Haryana

Karnal

CC/591/2022

Anil Sharma - Complainant(s)

Versus

Magma HDI General Insurance Company Limited - Opp.Party(s)

Ms. Seema Bhardwaj

04 Sep 2023

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, KARNAL.

                                                      Complaint No. 591 of 2022

                                                      Date of instt.18.10.2022

                                                      Date of Decision:04.09.2023

 

Anil Sharma aged about 36 years son of Shri Tilak Raj Sharma, resident of house no.408, Gali no.4, Basant Vihar, Karnal. Aadhaar no.3669 3050 5962.

                                               …….Complainant.

                                              Versus

 

Magma-HDI General Insurance Company Ltd. having its office at Sector-3, HSIIDC, Karnal through its Branch Manager.

 

…..Opposite Party.

       

Complaint Under Section 35 of Consumer Protection Act, 2019.

 

Before   Shri Jaswant Singh……President.

              Shri Vineet Kaushik…….Member

              Dr. Rekha Chaudhary……Member

          

Argued by:  Ms. Seema Bhardwaj, counsel for the complainant.

                    Shri Atul Mittal, counsel for the OP.

 

                    (Jaswant Singh, President)

ORDER:                     

          

                 The complainant has filed the present complaint Under Section 35 of Consumer Protection Act, 2019 against the opposite party (hereinafter referred to as ‘OP’) on the averments that complainant got insured his Volkswagon Cross Polo car, bearing registration no.HR-70-C-9264 with the OP by paying premium of Rs.10225/-, vide policy no.P0222400002/4101/113853, valid from 07.02.2022 to 06.02.2023. The insured declared value of the vehicle is Rs.2,91,375/-.  The said vehicle of the complainant met with an accident on 15.06.2022 at Gharaunda District Karnal and in the said accident the vehicle was totally damaged. After the accident, complainant sent the intimation to the OP. OP got surveyed the vehicle from the authorized surveyor. As per instruction of the OP the said vehicle was taken to the Volkswagen showroom and service centre, G.T. Road, Karnal, for which complainant has to pay Rs.2500/- as toeing charges from place of accident to workshop. The surveyor after examining the said vehicle and workshop of said company, opined that the vehicle has been totally damaged and such there is no need of getting the same repaired. After that complainant visited the office of OP several times and lodged the claim with the OP. The official of OP got signed some blank and printed papers from the complainant and assured that the payment of compensation amount will be given to him very soon.

2.             It is further averred that the said vehicle is under the hire purchase agreement with Magma Finance Company which is sister concern of the OP. After accident the complainant also gave intimation to the said finance company and requested to stop accepting EMI and debiting interest in the loan amount as now the loan amount is to be repaid by the insurer of said vehicle but the said company refused to accede the request of complainant by saying that they are not responsible for the act of the insurance company. After waiting sufficient time, complainant visited the office of OP and requested to settle the claim but OP did not pay any heed to the request of complainant and postponed the matter on one pretext or the other and lastly refused to pay any compensation to the complainant without disclosing any sufficient reason. In this way there is deficiency in service and unfair trade practice on the part of the OP. Hence this complaint.

3.             On notice, OP appeared and filed its written version, raising preliminary objections with regard to maintainability; complaint is premature; cause of action; locus standi; jurisdiction as the policy in question was issued from Mohali where the OP is having its office; mis-joinder and non-joindr of necessary party as Magma Finance not the party in that complaint and concealment of true and material facts. On merits, it is pleaded that as per record of the OP no claim was lodged as alleged by the complainant under the policy in question. Had the complainant lodged any claim, a claim number would have been allotted and the claim would have been registered. Hence, for want of immediate intimation and registration of claim no claim is payable under the policy in question. The complainant has not given any opportunity to OP to process the claim. 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.

4.             Parties then led their respective evidence.

5.             Learned counsel for the complainant has tendered into evidence affidavit of complainant Ex.CW1/A, copy of RC of vehicle Ex.C1, copy of insurance policy Ex.C2, copy of surveyor report dated 30.11.2022 Ex.C3, copy of affidavit of complainant regarding no police report/DDR lodged Ex.C4, copy of e-stamp Agreement for sale of salvage Ex.C5, copy of invoice Ex.C6, photographs of accidental vehicle Ex.C7 and closed the evidence on 03.05.2023 by suffering separate statement.

6.             On the other hand, learned counsel for the OP, has tendered into evidence affidavit of Sandeep Kapoor, working Manager Ex.OW1/A, copy of insurance policy Ex.OP1, copy of claim form Ex.OP2, copy of surveyor assessment report Ex.OP3, copy of final survey report Ex.OP4 and closed the evidence on 04.08.2023 by suffering separate statement.

7.             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.

8.             Learned counsel for complainant, while reiterating the contents of the complaint, has vehemently argued that complainant got insured his Volkswagon car with the OP. On 15.06.2022, the said vehicle met with an accident and was badly damaged. The intimation in this regard was sent to OP. Complainant requested the OP several times to settle the claim but OP did not pay the claim and lastly prayed for allowing the complaint.

9.             Per contra, learned counsel for the OP, while reiterating the contents of written version, has vehemently argued that this Commission has no territorial jurisdiction to try and decide the present complaint as the policy in question has been issued by the OP at Mohali. He further argued that present complaint is premature as no claim has been lodged by the complainant with the OP and prayed for dismissal of the complaint.

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

11.           Admittedly, the vehicle in question met with an accident during the subsistence of the insurance policy.

12.           OP alleged that this Commission has no territorial jurisdiction to try and decide the present complaint. The accident took place at Gharaunda, District Karnal. The complainant resides at Karnal and office of the OP is also situated at Karnal. Hence, as per Section 34 Consumer Protection Act, 2019 this Commission has jurisdiction to try and decide the present complaint.

13.           The OP also alleged that present complaint is premature as no claim had been lodged by the complainant with the OP. OP itself has placed on file claim form Ex.OP2, surveyor assessment report Ex.OP3 and survey report Ex.OP4. From the above reports, it has been proved that complainant had lodged the claim with the OP and on submission of the claim, OP appointed surveyor to assess the loss of the vehicle in question.  Hence the said plea taken by the OP has no force.

14.           Further,  Hon’ble Punjab and Haryana High Court in case titled as New India Assurance Company Ltd. Versus Smt. Usha Yadav & others 2008 (3) RCR (Civil) 111, 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”.

15.           Keeping in view, the ratio of the law laid down in aforesaid judgments, facts and circumstances of the present complaint, we are of the considered view that act of the OP while repudiating the claim of the complainant amounts to deficiency in service, which is proved otherwise genuine.

16.           As per the survey Ex.OP4 dated 20.12.2022, loss has been assessed by the surveyor of the OP to the tune of Rs.1,67,375/-but complainant has claimed Rs.2,91,375/- as insured declared value (IDV) of the vehicle. The complainant has not placed on file any proof to prove that the vehicle has become total damaged. Hence, the report of the surveyor will prevail. In this regard we are relying upon the authority 2(2008) CPJ paged 182 (NC), United India Insurance Co. Vs. Maya, wherein it has been held that a surveyor report should not be dismissed summarily as the surveyor is independent and qualified person under the relevant provision of Insurance Act, 1938. In view of this authority as well as the facts and circumstances of the case, we are of the considered view that the OP is liable to pay the loss assessed by the surveyor alongwith interest, compensation for mental agony and harassment and litigation expenses.

17.           In view of the above discussion, we partly allow the present complaint and direct the OP to pay Rs.1,67,375/- (Rs. one lakh sixty seven thousand three hundred seventy five only) alongwith interest @ 9% per annum from the date of closing of the claim till its realization to the complainant. We further direct the OP to pay Rs.20,000/- to the complainant on account of mental agony and harassment suffered by him and Rs.11,000/- for the litigation expense. This order shall be complied within 45 days from the 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.

Announced

Dated:04.09.2023                  

                                                                  President,

                                                     District Consumer Disputes

                                                     Redressal Commission, Karnal.

 

(Vineet Kaushik)        (Dr. Rekha Chaudhary)

                          Member                      Member