DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, PATIALA.

                                        Complaint No. CC/14/187 of  14.07.2014.

                                        Decided on: 12.02.2015.

Karamjit Singh son of Ishar Dass, H. No. 11, Ward No.6, Peer Bana Banoi Road, Sunam, District Sangrur.

                                                                                      ….….Complainant.

                                                Versus

1. Iffco Tokio General Insurance Co. Ltd., Branch Office 5-C/1, New CMO Complex, Rajwaha road, Patiala through its Branch Manager.
2. Iffco Tokio General Insurance Co. Ltd., Iffco House, III Floor-34, Nehru Place, New Delhi through G.M.

….…Opposite parties.

Complaint under Section 12 of the Consumer Protection Act.

                                      QUORUM

                                      Sh. D.R. Arora, President.

                                      Smt. Neelam Gutpa, Member.

                                      Smt. Sonia Bansal, Member.

Present:                          Sh. Amit Kumar Bedi counsel for the complainant.

Sh. Amit Gupta counsel for opposite parties.

ORDER

D.R. ARORA:

1.       The complainant had got his truck-trailor bearing registration no. PB13-AF-2745 insured with Iffco Tokio General Insurance Co. Ltd i.e. O.P no.1 vide policy no. 85410661 on 14.10.2013.

2.       On 26.10.2013, the said truck-trailor had met with an accident in the area of Zirakpur. The complainant duly intimated O.P no.1 regarding the accident. A surveyor was appointed by O.P no.1 for spot survey, who had taken the photographs of the accident and advised the complainant to take the vehicle to a workshop. O.P. no.1 had appointed another surveyor namely Mr. K.P.S. Oberoi, who visited the workshop of M/S. Punjab Truck and Bus Repair, Sangrur Road, Patran and after the inspection of the vehicle obtained the estimate from the workshop on 29.10.2013 and advised the complainant to get the vehicle repaired. The complainant had spent Rs.2 Lacs on repair of the truck-trailor.

3.       It is further averred that the complainant had submitted his claim with the O.P to reimburse the claim and even visited the O.P a number of times for that sake but nobody paid any heed to his request. Ultimately, on 07.05.2014, the complainant got a legal notice served upon O.P. no.1 having requested for the payment of Rs.2 Lacs but he was surprised to receive a letter dated 10.05.2014 having stated that the claim was  not tenable and the same was closed being illegal. The claim of the complainant was genuine and there was no reason for the O.P to have repudiated the same. The same was repudiated for ulterior motive. The act of the O.P in having repudiated the claim is described to be a deficiency in service, which resulted into harassment as also mental agony experienced by the complainant. The complainant has accordingly approached this Forum through the present complaint brought under Section 12 of the Consumer Protection Act, 1986 (for short the Act) for a direction to the O.Ps to pay him Rs.2 Lacs with interest @ 18% from the date of inspection i.e. 26.10.2013; to pay him Rs.50,000/- by way of compensation on account of harassment and mental agony experienced by him; to pay him Rs.10,000/- towards travelling expenses and further to pay him Rs.15,000/- towards the costs of the complaint.

4.       On notice, the O.Ps appeared and filed their written version. The O.Ps have not denied the complainant having got his vehicle No.PB13-AF-2745 insured with it vide policy no.85410661 for the period 14.10.2013 to 13.10.2014. It is also admitted by the O.Ps that the complainant had intimated the claim with regard to the accident of the vehicle having taken place on 27.10.2013 and accordingly, Sh. K.P.S. Oberoi, Surveyor and Loss Assessor was deputed, who submitted his report dated 30.03.2014, who disclosed that the vehicle had been surveyed on 29.10.2013 at Patran. He also observed that the first accident of the vehicle had taken place on 21.10.2013, six days after the issuance of the cover note but the said claim had been withdrawn. Sh. K.P.S. Oberoi also reported that the complainant had manipulated the claim in order to get the vehicle overhauled in respect of cabin and lower body from the insurance company without accident.  It is further averred that the distance between Zirakpur and Sunam is 120 KMs but the reading in the odometer was same and as such surveyor recommended for the closure of the file as ‘no claim’. The claim of the complainant was duly processed but the same was repudiated vide letter dated 10.05.2014 on the ground of manipulation of the same.

5.       The O.Ps have also quoted condition no.8 of the policy terms and conditions, which reads: “The due observance and fulfillment of the terms, conditions and endorsements of this policy is so far as the relate to anything to be done or complied with by the insured and the truth of the statements and answers in the said proposal shall be conditions precedent to any liability of the company to make any payment under this policy.”

6.       It is denied that the complainant had got the O.P served with a legal notice got sent through registered post. It is also denied that the complainant is entitled to the insurance claim of Rs.2 Lacs etc. Ultimately, the O.Ps prayed for dismissal of the complaint.

7.       In support of his complaint, the complainant produced in evidence Ex. CA, his sworn affidavit along with documents Ex. C1 to Ex. C9 and his counsel closed the evidence. On the other hand, on behalf of the O.Ps, their counsel tendered in evidence Ex. OPA, the sworn affidavit of Ms. Pallavi Roy, Vice President of O.P no.2 along with documents Ex. OP1 to Ex. OP4 and their evidence was closed by order of the Forum.

8.       The O.Ps filed the written arguments. We have examined the same, heard learned counsel for the parties and gone through evidence on record.

9.       It was submitted by Sh. Amit Kumar Bedi, the learned counsel for the complainant that the O.Ps have repudiated the claim of the claimant as ‘no claim’ vide their letter Ex. C4 dated 10.05.2014 on the ground, “On careful perusal of the report of the surveyor and other documents on record, we have noticed that the claim is manipulated. We hereby drawn your attention as per our policy condition as under:

Condition No.8 “The due observance and fulfillment of the terms, conditions and endorsements of this policy is so far as the relate to anything to be done or complied with by the insured and the truth of the statements and answers in the said proposal shall be conditions precedent to any liability of the company to make any payment under this policy.” In light of the above, we regret to inform you that your claim is not tenable and we are closing the case as “No Claim”.

10.     Then it was submitted by Sh. Bedi that what to talk of the O.Ps having led any evidence to show that the claim lodged by the complainant with the O.P is manipulated, they have not made any disclosure about the same in clear terms in their written version. As per the plea taken up by the O.Ps the first accident of the vehicle had taken place on 21.10.2013 and in respect of which Sh. Rajesh Aggarwal was deputed as surveyor. Ex. OP2 is the copy of the Motor Final Survey Report dated 7^th November, 2013 given by said Sh. Rajesh Aggarwal of Sangrur. Under the heading Insured property details in the column meant for Odometer Reading nothing is disclosed. Under the heading Survey details the spot has been disclosed as village Chathe falling on Sunam-Kohria Road. The survey report does not state about any photographs of the spot of the accident having been taken by the surveyor Sh. Rajesh Aggarwal.

11.     It is also the plea taken up by the O.Ps that the first claim in respect of the accident having taken place on 21.10.2013 was withdrawn. In this regard the O.Ps have also produced on record the photocopy of the application dated 22.10.2013, to have been moved by Karamjit Singh for closing his claim in respect of the vehicle no. PB13-AF-2745 having met with accident on 21.10.2013, the damages being negligible.

12.     It was submitted by Sh. Bedi that it was for the O.Ps to have lead the cogent and convincing evidence to show that the complainant lodged the claim regarding the accident of the vehicle having taken place on 26.10.2013 having manipulated the accident for that date and that no accident had taken place on 26.10.2013. In this regard, it was submitted by Sh. Bedi that from the final survey report Ex. OP2 dated 7^th November, 2013 given by Sh. Rajesh Aggarwal nothing can be said as to what was the nature of the damages caused to vehicle bearing registration no.PB13-AF-2745 and the O.Ps have not connected the damages caused to the vehicle in accident having taken place on 21.10.2013 with the damages in respect of the said vehicle having met with an accident on 27.10.2013, the date of the accident as disclosed in the final survey report Ex. OP3 given by Mr. K.P.S. Oberoi, Surveyor, Patiala.

13.     It was submitted by Sh. Bedi that it was for the surveyor Mr. K.P.S. Oberoi to give the clear cut findings in his report Ex. C8 that as a matter of fact no accident of the vehicle had taken place on 27.10.2013 and that it was the manipulation of the accident based on the accident having taken place on21.10.2013. In his report Ex. C8 Sh. K.P.S. Oberoi  under the heading Notes  disclosed: “U/signed survey the above side vehicle on dated 29.10.2013 at Patran and in this accident the vehicle overturned on its left side on a sand and in this accident the cabin was pressed/damaged from left side and load body angle irons found bent and lars found broken. But the first accident of this vehicle occurred on 20.10.2013 ie.. after 6 days issue of cover note  and the speedometer Reading 501532KM and the insured written to Surveyor Mr. Rajesh Aggarwal that he was not interested to take the claim. And the 2^nd accident occurred on 27.10.2013 Near Zirankpur and speedometer Reading is same one 501532 KM and also the accident is seems to be a manipulated and it is not possible that the vehicle is  repair with a 5-6 days from the first accident so I think it is manipulated claim and insured his trying to overhall repair of his vehicle i.e. cabin and load body from Insurance company without any accident and however the distance from Sunam to Zirakpur 120km. But the speedometer  Reading is same one and the insured trying to take the claim of old vehicle from Ins. company and however the app. life of the cabin and load body is 5-65 year so I think insured is manipulated the claim. So the claim may be disclosed as No claim.”

14.     It was submitted by Sh. Bedi that the reasoning given by the surveyor Mr. K.P.S. Oberoi in his report Ex. C8 appears to be subjective and not based on any facts. There being no evidence to show the mileage of the vehicle at the time of first accident having taken place on 21.10.2013 was 501532 and it remained the same at the time of accident having taken place on 27.10.2013, how it was possible for Mr. Oberoi to make a note of the same in his report Ex. C8. As discussed earlier in the report Ex. OP2 given by Rajesh Aggarwal on 07.11.2013 with regard to accident having taken place on 21.10.2013, odometer reading has not been noted.

15.     Then it was submitted by Sh. Bedi that there being no evidence to make a comparison of the photocopies of the first accident dated 21.10.2013 and the second accident dated 27.10.2013 produced in evidence by the O.P, the plea taken up by the O.Ps  in this regard seems to be manipulated one and rather it was the duty of Mr. K.P.S Oberoi, the surveyor who had given his report Ex. OP3 dated 14.03.2014 to give a clear cut findings in this regard with the help of the evidence and not on the basis of hypothecation. We, are therefore of the considered view that the filing of the claim of the complainant as ‘no claim’ by the O.P vide their letter Ex. C4 dated 10.05.2014 cannot be upheld.

16.     It is the case of the complainant that he had submitted the original bills regarding the repair of the vehicle along with other documents. Mr. K.P.S. Oberoi has admitted in his report Ex. OP3 dated 14.03.2014 under the heading Attachments the receipt of original bills but the O.Ps have not produced the same on file to enable us to assess the loss of the complainant. The complainant had filed an application, copy of the same being Ex. C5, before the P.I.O. of O.P no.1 on 11.07.2014 under Right to Information Act, asking for (1) Attested copy of Surveyor report, along with photographs of accident dated 26.10.2013 regarding vehicle no.PB13-AF-2745 insured vide policy no.85410661 and (2) attested copy of bills of repair of said vehicle. But it was submitted by Sh. Bedi that the same were not supplied to the complainant and therefore, the complainant could not produce the same in evidence. In the absence of the original bills placed on file by the O.Ps we cannot determine the claim of the complainant. We therefore deem it expedient to give a direction to the O.Ps to get the loss of the complainant assessed from their surveyor Mr. K.P.S. Oberoi. The O.Ps shall also taken into account the bills submitted by the complainant with them in assessing the loss of the complainant. The O.Ps shall assist the loss within 20 days from the receipt of certified copy of the order and in case the loss is assessed in favor of the complainant, the O.Ps shall make the payment thereof with interest @ 9% per annum from the date of repudiation of the claim i.e. 10.05.2014. The O.Ps shall pass a detailed order in accepting/rejecting the claim of the complainant and furnish a copy thereof along with the report of the surveyor. In view of the facts and circumstances of the case, the complaint is accepted with costs assessed at Rs.10,000/- which is inclusive of the amount of compensation on account of harassment and mental agony experienced by the complainant.

Pronounced.

Dated: 12.02.2015.

Sonia Bansal        Neelam Gupta                D.R. Arora

Member                Member                President