BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, SIRSA.
Consumer Complaint no. 102 of 2022.
Date of Institution : 25.01.2022
Date of Decision : 12.02.2024
Sohan, aged 30 years son of Shri Ram Kumar, resident of House No. 288, Chattargarh Patti, Sirsa, Tehsil and District Sirsa.
……Complainant.
Versus.
1. Kotak Mahindra General Insurance Co. Ltd., H-78, 7th Floor, 23 Himalaya House, Kasturba Gandhi Marg, New Delhi- 110 001, through its Manager/ Authorized Signatory.
2. Pareek, Agent, Kotak Mahindra General Insurance Co. Ltd., C/o Bharti Insurance, New Housing Board Colony, Near Service Station, Barnala Road, Sirsa, District Sirsa. Mob. No. 82958-46014.
..…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. JBL Garg, Advocate for the complainant.
Sh. H.S. Raghav, Advocate for opposite party no.1.
Opposite party no.2 already exparte.
ORDER:-
The complainant has filed the present complaint under Section 35 of the Consumer Protection Act, 2019 against the opposite parties (hereinafter referred as OPs).
2. In brief, the case of complainant is that complainant had got insured his Mahindra Pickup vehicle No. HR-61A/4208 with the op no.1 through op no.2 vide insurance policy No. 1121260300 for the period w.e.f. 13.12.2019 to 12.12.2020 for the sum assured amount of Rs.2,25,000/- and had paid insurance premium to op no.1 through op no.2. That on 01.10.2020 at 1.30 midnight the aforesaid vehicle of complainant met with an road side accident near village Nanakpur, Tehsil and District Sirsa and suffered huge damages. The factum of accident was reported to the police on 02.10.2020 and agent of the op was also informed in this regard. A rapat no. 25 dated 4.10.2020 was recorded by the police station Sadar Sirsa. The said vehicle was totally damaged in this accident. It is further averred that complainant gave intimation to op no.1 whereupon op no.1 deputed its Surveyor who visited the spot and surveyed the accidental vehicle. That as vehicle was totally damaged, therefore, same could not be repaired. Thereafter, complainant lodged claim with op no.1 and supplied all the requisite and relevant documents and also completed the required formalities for settlement of his claim. The op no.1 wrote a letter dated 15.3.2021 to the complainant and thereby acknowledged the receipt of the claim and raised some unnecessary queries which were just aimed towards the repudiation of the genuine claim of complainant. Subsequently vide letter dated 22.03.2021, the op no.1 has repudiated the claim of complainant on false and flimsy grounds and has caused gross deficiency in service and harassment to the complainant. The complainant approached the ops and made a request to pay the amount equal to the sum assured i.e. Rs.2,25,000/- alongwith interest and also to pay compensation but the ops did not pay any heed to the same. That ultimately complainant got served a legal notice upon op no.1 on 11.11.2021 but of no use and now two days back the ops have refused to admit his claim. Hence, this complaint.
3. On notice, op no.1 appeared and filed written statement taking certain preliminary objections that complaint is premature, misconceived, false and incorrect; that complaint is not maintainable in the present form; that complainant has no cause of action to file the present complaint; that complaint and prayer is barred by law of limitation; that complainant has suppressed the true and material facts. It is submitted that complainant’s vehicle allegedly met with an accident on 01.10.2020 and the intimation of the same was given to op on 03.10.2020 by complainant i.e. after delay of two days. As per the narration of loss given by complainant, one third party vehicle dashed the insured vehicle from driver side and vehicle sustained damages. Further as per the claim form submitted by complainant at the material time of loss, two people were travelling the vehicle viz. Prasharam alleged driver and Mr. Rahul Kumar. The op no.1 entrusted the case for investigation to verify the facts and documents and it was noticed that vehicle has sustained damages from driver side and only Mr. Rahul Kumar has sustained injuries and no injuries is caused to alleged driver Mr. Prasharam. Therefore, the investigator required to submit the driving licence of Mr. Rahul Kumar. However, it came to notice that he is not holding valid and effective driving license. That upon examining the facts and material available on record, the investigator noted that this is a case of willful misrepresentative. Since Mr. Rahul Kumar is not holding valid driving licence, Mr. Prasharam is implanted as driver to mislead the answering op to get claim. The answering op had sent a letter seeking clarifications regarding the misrepresentation as to driver swapping but there was no response. Therefore, the answering op has closed the claim of complainant. It is further submitted that complainant has not approached this Commission with clean hands and he has manipulated the facts to avail the claim under insurance contract. He has made willful breach of the policy terms and conditions and also made violation of Section 3 of the Motor Vehicles Act by allowing Mr. Rahul Kumar to drive the vehicle who is not holding valid and effective driving license.
4. On merits, while reiterating the pleas of preliminary objections, it is also submitted that investigator was not able to collect all the required documents as same were not provided by the complainant. The Investigator gave its findings that as per statement of driver Mr. Parsha Ram Sharma he stated that IV did not hit with truck trailer but Mr. Rahul told that first hit with truck trailer’s backside and then hit with tree. There was mismatch in the statement of both of them. The Investigator further disclosed that they met with Mr. Rahul Kumar and interrogated with him about accident and he verbally told them that a truck trailer was coming from opposite site. Because of single line road, he himself used dipper (Passing light) for passing him first and he clearly stated that he used dipper which shows that at the time of accident Mr. Rahul Kumar was driving the IV and he also told that opposite vehicle did not response of his dipper and rear of the truck trailer hit into the rear right backside of the IV. Mr. Rahul stated he turned his head in the right direction and looked at the backside of the vehicle out of the window. Only the driver of the vehicle can see the rear right backside of the vehicle by turning the neck in the right direction out of vehicle window. If he was sitting on the left seat of the vehicle, then he would turn the neck to the left and look towards the backside of the vehicle. The Investigator further disclosed that they inspected the insured vehicle which was in badly damaged condition from front right side and load body from left side but there was no any injury to driver even not a single scratch and that is not possible in this accident. Mr. Rahul Kumar’s injury shows signs that Mr. Rahul Kumar was driving the IV. As per neighbor of Mr. Rahul Kumar, he himself is a driver and drives this vehicle himself and he has no paid driver. As per Mr. Santa worker on brick-kiln there was only one person in the vehicle at the time of accident. The Investigator also reported that as Mr. Banshi Singh son of Chirgi Lal admitted him in the hospital and Mr. Banshi Singh is his brother. It is further submitted that insurance company had sent letters dated 09.03.2021 and 15.03.2021 mentioning that no opportunity was given to them to inspect the vehicle on the spot of loss, to verify the admissibility of the loss. Thus, insured had deprived them an opportunity to ascertain the necessary facts related to the accident including limitation, cause of loss, circumstances and quantum of loss required to decide the admissibility. There is substantial and unexplained delay between actual date and time of accident and intimation to their office about the reported loss. As per claim intimation, the date of accident is 01.10.2020 but insured has informed them after more than two days and there has been violation of condition of the policy. Remaining contents of complaint are also denied to be wrong and prayer for dismissal of complaint made.
5. Initially, op no.2 also appeared and sought adjournment for filing written statement but on 17.05.2022 none appeared on behalf of op no.2 and as such op no.2 was proceeded against exparte.
6. The complainant in evidence has tendered his affidavit Ex. CW1/A and documents Ex.C1 to Ex.C11.
7. On the other hand, op no.1 has tendered affidavit of Sh. Milind V. Myakal, Senior Vice President as Ex.R1, documents Ex.R2 to Ex. R12, CD Ex.R13 and documents Ex.R14 to Ex.R23,
8. We have heard learned counsel for the parties and have gone through the case file.
9. There is no dispute of the fact that vehicle of the complainant bearing registration No. HR-61A/4208 was insured with the op no.1 for the period 13.12.2019 to 12.12.2020 for the sum insured amount of Rs.2,25,000/- under Kotak Commercial Vehicle Secures (Goods Carrying Vehicle) Comprehensive policy. It is also not in dispute that vehicle met with an accident during the intervening night of 1/2.10.2020 near village Nanakpur, Tehsil and District Sirsa and was totally damaged. The claim lodged by complainant has been repudiated by the op no.1 on the basis of report of Sh. Rajiv Mudgal Investigator who has also furnished his affidavit Ex.R2. But we found that op no.1 has wrongly and illegally repudiated the genuine claim of the complainant on false and flimsy grounds on the basis of report of their appointed Investigator and it appears that Investigator has given favourable report in favour of the insurance company and has raised mere technicalities only to deny the genuine claim of complainant. It also appears that op no.1 has repudiated the claim of complainant only on the basis of assumption and presumption of its Investigator. According to the Investigator it cannot be possible that alleged driver Parsha Ram will not suffer any injury in the said accident and only conductor Rahul Kumar will suffer injury and as such according to the Investigator said Rahul Kumar was driving the vehicle and as such he only suffered injury but the said assumption and presumption of the Investigator is not correct because the insured vehicle due to the negligent driving of coming vehicle initially hit in the tree from driver side and was damaged badly from the driver side and thereafter it turned turtle towards left side and the conductor/ occupant Rahul Kumar who was sitting towards left side of the vehicle received injury. The driver Parsha Ram any how with the God grace was saved and did not receive any fatal injury on his person. The op no.1 has also submitted that there was delay of more than two days in intimation of the accident on the part of complainant which is also not material in this case because immediately after the accident the police was informed and as such no prejudice has been caused to the op no.1. Moreover, the Surveyor of the op no.1 visited the spot and also inspected the accidental vehicle and made thorough inquiry and the place of accident as well as manner of accident is not in dispute. As such it is proved on record that Investigator has given its report on wrong assumption and presumption and raised mere technicalities which are not admissible in the eyes of law and the op no.1 has wrongly and illegally repudiated the genuine claim of complainant. The vehicle in question was insured for an amount of Rs.2,25,000/- and as per report of Sh. Ravi Aggarwal, Surveyor Ex.R18, the vehicle was totally damaged and its repair costs was more than the insured value and as such complainant is entitled to sum insured amount of Rs.2,25,000/- as claimed by complainant and the op no.1 will be entitled to salvage of damaged vehicle.
10. In view of our above discussion, we allow the present complaint and direct the opposite party no.1 to pay the sum insured amount of Rs.2,25,000/- 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 above said amount of Rs.2,25,000/- alongwith interest at the rate of @6% per annum from the date of this order till actual realization. We also direct the op no.1 to further pay a sum of Rs.10,000/- as compensation for harassment and Rs.10,000/- 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. 12.02.2024. District Consumer Disputes Redressal Commission, Sirsa
