Haryana

Karnal

CC/203/2020

Sushil Kumar Bindal - Complainant(s)

Versus

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

Sudhakar Mittal

23 Feb 2023

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, KARNAL.

 

                                                        Complaint No.203 of 2020

                                                        Date of instt.09.06.2020

                                                        Date of Decision:23.02.2023

 

Sushil Kumar Bindal son of Shri Ram Kumar, aged 48 years, resident of house no.332, Old housing Board Colony, Sector-13, Urban Estate, Karnal (Hr)-132001. Aadhar card no.2632 8954 5042.

 

                                                 …….Complainant.

                                              Versus

 

IFFCO TOKIO General Insurance Company limited, through Toyota Tsusho Insurance Broker India Pvt. Ltd. c/o Global Toyota, opposite PTC NH-1, Madhuban, Karnal (HR), Pin-132117.

 

                                                                      …..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 Deepak Gupta, counsel for the complainant.

                    Shri Naveen Khetarpal, counsel for the OP.

 

                    (Jaswant Singh President)

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 ‘OPs’) on the averments that complainant got insured his vehicle bearing registration no.HR-01-AP-7073 with the OP, vide insurance policy no.TIT91843294, commencing from 04.08.2019 to 03.08.2020. The vehicle was comprehensively insured by the OP. On 13.12.2019, when complainant was coming back to Karnal from Chandigarh and reached near Bharat Petrol Pump, six K.M.away from Globe Tractor, Ambala, the vehicle met with an accident and both left side tyre of the vehicle were damaged by strucking against the divider of the road. Since the vehicle was fully insured by the OP, the complainant contacted telephonically Globe tractor, Ambala where Dinesh picked up the call and advised the complainant to tow chain the vehicle to Karnal and to lodge his claim under the insurance policy. the complainant got his vehicle tow chain to Global Toyata, Karnal by making payment of Rs.3500/- to Kaka Crane Services, Karnal. The claim was registered under claim no.CLM9184394/374022. OP while processing the claim deputed Shri J.K. Sharma, Surveyor and Loss Assessor to assess the loss of the vehicle. The estimate of the losses was prepared in the workshop of M/s Global Toyota. All the documents as desired by the surveyor were handed over to him. After going through the documents and inspection of the vehicle, the surveyor submitted his report before the OP, which was never disclosed to the complainant despite of repeated requests of the complainant. The complainant received an email dated 16.01.2020, from Shri J.K. Sharma, Surveyor by which the claim of the complainant was repudiated as not maintainable. OP repudiated the claim of the complainant without assigning any reason or opportunity of hearing. OP is liable to make the payment of damages to the tune of Rs.48291/- paid by him to Global Toyota for getting his vehicle repaired. The complainant is also entitled for the sum of Rs.3500/- paid by him to Kaka Crane Service. 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 and concealment of true and material facts. On merits, it is pleaded that on receipt of intimation from insured/owner regarding loss of vehicle, OP appointed an IRDA approve surveyor and loss assessor Mr. J.K. Sharma and further Mr. Chhatwal and Associates, appointed to investigate into the matter and survey of loss location. They both submitted their respective reports to the OP. As per the claim form submitted by the insured/complainant it has been mentioned that vehicle hit with road side slabs and tyres damaged. The damages reported are both left tyres and wheels but as per spot survey and physical observation of the spot, it is found that the elevation of pavement is only 3 inches and any movement of the vehicle on the pavement or impact of the vehicle with pavement will not damage the wheels on both the sides to the extent reported in the claim. The physical examination of the spot of the accident ruled out the reported damages and the site of accident as reported by insured could not be established.  It is further pleaded that complainant has concealed the true facts regarding the loss suffered by him, which amounts to gross violation of condition no.8 of terms and conditions of the policy, which as under:-

“The due observance and fulfillment of the terms, conditions and endorsement of this policy is so far as they relate to anything to be done or complied with by the insured and the truth of statements and answers in the said proposal shall be conditions precedent to any liability of the company to make any payment under the policy”.

By hiding the true facts, complainant breached the declaration given by him and has violated the terms and conditions of the policy, so claim of the complainant being not maintainable, is repudiated by the OP, vide letter dated 20.02.2020 and same is intimated to insured. There is no deficiency in service and unfair trade practice 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 the complainant has tendered into evidence his affidavit Ex.CW1/A, affidavit of Bhupesh Kumar Bindal Ex.CW2/A, copy of payment receipt of Rs.48291/- Ex.C1, copy of gate pass dated 18.01.2020 Ex.C2, copy of email dated 16.01.2020 from J.K. Sharma surveyor Ex.C3, copy of bill dated 12.10.2019 Ex.C4, copy of claim status detail generated on 17.12.2019 Ex.C5, copy of Motor Claim Form Ex.C6, copy of discharge-cum-settlement voucher Ex.C7, copy of general insurance policy Ex.C8, copy of driving licence of Bhupesh Gupta Ex.C9 and Ex.C9(A), copy of registration certificate Ex.C10 and Ex.C10A, copy of driving licence of Sushil Bindal Ex.C11, copy of PAN card of Sushil Bindal Ex.C12, copy of tax invoice of Rs.48,291/- Ex.C13, copy of Aadhar card of Sushil Bindal Ex.C14, copy of estimate dated 14.12.2019 Ex.C15 and closed the evidence on 10.06.2021 by suffering separate statement.

5.             On the other hand, learned counsel for the OP has tendered into evidence affidavit of Hardeep Singh, Deputy General Manager Ex.RW1/A, affidavit of J.K. Sharma, independent surveyor Ex.RW2/A, affidavit of Ashok Kumar, independent surveyor Ex.RW3/A, copy of Motor Final Survey report Ex.R1, copy of Motor Final Survey Report Ex.R2, copy of claim form Ex.R3, copy of insurance policy Ex.R4, copy of repudiation letter dated 20.02.2020 Ex.R5 and closed the evidence on 27.09.2022 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 complainant got insured his vehicle from the OP. On 13.12.2019 the vehicle of complainant met with an accident and both left side tyres and wheels of the vehicle were damaged. Intimation was given to the OP.  Complainant spent Rs.48291/- on the repair of his vehicle.  The claim was registered with the OP. On receipt of intimation, OP deputed Shri J.K. Sharma, Surveyor and Loss Assessor to assess the loss of the vehicle. The claim of the complainant has been repudiated by the OP on the false and frivolous ground and lastly prayed for allowing the complaint.

8.             Per contra, learned counsel for the OP, while reiterating the contents of written version, has vehemently argued that on receipt of intimation regarding loss of vehicle, OP appointed an IRDA approved surveyor and loss assessor Mr. J.K. Sharma and further Mr. Chhatwal and Associates to investigate the matter. They both submitted their respective reports to the OP. As per spot survey and physical observation of the spot, the vehicle was damaged and the site of accident as reported by insured could not be established. By concealing the true facts, complainant has violated the terms and conditions of the policy, so claim of the complainant was rightly repudiated by the OP, vide letter dated 20.02.2020 and prayed for dismissal of the complaint.

9.             We have duly considered the rival contentions of the parties.

10.           Admittedly, the vehicle in question met with an accident during the subsistence of the insurance policy.

11.           The claim of the complainant has been repudiated by the OP, vide repudiation letter Ex.R5 dated 20.02.2020, which reproduced as under:-

“As per the physical observation of the spot, it was found that the elevation of pavement is only 3 inches and any movement of the vehicle on the pavement or impact of the vehicle with pavement will not damage the wheels on both the sides to the extent reported in the claim.

You would appreciate that claim is admissible under policy terms and condition only when the loss particulars provided by you are found to be established beyond doubt.

However, the physical examination of the spot of the accident by a technically competent and authorized surveyor has ruled out the reported damages.

We bring to your notice the declaration signed by you in the claim form, which is as follows:-

“I/we the above named, do hereby, to the best of my/our knowledge and belief, warrant the truth of the foregoing statements in every respect and agree that if I/we have made any false or fraudulent statement or there be any suppression or concealment of facts, the claim shall be forfeited”.

Condition no.8 “The due observance and fulfillment of the terms, conditions and endorsement of this policy is so far as they relate to anything to be done or complied with by the insured and the truth of statements and answers in the said proposal shall be conditions precedent to any liability of the company to make any payment under the policy”.

By hiding the facts, you have clearly breached the above declaration and have thus forfeited your right to recover any indemnity for this alleged loss from us.

Therefore, we regret our inability to entertain the said claim and are closing the said file as “No Claim”.

 

12.           The claim of the complainant has been repudiated by the OP the grounds mentioned in the abovesaid repudiation letter but OP has miserably failed to prove the same by leading any cogent and convincing evidence. Rather, to prove his case, complainant has relied upon the receipt Ex.C1 dated 18.01.2020 issued by Globe Toytota for payment of Rs.48291/-, which clearly shows that the complainant has

13.           Admittedly, accident took place at the night hours and there were rains at that time. The claim of the complainant has been repudiated by the OP on the basis of survey and investigation report. The surveyor has observed that the pavement is only three inches and any movement of the vehicle on pavement or impact of vehicle with pavement will not damage the wheel on both sides. On perusal of photographs of the tyres and wheels in question, it is proved that the tyres and wheels were badly damaged in the said accident. It appears that the surveyor and investigator has prepared that reports on presumption and assumption, which is not permissible in the eyes of law.  The surveyor’s report in this regard is thus arbitrary, unjustified, biased, based on presumptions and assumptions and it cannot be the last word for the determination of actual loss. In this regard, we are also fortified from the judgment of the Hon’ble Supreme Court of India in case titled as New India Assurance Company Limited vs. Pradeep Kumar (2009 (6) SCALE, 253) wherein it was held that “The surveyor’s report is not the last and final word. It is not that sacrosanct that it cannot be debarred 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.” This proposition of law was followed by the Hon’ble Apex Court in Sikka Papers Limited vs. National Insurance Company Ltd. & Ors. (III (2009) CPJ 90 (SC). The Hon’ble Chhatisgarh State Consumer Disputes Redressal Commission, Raipur in case titled as Oriental Insurance Co. Ltd. & Anr. Versus Pukhraj Bothra, IV (2004) CPJ 615 has held that “it is true that normally the estimate of surveyor regarding loss has to be given due consideration but it cannot be said to be the last word for determination of actual loss”. The above said authorities are fully applicable to the facts and circumstances of the present case. In the present case, we are also of the considered opinion that the surveyors have given their opinion for favoring the OP and therefore same cannot be given more weightage. Rather it is proved on record, that the vehicle in question was damaged due to accident.

14.            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.

 

15.           Keeping in view the ratio of the law laid down in the abovesaid judgments, facts and circumstances of the complaint, we are of the considered view that acts of the OP amounts to deficiency in service and unfair trade practice. 

16.           Complainant has spent Rs.48291/-on the repair of his vehicle and this fact is proved from the bill Ex.C1. Complainant has used the wheels in question for a long time. It would be justified if 25% amount is deducted from Rs.48291/- being depreciation value of the tyres and wheels in question. After deducting 25% from the amount of Rs.48291/- it has come to Rs.36,218/-.Thus, complainant is entitled for the said amount alongwith compensation and litigation expenses etc.

17.           Thus, as a sequel to abovesaid discussion, we partly allow the present complaint and direct the OP to pay Rs.36218/- (Rs. thirty six thousand two hundred eighteen only) to the complainant. We further direct the OP to pay Rs.5,000/- to the complainant on account of mental agony and harassment and  towards the litigation expenses.  This order shall be complied with within 45 days from the receipt of copy of this order. It is made clear if the awarded amount not paid within stipulated period then this amount shall carry interest @ 9% per annum from the date of announcement of order till its realization.  The parties concerned be communicated of the order accordingly and the file be consigned to the record room after due compliance.

Dated:23.02.2023                                  

                                                                  President,

                                                     District Consumer Disputes

                                                     Redressal Commission, Karnal.

 

(Vineet Kaushik)        (Dr. Rekha Chaudhary)

                           Member                          Member