Haryana

Karnal

CC/327/2019

Kamal Kumar - Complainant(s)

Versus

InduSind Bank - Opp.Party(s)

Raj Kumar Sharma

18 Oct 2022

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, KARNAL.

 

                                                        Complaint No. 327 of 2019

                                                        Date of instt.11.06.2019

                                                        Date of Decision:18.10.2022

 

Kamal Kumar son of Shri Manohar Lal, resident of Shanti Nagar, Gali no.1, Karnal.

                                               …….Complainant.

                                              Versus

 

1.     Indusind Bank, SCO no.254, Part-1, Sector-12, Urban Estate, Karnal through its Manager.

2.     Cholamandlam MS General Insurance Co. Ltd. Sector-12, Urban Estate, Karnal through its Branch Manager (Insurer of vehicle no.HR-45-C-6734, vide policy no.3379/02151237/000/00.

 

                                                                      …..Opposite Parties.

 

Complaint under Section 12 of the Consumer Protection Act, 1986 as amended under Section 35 of Consumer Protection Act, 2019.

 

Before   Sh. Jaswant Singh……President.       

      Sh. Vineet Kaushik…….Member

      Dr. Rekha Chaudhary……Member

          

 Argued by: Shri Surinder Kumar, counsel for complainant.

                    Shri Suraj Kanwar, counsel for the OP no.1.

Shri Vineet Rathore, counsel for OP no.2.

 

                    (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 parties (hereinafter referred to as ‘OPs’) on the averments that complainant is the registered owner of car bearing registration no.HR-45C-6734 and the complainant purchased the abovesaid vehicle in order to earn his livelihood. The said vehicle was financed by OP no.1 and the said vehicle was insured by OP no.2, vide policy no.3379/02151237/000/00, valid from 03.10.2018 to 02.10.2019 and OP no.1 has charged the insurance premium on behalf of OP no.2. Unfortunately, the said vehicle met with an accident on 14.03.2019 and in this regard an FIR no.162 dated 14.03.2019 with Police Station, Neemach Cantt. was lodged. The accident took place due to rash and negligent driving of vehicle no.HR-55-AE-2139. After the said accident, the matter was brought to the notice of OP no.2 and OP no.2 deputed his surveyor and the surveyor inspected the abovesaid vehicle and allowed the complainant to get the same from Luxmi Motor, Karnal. The vehicle was taken to Luxmi Motors and after going through the damages occurred to the vehicle, Luxmi Motors has prepared an estimate of Rs.6,22,900/-. Complainant got repaired the vehicle and paid Rs.6,22,900/- to Luxmi Motors. The vehicle remained parked for about two months with Luxmi Motors. After the repair of the vehicle, complainant after completing of all formalities submitted the bills and other documents before the OP no.2 and requested the OP no.2 to settle the claim of complainant and to pay the repair charges, but OP no.2 did not pay the same and lingered the matter on one pretext or the other and lastly repudiated the claim of complainant on false and frivolous grounds. In this way there is deficiency in service on the part of the OPs. Hence this complaint.

2.             On notice, OP no.1 appeared and filed its written version raising preliminary objections with regard to maintainability; jurisdiction; cause of action and concealment of true and material facts. On merits, it is pleaded that complainant does not fall under the definition of consumer as there is no contract and type of consideration has taken place between the complainant and OP no.1. OP no.1 has not charged any kind of premium of insurance from the complainant. All the risks and liabilities are covered by the OP no.2 only who had issued the policy to the complainant. OP no.1 is only limited to that of a facilitator/referral agent and the actual insurance is issued by the OP no.2. There is no deficiency in service on the part of the OP no.1. The other allegations made in the complaint have been denied by the OP and prayed for dismissal of the complaint.

3.             OP no.2 filed its separate written version raising preliminary objections with regard to maintainability; jurisdiction and concealment of true and material facts. On merits, it is pleaded that on receipt of claim intimation OP no.2 immediately started processing the claim and asked for required documents for processing the claim and appointed surveyor and investigator in order to reveal out the actual state of affairs and to check the compliance of terms and conditions of insurance policy. On investigation so conduced in this regard, it was transpired that insured vehicle was being driven in contravention to terms and conditions of the insurance policy, since at the time of accident there were four persons were sitting in the insured vehicle, whereas as per registration certificate of vehicle in question sitting capacity of only three persons is allowed. The factum of sitting of four persons at the time of accident was admitted by the driver himself and injuries sustained by person sitting in the vehicle. Further, OP no.2 appointed a surveyor and loss assessor in order to assess the loss/damages suffered to the vehicle. The loss assessor after carefully inspecting the vehicle and as per guidelines of IRDA assessed the loss to the tune of Rs.3,67,037/-. Further, since there was grave violation of terms and conditions of the policy as such the claim under the policy was repudiated and same was conveyed to complainant by letter dated 11.06.2019 on the ground that at the material time of accident there were four persons traveling in the insured vehicle including driver, when the permitted seating capacity of the vehicle as per registration certificate is only 3. This is in serious violation of policy conditions pertaining to ‘Limitations as to use’.  It is further pleaded that the claim of the complainant allowed on substandard basis against the loss assessed by the surveyor and as such an amount of Rs.2,50,000/- on non-standard bass has been credited in the loan account of complainant maintained with OP no.1 bank as per the hypothecation condition of the policy and registration certificate of vehicle in question. No other amount is payable under the claim of policy. The complainant has concealed this factum. There is no deficiency in service on the part of the OP. The other allegations made in the complaint have been denied by the OP no.2 and prayed for dismissal of the complaint.

4.             Parties then led their respective evidence.

5.             Learned counsel for complainant has tendered into evidence affidavit of complainant Ex.CW1/A, copy of driving licence Ex.C1, copy of registration certificate Ex.C2, copy of bill Ex.C3, copy of FIR Ex.C4, copy of National Permit Ex.C5 Part-B Ex.C5, copy of National Permit Ex.C5 Part-A Ex.C6, copy of authorization certificate of National Permit Ex.C7, copy of insurance policy Ex.C8, copy of order regarding superdari of vehicle Ex.C9 and closed the evidence on 24.01.2020 by suffering separate statement.

6.             On the other hand, learned counsel for OP no.1 has tendered into evidence affidavit of Amit Kumar, Legal Executive Ex.OP1/A and closed the evidence on 30.11.2021 by suffering separate statement.

7.             Learned counsel for OP no.2 has tendered into evidence affidavit of Sujeet Kumar Sahu, Assistant Manager Ex.OP2/A, affidavit of Shubham Arora Insurance Claims Investigator Ex.OP2/B, copy of repudiation letter Ex.OP2/1, copy of insurance policy Ex.OP2/2, copy of policy wordings of Motor Package Policy Ex.OP2/3, copy of survey report Ex.OP2/4, copy of consent letter Ex.OP2/5, copy of investigation report Ex.OP2/6, copy of National Permit Ex.OP2/7, copy of R.C. Ex.OP2/8, copy of email dated 25.09.2019 regarding disbursement of Rs.2,50,000/- in the loan account of complainant Ex.OP2/9 and closed the evidence on 30.11.2021 by suffering separate statement.

8.             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.

9.             Learned counsel of complainants, while reiterating the contents of complaint, has vehemently argued that complainant is the registered owner of car in question and the same was financed by OP no.1 and insured by OP no.2, On 14.03.2019 the said vehicle met with an accident and in this regard an FIR no.162 dated 14.03.2019 with Police Station, Neemach Cantt. was lodged. The accident took place due to rash and negligent driving of vehicle no.HR-55-AE-2139. After the said accident, the matter was brought to the notice of OP no.2 and OP no.2 deputed his surveyor and the surveyor inspected the abovesaid vehicle and allowed the complainant to get the same from Luxmi Motor, Karnal. The vehicle was taken to Luxmi Motors and Luxmi Motors has prepared an estimate of Rs.6,22,900/-. Complainant got repaired the vehicle and paid Rs.6,22,900/- to Luxmi Motors. After the repair of the vehicle, complainant submitted the bills and other documents before the OP no.2 and requested to settle the claim but OP no.2 did not pay the claim and repudiated the same on the flimsy ground and prayed for allowing the complaint.

10.           Per contra, learned counsel for OP no.1 while reiterating the contents of written version, has vehemently argued that complainant does not fall under the definition of consumer as there is no contract and type of consideration has taken place between the complainant and OP no.1. OP no.1 has not charged any kind of premium of insurance from the complainant. All the risks and liabilities are covered by the OP no.2 only who had issued the policy to the complainant on 30.06.2019. OP no.2 has remitted the amount of Rs.2,50,000/- in the account of OP no.1  and nothing is due against the complainant with regard to loan amount and lastly prayed for dismissal of the complaint qua OP no.1.

11.           Learned counsel for OP no.2, while reiterating the contents of written version, has vehemently argued that on investigation, it was transpire that at the time of accident four persons were sitting in the insured vehicle, whereas sitting capacity is of only three persons. OP no.2 appointed a surveyor who assessed the loss to the tune of Rs.3,67,037/- and the claim of the complainant allowed on substandard basis and as such an amount of Rs.2,50,000/- has been credited in the loan account of complainant maintained with OP no.1 bank as per the hypothecation condition and lastly prayed for dismissal of the complaint.

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

13.           Admittedly, the vehicle in question met with an accident during the subsistence of the insurance policy. It is also admitted that the vehicle in question was financed by OP no.1 and all the loan amount has been cleared and nothing is pending against the complainant. It is also admitted by the OP no.1 that OP no.2 has credited Rs.2,50,000/- on 30.06.2019 in the loan account of complainant.

14.           Initially, the claim of the complainant has been repudiated by the OP no.2, vide repudiation letter Ex.OP2/1 dated 11.06.2019 on the ground that at the time of accident there were four person travelling in the insured vehicle including the driver, when the permitted seating capacity of the vehicle as per the registration certificate is only three. This is in serious violation of policy conditions pertaining to “Limitation as to use”. Lateron, on 30.06.2019 an amount of Rs.2,50,000/- has been credited in the loan account of complainant maintained by OP no.1.

15.           It is evident from the FIR Ex.C4 date 14.03.2019, the accident took place due to rash and negligent driving of offending vehicle bearing no.HR-55-AE-2139. The said FIR has got lodged by the complainant against the driver of the offending vehicle. It is not a case of the OP no.2 i.e. insurance company that said accident took place due to travelling the four persons in the vehicle in question. After repudiation of the claim, OP no.2 has credited the amount of Rs.2,50,000/- in the loan account of complainant. OP no.2 has failed to explain as to why the said amount has been credited in the account of OP no.1 after repudiation of the claim of the complainant. Thus, intention of the OP no.2 itself appears to be malafide. The surveyor of the OP also made a huge deduction while preparing his report. OP neither examined the said surveyor nor tendered his affidavit to prove his survey report. Moreover, OPs have placed on file only photocopy of the said report which is not admissible in the eyes of law especially when he author off the said report has not been examined. The surveyor of the OPs is not justified in making such huge deduction of the amount. Such act is totally arbitrarily and unjustified. Furthermore, the said deduction is based on presumption and assumption even not supported by any documentary evidence, whereas it has been proved on record that there was an extensive damage to the vehicle. 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 surveyor has assessed the loss for favouring the OP and therefore same cannot be given more weightage. Rather it is proved on record from the bill Ex.C3 dated 25.03.2019 that complainant has got repaired the vehicle from Luxmil Motors and paid Rs.6,22,900/-. Hence, complainant is entitled for the said amount alongwith interest, compensation for mental harassment and litigation expense.

16.            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.

 

17.          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. 

18.           It is pertinent to mention here that as per version of the OP no.2 an amount of Rs.2,50,000/- on non-standard basis has been credited in the loan account of complainant maintained with OP no.1.  Thus, complainant is entitled for the remaining amount of Rs.3,72,900/- (Rs.6,22,900-2,50,000).

19.           In view of the above discussion, we allow the present complaint and direct the OP no.2 to pay Rs.3,72,900/-(Rs.three lakhs seventy two thousand nine hundred only)  to the complainant alongwith interest @ 9% per annum from the date of repudiation of the claim till its realization. We further direct the OP no.2 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 expense. 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:18.10.2022

                                                                       

                                                                  President,

                                                     District Consumer Disputes

                                                     Redressal Commission, Karnal.

 

(Vineet Kaushik)        (Dr. Rekha Chaudhary)

                          Member                           Member