Haryana

Ambala

CC/406/2017

Jagat Singh - Complainant(s)

Versus

ICICI Lombard Motor Inss Co - Opp.Party(s)

Rohit Garg

11 Dec 2018

ORDER

 

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM AMBALA

 

 

                                                                      Complaint case no.        : 406 of 2017

                                                          Date of Institution         : 13.11.2017

                                                          Date of decision    : 11.12.2018

 

 

Jagat Singh aged 76 years  s/o Sh. Puran Singh r/o VPO Shahapur, Tehsil Ambala Cantt, District Ambala..

    ……. Complainant.

 

 

1.  ICICI Lombard General Insurance Co. Ltd. ICICI Lombard House, 414, Veer Savarkar MArg. Near Siddhi Vinayak Temple, Prabhadevi, Mumbai.

2.  M/s Shankar Automobiles Authorised Dealer of Hero Automobiles, Village Mohra, Durana Road, Ambala Cantt.

 

 ….…. Opposite Parties.

 

Before:        Sh. D.N.Arora, President.

                   Dr. Sushma Garg, Member.

                            

 

Present:        Sh. Rohit Garg,   counsel for complainant.

 Sh. Rajesh Kumar, counsel for OP No.1.

 Ms. Priya, counsel for OP No.2.

 

 

ORDER:

                   In nutshell, brief facts of the present complaint is that the complainant had purchased a Hero Splendor Plus Motor Cycle bearing registration no.HR01AP-8118 from Shankar Automobiles from OP No.2 at Rs. 47,055/- in case on dated 9.10.2016 and complainant also purchased/get a insurance policy from company of OP No.1 on 9.10.2016 for a term of 9.10.2016 to 8.10.2018 midnight at the rate of Rs. 2,898/- as a full insurance policy of the vehicle.  On 19.06.2017 the above mentioned vehicle/motor cycle of complainant was burnt in a accident took place in area of Mahesh Nagar from a heap of garbage near the main road where the motor cycle was parked and suddenly fire was blasted from the heap garbage and grift the above mentioned vehicle of complainant burnt in that accident. The complainant lodged a complaint on 19.06.2017 to the Illaqa Police and the police registered a DDR No.21 on 20.07.2017. The complainant approached to the OP No.2 and they suggest him to get a claim from OP No.1 because the vehicle was insured by OP No.1. The complainant  submit a claim file to insurance company OP No.1 through OP No.2 with fulfilling all the required documents but OP No.1 miserably failed to pay damages to complainant and OP no.2 rejected the claim file of complainant on illegal and  baseless facts  and in their notice which is received by complainant from insurance company for rejection of his claim and in this notice insurance company intimate to complainant that his  representation of claim is based on mis-presentation of  facts and tried to hid the material facts. The complainant requested many times to the OP no.2 to do something about his claim but the OP NO.2 put the matter on one pretext to another.  Because of the attitude of OPs, complainant has to harass and suffered mental, physical and monetary loss. Hence, the present complaint.

2.               Upon notice, OP No.1 appeared through counsel and tendered written statement raising preliminary objections qua complaint is not maintainable, cause of action, bases upon false and frivolous grounds, estoppal not come with clean hand and suppressed the material facts. On merits, OP No. 1 stated that on receiving the information from the complainant, the OPNo.1 has appointed Sh. Jitender Dhiman for investigation of the matters and in the investigation, it was found that the son of the complainant was driving the motor cycle, but later on, they have changed the driver and in this manner the complainant alongwith  his son and grandson have played a fraud as well as mis-presented the fact and investigator have submitted the report, wherein  he had also taken the statement of complainant in which he had candidly deposed  that his son Jasbir Singh was not having driving license and was driving the motor cycle, in order to cover this lacuna/violation, they have submitted license of his grandson namely Amandeep Singh, as such the complainant have mispresented the facts and played a fraud. Eventhough as per the final survey report a detailed assessment was also carried out by Sh. Vijay Kumar who had submitted this assessment and the total loss of the vehicle was assessed to Rs. 36,233/-. The OP No.1 has also issued a letter dated 23.9.17 stating all the facts that there are mis-representative facts on the part of the complainant, so the complainant is not entitled for any amount.

Upon notice, OP No.2 appeared through counsel and filed written statement submitting that the documents were submitted to the OP No.2 for the purpose of taking the benefit of insurance claim to be passed by the OP No.1 and as such the OP No.2 had moved all documents on his behalf to the OP No.1. It is further submitted except this the OP No.2 had no interest or job to be done in favour of the complainant. The OP No.2 has nothing to do with the said claim. It is only OP No.1 who had rejected the insurance claim of the complainant.  So, there is no deficiency on the part of OPs and prayed for dismissal of the present complaint.

3                 To prove his version complainant tendered his affidavit as Annexure CW-1/A along with documents as annexure C-1 and C-6 and close his evidence. On the other hand, Counsel for the OP No.1 tendered affidavit as Annexure RW-1/A alongwith documents as Annexure R-1 to R-10 and close his evidence. Counsel for OP No. 2 tendered documents as Annexure R-11 to R-17 and closed their evidence.

4.                We have heard both the counsel of the parties and carefully gone through the case file.

5.                It is not disputed complainant has purchased the hero splendor motor cycle from OP No.2 for Rs.47055/- as per Annexure C5. It is not disputed that complainant has not taken the policy from OP No.1 paying the premium Rs.2,898/- and it was insured for the period 09.10.2017 to 08.10.2018 as per Annexure C3. The complainant come to this plea that on 19.06.2016 the motor cycle in question was  burnt in an incident from a heap of garbage near the main road area of Mahesh Nagar where a motor cycle was parked and vehicle in question got burnt in that incident.  He reported the matter to the company and to report to the police. The police had registered DDR on 20.07.2017 as per Annexure C3. The facts mentioned in the application were found correct by the police and mentioned the same in DDR. They verified that the vehicle in question got burnt due to fire opened in the heap of garbage. Matter has been investigated by the surveyor  as per Annexure R1. He never found that the vehicle in question has not been got burnt and damaged in the said incident but he gave observation that claim not genuine and driver change in claim and actual driver Jasbir Singh does not have driving licence and mentioned that as per version of the claim form vehicle was parked near fire in the whole negligency of the insured/driver. The facts are given however, final decision taken by the insurance company. Final survey report submitted by the surveyor Annexure R8 and assessed the loss as Rs.36233/- after considering the estimate given by the complainant and he assessed the above said loss as per IRDA instructions.

6.                          Now, question arises before us whether OP has justified to repudiate the claim on the ground that actual driver was Jasbir Singh was driving the motor cycle at the time of incident and does not had valid driving license and insured had improved the  version by producing the license of Amandeep Singh. It is established on the case file that vehicle was not in running condition at the time of the incident rather the same was found parked near the heap of garbage and this version is clearly mentioned in the DDR as well as in the application. The investigator and surveyor have also not denied this version that the vehicle in question was not parked near the heap of garbage. Even otherwise, the complainant in his claim form has also mentioned that the vehicle was parked at the time of incident. The repudiation made by the OPs on the ground that the driver of the vehicle was not having valid license or the license of the other Amandeep has been produced before the investigation does not effect the claim of the complainant and the same cannot be denied on this ground because the vehicle did not got fired while being driven by Jasbir Singh more so if the vehicle met with accident then validity of the license of the driver can be considered. Hence, the repudiation letter Annexure C-1/R-9 is liable to be quashed. 

Now, we are coming on the point of the quantum of compensation.  It is a settled principle of law that Surveyor is the best person to assess the loss and his report cannot be brushed aside unless there is cogent and convincing evidence. On this point reliance can be taken from case law laid-down in 2013(3)CLT 126 titled Kaur Singh Vs. National Insurance Co. Ltd. whereby Hon’ble National Commission has held that: “Survey report is an important document and cannot be brushed aside”  and Hon’ble National Commission in 1(2010)CPJ 272 (NC) titled New India Assurance Company Ltd. Vs. Subash Kumar, has held that: “Surveyor’s report has considerable evidential value, cannot be ignored, unless discredited by producing contrary evidence- Settlement of claim on repair basis directed as per surveyor’s report”.

7.                          Keeping in view of the above facts and circumstances, we are of the view that the insurance company has wrongly withheld the genuine claim of the complainant further even their surveyor has assessed the loss to the tune of Rs.36,233/- Hence, the present complaint is partly allowed with costs which is assessed at Rs.5,000/- on account of mental agony, harassment and litigation expenses etc. The OPs are further directed to comply with the following orders:

1.To pay the amount of Rs.36233/- (loss assessed by the surveyor) alongwith interest @ 9 % per annum from the date of filing of complaint till its realization.

 

2. Also to pay cost of Rs.5,000/- as assessed above.

 

3.The complainant is bound to handover the damaged vehicle alongwith original documents against valid receipt and complainant is also bound to submit to indemnity bond and surety bond to the OP after payment of awarded amount with costs.

 

Compliance of this order be made within 30 days from the date of receiving of the copy of this order. Copy of order be supplied to the parties under the rule. File be consigned to the record-room after due compliance.

Announced on: 11.12.2018                              

 

 

                                                                             (D.N. ARORA)                                                                                              PRESIDENT

 

(DR.SUSHMA GARG) MEMBER