Chandigarh

DF-I

CC/186/2018

Ashwani Kumar - Complainant(s)

Versus

Iffco Tokio General Insurance Co. Ltd. - Opp.Party(s)

Rajesh K. Bhatia

15 Jul 2019

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-I,

U.T. CHANDIGARH

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Consumer Complaint No.	:	CC/186/2018
Date of Institution	:	25/04/2018
Date of Decision	:	15/07/2019

 

Ashwani Kumar @ Ashni Kumar S/o Sh. Gian Chand, R/o H.No.74, Village Kansal, Post Office Nayagaon, District S.A.S. Nagar, Mohali, Punjab.

                                                                                            …..Complainant

 

V E R S U S

 

1.      IFFCO TOKIO General Insurance Co. Limited, Corporate Office, Plot No.3, Sector 29, Gurugram, Haryana, through its General Manager.

 

2.      IFFCO TOKIO General Insurance Co. Limited, Plot No.2B & C, 4^th Floor, IFFCO Complex, Sector 28-A, Madhya Marg, Chandigarh, through its Manager/ Authorized Person.

 

…… Opposite Parties

QUORUM:	RATTAN SINGH THAKUR	PRESIDENT
	MRS.SURJEET KAUR	MEMBER
	DR.S.K.SARDANA	MEMBER

                               

ARGUED BY	:	Sh.Rajesh K. Bhatia, Counsel for Complainant.
	:	Sh.Dinesh Gupta, Vice Counsel for Sh.Ankur Gupta, Counsel for Opposite Parties.

 

Per Dr.S.K.Sardana, MEMBER

1.         The facts, in brief, are, the Complainant got his Alto K-10 VXI car bearing Regn. No. PB 65 AK 0767 duly insured with the Opposite Parties, valid from 16.12.2016 to 15.12.2017, by paying the requisite premium of Rs.15,252/- which was inclusive of Rs.1746/- towards zero depreciation. On 11.12.2017, the said car met with an accident near Chandimandir, Panchkula (Haryana) while the son of Complainant namely Kartik, along with his friends were coming back from Morni Hills and at the time of accident, the vehicle was driven by the friend of the son of the Complainant namely Mr. Sandeep. Due intimation regarding the accident was given to the Police, whereafter an F.I.R No. 0360 dated 14.12.2017 was registered. Thereafter, the Complainant had lifted the vehicle to the Modern Automobiles (Authorized Service Station), Industrial Area, Phase-2, Panchkula on 16.12.2017, who after scrutinizing the damages prepared a service estimate on dated 18.12.2017 for a total sum of Rs.5,32,908/-. It has been alleged that despite long persuasion and repeated requests and reminder to appoint the Surveyor for assessing the loss of damaged vehicle, the Opposite Parties after a period of two months appointed Mr. Vikas Gulati, Surveyor & Loss Assessor to assess the loss. The said Surveyor inspected the damaged vehicle after a gap of two months from the date of accident and thereafter, raised the point that the Complainant had to pay 10% amount of the cost of repair of vehicle as depreciation and thereafter, the above said Surveyor told the Complainant to pay the depreciation charges @20% of the cost of the repair of the vehicle, despite the fact that the vehicle of the Complainant was fully covered and the Complainant had already paid an additional amount of Rs.1746/- towards zero depreciation. After the inspection of the vehicle, the Complainant many a times requested the Opposite Parties to give the fate of the accidental claim of the vehicle, but every time the Opposite Parties lingered on the matter on one pretext or the other. During the period in between, the representatives of the Modern Automobiles desired the Complainant to give his consent for the repair of the vehicle, failing which they would charge an amount of Rs.200/- per day towards parking charges and since the Opposite Parties have not settled the accidental claim of the vehicle, the Complainant was left with no option but had lifted his vehicle from the premises of the Modern Automobiles, Panchkula in order to avoid parking charges. However, after a passage of one month, the Opposite Parties vide letter dated 13.03.2018 repudiated the claim of the Complainant on flimsy grounds. Even the request of the Complainant to reopen his case was turned down by the Opposite Parties on surmises and conjectures. Alleging that the aforesaid acts amount to deficiency in service and unfair trade practice on the part of the Opposite Parties, the Complainant has filed the instant complaint.
2.         Notice of the complaint was sent to Opposite Parties seeking their version of the case.
3.         Opposite Parties contested the complaint and filed their written statement, inter alia, admitting the basic facts of the case. It has been pleaded that the Complainant approached the answering Opposite Parties with an intimation to the effect that his car had met with an accident on 11.12.2017 while being driven by Mr. Sandeep i.e. friend of his son (Kartik). The answering Opposite Parties immediately appointed an IRDA accredited Surveyor M/s B&S Associates to survey the vehicle and assess the loss and to verify the authenticity of the case. The appointed Surveyor M/s B&S Associates surveyed the damaged car of the Complainant and thereafter another Investigator namely Vikas Gulati was appointed to investigate the loss. During the survey of the vehicle, the Surveyor found that the damages suffered by the car of the Complainant were such that the same could not have left the driver of the car unhurt in any manner, whatsoever. On perusal of the medical treatment record of Mr. Kartik who had sustained injuries on his face and jaw, it makes it crystal clear that it was him who was driving the car at the time of accident as the injuries suffered by him were exactly in consonance with the injuries the impact would have given to the person driving the car. It being a clear case of concealment, mis- representation and fraud, the answering Opposite Parties had rightly repudiated the claim of the Complainant. Thus, pleading that there is no deficiency in service or unfair trade practice on their part, Opposite Parties have prayed for dismissal of the complaint.
4.         The complainants has filed a rejoinder, wherein they have reiterated all the averments, contained in the complaint, and repudiated those, contained in the written version of Opposite Parties.
5.         The parties led evidence in support of their contentions.
6.         We have gone through the entire record and have also heard the arguments addressed by the Learned Counsel for the parties.
7.         It is admitted fact between the parties that the vehicle in question was comprehensively insured for a sum of Rs.3,48,277/- with the Opposite Parties under the Policy (Annexure C-2) on the date of the incident i.e. 11.02.2017. There is also no dispute with regard to the damage to the insured vehicle in the said accident.
8.         The case of the Complainant is that the Opposite Parties repudiated his claim on surmises and conjectures. Per contra, Opposite Parties held their nerve contending that pursuant to the claim, an investigator was appointed, who found that the damages suffered by the car of the Complainant were such that the same could not have left the driver of the car unhurt in any manner, whatsoever. It being a clear case of concealment, misrepresentation and fraud, therefore, they were justified in rejecting the claim of the Complainant.
9.         Thus, in the facts and circumstances of the case just narrated above, the question for consideration is whether non-payment of the claim by the Opposite Parties was justified or not?       
10.         The Opposite Parties has repudiated the claim of the Complainant through letter Ex.C-5, which is only on the basis of assumption and presumption as they themselves written in Ex.C-5 i.e. repudiation letter “that the person sitting in the driver seat must have sustained injuries”. Meaning thereby, per Opposite Parties the son of the Complainant namely Kartik was driving the vehicle at the time of the accident; whereas, from FIR Ex.C-3, it is proved that the friend of the son of the Complainant namely Mr. Sandeep was driving the vehicle at the time of accident.  The surveyor could not have taken the role of investigation authorities and sit over the investigation made by the police. He cannot be termed as super cop. If really he was of the opinion that the police were hand in glove with the complainant, and gave final report, either the surveyor or the insurance company could have filed an appropriate application before the concerned Magistrate or higher authorities in the police department bringing to their notice about the collusion.
11.         Evidently, the insurance company has appointed a surveyor/investigator M/s B&S Associates who surveyed the damaged car of the Complainant and subsequently, another investigator namely Mr. Vikas Gulati was appointed to investigate the loss. No permission whatsoever was taken from IRDA while appointing the second surveyor/ investigator as envisaged u/s 64 UM of Insurance Act. The appointment is contrary to provisions of the Act and as such it has no validity under law. Simply because the Surveyor found that the damages suffered by the car of the Complainant were such that the same could not have left the driver of the car unhurt in any manner, whatsoever, the claim of the complainant cannot be rejected.
12.         At any rate, there is no evidence whatsoever for the conclusion that the son of the Complainant namely, Mr. Kartik, who had sustained injuries on his face and jaw, was driving the vehicle at the time of the accident. Even the Opposite Parties have miserably failed to bring on record any medical opinion of any doctor on the basis of which, they presumed that Mr. Sandeep was not driving the vehicle at the time of the accident. Rather the Complainant had placed on record every single document that proves the bonafide on the part of the Complainant i.e. Ex.C-2 and Ex.C-3 copies of the insurance and FIR. Notably, the insurance company for the reasons best known did not file the affidavit of the surveyor or the investigator who gathered evidence that the vehicle was driven by the son of                          the Complainant and not by Mr. Sandeep.       Obviously, the Opposite Parties in order to deny the just claim let in evidence without substantiating the same. 
13.          The Hon’ble Punjab and Haryana High Court in case titled as Oriental Insurance Company Limited, Chandigarh Vs. Khursheed and another, Civil Writ Petition No.3996 of 2011, decided on 22.3.2011, has held that :-

“…Insurance Companies are charging hefty premium for insuring the vehicles. Once the question of liability arises, the companies resort to one technical objection and the other.  These Companies really chase people and literally promise everything at the time of selling policy.  It is usual to see people struggle to run after agents and surveyors to get their rightful claims.  Such agents then look other way and make insurers to make rounds to Company offices.  Insurers are then made to approach the Courts and are even dragged to this Court on one technical plea or the other.  No one really is made to read the terms while making him to sign on the printed forms for selling policies.  This attitude must change. Atleast, the Courts should not be burdened with this uncalled for litigation”.

14.         In the wake of foregoings, we are of the concerted opinion that the Opposite Parties are liable to indemnify the Complainant for the loss, as they had issued the insurance policy and received premium for the same. We feel the repudiation of claim of the Complainant is wholly unjustified and amounts to deficiency in service on the part of the Opposite Parties, which certainly has caused immense, mental and physical harassment to the complainant. The complainant is held entitled to the IDV of the vehicle, along with interest. So, on account of inconvenience and expenditure incurred by the complainant, Rs.25,000/- would be just and reasonable to be awarded as compensation, along with cost of the present proceedings which are quantified as Rs.10,000/-.
15.         For the reasons recorded above, the present complaint of the Complainant deserves to succeed against the Opposite Parties, and the same is partly allowed. The Opposite Parties are, jointly and severally, directed:-

[a]    To pay IDV of Rs.3,48,227/-, to the Complainant, along with interest @ 9% p.a. from the date of repudiation i.e. 13.03.2018, till realization.

 [b]   To pay to the complainant Rs.25,000/- as compensation for deficiency in service, unfair trade practice and for mental agony and harassment;

[c]    To pay to the complainant Rs.10,000/- as costs of litigation.

16.         This order shall be complied with by Opposite Parties within one month from the date of receipt of its certified copy, failing which, they shall be liable to pay interest @12% p.a. instead of 9% p.a. on the amount mentioned at Sr.No. (a) from 13.03.2018 till realization and also to pay interest @12% p.a. on the compensation amount mentioned at Sr.No.(b) from the date of filing the complaint till its realization, besides paying litigation expenses mentioned at Sr. No.(c) above.
17.         Certified copy of this order be communicated to the parties, free of charge. After compliance file be consigned to record room.

	Sd/-	Sd/-	Sd/-
15/07/2019	[Dr.S.K.Sardana]	[Surjeet Kaur]	[Rattan Singh Thakur]
	Member	Member	President
“Dutt”