Delhi

North East

CC/301/2014

Harsh kr. - Complainant(s)

Versus

M/s Bajaj Allianz Gen. Ins. Co. Ltd. - Opp.Party(s)

04 Sep 2019

ORDER

 DISTRICT CONSUMER DISPUTES REDRESSAL FORUM: NORTH-EAST

GOVT. OF NCT OF DELHI

D.C. OFFICE COMPLEX, BUNKAR VIHAR, NAND NAGRI, DELHI-93

 

Complaint Case No. 301/14

 

In the matter of:

 

	Harsh Kumar Yadav S/o Shri Kiran Pal Yadav K-326, Gali No.4 Mahipalpur Extn, New Delhi-110037	Complainant
	Versus
	M/s Bajaj Allianz General Insurance Co. Ltd Through its Directors 6th Floor, Ashok Bhawan, 93 Nehru Place, New Delhi-110049.	Opposite Party

 

DATE OF INSTITUTION:       JUDGMENT RESERVED ON:               DATE OF DECISION  :

12.08.2014 04.09.2019 04.09.2019

 

 

N.K. Sharma, President

Ms. Sonica Mehrotra, Member

 

Order passed by Ms. Sonica Mehrotra, Member

 

ORDER

1. Brief facts of the present complaint are that the complainant being owner of one Toyota Innova Car Diesel Variant Bearing Registration No. DL 4C NE 0706 got the same insured with OP vide Private Car Package Policy No. OG-13-1105-1801-00005498 w.e.f. 30.06.2012 to 29.06.2013 on payment of premium of Rs. 20,237/- for a total IDV of Rs. 4,29,000/-. During the currency of the above said policy, on 03.09.2012, the complainant alongwith his friends while going on the Yamuna Express Way in the subject insured vehicle met with an accident when he was behind the wheels but no FIR was lodged as there was no injury to any person and Own Damage Claim (ODC) was lodged with the OP. The complainant approached M/s Ravi Automobiles, Authorized Service Centre (ASC) of OP for repairs of vehicle which assessed the lost to the tune of Rs. 1,98,940/- as per estimate No. 1216 dated 05.09.2012. Accordingly, the claim was lodged with OP and complainant submitted all the necessary documents with OP’s surveyor but OP kept insisting of submission of documents to confirm usage of vehicle and to clarify in what capacity passenger were travelling in the said vehicle as can be seen in its query raised vide letter dated 15.03.2013. The complainant kept following up with OP for early settlement of claim but OP instead repudiated the claim vide letter dated 28.03.2013 to wriggle out of its legal liability. Therefore, complainant being aggrieved at rendering of deficient service and callous and negligent attitude of OP causing harassment and agony to him was constrained to file the present complaint before this against OP praying for issuance of directions against OP to pay  Rs. 1,98,940/- towards the ODC of the vehicle alongwith interest @ 24% from date of lost till payment. Complainant also prayed for payment of Rs. 1,50,000/- towards damages for harassment tension and agony and Rs. 50,000/- towards cost of litigation from OP.

Complainant has attached copy of RC, copy of insurance policy cum certificate schedule, copy of DL, copy of report prepared by Ravi Automobiles and estimate dated 05.09.2012 given by it for repairs of the vehicle, copy of letter dated 15.03.2013 by OP to the complainant asking for purpose of usage of vehicle and in what capacity passengers were travelling therein and lastly repudiation letter dated 28.03.2013.

2. Notice was issued to the OP on 25.08.2014. OP entered appearance and filed its written statement in which it took the preliminary defence that as a compliant duty bound organization, OP on receipt of OD claim by complainant, sent letters dated 11.10.2012, 08.11.2012, 29.12.2012, 28.01.2013 and 15.03.2013 to the complainant urging him to submit the requisite documents but complainant failed to do so much less respond thereto and therefore in due course, OP appointed IRDA License Surveyor to assess the loss which surveyor, vide report dated 07.09.2012 assessed the loss to the tune of Rs. 2,36,382/- after which report the OP had sent the aforementioned correspondence to the complainant but the complainant failed to reply thereto and therefore the OP repudiated his claim vide letter dated 28.03.2013. OP further contended that lodging of FIR of police complaint was very vital in accident case since in absence of the same, it cannot be established whether it took place or not. Therefore, OP taking the defence of no callous or negligent attitude of deficiency of service on its part, prayed for dismissal of the present complaint. OP has filed copies of letters dated 11.10.2012, 08.11.2012, 29.12.2012, 28.01.2013, 15.03.2013 and 28.03.2013 alongwith courier receipts booked by DTDC, copy of Final Surveyor Report dated 07.09.2012 and copy of OD Investigation Report dated 24.12.2012 by 360 Degrees Investigation.
3. Rejoinder and evidence by way of affidavit was filed by the complainant wherein the complainant reiterated his grievance against the OP and exhibited the documents relied upon in the complaint.                  
4. Evidence by way of affidavit was filed by OP through its Deputy Manager Legal raising objection to the present complaint on grounds of non-responsiveness shown by the complainant to its numerous letters and non-cooperation shown by him qua the surveyor and itself. The OP exhibited the courier receipts of the said letters and copy of the surveyor report alongwith repudiation letter and insurance policy cover note with terms and conditions attached therewith. OP submitted that it had also got done OD investigation with respect to the subject vehicle since complainant was not coming forth with details required in the letters and the said report mentioned about the contradiction made by the complainant / insured that he was driving alone at the time of accident as opposed to Jewar Toll Plaza report that four people were travelling in the insured vehicle. The said report also stated that the statement of the complainant was recorded to the effect that he was into business of tour and travel and was also a car vendor for IBM India and the said telephonic conversation was recorded in CD form. Therefore, OP alleged misrepresentation of the material facts by the complainant leaving it with no option but to repudiate his claim.
5. Written arguments were filed by both parties in reassertion / reiteration of their respective grievance/defence between May 2014 and January 2016. OP placed reliance upon judgments of Hon'ble National Commission in Nakipuria Oil Mills Vs National Insurance Co. Ltd and H.C. Saxena Vs New India Assurance Co. Ltd for importance of surveyors report and it being an important document of evidentiary value.

OP did not appear after 21.08.2015 after completion of his part of pleadings for addressing oral arguments due to which reason court notice was issued to OP as directed vide order dated 08.03.2018 on receipt of which a proxy counsel appeared on behalf of OP on 27.04.2018 seeking adjournment for addressing oral arguments on grounds of hospitalization of OP’s counsels father but never appeared thereafter for which a cost of Rs. 1,000/- was also imposed on OP vide order dated 03.05.2019 but neither the OP appeared nor paid cost. Therefore the matter was posted for final arguments on 04.09.2019. However, as per the settled law in passed by Hon'ble National Commission in Bank of India Vs N V Deoras 1997 (3) CPR 63 (NC), even if OP is absent, commission / Forum must consider averments in version before passing orders, therefore the pleadings of OP shall be taken into consideration while passing orders.

6. We have heard the arguments forwarded by the counsel for the complainant and have perused the documentary evidence placed on record by both sides.

Undisputedly, as per complainant’s own admission in para 4 of the complaint, he was travelling in the insured vehicle alongwith his friends on the date of accident i.e. 09.09.2012 on Yamuna Express Way and OP has not controverted the said statement by leading any concrete contrary evidence by way of any recording of telecon allegedly held with complainant that he was alone at the time of accident. Further, the report received from Jewar Toll Plaza of four people inside the insured vehicle is merely a hearsay and no affidavit or statement of any of the duty toll plaza staff has been produced by OP to this effect. OP has also failed to place on record any proof of its contention that the complainant was into tour and travel business as well as was a car vendor for IBM India Call Centre which was an inference to the subject vehicle being used for commercial / hiring purpose though insurance taken as a private car. The survey report dated 07.09.2012 is dated prior to correspondences sent by OP to the complainant between October 2012 to March 2013 but very interestingly, the surveyor comments that several letters were written to insured to give explanation in the matter but no response was received and therefore recommended OP to treat the claim as NO CLAIM. Thereafter, 360 Degrees Investigator was appointed by OP which filed its report dated 24.12.2012 and claimed to have recorded conversation with complainant in form of CD but the same was never placed on record by OP before this Forum. The said investigator stated that the Jewar Toll Plaza Police ‘verbally confirmed’ that there were four persons travelling in the insured vehicle at the time of accident namely Suresh Reddy, Sunil Kumar, Vijay Kumar and Ankit Kumar. It is highly improbable that without any police investigation or any police case registered or any intervention sought, the police or toll plaza would actually know the names of passengers in thousands and lakhs of cars which commute daily on the Yamuna Express Way route. The investigator confirmed no third party loss and case being that of accident only. But having observed all of the above, the fact cannot be ignored that complainant failed to respond to any of the communication of OP most pertinently pertaining to purpose of usage of insured vehicle at the time of accident and in what capacity the passengers were travelling therein leading OP to draw and adverse inference on both accounts. No FIR in the matter does create difficulty in establishing factum of accident and genuinity of the claim though it is true that in certain accident cases, where no FIR has been lodged, claims are settled by insurance company but in such cases the repairs are undertaken by the repairer on advice of the surveyor of insurance company but in the present case no such documents has been filed which shows that there was any such agreement or communication between the parties leading to therefore a dead lock situation also contributed significantly by non cooperation of the complainant in submitting the documents and requisite information / clarification sought by OP in its several letters which the complainant failed to furnish. The surveyor report dated 07.09.2012 cannot be relied upon in so far as the comments / recommendation is concerned since it gives reference letters which are all post dated and therefore raises a big question mark on its authenticity. The OD investigation report dated 24.12.2012 gives reference to a CD recording of telecon held with complainant but the same was never filed by OP despite several references made thereto regarding complainant’s occupation and number of persons travelling in the insured vehicle at the time of accident and the said CD would have been a crucial piece of evidence but was omitted.

7. After analyzing the facts and circumstances of the present case, we are of the considered view that the claim was repudiated by OP due to non furnishing of relevant information by complainant. However the fact cannot be ignored that the OP wrote several letters to complainant seeking the said information on receiving his OD claim and after the surveyor report filed in September 2012 where a claim of Rs. 2,36,382/- was net assessed amount but complainant failed to furnish the same. The Hon'ble National Commission in Vijay Harshad Dholkya Vs New India Assurance Co. Ltd III (2018) CPJ 575 (NC) held in a case of delay in claim settlement and non submission of document despite several correspondence between surveyor and complainant that it was a case of contributory negligence of malafide intension of surveyor and lackadaisical approach of insurance company and complainant. The said case is squarely applicable in the present case. Therefore, we are inclined to partially consider the OD claim of the complainant on the lines of judgment of Hon'ble Supreme Court in Amalendu Sahoo Vs Oriental Insurance Co. Ltd in CA No. 2703/2010 decided on 25.03.2010 on Non Standard Basis as complainant cannot be allowed to take advantage of its own act of omission / commission and in the event of breach of condition of Motor Policy.
8. We therefore allow 75% of the Own Damage Claim amount of  Rs. 1,98,940/- i.e. Rs. 1,49,205/- payable by OP to the complainant alongwith interest @ 6% per annum from the date of filing of complaint till realization. We further direct OP to pay compensation of Rs. 15,000/- to the complainant towards compensation for damages, harassment tension and agony inclusive of litigation charges. Let the order be complied with by OP within 30 days from the date of receipt of copy of this order.
9. Let a copy of this order be sent to each party free of cost as per regulation 21 of the Consumer Protection Regulations, 2005.
10.  File be consigned to record room.
11.  Announced on 04.09.2019 

 

(N.K. Sharma)     President

(Sonica Mehrotra)  Member