Chandigarh

DF-I

CC/944/2022

RAJ KUMAR WALIA AGED ABOUT 55 YEARS S/O SH KRISHAN PARKASH - Complainant(s)

Versus

MAGMA HDI GENERAL INSURANCE CO. LTD. THROUGH ITS AUTORIZED OFFICER/ GENERAL MANAGER - Opp.Party(s)

SHYAM SINGH CHHOKAR AND ADITYA BHUSHAN

01 Jan 2024

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION-I,

U.T. CHANDIGARH

                                     

Consumer Complaint No.	:	CC/944/2022
Date of Institution	:	24/11/2022
Date of Decision	:	01/01/2024

 

Raj Kumar Walia aged about 55 years s/o Sh. Krishan Parkash r/o House No.84/C, Raipur Khurd, Behlana, Chandigarh.

… Complainant

V E R S U S

1. MAGMA HDI General Insurance Co. Ltd., Equinox Business Park, Tower 3, 2^nd Floor, Unit Number 1B & 2B, LBS Marg, Kurla (West), Mumbai – 400070 through its authorised officer/General Manager.
2. BERK Auto LLP SCO 6,7,8,9, Defence Enclave, CHIMA Complex Zirakpur, Punjab through its authorised officer/ General Manager.

… Opposite Parties

CORAM :	SHRI PAWANJIT SINGH	PRESIDENT
	MRS. SURJEET KAUR	MEMBER
	SHRI SURESH KUMAR SARDANA	MEMBER

 

                                                                               

ARGUED BY	:	Sh. Shyam Singh Chhokar, Advocate for complainant
	:	Sh. Inderjit Singh, Advocate for OP-1
	:	OP-2 ex-parte.

Per Pawanjit Singh, President

1. The present consumer complaint has been filed by Raj Kumar Walia, complainant against the aforesaid opposite parties (hereinafter referred to as the OPs).  The brief facts of the case are as under :-

1. It transpires from the allegations as projected in the consumer complaint that complainant is the registered owner of a Hyundai Creta 1.5 car bearing registration No.CH-01-CJ-9715 (hereinafter referred to as “subject car”) which was purchased by him from OP-2 and was got insured by OP-2 from OP-1 vide policy (Annexure C-2) which was valid w.e.f. 2.5.2022 to 1.5.2023 with total IDV of ₹10,65,425/-(hereinafter referred to as “subject policy”). Unfortunately, on 12.9.2022, the subject car, being driven by Suraj Ahluwalia, real brother of the complainant, met with an accident at Sundran-Nimbuan Road, Village Sundran, Tehsil Dera Bassi, Distt. SAS Nagar, Mohali.  OPs were immediately informed about the accident and the subject car was taken to the premises of OP-2.  Thereafter, officials of OP-2 examined the accidental/subject car and estimated the cost of repair at ₹10,44,387.35.  OP-1 had also deputed surveyor who also assessed the loss to the tune of ₹10,44,387.35 and disclosed the complainant that as the IDV of the subject car is ₹10,65,425/-, same falls under the category of total loss and asked OP-2 not to repair the same.  Officials of OP-2 asked the complainant to complete the formalities so that claim can be settled as early as possible. Accordingly, complainant completed all the formalities and submitted relevant documents to OP-1 for the settlement of the claim.  However, as the complainant had not received any response from OP-1 till 4.10.2022, he sent an email to customercare of OP-1 requesting to settle the claim.  Thereafter complainant again sent mails to OP-1 on 13.10.2022 & 18.10.2022 and on 19.10.2022 he received response from the customercare with the assurance that the claim will be settled.  Again on 21.10.2022, OP-1 had informed the complainant that the claim is under investigation and the details of the emails are Annexure C-3 (colly.).  On 21.10.2022 a person visited the house of the complainant, who claimed himself to be the employee of Star Investigators, and asked the complainant to submit certain documents, which were submitted by him. However, on 31.10.2022, complainant received a letter from Star Investigators in which some false allegations were made, but, same was also properly replied by the complainant vide email dated 5.11.2022 as well as speed post.  The complainant approached the OPs with the request to settle the claim.  However, OP-1 has not taken any effective steps to redress the grievance of the complainant, rather it had sent an email dated 6.11.2022 through customercare in which it was mentioned that the claim is not payable. Copies of letter dated 31.10.2022, reply dated 5.11.2022, postal receipt and email dated 6.11.2022 are Annexure C-4 to C-7. In this manner, the aforesaid act of the OPs amount to deficiency in service and unfair trade practice. OPs were requested several times to admit the claim, but, with no result. Hence, the present consumer complaint.
2. OP-1 resisted the consumer complaint and filed its written version, inter alia, taking preliminary objections of maintainability, concealment of facts, cause of action, jurisdiction etc.  It is alleged that, in fact, the investigator deputed by the insurer/OP-1 has reported in his report that, at the relevant time, subject car was not being driven by Suraj Kumar Walia, brother of the complainant, rather three young boys were present in the subject car, at the time of accident, out of which one was driving the subject car and as the complainant has misrepresented the facts, claim of the complainant was closed/repudiated, especially when the complainant has concealed the material facts.  On merits, it is admitted that the subject car was insured with the answering OP at the relevant time with IDV of ₹10,65,425/-.  However, the facts as stated in the preliminary objections have been reiterated. The cause of action set up by the complainant is denied.  The consumer complaint is sought to be contested.
3. OP-2 did not turn up before this Commission, despite proper service, hence it was proceeded against ex-parte vide order dated 8.2.2023.
4. In replication, complainant re-asserted the claim put forth in the consumer complaint and prayer has been made that the consumer complaint be allowed as prayed for.

2. In order to prove their case, contesting parties have tendered/proved their evidence by way of respective affidavits and supporting documents.
3. We have heard the learned counsel for the contesting parties and also gone through the file carefully, including written arguments.
   1. At the very outset, it may be observed that when it is an admitted case of the parties that the complainant is the registered owner of the subject car which was insured with OP-1/insurer w.e.f. 2.5.2022 to 1.5.2023, as is also evident from the subject policy (Annexure C-2/Ex.OP-1) and the subject car met with an accident on the relevant date, time and place and the same was declared as a total loss even by the investigator, but, the claim of the complainant was closed/repudiated by OP-1/insurer on the ground that, at the time of accident, the subject car was not being driven by Suraj Kumar Walia (Suraj Ahluwalia), rather the same was being driven by somebody else who was not possessing a valid driving licence and the complainant has mis-represented the facts, which is fundamental breach of the terms and conditions of the subject policy, the case is reduced to a narrow compass as it is to be determined if OP-1/insurer is unjustified in closing/repudiating the genuine claim of the complainant and the complainant is entitled to the reliefs prayed for in the consumer complaint, as is the case of the complainant, or if OP-1/insurer has rightly closed/repudiated the claim of complainant and the consumer complaint of the complainant is liable to be dismissed, as is the defence of OP-1/ insurer.
   2. In the backdrop of the foregoing admitted and disputed facts on record, one thing is clear that the entire documentary evidence is required to be scanned carefully for determining the real controversy between the parties.
   3. As per the case of the complainant, the subject car was being driven by his brother, Suraj Ahluwalia, who was possessing a valid driving licence at the time of the accident and the said fact has also been disclosed by the complainant to OP-1/insurer when intimation qua accident was given by him to OP-1.  On the other hand, claim of the complainant is closed/repudiated by OP-1 on the ground that, during investigation by the investigator deputed by OP-1, it was found that the subject car was not being driven by Suraj Kumar Walia (Suraj Ahluwalia), rather the same was being driven by someone else and even the location of the driver, at the time of accident, was not found near the place of accident.  The relevant portion of letter dated 31.10.2022 (Annexure C-4) is reproduced below for ready reference :-

“1.   On visiting the loss location and on asking the nearby persons of Loss Location, it came to our notice that at the time of accident only three kids were traveling in IV and one of the kid was driving the IV.  We made an AVR for this which is attached as a part of this report.

2.     On checking the Mobile Google Map timeline of driver, we found that he was not present at Loss Location at mentioned date and time of Loss.”

 

4. In support of its defence, OP-1/insurer has relied upon the report dated 28.10.2022 of the investigator (Ex.OP-3) which indicates that the investigator visited the spot and enquired from the nearby persons about the accident who disclosed that only three kids were travelling in the subject car and one of the kid was driving the same and further recorded the statement of the complainant as well as Suraj Ahluwalia and after recording their statements it was finally concluded by him that the subject car was not being driven by aforesaid Suraj Ahluwalia and accordingly the report was submitted by him to the insurer.  However, even the report containing reference of statements of the complainant and the driver, which have also been extracted in the report itself, nowhere proves that the subject car was not being driven by Suraj Ahluwalia or the same was being driven by somebody else.  Moreover, when the investigator in the report has given reference of the statements given by the persons who were enquired by him on the spot, but, since their statements have not been proved or produced on record, nor any of them has tendered affidavit to support the defence of OP-1, it is safe to hold that OP-1 has failed to prove on record that the subject car was being driven by somebody else and not Suraj Ahluwalia.
5. The investigator has further observed in his report that as per the google map the location of the driver was not found on the spot, but, surprisingly no such document is produced on record showing that the driver was not available on the spot.  Moreover, merely on the basis of mobile location being not available on the spot, and in the absence of other credible evidence, it cannot be said that the person, whose mobile is not showing his location on the spot, cannot be present there in physical form.   Hence, it is safe to hold that on the relevant date, time and place, the subject car was being driven by Suraj Ahluwalia, whose driving licence was valid upto 19.2.2030, as is also evident from extract of licence given in the investigator’s report (Ex. OP-3). Accordingly, the act of closure/repudiation of claim of the complainant by OP-1 on the ground that the subject car was not being driven by Suraj Ahluwalia is without merit and the same amounts to deficiency in service and unfair trade practice on its part. 
6. Now coming to the quantum of relief to be awarded in the instant case, since it is admitted case of the parties that the subject car was declared total loss and also that the said accident had taken place within six months of its purchase, no depreciation is to be made as per the terms and conditions of the subject policy.  Hence, complainant is entitled to full IDV of the subject car i.e. ₹10,65,425/- alongwith interest from the date of closure/ repudiation of the claim and compensation etc.

4. In the light of the aforesaid discussion, the present consumer complaint succeeds, the same is hereby partly allowed and OP-1/insurer is directed as under :-

1. to pay the IDV of ₹10,65,425/- to the complainant alongwith interest @ 9% per annum from the date of closure/repudiation of the claim i.e. 6.11.2022 onwards.
2. to pay ₹20,000/- to the complainant as compensation for causing mental agony and harassment;
3. to pay ₹10,000/- to the complainant as costs of litigation.

5. This order be complied with by OP-1 within forty five days from the date of receipt of its certified copy, failing which, the payable amounts, mentioned at Sr.No.(i) & (ii) above, shall carry interest @ 12% per annum from the date of this order, till realization, apart from compliance of direction at Sr.No.(iii) above.
6. Since no deficiency in service or unfair trade practice has been proved against OP-2, the consumer complaint against it stands dismissed with no order as to costs.
7. Pending miscellaneous application(s), if any, also stands disposed of accordingly.
8. Certified copies of this order be sent to the parties free of charge. The file be consigned.

01/01/2024 hg			Sd/- [Pawanjit Singh] President
			Sd/- [Surjeet Kaur] Member
			Sd/- [Suresh Kumar Sardana] Member