ORDER

No.16.

Date-16/07/2018.

         Sri RabidebMukhopadhyay, Member

   The complainant stated that the petitioner is the owner of the WB 02 AD 6224 of Chevrolet Company, which was purchased second hand; this is to mention here that the car was purchased by taking finance from a finance company; thecomplainant is a Doctor by profession and he needs a car for his professional purpose;

      That the car met an accident on 25/09/2016 near Airport on Belghoria Express Way and due to the accident the car was severely damaged.

      That it pertinent to mention here that the car was under insurance coverage of Liberty Videocon General Insurance of Metro Tower, 1 Ho Chi MinhSarani. P.S. ShakespeareSarani, Kolkata 700 071; a copy of the Insurance Policy Vide No. 2011/031401/1001057/00/000 issued on 19/07/2016 is enclosed and is marked as Annexure ‘A’;

         That after the accident the car was removed to authorized service center of the manufacturer of car named Speed Chevrolet and the said Speed Chevrolet after inspection issued an Estimation Report dated 30/09/2016 on request of the Insurer, prior to the Estimation between the Insurer and the Speed Chevrolet; A copy of the said Estimation is enclosed herewith and is marked as Annexure ‘B’;

         That since estimation the insurer went silent and the petitioner persuaded the matter personally with them but to no effect;

        That in the meantime the Speed Chevrolet shut down their business and the car was removed to Dulichand Motor Pvt. Ltd. on 29/12/2016;

        That few persons from the insurance company visited the petitioner and asked various questions regarding the car and the accident;

        That till date there is no disbursement of any amount in favour of the complainant for service of the car and the car is at present lying at the workshop of Dulichand Motor Pvt. Ltd and getting more and more damaged;

          That the petitioner has been paying EMI for the Car  at the rate of 13605/- per month;

That the Dulichand Motor Pvt. Ltd. initially asked for Rs.1, 00, 000/- to start with the work; A copy of the letter dated 07/07/2017 is enclosed herewith an d is marked as Annexure ‘C’;

           That  it is pertinent to mention here that the Insurance Company instructed to open the car entirely and give an estimate to them and as per their direction the service center opened the car entirely and at present the car is lying in that condition and getting damaged daily;

           That the service center has been charging charges  at the rate of 300/- towards parking charges of the car at the workshop;

            A copy of the Smart card of the car, tax token is enclosed herewith and is collectively marked as ‘D’;

            That the complainant is entitled to get insurance coverage for the repairing and service from the Insurance Company;

            That the valuation of the car as calculated by the Insurance company is 4, 90, 000/- as available in the insurance policy document;

           That the Insurance company has its office is at Kolkata 1, 7^th Floor 7/4 & 7/5, Metro Tower, 1 Ho Chi MinhSarani P.S. ShakespearSarani Kolkata 700 071, as such this Forum has well jurisdiction to decide the matter;

          That the cause of action first arose on 25/09/2016 and has been continuing day to day till date as such there is no delay in filing this complaint;

          That the complainant is entitled to get the entire amount as may be charged by the Manufacturer’s Authorized Service Center and is also entitled to get compensation and damages for mental pain, agony and other;

          That the petition is made bona fide for the ends of justice.

          To pass order directing the OP No.1 and to pay the entire cost to the OP no. 2 to repair and service the car under registration no. WB 02 AD 6224; and to pay compensation and damages to the complainant for causing mental pain and agony;

Written Version by OP1

OP-1 stated that, at the outset it is respectfully submitted that the complainant himself acts as insurance agent. This opponent is filing Copy of Policy issued by M/s Bajaj Allianz General Insurance Company Limited for the same vehicle wherein name of agency is clearly mentioned as complainant’s name.  Now if referred to policy issued by M/s Bajaj Allianz General Insurance Company Limited, it is evident that complainant’s vehicle was insured with them for the period from 14/10/2015 to 13/10/2016 and the complainant is claiming alleged accident date as 20/09/2016 which clearly falls within said policy. Complainant being agent of insurance is well aware of calculations and thus eligibility of the claim.  Major damage was to the engine because of seizure.   As Bajaj Policy was not covering Engine Safe cover, complainant was to bear such loss.  To avoid such situation, complainant misrepresented this opponent that his vehicle was uninsured and obtained policy from this opponent with Engine Safe Cover so that he can get complete amount of damages.  Now if complainant himself is agent, there is no reason for him not to know his vehicle insurance expiry date and obtaining another insurance much prior to expiry of such date.  However, complainant forged the policy period of Bajaj Allianz policy from 14/10/2015 to 13/10/2016 to 18/10/2015 to 17/10/2016 and showing one-day gap obtained policy from this opponent.  The conduct of complainant is sufficient to conclude that vehicle had major damage before he obtained policy from this opponent and to get such damages fully indemnified he obtained policy from this opponent with Engine Safe cover (which was not there in Bajaj Allianz Policy).

As complainant tried to play fraud to gain wrongfully and cause wrongful loss to this opponent, complaint deserves to be dismissed on this count alone.

Copy of Actual Policy as per M/s Bajaj Allianz General Insurance Company Limited is produced on record with ‘Annexure OP1-A’

           Copy of Policy purported to have been issued by M/s Bajaj Allianz General Insurance Company Limited and annexed by complainant with proposal form is produced on record with ‘Annexure OP1-B’

This opponent had issued interest of complainant in vehicle bearing Registration no. WB-02/AD-6224 vide Pvt. car package policy no. 2011-301401-16-1001057-00-000 for the period from 11.00 hours of 19/07/2016 to 18/07/2017 subject to the term/s and / or condition / s incorporated and to the extent of limits mentioned in the policy.  Certified copy of Policy is produced on record with ‘Annexure OP1-C’

            That on 23-09-2016, this opponent received an information from and/or on behalf of complainant to the effect that on 20-09-2016, while the vehicle was being driven on public roads, met with an accident and thus was damaged.  Copy of Claim Form submitted by complainant is produced on record with ‘AnnexureOP1-D’.

            That immediately this opponent deputed an IRDAI licensed independent surveyor Mr. Rajat Gupta to inspect the damaged vehicle and ascertain liability of insurer, if any.  The surveyor vide his report dated 13-03-2017, assessed loss to the vehicle to the tune of INR 3, 30,000/-.  Copy of Survey Report is produced on record with ‘Annexure OP1-E’.

            That after perusal of photographs of damaged vehicle, this opponent smelled some foul play in the matter.  As such, this opponent deputed an independent investigator M/s. APH Investigator to find out the truth.  Copy of Investigation Report is produced on record with ‘Annexure OP1-F’.

            That from the conjoint reading of Survey Report, Investigation Report and available documents, it transpired that –

1. As per E-mail of complainant dated 21-03-2017, pre-inspection of his vehicle was done by M/s. Mahindra First Choice Wheels Limited at Khanna Workshop whereas as per Pre-inspection report submitted by said inspecting agency with this opponent,

Place of pre-inspection was mentioned as Science city

(Copy of E-Mail of complainant dated 21-03-2017 is produced on record with ‘Annexure OP1-G’ produced on record with ‘Annexure OP1-H’.)

2. Enquiries with the Speed Auto Tec i.e. garage revealed that the Vehicle was reported at workshop on 16-07-2016 and released on 17-07-2016 vide gate pass number 6728 by break down van (Policy was obtained from 19-07-2016).  Again the vehicle was reported to garage on 06-09-2016 by break down van and released on 29-12-2016 by break down van vide gate pass number 6090, as if vehicle was reported to garage on 06-09-2016 in break down conditions and was lying in garage till 29-12-201.Complainant’s story that it met with an accident on 20-09-2016 at the place mentioned in claim form is clearly a false and concocted one.  Documentary evidence clearly shows that vehicle was lying in garage during that period and as such documentsclearly prove complainant’s theory of accident as a false one.
3. Pre inspection agency though stated that they inspected vehicle in running condition, it is admitted fact that vehicle was released from garage on 17-07-2016 in break down condition only.  Thus there is clear cut misrepresentation on the conditions of the vehicle while proposing for insurance.
4. Investigator had compared pre-inspection photos with the damaged vehicle photos and found the same.
5. In spite of 4 days since alleged accident the portion below radiator was wet and other parts were rusted.
6. As per cause of loss stated by complainant, while driving the vehicle ran over a ditch so under carriage got damaged.  However, vehicle condition and damaged bumper, which otherwise cannot be damaged in such scenario, tells altogether different story.
7. Cloth piece was found knotted to the wheel rim-Shows vehicle was not in running condition.

Thus, available documents clearly depicted the fact that vehicle was in non-drivable conditions at the time when the complainant proposed for insurance.  However, to cover damages under insurance, complainant had in glow with inspecting agency, managed to submit wrong inspection report on the basis which policy was obtained and after waiting time so that it could not look suspicious and then lodged claim with this opponent.  The damages, in fact occurred before proposing for insurance but with different date of accident complainant wanted to bring the same within policy purview and claim from this opponent.  As complainant was claiming pre-existing damages, the claim of complainant was denied by this opponent. 

That the averments in para 2 of complaint are not true and correct.  As per garage records, the vehicle was reported in break down conditions there on 06-09-2016 and was moved from garage on 29-12-2016.  As such, the vehicle during this period was lying in garage in break conditions, then one fails to understand as to how it met with alleged accident on 20-09-2016.  Garage record clearly falsifies the story of complainant.

That, in response to contents of para 3 of complaint, it is submitted that complainant had in glow with inspecting agency and managed to procure policy from this opponent for the vehicle which was already in break down conditions.  The policy was thus obtained on misrepresentations and only with intent to cover pre-existing damages.

That contents of para 4 of complaint are not true and correct.  The car was moved to the garage on 06-09-2016 i.e. before alleged date of accident.

That contents of Para 5, 8 and 14 of complaint are not true and correct; investigator and surveyor followed up the complainant for necessary explanation.  After scrutiny of the documents complainant was updated that damages being pre-existing this opponent is not in a position to consider the claim of complainant.

That contents of Para 7 of complaint are not denied.  As documents were depicting altogether different story, claim handler, investigator and surveyor time and again interacted with complainant to find out the truth.

That contents of Para 9 and 12 of the complaint are within knowledge of complainant only and this opponent has no reason to know the same by any means. 

That contents of para 11 of the complaint are not true and correct.  Damages to the vehicle were assessed by independent IRDAI Licensed Surveyor.

That in response to contents of para 15 of the complaint, it is respectfully submitted that value of the car was assessed on the basis of  representations by complainant and inspecting agency to the effect that vehicle was in drivable condition.  However, investigations revealed that such representation was wrong and/or incorrect.  Complainant hand in glow with inspecting agency and managed to get insurance policy for break down vehicle by misrepresenting it as in roadworthy conditions.

For the reasons stated herein, as the complainant is not entitled to any compensation from this opponent, it is respectfully prayed that the complaint may kindly be dismissed with costs.

Points for Discussion

1. Whether the complainant is a consumer under the OP-1;
2. Whether the OPs are deficient in rendering proper service to the complainant;
3. Whether the complainant deserves relief.

Decision with Reasons

1. The complainant stated that the second hand car bearing no. WB-02-AD 6224 met an accident on 20/09/2016 (Para-2 of Complaint) as revealed in claim Form also. 

But summary of investigation undergone by APH.Investigator (R.P. 27) states that the complainant admitted through email Ld. aphinvestigator 2016 at the rate of gmail. Com on 21/03/2017 that pre-inspection of his vehicle was done at Speed Auto tec at Khanna workshop, Kolkata, on 16/07/2016 at 12.45 pm and the inspection Report was given by Mahindra First Choice Wheels Ltd.

At RP-30, the APH investigation concluded based on documental evidence that at the time of P1 (Pre-Inspection) on 16/07/2016 vehicle was not in running condition.Place of P-I was wrongly documented by Mahindra First Choice Wheels Ltd.

It is also concluded by the APH Investigator that date of accident is also wrongly intimated by the insured.

It is, therefore, by documentary evidence clear that the complainant suppressed facts and information in lodging the claim before the insurer as well as in the instant complaint.The complainant has come to the Forum with unclean hands.

2.   The complainant’s claim for date of accident on 20/09/2016 appears falsified further (apart from observation under Para-1 above) by the entry in the Gate Register of Speed Auto tec (filed at RP-28) given at serial 1, the vehicle reported at the workshop (of Speed Auto Tec) on 16/07/2016 and was released on 17/07/2016 vide gate pass no.6728 by break down van.  Again the Vehicle was reported on 06/09/2016 by break down van, gate pass no.6090- and was released on 29/12/2016.

It is to be mentioned that the policy starting date is 19/07/2016 and claimed date of accident was 20/09/2016.Pre-Inspection was done by Mahindra First Choice Wheels Ltd. on 16/07/2016 at Science City, Kolkata certifying the Vehicle with running condition, whereas, the insured and the workshop (Speed Auto Tec) admitted (as per observation of APH Investigator filed at RP28) that place of P-I was at Khanna, Kolkata.It is also stated that the Investigator found on inspection of P-I and after accident, photos of similar damages.

3.  A brief analytical observation on the basis of disputed Pre-Inspection, Survey Report of Rajat Gupta, / IRDA approved Surveyor and appointed by the OP insurance Company and the Investigation Report of independent Investigator, APH Investigator reveal as below.

1.  There has been dispute in the place of Pre-Inspection Report, between Khanna and the Science City.  Such dispute raises eye-brow to the fact of P-I and other subsequent facts.
2. By documentary evidence, the vehicle is stated to have been in the Garage / work shop (Speed Auto Tec) from 16/07/2016 to 17/07/2016 (vide Gate pass No. 6728) and from 06/09/2016 to 29/12/2016 (Vide Gate Pass No. 6090).

So, how can it possible that the vehicle met with an accident on 20/09/2016 as mentioned by the complainant in the claim form and also at Para-2 of complaint.

Such claim seems not to be genuine and drastically confusing.This is again a clear case of suppression of facts and coming to the Forum with unclean hands.

3.   Condition of the vehicle as reported by Pre-Inspection Agency to be in running condition and the admitted fact that the vehicle was released from the Garage with Break down Van is too misrepresenting.
4. The report of independent investigator with pictures of different sides of the vehicle indicates that the condition of the vehicle could not have been so, had it run over a ditch as has been claimed by the complainant that it had been severely damaged.  Surveyor Rajat Gupta surveyed that no body damage was done, only engine of the car was damaged (RP-20). 

The claim of the complainant might be an altogether different story.

4. During argument which continued for two days to give chance to the complainant to defend his case by way of argument, the complainant remained absent for both the days.  This conduct of the complainant is the clear indicative of his attitude of grey intention.
5. From documentary evidence and submission by OP)-1 it reveals that the complainant had the insurance with Bajaj alliance General Insurance (not made a party) on the same vehicle (WB-02 AD 6224) for the period from 18/07/2015 to 17/07/2016 as disclosed in the claim history (RP-10).  The OP-1 (Liberty Videocon General Insurance) verified the Policy (18/07/2015 to 17/07/2016 – RP-10-marked as OP1-B) with Bajaj Insurance and came to know that the policy had been manipulated by the complainant being both the insured and the Agent with code. BAG 100000 174.  Actual policy no OG-16-2429-1801-00001232 (18/07/2015 to 13/10/2016) marked as OP1A (14/10/2015 to 13/10/2016) marked as OP-1A and the Forged Policy of the same no.(18/07/2015 to 17/07/2016) marked as OP 1B are both filed by complainant but marked by OP-1 on its copy of the complaint annexures.
6. Now, the question arises why such manipulation was allegedly made by the complainant. 

It is analytically observed that the complainant should have reported the accident (reportedly on 20/09/2016) to Bajaj Allaiz General Insurance (not made a party) of which the complainant was an insured and at the same time as Agent.He should have known the date of expiry of the policy.

But the fact remains that there was no coverage of the Engine (which got damaged) of the vehicle and the complainant arranged so, to pay less insurance premium to Bajaj Insurance as Agent, he knew the calculation of premium with risk involved. He had perhaps gained by paying less premium in excluding the engine cover but now he is facing the music the engine having been damaged in the accident in the ditch. So, futile efforts are on the escape the awkward situation by the complainant.

Then after porting the policy to OP-1, the complainant claimed something like pre-existing damage, because the engine seizure was made during the policy cover by Bajaj Allianz General Insurance Co. Ltd. but could not make the claim for want of engine coverage.So, manipulation in the policy was necessary by the complainant and he did so, by virtue of having the whereabouts as an Agent.

7. It is further to be actively noted that for an accident to be claimed for insurance amount, there must have been General Diary or FIR, MA Case (if any) lodged with the local Police Station.  But the complainant failed to file any such documents, in support of FIR or MA Case if any.

So, the whole episode seems to be a cock and bull story, designed and executed by the complainant in his own illegal interest and gain.

Incidentally, the complainant happens to be a doctor, a driver of the vehicle in question and the Agent of the policy.He adopted all endeavours to get the claimed amount for which he is not at all legally entitled.

8. The seemingly conducts of the complainant relate to fraud and manipulation to effect illegal gain.The consumer Forum is not designed to try such conducts of the complainant. 

But we may infer that the complainant not only rendered non-cooperation but also confused the Forum in finding the truth.The complaint is a frivolous and harassive one so far as the consideration under C.P. Act, 1986 comes in terms of section 26 of the Act, wasting time of OP-1 as well as of the Forum.The complainant has come to the Forum with unclean hands for which itself, the same deserves to be dismissed as per settled principle of law. The complaint is not bona fide as averred the complainant but a mala fide one.

OP-2 did not come to the Forum to contest the case.So, the case ran ex parte against OP-2.

In consideration of above detailed discussions, we are of the considered view to pass

            ORDER

That the complainant be and the same is dismissed on contest against the OP-1 in terms of section 13(2) (b) (i) of the C.P. Act, 1986 and exparte against OP-2 in terms of section 13(2) (b) (ii) of the Act;

That the complainant is directed to pay Rs.6000/- for his frivolous and harassive complaint in terms of section 26 of the Act, 50 percent of which shall go to the OP-1 and the rest to this Forum, within 30 days from the date of this order;

That on non-compliance of above order by the complainant within the stipulated time, the OP-1 shall have the liberty to put the order into execution in terms of section 27 of the Act ibid.

Let copies of the order be handed over to the parties when applied for.