Chandigarh

DF-I

CC/251/2023

HARPREET KAUR - Complainant(s)

Versus

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

DR. RAJANSH THUKRAL ADVICATE

07 Mar 2024

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION-I,

U.T. CHANDIGARH

                                     

Consumer Complaint No.	:	CC/251/2023
Date of Institution	:	10/05/2023
Date of Decision	:	07/03/2024

 

Harpreet Kaur w/o Bikramjeet Singh r/o House No.1538, Sector 7C, Chandigarh 160019.

… Complainant

V E R S U S

1. ICICI Lombard General Insurance Company Ltd., Office Address : Plot No.149, Fourth Floor, Industrial Area, Phase 1, Chandigarh 160002, through its Branch Manager.
2. Tricity Ford, Plot No.349, Phase – 02, Industrial Area, Panchkula, Haryana 134109. A unit of Rama Motor Sales and Services Pvt. Ltd. through its Manager.

… Opposite Parties

CORAM :	SHRI PAWANJIT SINGH	PRESIDENT
	SHRI SURESH KUMAR SARDANA	MEMBER

 

                                                                               

ARGUED BY	:	Sh. Sidharth Thukral, Advocate for complainant
	:	Sh. Kaveesh, Advocate for OP-1
	:	OP-2 ex-parte

 

Per Pawanjit Singh, President

1. The present consumer complaint has been filed by Harpreet Kaur, complainant against the aforesaid opposite parties (hereinafter referred to as the OPs).  The brief facts of the case are as under :-

1. It transpires from the allegations as projected in the consumer complaint that on 11.12.2020, complainant had purchased a Ford Eco-sport car (hereinafter referred to as “subject car”) and got it registered vide registration certificate (Annexure C-2) under registration No.CH01-CC-7923. The subject car was got insured by the complainant w.e.f. 11.12.2020 to 10.12.2021 and on expiration of the said policy, she could not get the same renewed and after some time she was in touch with one agent of OP-1/insurer namely Vikram, who insisted her to get fresh insurance policy. Thereafter the agent alongwith authorised person of OP-1 inspected the subject car and clicked photographs (Annexure C-3) and thereafter agreed to insure the subject car. The complainant paid an amount of ₹19,705/- as premium against total IDV of ₹9,40,000/- with cashless facility and bumper to bumper (zero depreciation) basis and the policy (Annexure C-4) was valid w.e.f. 28.2.2022 to 27.2.2023 (hereinafter referred to as “subject policy”).  On the evening of 6.2.2023, when the driver of the complainant namely Vinod Kumar was driving the subject car and reached near dumping ground at Chandigarh, the same met with an accident with a truck due to rash and negligent driving of the truck driver who, after hitting the subject car, ran away from the spot.  The driver did not sustain injury in the said accident.  Immediately, the driver reported the matter at Maloya Police Station where DDR (Annexure C-5) was recorded and the affidavit of the driver Vinod Kumar is Annexure C-6. Thereafter, intimation qua accident was also given to OP-1/insurer, who asked her to take the car to service centre and accordingly after towing the said car from the spot by paying charges of ₹2,000/- vide receipt (Annexure C-7), the same was delivered to the service centre of OP-2 which is authorised service centre of Ford.  Job card was created and estimate (Annexure C-8) for an amount ₹3,45,448/- for repair including labour charges was given to the surveyor. As the subject policy was cashless and bumper to bumper, with no depreciation applicable, OP-2 got many papers signed from the complainant and thereafter the same were submitted to OP-1/insurer.  OP-1 had deputed surveyor, who visited the workshop, but, no proper information was given by him to the complainant. Later on complainant tried to get the status of her accidental claim through WhatsApp (Annexure C-10) and also approached OP-1 several times with the request to approve the estimate so that the subject car could be put to repair, but, with no result and finally when she visited the local office of OP-1, she was surprised to know that her claim has been repudiated without any genuine reason. Later on, surveyor offered to settle the claim for ₹45,000/- verbally, but, the complainant refused to accept the same.  In this manner, subject car could not be repaired, till date, and OP-1 has wrongly repudiated the genuine claim and the aforesaid act of OP amount to deficiency in service and unfair trade practice. OPs were requested several times to admit the claim, but, with no result.  Hence, the present consumer complaint.
2. OP-1 resisted the consumer complaint and filed its written version, inter alia, taking preliminary objections of maintainability, cause of action, concealment of facts and also that the complainant is not a consumer. On merits, OP-1 has not specifically denied the fact that the subject car was insured by the answering OP vide subject policy and the same met with an accident on the relevant day, time and place and the complainant has lodged the claim with it.  However, it is alleged that the claim of the complainant has been repudiated on the ground that the claimed damages are too old and not matching with the date of loss mentioned in the claim form and also on the ground that the complainant has misrepresented the facts.  The facts as stated in the preliminary objections have been reiterated. The cause of action set up by the complainant is denied.  The consumer complaint is sought to be contested.
3. OP-2 did not turn up before this Commission, despite proper service, hence it was proceeded against ex-parte vide order dated 14.6.2023.
4. In rejoinder, complainant re-asserted the claim put forth in the consumer complaint and prayer has been made that the consumer complaint be allowed as prayed for.

2. In order to prove their case, contesting parties have tendered/proved their evidence by way of respective affidavits and supporting documents.
3. We have heard the learned counsel for the contesting parties and also gone through the file carefully, including written arguments.
   1. At the very outset, it may be observed that when it is an admitted case of the parties that the complainant is registered owner of the subject car, which was insured by OP-1 vide subject policy (Annexure C-4) which was valid w.e.f. 28.2.2022 to 27.2.2023 and on the relevant date, time and place, the subject car, having been driven by Vinod Kumar, met with accident, as is also evident from the copy of DDR (Annexure C-5) and the complainant had lodged claim with OP-1/insurer in pursuance to the estimated loss to the tune of ₹3,45,448/-, including labour charges assessed by the repairer vide estimate (Annexure C-8), whereas the surveyor deputed by OP-1 had assessed the loss vide report (Ex.R-2) to the tune of ₹3,00,649.93 and the claim of the complainant had been repudiated by OP-1 vide letter dated 31.5.2023 (Ex.R-1) on the ground that damage found by the surveyor do not coincide with the accident, rather the same was old one and the complainant has misrepresented material facts and the subject car has not been got repaired either by the complainant or by the OPs, till date, the case is reduced to a narrow compass as it is to be determined if OP-1/insurer is unjustified in repudiating the genuine claim of the complainant and the complainant is entitled to the reliefs prayed for in the consumer complaint, as is the case of the complainant, or if OP-1/insurer is justified in repudiating the claim of the complainant and the consumer complaint of the complainant, being false and frivolous, is liable to be dismissed, as is the defence of OP.
   2. In the backdrop of the foregoing admitted and disputed facts on record, one thing is clear that the entire case of the parties is revolving around the documentary evidence placed on record by them and the same is required to be scanned carefully to determine the real controversy between the parties.
   3. It is the case of the complainant that the subject car was insured by OP-1 after carrying out inspection of the same and also on finding the same in perfect condition, as is also evident from the photographs (Annexure C-3 colly.), which were clicked by the agent of OP-1 before issuance of the subject policy and as the subject policy was issued by OP-1/insurer covering the risk of bumper to bumper, it has wrongly repudiated the claim of the complainant on the ground that the damage found to the subject car  do not coincide with the accident.
   4. The claim of complainant is resisted by OP-1/insurer on the simple ground that the surveyor has found damage/loss to the subject car too old and not coinciding with the accident.  However, perusal of surveyor report (Ex. R-2) clearly indicates that the surveyor has given a note in his report that the damages sustained by the insured vehicle appear to be old and fabricated one, which is also clear from the spot photographs and the condition of the airbags.  However, surprisingly, OP-1 has failed to rebut the evidence led by the complainant with the help of any material, having been collected by the surveyor, in order to conclude that the loss to the subject car was found too old, rather the surveyor had found and reported in his report (Annexure R-2) the Pre Accident Condition of subject car “Good” as mentioned at Sr.No.(h) under vehicle particulars heading. 
   5. On the other hand, when the complainant herself has proved the photographs, which were clicked by agent of OP-1 at the time of inspection of the subject car, before issuance of subject policy, showing no loss/ damage to the subject car and further the said loss/ damage to the subject car stands proved from the first information, which was given to the  police immediately after the accident i.e. copy of GDD/ DDR (Annexure C-5) and as the aforesaid evidence led by complainant is unrebutted by OP-1/insurer in order to prove that the loss to the subject car was too old, it is unsafe to hold that the loss/damage caused to the subject car was not coinciding with accident dated 6/7.2.2023 or that the same was too old.  Hence, it is safe to hold that OP-1/insurer has wrongly repudiated the genuine claim of the complainant and the present consumer complaint deserves to succeed.
   6. So far as the quantum of relief to be granted to the complainant is concerned, as the complainant has only proved the estimated cost of repair through Annexure C-8, without proving the actual bills for repair of the subject car, which has admittedly been not got repaired by her, whereas the surveyor deputed by OP-1/insurer has assessed the total loss of the subject car less salvage to the tune of ₹3,00,649.93, the report of the surveyor cannot be ignored as there is no evidence on the part of the complainant to prove that the surveyor has not assessed the loss as per IRDA guidelines.
   7. It is pertinent to mention here that surveyor report is an important piece of evidence and has to be given due weightage and can only be ignored if there is any other cogent evidence to the contrary.  Here we are strengthened by the judgment of Hon’ble Apex Court in Khatema Fibres Ltd. Vs. New India Assurance Company Ltd. & Anr., Civil Appeal No.9050 of 2018 decided on 28.9.2021 in which it was held as under:-

       “38.  A Consumer Forum which is primarily concerned with an allegation of deficiency in service cannot subject the surveyor’s report to forensic examination of its anatomy, just as a civil court could do. Once it is found that there was no inadequacy in the quality, nature and manner of performance of the duties and responsibilities of the surveyor, in a manner prescribed by the Regulations as to their code of conduct and once it is found that the report is not based on adhocism or vitiated by arbitrariness, then the jurisdiction of the Consumer Forum to go further would stop.”

 

Further, the Hon’ble National Commission in New India Assurance Company Ltd. Vs. Rabindra Narayan, I (2010) CPJ 80 (NC) held as under:-

“The Report submitted by the Surveyor is an important piece of evidence and has to be given due weight and relied upon until and unless it is proved by some cogent and reliable evidence that the Report submitted could not be relied upon.”

Further the Hon’ble National Commission in Oriental Insurance Co. Ltd vs. Arss Infrastructure Project Ltd., II (2023) CPJ 468 (NC) held as under:-

            “Insurance — Surveyors’ report — Survey and investigation are one of fundamentals in settling claim, and cannot and should not be disregarded or dismissed without cogent reasons, though it also goes concomitantly that survey or investigation should be convincing and pass test of credence in scrutiny — State Commission has not gone into contents of surveyors’ reports at all on ground that reports were filed belatedly before it — Reports were in any case available before State Commission and as such it ought to have examined their contents rather than dismissing them outright — Depending upon circumstances State Commission could have even imposed terms including cost for belatedly filing reports but to treat them as suspicious and to perfunctorily dismiss them outright merely because they were filed belatedly was not approach either justified or called for — No need to examine surveyors’ reports at this stage at any great length since both parties agree that settlement may be made on basis of respective surveyor’s assessment of actual loss in each case.”

The Hon’ble National Commission in Detco Textiles Pvt. Ltd. Vs. New India Assurance Company Ltd. & Anr., II (2023) CPJ 535 (NC) held as under:-

        “The Surveyor conducted a very detailed inspection of the premises and assessed the loss after due verification of documents. He assessed the total loss to the building, plant & machinery and furniture etc. at Rs.11,21,18,099/- after making necessary deductions of Rs.5,605,905/- towards excess clause and taking care of the process charges, debris removal, architects fee and goods held in trust arrived at the net adjusted loss of Rs.10,65,12,194/-. For every item, the Surveyor had explained the basis of arriving at the amount. The Complainant on the other hand had not placed any evidence to establish that the assessment made by the Surveyor was incorrect. The Complainant, therefore, cannot be allowed the amount beyond the assessment of the Surveyor. We see no reason not to agree with the assessment made by the Surveyor.”

8. In view of the foregoing discussion and the ratio of law laid down above, it is safe to hold that OP-1/ insurer is liable to pay to the complainant the amount assessed by the surveyor i.e. ₹3,00,649.93 (rounded off to ₹3,00,650/-) alongwith interest and compensation etc. for the harassment suffered.

4. In the light of the aforesaid discussion, the present consumer complaint succeeds, the same is hereby partly allowed and OP-1 is directed as under :-

1. to pay ₹3,00,650/- to the complainant alongwith interest @ 9% per annum from the date of repudiation of the claim i.e. 31.5.2023 onwards.
2. to pay ₹15,000/- to the complainant as compensation for causing mental agony and harassment;
3. to pay ₹10,000/- to the complainant as costs of litigation.

5. This order be complied with by OP-1 within forty five days from the date of receipt of its certified copy, failing which, the payable amounts, mentioned at Sr.No.(i) & (ii) above, shall carry interest @ 12% per annum from the date of this order, till realization, apart from compliance of direction at Sr.No.(iii) above.
6. Since no deficiency in service or unfair trade practice has been proved against OP-2, the consumer complaint against it stands dismissed with no order as to costs.
7. Pending miscellaneous application(s), if any, also stands disposed of accordingly.
8. Certified copies of this order be sent to the parties free of charge. The file be consigned.

07/03/2024 hg	Sd/- [Pawanjit Singh] President
	Sd/- [Suresh Kumar Sardana] Member