ORDERS:

Nidhi Verma, Member

1        The complainant has filed the present complaint by invoking the provisions of Consumer Protection Act under Section  11  and 12 against the opposite parties on the allegations that the complainant obtained a comprehensive insurance policy from the opposite parties No. 1 to 3 in respect of his vehicle Alto 800 LXI Car bearing No. PB46-Y-5628, Engine No. F8DN5806438, Chassis No. MA3EUA61S00A48517 on 17.4.2019 vide policy No..3001/MI-07382494/00/000 for the period from 26.4.2019 to 25.4.2020. The above said vehicle of the complainant met with an accident on 16.7.2019 at about 8.00 P.M. at village Khadoor Sahib due to a cow suddenly came in front of the vehicle and due to unbalance of the car the same hit the road side wooden logs lying there and on the same day, the vehicle was towed by the recovery Crain & the same was got parked at Hanson Automobiles i.e. Opposite Party No.4. The Amritsar Recovery van Association charges Rs.2530/- for towing the damaged car of the complainant. The receipt dated 16.07.2019 was issued in this regard.  The intimation regarding the above said damaged car was given to the opposite parties as the complainant informed the insurance company immediately and the vehicle reached the authorized service station at Hanson Automobiles on the same day who informed the insurance company as well, whereas, the claim was not settled by the Insurance Company and only on 04.09.2019 vide reference No. ICICI/LR/19/20582 the complainant received the investigators Letter and required certain formalities which were duly completed as the driver Sh. Harwinder Singh Army Personal after obtaining leave met with the companies investigator and informed regarding the damaged and loss to the car and the complainant also provided all the documents and information as required by the investigators and also gave in writing mentioning the detail of the occurrence. Thereafter, the complainant received a letter dated 03.10.2019 from Hanson Automobiles i.e. opposite party No.4 mentioning that there is no claim by the insurance company and therefore the garage rent is applicable from 7.10.2019 onwards and finally on 29.10.2019 the complainant received a letter with reference NO.291019610195 regarding refusal to settle the claim in respect of the above said accidental car. Therefore, the complainant cannot be held responsible for the act and conduct on the part of the opposite parties. The letters are arbitrary and the opposite parties have no right or interest to refuse the claim to which the complainant is entitled. The complainant is entitled to the amount of Rs.1,45,000/- alongwith interest as assessed by opposite party No.4 the opposite parties have unnecessarily delayed the claim of the complainant, without any reason. Harwinder Singh driver of the car was specially asked to come after taking leave from his job as he is posted in the Indian Army at Vishakhapatnam (Andra Pradesh) and he had to travel by Train with Tatkal Booking and he had to spend about Rs.10,000/- for the same which is also resulted in mental and physical harassment to the son of the complainant caused by the opposite parties. From the above said facts, it is crystal clear that the opposite parties are guilty of fault, imperfection, short coming and inadequacy in the quality, nature and manner of performance of service, hence is guilty of deficiency in service. Moreover, the said acts of the negligence and deficiency in service on the part of the opposite parties have also resulted in great mental pain, agony, harassment and inconvenience to the complainant. The vehicle is unnecessarily kept lying without work with Hanson Automobiles for the last 4 months which is also resulted in huge losses to the complainant as the complainant could not do his day to day work with the vehicle. Various parts of the vehicle have been damaged as there is rust on the iron parts of the vehicle and there is further likelihood of damaged to the vehicle and the utility and the market value of the vehicle will also diminish. As such necessary direction in Hanson Automobiles be issued with immediate effect to repair the above said vehicle. The complainant is legally entitled to compensation to the tune of Rs.5,00,000/- on account of mental & physical harassment as well as litigation charges to the tune of Rs.50,000/- from the opposite parties.  The complainant has prayed that the following reliefs may be granted in favour of complainant.

1. The opposite parties may kindly be directed to reimburse the Insurance Claim amount of Rs. 1,45,000/- to the complainant immediately.
2. The opposite parties may kindly be directed to pay compensation of Rs. 5,00,000/-  for causing harassment to the complainant and also be directed to pay Rs. 50,000/- as litigation expenses  as well as travel expenses of Harwinder Singh Driver to the tube of Rs. 10,000/-

Alongwith the complaint, the complainant has placed on record affidavit of complainant Ex. C-1, Another affidavit of complainant Ex. CW1/A, Self attested copy of Insurance Cover Note Ex. C-2, Self attested copy of receipt of Amritsar Recovery Van Association Charges Ex. C-3, Self attested copy of letter dated 3.10.2019 Ex. C-4, Self attested copy of letter dated 29.10.2019 Ex. C-5, Self attested copy of RC Ex. C-6, Self attested copy of valid Driving License Ex. C-7, Self attested copy of letter dated 4.9.2019 Ex. C-8, Self attested copy of detail of entire occurrence handed over by Harwinder Singh to investigator Ex. C-9, Self attested copy of estimate of claim to the tune of Rs. 1,45,000/- Ex. C-10, Photostat copy of Ticket of Harwinder Singh Ex. C-11.

2        Notice of this complaint was sent to the opposite parties and opposite parties No. 1 and 2 appeared through counsel and filed written version by interalia pleadings that the present complaint is not legally maintainable as the same is an abuse of the process of law. As per the claim form, date of loss is 16.7.2019 and intimation was given on 8.8.2019, so there is delay of 22 days in lodging the claim and complaint is liable to be dismissed. The complainant has not come to this Commission with clean hands and had suppressed the true and material facts from the notice of this Commission. The present complainant had lodged the claim with the opposite parties NO. 1 and 2 through claim form dated 8.8.2019, which is Ex. OP2, in the said claim form the complainant had alleged that the vehicle in question met with an accident on 16.07.2019, when the son of the complainant was coming from Goindwal Sahib to Tarn Taran and at about 8.00 pm a stray cow came in front of the car and in order to save the car from the collusion, the son of the complainant turned the car towards the left side where the car hit with the wooden log and got damaged. After receiving the claim from the complainant, the opposite parties No. 1 and 2 have appointed his investigator namely Star Investigators, who after visiting the spot and after meeting with the son of the complainant has given his investigation report, which is Ex. OP-3, in which it has been categorically stated by the investigator that "Cause of loss does not corroborate with the damages. On visiting the spot and inspection of car, damages to the car on the right side cannot be possible due to woods lying on the left side of the road. Moreover no marks of collusion at the loss location were present." The investigator has come to its conclusion due to the reason that the woods which were alleged to be collided with the car in question was lying on the left side of the road and even the driver of the car has stated that he had turned the car on the left side but after inspecting the vehicle in question, it has transpired that it has been collided from the right side which is not possible from the above stated facts. Due to which, the above said finding has been given by the independent investigator. Furthermore, even the loss has been reported lately. The company has appointed his surveyor who has also given its report which is Ex. OP4 and he has assessed the total loss of the complainant amounting to Rs. 44,367/-. The said independent persons have given their reports after going on the spot and after inspecting the vehicle in question. Even the said persons have clicked the photographs of the vehicle and they have also clicked the photographs of the spot, which clearly shows that the complainant is misrepresenting the facts. On the basis of the said reports, the company has repudiated the claim of the company complainant vide letter dated 29.10.2019 and the said letter is Ex. OP-5. Even one more letter dated 04.09.2019 has been issued by the above said persons to the son of the complainant so that they can come to the conclusion about the facts of the case, and the said letter is Ex. OP-6. The said letter has been given because of the reason that there was some misrepresentation, which transpired after going to the facts of the case. The copy of the policy alongwith the terms and conditions is Ex. CP-7. Affidavit of the Legal Manager namely Nishant Gera is Ex. OP-1. The complainant has concealed and has suppressed the material and relevant fact of the case. The complaint has been filed with malafide and dishonest intention and has not only concealed the material facts from this commission but has also twisted and distorted the same to the suit their own convenience and to mislead this commission. The complainant has acted in bad faith with respect to subject of this complaint and has approached this commission with unclean hands. The contract of insurance between the opposite party and complainant is governed by its policy terms and conditions. Thus the words in an insurance contract must be given paramount importance and interpreted as express without any addition, deletion or substitute". The complainant has violated the terms and conditions of the policy as such the complaint is liable to be dismissed. The complainant has made up a false and concocted story and is trying to mislead this commission, therefore, the complainant is not entitled to any relief from this commission. There is no negligence or deficiency in service on the part of the opposite parties No. 1, 2.  The opposite parties No. 1 and 2 have denied the other contents of the complaint prayed for dismissal of the same. The opposite parties No. 1 and 2 have placed on record documents Ex. OP1, 2/1 to Ex. OP1, 2/6.

3        The opposite party No. 3 appeared through counsel and filed written version by interalia pleadings that the complainant has got no cause of action against the opposite party No. 3. The present complaint filed by the complainant is an abuse of process of law and has filed the false and frivolous complaint and the same is liable to be dismissed by invoking section 26 of the act. There is deficiency on the part of the opposite party No. 3 and nor alleged much less proved by the complainant, the opposite party No. 3 has given the proper service and the same has been acknowledged by the complainant, the complaint merits dismissal qua the opposite party No. 3 on this score only. This commission has no territorial jurisdiction in the present matter and denied other contents of the complaint and prayed for dismissal of the same. Alongwith written version, the opposite party No. 3 has placed on record affidavit of Suresh Aggarwal Partner Jaycee Motors Ex. OP3/1.

4        The opposite party No. 4 appeared through counsel and filed written version by interalia pleadings that the present complaint is not maintainable in eye of law. The complainant has no Locus standi to file the present complaint. The complainant is not come to this commission with clean hand suppressed the material fact from the knowledge of this commission. The opp. party no. 4 was deliberately made party in this complaint, the real fact that the vehicle in question is still laying with the opposite party No. 4 and complainant had not paid requisite charges in this respect and the complainant was number of times informed either to pay rent charges for the vehicle in question and to pay the estimated amount so that the opposite party No. 4 will get to the vehicle in right shape and form and their claim was rejected by the Insurance company in this respect opposite party No. 4 is unable to get the vehicle repair. As the complainant paid the estimated amount for getting vehicle repair and neither complainant paid requisite charges in the shape of rent for holding the vehicle till received. Actually infact this is dispute between complainant and insurance company not with the opposite party No. 4. The opposite party No. 4 has denied the other contents of the complaint and prayed for dismissal of the same.

5        We have heard the Ld. counsel for parties and have also carefully gone through the documents on the file.

6        In the present complaint, the complainant obtained a comprehensive Insurance policy from the O.Ps in respect of his vehicle Alto800 LXI car bearing no. PB46-Y-5628 and on dated 16.07.2019 at about 8 P.M at Village Khadoor Sahib a cow suddenly came in front of the vehicle and due to imbalance of the car the same hit the roadside wooden logs lying there and on the same day the vehicle was towed by the recovery crain and the same was got parked at Hanson Automobiles- OP No.4. The intimation regarding the above said damage car was given to the opposite parties as the complainant informed the insurance company immediately and the vehicle reached the authorised service station at Hanson Automobiles on the same day who informed the insurance company as well , whereas the claim was not settled by the insurance company. Thereafter, the complainant received a letter dated 3rd October 2019 from Hanson Automobiles opposite party number 4 mentioning that there is no claim by the insurance company and therefore the garage rent is applicable from 7^th October, 2019 onwards and finally on 29.10.2019 the complainant received a letter regarding refusal to settle the claim in respect of the above said accident car from OP No.2 .

7        The OP No. 1 & 2 stated in their written version that as per the claim form, date of loss is 16^th July 2019 and intimation was given on 8^th August 2019 so there is delay of 22 Days in lodging the claim. After receiving the claim from the complainant the replying opposite party has appointed his investigator namely star investigators, who after visiting the spot and after meeting with the son of the complainant has given his investigation report (Ex.OP3) in which it has been categorically stated by the investigator that “ cause of loss does not corroborate with the damages. On visiting the spot and inspection of car, damages to the car on the right side cannot be possible due to wooden lies on the left side of the road. Moreover no marks of collusion at the lost location where present.” Hence , on the basis of the said reports the company has repudiated the claim of the complainant vide the letter dated 29^th October 2019 (Ex.OP5) . The complainant has concealed and has suppressed the material and relevant fact of the case.

8        OP No.4 stated in their written version that the vehicle in question is still lying with the opposite party No. 4 and complainant had not paid requisite charges in this respect and the complainant was number of times informed either to pay rent charges for the vehicle in question or to pay the estimated amount so that the opposite party number 4 will go to the vehicle in right shape as their claim was rejected by the insurance company in this respect the opposite party number 4 is unable to get the vehicle repaired.  However, this is dispute between the complainant and insurance company not with the opposite party number 4.

9        We have gone through the rival contention of the parties. It is observed that the complainant has accepted the fact that the accident was not major one and in the said accident no third party loss of goods/ movable property/immovable property/person/injury/death has taken place. Hence , he find no need to lodge the FIR and the intimation regarding the above said damaged car was given to the insurance company immediately and the vehicle reached the authorized service station at Hanson Automobiles on the same day . The OP NO.1 & 2 has taken the plea that in the claim form, date of loss is 16.07.2019 and intimation was given on 08.08.2019 so there is delay of 22 days in lodging the claim. After receiving the claim form OP NO. 1&2 appointed his investigator namely Star Investigators, who after visiting the spot and after meeting with the son of the complainant has given his investigation report , stated that “cause of loss does not corroborate with the damages. On visiting the spot and inspection of car , damaged to the car on the right side cannot be possible due to woods lying on the left side of the road. Moreover no marks of collusion at the loss location were present.” The investigator has come to its conclusion due to the reason that the woods which were alleged to be collided with the car in question was lying on the left side of the road and even the driver of the car has stated that he had it turned the car on the left side but after inspecting the vehicle in question it has transparent that it has been collided from the right side which is not possible from the above stated facts. Even the OP NO.1&2 appointed his surveyor who has also given it’s report (Ex. Op 4)  according to which the complainant is misrepresenting the facts . Hence , on the basis of the said reports the OP NO.1 &2 repudiated the claim of the complainant vide letter dated 29.10.2019 (Ex.Op5) stated that “ misrepresentation of facts causes of loss not justified with existing damages on vehicle and try to hide materials facts about loss.” But after going through the documents placed on record, affidavit of the surveyor and investigator has not been placed on the record. The whole case was based on the report of a surveyor and the surveyor had not been examined and as such they had not the opportunity to cross – examining the surveyor. In the absence of which no evidentiary value can be made on the report submitted by the surveyor.  Reliance in this connection has been placed upon Manikant Vs. New India Assurance Co.Ltd. 1(2012) CPJ 88 (NC) of the Hon’ble National Commission wherein it has been held that the surveyor did not appear in court and subject himself to cross examination nor was any affidavit filed by him to prove his report . Producing a document in court does not by itself constitute proving the document. It has to be backed by credible evidence. In the instant case, no evidence was led to prove the surveyor’s report in the absence of which the surveyor’s report has little evidentiary value.  The complainant has submitted all the documents for settlement of claim. The opposite party No. 1 and 2 on the one hand is saying that there  is  long unjustified delay of 22 days in intimation and on the other hands, the opposite party Nos. 1 and 2 is alleging that the complainant is entitled to Rs. 44,367/-, meaning thereby the opposite party Nos. 1 and 2 is not clear upon stand.  The point taken by Opposite Party Nos. 1 and 2 is that the accident took place on 16.7.2019 but the same was intimated to the opposite party Nos. 1 and 2 on 8.8.2019 after long unjustified delay of 22 days. This delay in the opinion of the Commission is not such a delay which could compel the insurance company to close or repudiate the claim of the complainant. Otherwise also, a circular dated 20.9.2011 was issued by IRDA, referred to all the insurance companies, which reads as under:-

“Circular

To:    All Life Insurers and non-life insurers

Re:    Delay in claim intimation/ documents submission with respect to

i)       All life insurance contracts and

ii)      All Non-life individual and group insurance contracts.

          The Authority has been receiving several complaints that claims are being rejected on the ground of delayed submission of intimation and documents.

          The current contractual obligation imposing the condition that the claims shall be intimated to the insurer with prescribed documents within a specified number of days is necessary for insurers for effecting various post claim activities like investigation, loss assessment, provisioning, claim settlement etc. However, this condition should not prevent settlement of genuine claims, particularly when there is delay in intimation or in `submission of documents due to unavoidable circumstances. The insurers’ decision to reject a claim shall be based on sound logic and valid grounds. It may be noted that such intimation clause does not work in isolation, and is not absolute. One needs to see the merits and good spirit of the clause, without compromising on bad claims. Rejection of claims on purely technical grounds in a mechanical fashion will result  in policy holders losing confidence in the insurance industry, giving rise to excessive litigation.

Therefore, it is advised that all insurers need to develop a sound mechanism of their own to handle such claims with utmost care and caution. It is also advised that the insurers must not repudiate such claims unless and until the reasons of delay are specifically ascertained, recorded and the insurers should satisfy themselves that the delayed claims would have  otherwise been rejected even if reported in time.

The insurers are advised to incorporate additional wordings in the policy documents, suitably enunciating insurers’ stand to condone delay on  merit for delayed claims where the delay is proved to be for reasons beyond the control of the insured.

                                                          J. Harinarayan

                                                            Chairman”:

The only question, which requires determination for deciding the present complaint is, whether the alleged accident took place or not ? The complainant detailed the facts in his complaint and placed all the required documents on the record . Moreover, clearly stated the reason for not lodging FIR for the alleged case . On other hand , OP NO. 1 & 2 accept the facts that alleged accident occurs on dated 16.07.2019 , the alleged vehicle shifted to Hanson Motor, Amritsar on the same night towed with crain. But the only reason for repudiation of the claim of the complainant was misrepresentation of the facts as per star investigators and surveyor report , but in the absence of the affidavit of the surveyor, same has no evidentiary value . However, if we go through the repudiation letter dated 29.10.2019 (Ex OP.5) , the reason for repudiation of the claim by the OP No.2 is -misrepresentation of facts causes of loss not justified. However, the point raised by the OP No. 1 & 2 in written version that there is delay of 22 days in lodging the claim, has not written in the repudiation letter. It is usual with the insurance company to show all types of green pastures to the customer at the time of selling insurance policies, and when it comes to payment of the insurance claim, they invent all sort of excuses to deny the claim. In the facts of this case, ratio of the decision of Hon‟ble Apex Court in case of Dharmendra Goel Vs. Oriental Insurance Co. Ltd., III (2008) CPJ 63 (SC) is fully attracted, wherein it was held that, Insurance Company being in a dominant position, often acts in an unreasonable manner and after having accepted the value of a particular insured goods, disowns that very figure on one pretext or the other, when they are called upon to pay compensation. This, take it or leave it‟, attitude is clearly unwarranted not only as being bad in law, but ethically indefensible. It is generally seen that the insurance companies are only interested in earning the premiums and find ways and means to decline claims. In similar set of facts the Hon’ble Punjab & Haryana High Court in case titled as New India Assurance Company Limited Vs. Smt.Usha Yadav & Others 2008(3) RCR (Civil) Page 111 went on to hold as under:-

“It seams that the insurance companies are only interested in earning the premiums and find ways and means to decline claims. All conditions which generally are hidden, need to be simplified so that these are easily understood by a person at the time of buying any policy. The Insurance Companies in such cases rely upon clauses of the agreement, which a person is generally made to sign on dotted lines at the time of obtaining policy. Insurance Company also directed to pay costs of Rs.5,000/- for luxury litigation, being rich. 

9        During the course of arguments, the complainant has submitted a copy of legal notice sent by the opposite party No. 4 whereby it was stated that the vehicle of the complainant is lying in the workshop since 18.7.2019 and said vehicle is incurring garage charges of Rs. 350/- per day w.e.f. August 2019. Therefore, the complainant is liable to pay garage charges till alongwith outstanding amount of Rs. 1,00,000/-

10      Hanson Motors i.e. opposite party No. 4 repaired the vehicle for a sum of Rs. 1,00,000/-  which is transpired from the legal notice daed 3.5.2022 sent to the complainant by the Opposite Party No. 4, hence, the opposite parties No. 1 and 2 are liable to pay the said amount i.e. Rs. 1,00,000/- to the complainant, however, the opposite party No. 4 is asking to pay garage charges of Rs. 350/- per day which is not justified and not legal because the complainant was never intimated by the opposite party No. 4 that his accidental vehicle has been repaired and said vehicle is incurring garage charges of Rs. 350/- per day from August 2019 onwards. But opposite party No. 4 has not placed on record any intimation letter on record which proves that the complainant was intimated regarding the repair work done by the opposite party No. 4, as such, the opposite party No. 4 is not entitled to receive garage charges from the complainant. The delay in repairing of vehicle has been done by the act and conduct of the opposite parties No. 1 and 2 , as such, amount of garage charges, if any, is liability of the opposite parties No. 1 and 2. The opposite party No. 4 is entitled to recover the garage charges, if any, from the opposite party Nos. 1 and 2 in due course of law.

11      In view of the above discussion, the present complaint is allowed and the opposite party Nos. 1 and 2 are directed to make the payment of Rs. 1,00,000/- to the complainant. The complainant has also been harassed by the opposite party Nos. 1 and 2 for a long time, as such, the complainant is also entitled to Rs. 25,000/- as compensation on account of harassment and mental agony and Rs 11,000/- as litigation expenses. Opposite Party Nos. 1 and 2 are directed to comply with the order within one month from the date of receipt of copy of the order, failing which the complainant is entitled to interest @ 9% per annum, on the awarded amount, from the date of accident till its realisation.  The present complaint against the opposite parties No. 3 and 4 is dismissed. Case could not be disposed of within the stipulated period due to heavy pendency of the cases in this Commission and due to COVID-19. Copies of the order be furnished to the parties as per rules. File is ordered to be consigned to the record room.

Announced in Open Commission

25.05.2023