Haryana

Karnal

CC/54/2023

Ajay Kumar - Complainant(s)

Versus

Kotak Mahindra General Insurance Company Limited - Opp.Party(s)

Kanav Deep Singh

11 Sep 2024

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, KARNAL.

 

                                                        Complaint No.54 of 2023

                                                        Date of instt 23.01.2023

                                                        Date of Decision: 11.09.2024

 

Ajay Kumar son fo Shri Somnath, resident of village Kharajpur, tehsil and District Karnal. Aadhar no.3313 8038 3256.

 

                                                                        …….Complainant.

                                              Versus

 

Kotak General Insurance Company Limited, SCO 141-142, 2^nd floor, Sector 9-C, Chandigarh through its authorized signatory/Divisional Manager.

…..Opposite Party.

 

Complaint under Section 35 of Consumer Protection Act, 2019.

 

Before   Shri Jaswant Singh……President.     

              Ms. Neeru Agarwal…….Member

      Ms. Sarvjeet Kaur…..Member

 

Argued by:  Shri Kanavdeep Singh, counsel for the complainant.

                    Shri Sanjeev Vohra, counsel for the OP.

                   

                     (Jaswant Singh, President)

ORDER:   

                

                The complainant has filed the present complaint under Section 35 of the Consumer Protection Act, 2019 against the opposite party (hereinafter referred to as ‘OP’) on the averments that complainant is the owner of a car i.e. Maruti Baleno BS-VI Delta, Model 2021 bearing registration no.HR-05-BG-1581. Complainant got insured the said vehicle with the OP, vide policy no.MIAN99021772, valid from 30.11.2021 to 29.11.2024. The insured declared value (IDV) of the vehicle was Rs.6,51,896/-. The premium of Rs.21,167/- was paid by the complainant. On 16.03.2022 at 6.30 a.m., the abovesaid vehicle met with an accident near Airport, Ludhiana, Punjab. Complainant parked the abovesaid vehicle in Ludhiana at his relative house and intimated the OP regarding the accident. At the time of accident, the said vehicle was being driven by the cousin of the complainant namely Krishan Kumar, who was having valid driving licence. At the time of accident and after accident complainant was out of station due to which he could not take the vehicle to the repair shop and on 04.04.2022, when he came back to Punjab, he took the vehicle to Maruti Suzuki Arina, Inderjeet Marwah Autos, Jalandhar and also intimated the same to OP that company told the complainant that the abovesaid vehicle is under total loss and if it will be repaired more than Rs.3,00,000/- will be spent on the abovesaid car, but OP refused to give cashless claim initially and then refused to give any claim without assigning any good cause. Till date the abovesaid vehicle is standing at the premises of Inderjeet Marwah Pvt. Ltd. Jalandhar, Punjab and because of that complainant is receiving legal notice from Inderjeet Marwah Auto Ltd. Due to the aforesaid act and conduct of the OP, the complainant suffered mental pain, agony and harassment. In this way there is deficiency in service and unfair trade practice on the part of the OP. Hence, complainant filed the present complaint seeking direction to the OP to pay Rs.6,51,896/- with interest @ 12% per annum till the realization of payment, to pay Rs.50,000/- on account of mental pain, agony, harassment and financial loss and to pay Rs.25,000/- as litigation expenses.

2.             On notice, OP appeared and filed its written version raising preliminary objections with regard to maintainability; cause of action; locus standi and concealment of true and material facts. On merits, it is pleaded that complainant had purchased Kotak Car Secure-Bundled Policy bearing no.MIK/N99021772 for the period 30.11.2021 to 29.11.2022 thereby insuring his Maruti New Baleno car for total own damage sum insured to the tune of Rs.6,51,896/-. Complainant had intimated the claim with respect to alleged damages incurred to insured vehicle by virtue of claim intimation dated 18.04.2022 wherein complainant had stated that on 16.03.2022, while on its way to Ludhiana Airport, a bus tried to overtake insured vehicle, and in the process, pushed insured vehicle because of which insured vehicle lost control and overturned resulting into alleged damages. After lodging the claim, OP had duly registered the claim having claim registration no.10110107186. On receipt of intimation, OP appointed an independent IRDA authorized surveyor namely Rakesh Grover, who duly assessed the loss, collected all relevant documents and finalized its report wherein surveyor without admitting liability had assessed the loss to the tune of Rs.7,36,145/-, however had recommended for repudiation of claim subject to investigator observations. OP had further appointed independent investigator namely True tracer Investigation Services who duly conducted investigation, collected photographs, statement and other related documents and finalized its investigation report wherein investigator had highlighted below mentioned discrepancies in the claim intimated. As per statement of insured, alleged accident incurred upon 16.03.2022 at 6.00 a.m. however after going through mobile gallery of insured, investigator found whatsapp images of same loss location and damaged vehicle which had occurred on 10.01.2022. It clearly established the fact that insured has deliberately misrepresented date and time of occurrence of accident. It is further pleaded that as per the statement of eye witness, accident had occurred during cold weather. Eye witness further recalled that after accident driver of the insured vehicle was made to sit near fire for relief and rest. It is further established the fact that accident had occurred in cold weather of January as against moderate weather of March. Insured had provided 2 statements to investigator, as per first statement insured’s vehicle was kept at relatives residence for 30 days and then shifted to garage for repairs whereas as per the second statement insured has mentioned that vehicle was kept at relative’s residence for 17 days and then shifted to garage. As per statement of insured, vehicle has been financed by Kotak Mahindra whereas as per status showing online, vehicle is financed by HDFC Bank whereas as per the original RC, vehicle has been hypothecated and financed by M&M finance services. As per statement of insured, insured vehicle had been bought on 30.11.2021, however on further scrutiny it was observed that vehicle was registered at RTO Karnal on 19.01.2022 only. It is further pleaded that on the basis of above observations, investigator had recommended for repudiation of claim on the ground that insured has deliberately made attempts to mispresent loss date and time of insured vehicle and after careful observations of documents it can be concluded that loss incurred in the month of January and not in the month of March as narrated by insured in the claim lodged. After due scrutiny of all documents and information furnished with the OP, the claim of the complainant was rightly repudiated by the OP on the ground of delay in intimation, misrepresentation of facts, vehicle was not registered and misrepresentation of facts as the driver details. There is no deficiency in service and unfair trade practice on the part of the OP. The other allegations made in the complaint have been denied and prayed for dismissal of the complaint.

3.             Parties then led their respective evidence.

4.             Learned counsel for the complainant has tendered into evidence affidavit of complainant Ex.CW1/A, copy of insurance policy dated 30.11.2021 Ex.C1, copy of RC of the vehicle Ex.C2, copy of aadhar card of complainant Ex.C3, copy of voter card Ex.C4, copy of driving licence  of Krishan Kumar Ex.C5, copy of insurance policy dated 08.11.2022 Ex.C6, copy of letter dated 23.06.2022 by Maruti Suzuki Arena to complainant regarding denial of repair work due to repudiation of claim Ex.C7, copy of aadhar card of Krishan Kumar Ex.C8, copy of repudiation letter dated 10.10.2022 Ex.C9, copy of legal notice dated 16.09.2022 Ex.C10 and closed the evidence on 03.07.2023 by suffering separate statement.

5.             On the other hand, learned counsel for the OP has tendered into evidence affidavit of Milind V Myakal, Senior Vice Present Ex.OP1/A, copy of insurance policy alongwith terms and conditions Ex.OP1, copy of investigation report Ex.OP2, copy of statement of complainant Ex.OP3, copy of survey report Ex.OP4, copy of repudiation letter dated 10.10.2022 Ex.OP5, copy of letter dated 08.11.2022 Ex.OP6, copy of RC Ex.OP7, copy of letter dated 23.06.2022 Ex.OP8 and closed the evidence on 20.03.2024 by suffering separate statement.

6.            We have heard the learned counsel for the parties and perused the case file carefully and have also gone through the evidence led by the parties.

7.             Learned counsel for complainants, while reiterating the contents of the complaint, has vehemently argued that during the subsistence of insurance policy, the vehicle of the complainant met with an accident and was damaged totally. The loss intimation was also given to the OP. Complainant lodged the claim with the OP and submitted all the required documents and requested to settle his claim but OP denied to give cashless claim and then repudiated the claim of complainant on the false and frivolous ground and lastly prayed for allowing the complaint.

8.             Per contra, learned counsel for the OP, while reiterating the contents of written version, has vehemently argued that on receipt of intimation, company appointed Shri Rakesh Grover Surveyor to inspect the damaged vehicle, who inspected the vehicle and submitted his report and assessed the loss to the tune of Rs.7,36,145/-. The claim of complainant has been rightly repudiated by the OP and lastly prayed for dismissal of the complaint.

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

10.           Admittedly, the vehicle in question met with an accident during the subsistence of the insurance policy. It is also admitted that the insured declared value of the vehicle was Rs.6,51,896/-.

11.           The claim of the complainant has been repudiated by the OP, vide repudiation letter Ex.C9/Ex.OP5 dated 10.10.2022 on the following grounds, which are reproduced as under:-

        “We have reviewed the documents submitted by you and as per independent verifications of the facts, we have following observations:-

1. Delay in intimation: As per the intimation, the alleged loss has taken place on 16^th March, 2022. However, the intimation is given to the company on 18.04.2022. Thus, there is a delay of around 32 days. Kindly clarify the reasons for delay in intimation and please note that as per condition no.1 the insured is under an obligation to give immediate intimation to the company as this will enable the company to assess the loss and ascertain the true cause and nature of loss in as is where condition.

Condition no.1

Notice shall be given in writing to the company immediately upon the occurrence of any accidental loss or damage in the event of any claim and thereafter the insured shall give all such information and assistance as the company shall require. Every letter claim writ summons and/or process or copy of thereof shall be forwarded to the company immediately on receipt by the insured………………….insured shall provide the reasons of such delay to the insurer and insurer may on analysis of reasons provided by insured, condone the delay in intimation of claim or delay in providing the required information/documents to the insurer.

2. Misrepresentation of facts as to date of loss: As per intimation given by you, the vehicle has allegedly met with an accident on 16^th March 2022. However, during the claim verification process, our representative requested you to share the spot photographs of the vehicle but you have voluntarily shown him Whatsapp communication in which the vehicle is seen to be in damaged condition on 10^th January, 2022. It is also pertinent to mention here that the vehicle is registered on 19^th January, 2022. Therefore, this indicate that the vehicle has met with an accident on 10^th January, 21022. However, as the same was not registered, you have made willful suppression of material facts and misrepresentation of facts by manipulated the actual date of loss.
3. Misrepresentation of facts as to driver details: It is also noted during the verification process that you were driving the vehicle at the material time of accident. But you are holding driving licence only to driver Motorcycle with gear”. Therefore, you have even damaged the actual driver and implanted Mr. Krishna Kumar as driver.

In view of the above, kindly submit your clarifications alongwith documentary evidence, if any, within seven days of the receipt of this letter and show cause why your claim shall not be repudiated for willful suppression and misrepresentation of facts”.

 12.          The claim of the complainant has been repudiated by the OP on the abovesaid grounds. The OP has alleged that as per intimation, the vehicle was allegedly met with an accident on 16.03.2022. However, during the claim verification process, the representative of the OP requested to share the spot photographs of the vehicle but the complainant had voluntarily shown him Whatsapp communication, in which the vehicle is seen to be in damaged condition on 10^th January, 2022. The OP further alleged that the vehicle is registered on 19^th January, 2022. Therefore, this indicate that the vehicle has met with an accident on 10^th January, 2022. However, as the same was not registered, thus the complainant has made willful suppression of material facts and misrepresentation of facts by manipulated the actual date of loss. The onus to prove its version was relied upon the OP but OP has miserably failed to prove the same by leading any cogent and convincing evidence. Alongwith surveyor report, the surveyor of the OP has placed the photographs of the alleged damaged vehicle clicked from the mobile phone of the complainant, in order to ascertain the fact that the accident has took place in the month of January, 2022. From the above photographs, it is no where proved that the same are belonging to the vehicle in question. Further, the OP has also not examined any alleged eye witness of the spot, who can depose that the photographs which the surveyor of the OP has placed with his report, are actually of the vehicle in question. Furthermore, OP has alleged that during the verification process that complainant was driving the vehicle at the time of accident but complainant is having driving licence only to driver Motorcycle with gear. In this regard, the OP has neither placed on file any cogent and convincing evidence nor examined any eye witness of the spot of accident. Hence, it appears the claim of the complainant has been repudiated by the OP on the basis of presumption and assumption, which is not admissible in the eyes of law.

13.           The accident took place on 16.03.2022 and intimation was given to the OP on 18.04.2022 i.e after the delay of 32 days. The complainant has removed the vehicle in question from the spot without any intimation to the OP, thus the OP has deprived from their right to ascertain the actual cause of accident, thus, there is violation of terms and conditions of the insurance policy.

14.           For the sake of arguments, if it is presumed that complainant has violated the terms and conditions of the insurance policy, in that eventuality, the claim of the complainant cannot be repudiated in toto.  In this regard, we are relying upon the authority cited in Revision Petition no.1870 of 2015(NC) decided on 14.08.2018 titled as New India Assurance Co. Ltd. Versus Thirath Singh Brar,  and authority of our own Hon’ble State Commission in First Appeal no.717 of 2016 decided on 6.4.2017 titled as United India Insurance Company Limited and others Versus Anshul Bansal.  In both judgments it was held that in case of any breach of warranty/condition of the policy the insurer is liable to pay 75% of admissible claim on non-standard basis.

15.           Furthermore, now a days it has become a trend of insurance companies, they issue the policies by giving false assurances and when insured amount is claimed, they make such type of excuses. Thus, the denial of the claim of complainant is arbitrary and unjustified. In this regard, we place reliance on the judgment of Hon’ble Punjab and Haryana High Court titled as New India Assurance Company Ltd. Versus Smt. Usha Yadav & others 2008 (3) RCR (Civil) 111, wherein the Hon’ble Punjab and Haryana High Court 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”.

16.           Keeping in view, the ratio of the law laid down in aforesaid judgment, facts and circumstances of the present complaint, the act of the OP while repudiating the claim of complainant in toto amounts to deficiency in services and unfair trade practice.

17.           The surveyor of the OP has assessed the loss to the tune of Rs.7,36,145/-, vide his report Ex.OP4 dated 22.04.2022, which is the more than the Insured Declared Value (IDV) of the vehicle. As per insurance policy Ex.C1 the IDV of the vehicle in question is Rs.6,51,896/-.  Hence, complainant is entitled for 75% of the IDV of the vehicle alongwith interest, compensation for mental agony and harassment and litigation expenses.  

18.           Thus, in view of the above discussion, we allow the present complaint and direct the OP to pay Rs.4,88,922/- (Rs. four lakhs eighty eight thousand nine hundred twenty two only) 75% of the IDV of the vehicle in question alongwith interest @ 9% per annum from the date of filing of the complaint i.e.23.01.2023 till its realization to the complainant. We further direct the OP to pay Rs. 25,000/- to the complainant on account of mental agony and harassment suffered by him and Rs.11,000/- for the litigation expense. However, the complainant is also directed to complete all the formalities with regard to transfer/cancel of the RC of the vehicle in question and handover the salvage to the OP.  This order shall be complied within 45 days from the date of 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.

Dated: 11.09.2024                                                           

                                                                  President,

                                                     District Consumer Disputes

                                                     Redressal Commission, Karnal.

 

(Neeru Agarwal)         (Sarvjeet Kaur)

                 Member                    Member