BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, CHARKHI DADRI.
Complaint No.: 69 of 2020.
Date of Institution: 11.08.2020.
Date of Order: 29.01.2024.
Jai Bhagwan son of Shri Pohkar, resident of village Achhej, Tehsil Beri, District Jhajjar, Haryana.
…..Complainant.
Versus
- IFFCO TOKIO General Insurance Company Limited, Regd. Office at IFFCO Sadan, C-1, District Centre, Saket, new Delhi-110017 through its Managing Director.
- Branch Manager, IFFCO TOKIO General Insurance Company Limited, IFFCO Bhawan, Plot No. 2, Sector-28A, 3rd Floor, Madhya Marg, Chandigarh-160002.
- Branch Manager, IFFCO TOKIO General Insurance Company Limited, SCO 19-20, Part-1, Sector-12, Karnal, Haryana.
…...Opposite Parties.
COMPLAINT UNDER THE
CONSUMER PROTECTION ACT.
Before: - Hon’ble Mr. Manjit Singh Naryal, President.
Hon’ble Shri Dharam Pal Rauhilla, Member.
Present: Shri Deepak Sheoran, Advocate for the complainant.
Shri Rajbir Singh, Advocate for the OPs.
ORDER:-
Brief facts of the case are that the complainant is owner in possession of Mahindra & Mahindra Truck Tripper Goods Carrier bearing No. HR63D-9111, which insured with the OPs w.e.f. 19.2.2019 to 18.2.2020. It is averred that on 1.6.2019, the vehicle in question was met with an accident near Lakshay Hotel, Samaspur Mor, District Charkhi Dadri, which was completely burnt/damaged. It is further averred that an FIR No.0197 dated 1.6.2019 under Sections 283, 304A, 427 IPC was lodged with PS Dadri Sadar. It is further averred that the intimation was given to the OPs regarding accident immediately and also submitted the claim for Rs.29,45,000/- being IDV alongwith all the documents, but the OPs have repudiated the claim of the complainant vide letter dated 4.12.2019 with false reasons of disclosing wrong driver name at the time of filing the claim and on forensic examination of the burnt vehicle, it was found that only front cabin area was burnt in the accident and fire damages to the rear portion were deliberately caused to aggravate the extent of loss. It is further averred that in fact at the time of accident Ashok Kumar was driving the vehicle in question and Vikas (since deceased) was the helper. It is further averred that during the investigation, the supplementary statement of Sunil son of Sh. Jai Bhagwan was recorded by the Police, in which he clearly stated that at the time of accident Ashok Kumar was driving the vehicle in question. It is further averred that a legal notice dated 15.1.2020 was also served upon the OPs, but they did not reply the same. It is further averred that nonpayment of claim amount by the OPs amounts to deficiency in service on their part. Hence, this complaint.
2. On appearance, the OPs filed written statement alleging therein that the vehicle was a commercial vehicle was being used for commercial activities, hence, complainant is not consumer. It is further averred that complainant had got insured his brand new Goods Carrying Vehicle for period w.e.f. 19.2.2019 to 18.2.2020. It is further averred that the OPs have received a telephonic intimation on 1.6.2019 from Mr. Sunil Kumar (insured’s son) about the accident. It is further averred that on receipt of intimation Mr. Aman Behl, an independent surveyor was appointed for spot survey of vehicle and surveyor had inspected the vehicle on the same day and took photographs of vehicle and submitted his report dated 7.6.2019. It is further averred that the matter was further entrusted to M/s Uppal & Associates for final survey and assessment of loss, who after noticing damages on vehicle from spot photographs, further appointed M/s OCILABS Origin for forensic investigation of the burnt vehicle and the OPs company also appointed M/s Vikas Kumar & Associates to investigate into the loss. It is further averred that at the time of accident vehicle was being driven by Mr. Vikas, who did not possess a valid and effective driving license and in order to avail benefit of claim falsely implanted one Mr. Ashok Kumar as driver of the vehicle. It is further averred that in claim intimation call, FIR No. 0197/2019 dated 1.6.2019 and in entry No.0740 dated 1.6.2019 at Sr. No. FS/2019/46 in the event register of the Fire Station office at Charkhi Dadri, a very clear fact emerges that accidental vehicle was being driven by Mr. Vikas son of Ramesh, who was unfortunately died in the accident due to being burnt to death. It is further averred that complainant fraudulently altered the facts as to who was driving the accidental vehicle at the time of accident. It is further averred that
As per general exception 3 (b) of the terms and condition of the policy the company shall not be liable if the vehicle is being driven by a person who does not possession valid driving license. It is further averred that Mr. Aman Behl, Surveyor on 1.6.2019 noted that only front Cabin area was burnt while the rear tyres & rear portion of the truck remained unburnt, while at the time of final survey dated 12.6.2019 fire damages were found on the rear tyres and rear portion of the load body as well. It is further averred that the forensic examination reveals that there were multiple origins of the fire and these damages were deliberately caused by using incendiary materials to aggravate the extent of loss. It is further alleged that OPs legally and justifiably repudiated the claim of the complainant vide letter dated 14.8.2020. Hence, in view of the above facts, there is no deficiency in service on the part of the OPs and as such, the complaint of the complainant is liable to be dismissed with costs.
3. Ld. Counsel for the complainant to prove his case placed on record the duly sworn affidavit of the complainant as Ex. CW1/A, affidavit of driver Ashok Kumar as Ex. CW1/B, Affidavit of EHC Rajpal Singh, as Ex. CW3/A, Affidavit of Sunil as Ex. CW4/A, affidavit of Sombir as Ex. CW5/A, affidavit of Sonu as Ex. CW6/A, affidavit of Sudhir as Ex. CW7/A, affidavit of Mahipal as Ex. CW8/A and the documents Ex. CW1/a to CW1/8, Ex.C3/1, Ex. C9 to C13 and closed the evidence.
4. Ld. Counsel for the OPs in support of its case has placed on record the duly sworn affidavit as Ex. RW1/A, RW2/A, RW3/A, RW4/A and documents OP1 to OP12 and closed the evidence.
5. We have heard ld. counsel for both the parties at length and gone through the case file very carefully.
6. Ld. Counsel for the complainant has reiterated the contents of the complaint. He contended that OPs have wrongly repudiated the claim of the complainant on the false grounds. He further contended that the complainant has not violated any condition of the policy. He further contended that there is deficiency in service on the part of the OPs and prayed for acceptance of complaint with costs.
7. On the other hand, ld. counsel for OPs reiterated the contents of the written statement. He contended that while examining the claim documents and investigation report, OPs have observed that the complainant has violated the policy conditions and thus repudiated the claim vide letter dated 4.12.2019. He further contended that there is no deficiency in service on the part of OPs and the complaint of the complainant is liable to be dismissed.
8. After hearing the learned counsel for both the parties and having gone through the material/facts and documents available on the records, we are of the considered view that complaint in hand deserves acceptance, because there is deficiency in service on the part of OPs. It is admitted by the OPs in their written statement that the vehicle in question was insured with the OPs. It is also admitted by the OPs in their written statement that the telephonic intimation was given to them on 1.6.2019 regarding the accident of the vehicle in question. It is also admitted by the OPs in their written statement that the insured vehicle damaged in the accident. The plea taken by the OPs that the vehicle was a commercial vehicle is not tenable, because the insured vehicle is meant for commercial purpose and OPs have charged the insurance premium for commercial purpose while issuing insurance policy. Moreover, the OPs have issued the insurance of the vehicle and not of driver or owner. The second plea taken by the OPs is that the secondary fire was caused in the burnt vehicle after the primary fire with intent to cause the maximum damages to already burnt vehicle is also not tenable, because they have failed to produce any evidence of such secondary fire after primary fire, whereas the complainant has placed on record duly sworn affidavit of EHC Rajpal Singh to prove that the damages to the vehicle in question were caused due to accident on 1.6.2019. Moreover, the Engine & Cabin of the vehicle in question is the heart of the vehicle and it is admitted by the OPs that entire cabin was burnt in the accident. So we observed that the vehicle was totally damaged and so it is a fit case for total loss and the OPs are deficient in not paying the insured amount to the complainant. In our view, the complainant is entitled to get the IDV of the vehicle in question after deducting 15% depreciation including salvage value. The third plea taken by the OPs is that complainant has made false submissions in claim form that the accidental vehicle was being driven by Mr. Ashok Kumar at the time of accident and submitted only Ashok Kumar’s driving license and not submitted that the driving license of Mr. Vikas, who actually was driving the vehicle at the time of accident, is also not tenable, because the complainant has placed as many as 8 duly sworn affidavits including himself as well as Sunil son of Shri Jai Bhagwan to prove that at the time of accident the vehicle in question was being driven by Mr. Ashok Kumar. In our view, it does not matter that who is driving the vehicle at the time of accident when the vehicle in question is insured with the OPs for all purposes. It is pertinent to mention here that the surveyor report or any other report submitted by the agency hired by the OPs cannot be totally believed, because they have been paid by the OPs and they are presumed to be loyal to the OPs. Ld. counsel for the OPs has placed his reliance upon Oriental Insurance Company Limited Vs. Muni Mahesh Patel (2006 (SC), Dr. Jitender Bansal Vs Usha Rani & others (2013), DoonVally Rice Ltd Vs State Bank of India and Amar Singh Vs UOI & Ors (2011) 7 SCC 69, but the same are not applicable to the facts and circumstances of the case in hand. Ld. counsel for the complainant has placed his reliance upon Mitesh Lavji Thacker Vs Iffco-Tokio General Insurance Co. Ltd. 151 of 2020, decided on 30.1.2023, wherein it has been held by the Hon’ble National Consumer Commission that “the vehicle in question was not being driven by Hathubha Kalaji Sodha at the relevant time, but by Anwar Manjothi, who did possess a valid Driving License, this Commission is of the view that the approach of the State Commission in discrediting the correctional Affidavit of the complainant-Smt. Kanuba Mahendrasinh Sodha in the FIR as a ‘possible after-thought’ was not called for, and setting aside of the District Forum, which had gone in favour of the complainant, was also justified”. For the aforesaid reasons, the Revision Petition is allowed after setting aside the Impugned order passed by the State Commission and restoring the order of the District Forum. The facts of the case law produce by ld. counsel for the complainant is totally applicable to the facts of the present case. Thus, there is clear cut deficiency in service and unfair trade practice on the part of the OPs, as they have failed in Redressal of grievance of the complainant i.e. making payment of claim of the insured vehicle.
10. Moreover, the OPs have deliberately does not settle the requests of the complainants in time and harassed him without any reason. So, in our view, complainant is also entitled for compensation on account of mental, physical harassment and deficiency in service on the part of the OPs. Therefore, in view of facts and circumstances mentioned above, complaint of the complainant is allowed. The OPs are directed:-
i) To pay the insured amount after deducting 15% depreciation including salvage value (Rs.25,03,250/- twenty five lacs three thousand two hundred fifty only[i.e. Rs. 29,45,000/- less 15% i.e. Rs. 4,41,750/-=Rs.25,03,250/-]) together with interest @ 9% per annum from the date of repudiation of claim i.e. 4.12.2019.
ii) To pay Rs.35,000/- (thirty five thousand only) as compensation on account of mental agony, physical harassment & hardship, due to deficiency in service & mal trade practice on the part of OPs and punitive damages.
iii) To pay Rs.8000/- (Eight thousand only) as the litigation charges.
The compliance of the order shall be made within 45 days from the date of the order. In case of default, the OPs shall be liable to pay interest @ 12% p.a. on total amount as directed above vide clause No. i from the date of default i.e. after 45 days from the date of this order i.e. 29.1.2024. Certified copies of the order be sent to parties free of costs. File be consigned to the record room, after due compliance.
Announced in open Commission.
Dated: - 29.01.2024.
(Dharam Pal Rauhilla) (Manjit Singh Naryal)
Member. President,
District Consumer Disputes Redressal Commission,
Charkhi Dadri.
