Haryana

Yamunanagar

CC/599/2010

Ilam Singh s/o Sh.Data Ram age 50 years - Complainant(s)

Versus

IFFCO TOKIO General Insruance - Opp.Party(s)

Ashok Bali

10 Mar 2016

ORDER

BEFORE THE PRESIDENT DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, YAMUNA NAGAR AT JAGADHRI.

                                                                                                Complaint No. 599 of 2010.

                                                                                                Date of institution: 23.06.2010

                                                                                                Date of decision: 10.03.2016.

Ilam Singh aged about 50 years son of Shri Data Ram resident of village and Post Office Devdhar, Tehsil Chhachhrauli, District Yamuna Nagar.

                                                                                                                                                                 …Complainant.

                                    Versus

1. IFFCO TOKIO General Insurance Co. ltd. Corporate Ofice: 4^th & 5^th Floors, IFFCO Tower, Plot No.3, Sector 29, Gurgaon-122001 (Haryana).
2. IFFCO TOKIO General Insurance Co. Ltd. # 6330, 2^nd Floor Above Dena Bank, Punjabi Mohalla, Ambala Cantt. Through its Branch Manager                                                                                                                                        …Respondents.

BEFORE:         SH. ASHOK KUMAR GARG, PRESIDENT.

                        SH. S.C.SHARMA, MEMBER.

 

Present: Sh.  Ashok Bali, Advocate, counsel for complainant.

              Sh. Rajiv Gupta, Advocate, counsel for respondents

 

ORDER

 

1.                     Complainant Ilam Singh has filed the present complaint under section 12 of the Consumer Protection 1986 praying therein that the respondents (hereinafter referred as OPs) be directed to make the payment of Rs. 35,250/- alongwith interest on account of damages to the tractor alongwith compensation and litigation expenses.

2.                     Brief facts of the present complaint, as alleged by the complainant, are that the complainant is a registered owner of tractor bearing registration No. HR-02S-4966(copy of R.C Annexure C-4) which was insured with the OPs insurance company vide insurance cover note No. 40244044 valid from 18.11.2009 to 17.11.2010 for a sum insured of Rs. 3,00,000/-(copy of Insurance cover note Annexure C-1). During the currency of insurance policy, on 24.11.2009 the tractor of the complainant met with an accident with unknown truck which hit its side against the tractor and ran away. The complainant informed the OPs Insurance Company as well as surveyor on telephone on the same day i.e. 24.11.2009 regarding the accident and thereafter the tractor was taken to the garage of Arora Tractor, Old Court Road, Jagahdri and after about 6 days the surveyor of the company came to the workshop of Arora Tractor and surveyed the loss suffered by the complainant. On asking of the OPs Insurance Company, the complainant get the tractor repaired and spent Rs. 35250/- and submitted all the requisites papers to the OPs insurance company for settlement of his claim. The complainant was orally informed by the OPs insurance company that his claim has been settled for Rs. 28000/- and he will receive the same shortly. However, complainant received a letter dated 03.05.2010 (Annexure C-3) in which the claim of the complainant was repudiated as “No Claim” on the ground that complainant informed the OPs Insurance Company after many days i.e. on 01.12.2010 and no opportunity for spot survey was provided to the OPs Insurance Company. It was further reported that cause of accident narrated by the complainant in his claim form does not match with the nature and accident of damage as the damage was only of hair line crack on its differential housing. Some other false and frivolous objections were also raised by the OPs Insurance Company. It has been further mentioned that all the grounds taken by the OPs insurance company for rejecting the claim of the complainant are wrong, false and concocted. Complainant had so many times requests to the OPs to make the payment but all in vain. Hence, this complaint.   

3.                     Upon notice, OPs Insurance Company appeared and filed its written statement by taking some preliminary objections such as complaint is not maintainable, no negligence or deficiency in service on the part of OPs, complainant has not come to this Forum with clean hands. It has been mentioned that in this case OPs Insurance Company received intimation on 1.12.2009 from the complainant that his tractor bearing registration No. HR-02S-4966 insured with the OPs has met with an accident on 24.11.2009. On receiving the intimation, the OPs insurance company deputed Sh. Pankaj Goyal, Surveyor and Loss Assessor who submitted his report on dated 15.12.2009 mentioning therein that there was a hair crack on the differential housing near its top rear portion of the tractor in question and after taking into accounts the damages assessed the net loss on repair basis to the tune of Rs. 28470/- after applying the relevant depreciation vide his report dated 15.12.2009 (Annexure R-1) subject to the terms and conditions of the insurance policy. Besides this, the said surveyor while submitting his report found a number of discrepancies during the survey and opined that the nature and extent of the damages does not match with the cause of accident. The surveyor has also submitted a subsequent report dated 10.4.2010 in continuation of his report dated 15.12.2009 mentioning therein that damages were not fresh in nature and that the hair crack on the differential housing was probably due to inherent metallurgical flaw in the casting material of housing. Moreover, the location of crack is the “ Load Bearing point” where trailer hook is fixed so it may have been caused due to over loading also. Leaving aside all other theories, the practical evidence is the “ Lumps of Greasy and Dusty Material” that has deposited all around the periphery of “crack”. It clearly speaks about the age of the “crack Greasy Dust” could deposit there after the accident when tractor was not in working order and lying parked at workshop/ residence of the insured. It has been further mentioned that in fact these “lumps of Greasy” and Dusty Material” may have deposited gradually with the passage of time on the gear oil that has been leaking from the crack since a long. On receipt of the surveyor report, the OPs Insurance Company further proceeded with the claim of the complainant and in view of not affording opportunity to spot verification of loss as the intimation was given after a gap of 7 days and further the damages does not match with the alleged accident and were not fresh in nature on account of reason that hair crack on differential housing was due to overloading and due to inherent metallurgical flaw in the casting material of the housing and on account of fact that crack is oil one, the OPs Insurance Company has rightly repudiated the claim of the complainant as “No Claim” vide letter dated 03.05.2010. Hence, there is no deficiency in service on the part of OPs Insurance Company and the claim is not payable and on merit it has been mentioned that the complainant did not inform the police regarding the alleged accident of hitting of the tractor by some unknown truck and has not submitted any copy of DDR or FIR in this regard. It has also been specifically denied that the complainant gave intimation to the OPs Insurance Company on 24.11.2009 and reiterated the averments made in the preliminary objections. Lastly prayed for dismissal of complaint.

4.                     To prove the case, counsel for the complainant tendered into evidence affidavit of Manga Ram son of Kashmira as Annexure CX and affidavit of complainant as Annexure CY and documents such as Photo copy of Insurance cover note as Annexure C-1, Photo copy of cash/credit memo dated 5.12.2009 as Annexure C-2, Photo copy of claim repudiation letter dated 3.5.2010 as Annexure C-3, Photo copy of Registration Certificate as Annexure C-4 and closed the evidence on behalf of complainant.

5.                     On the other hand, counsel for the OPs Insurance Company tendered into evidence affidavit of Rajeev Chaudhary, General Manager as Annexure RW/A and documents such as Photo copy of surveyor report dated 15.12.2009 as Annexure R-1, Photo copy of claim repudiation letter dated 3.5.2010 as Annexure R-2, Photo copy of claim form as Annexure R-3, Attested copy of insurance policy alongwith terms and conditions as Annexure R-4 and closed the evidence on behalf of OPs Insurance company.

6.                     We have heard the learned counsel for both the parties and have gone through the pleadings as well as documents placed on file very minutely and carefully. 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 not disputed that the complainant is registered owner of tractor bearing registration no. HR-02S-4966 (copy of R.C. Annexure C-4) which was insured with the OPs Insurance Company vides its cover note No. 40244044 valid from 18.11.2009 to 17.11.2010 (Annexure C-1/R-4). It is also not disputed that on intimation a surveyor was deputed by the OPs Insurance Company who submitted his report dated 15.12.2009 (Annexure R-1) and subsequent report dated 10.4.2010 (Annexure R-1) and assessed Rs. 28470/- on net loss basis.

8.                     Learned counsel for the complainant argued that the complainant has spent a sum of Rs. 35,250 on the repair of tractor in question but the OPs Insurance Company has passed only a sum of Rs. 28470/- is not tenable 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. 35,250/- whereas Op has filed surveyor report Annexure R-1 from which it is clear that there was a loss to the tune of Rs. 28,470/-.  However, complainant has failed to prove that these damages were occur due to accident, detailed for which has been given in specific paras of this judgment, so, OPs are not liable to pay this amount.

9.                     The only plea of OPs Insurance 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 OPs argued that the investigator has categorically pointed out that the cause of accident narrated in claim form does not match with the nature and extent of damage present. A hair line crack was appeared on top rear portion of the differential housing of subject tractor which was probably occurred due to some inherent metallurgical flaw in the casting material of the housing or it may have been caused due to over loading as the location of crack was at “ Load Bearing point” where trailer hook attached so. Learned counsel for the OPs Insurance Company further argued that the damages were not fresh in nature and there is no nexus between the alleged accident and resultant loss. Lastly, argued that as per terms and conditions of the Insurance policy in (Annexure R-4) alleged loss of the tractor in question was not covered under the policy hence the claim of the complainant has been rightly repudiated as “NO Claim” vide letter dated 03-05-2010 Annexure R-2

10.                   On the other hand, learned counsel for the complainant argued at length that genuine claim of the complainant has been wrongly repudiated by Insurance Company and tried his best to mould the fact that due to accident many parts of the tractor were damaged but the contention of the complainant counsel is not tenable because normally, documents do not speak lie but men may do so, as complainant has miserably failed to prove any accident by way of cogent documentary evidence i.e. DDR or FIR or even any MLR in respect of injuries (if any) sustained in accident on 24.11.2009. Even, the complainant also failed to disclose the registration number of the truck which hit the tractor of the complainant and failed to file any spot photographs of the alleged accident. We have minutely perused the bills of repairs (Annexure C-2) and surveyor report (Annexure R-1), from which it is evident that the damages were only in differential housing (Load Bearing point” where trailer hook attached) of the tractor in question which were not accidental in nature and quite not in accordance with the history of alleged accident. Complainant failed to file any mechanic/expert report to controvert the version of the Insurance Company, hence, the plea of the OP Insurance Company and opinion of the surveyor seems reasonable. Onus to prove the accidental damages was upon the complainant but he has totally failed to do

11.                 Further we have gone through the terms and conditions of the Insurance policy (Annexure R-4) Section 1 (1): Loss of Or Damages to the Vehicle Insured:- The Company will indemnify the insured against loss or damages to the vehicle insured hereunder and / or its accessories whilst thereon

i) By fire explosion self ignition or lightning:  ii) By burglary, housebreaking or theft : iii) By riot & strike: iv) By earthquake(fire and shock damage): V) by flood typhoon hurricane storm: vi)  by accident external means: iiv) by malicious Act: iiiv) by terrorism activity: ix) whilst in transit by rail, road inland waterway lift elevator or air: x) by Landslide rockslide: subject to deduction for depreciation

And as per Section 1 (2) The Company shall not be liable to make any payment in respect of:-

1. Consequential loss, depreciation, wears and tears, Mechanical and electrical breakdown, failure or breakage or for damages caused by Overloading or stain of the insured vehicle or loss or damages to accessories by burglary housing breaking or theft unless such insured vehicle is stolen at the same time

12                    After going through the above noted circumstances, terms and conditions, as the complainant has totally failed to prove that tractor in question met with accident and the damages were due to accident external means and further failed to file any mechanic/expert report that the damages were not due to wears and tears, overloading, 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 OPs Insurance Company and the claim of the complainant has rightly been repudiated by the OPs Insurance Company.

13                    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. 10.03.2016.

                       

                                                                                    (ASHOK KUMAR GARG)

                                                                                    PRESIDENT,

 

                                                                                     

                                                                                    (S.C.SHARMA )

                                                                                     MEMBER.