DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION-II

Udyog Sadan, C-22 & 23, Qutub Institutional Area

(Behind Qutub Hotel), New Delhi- 110016

Case No.174/2022

Nirmaljeet Kaur

W/o Lt. Sh. Manjeet Singh

R/o A-4/12, Bhajan Pura, Delhi-110053

….Complainant

Versus

Iffco Tokio General Insurance Company Ltd.

Regd. Office at: Iffco Sadan, C-1,

District Centre, Saket, Delhi-110017

       ….Opposite Party

 Date of Institution    : 01.07.2022      

 Date of Order            : 16.07.2024  

Coram:

Ms. Monika A Srivastava, President

Ms. Kiran Kaushal, Member

Present: Adv. Dheeraj Jagwani along with complainant.

               Adv. V. Prabhakar for OP.

ORDER

Member: Ms. Kiran Kaushal

1.       Facts of the case as stated by the complainant are that complainant purchased a Motor Vehicle Policy for his vehicle, for a period of 03.03.2019 to 02.03.2022 from Iffco Tokio General Insurance Company Ltd., hereinafter referred to as OP.

2.       It is stated that complainant’s vehicle was being driven by her brother-in-law Sh. Surjit Singh on 18.07.2019 and at around 3.30 AM, the truck carrying a load of Apple and Mangoes met with an accident with a parked trailer near Hariya Toll Plaza. Complainant on the very same day raised a claim with OP and spot survey was done.

3.       It is stated that complainant again requested to arrange for final survey of the vehicle on 26.07.2019. However, the final survey was conducted on 30.07.2019 by AK Engineers, GKP but the claim of the complainant was never settled by the OP. Meanwhile, complainant and the driver have also given their statement on affidavit as required by OP. It is stated that complainant’s claim was repudiated vide letter dated 09.03.2020 stating that the investigator contacted Jitu, the helper on phone, who confirmed that the vehicle was driven by a person called Mr. Sukhvir and not Mr. Surjit . OP further states that they have taken the statement of Mr. Sukhvir, his wife and the village Gram Pradhan who confirmed that Mr. Sukhvir was driving the vehicle at the time of accident and basis this fact OP has repudiated the claim of the complainant.

4.       Aggrieved by the circumstances above, complainant prays for directions to OP to pay the value of the vehicle amounting to Rs.12,60,000/-; damages suffered due to non settlement of claim amounting to Rs.2,00,000/- and Rs.5,00,000/- for physical and mental harassment, totaling to Rs. 19,60,000/- with interest @18% p.a.

5.       OP resisted the complaint stating inter alia that pursuant to the accident of complainant’s vehicle on 18.07.2019, OP appointed an investigator who submitted his report on 11.11.2019 to OP wherein the claim of the complainant was not found ‘admissible but final decision was to lie at insurers end’.

6.       It is stated that based on the spot survey report, investigation report and documents, it was observed that the supposed driver (Mr. Surjit), brother-in-law of the complainant and the ‘Cleaner’ ran away from the spot whereas insured’s husband was present on the spot and there was no third party liability/damage arising out accident as per the insured affidavit.  Later on, the investigator met the helper Mr. Jitu who confirmed that the said vehicle was being driven by one Mr. Sukhvir and not Mr. Surjit . Mr. Sukhvir in his written statement also submits that he was driving the vehicle and his driving licence got burnt during the accident.

7.       On the basis of documents gathered by the investigator including voice call record of Mr. Jitu (Helper) and statement of driver (Mr. Sukhvir), it was clear that the complainant had hidden material facts and had implanted another driver in place of the original driver and did not assist the process of the claim on its merits. Hence, the claim was repudiated as no claim vide letter dated 05.02.2020 on the basis of mis-representation of facts and violation of Condition no.1 of the Policy.

8.       It is further stated that complaint is not maintainable being commercial in nature. It is thus prayed that complaint be dismissed with costs.

9.       Rejoinder has been filed on behalf of complainant wherein most of the averments made by OP have been denied but it is stated that the report of the investigator on spot was inconclusive that is why OP had appointed another surveyor on 04.12.2019.  Evidence and written arguments have been filed on behalf of the parties. Submissions made on behalf of the Learned counsels of parties are heard. Material placed on record is perused.

10.     It is pertinent to decide the issue of maintainability  first. OP’s objection that the complaint is commercial in nature is rejected as the complainant has engaged OPs services to get his vehicle insured. Hence, OP is a service provider qua whom the complaint case is maintainable.

11.     Admittedly, complainant’s vehicle was insured with OP which met with an accident on 18.07.2019. OP got  complainant’s case investigated from three surveyors. First surveyor was assigned the case on 25.10.2019 and a report regarding the same was filed on 11.11.2019 stating that the ‘case seems not admissible but final decision lies at insurers end’. OP finally repudiated claim of the complainant on 09.03.2020 stating that ‘the complainant had concealed the material fact and had implanted another driver in place of the actual driver at the time of the accident’.

12.     OP on the basis of the documents gathered by the investigator including voice call recording of the helper Mr. Jitu, statement of the driver, Mr. Sukhvir Singh and village Pradhan had concluded that it was Mr. Sukhvir Singh who was driving the truck at the time accident and not Mr. Surjit Singh (brother-in-law of the complainant) However, the voice call recording, statement of Mr. Sukhvir Singh as well as the village Pradhan have not been placed on record to ascertain the fact that it was Mr. Sukhvir Singh who was driving the vehicle at the time of accident.

13.     It is also noticed that the investigator on whose investigation the claim has been rejected was appointed after about 5-6 months of the accident. Whereas, complainant has filed the General Diary entry dated 19.07.2019 (day after the accident) which records that it was Mr. Surjit Singh who was driving the vehicle.  Since, there was no major injury caused to anyone, no FIR was filed. But as per the investigation report ,fire brigade station confirmed that the vehicle got burnt, the incident is genuine and no causality took place in the said accident.

14.     In  National Insurance Co. Ltd. vs M/S Hareshwar Enterprises (P) Ltd. on 18 August, 2021 Hon’ble  Supreme Court Top of Form

 Bottom of Form

Bottom of Form

has referred to the decision in the case,  New India Assurance Company Limited vs. Pradeep Kumar (2009) 7 SCC 787 wherein it is held that -

“ In other words although the assessment of loss by the approved surveyor is a pre- requisite for payment or settlement of claim of twenty thousand rupees or more by insurer, but 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.     From the facts stated above this Commission is of the opinion that OP cannot reject the  claim of the complainant only on the basis that another person was driving the vehicle at the time of accident that too without substantiating the same . It is not denied that the complainant’s vehicle met with an accident and got burnt on 18.07.2019.

16.     In light of the discussion above and the judgement supra, OP is directed to  pay the IDV of the vehicle i.e Rs. 12,60,000/- with interest @6% p.a from the date of rejection of the complaint i.e 09.03.2020 within 03 months from the date of order, failing which OP shall be liable to pay the above stated amount @9% p.a till realization.

Parties be provided copy of the judgment as per rules. File be consigned to the record room. Order be uploaded on the website.