Haryana

Ambala

CC/72/2014

SANJEEV KUMAR - Complainant(s)

Versus

IFFCO TOKIO GENERAL INSURANCE - Opp.Party(s)

DALJEET SINGH

24 Aug 2017

ORDER

BEFORE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, AMBALA.

 

                                                                  Complaint No. 72 of 2014

                                                                  Date of instt:   07.03.2014.

                                                                  Date of decision: 24.08.2017.

                                                

Sanjeev Kumar son of Sh.Siya Ram, resident of village Tasrauii, P.O. Dhanana, Tehsil Naraingarh, District Ambala.

                                                ...Complainant.

Versus

1. IFFCO-TOKIO Branch at 6330, 2^nd Floor, Above Dena Bank Punjabi Mohalla, Ambala Cantt, Haryana through its Manager/Director.
2. IFFCO-TOKIO General Insurance Co.Limited IFFCO House, IIIrd Floor, 34 Nehru Place, New Delhi 110019, through its Manager/Director.
3. M/s Modern Automobiles, G.T.Road, Ambala City through its Manager.

 

                                                                    …Opposite parties.

Complaint under section 12 of

 

BEFORE:   SH. DINA NATH ARORA, PRESIDENT.     

                     MS. ANAMIKA GUPTA, MEMBER                    

 

Present: -    Sh. Daljeet Singh, Adv. for complainant.

                   Sh. Mohinder Bindal, Adv. for OPs No.1 & 2.

                   Sh. S.R.Bansal, Advocate alongwith Sh.Keshav Sharma,                                    Advocate for OP No.3.

 

ORDER:

         

                   Brief facts of the present complaint are that complainant is registered owner of Maruti car bearing registration No.HR-04E-1231 and got the same insured with Op Nos.1& 2 vide policy (comprehensive and cashless) No.88228162 having validity from 26.11.2012 to 25.11.2013.On 25.06.2013, the car struck against a parked tralla bearing registration No.PB-11A-8968 when brother of the complainant was driving the vehicle in question. The police of PS Shahzadpur District Ambala reported the matter vide DDR No.26 (A) on 26.06.2013. Thereafter the car was taken to OP No.3 for repair. The OP Nos. 1 & 2 appointed surveyor Sh.A.K.Chhatwal but the report was submitted by some other assessor namely Sh.Vijay Kant Vashisth. During inspection statements of the complainant and his brother were also written besides taking their signatures on some blank papers.  It was told to the complainant that the policy is in existence and being comprehensive and cashless policy the same would be repaired free of costs but the Op No.2 repudiated the claim vide letter 21.09.2013 as per Condition No.8 on the ground that the due observance and fulfillment of the terms, conditions and endorsement of this policy in so far as the relate to anything to be done or complied with the insured and the truth of the statements of the answered in the said proposal shall be conditions precedent to any liability of the company to make any payment under this policy.  The Op No.3 was pressing hard to pay repair charges to the tune of Rs.91571 plus 150/- per day parking charges which the OP Nos. 1 & 2 was to pay, therefore OP No.3 also issued legal notice dated 15.10.2013 without attaching any bill.  The act and conduct of the OPs clearly amounts to deficiency in service on their part. In evidence, the complainant has tendered affidavit Annexure CX and documents Annexure C1 to Annexure C6.

2.                          On notice, Ops appeared and contested the complaint of the complainant by filing separate replies. OP Nos. 1 & 2 in their joint reply have submitted that a claim was lodged with regard to accidental loss to the vehicle. As per claim form the accident had taken place on 25.06.2013 and no police report was lodged in any police station regarding the incident but despite that surveyor Sh.A.K.Chatwal was deputed to assess the loss who after inspecting the vehicle at Op No.3 in his report dated 30.08.2013 has assessed the loss to the tune of Rs.78289/- besides mentioning of contradictions about place, manner of accident, driver and reporting the matter to the police. On this, another surveyor Sh.Vijay Kant Vashist was also deputed to investigate who also submitted his report dated 05.08.2013 wherein it has been specifically mentioned that the complainant had given wrong and different version from reality. It has been further submitted that the claim of the complainant was rightly repudiated vide letter dated 21.09.2013 as the complainant himself is responsible for the same as he had concealed the material facts from the OPs.Other allegations made in the complaint have been denied and prayer for  dismissal of the complaint has been made.

3.                OP No.3 in its separate reply has submitted that the vehicle is lying ready for accidental repair since 28.06.2013 and the complainant was duly intimated about the repair charges and parking charges to the tune of Rs.91571/- through various letters and legal notices but to no use and the complainant had filed the present complaint to take undue benefit under Consumer Protection Act. It has been admitted that Op Nos. 1 & 2 have repudiated the claim due to some technical reasons such as driving licence and proper intimation regarding the accident but the Op No.3 has nothing to do with the same as it is entitled for the repair charges and interest either to be paid by compliannt or OP Nos. 1 & 2. Prayer for the dismissal of the complaint has been made. In evidence, the Op Nos. 1 & 2 have tendered affidavits of Sh.Vijay Kumar and Sh.A.K.Chatwal as Annexure R1/1 to Annexure R1/2A and documents Annexure R1/3 to Annexure R1/10 whereas OP No.3 has tendered affidavit Annexure R2 and documents Annexure R2 to Annexure R7.

4.                The main contention of the learned counsel for the complainant is that the claim of the complainant has been rejected on the ground as per repudiation letter Annexure R1/3 wherein it has been mentioned that the due observance and fulfillment of the terms, conditions and endorsement of this policy in so far as the relate to anything to be done or complied with the insured and the truth of the statements of the answered in the said proposal shall be conditions precedent to any liability of the company to make any payment under this policy.  We have gone through the report of investigator Annexure R1/8 as well as the statement recorded by investigator of Sanjeev Kumar insured as well as the statement of his brother Satish Kumar. There is no contradiction in both the statements as well as in the contents of DDR No.26 dated 26.06.2013 wherein it has been mentioned that the driver-Satish Kumar could not see the parked trala standing on the road due to lighting of coming truck and when he suddnly noticed about the same and in a process to stop the vehicle he applied breaks but the insured vehicle went under the standing trala during the process of applying breaks.  In the statement recorded by investigator Annexure R1/10 Satish Kumar-driver had stated that in the evening of 25.06.2013 when he was driving the car and reached near Patrehri then due to lightings of coming truck he could not noticed the standing tralla on the road and he immediately applied the brakes on seeing the tralla but during the application of the breaks the car struck against a tralla from back side.            

5.                There may be minor discrepancies in the statement of the driver as well as in the version of the DDR but it cannot said to be fatal for settling the claim. As per the surveyor report, the surveyor in his findings has never disputed that driver Satish Kumar brother of the insured was driving the car and the history of the accident given in the statements appears to be actual one and is in conformity nature of the damages.  The surveyor has also obtained the consent from the insured for settlement of the claim on non-standard basis with a condition that it is the sole discretion of the insurer whether to accept or not this consent.

6.                          In the present case the surveyor has also assessed the loss to the tune of Rs.78289/- as per the final survey report dated 30.08.2013 (Annexure R1/7) but insurance company has not paid the above said amount to the service centre from which the complainant got repaired the vehicle on 26.08.2013. OP No.3 had intimated to the complainant vide letter dated 15.10.2013 to collect the vehicle after paying the repair charges to the tune of Rs.91571/- and also demanded the parking charges to the tune of Rs.150/- per day as per legal notice from 26.08.2013. The Op No.3 also specifically mentioned that it has also intimated to the insurance company regarding the payment but they rejected the claim of the complainant. It is not disputed that the policy in question is cashless policy, therefore, it was for the OP No.1 & 2 to pay the repair charges to the service centre from where the damaged vehicle has been got repaired but instead of making that amount they have repudiated the claim vide letter dated 21.09.2013 Annexure R1/3. It is also clear on the file that the vehicle in question is lying with the Op No.3 as till today no repair charges have been made to it. It is strange the policy in question was cashless policy but despite that the Ops No.1 & 2 have neither paid the complete repair charges to the service centre nor paid the payment as assessed by the surveyor. The OP Nos. 1 & 2 have wrongly and illegally repudiated the claim of the complainant and this Forum further do not loose sight over the practice of repudiation of the genuine claims of the claimants on frivolous and technical ground and force the bonafide consumer in unwarranted litigation. It is also clear that the complainant could not use his car since 26.08.2013 and it is also proved on the case file that for not paying the repairing charges either by the complainant or by the insurance company the vehicle in question is lying with OP No.3, therefore, the present complaint deserves acceptance. Accordingly, we allow the present complaint and the insurance company is held liable to pay the nominal parking charges which are assessed at Rs.1000/- per month besides that the OP Nos.1 & 2 are also directed to make the payment of Rs.78289/- to the OP No.3 as assessed by the surveyor out of total repair charges amounting to Rs.91571/- and the complainant is hereby directed to pay balance sum of Rs.91571 – 78289 = Rs.13287/- alongwith interest @ 9 % per annum to the Op No.3 from the date of repair i.e. 26.08.2013 till its realization.  The OP No.3 is directed to handover the vehicle in working condition to the complainant within one week after receiving the amount as directed from complainant and OP Nos. 1 & 2. The complainant had not been able to use his vehicle w.e.f. 26.08.2013 till date due to the act and conduct of OP Nos.1 & 2. So we hereby assess a total compensation on account of harassment and mental agony to the tune of Rs.50,000/-, to be paid by OP Nos. 1 & 2 to the complainant, as the value of the vehicle has also got depreciated while remained parked in the premises of OP No.3 due to the non-payment of repair charges by Op Nos.1 & 2. Order be complied within 30 days from the date of receiving the copy of this order. Copies of the order be sent to the parties concerned, free of costs, as per rules. File after due compliance be consigned to record room.

 

Announced on: 24.08.2017                                                       (D.N. ARORA)

                                                                                                PRESIDENT

 

                                                           

                                                                                               

                                                                                    (ANAMIKA GUPTA)

                                                                                                MEMBER