COMPLAINT U/S 35 OF CONSUMER PROTECTION ACT,2019.
BEFORE: SH.NAGENDER SINGH KADIAN, PRESIDENT.
DR. TRIPTI PANNU, MEMBER.
DR.VIJENDER SINGH, MEMBER.
Present: Sh. Digvijay Jakhar, Advocate for complainant.
Sh. Puneet Chahal, Advocate for the opposite party.
ORDER
NAGENDER SINGH KADIAN PRESIDENT:
1. Brief facts of the case as per complainant are that he is owner of vehicle Ertiga LXI manufactured by Maruti Suzuki India Ltd., bearing registration no. HR12X8811, Chasis No. MA3ELMG1S00258361, Engine No. K14BN7038102 and got it insured from opposite party vide policy no. M7955386, valid from 22.05.2019 to 21.05.2020. The IDV of the vehicle is of Rs.3,79,920/- under zero percent depreciation scheme. It is further submitted that on 10.12.2019 due to fog, the vehicle of the complainant met with an accident with a truck/trolla and turned into side. Due to said accident, the vehicle got badly damaged. The complainant got some injuries and a person took complainant to a doctor and intimated police on 11.12.2019 and DDR dated 11.12.2019 was also issued. After getting treatment and copy of police report, complainant called the opposite party on toll free number and informed about the said incident. After intimation, the opposite party registered the claim vide claim no.37D12534 and the official of the opposite party told to complainant to lift and park the accidental vehicle at nearby repairing workshop. As per instructions, the complainant lifted his vehicle with crane and parked it at Raj Automobiles, Rohtak. Later on, the surveyor of the opposite party came and inspected the vehicle and told the complainant that it is a total loss vehicle and collected document alongwith the estimate and got complainant’s signature on papers and assured him that they would settle the claim as soon as possible. It is further submitted that more than two or three times, complainant submitted the documents on the demand of the opposite party. The complainant also requested the opposite party through email to settle the claim, various times. But the respondent did not pay any heed towards the genuine requests of complainant. Thereafter the complainant received the opposite party’s letter dated 14.10.2020 and came to know that opposite party has repudiated the claim on false grounds. As such, there is deficiency on the part of the opposite party. Hence, this complaint and it is prayed that opposite party may kindly be directed to pay IDV of the vehicle i.e Rs.3,79,920/-, Rs.1500/- crane charges and Rs.10,000/- on account of parking charges alongwith interest at the rate of 24% w.e.f. date of accident to till actual realization to the complainant. It is further prayed that opposite party may also be directed to pay Rs.1,00,000/- as compensation on account of deficiency in service and litigation expenses to complainant as explained in relief clause.
2. After registration of complaint, notice was issued to the opposite party. Opposite party in its reply has submitted that claim in question was already approved by the opposite party on non standard basis for an amount of Rs.2,42,940/- on net of salvage basis and subject to submission of documents such as i) NOS consent ii) Copy of buyer seller agreement(Salvage) iii) KYC documents of buyer iv) Form No. 35 and NOC and insured NEFT (if hypothecation is removed) v) Financer NEFT(if payment of financer) & vi)Cancelled registration certificate. The complainant duly intimated vide letter dated 03.02.2021 and subsequent reminder dated 09.02.2021 and final reminder letter dated 20.02.2021 for completion of above required formalities for settlement of the claim. But till date, required documents have not been submitted by the complainant. It is further submitted that on receipt of information regarding the accident, the opposite party appointed Mr. Vokesh Arya as Surveyor & Loss Assessor and further M/s Karnal Associates was appointed as Investigator. During the scrutiny of investigation report and surveyor’s observation, following anomalies were noted in the reported claim of the complainant that:-
There is a delay in intimation for 16 days, the complainant through email dated 04.05.2020 clarified that he got injured during accident and medical documents submitted in support of same. But attending Dr. Sidharth, the owner of the clinic has confirmed in writing that the complainant had visited there as a routing patient for checkup not for any injury related to road side accident. Further damages on the vehicle found at the time of the survey do not correlate with the loss particulars provided by complainant. As per loss particular provided by insured, vehicle hit a parked truck but he failed to provide the registration of said truck neither in DDR nor to the opposite party. It is also submitted that the complainant in his statement confirmed that he purchased the vehicle from Mr. Lekh Ram but has not provided any document in support. During investigation it is revealed that the first owner of the vehicle Mr. Ram Tirath has sold this vehicle to Mr. Shekhar for Rs.2.50 lakh in 2017. Mr. Shekhar confirmed that he sold this vehicle to Mr. Sunil Kumar and Sunil Kumar has sold this vehicle to complainant for Rs.1.10 Lakh. The vehicle was insured in the name of Mr. Ram Tirath for Rs.3.56 lakh based on which the RC transferred was done by complainant in March 2018. It is evident that the complainant purchased the vehicle for Rs.1.10 lakh from Mr. Sunil Kumar and not Mr. Lekh Ram and got insurance from ITGI for Rs.3,99,920/-. It is misrepresentation on the part of complainant regarding the past history of the vehicle. These discrepancies was duly communicated to the insured vide letters dated 10.09.2020, 18.09.2020 and 14.10.2020 and in absence of any satisfactory response by the complainant, the opposite party found that the claim falls under the category of non-standard claims due to violation of policy condition, the claim was accordingly approved on non-standard basis for an amount of Rs.2,42,940/- on net of salvage basis by assessing salvage value Rs.56,000/-. All the other contents of the complaint were stated to be wrong and denied and opposite party prayed for dismissal of complaint.
3. Ld. counsel for the complainant in his evidence has tendered affidavit Ex.CW1/A, documents Ex.C1 to Ex.C11 and has closed his evidence on dated 04.10.2021. Ld. counsel for the opposite party has tendered affidavits Ex.RW1/A and Ex.RW2/A and documents Ex.R1 to Ex.R13 on 12.04.2023, but has failed to conclude his evidence. As such, evidence of opposite party closed vide order dated 12.04.2023 of this Commission.
4. We have heard learned counsel for the parties and have gone through material aspects of the case very carefully.
5. In the present complaint the respondent has written various letters to the complainant for submission of some documents and clarifications. The respondents wrote 3 letters Ex.R9, Ex.R10 and Ex.R11 on dated 10.09.2020, 18.09.2020 and 14.10.2020 respectively for submitting some documents and clarifications. As per record the complainant replied these letters through mail dated 23.10.2020. Copy of mail is attached herewith the complaint as Ex.C8 and Ex.C9. Thereafter the claim of the complainant has not been processed by the insurance company. In that situation the complainant gave a legal notice through mail dated 05.11.2020, which has been placed on record by the complainant as Ex.C10. Thereafter the complainant filed the present complaint on dated 26.11.2020 and notice has been issued to the opposite party on dated 17.12.2020. Thereafter the respondent wrote 3 letters to the complainant Ex.R1 to Ex.R3 on dated 03.02.2021, 09.02.2021 and 20.02.2021 respectively. Through these letters, the insurance company submitted that : “There is a delay in claim intimation for 16 days, the complainant through email dated 04.05.2020 clarified that he got injured during accident and medical documents submitted in support of same. But attending Dr. Sidharth, the owner of the clinic has confirmed in writing that the complainant had visited there as a routing patient for checkup not for any injury related to road side accident. 2) Further damages on the vehicle found at the time of the survey do not correlate with the loss particulars provided by complainant. 3) As per loss particular provided by insured, vehicle hit a parked truck but he failed to provide the registration of said truck neither in DDR nor to the opposite party. 4) Complainant in his statement confirmed that he purchased the vehicle from Mr. Lekh Ram but has not provided any document in support. During investigation it is revealed that the first owner of the vehicle Mr. Ram Tirath has sold this vehicle to Mr. Shekhar for Rs.2.50 lakh in 2017. During investigation, Mr. Shekhar confirmed that he sold this vehicle to Mr. Sunil Kumar and Sunil Kumar has sold this vehicle to complainant for Rs.1.10 Lakh. The vehicle was insured in the name of Mr. Ram Tirath for Rs.3.56 lakh based on which the RC transferred was done by complainant in March 2018. It is evident that the complainant purchased the vehicle for Rs.1.10 lakh from Mr. Sunil Kumar and not Mr. Lekh Ram and got insurance from ITGI for Rs.3,99,920. Thus at the time of claim the complainant had misrepresented the past history of vehicle in support of his claim”. The opposite party concluded that the claim falls under the category of non-standard claims due to violation of policy condition, the claim was accordingly approved on non-standard basis for an amount of Rs.2,42,940/- on net of salvage basis by assessing salvage value Rs.56,000/-. Meaning thereby the claim of the complainant has been settled by the insurance company on non standard basis as Rs.242940/- and they demanded the following documents from the complainant : “1. NOS Consent, 2. Copy of Buyer Seller Agreement, 3. KYC Documents of Buyer, 4. Form 35 & NOC and Insured NEFT(if hypothecation is removed) 5. Financer NEFT(If payment to financer), 6. Cancelled Registration Certificate”.
6. We have minutely perused the written statement, affidavit and documents placed on record by the respondent. In fact as per the survey report the insurance company believed that the vehicle in question has been sold initially by one Ran Tirath to one Mr. Shekhar s/o Devender Singh, R/o Titoli for a sum of Rs.250000/- and thereafter Shekhar has sold the same vehicle to Sunil Kumar of Sampla and Sunil Kumar sold the vehicle to Bijender the present complainant for Rs.110000/-. It has been further submitted that the vehicle has been directly transferred from Ram Tirath to Bijender Singh. It has been further submitted in Ex.R5 investigation report that Sunil Kumar refused to give any statement in writing that Sunil Kumar has sold the vehicle to Bijender for consideration of Rs.110000/-. After believing this above mentioned transfer, the insurance company believed that the value of the vehicle has been assessed wrongly and as per surveyor the approved amount of vehicle is Rs.299940/-. We have minutely perused the investigation report and other photocopy of statements. As per our opinion these statements and investigation report cannot be believed without any affidavit or cogent evidence. As per surveyor the salvage value has been assessed as Rs.56000/- and policy excess clause as Rs.1000/-. Now we have perused the insurance policy placed on record by the complainant as Ex.P1 and by the insurance company as Ex.R13. The total IDV of the vehicle is mentioned as Rs.399920/-. The perusal of these documents shows that the total IDV of the vehicle was Rs.399920/-. The salvage value is assessed as Rs.56000/- and excess clause Rs.1000/-. As such opposite party is liable to pay the IDV of vehicle after deducting the alleged amount of Rs.57000/-(Rs.56000/- + Rs.1000/-) i.e. Rs.342920/- say Rs.343000/-. Through letters Ex.R1 to Ex.R3, the insurance company has demanded NOC from the financer. The perusal of RC shows that vehicle has not been hypothecated with any finance company or bank at the time of damage. So the documents sought by the opposite party through its letter Ex.R2 are not required. As such opposite party is liable to pay the alleged amount of Rs.343000/- to the complainant.
7. In view of the facts and circumstances of the case we hereby allow the complaint and direct the opposite party to pay the alleged amount of Rs.343000/-(Rupees three lac forty three thousand only) alongwith interest @ 9% p.a. from the date of filing the present complaint i.e. 26.11.2020 till its realization and also to pay Rs.5000/-(Rupees five thousand only) as compensation on account of deficiency in service and Rs.5000/-(Rupees five thousand only) as litigation expenses to the complainant. Order shall be complied within one month from the date of decision. However, complainant is directed that he will not use the vehicle in any manner or repair the vehicle in question as the loss has been assessed on total loss basis. Complainant is further directed to complete the formalities e.g. letter to the RTO for cancellation of R.C. in favour of the company within 15 days from today and thereafter opposite party shall comply with the order dated 08.08.2023 of this Commission within one month.
7. Copy of this order be supplied to both the parties free of costs. File be consigned to the record room after due compliance.
Announced in open court:
08.08.2023
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Nagender Singh Kadian, President
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Tripti Pannu, Member.
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Vijender Singh, Member.
