Haryana

Karnal

CC/53/2015

Sushil Kumar S/o Mahinder - Complainant(s)

Versus

Iffco- Tokio General Insurance Company - Opp.Party(s)

Mahipal Singh

03 Jan 2017

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM KARNAL.

                                                               Complaint No.53 of 2015

                                                             Date of instt.:26.03.2015

                                                              Date of decision:03.01.2017

 

Sushil Kumar son of Shri Mahinder, resident of village Kalvehri, Tehsil and District Karnal.

 

                                                                   ……..Complainant.

                                      Vs.

IFFCO TOKIO General Insurance Company Limited, Sector-12, Urban Estate, Karnal, through its Manager/Authorized Signatory.

                                                                        ………… Opposite Party.

 

                     Complaint u/s 12  of the Consumer Protection Act.

 

Before                   Sh.K.C.Sharma……….President.

                   Sh.Anil Sharma…….Member.

 

Present:-      Sh. Mahipal Advocate for the complainant.

                    Sh. A.K.Vohra Advocate for the Opposite party.

                  

 ORDER:

 

                        This complaint has been filed by the complainant u/s 12 of the Consumer protection Act 1986, on the averments that he got insured his car bearing no.HR-70B-4350 with opposite party, vide policy no.88539411, valid from 29.07.2014, to 28.07.2015, for insured value of Rs.1,50,000/-. On 21.10.2014, while he alongwith his cousin Narender Kumar was going from village Mataak Majri to village Kalvehri, fire broke out in the said car at some distance ahead of triangle of Chandsmand on Gheer Turn. He suffered some burn injuries on his face and arms, when he opened the bonnet of the car. The car was badly damaged in the said fire. Police was informed regarding the accident and the General Diary Report no.17(A) dated 25.10.2014 was recorded by police of Police Station Kunjpura. The fire was extinguished by the fire brigade and he paid an amount of Rs.2900/- to Municipal Corporation Karnal on account of charges of the fire brigade. He lodged claim with the opposite party, but his claim was repudiated, vide letter dated 8.1.2015 on the ground that “ the insured vehicle was fitted with CNG Kit at the time of loss and there is no endorsement of the same in Registration Certificate and Insurance Policy. Infact, he never got fitted CNG kit in the said car. The car was inspected by the surveyor of the opposite party before insurance, but the opposite party in order to avoid payment of the claim falsely alleged that CNG kit was fitted in the insured car. Such acts and conduct on the part of the opposite party amounted to deficiency in service, which caused him mental agony and harassment apart from financial loss.

2.                Notice of the complaint was given to opposite party, who put into appearance and filed written statement controverting the claim of the complainant. Objections have been raised that the complaint is not maintainable in the present form; that the complainant has no locus standi and cause of action to file the complaint; that the complainant has not approached this forum with clean hands and that there was no deficiency in service on the part of the opposite party.

                   On merits, it has been submitted that the complainant informed the opposite party regarding burning of the vehicle on 30.10.2014 and immediately, after receiving the information, Deepankar Soni was deputed as surveyor and loss assessor, who conducted detailed in investigation and submitted his report. It was found that complainant knowingly and intentionally concealed the fact that car in question was fitted with CNG kit at the time of loss, but there was no endorsement of the said fuel in the registration certificate and insurance policy as per provisions of section 52 of Motor Vehicle Act 1988. Therefore, the claim of the complainant was rightly repudiated, vide letter dated 8.1.2015. The other allegations made in the complaint have been denied.

3.                In evidence of the complainant, his affidavit Ex.C1 and documents Ex.C2 to Ex.C8 have been tendered.

4.                On the other hand, in evidence of the opposite party, affidavit of Raj Kumar Bora, Vice President (Claims) Ex.O1, affidavit of Deepankar Soni Surveyor and Loss Assessor Ex.O2 and documents Ex.O3 to Ex.O6 have been tendered.

5.                We have appraised the evidence on record, the material circumstances of the case and the arguments advanced by the learned counsel for the parties.

6.                The car of the complainant bearing registration no.HR-70B-4350 was insured with opposite party for the period of 29.07.2014 to 28.07.2015 and the same got fire on 21.10.2014 during subsistence of the policy and in the said accident the same badly damaged. The fire brigade was summoned to the spot and fire was extinguished.  The complainant paid an amount of Rs.2900/- to Municipal Corporation Karnal as fire brigade charges vide receipt, the copy of which is Ex.C8. Complainant also reported the incident to the police and General Diary entry no.17(A) dated 25.10.2014 was entered in Police Station Kunjpura, the copy of which is Ex.C6. The complainant lodged the claim to the opposite party, but the same was repudiated vide letter dated 8.1.2015, the copy of which is Ex.O3, on the ground that on perusal of the report of surveyor and other document on record it was observed that the insured vehicle was fitted with CNG kit at the time of loss and there was no endorsement of the same in the Registration Certificate and insurance policy.

7.                Learned counsel for the complainant laid emphasis on the contention that the car was duly inspected by surveyor of the opposite party before insurance and at that time no CNG or LPG kit was found fitted in the said car, therefore, in the insurance policy there was no mention of CNG kit/LPG kit. Infact, no CNG or LPG kit was ever got fitted by the complainant in his car, but in order to avoid liability the opposite party falsely alleged that CNG kit was found fitted in the car at the time of loss.

8.                As per the case of the complainant no LPG or CNG kit was fitted in the car, but no evidence except the bald affidavit of complainant in this regard has been produced. The self-serving affidavit of the complainant, cannot be taken into the gospel truth and the same is not sufficient to substantiate his plea

9.                It is admitted fact that Deepankar Soni was appointed by the opposite party as surveyor and loss assessor after getting information from the complainant regarding burning of the car. Deepankar Soni submitted his report, the copy of which is Ex.O4. He also filed his affidavit Ex.O2 in support of his report. He assessed the loss on repair basis as Rs.3,44,690/- and on total loss basis as Rs.1,29,000/-. However, in his comments he submitted as under:-

          “While going through the preinspection report of M/s Secure Auto Technical Services Private Ltd. Ref. no.320162 dated 29.7.2014, it was found that the LPG kit was fitted in the vehicle at the time of inspection which is very much clearly visible in the photographs, but the same is neither endorsed in the registration certificate nor it was mentioned/added in the insurance coverage. The vehicle has been completely burnt and the same was inspected under burnt condition at the repairer shop. The admissibility of the liability may please be decided considering these facts.”

 

10.              The main plank of the opposite party is the report of surveyor that LPG kit was found fitted in the vehicle and that was clearly visible in the photographs.  However, his report makes it emphatically clear that LPG kit was found fitted in the vehicle even at the time of preinspection as per report of M/s Secure Auto Technical Services Pvt. Ltd. dated 29.7.2014. The car was insured by opposite party on 29.7.2014 for the period of 29.7.2014 to 28.7.2015. The fact that LGP kit was fitted in the car before the insurance was well within the knowledge of the opposite party at the time of insurance because preinspection report was already submitted despite having knowledge about such fact, the opposite party did not charge additional premium from the complainant for LPG fuel kit and the insurance policy was issued without mentioning such fact therein.

11.              Faced with such situation, learned counsel for opposite party put a great thrust upon the contention that the complainant had violated the provisions of section 52 of the Motor Vehicles Act as he had not got  endorsement made in the registration certificate regarding fitting of LPG/CNG kit in the car, therefore, the insurance company is not liable to pay any claim to the complainant and his claim was rightly repudiated.

12.              From the aforediscussed evidence on record, it is established that LPG kit was found fitted at the time of preinspection of the car for the purpose of insurance. Though no endorsement was got made by the complainant in the registration certificate regarding fitting of the LPG fuel kit, yet the opposite party cannot take advantage of the same. The complainant may be liable for the consequences of violation of provisions of section 52 of the Motor Vehicles Act, but it does not lie in the mouth of the opposite party to repudiate the claim of the complainant on this ground. The opposite party knowingly and intentionally insured the car of the complainant without mentioning the fact that LPG kit was fitted in the same before insurance, therefore, it is estopped from denying the claim of the complainant on the ground that LPG kit was fitted in the vehicle without getting endorsement made to that effect in the registration and the insurance policy. It is settled proposition of law that a party has to stand at his own legs and cannot take advantage of the weaknesses of the case of the other party. Consequently, the opposite party cannot deny the claim to the complainant merely for the reason that LPG kit was fitted in his car. In view of such facts and circumstances, we have no hesitation in concluding that the repudiation of the claim of the complainant by the opposite party was not  legally justified and the same amounted to deficiency in service.

13.              The car was insured for Rs.1,50,000/-. The surveyor of the opposite party assessed the loss on total loss basis as Rs.1,29,000/-. Therefore, the complainant is entitled to get Rs.1,29,000/- from the opposite party.

14.               As a sequel to the foregoing discussion, we accept the present complaint and direct the opposite party to pay Rs.1,29,000/- as assessed  by the surveyor to the complainant alongwith interest @ 9% per annum from the date of filing the complaint till its realization. We further direct the opposite party to pay Rs.5500/- to the complainant on account of mental agony and harassment suffered by him and for the litigation expenses. This order shall be complied within 30 days from the receipt of copy of this order. The parties concerned be communicated of the order accordingly and the file be consigned to the record room after due compliance.

Announced

Dated: 03.01.2017

                                                                                      (K.C.Sharma)

                                                                                         President,

                                                                             District Consumer Disputes

                             (Anil Sharma)                          Redressal Forum, Karnal.

                                 Member