Delhi

North

CC/22/2019

RAJNI - Complainant(s)

Versus

ICICI LOMBARD GENERAL INSURANCE COMPANY LIMITED - Opp.Party(s)

SUMANT MANCHANDA

16 Aug 2023

ORDER

District Consumer Disputes Redressal Commission-I (North District)

[Govt. of NCT of Delhi]

Ground Floor, Court Annexe -2 Building, Tis Hazari Court Complex, Delhi- 110054

Consumer Complaint No.: 22/2019

 

Ms. Rajni

D/o Sh. Jeet Ram,

R/o H No. 272,

Main Road, Sisodia Market,

Jharoda, Village- Burari,  New Delhi-110084                                        …                              Complainant                                                                                                                                           Vs

ICICI Lombard General Insurance Co. Ltd.

Local office:-

Plot No. 4, 2^nd & 3^rd Floor,

Aggarwal Plaza, Local Shopping Centre,

Block B-1, Mini Market

Near Mission Public School,

Janakpuri “B Blokc”

Delhi-110058.

 

Policy Issuing office:-

ICICI Lombard House

414, Veer Savarkar Marg,

Near Siddhi Vinayak Temple,

Prabhadevi, Mumbai-400025.                                                                          …                Opposite Party No.1           

NCR Motors Pvt. Ltd., Gurugram

C/o S.K. Chauhan (Owner),

NCR Motors,

Renault, Atul Kataria Chowk,

Old Delhi-Gurgaon Road,

Gurugram, Haryana-122001.                                                                            …                Opposite Party No.2

 ORDER

16/08/2023

Ashwani Kumar Mehta, Member:-

 

1.            The brief details of facts, as alleged in the Complaint in hand, are that the Complainant purchased the “Zero Depreciation Cover Policy” bearing No. 3001/118062931/01/000 dated 27.06.2017 with total I.D.V as Rs.7,99,200/- from the OP-1/insurance company namely “ICICI Lombard General Insurance Company Limited” on payment of premium of Rs.26,677/-. The above said policy was valid from the “27.06.2017 to 26.06.2018”. The above-said policy was continuously in effect since the year 2015. The copy of the Insurance Policy alongwith Risk Assumption Letter dated 25.06.2017, covering the Complainant’s vehicle since the year 2015, has been annexed as “Anneuxure-1A & 1B”.

2.           It has been stated that the brother of the Complainant namely “Dharmender” had met with an accident on 15.01.2018 at 03:00 am at Tijara Tehsil in the Alwar District of Rajasthan while going from Delhi to Rajasthan, alongwith his brother namely “Ravinder” who was sitting on the front seat and a friend namely “Balram” who was sitting on the rear seat of the car. It is further stated that the road going towards the village was not properly lit and there was very low visibility due to the fog everywhere due to which the Complainant’s brother couldn’t see anything in front and as a result, the car collided with a boundary wall made of bricks which was located near the road, thereby causing complete damage to the car. Several parts of the car were got damaged during the accident and the bricks lied all over the car thereby damaging most sensitive parts of the car. The list of damaged car parts ( 88 parts which were damaged and required to be replaced was prepared by the OP No.2 (Car Repair Company) and given to the Complainant’s brother.

3.            The Complainant has also filed  15 photographs  showing the Damaged car parts 2 and the car shown in parked position alongwith the print of Google Map showing the exact location of accident as “Tijara”, have been annexed as “Annexure-4A & 4B” respectively.

4.           It has further been stated that the Complainant’s brother immediately called the customer care department, after the accident and got the acknowledgement from the Customer Care Department of OP-1 (Insurance Company) by way of a text message sent by OP-1 on 15.01.2018 at 08:44 am and as a result of which, a towing van was sent to the site of accident and it towed the car to the showroom of the OP-2 (NCR Motors Pvt. Ltd., Rewari) at 2 PM. The printed copy of the Text Message sent by ICICI Lombard Roadside Assistance showing the acknowledgement of Reference No.ICI1718003445 and subsequent assignment of ticket to “Shaheeda Begum” dated 15.01.2018 at 08:44 AM has also been annexed as “Annexure-5” with the complaint.

5.            The Opposite Party No.2 took the delivery of the damaged car on the same day and on request to replace the damaged parts and repairing the others, the OP-2 informed the Complainant’s brother on dated 18.01.2018 so as to replace the damaged parts and repair the other vital parts. Thereafter, the OP-2 gave an estimated total Bill of Rs.16,90,358/- vide VIN No. MEEHSRAW5F4087579 on 18-01-2018 and its Claim No. MOTO7259487 for the insured vehicle- model Renault Duster of White Paint. That Complainant’s brother followed up with the OP-1 (Insurance company) and it informed the Complainant’s brother that surveyor has been appointed  who took 3 months to survey the details of the accident to the vehicle and thereafter, he reported that the Complainant’s brother had misrepresented the facts about the accident which finally led to the rejection of the claim. The copy of the Estimated Repair Invoice Bill dated 18.01.2018, issued by the Opposite Party No.2 has been annexed as “Annexure-6”.

6.           It has further been alleged that the Complainant’s brother sent emails  dated 03.04.2018 at 05:21 PM and 07.04.2018 at 02:03 PM stating that the claim has not been settled but no reply was received. The copy of the email dated 03.04.2018 & 07.04.2018 sent by the Complainant’s brother have been annexed with the complainat as “Annexure- 7A & 7B” respectively.

7.            The OP-1 rejected the claim of the Complainant vide letter dated 19.04.2018  communicating the grounds of repudiation with following wordings:-

“Your claim can’t be settled for reasons of Misrepresentation of Facts (Driver details are misrepresented at intimation/ claim form from actual & try to hide the material facts)”.

8.           Thereafter, a legal notice dated 02.06.2018 was also sent to the OP-1 by the Advocate of the Complainant stating that all the documents/communications were sent regarding the claim and despite that claim was rejected without any valid and logical reasons.

9.           It has also been alleged that the Complainant has valid Registration Certificate of the Insured Vehicle with Registration No. DL8CAK 9195, issued in the name of the Complainant, with Validity date as 30.06.2030. The Complainant also has a Valid Driving License with the date of issue as 12.11.2010 with Validity date as 12.11.2030 and also the Complainant’s brother (Dharmender), who was driving the Car, has driving license with date of Issue as 25.02.2017 with Validity date as 29.08.2030, both issued by the Transport Department, Govt. of NCT of Delhi. The copy of the Driving License of the Complainant (Rajni) and Complainant’s brother (Dharmender), have also been annexed as “Annexure -11 A & 11 B” respectively.

10.         It is further alleged  that the Complainant’s brother initially gave the details of accident to the insurance company that he was the driver only but the owner of the car is his sister i.e. the Complainant and further that she is also the insurance policy holder. The Complainant’s brother gave correct information to the customer care that he was driving the car at the time of accident and not being the owner of vehicle but it was not considered by the OP-1 and claim was repudiated vide letter dated 19.04.2018.        Thus, the Complainant or her brother has not done any act of misrepresentation of information at the time of intimation of accident and also at the time of submitting the claim form. The complainant never tried to hide the material facts to the customer care/ officials of the OP-1.  The Complainant’s brother has also mentioned in emails dated 07.04.2018 where the employees of the oP-1 (insurance company) disputed the blood test report of the Complainant’s brother with that on the blood sample found out on the Car’s Airbag but OP-1 never shared the blood test report with the Complainant’s brother despite repeated requests which now has created serious doubt in the mind of the Complainant and her brother that the officials of the OP-1 (insurance company) are deliberately trying to hide the true facts as they don’t want to pay the huge amount of Claim. The copy of the Blood Group Report dated 15.03.2018 of the Complainant’s brother (Dharmender) showing his blood group as “O Negative”, issued by the Dr. Lal Path Labs, located at Conductor Colony, Main Road, Burari, New Delhi has been annexed as “Annexure-12”.

11.         The Complainant has, therefore, filed this complaint before this Commission praying for direction to OP to:

a)   to pay 16,90,358/- (i.e. Rupees Sixteen Lakhs Ninety Thousand Three Thousand Fifty Eight Only) for the accidental damages repair and part replacement, alongwith the interest at 12% p.a. on the unpaid claim amount to the complainant;

b)    pay compensation of Rs.50,000/- for the loss and injury caused to the complainant due to negligence, dereliction of duty and harassment to the Complainant on the part of the Opposite Parties Nos. 1 and 2.

3. Pay of a sum of Rs.50,000/- towards cost of Litigation including       

other charges etc.

4.  Pass such other order(s) as this Hon’ble Forum may deem fit     

under facts and circumstances of the case.

 

12.         Accordingly, notices were issued to the OPs to defend the case and OP-1 has filed its reply stating that the Complainant has not come to this Hon’ble Forum with clean hands and has suppressed material facts. The complaint is misconceived, false and frivolous and the same is liable to be dismissed. The OP-1 has further stated that the Complainant has failed to take reasonable care what a prudent man would usually do and ought to do in keeping the vehicle safe from accident. It is submitted that grossly negligent act of the Complainant is clear cut violation of the terms and conditions of insurance policy. Hence, OP-1 has no liability towards complainant. It is further stated that the Complainant had not submitted any report/ complaint to the police or other authority stating therein that wife of Complainant was driving the vehicle on the date of accident instead of him. It is further been contended by the OP-1 that after investigation, the claim had lawfully been repudiated and same was intimated vide letter dated 19.04.2018 to the Complainant. It has further been stated that:-

1. The Complainant is claiming estimated amount for the repair of his/her vehicle which cannot be recoverable per se.
2. It is also denied as wrong that brother of Complainant namely Dharmender was driving the vehicle as alleged. It is further denied as wrong that Ravinder was sitting on the front seat while Balram was sitting in back seat as alleged.
3. It is also denied as wrong that surveyor appointed by answering OP took three months for investigation as alleged.
4. After considering all the fact, answering OP has lawfully repudiated claim of the complainant and same was communicated vide mail dated 19.04.2018.
5. The Complainant had completely failed to provide driving license of the person who was driving the vehicle at the time of accident.
6. The Insurance Policy is always subject to its terms and conditions which is agreed by both the parties and in case of any violation, Insurer cannot be held liable.

13.         The OP-2 has also filed reply confirming that it has collected the vehicle after the accident and has prepared the estimate for repair of the accidental vehicle. The claim of repair of the vehicle is pending with OP-1 and the instant dispute is between the complainant and the OP-1. The parking charges for the damaged vehicle, which is parked in its workshop is required to be paid by the complainant who has not paid the same. As such, there is no deficiency of service in service on the part of the OP-2.

14.         On the reply of OP-1, the Rejoinder has been filed by Complainant stating that the question of suppression of material facts and Complainant not coming with clean hands,  doesn’t arise at all and the same is liable to be maintained and decided on merits. The complainant, in support of the allegations made in complaint and in rebuttal of the stand taken by the OP-1, has further stated that the insured person had taken due precautions while allowing her brother to drive the vehicle. The Complainant’s brother had valid driving license at the time of accident and he was driving properly. The road going towards the village was not properly lit and due to very low visibility because of fog prevailing at that time also, the Complainant’s brother couldn’t see anything in front of the vehicle and as a result, hit the closed boundary wall made of bricks. Thus, the Complainant’s brother took reasonable care which a prudent man would usually take to keep the vehicle safe from accident. The complainant has further contended that there has been no misrepresentation of facts on the part of the Complainant nor her brother as per the terms & conditions of the policy.

15.         Regarding  para 2 of the reply of OP-1, the complainant has stated that it is matter of record and since the OP-1 (Insurance Company) has accepted it as factual record, hence,  needs no further reply. The complainant has further pointed out  that the OP-1 (Insurance Company) in its reply has stated that “Complainant being Advocate” had never made any complaint before OP-1 (Insurance Company) or an authority for harassment by its employee or agent, which is completely wrong and denied. The Complainant is not an Advocate at all but she is a housewife who has a small kid and is taking care of her family. The OP-1 (Insurance Company) even doesn’t have any correct information about the Complainant and doing a guess work about the profession of the Complainant. It is further pointed out by the complainant that it could be a case of identity of Complainant in another case being mixed here in the present Complaint. This mixture is highly unprofessional on the part of OP-1 (Insurance Company). The Complainant has requested that the reply to paras of Preliminary Objections may be read here as part reply of this para and in view of this position, contention of the OP-1 (Insurance Company) doesn’t hold good and it is liable to pay the valid claim amount at the earliest.

16.         The complainant has also denied the contents of OP-1 at para no.5 of the preliminary objections of OP-1 stating that the “wife of Complainant was driving the vehicle on date of accident” as wrong. The Complainant has also pointed out  that the Complainant is a women and she can’t have any wife so the question of wife of the Complainant driving the vehicle on the date of accident doesn’t arise at all. In the rebuttal of reply of the OP-1, It has further been stated by the Complainant that the true facts have already been stated in the complaint that the Complainant’s brother, who was driving the car, immediately called the customer care department, after the accident and got the acknowledgement from the Customer Care Department of OP-1 (Insurance Company) by way of a text message sent by OP-1 on 15.01.2018 at 08:44 am and as a result of which, a towing van was sent to the site of  accident and it towed the car to the  Authorised Service Centre of the OP-2 (NCR Motors Pvt. Ltd., Rewari) at 2 PM. Thus, entire incident happened not because of any other vehicle but because of the poor visibility due to fog  and that is the reason the incident was not reported to the police or other authority. The Complainant had made it very clear in her complaint that it was her brother, who was driving the vehicle at the date of accident and he followed the proper procedure as per the Terms & Conditions of the policy to inform the customer care department of the OP-1 (Insurance Policy) about the accident.  Therefore, the question of not filing of any representation/ police complaint or other authority doesn’t arise at all as there was no third party involved in the accident. Thus the complaint is liable to be maintained and decided on merits.

17.         The contents of para no.7 of the preliminary objections of the OP-1 have also been denied by the complainant as wrong.  It is contended by the complainant that the Complainant can’t herself identify the approximate amount of claim for the damaged parts of the vehicle and it is only the OP-2 (Authorised Service Centre), who has expertise in repairs and can provide the correct estimated cost of damaged parts to be recoverable per se. Thus, the Complainant is relying on the estimated cost of damaged parts which is assessed by the professional mechanics working with the OP-2 (Authorised Service Centre) and the OP-1 (Insurance Company) can’t deny that assessment of the OP-2 (Authorised Service Centre).

18.         Accordingly, the complaint has been examined in view of the facts of the case and averments/documents/Evidence put forth by the complainant & OPs and it has been observed that:-

1. The Complainant has given timely information to the OP-1 about the accident on 15-01-2018 and the vehicle was towed by the towing Van, sent by OP-1, to the authorised service centre after receipt of the information of details of accident of insured vehicle.
2. The OP-1 has also contended that estimate for repairs of the accidental vehicle has been prepared by the authorised workshop as Rs.16,90,358/- whereas the IDV of the vehicle is Rs.7,99,200/- as per the policy issued on 25.06.2017. It has been seen that the accidental vehicle was towed to the Authorised Service Centre, by the towing van sent by the OP-1 and the estimate was prepared by the Authorised Service Station only? How the complainant can be held responsible for estimate prepared by the Authorised Service Centre. Moreover, the OP-1 has not sought any investigation/clarification from the Authorised Service Centre to check the genuineness of the estimate. In case, the repair estimate was higher than the IDV, the OP-1 could have offered IDV to the Complainant instead of repudiating the claim.

 

3. The OP-1 has repudiated the claim on 19-04-2018 for the reasons of “Misrepresentation of facts (Driver details are misrepresented at intimation/claim form from actual & try to hide the material facts)”, whereas the Insurance Company was supposed to elaborate with evidence as to how the facts were misrepresented?  However, on going through the reply/Evidence and written arguments filed by the OP-1,it has been found that the OP-1 has gone beyond the above wordings of repudiation letter while defending the allegations of complainant.  In this regard,  the judgment passed by the Hon’ble Supreme Court in the matter of Saurashtra Chemicals Ltd. Vs. National Insurance Co. Ltd. [(2019) 19 SCC 70] appears relevant in this case wherein it has been held that the Insurance Company cannot travel beyond the grounds mentioned in the letter of repudiation.
4. During the hearing on 17-12-2019 & 28-01-2020, the OP-1 has filed IRDA circular dated 25-07-2019 on “Misuse of Total Loss Accident Vehicle documents over stolen vehicles” insisting for cancellation of RC of the vehicle which has suffered total loss and in response, the complainant has filed Registration cancellation Certificate on 17-03-2021 which was duly received by the OP-1 on 17-03-2021 but OP-1 did not come forward to settle the matter.
5. However, on going through the replies/records filed by both the parties, it has been found that the OP-1 has disputed the driver’s              ( Dharmender) details on the basis of the blood group of the person driving the car which does not match with the Blood group of  the Blood sample taken from the driver side’s air bag of the accidental vehicle in question. In this regard, the OP has failed to produce any evidence as to whether the sample taken from the driver side’s air bag of the vehicle was collected & duly sealed in the presence of the owner (Ms. Rajni) or the driver (Sh. Dharmender) and their signatures were taken on the sealed bag of the samples.?
6. It has also not been clarified by the OP-1 as to when the blood sample was collected from the driver side’s air bag of the accidental vehicle because the Affidavit dated 26.04.2019 of Senior Forensic Expert, Mumbai filed by the OP-1 as evidence, reveals that the sample was received in Forensic Lab on 22.03.2018 from OP-1 whereas the accident took place on 15.01.2018. The OP has also not explained the reasons for delayed referral of the sample for forensic examination.
7. On perusal of the investigation report of Sh.Ashish Gupta, Investigator,  filed by the OP-1, it has also been found that following remarks are made in the report:-

1. Eye-witness was found near the spot who confirms the genuinity of the accident and spot was found genuine.
2. We have reroute the route as per GPS system from starting point to destination but we have not found any diversion to loss location.
3. No concrete reasons provided by reported driver to leave in midnight.
4. Blood stains were found in vehicle but as per driver, he escaped with minor injuries.
5. Insured deny to provide us complete address.
6. Driver change is suspected.
7. Drunk & drive is suspected.
8. Mis-representation of facts found in the claim.

With regard to the above point-wise remarks, the insurance company/OP-1 has failed to substantiate as to:-

1.  Whether the eye-witnesses denied the genuineness of the accident?
2. When ( date & time with status of climate) the investigator has checked/re-routed the route as per the GPS system from starting point to destination because the accident took place on 15.01.2018 at 02:30 AM due to low visibility because of fog.  The Investigator has also not explained as what was the time and climate position at the time of the checking the route by the investigator as per GPS system because there is every likelihood that the GPS system will not properly work during the fog/ smoggy weather.
3. How the reasons provided by the reported driver to leave during midnight, are not found concrete?
4. When the process of collecting blood samples from accidental vehicle was started & completed?  Why it was not completed in the presence of policy holder or driver?
5. Which address was required specifically when the complete address is mentioned on policy? How it was found incomplete?
6. How it was concluded without any evidence?
7.  How it was concluded without any evidence?
8. How mis-representation of facts was concluded? It has not been explained in detail in the repudiation letter.

 The other observations of the investigator are just based on the presumptions which appear to be unjustified in the absence of any evidence. Further, in the investigation report the details of the license of Sh. Dharmender are mentioned and the Complainant (Ms. Rajni) has also submitted her driving license whereas the OP-1 has contended that the Complainant has not furnished the copy of the driving license. It is also mentioned in the investigator report that there is no TP loss/involvement whereas the OP-1 has also contended that no FIR of the accident was lodged by the complainant.

19.         In view of the observations, we are of the considered view that the OP has not examined the claim carefully and has repudiated the claim of the Complainant on the basis of conjectures and surmises which is un-justified and amounts to deficiency in service on the part of the OP-1. As such, the Complainant has suffered directly due to deficiency in service on the part of the OP-1 in terms of the deficiency defined in the Act which includes any fault, imperfection, shortcoming or inadequacy in the quality, nature and manner of performance which is required to be maintained in relation to any service and includes any act of negligence or omission or commission by such person which causes loss or injury to the consumer.  However, no deficiency in service has been observed on the part of OP-2.

20.        Therefore, we feel appropriate to direct the OP-1 (M/s ICICI Lombard General Insurance Co. Ltd.) to pay to the complainant:-

I.             Rs.7,99,200/- with interest at the rate of 9% w.e.f.19-04-2018 till the date of payment, within 30 days from the receipt of this order;

II.            Rs.1,00,000/- as compensation for mental pain, agony and harassment.

21.         It is clarified that if the above said amount is not paid by the OP-1 to the Complainant within the period as directed above, the OP shall be liable to pay interest @ 12% per annum from the date of expiry of 30 days period. It is also clarified that the Complainant will remit the amount of salvage value alongwith proper documents of assessment of salvage value of the damaged vehicle/ accidental vehicle to the OP-1 within 7 days of receipt of this order to enable the OP-1 to comply the order.

22.        Order be given dasti to the parties in accordance with rules. Order be also uploaded on the website. Thereafter, file be consigned to the record room.

 

ASHWANI KUMAR MEHTA                                                      DIVYA JYOTI JAIPURIAR

                                              Member                                                                                                 President

DCDRC-1 (North)                                                                        DCDRC-1 (North)