager National Insurance Company Ltd. whereby it has been held by the Hon’ble Supreme Court of India that the insurance company has become too technical while settling the claim and has acted arbitrarily. The appellant has been asked to furnish the documents which were beyond the control of the appellant to procure and furnish. Once, there was a valid insurance on payment of huge sum by way of premium and the Truck was stolen, the insurance company ought not to have become too technical and ought not to have refused to settle the claim on non­submission of the duplicate certified copy of certificate of registration, which the appellant could not produce due to the circumstances beyond his control. In many cases, it is found that the insurance companies are refusing the claim on flimsy grounds and/or technical grounds. While settling the claims, the insurance company should not be too technical and ask for the documents, which the insured is not in a position to produce due to circumstances beyond his control.

In the given set of circumstances, it would be just and proper if the complainant is directed to submit all the necessary documents with the opposite parties within 30 days from the date of receipt of copy of order and after the receipt of the documents from the complainant, the opposite parties shall consider and reimburse the remaining claim of the complainant strictly as per terms and conditions of the policy within a period of 30 days from the date of receipt of documents from the complainant.

9.                As a result of above discussion, the complaint is partly allowed with direction to the complainant to submit all the necessary documents with the opposite parties within 30 days from the date of receipt of copy of order and after the receipt of the documents from the complainant, the opposite parties shall settle and reimburse the remaining claim of the complainant strictly as per terms and conditions of the policy within a period of 30 days from the date of receipt of documents from the complainant, failing which the opposite parties shall be held liable to pay interest @8% per annum to the complainant on the said amount from the date of order till its actual payment. However, there shall be no order as to costs. Copies of order be supplied to parties free of costs as per rules. File be indexed and consigned to record room.

10.              Due to huge pendency of cases, the complaint could not be decided within statutory period.

 

(Monika Bhagat)          (Jaswinder Singh)                      (Sanjeev Batra)                          Member                            Member                                       President         

 

Announced in Open Commission.

Dated:28.09.2023.

Gobind Ram.