Haryana

Karnal

CC/244/2020

Smt. Savita Chawla - Complainant(s)

Versus

Iffco Tokio General Insurance Company Limited - Opp.Party(s)

S.S. Moonak

15 Sep 2023

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, KARNAL.

                                                        Complaint No. 244 of 2020

                                                        Date of instt.13.07.2020

                                                        Date of Decision:15.09.2023

 

Smt. Savita Chawla, aged 44 years, wife of Shri Manoj Kumar, resident of house no.1806, main Bazar, near Attar Dairy, Kunjpura District Karnal. Aadhar no.8310 3072 5991. Mobile no.9992171384.

 

                                               …….Complainant.

                                              Versus

 

Iffco Tokio General Insurance Company Limited, through its Branch Manager, Hafed Building, Karnal. (Insurer of car no.HR-51-AV-6162.

 

                                                                ……Opposite party.

 

Complaint Under Section 12 of the Consumer Protection Act, 1986 and after amendment Under Section 35 of Consumer Protection Act, 2019.

 

Before   Sh. Jaswant Singh……President.       

      Sh. Vineet Kaushik…….Member

              Dr. Rekha Chaudhary…..Member

          

 Argued by: Shri S.S. Moonak, counsel for complainant.

Shri Rohit Gupta, counsel for the OP.

 

                    (Dr. Rekha Chaudhary, Member)

ORDER:   

                

                   The complainant has filed the present complaint Under Section 12 of the Consumer Protection Act, 1986 as after amendment Under Section 35 of Consumer Protection Act, 2019 against the opposite party (hereinafter referred to as ‘OP’) on the averments that complainant is the registered owner of car bearing no.HR-51/AV-6162 and the same was insured with the OP, vide policy no.M2693915, valid from 24.08.2018 to 23.08.2019. The policy was comprehensive/package. The insured declared value (IDV) of the vehicle was Rs.3,43,000/- with Zero dept. On 29.05.2019, the husband of complainant was going from village Kunjpura to village Chundipur, District Karnal to visit his agriculture fields there. At about 8.15 p.m. Manoj Kumar was driving the said car with all care and caution and observing all the traffic rule, when he reached within the area of village Dabaraki Kalan, in the meanwhile a stray cow all of a sudden violently came in front of the car, in order to save the cow, the car struck against the truck which was coming from opposite side and thereafter the car was pushed back and then hit against the roadside safeda trees, the car was damaged extensively in this accident. The matter was reported to the local police and DDR no.19 dated 30.05.2019 was recorded in this regard with the Police Station Kunjpura, District Karnal. The car was brought to Karnal with the help of crane in the workshop of M/s Karnal Motors, G.T. Road, Karnal for its necessary survey, preparing of estimate etc. The complainant informed the OP regarding the said accident and damage of the car. All the relevant documents, claim form was submitted to the office of OP as demanded by them. The survey was conducted by the surveyor. After preparing the survey report, the OP did not pay any amount despite several repeated requests and visits. However, a letter dated 19.02.2020 was received by the complainant from the OP wherein the claim of the complainant has been repudiated without any cogent reason. In this way there is deficiency in service and unfair trade practice on the part of the OP. Hence this complaint.

2.             On notice, OP appeared and filed its written version raising preliminary objections with regard to maintainability; locus standi; jurisdiction and concealment of true and material facts. On merits, it is pleaded that OP has vide private car certificate of insurance-cum-schedule tax invoice bearing policy no.M2693915 insured vehicle Maruti Swift VXI 1197CC bearing registration no.HR51AV6162 for the period from 24.08.2018 to 23.08.2019 in the name of the complainant. The complainant had intimated a claim on dated 31.05.2019 with OP on account of alleged loss/damage of vehicle and the same had been registered. The said claim of the complainant has been duly processed by OP by way of appointment of an IRDA approved independent surveyor and loss assessor Mr. Mahesh Kalra for conducting the survey and assessment of loss of vehicle, who had conducted the survey, assessed the loss and submitted Motor final Survey Report amounting to Rs.2,04,000/- on net of salvage basis. An independent investigator M/s Karnal Associates was also appointed to investigate into the claim seeing the complexity of the claim.

i)      As per the survey report of Mr. Mahesh Kalra and investigation report of Karnal Associates the damages sustained to the vehicle are not relevant with the cause of loss. For a thorough survey the claim was referred to Dr. Rajesh Kumar Koshal, Retired Deputy Director of Forensic Science Laboratory, Madhuban Karnal who concluded that “that nature and type of damage on front side of car did not tally with the front shape of a dumper and the damage expected from the hit of such a heavy vehicle”.

ii)     Further, the vehicle produced in the pre-inspection is different from the vehicle surveyed by the surveyor. Hence, the claim was closed on the grounds of misrepresentation and concealment of material facts. A detailed letter to this effect has already been sent to the complainant on 19.02.2020.

 

There is no deficiency in service on the part of the OP. The other allegations made in the complaint have been denied and prayed for dismissal of the complaint.

3.             Parties then led their respective evidence.

4.             Learned counsel for complainant has tendered into evidence affidavit of complainant Ex.CW1/A, affidavit of Iqbal Singh Arora, Surveyor and Loss Assessor Ex.CW2/A, copy of survey report Ex.C1, copy of receipt Ex.C2, copy of RC Ex.C3, copy of insurance policy Ex.C4, copy of DDR Ex.C5, copy of driving licence of Manoj Ex.C6, copy of repudiation letter Ex.C7 and closed the evidence on 16.07.2021 by suffering separate statement.

5.             On the other hand, learned counsel for the OP has tendered into evidence affidavit of Devendra Kumar, General Manager Ex.OP1/A, affidavit of Mahesh Kalra, Surveyor and Loss Asessor Ex.OP2/B, affidavit of Balbir Singh Virk partner of M/s Karnal Associates, Investigating and Detective Agency Ex.OP2/C, affidavit of Dr. Rajesh Kumar Koshal (Ballistics expert) Ex.OP2/D, copy of insurance policy Ex.OP1, copy of motor final survey report Ex.OP2, copy of investigation report Ex.OP3, copy of examination report Ex.OP4, copy of inspection report Ex.OP5, copy of letter dated 19.02.2020 Ex.OP6 and closed the evidence on 06.06.2022 by suffering separate statement.

6.             We have heard the learned counsel of the parties and perused the case file carefully and have also gone through the evidence led by the parties.

7.             Learned counsel for complainant, while reiterating the contents of the complaint, has vehemently argued that complainant got insured his car with the OP. The insured declared value (IDV) of the vehicle was Rs.3,43,000/-. On 29.05.2019, said car met with an accident and was damaged extensively. The matter was reported to the police and DDR no.19 dated 30.05.2019 was recorded in the Police Station Kunjpura, District Karnal. The car was brought to the workshop of M/s Karnal Motors, G.T. Road, Karnal through crane. The intimation was given to the OP. The survey was conducted by the surveyor. Complainant submitted all the documents with the OP as well as to the surveyor for settlement of the claim, but OP did not pay any claim despite several repeated requests and visits  and lastly repudiated the claim of complainant, vide letter dated 19.02.2020 on the false and frivolous ground and prayed for allowing the complaint.  Learned counsel for complainant relied upon the case laws titled as Rahul Khosla Vs. National Insurance Co. Ltd. IV(2018) CPJ 330 (NC); Om Parkash Vs. Reliance General Insurance & Anr. IV(2017) CPJ 10 (SC); Kamlesh Vs. Shriram General Insurance Co.Ltd. 2020 ACJ 302; Amalendu Sahoo Vs. Oriental Insurance Co. Ltd. II (2010) CPJ 9(SC); Bharti AXA General Insurance Co. Ltd. Vs. Naseem Akhtar II (2020) CPJ 68 (UT Chandigarh) and Saurashtra Chemicals Ltd. Vs. National Insurance Co. Ltd. in Civil Appeal no.2059 of 2015, date of decision 13.12.2019 of Hon’ble Supreme Court.

8.             Per contra, learned counsel for the OP, while reiterating the contents of written version, has vehemently argued that  complainant had intimated a claim on dated 31.05.2019 with OP on account of alleged loss/damage of vehicle and on receipt of claim intimation, OP appointed an independent surveyor and loss assessor for conducting the survey and assessment of loss of vehicle. The surveyor has assessed the loss to the tune of Rs.2,04,000/- on net of salvage basis. The claim of the complainant was repudiated by the OP on the grounds of misrepresentation and concealment of material facts and lastly prayed for dismissal of the complaint.

9.             Admittedly, complainant got insured his car with the OP. It is also admitted that the said car of complainant met with an accident during the substance of the insurance policy. It is also admitted that the insured declared value of the vehicle in question is Rs.3,43,000/-.

10.           The claim of the complainant has been repudiated by the OP, vide repudiation letter Ex.C7/Ex.OP6 dated 19.02.2020 on the on the following grounds:-

                x               x             x             

“From the above observations, it is clear that you have failed to establish loss particulars beyond doubt rather you have produced a different vehicle at the time of pre-inspection and tried to make wrongful gain out of claim by giving incorrect loss particulars. This conclusion is further support by the mismatch/discrepancies observed in vehicle photo of preinspection and damaged vehicle at the time of survey. Therefore, the reported loss is being repudiated under  following terms and conditions of the policy and closed as “No Claim”.

11.            The vehicle of the complainant has been got damaged in an accident during the subsistence of the insurance policy. The intimation regarding the accident was given to the OP by the complainant. Firstly, the OP got appointed a surveyor namely Shri Mahesh Kalra, Surveyor and Loss Assessor, thereafter, Shri Balbir Singh Virk, Partner of M/s Karnal Associates, Investigating and Detective Agencies and finally Dr.Rajesh Kumar Koshal (Ballistics expert) Retired Deputy Director FSL (H), Madhuban, Karnal.

12.           Shri Mahesh Kalra, Surveyor and Loss Assessor had assessed the loss of Rs.2,04,000/-. The matter was again got investigated through Shri Balbir Singh Virk, Investigator and he submitted his report Ex.OP3 dated 30.01.2020. The matter was also got investigated  through Dr.Rajesh Kumar Koshal, (Ballistics Expert) Retired Deputy Director, FSL (H), Madhuban, Karnal, who has submitted his report Ex.OP4 dated 23.01.2020.

13.           In the report Ex.OP4, Dr.Rajesh Kumar Koshal, has specifically mentioned that on inspection the place of occurrence on 16.12.2019 i.e. after more than six months, light pieces and other plastic pieces were found near the tree and dent marks were also present on the tree which shows that the vehicle might have collided with the same tree at that place. At the time of inspection, Balbir Singh Virk, Investigator was also accompanied with him. From the observation of Dr. Rajesh Kumar, Koshal and Balbir Singh Virk, Investigator, it has been proved that the vehicle of the complainant had got damaged did not tally with cause of accident after the expiry of so long period.  In this regard, we rely upon the case law titled as Naseem Akhtar’s case (supra) wherein Hon’ble State Consumer Disputes Redressal Commission, Chandigarh, has held that Claim repudiated on the ground that there were few discrepancies in happening of events as narrated by the complainant qua damage occurred to insured vehicle. OP should curtail its practice of rejecting claims on flimsy grounds and should appreciate the true facts on record on humanitarian grounds. At the time of taking hefty premiums and issuing policies, rosy pictures are always shown and tall claims made and assurance are always given to subscribers of such policies that in case of any kind of loss or damage to vehicle, losses will be indemnified on filing claims thereof but in actuality, no such thing happens. Faith reposed by petty consumers should not be broken.

14.           If for the sake of gravity, if it is presumed that complainant has violated the terms and conditions of the insurance policy, in that eventuality, the claim of the complainant cannot be repudiated in toto.  In this regard, we can relied upon the case laws cited in Revision Petition no.1870 of 2015(NC) decided on 14.08.2018 titled as New India Assurance Co. Ltd. Versus Thirath Singh Brar and authority of our own Hon’ble State Commission in First Appeal no.717 of 2016 decided on 6.4.2017 titled as United India Insurance Company Limited and others Versus Anshul Bansal.  In both judgments it was held that in case of any breach of warranty/condition of the policy the insurer is liable to pay 75% of admissible claim on non-standard basis.

15.           Further,  Hon’ble Punjab and Haryana High Court in case titled as New India Assurance Company Ltd. Versus Smt. Usha Yadav & others 2008 (3) RCR (Civil) 111, has held as under:-

“It seems that the Insurance Companies are only interested in earning the premiums which are rather too stiff now a days, but are not keen and are found to be evasive to discharge their liability. In large number of cases, the Insurance companies make the effected people to fight for getting their genuine claims. The Insurance Companies in such cases rely upon clauses of the agreements, which a person is generally made to sign on dotted lines at the time of obtaining policy. This is, thus pressed into service to either repudiate the claim or to reject the same. The Insurance Companies normally build their case on such clauses of the policy, but would adopt methods which would not be governed by the strict conditions contained in the policy”.

16.           Keeping in view the ratio of the law laid down in the abovesaid judgments and the facts and circumstances of the present complaint, we are of the considered view that the act of the OP amounts to deficiency in service and unfair trade practice while repudiating the claim of the complainant in toto. Hence, complainant is entitled to get 75% only of the admissible claim on non-standard basis.                    

17.                 The vehicle in question also got surveyed by Iqbal Singh Surveyor and he submitted his report Ex.C1, dated 12.07.2019 as per said report the net payable loss Rs.2,22,000/- and on the other hand, Shri Mahesh Kalra, Surveyor and Loss Assessor of OP had assessed the loss to the tune of Rs.2,04,000/- on net of salvage basis. The IDV value of the vehicle in question Rs.3,43,000/-. The loss assessed by both the surveyors is less than the 75% of the IDV value. Hence, the vehicle in question does not fall in the category of total loss. The loss assessed by both the surveyors is on the basis of damaged cause to the vehicle in the accident. We cannot deny the loss assessed by both the surveyors but both the surveyor has assessed different amount. So, in order to avoid the complication relating the amount for which complainant is entitled, it would be justified if the mid amount assessed by both the surveyor is to be granted. Thus, the complainant is entitled for Rs.2,13,000/- (Rs.2,22,000+2,04,000, total Rs.4,26,000/2=2,13,000).

 18.          Hence, in view of the above, complainant is entitled for Rs.1,59,750 /- i.e. 75% of the Rs.2,13,000/- alongwith interest, compensation for mental pain, agony and harassment and towards litigation expenses etc.

19.           In view of the above discussion, we partly allow the present complaint and direct the OP to pay Rs.1,59,750/- (Rs.one lakh fifty nine thousand seven hundred fifty only) to the complainant alongwith interest @ 9% per annum from the date of repudiation of the claim i.e. 19.02.2020 till its realization. We further direct the OP to pay Rs.20,000/- to the complainant on account of mental agony and harassment suffered by him and Rs.11,000/- for the litigation expenses. This order shall be complied within 45 days from the receipt of copy of this order. The parties concerned be communicated of the order accordingly and the file be consigned to the record room after due compliance.

Announced

Dated:15.09.2023     

                                                                  President,

                                                       District Consumer Disputes

                                                       Redressal Commission, Karnal.

 

(Vineet Kaushik)        (Dr. Rekha Chaudhary)

                     Member                        Member