District Consumer Disputes Redressal Commission ,Faridabad.
Consumer Complaint No. 537/2021.
Date of Institution:13.10.2021.
Date of Order: 20.02.2023.
M/s. Garg Jewellers situate at 6/289, Main Bazar, Old Faridabad (Haryana) through its proprietor Mr. Mukesh Garg.
…….Complainant……..
Versus
Kotak General Insurance, Regional Office at: H-78, 7th floor, 23, Himalaya House, Kasturba Gandhi Marg, Delhi – 110 001 through its Authorized Signatory.
…Opposite party……
Complaint under section-12 of Consumer Protection Act, 1986
Now amended Section 34 of Consumer protection Act 2019.
BEFORE: Amit Arora……………..President
Mukesh Sharma…………Member.
Indira Bhadana………….Member.
PRESENT: Sh. Satbir Singh, counsel for the complainant.
Sh. D.K.Gosain, counsel for opposite party.
ORDER:
The facts in brief of the complaint are that the complainant M/s. Garg Jewellers was the registered owner of the vehicle bearing its registration
NO. HR-51-BT-0914 and the same was insured from the office of opposite party vide policy/certificate No. 1245072000 w.e.f. 27.06.2020 to 26.06.2021 in the name of Garg Jewellers and paid a premium of Rs.19,849/- of insured amount of Rs.8,00,000/-. The complainant hired the insurance service from Kotak General Insurance by making the huge payment of Rs.19,849/- and at the time of getting the insurance policy, the complainant was assured that as and when any loss occurs to the insured vehicle, the insurer Kotak General Insurance, would make the loss good since the vehicle mentioned above was insured as such all the insurance risks were covered. Unfortunately on 05.11.2020 at about 4 - 4.30p.m. when the son of the complainant was coming by driving insured vehicle from Sector-12 to his house situated in Old Faridabad and when the complainant reached near Gym Khana club Sector-15, Faridabad, suddenly a Auto came from front side for which the driver of insured vehicle applied emergency brake resultantly due to which the insured vehicle became unbalanced and got hit with a tree then due to the sudden unbalanced vehicle got totally damaged from front side, left side and in this regard not got lodged FIR or DD by the complainant as well as any other third party. Regarding the accident, the complainant intimated to the opposite party by way of calling telephonically on the same day, thereafter for repair the said damaged vehicle was got for its repair to Sterling Automobiles Pvt. Ltd., situated at Main Mathura road, Faridabad, where concerned supervisors after done supervision made the estimate of Rs.4,69,069/- only, but due to seeking the highly and exaggerated the said estimate, the damaged vehicle was taken to Car Centre at O/2, Link road, sector-28, Faridabad, who given estimate of repairing the damaged vehicle as Rs.4,08,371/- only. The complainant filled up the claim form and submitted the same to opposite party then after received the claim form of the complainant, opposite party appointed opposite party’s surveyor Mr. Mukesh
Kumar, who reached at the spot where the deranged vehicle was lying and after inspected the said vehicle, got photographs from all angles and collected the desired papers regarding damaged vehicle from the complainant. From opposite party’s employee Ankit Yadav one of the member of opposite party’s motor claims team wrote a letter to the complainant, mentioning therein that they had admitting liability of Rs.1,61,193/- qua the total cost of repaired damaged vehicle of Rs.4,08,371/- and the said amount of Rs.1,61,193/- had been transferred in the bank account of the complainant by opposite party. But there remains balance of Rs.2,47,178/- against opposite party which had not been paid by the opposite party till date, whereas the complainant made various repeated requests for payment the same. The complainant sent legal notice dated 09.08.201 to the opposite party but all in vain. The aforesaid act of opposite parties amounts to deficiency of service and hence the complaint. The complainant has prayed for directions to the opposite party to:
a) release the balance payment of claimed amount of Rs.2,47,178/- to the complainant on account of the policy of the complainant alongwith interest @ 18% p.a. from the date of its due till realization of amount immediately on the basis of policy.
b) pay Rs. 50,000/- as compensation for causing mental agony and harassment .
c) pay Rs. 5500 /-as litigation expenses.
2. Opposite party put in appearance through counsel and filed written statement wherein Opposite party refuted claim of the complainant and submitted that the complainant was in regard of OD claim of vehicle No. HR-51-BT-0914,, which allegedly met with an accident on 05.11.2020. The vehicle was insured with
opposite party insurance company for the period from 27.06.2020 to 26.06.2021 vide insurance policy No. 1245072000 subject to the provisions of IMT and policy conditions which was never disputed by the insured. On receiving claim intimation from the complainant, the insurance company had scrutinized the claim documents and it was observed that the complainant had taken false benefit of NCB. This insurance company had also sent NCB recovery letter before date of loss on 18.08.2020 by mentioning that previous insurer had confirmed that the complainant was not entitled for NCB of 25% and it had been asked to submit Rs.2410 towards NCB amount. Complainant had not submitted the required amount and had intimated claim of the vehicle. Thus, insurance company had initially rejected claim of the complainant on the ground of suppression of material fact with regard to NCB and the said rejection letter had been communicated to the insured vide email dated 14.12.2020. It was submitted that on receiving reconsideration request from the complainant, this insurance company had re-considered claim of the complainant to pay the claim amount by deducting 25% from the assessed amount. Complainant had offered his consent towards the acceptance of 75% amount vide mail dated 11.01.2021. Thereafter this insurance company had sent the assessed liability amount to the complainant vide email dated 28.06.2021 and had specifically mentioned that the net liability was coming to Rs.161193/- after deduction of policy clause and 25% substandard claim amount for fake NCB. The insurance company had had received the consent of complainant for proceeding the payment vide email dated 02.07.2021. After receiving consent of the complainant over the assessed amount, this insurance company had paid the claim amount to the complainant and had settled the claim as per terms and conditions of the policy. The insurance policy was the policy of
indemnification where the loss suffered by the insured was indemnified subject to the assessment of liability as assessed by the surveyor and in this case, the claim of the complainant was got processed and assessed by appointing independent IRDA Licensed surveyor and loss assessor Mukesh Kumar Aggarwal, who after due investigation and survey made the assessment of loss submitted his report dated 12.07.2021 and assessed the liability under the subject policy of insurance as Rs.1,62,193/- and the opposite party insurance company had paid a sum of Rs.1,61,193/- to the complainant, hence there was no deficiency in service on the part of the opposite party as the claim of the complainant after due processing and investigation had been settled and paid under the terms and conditions of the insurance policy. Opposite party denied rest of the allegations leveled in the complaint and prayed for dismissal of the complaint.
3. The parties led evidence in support of their respective versions.
4. We have heard learned counsel for the parties and have gone through the record on the file.
5. In this case the complaint was filed by the complainant against opposite party– Kotak General Insurance Co. Ltd. with the prayer to: a) release the balance payment of claimed amount of Rs.2,47,178/- to the complainant on account of the policy of the complainant alongwith interest @ 18% p.a. from the date of its due till realization of amount immediately on the basis of policy. b)pay Rs. 50,000/- as compensation for causing mental agony and harassment . c) pay Rs. 5500 /-as litigation expenses.
To establish his case the complainant has led in his evidence, Ex.CW1/A – affidavit of Mukesh Garg Proprietor of M/s. Garg Jewellers situate at
6/289, Main Bazar, Old Faridabad, Ex.C-1 – Registration certificate, Ex.C2 – details of proprietor, Ex.C-3 –RC, Ex.C-4 - test report, Ex.C-5 - Certificate cum policy schedule, Ex.C-6 & 7– estimate, Ex.C-8 – estimate of repairs, Ex.C9 – Motor Final Survey report, Ex.C-10 – email, Ex.C-11 – receipt,, Ex.C-12 - invoice dated 22.01.2021,, Ex.C-13 – invoice dated 27.03.2021, Ex.C-14 to 19 – tax invoices, Ex.C-20 - invoice dated 12.04.2021, Ex.C-21 – invoice, Ex.C-22 – postal receipt,, Ec.C-23 – legal notice,
On the other hand counsel for the opposite party strongly agitated and opposed. As per the evidence of the opposite party Ex.RW1/A – affidavit of Milind Myankal,Vice President-Legal in Kotak Mahindra General Insurance Company, Ex.R-1 - Certificate cum policy schedule, Ex.R-2 – letter dated 18.08.2020 regarding information about No Claim Bonus (“25%”) declared by you, Ex.R3 – email dated 14.12.2020, Ex.R4 & R5 – emails, Ex.R5 - Motor Final Survey Report.
6. In this case, the complaint was filed by the complainant with the prayer to release the balance payment of claimed amount of Rs.2,47,178/- to the complainant on account of the policy of the complainant alongwith interest @ 18% p.a. from the date of its due till realization of amount immediately on the basis of policy.
7. As per letter dated 18.08.2020 vide Ex.R2 which was sent by the opposite party to the complainant regarding information about No
claim Bonus (25%) declared by him. But the opposite party has not placed on record any postal receipt to prove his case. As per evidence, 25% NCB was taken by the complainant which is wrong on the part of the complainant and the complainant removed the damaged vehicle from the spot. There was no spot survey. As per the T&C of the policy if the complainant is not co-operate for the spot survey, opposite party will deduct the claim money as per the T&C. Price of the spare parts given by the complainant are much higher than the authorized service station. It is almost 20% higher price of the spare parts.
Counsel for the opposite party has placed on reliance in case titled Anjani Gupta Vs. Future Generally India Insurance Company passed by the Hon’ble National Consumer disputes Redressal Commission, New Delhi in Revision petition No. 1051 of 2017 in Appeal No. 856 of 2016 decided on 12.12.2017.
Ratio of this authority is not applicable to the facts of the present case.
8. After going through the evidence led by the parties, the Commission is of the opinion that the complaint is allowed upto that extent. Opposite party is directed to pay 50% of the balance amount as prayed for by the complainant.
There are no order as to costs. Compliance of this order be made within 30 days from the date of receipt of copy of order. Copy of this order be given to the parties concerned free of costs and file be consigned to record room.
Announced on: 20.02.2023 (Amit Arora)
President
District Consumer Disputes
Redressal Commission, Faridabad.
(Mukesh Sharma)
Member
District Consumer Disputes
Redressal Commission, Faridabad.
(Indira Bhadana)
Member
District Consumer Disputes
Redressal Commission, Faridabad.
