Haryana

Yamunanagar

CC/975/2010

Mohammad Irshad S/o Babu Hayat - Complainant(s)

Versus

ICICI Lombard Motor Insurance - Opp.Party(s)

Pankaj Verma

22 Sep 2015

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, YAMUNA NAGAR

 

                                                                                             Complaint No. 975 of 2010.

                                                                                             Date of institution: 13.10.2010.

                                                                                             Date of decision: 22.9.2015

Mohammad Irshad son of Shri Babu Hayat, resident of VPO Buria, Tehsil Jagadhri, Distt. Yamuna Nagar.

                                                                                                                                            …Complainant.

                                                                              Vs

ICICI Lombard Motor Insurance having its Branch Office at Model Town, Near J.K Residency, Gobindpuri Road, Yamuna Nagar.                                                                                                                                            

                                                                                                                                            …Opposite party.  

 

Before:             SH. ASHOK KUMAR GARG…………….. PRESIDENT.

                        SH. S.C.SHARMA………………………….MEMBER.

 

Present:  Sh. Pankaj Verma Advocate, counsel for complainant.  

                Sh. Rajiv Gupta, Advocate, counsel for OP.

             

ORDER

 

1.                     Complainant Mohd. Irshad has filed the present complaint under section 12 of the Consumer Protection Act. 1986, praying therein that respondent (hereinafter referred as OP) be directed to make the payment of Rs. 74580/- on account of repair of tractor bearing No. HR-02-R-6430, which was damaged in an accident and also to pay a sum of Rs. 50,000/- as compensation on account of suffering, mental agony as well as physical harassment and also to pay litigation expenses.

2.                     Brief facts of the complaint, as alleged by the complainant, are that he is the registered owner of Tractor bearing registration No. HR-02R-6430, which was insured with the OP vide insurance policy bearing No. 3008/58424550/B00 valid from 4.1.2010 to 3.1.2011 for a sum assured of Rs. 3,00,301/- and a premium of Rs. 5128/- was paid in this regard to the OP Company. On 3.5.2010, relative of complainant namely Mohd. Rijwan son of Shri Ayub Khan was coming from the field of complainant alongwith tractor and when he reached near the turn of field, there was a Khadda in left hand side and due to khadda the tractor of complainant was turned turtle and due to this many parts of tractor had been damaged. Intimation in this regard was given to OP and the official of the OP came at the spot and took some photographs of tractor and they said to complainant to get it repaired from the repairer. On the assurance of OP, the complainant repaired his tractor from the repairer of tractor and after getting repair of the tractor, the whole of bill was handed over to OP, which comes to Rs. 74580/-. Thereafter, the complainant requested the OP to pay the amount of bill as assessed by them but they put off the matter with one pretext or the other and ultimately the complainant deposited the whole billed amount of Rs. 74580/- to the repairer and the insurance company did not pay a single penny as per their assurance. The complainant requested many times to OP to pay the repairer amount but they always postponed the matter with one pretext or the other and lastly refused to listen the genuine request of the complainant. As such, there is a great deficiency in service on the part of OP and the complainant has been forced to file this complaint. Lastly, the complainant has prayed to issue direction to the OP to pay the claim amount with interest at the rate of 24% per annum from the date of accident till its actual realization and also to pay compensation as well as litigation expenses.

3.                     Upon notice, OP appeared and filed its written statement by taking some preliminary objections such as complaint not maintainable, has not come to this Forum with clean hands, no negligence or deficiency in service on the part of OP and on merit it has been mentioned that an intimation was received by the OP that the tractor bearing registration No. HR-02R-6430 has met with an accident and OP Company deputed Sh. Manoj Kukreja, Surveyor & Loss Assessor who inspected the vehicle in question and found that there is misrepresentation of facts by the insured and categorically pointed out that there is no nexus between the alleged accident and resultant loss. The surveyor found that the damages observed were not accidental in nature and not in accordance with the history of the accident. Meaning thereby the loss is not justified with the said cause of loss. However, said surveyor in order to quantify the loss assessed the loss to the tune of Rs. 30398/- vide his report dated 21.5.2010. On receipt of the said report the OP company further processed the claim of complainant and found that there is misrepresentation of facts by the insured which amounts to violation of terms and conditions of the insurance policy and he is trying to take compensation by stating wrong facts and there is no nexus between the alleged accident and resultant loss, therefore the OP company vide its letter dated 5.8.2010 repudiated the claim of complainant. As such, there is no deficiency in service on the part of OPs. The complainant is not entitled to any compensation from the OP Company and the complaint is without any merit and the same is liable to be dismissed

4.                     To prove the case, counsel for complainant tendered into evidence affidavit of complainant as Annexure CX and documents such as Annexure C-1 to C-3 Photo copies of repair bills, Annexure C-4 Photo copy of registration certificate, Annexure C-5 Photo copy of insurance cover note, Annexure C-6 Photo copy of claim form and closed the evidence on behalf of complainant.

5.                     On the other hand, counsel for the OP Company tendered into evidence affidavit of Sh. Gurpreet Bhuller, ICICI Lombard General Insurance Co. Ambala, as Annexure RX and affidavit of Manoj Kukreja, Surveyor & Loss Assessor as Annexure RY and documents such as Annexure R-1 Photo copy of Insurance policy alongwith terms and conditions, Annexure R-2 Photo copy of surveyor & Loss Assessor report, Annexure R-3 Photo copy of repudiation letter dated 5.8.2010 and closed the evidence on behalf of OP.

6.                     We have heard the learned counsels of both the parties and have gone through the pleadings as well as documents placed on the file carefully and minutely. The counsel for the complainant reiterated the averments mentioned in the complaint and prayed for its acceptance whereas the counsel for OP reiterated the averments made in the reply and prayed for dismissal of complaint.

7.                      It is admitted fact that as per copy of RC (Annexure C-4), the complainant is a registered owner of tractor bearing registration No. HR-02-R-6430, which was insured with the OP vide comprehensive policy bearing No. 3008/58424660/00/B00 valid from 4.1.2010 to 3.1.2011 for a sum assured of Rs. 3,00,301/- as per copy of Insurance Policy (Annexure R-1/C-5). 

8.                     Learned counsel for the complainant argued that the complainant has spent a sum of Rs. 74580 on the repair of tractor in question but the OP company has passed only a sum of Rs. 30,398/- is not tenable to our mind as it is a settled proposition of law that credence should be given to the surveyor report and the complainant has failed to point out any discrepancy or ambiguity in the surveyor report. The complainant failed to file another report of any expert surveyor to prove the amount of Rs. 74580/- whereas Op has filed surveyor report Annexure R-2 from which it is clear that there was a loss to the tune of Rs. 30,398/-.  

9.                     The only plea of OP Company is that the complainant has misrepresented the facts in respect of alleged accident and damages observed in the tractor were not accidental in nature and quite not in accordance with the history of said accident. Learned counsel for the OP further alleged that the investigator categorically pointed out that there is no nexus between the alleged accident and resultant loss. He has specifically mentioned “that the damages observed were not accidental in nature and quite not in accordance with the history of said accident.” Even the complainant failed to clarify his position which was sought vide letter dated 5.8.2010 (Annexure R-3) by the OP.

10.                   On the other hand, learned counsel for the complainant tried his best to mould the fact that due to Khadda, the tractor of the complainant turned turtle and many parts of the tractor damaged but the contention of the complainant counsel is not tenable because normally, documents do not speak lie but man may do so as complainant has miserably failed to prove by way of documentary evidence i.e. DDR or FIR or even any MLR in respect of injuries (if any) sustained in accident on 3.5.2010. Even, the complainant neither filed affidavit of his relative Mohd. Rizwan who was driving the tractor in question at the time of alleged accident nor has filed any photographs of the alleged accident. The complainant has also failed to file any evidence by way of affidavit with whose help he brought the tractor out of alleged Khadda and then to workshop for repair. From the perusal of the insurance policy Ex. C-5 it has been noticed that the complainant become insured of the tractor in question w.e.f. 29.4.2010 only and in this regard endorsement was made in policy Ex. C-5. Prior to it, the  policy in question stood in the name of one Pankaj Kumar who was previous registered owner of the tractor in question. It means, the complainant might have overhauled his tractor just after 2-3 days of its purchase. Moreover, from the perusal of Ex. C-1 to C-3 i.e. bill of repairs and surveyor report Ex. C-2 it is also evident that the damages have been shown only in gear box of the tractor in question. Hence, the plea of the OP and opinion of the surveyor seems reasonable. The OP has also filed the affidavit of the surveyor to prove their contention. Onus to prove the accidental damages is upon the complainant but he has totally failed to do so.

11.                   After going through the above noted circumstances, we are of the considered view that the complainant has miserably failed to prove his case. Thus, there is no deficiency in service on the part of OP and the claim of the complainant has rightly been repudiated by the OP.

12.                   Resultantly, we find no merit in the present complaint and the same is hereby dismissed with no order as to costs. Copies of this order be sent to the parties concerned free of costs as per rules. File be consigned to the record room after due compliance.

Announced in open court. 22.9.2015.

                       

                                                                                    (ASHOK KUMAR GARG )

                                                                                    PRESIDENT,

 

                                                                                     

                                                                                    (S.C.SHARMA )

                                                                                     MEMBER.