BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, SIRSA.
Consumer Complaint no. 225 of 2021.
Date of Institution : 13.09.2021.
Date of Decision : 11.11.2024.
Nitin Kumar aged about 31 years son of Shri Mahender Kumar, resident of H. No. 1302, Sector 40B, Chandigarh now resident of H. No. 140, Ward No.14, Aggarsain Colony, Sirsa District Sirsa.
……Complainant.
Versus.
1. Iffco Tokio General Insurance Company Limited, Corporate Office, 4th Floor, Palm Cot, 20/4, Sukhrali Chowk, Mehrauli Gurgaon Road, Gurgaon through its General Manager.
2. Iffco Tokio General Insurance Company Ltd., Registered Office Iffco Sadan, C-1, District Centre Saket, New Delhi.
...…Opposite parties.
Complaint under Section 35 of the Consumer Protection Act, 2019.
Before: SH. PADAM SINGH THAKUR ………………PRESIDENT
MRS.SUKHDEEP KAUR……………………….MEMBER.
SH. OM PARKASH TUTEJA…………………..MEMBER
Present: Sh. Sandeep Chaudhary, Advocate for complainant.
Sh. Kapil Sharma, Advocate for opposite parties.
ORDER
The complainant has filed the present complaint under Section 12 of the Consumer Protection Act, 1986 (after amendment u/s 35 of C.P. Act, 2019) against the opposite parties (hereinafter referred to OPs).
2. In brief, the case of complainant is that complainant is registered owner of a vehicle Toyota Fortuner bearing registration No. CHK-0099 which he got insured from ops vide policy No. MF198268 w.e.f. 09.08.2020 to 08.08.2021. That on 15.11.2020 the said vehicle of complainant met with roadside accident and was badly damaged and information in this regard was duly supplied by complainant to the ops. It is further averred that a Surveyor namely Rajan Bansal was appointed by the ops who inspected the vehicle and verified the damages and he asked to get repaired the vehicle. That accordingly complainant got repaired the vehicle from Rudra Motors Sirsa after incurring a sum of Rs.4,01,235/- from his own pocket and thereafter he lodged his claim under the said policy with the ops and requested to indemnify his claim. The complainant was asked to submit all the necessary documents which he had submitted to the ops but despite that claim has not been indemnified rather vide letter dated 03.03.2021 his claim has been repudiated by ops on false grounds. It is further averred that complainant a number of times contacted the ops in this regard and requested to indemnify his claim but ops firstly postponed the matter with one false way or the other and later on stopped responding to the requests of complainant. The complainant also got served a legal notice to the ops on 05.04.2021 but to no effect and as such ops have caused deficiency in service and adopted unfair trade practice and have caused unnecessary harassment to him. Hence, this complaint.
3. On notice, ops appeared and filed written statement raising certain preliminary objections regarding maintainability, cause of action, locus standi, estoppal, concealment of true and material facts, jurisdiction, non joinder and mis joinder of necessary parties. It is submitted that intimation regarding the accidental loss was received by insurance company on 17.11.2020 and accordingly Shri Rajan Bansal, Surveyor and Loss Assessor was appointed to conduct the spot survey of the alleged accidental car. During the survey, the surveyor found that claim is manipulated and the damages are not correlated with the cause of loss and whole loss is manipulated. The loss reported under the policy is admissible and payable under the policy terms and conditions only when the loss particular provided by the insured are established beyond any reasonable doubt but in this case the insured has not established the loss particulars beyond doubt rather insured has mis-represented the facts in support of his claim. The vehicle is damaged but not as per the loss particulars provided by the insured, which is grave breach of utmost good faith. It is further submitted that insured has misrepresented the insurance company by giving incorrect loss particulars in violation of terms and conditions of insurance policy and principles of utmost good faith and as such the claim of insured is repudiated and closed as no claim vide letter dated 03.03.2021. It is further submitted that Mr. Rajan Bansal, Government approved Surveyor and Loss Assessor submitted that whole claim is manipulated and under his survey report has given his following observations in respect of claim of alleged damage of car in question:-
1. RHS head light is broken badly, but the RHS fender is intact, which is not possible. RHS head lamp is attached.
2. Bonnet hinge nuts don’t have the paint, if it is original bonnet, then hinge nuts must be painted, bonnet attached.
3. LHS head lamp nakka is already repaired, so old damaged.
4. In bumper, no fender lining is attached, and no clips are there, so bumper is attached.
5. At the spot, there are two walls perpendicular, on one wall there is no impact of accident.
6. Date of survey is 18.11.2020, but dealer gave estimate on 23.12.2020 by mail.
7. Without company repair approval dealer has repaired the vehicle.
8. Spot do not matches with the accident. If the car has hitted in the wall, the bumper must be broken first. But bumper is intact and bonnet is damaged.
9. No plate of the FR bumper is intact, but the condenser which is approx 1 ft away got pressed and damaged.
4. It is further submitted that ops’ company on the basis of analyzing all aspects of the case reached to the conclusion that the complainant has misrepresented the facts and the facts narrated by the insured do not coincide/ co-relate with the damage to the car in question and create suspicion and present claim was not admissible under the terms and conditions of the policy cover and claim was rejected vide letter dated 03.03.2021 due to following discrepancies:-
1. RHS Head Lamp- RHS Head light is badly crushed, but the RHS Fener tip intact, which is not possible, if the vehicle had hit in the wall there must be impact on the fender.
2. LHS Head Lamp- LHS Head Lamp is damaged, but head lamp nakke do not fits in the remaining nakke in the body, if the LHD Head Lamp is genuine damaged, it should be properly in the body.
3. Bonnet- Bonnet Hinge and nuts are freshly closed and there is a sign of nut wrench on nuts, also if the vehicle had hit in the wall, there must be impact of bricks on the bonnet. As the wall is pointed, but the hood is damaged in the round shape, which is not possible. Also Bumper is intact, but hood is pressed which is not possible.
4. Grill- Grill is damaged from the RHS, which is not aliened with the hood, if it is hitted in the wall it must be damaged with the hood.
5. Bumper- Bumper nuts were opened, also there was no fender lining attached with the bumper, if the bumper is genuine, then there must be fender lining attached and nuts should be there.
6. Head Lamp Brackets- Head Lamp Brackets are intact but head lamp are crushed which is not possible.
7. AC Condenser- AC Condenser, which is approx. 1 feet away from Bumper is damaged, but number plate is intact, if the bumper is so much pressed from middle, then number plate should be damaged.
8. Wall- On Walls there is no impact of accident, if the accident occurred at the spot, there must be some impact on wall.
5. It is further submitted that present claim is based upon mis-description and suppression of material information from the ops’ company, violation of principle of utmost good faith ‘Uberrima fides’ misrepresentation, hiding of facts, connivance and to make profit out of the claim and it does not fall under the purview of the policy and the insured has given wrong declaration and wrong undertaking in the claim. The whole loss of complainant is manipulated and false as per the surveyor report and as such the claim of the insured has been rightly repudiated by the company. Remaining contents of complaint are also denied to be wrong and prayer for dismissal of complaint made.
6. The complainant in evidence has tendered his affidavit Ex. CW1/A and documents Ex.C1 to Ex.C16.
7. On the other hand, ops have tendered affidavit of Ms. Gurvinder Kaur, authorized signatory as Ex. RW1/A, affidavit of Sh. Rajan Bansal, Surveyor and Loss Assessor Ex. RW2/A and documents Ex. R1 to Ex.R6.
8. We have heard learned counsel for the parties and have gone through the case file.
9. Learned counsel for complainant while reiterating the contents of complaint has contended that insured vehicle of complainant met with an accident as an animal came in front of the vehicle and in order to save the animal, the vehicle dashed into a wall but the ops have not paid genuine claim of repair of insured vehicle and prayed for acceptance of the complaint.
10. On the other hand, learned counsel for ops while reiterating the written version of ops has contended that as per report of Surveyor who has also given his affidavit Ex.RW2/A in support of his report the loss of vehicle is manipulated as loss to the vehicle cannot occur in the manner as stated by complainant and moreover only one air bag of the vehicle was opened whereas since the damage to the vehicle was on front portion, therefore, other air bag of front portion should have been opened and as such story put forth by complainant regarding the manner of the accident is totally manipulated and
11. We have considered the rival contentions of the parties. There is no dispute of the fact that complainant got insured his vehicle Toyota Fortuner with the ops from 09.08.2020 to 08.08.2021 for the insured declared value of Rs.11,14,000/- which fact is also proved from certificate of insurance Ex.C6. According to the complainant during the period of policy in question on 15.11.2020 the above said vehicle of complainant met with an accident and was badly damaged. However, the Surveyor appointed by ops submitted his report that loss is manipulated on the above said grounds and ops have raised the objection that angle and damage caused to the vehicle is totally contrary to the story put forth by the complainant. But we are of the considered view that the report of Surveyor in this regard is only favorable to the ops and has been prepared with mere technicalities only in order to avoid payment of genuine claim of the complainant. Since the accident has been caused to the insured vehicle which fact is also proved from photographs of the vehicle placed on file by ops themselves and vehicle is damaged, therefore, insurance company is liable to pay the claim of damages caused to the vehicle. More so, vehicle has been repaired after the accident in Rudra Motors, Sirsa and not in the house of complainant and complainant has paid charges to said Rudra Motors for repair of his insured vehicle, therefore, insurance company is liable to indemnify the claim of complainant. The estimate of the repair of the vehicle was Rs.5,29,573/- as is evident from estimate Ex.C12 but as the Surveyor appointed by ops has not assessed the actual loss and also wrongly mentioned that estimate was of Rs.5,48,000/- and ops have not paid single penny to the complainant, therefore, ops are liable to pay the amount of Rs.4,01,235/- to the complainant as charged by Rudra Motors from complainant vide invoice Ex.C14 and non payment of the said amount to the complainant by ops clearly amounts to deficiency in service on the part of ops.
12. In view of our above discussion, we allow the present complaint and direct the opposite parties to pay claim amount of Rs.4,01,235/- to the complainant within a period of 45 days from the date of receipt of copy of this order, failing which complainant will be entitled to receive the said claim amount of Rs.4,01,235/- from ops alongwith interest at the rate of @6% per annum from the date of this order till actual realization. We also direct the ops to further pay a sum of Rs.10,000/- as compensation for harassment and Rs.5000/- as litigation expenses to the complainant within above said stipulated period. A copy of this order be supplied to the parties as per rules. File be consigned to the record room.
Announced. Member Member President
Dt. 11.11.2024. District Consumer Disputes
Redressal Commission, Sirsa.
