Haryana

Karnal

CC/459/2022

Manoj - Complainant(s)

Versus

ICICI Lombard General Insurance Company Limited - Opp.Party(s)

Roshan Lal Narwal

08 Nov 2024

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, KARNAL.

 

                                                        Complaint No. 459 of 2022

                                                        Date of instt.08.08.2022

                                                        Date of Decision:08.11.2024

 

Manoj, aged  46 years son of Shri Vikram, resident of village & P.O. Charhuni Jattan, Tehsil Shahabad, District Kurukshetra. Aadhar no.2102 9638 6556.

                                               …….Complainant.

                                              Versus

 

1.     ICICI Lombard General Insurance Company Ltd., through its 

Branch Manager, Sector 12, Urban Estate, Karnal.

2.     Toyota Tsusho Insurance Broker India Pvt. Ld. Through its authorized person, Global Toyota, opposite PTC NH-1, Madhuban, District Karnal: 132001.

3.     ICICI Lombard General Insurance Company Ltd., through its authorized person, Tower-D, 12^th floor, Global Business Park, Mehrauli, Gurgaon Road, Gurgaon (Haryana): 122002.

 

                                                                    …..Opposite Parties.

 

Complaint under Section 35 of Consumer Protection Act, 2019.

 

 

Before   Shri Jaswant Singh……President.     

              Ms. Neeru Agarwal…….Member

      Ms. Sarvjeet Kaur…..Member

 

 Argued by: Shri Roshan Lal, counsel for the complainant.

                    Shri Ashok Vohra, counsel for the OPs No.1 & 3.

                    OP no.2 exparte, vide order dated 09.06.2023.

 

                     (Jaswant Singh, President)

ORDER:   

                

                The complainant has filed the present complaint under Section 35 of the Consumer Protection Act, 2019 against the opposite parties (hereinafter referred to as ‘OPs’) on the averments that complainant is the registered owner of Car (Fortuner) bearing no.HR-71-C-0002 and the same was got insured with the OPs, vide policy no.TIL/10738297, valid from 30.03.2021 to 29.03.2022.  The insured value of the car was Rs.8,70,000/-. The policy was package/comprehensive. The said policy was issued by the OP no.2 being the local broker/agent of the OP no.3.  On 03.03.2022, the car was taken by Dalbir Singh from the complainant. The said Dalbir Singh alongwith Mr. Vishant Lathar were going from Karnal to Panipat for some personal work in the said Fortuner Car, which was being driven by Vishant Lathar at a proper, normal and moderate speed on his due left hand side of the road. At about 7.45 p.m. when the car reached near Nameste Chowk, G.T. Road, Karnal, in the meanwhile, a canter driver all of a sudden applied the brakes, without giving any indication or signal, which was going ahead of car of the complainant, due to which the car of complainant struck with the said canter and damaged extensively. The driver of the canter ran away from the spot alongwith canter. The matter was reported to the local police and the DDR was recorded with the local police of P.P. Sector-4 (P.S. City) Karnal. The intimation in this regard was also sent to the OPs. OPs appointed an surveyor and surveyor conducted the necessary survey of the damaged car. Complainant lodged the claim with the OPs and submitted all the required documents to settle the claim.

2.             It is further averred that the car was stationed in the workshop of M/s Globe Toyota, Karnal i.e. authorized dealer of Toyota car upto 22.06.2022. Now the damaged car is lying in the Bara of the complainant after paying a sum of Rs.13,000/- on account of rent of the court-yard to M/s Globle Automobiles Pvt. Ltd.  It is further averred that despite waiting for sufficient time, complainant sent a legal notice dated 16.06.2022 to settle the claim but it also did not yield any result. Then, on compelling circumstances, complainant visited the office of OPs on 29.06.2022, then came to know that the claim of the complainant had already repudiated by the OPs, vide letter dated 28.06.2022. However, no other information or intimation was received by the complainant prior to this letter. In this way there is deficiency in service and unfair trade practice on the part of the OPs. Hence complainant filed the present complaint, seeking direction to the OPs to pay a sum of Rs.8,70,000/- as IDV Claim of the car in question, to pay Rs.50,000/- as compensation/damages on account of deficiency in service, mental pain, harassment etc. and to pay Rs.50,000/- as litigation expenses.

3.             On notice, OPs no.1 & 3 appeared and filed their written version raising preliminary objections with regard to maintainability; jurisdiction; cause of action; locus standi and concealment of true and material facts. On merits, it is pleaded that the claim of the complainant was duly processed, considered on merits and the same was not found payable hence the claim bearing no.MOT12069350 regarding total loss sustained by the car in question in an accident occurred on 03.03.2022 at Namastay Chowk Karnal at about 7.45 p.m. as alleged. The claim of the complainant was repudiated by the OPs on account of mis-representation of facts (cause of loss not justified with existing damages on vehicle and tries to hide material facts about loss). In brief the complainant purchased 2^nd hand Toyota Fortuner car Model 2010 during July, 2021 for a sum of Rs.6,20,000/- directly from Pratyaksh Bansal and the said car was transferred in the name of Manoj-complainant. Thereafter, the complainant got the said car insured for its IDV of Rs.8,70,000/- with the OPs deliberately. Originally the said car bears the registration no.HR-05BB-7891 in the name of Mr. Pratyaksh Bansal after sale it was got re-allotted with new VIP registration no.HR-71C-0002 in the name of complainant-Manoj. It is a fact that on 03.03.2022 at about 19.45 hrs. Vishant was driving insured car towards Gharaunda, as they reached on Namastey Chowk Sector-4, Karnal, the driver of the canter moving ahead suddenly he applied brakes resulting insured car was hit into rear of Canter from front and was damaged. Later the workshop official advised to Vishant to bring the car to the condition of total loss, the car was again hit to another truck time and again on rear to bring into condition of total loss as has been admitted in joint statement with insured and driver. The said car deliberately put to an accident in order to claim as 10 years completed of Diesel fuel. Moreover, there is delay of 7 days to inform the police station and 27 days to the insurer (after expiry of policy). It is further pleaded that the insurance is question is based on utmost good faith and both the parties i.e. insured as well as the insurer are bound by the terms and conditions of the contract of insurance. The liability of the insurance company has to be within the four corners of the contract of insurance claim. It is further pleaded that the complainant has stationed the car at M/s Globe Toyota, Karnal at his own will/choice and the rent of court yard paid, if any, paid by the complainant to M/s Globe Automobiles Pvt. Ltd., Karnal at his own interest as the OPs have no concern, the car was brought to the condition of loss on the directions of the workshop official. The loss caused intentionally to bring the car to total loss condition. There is no deficiency in service and unfair trade practice on the part of the OPs. The other allegations made in the complaint have been denied and prayed for dismissal of the complaint.

4.             OP no.2 did not appear despite service and opted to be proceeded against exparte, vide order dated 09.06.2023 of the Commission.

5.             Parties then led their respective evidence.

6.             Learned counsel for the complainant has tendered into evidence affidavit of complainant Ex.CW1/A, copy of legal notice dated 16.06.2022 Ex.C1, copy of insurance policy Ex.C2, copy of DDR no.6 dated 10.03.2022 Ex.C3, copy of crane receipt Ex.C4, copy of claim form Ex.C5, copy of claim detail Ex.C6, copy of driving licence Ex.C7, copy R.C. Ex.C8, copy surveyor report Ex.C9, copy of assessment report Ex.C10, copy of cash receipt Ex.C11, copy of gate pass Ex.C12, copy of repudiation letter dated 28.06.2022 Ex.C13, photographs of damaged vehicle Ex.C14 to Ex.C18 and closed the evidence on 11.01.2024 by suffering separate statement.

7.             On the other hand, learned counsel for the OPs has tendered into evidence affidavit of Sonu Rathi Ex.OP1/A, copy of insurance policy Ex.O1, copy of letter dated 30.06.2022 Ex.O2, copy of statement of Manoj Ex.O3, copy of report of investigator Ex.O4, copy of claim intimation sheet Ex.O5, copy of survey report Ex.O6, copy of endorsement Ex.O7 and closed the evidence on 02.09.2024 by suffering separate statement.

8.             We have heard the learned for the parties and perused the case file carefully and also gone through the evidence led by the parties.

9.             Learned counsel for complainant, while reiterating the contents of the complaint, has vehemently argued that complainant got insured his vehicle with the OPs No.1 & 3. During the subsistence of the insurance policy, the said vehicle met with an accident and became damaged badly. The intimation was given to the OPs. Complainant lodged the claim with the OPs and submitted all the required documents to settle the claim but OPs did not settle the claim despite repeated requests of the complainant and repudiated the same on the false and frivolous ground and lastly prayed for allowing the complaint.

10.           Per contra, learned counsel for OPs No.1 and 3, while reiterating the contents of written version, has vehemently argued that there was 7 days delay to intimate the police station and 27 days to the OPs. On receipt of delay intimation regarding the alleged accident, OPs appointed a surveyor, in order to assess the loss qua the vehicle in question. The surveyor and investigator after inspection of the vehicle submitted their reports and found that cause of loss not justified with existing damages on vehicle. Hence, the OPs have rightly denied the claim of the complainant, vide letter dated 28.06.2022 and lastly prayed for dismissal of the complaint.

11.           We have duly considered the rival contentions of the parties.

12.           Admittedly, complainant purchased the vehicle in question from one Pratyaksh Bansal and same was insured with the OPs No.1 and 3. It is also admitted that during the subsistence of the insurance policy, the vehicle in question met with an accident. It is also admitted that  as per insurance policy, the insured declared value (IDV) of the vehicle in question was Rs.8,70,000/-

13.           The claim of the complainant has been denied by the OPs, vide letter Ex.C13 dated 28.06.2022 on the ground, which s reproduced as under:-

“Misrepresentation of facts( that causes of loss not justified with existing damages on vehicle and try to hide material facts about loss).”

14.           The claim of the complainant has been repudiated by the OPs on the abovesaid ground. The onus to its version was relied upon the OPs but OPs have miserably failed to prove the same by leading any cogent and convincing evidence. The case of the OPs based upon the investigation report Ex.O4, same is a photocopy. OPs have neither examined nor tendered the affidavit of the said investigator, who has investigated the matter. Hence, the said report has no weightage in the eyes of the law.

15.           The OPs have also alleged that the complainant purchased the vehicle in question for sum of Rs.6,20,000/- from Pratyaksh Bansal and got insured for its IDV of Rs.8,70,000/-. OPs have not placed on file any documentary evidence to prove that complainant had purchased the said vehicle for the tune of Rs.6,20,000/-. Rather, as per insurance policy Ex.O1, the vehicle in question has been got insured by the previous owner  namely Pratyaksh Bansal for the IDV of Rs.8,70,000/- and said policy has been transferred in the name of the complainant. Hence, the plea taken by the OPs has no force at all.

16.           The accident took place on 03.03.2022 and DDR Ex.C3 was got lodged on 10.03.2022 with the delay of seven days. There is also delay of 27 days to intimate to the OPs with regard to accident.  No doubt, the complainant has violated the terms and conditions of the insurance policy and the right of the OPs had deprived for inspecting the vehicle in question at the spot, but in that eventuality, the claim cannot be repudiated in toto.  In this regard, we can relied upon the case laws  titled as Amalendu Sahu Vs. Oriental Insurance Company Limited, in Civil appeal no.2703 of 2010, decided on 25.03.2010 of Hon’ble Supreme Court of India; New India Assurance Co. Ltd. Versus Thirath Singh Brar in Revision Petition no.1870 of 2015(NC) decided on 14.08.2018 titled as of Hon’ble National Commission and judgment of Hon’ble State Commission, Haryana in First Appeal no.717 of 2016 decided on 6.4.2017 titled as United India Insurance Company Limited and others Versus Anshul Bansal.  In all the judgments it was held that in case of any breach of warranty/condition of the policy the insurer is liable to pay 75% of admissible claim on non-standard basis.

17.           Further,  Hon’ble Punjab and Haryana High Court in case titled as New India Assurance Company Ltd. Versus Smt. Usha Yadav & others 2008 (3) RCR (Civil) 111, has held as under:-

“It seems that the Insurance Companies are only interested in earning the premiums which are rather too stiff now a days, but are not keen and are found to be evasive to discharge their liability. In large number of cases, the Insurance companies make the effected people to fight for getting their genuine claims. The Insurance Companies in such cases rely upon clauses of the agreements, which a person is generally made to sign on dotted lines at the time of obtaining policy. This is, thus pressed into service to either repudiate the claim or to reject the same. The Insurance Companies normally build their case on such clauses of the policy, but would adopt methods which would not be governed by the strict conditions contained in the policy”.

18.           Keeping in view the ratio of the law laid down in the abovesaid judgments, the facts and circumstances of the present complaint, we are of the considered view that the act of the OPs No.1 and 3 amounts to deficiency in service and unfair trade practice while repudiating the claim of the complainant in toto. Hence, complainant is entitled to get 75% only of the admissible claim on non-standard basis.

19.           Complainant claimed the insured declared value (IDV) of the vehicle of Rs.8,70,000/- but as per assessment report Ex.C10/Ex.O5, the surveyor of the OPs has assessed the repair loss for the tune of Rs.5,34,885/-. Except said report there is nothing on the file that the insured vehicle has become damaged totally. Hence, the complainant is entitled for Rs.4,01,163/- i.e. 75% of the loss assessed by the surveyor of the OPs alongwith interest, compensation for mental pain, agony and harassment and litigation expenses etc.

20.           In view of the above discussion, we partly allow the present complaint and direct the OPs No.1 and 3 to pay Rs.4,01,163/- (Rs.four  lakhs one thousand one hundred sixty three only) i.e. 75% of the loss as assessed by the surveyor alongwith interest @ 9% per annum from the date of filing the complaint i.e. 08.08.2022 till its realization to the complainant. We further direct the OPs No.1 and 3 to pay Rs.25,000/- to the complainant on account of mental agony and harassment suffered by him and Rs.11,000/- for the litigation expenses. Complaint qua OP no.2 stands dismissed. This order shall be complied with within 45 days from the receipt of copy of this order. The parties concerned be communicated of the order accordingly and the file be consigned to the record room after due compliance.

Announced

Dated:08.11.2024                                                                     

                                                                President,

                                                   District Consumer Disputes

                                                   Redressal Commission, Karnal.

 

                  (Neeru Agarwal)              (Sarvjeet Kaur)

               Member                             Member