Haryana

Ambala

CC/40/2021

Sarupinder Singh - Complainant(s)

Versus

Iffco Tokio Gen Inss Co Ltd - Opp.Party(s)

A.B. Kapoor

11 Oct 2022

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, AMBALA.

Complaint case no.	:	40 of 2021
Date of Institution	:	14.01.2021
Date of decision	:	11.10.2022

 Sarupinder Singh s/o Narotam Singh r/o H.no.173, Village Pilkhani, Ambala Cantt (Ambala)

          ……. Complainant.

                                                Versus

Iffco-Tokio General Insurance Company Limited, Branch Office- 1^st Floor, Minerva Complex, Rai Market Ambala Cantt.

                                                                                   ….…. Opposite Party

Before:        Smt. Neena Sandhu, President.

                             Smt. Ruby Sharma, Member,

          Shri Vinod Kumar Sharma, Member.           

 

Present:       Shri Harshit Kapoor, Advocate, counsel for the complainant.

                             Shri R.K Vig, Advocate, counsel for the OP.

Order:        Smt. Neena Sandhu, President.

1.                Complainant has filed this complaint under Section 35 of the Consumer Protection Act, 2019 (hereinafter referred to as ‘the Act’) against the Opposite Party (hereinafter referred to as ‘OP’) praying for issuance of following directions to it:-

1) To pay a sum of Rs.64,140/- for the damages caused to the Royal Enfield Motorcycle Motor Cycle bearing Registration no. HR-01-AK-4598 bearing Chassis no. ME3U3K5C0EM6

2) To pay Rs. 50,000/- as compensation for mental agony and physical harassment suffered by the complainant.

3) To pay litigation expenses.

                             OR

 Grant any other relief which this Honourable Commission may deem fit.

2.             Brief facts of the case are that the complainant is the registered owner of Motor Cycle bearing Registration no. HR-01-AK-4598 bearing Chassis no. ME3U3K5C0EM6 registered with Registering Authority, Ambala. After purchase of the aforesaid motor cycle, the complainant got the same insured from the OP, from time to time. On 15.10.2020, at about 08.15 P.M the complainant was going from Village Pilkhani to Mithapur on his above said motorcycle and when he climbed on Jagadhri-Ambala Highway, a cow collided with it, due to which the foot rest of the motorcycle got stuck in a sand bag kept on the road. The complainant lost the balance of his motorcycle and fell into a pit hole-5 feet deep. In this accident, a truck coming from Jagadhri road dragged the motorcycle of the complainant, as a result of which, its fuel tank, front mudguard, toolbox, seat, air filter box etc. were damaged. The mobile of the complainant J7Pro of Samsung also got damaged. The complainant also suffered minor scratches in the said accident. The complainant was rescued by passersby. With the help of people, he shifted his bike to the nearby shop of Mr.Gurjeet Singh s/o Gurmail Singh r/o village Rattanheri, Ambala. On 17.10.2020, the complainant took the said motorcycle to the workshop of Royal Enfield Agency, Rai Market, Ambala Cantt.  and he was asked to come after two days. On 19.10.2020, loss of Rs.64,140/- (approximately) was stated by the officials and since then the said motorcycle of the complainant is lying in the said workshop of Royal Enfield Agency, Rai Market Ambala Cantt. On 19.10.2020 the complainant went to the OP and informed the details of the accident. The matter was referred to the surveyor for assessing loss. The surveyor did not go on the spot of accident along with the complainant. The documents asked for by the OP were submitted by the complainant.  On 10.11.2020, the complainant was asked to sign an affidavit at Ambala Cantt Tehsil by the surveyor of the Company stating that his claim is almost complete and after his signatures, the claim shall be released in his favour. The complainant received a letter dated 16.12.2020 from the OP and was shocked to know that it refused to accept his claim on the ground that the complainant had failed to prove the particulars of the accident beyond reasonable doubt. By not reimbursing the claim amount, the OP has committed deficiency in service. Hence, the present complaint.
3.           Upon notice, the OP appeared through its counsel and filed its written version wherein it raised preliminary objections with regard to maintainability etc. On merits while admitting the factual matrix of the case with regard to issuance of the policy in question in respect of the motorcycle of the complainant, it has been stated that it is the duty of the insured to inform to the insurer in writing immediately upon the occurrence of any accidental loss or damage in the event of any claim. The complainant for the first time informed OP on 19.10.2020 after a gap of 5 days regarding the damage of his motorcycle which reportedly took place on 15.10.2020. Consequent upon the information, the OP appointed approved surveyor Mr. Raman who lost no time and prepared his report on the basis of physical verification of the motorcycle in question. The surveyor in his report has categorically mentioned that damages to the captioned vehicle are not due to accidental external means, but due to direct hit/hammering on it, which did not coincide with the cause and nature of accident. Even the registration number of truck which escaped from the spot of accident was not noted down by the complainant. Even no injury to the complainant was reported.  The OP arrived at the conclusion after scrutiny of surveyor report, photographs and examination of the documents. By not disclosing the true facts to the Insurance Company regarding damages of the motorcycle in question, the insured was in clear breach of utmost good faith and undertaking given in the claim form and condition no.8 of the policy. It is wrong that the complainant is entitled for Rs.64,140/-, when the IDV of the vehicle is Rs.60,000/-. Rest of the averments of the complainant were denied by the OP and prayed for dismissal of the present complaint.
4.           Learned counsel for the complainant tendered affidavit of complainant, affidavit of Hurjeet Singh son of Gurmail Singh, r/o village Rattanheri, Ambala and affidavit of Shri Mahinder Singh son of Chitter Ram, r/o village Samlehri, Ambala as Annexure CA, CB and CC alongwith documents as Annexure C-1 and C-27 and closed the evidence on  behalf of the complainant. Learned counsel for the OP tendered affidavit of Devendra Kumar, General Manager of the OP Company -IFFCO Tokio General Insurance Company Limited and affidavit of Shri Raman, Surveyor Raman Auto Surveyors and Loss Assessors, 135, Ajit Nagar, Ambala Cantt. as Annexure OP-A and OP-B alongwith documents Annexure OP-1 to OP-10 and closed the evidence on behalf of OP.
5.           We have heard the learned counsel for the complainant and learned counsel for OP and carefully gone through the case file, including the written arguments filed by the OP.
6.           Learned counsel for the complainant submitted that the genuine claim of the complainant was repudiated by the OP on flimsy grounds, which act amounts to deficiency in service and adoption of unfair trade practice on its part.
7.           On the other hand, learned counsel for the OP submitted that since the accident of the motorcycle did not appear to be natural and on the other hand, the damages caused to it seemed to be hammered and also at the same time, the complainant failed to note down the number of the mini truck which allegedly dragged the motorcycle in question, as such, the claim of the complainant was rightly repudiated by the OP.
8.           It may be stated here that since the issuance of policy in respect of the motorcycle in question is not disputed by the OP, as such, the only question that falls for consideration is as to whether, the claim of the complainant was rightly repudiated by the OP or not. Before moving further, it is necessary to reproduce the contents of repudiation letter dated 16.12.2020, Annexure OP-7, as under:-

“…….With reference to the above loss reported to us on 19/10/2020 the vehicle was surveyed by Mr. Raman ChatwalLicensed Surveyor and Loss Assessor immediately, for the verification of facts and assessment of the said loss.

In the loss particulars provided by you in your written statement dated 21/10/2020 & 10/11/2020 you have stated that vehicle met with an accident on 15/10/2020 at about 8 pm while saving a cow when the vehicle overturned and it was overrun & dragged by a speeding mini truck resulting in damages to insured vehicle.

In same accident you fell in a 5 ft. deep pit and suffered minor scratches.

 

On examination of the damages by surveyor following inconsistencies have been observed:

 

a) Damages to fuel tank, front mudguard, toolbox, seat, air filter box, exhaust pipe, silencer, tail lamp etc are found to be due to hammering impact resulting in dents and seemingly not caused in the accident, as per the loss particulars given by you.

 

b) The alignment of damages to various parts do not correlate with loss particulars provided by you. The similar dents are found on all sides of the vehicle which is very unlikely in the accident as mentioned by you. This raises apprehension about the veracity and reliability of loss particulars provided by you.

 

c) Further the tell-tale sign of friction damages resulting from dragging are missing on the damagedparts.

 

You have not been able to provide the vehicle particulars of the mini truck which caused such major accident. It is very unlikely that any vehicle can easily speed away after dragging a big motorbike like bullet.

 

Further minor injuries to driver has been reported in the accident, however no evidence of any treatment has been provided.

 

It is also noted that, you have not been able to conclusively establish the veracity of the loss particulars provided by you during the survey done by surveyor. It is also noted that you did not submit completely filled claim form but submitted an affidavit later.

 

You would appreciate that claim reported under policy is payable only when the loss particulars provided by you are established beyond doubt. Therefore, In light of the above observation, you are requested to clarify on the observations made above within 7 days of receiving this letter in compliance of condition no-I to enable us to provide further.….”

 

9.           Perusal of the contents of repudiation letter reveals that the claim of the complainant has been rejected by the OP mainly on the following grounds:-
   1. Damages to various parts of the motorcycle i.e. fuel tank, front mudguard, toolbox, seat, air filter box, exhaust pipe, silencer, tail lamp etc are found to be due to hammering impact resulting in dents and seemingly not caused in the accident.
   2. The insured has not been able to provide the particulars of the mini truck which caused such major accident. It is very unlikely that any vehicle can easily speed away after dragging a big motorbike like bullet.
   3. Further minor injuries to driver has been reported in the accident, however no evidence of any treatment has been provided.
10.           Coming to the first ground that damages to various parts of the motorcycle i.e. fuel tank, front mudguard, toolbox, seat, air filter box, exhaust pipe, silencer, tail lamp etc are found to be due to hammering impact resulting in dents and seemingly not caused in the accident, it may be stated here that the OP has failed to place on record any cogent evidence to prove that the damaged parts of the motorcycle was not the result of the accident. The OP has also failed to place on record any evidence to prove that the said damage caused to the motorcycle in question was a result of hammering impact done by the complainant. Thus, mere opinion of the surveyor, based on the photographs of the damaged motorcycle, and on the other hand without any cogent evidence, is not sustainable in the eyes of law. It is therefore held that one of these grounds was not sufficient to repudiate the claim of the complainant. 
11.           Coming to the second ground of repudiation of claim to the effect that the complainant has not been able to provide the particulars of the mini truck which caused such major accident, it may be stated here that since it is an admitted case of the complainant that after the said incident, he fell into a pit hole which was about 5 feet, as such, under those circumstances, it could not have been feasible for him to note down the number of the said mini truck who dragged the motorcycle in question. It is therefore held that this ground was also not sufficient to repudiate the claim of the complainant. 
12.           Coming to the third ground of repudiation of claim to the effect that minor injuries to driver has been reported in the accident, however no evidence of any treatment has been provided to the OP, it may be stated here that learned counsel for the complainant has contended with vehemence that at the time of accident, though the complainant fell in pit hole, yet, he did not suffer any major injuries, as a result whereof, the proof of treatment was not provided to the surveyor. Once it was so, then this ground for repudiation of claim of the complainant was also not sufficient. 
13.           It is, therefore, held that by repudiating the genuine claim of the complainant, on the grounds referred to above, the OP is deficient in providing service. The complainant is, therefore, held entitled to get claim amount from the OP, in respect of the accident of his motorcycle, as the same occurred during subsistence of the insurance policy in question.
14.           The next question which falls for consideration is as to what amount the complainant is entitled to get towards repair of the said motorcycle. The surveyor in his report dated 24.11.2020, Annexure OP-1, has opined that only an amount of Rs.2,513/- is payable, in case of repair of the motorcycle in question. On the other hand, the Royal Motors had raised bills dated 06.10.2021, Annexure C-14 to C-16 for an amount of Rs.34,520/- towards repairs of the motorcycle in question. It may be stated here that perusal of the photographs of the damaged motorcycle reveals that most of the external parts, referred to above, needs proper repairs. Taking this fact into consideration and the bills raised by the Royal Motors for repair of the motorcycle in question, we are of the view that the amount of Rs.2,513/-, assessed by the surveyor is very meager and in these days of inflation it is not possible to get repaired the motorcycle in question in the said amount. We thus do not hesitate to conclude that surveyor’s report is without any fadtual basis and is not binding upon the complainant. The Hon'ble Supreme Court reported in (2009) CPJ 46 (SC) titled "New India Assurance Company Limited v. Pardeep Kumar" has held that that surveyor's report is not the last and final word. It is not that sacrosanct that it cannot be departed from it is not conclusive. The approved surveyor's report may be basis or foundation for settlement of a claim by the insurer in respect of the loss suffered by the insured but surely such report is neither binding upon the insurer nor insured.
15. , we are of the considered opinion that if we award a lump-sum amount equal to 60% of Rs.34,520/- i.e. Rs.20712/- to the complainant keeping in mind the depreciation of the parts of the said motorcycle, that will meet the ends of justice.  However, it is made clear that the remaining amount, if any, towards repair of the said motorcycle, shall be paid by the complainant, to the repairer.
16. 1. To pay claim amount to the tune of Rs.20,712/- to the complainant alongwith interest @ 4% p.a. from the date of repudiation of the claim i.e. from 16.12.2020 till realization.
    2. To pay compensation to the tune of Rs.3000/- for causing mental agony and harassment to the complainant.
    3. To pay cost of litigation to the tune of Rs.2000/- to the complainant.

            This order be complied within a period of 45 days from the date of receipt of a certified copy of this order failing which the aforesaid entire amount shall further entail interest @ 5% p.a. from the date of default till realization.  Certified copy of this order be supplied to the parties concerned, forthwith, free of cost as permissible under rules. File be indexed and consigned to the record room.

        Announced:- 11.10.2022

 

(Vinod Kumar Sharma)	(Ruby Sharma)	(Neena Sandhu)
Member	Member	President