Haryana

Karnal

CC/290/2019

Ram Pal - Complainant(s)

Versus

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

Azad Singh

13 Jan 2023

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, KARNAL.

 

                                                        Complaint No. 290 of 2019

                                                        Date of instt.24.05.2019

                                                        Date of Decision:13.01.2023

 

Ram Pal aged about 51 years son of Tulsi Ram, resident of Bohla Khalsa, Sub Tehsil Nighdu, District Karnal.

                                               …….Complainant.

                                              Versus

 

1.     Magma HDI General Insurance Co. Ltd. Magma House 24, Park street, Kolkata 700016 through its Managing Director.

 

2.     Magma HDI General Insurance Co. Ltd. Branch office at 1^st floor, office no.1, HSIIDC Complex, HUDA, Karnal 132001 through its Branch Manager.

 

                                                                      …..Opposite Parties.

 

Complaint Under Section 12 of the Consumer Protection Act, 1986 and after amendment Under Section 35 of Consumer Protection Act, 2019.

 

Before   Sh. Jaswant Singh……President.       

      Sh. Vineet Kaushik…….Member

      Dr. Rekha Chaudhary….Member

 

 Argued by: Shri Surender Kumar, counsel for complainant.

Shri Anil Kumar Vij, counsel for the OPs.

 

                    (Jaswant Singh President)

ORDER:  

 

                  The complainant has filed the present complaint Under Section 12 of the Consumer Protection Act, 1986 as after amendment Under Section 35 of Consumer Protection Act, 2019 against the opposite parties (hereinafter referred to as ‘OPs’) on the averments that complainant got insured his tractor bearing registration no.HR-05AQ-6944 from the OPs, vide policy no.P0218400002/4107/218938, valid from 04.03.2018 to 02.03.2019. The value of said tractor was assessed by OPs at Rs.3,77,441/-. On 18.01.2019, the said vehicle met with an accident and in the said accident vehicle was badly damaged. The bonnet of tractor was damaged and its differential housing was also broken. The complainant intimated to the OPs regarding the said accident and lodged his claim. OPs got signed certain blank and printed papers from complainant and assured that the amount of damages caused to the said tractor of complainant will be paid very soon. Complainant took his vehicle to M/s Hari Om Tractors Kurukshetra and took an estimate of repairing of said vehicle for a sum of Rs.60,000/-. Complainant submitted the copy of estimate to the OPs but so far OPs have not disbursed any amount to complainant for getting said vehicle repaired. The complainant is farmer by profession and he requires the said tractor daily for doing his agriculture farming work but due to none disbursement of said loss amount he is not able to cultivate his land properly due to which he has been suffering from great mental pain agony and harassment and as such he is also entitled for compensation of Rs.1.00lakhs. Complainant visited the office of OPs number of times and requested to make the payment of said amount so that he may get his vehicle repaired but OPs always postponed the matter on one pretext or the other. Then complainant sent a legal notice dated 11.03.2019 to the OPs but it also did not yield any result. In this way there is deficiency in service on the part of the OPs. Hence this complaint.

2.             On notice, OPs appeared and filed its written version raising preliminary objections with regard to maintainability; locus standi; cause of action; jurisdiction; mis-joinder and non-joinder of necessary parties and concealment of true and material facts. On merits, it is pleaded that complainant has not impleaded the necessary party of Mgma Fincrop Limited. The insured tractor was hypothecated with the said financer company. It is further pleaded that complainant/insured took the commercial vehicle policy of the vehicle in question with the hypothecation of Magma Fincrop Limited. The trolly was not insured with the insurance company. It is further pleaded that complainant/insured has sent intimation regarding damage of tractor in question. The OPs have immediately registered the claim of the complainant and on receipt of intimation OPs deputed an independent surveyor namely Diniesh Kumar approved from the IRDA. The said surveyor and loss assessor has independently survey the damages tractor of the insured. The said surveyor and loss assessor has also met with the complainant and also obtained the claim for duly signed by him and other relevant documents i.e. copy of Aadhar card, PAN card, copy of registration certificate of insured tractor, copy driving license etc. After completion of the survey, the said surveyor and loss assessor has submitted his survey report before the insurance company with the net liability of Rs.23,149/-, vide report dated 22.02.2019. During survey, it was found that at the time of loss the tractor was attached with trolley and the same was not insured with the insurance company. After receiving the survey report from the said surveyor and loss assessor alongwith documents on the claim file the OPs have perused the claim file and found that “there was trolley attached with insured vehicle at the time of loss”. The OPs have repudiated the claim of the insured on 22.02.2019. The policy does not cover use for e) Use whilst drawing a trailer except the towing (other than for reward) of any one disabled mechanically propelled vehicle (only for passenger carrying vehicle). Hence, the insurance company is not liable to pay the claim of the complainant/insured due to the violation of the policy conditions. The OPs have sent the repudiation letter to insured through registered post. There is no deficiency in service on the part of the OPs. 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 complainant has tendered into evidence affidavit of complainant Ex.C1, copy of Aadhar card of complainant Ex.C2, postal receipts Ex.C3 and Ex.C4, copy of legal notice Ex.C5, copy of insurance policy Ex.C6 and Ex.C7, copy of registration certificate Ex.C8, copy of claim form Ex.C9 and Ex.C10, copies of bills dated 19.02.2019 Ex.C11 and Ex.C12 and closed the evidence on 19.05.2022 by suffering separate statement.

5.             On the other hand, learned counsel for OPs has tendered into evidence affidavit of Sunil Gupta Deputy Manager Ex.OP1/A, copy of repudiation letter Ex.OP1, copy of insurance policy Ex.OP2, copy of claim form Ex.OP3, copy of surveyor report Ex.OP4 and closed the evidence on 04.08.2022 by suffering separate statement.

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

7.             Learned counsel for complainant, while reiterating the contents of complaint, has vehemently argued that complainant got insured his tractor from the OPs. On 18.01.2019, the said vehicle met with an accident and in the said accident vehicle was badly damaged. Complainant took his vehicle to M/s Hari Om Tractors Kurukshetra and took an estimate for repairing of said vehicle for a sum of Rs.60,000/-. Complainant submitted the copy of estimate to the OPs but OPs have not disbursed any amount to complainant and lastly prayed for allowing the complaint.

8.             Per contra, learned counsel for OPs, while reiterating the contents of written version, has vehemently argued that on receipt of intimation from the complainant with regard the accident of the vehicle in question, OPs deputed an independent surveyor namely Dinesh Kumar approved from the IRDA. The said surveyor and loss assessor has independently surveyed the damages of tractor of the insured and after completion of the survey, the said surveyor and loss assessor has submitted his survey report before the insurance company with the net liability of Rs.23,149/-, vide report dated 22.02.2019. During survey, it was found that at the time of loss the tractor was attached with trolley and the same was not insured with the insurance company. The OPs have rightly repudiated the claim of the insured on 22.02.2019 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.

11.           The claim of the complainant has been repudiated by the OPs on the ground that at the time of accident, the tractor was attached with trolly and same was not insured with the insurance company.

12.           In the present case, complainant has not sought the claim of loss of trolley. In the accident insured vehicle i.e. tractor was damaged and complainant has sought the claim of damaged tractor not trolley. It is not a case of the OPs that the accident took place due to attachment of trolly with the tractor.  Hence, the plea taken by the OPs has no force. Thus the claim of the complainant has been repudiated by the OPs without any cogent reason.

13.           OPs have also taken a plea that vehicle in question was got financed with Magma Fincrop Limited and complainant has not impleaded Magma Fincrop Limited as a necessary party. In the present case, the vehicle was not totally damaged and furthermore it is also not a case of the OPs that complainant is defaulter to pay the loan installments. Hence, the plea taken by the OPs 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 judgment, facts and circumstances of the present complaint, we are of the considered view that act of the OPs while repudiating the claim of the complainant amounts to deficiency, which is proved otherwise genuine.

16.           As per the survey report Ex.OP4 dated 22.02.2019, the loss has been assessed by the surveyor of the OPs to the tune of Rs.23149/-but complainant has claimed Rs.60,000/-as repair charges. Complainant has also relied upon the bill Ex.C11 of Rs.8000/- and bill Ex.C2 of Rs.35636/-. No other proof has been placed on file. 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 OPs are 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 OPs to pay Rs.23149/- (Rs. twenty three thousand one hundred forty nine only) the loss assessed by the surveyor of the OPs alongwith interest @ 9% per annum from the date of repudiation of the claim till its realization to the complainant. We further direct the OP to pay Rs.15,000/- to the complainant on account of mental agony and harassment suffered by him and Rs.5500/- for the litigation expenses. 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:13.01.2023

                                                                       

                                                                  President,

                                                     District Consumer Disputes

                                                     Redressal Commission, Karnal.

 

(Vineet Kaushik)        (Dr. Rekha Chaudhary)

                          Member                      Member