Haryana

Yamunanagar

CC/442/2010

Yasin Mohd.S/o Gulsher - Complainant(s)

Versus

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

S.S.Saini

25 Aug 2015

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, YAMUNA NAGAR

 

                                                                                             Complaint No. 442 of 2010.

                                                                                             Date of institution: 7.5.2010.

                                                                                             Date of decision: 25.8.2015.

Yasin Mohd. son of Shri Gulsher, resident of village Kheri, Post Office tilokpur, Tehsil Nahan, District Sirmour (H.P.).    

                                                                                                                                                                 …Complainant.

                                                                 Versus

 

1. IFFCO-TOKIO General Insurance Co. Ltd. Corporate Office: 6330 2^nd Floor above Dena Bank, Punjabi Mohalla Ambala Cantt.
2. IFFFCO TOKIO General Insurance Co. Ltd. Corporate Office: through Local Branch Manager, Khizrabad, District Yamuna Nagar.           

                                                                                                                                                                                                                                                                                                                                                    …opposite parties.

 

Before:            SH. ASHOK KUMAR GARG…………….. PRESIDENT.

                        SH. S.C.SHARMA………………………….MEMBER.

 

Present:  Sh. Surjeet Singh Saini, Advocate, counsel for complainant.   

                Sh. Karnesh Sharma, Advocate, counsel for OPs.         

             

ORDER

 

1.                     Complainant Sh. Yasin Mohd. has filed the present complaint under section 12 of the Consumer Protection Act. 1986, praying therein that respondents     ( hereinafter referred as OPs) be directed to settle the claim of the complainant to the tune of Rs. 26534/- on account of damage of his motorcycle and also to pay Rs. 50,000/- as compensation and Rs. 2200/- as litigation expenses.

2.                     Brief facts of the complaint, as alleged by the complainant, are that he had obtained insurance cover note bearing No. 37894350 valid from 16.12.2008 to 15.12.2009 for a sum insured of Rs. 33440/- in respect of his motor cycle bearing registration No. HP18B-0842 from OP No.2 through its Branch Office i.e. OP No.1 and paid a premium of Rs. 960/-. When on 15.10.2009 the complainant had gone to Kala Amb and reached near Ruchika Paper Mill Johron, Kala Amb and tried to cross a truck met with an accident with another motorcycle. Due to the accident, the motorcycle of the complainant was damaged and at the time of accident the motorcycle was being driven by one Surender Kumar servant of the complainant. The complainant lodged claim with the OPs company immediately and completed all the formalities. The complainant got his motorcycle repaired by spending a sum of Rs. 26534/-. However, the claim of the complainant was not settled by the OPs ultimately a letter dated 12.4.2010 was received by the complainant whereby the claim of the complainant was rejected on the ground that insured was driving the motorcycle in question himself and has no valid and effective driving license and intentionally manipulated a concocted story to produce another driving license for one Surender Kumar and introduced him as a driver of motorcycle at the time of accident and further on the ground that damages are manipulated and not consistent with nature of accident as stated. This ground of rejection put up by the OPs is wrong and against the factual position. So, there is a deficiency in service on the part of OPs. Hence this complaint.

3.                     Upon notice, OPs appeared and filed their written statement by taking some preliminary objection such as complaint not maintainable, non joinder and mis joinder of necessary parties, no locus standi and on merit it has been mentioned that insured was driving the motorcycle himself and has no valid and effective driving license and intentionally manipulated a concocted story to produce another driving license of one Sh. Surinder Kumar and introduced him as driver of Motorcycle at the time of accident.  Further, the damages are manipulated and not consistent with the nature of accident as stated. However, on receiving the intimation regarding the accident of the said motorcycle, the OPs immediately registered the claim and Mr. A.K.Chhatwal, Surveyor & Loss Assessor was deputed to assess the loss caused to the said motorcycle. Simultaneously, an investigator Mr. Surinder Kumar was also appointed for conducting the investigation in respect of alleged accident of motorcycle in question. The said investigator had submitted his investigation report dated 8.3.2010 with the opinion that no FIR or DDR was registered with the concerned police station regarding the alleged accident and the motorcycle in question was being driven by insured himself and he was not possessing valid and effective driving license at the time of alleged accident. And further mentioned in his report that insured has failed to disclose the exact place, date and time of the accident besides the registration number of the truck involved in the alleged accident. However, Sh. A.K.Chhatwal, Surveyor & Loss Assessor assessed the loss to the tune of Rs. 13065/- and his report is Annexure R-6. As the complainant himself was driving motorcycle without holding any valid driving license and has misrepresentation of the material facts and submission of misleading documents. Hence, the claim of the complainant was not payable and has been rightly repudiated and prayed for dismissal of complaint.

4.                     To prove his case, counsel for complainant tendered into evidence affidavit of complainant as Annexure CX and documents such as Photo copy of Repudiation Letter dated 12.4.2010 as Annexure C-1, Photo copy of Insurance Cover Note as Annexure C-2, Photocopies of bills of repair as Annexure C-3 to C-5, Photo copy of Registration Certificate as Annexure C-6 and Photo copy of driving license of Surender Kumar as Annexure C-7 and closed the evidence on behalf of complainant.

5.                                 On the other hand, counsel for the OP tendered into evidence affidavit of Sh. Rajeev Chaudhary, Assistant Vice President, IFFCO TOKIO Gen. Ins. Co. as Annexure RX, Affidavit of Sh. A.K.Chhatwal, (Automobile Engineer) Surveyor & Loss Assessor as Annexure RY and affidavit of Sh. Surinder Kumar, Investigator as Annexure RZ and documents such as Photo copy of repudiation letter dated 12.4.2010 as Annexure R-1, Photo copy of Investigator report Sh. Surinder Kumar as Annexure R-2,  Photo copy of statement of Yasin Mohd. as Annexure R-3, Photo copy of statement of Surender Kumar as Annexure R-4, Photo copy of statement of Sh. Salesman of M/s Kamal Automobile as Annexure R-5,  Photo copy of Surveyor Report of A.K.Chhatwal as Annexure R-6 and closed the evidence on behalf of OPs.. 

6.                     We have heard the learned counsel for the complainant and have gone through the pleadings as well as documents placed on the file carefully and minutely. The counsel for the complainant reiterated the averments mentioned in the complaint and prayed for its acceptance whereas the counsel for the opposite parties reiterated the averments made in the reply and prayed for its dismissal.

7.                      It is admitted fact that the complainant is registered owner of motorcycle bearing registration No. HP18B-0842 which was insured with the OPs vide cover note bearing No. 37894350 valid from 16.12.2008 to 15.12.2009 for a sum of Rs. 33.440/-(Annexure C-2). It is further not disputed that surveyor and loss assessor A.K.Chhatwal was deputed and Rs. 13065/- was assessed on “Net Loss on Repair Basis” after applying the relevant depreciation clause and subject to terms and conditions of the insurance policy in question as Annex. R-6.

8.                     Learned counsel for the complainant argued that when the complainant and his friend Surender Kumar were going towards Kale Amb and reaching near Ruchika Paper Mills and tried to cross the truck then the motorcycle met with an accident with the another motorcycle which was coming from front side. At that time, the motorcycle in question was being driven by Sh. Surender Kumar and complainant was pillion rider and due to this accident, motorcycle of the complainant was badly damaged and he has spent a sum of Rs. 26534/- on the repair of Motorcycle which is evident from the bills of repair Annexure C-3 to C-5. The complainant lodged his claim with the OPs, but the OPs failed to settle the claim of complainant despite many requests and ultimately has wrongly repudiated the claim of the complainant on the false and flimsy ground and lastly prayed for acceptance of complaint.

9.                     On the other hand, counsel for the OPs hotly argued that at the time of alleged accident, insured himself was driving the motorcycle in question but he was not having any valid and effective driving license. Learned counsel for the Ops further argued that the complainant has manipulated a false story that Sh. Surinder Kumar was driving the motorcycle at the time of accident and produced his driving license. Learned counsel for the OPs further argued that the complainant has wrongly claimed a sum of Rs. 26534/- whereas Mr. A.K.Chhatwal was appointed as Surveyor, who assessed the net loss to the tune of Rs. 13065/- after applying the relevant depreciation clause and subject to terms and conditions of the insurance policy in question as per his report Annex. R-6.

10                    The plea taken by the OPs that the complainant was driving motorcycle at the time of accident and he produced the driving license of one Mr. Surender Kumar is not tenable because the investigator Sh. Surinder Kumar has recorded the statement of Yasin Mohd. complainant as well as Surender Kumar driver and he put 17 and 15 questions to them respectively and in the statement of Yasin Mohd., the investigator put the question No.6 that who was driving the motorcycle at the time of accident, the insured stated that his friend Surender Kumar was driving the motorcycle at the time of accident and he was pillion rider. Moreover, from the perusal of report of investigator as well as statement of complainant and Surender Kumar driver, it does not prove that Sh. Surender Kumar was not driving the motorcycle in question at the time of accident.

11.                   The plea of the OPs that complainant has not disclosed the exact place, date, time of alleged accident has also no force because the complainant has specifically disclosed these things in the statement recorded by investigator R-3. Further learned counsel for the OPs failed to convince us in what manner the damages are manipulated and not consistent with the nature of accident when the Surveyor & Loss Assessor Sh. A.K.Chhatwal has not given any adverse remarks regarding this in his report and in the absence of any adverse remarks it cannot be presumed that the damages are manipulated one. Hence, after going through the above noted facts, we are of the considered view that OPs have wrongly repudiate the claim of the complainant.

12.                   Now second question is that what amount is payable to the complainant on account of damages to motorcycle. Learned counsel for the complainant argued that complainant has spent Rs. 26534/- on the repair of motorcycle but the opposite parties have assessed the loss as Rs. 13065/- only.  The contention of the complainant that he has spent Rs. 26534/- on repair of the motorcycle is not tenable to our mind as it is settled proposition of the law that credence should be given to the surveyor report and the complainant also failed to point out any discrepancy or ambiguity in the surveyor report. The complainant failed to file any report of expert/ surveyor to prove the amount of Rs. 26534/- whereas OPs has filed surveyor report Annexure R-6 from which it is clear that there was loss to the tune of Rs. 13065/-. The OPs also failed to point out any violation of terms and conditions of the insurance policy, even the OPs failed to file any insurance policy with its terms and conditions.

13.                   Consequently, keeping in view the above noted facts, this Forum is of the considered opinion that opposite parties have wrongly repudiated the claim of the complainant on false ground which amounts to deficiency in service on the part of OPs.  

14.                   Hence, we partly allow this complaint and direct the opposite parties to pay Rs. 13065/- to the complainant, as assessed by the surveyor on net loss basis alongwith simple interest at the rate of 7% per annum from the date of filing of complaint till realization and also to pay a sum of Rs. 2000/- as compensation and Rs. 1000/- as litigation expenses. Order be complied within 30 days from the date of decision failing which complainant shall be entitled to invoke the jurisdiction of this Forum as per law. 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.25.8.2015.                  

                                                                                    (ASHOK KUMAR GARG )

                                                                                    PRESIDENT,

                                                                                     

 

                                                                                    (S.C.SHARMA )

                                                                                     MEMBER.