IN THE STATE COMMISSION: DELHI

(Constituted under section 9 of the Consumer Protection Act, 1986)

Date of Hearing:23.12.2020

(Time allowed to file the

judgments upto 04.01.2021) 

Date of Decision:19.01.2021

Complaint No.263/2015

IN THE MATTER OF

M/S DIAMOND EXPORTS

B-59, Okhla Industrial Area,

Phase-I, New Delhi-110020

Through its Authorised

Mr. Alok Kumar

S/o Sh. Anand Kishore Chaudhary….Complainant

VERSUS

M/S BAJAJ ALLIANZE GENERAL INSURANCE

COMPANY LIMITED

Block-No. 04, 7^th Floor,

DLF Tower, 15, Shivaji Marg,

New Delhi                                                           ....Opposite Party

HON’BLE  SH. ANIL SRIVASTAVA, MEMBER 

1.   Whether reporters of local newspaper be allowed to see the judgment? Yes     

 2.   To be referred to the reporter or not?                                                        Yes

Present:       Sh. Raman Kumar, Counsel for the Complainant

                   Sh. Virender Prabhakar, Counsel for the Respondents

          ANIL SRIVASTAVA, MEMBER

JUDGEMENT

1.           This complaint under Section 17 of the Consumer Protection Act 1986, the Act, has been filed by M/s Diamond Exports, for short complainant, against M/s Bajaj Allianz General Insurance Company Limited, hereinafter referred to as OPs, alleging negligence, deficiency in services and unfair trade practices, they having repudiated their claim on false and flimsy grounds and praying for the relief as under:-

It is, therefore, most respectfully prayed that this Hon’ble Commission may kindly be pleased to issue directions, orders to the respondent:-

1. To pay Rs. 60,96,252/- alongwith interest @ 24% per annum from the date of accident till the date of payment to the complainant.
2. To pay Rs. 10,00,000/- as compensation on account of mental torture, harassment, physical pain and agony.
3. To pay Rs. 1000/- per day as parking charges of the aforesaid accidental vehicle as demanded by M/s Gold Star Foods Pvt. Ltd. from the date of accident till the accidental vehicle is removed from parking place by the respondent. 
4. To pay the cost of the litigation.
5. Any other relief which this Hon’ble Forum may deems fit in the interest of natural justice.

2.           Facts of the case necessary for the adjudication of the complaint are these.
3.           The complainant the registered owner of vehicle make/model BMW-7 series Car No. DL3C BC 0555 had insured his vehicle with the M/s Bajaj Allianz General Insurance Company Limited vide comprehensive policy No. OG-14-1105-1801-00006923 valid from 29.07.2013 to 28.07.2014 for an IDV of Rs. 60,98,252/-  with no claim bonus of 50%. The insured vehicle met with an accident on 22.06.2014 at Noida when driven by the driver of the complainant namely Mr. R.N. Bhandari and as a consequence thereof the vehicle got badly damaged. The day of accident being Sunday and the vehicle being badly damaged the complainant took the photos of the vehicle at the site and shifted it to a factory in Noida at M/s Gold Star Foods Pvt. Ltd., B-97, Sector-2, Noida for few days till which time there was no settlement of claim. The claim was lodged with the OPs and thereafter the surveyor appointed by the OPs, Mr. Vikas Srivastava, surveyed the car on 24.06.2014 and took photographs of site of loss himself and tallied the place of accident with the photos taken by the complainant in this regard. The surveyor thereafter observed that it is a case of total loss but on 19.07.2014 three more persons (introduced to the complainant as investigators of OPs) also visited for inspection of the vehicle and the place of accident and they also held a meeting with the driver at complainant’s office at Noida and also recorded his verbal statement.
4.           Finally the surveyor had submitted the report with liability of OPs on repair basis as Rs. 72,93,182/- and again confirmed to the complainant that the payment of Rs. 60,252.00/- will be made to the complainant as per IDV of this vehicle being excess clause of Rs. 2000/- as per policy.
5.           But the OPs sent a letter of repudiation of the claim to the complainant on 16/12/2014 on the ground of furnishing delayed intimation of accident. This act of not making the payment of legal, bonafide and legitimate claim of the complainant according to the complainant amounts to deficiency of service and harassment to them.
6.           The complainant had sent a legal notice requiring the OPs to settle the claim but the OPs took no action, nor replied to the notice. This led to filing of this complaint by the complainant for the redressal of their grievances.
7.           OPs were noticed and in response thereto the OPs have filed their reply resisting the complaint both on technical ground and on merit stating that the claim against the said insurance policy is subject to the terms and conditions of the policy and the law in force. A total premium of Rs. 51,270/- was charged for the said policy. As per the policy the IDV of the vehicle was Rs. 60,98,252/-. The said vehicle reportedly met with an accident on 22.06.2014 at about 04.30AM near Rajnigandha Chowk, Sector-16, Noida. Claim intimation was given to the respondent insurance company on 24.06.2014 at about 03.38PM i.e. after two and half days of loss thereby depriving the respondent insurance company of an opportunity to ascertain material facts about the accident. Secondly the investigator appointed by them reported that a young boy was driving the insured vehicle at the time of accident who also got injury in his hand whereas the insured had informed that Mr. R.N. Bhandari was driving the insured vehicle at the time of accident. One Mr. Rajesh Sharma working as an Engineer at the construction site at Sector-16, Noida near the place of accident, gave in writing by way of affidavit that on the morning of 22.06.2014 at about 5AM a car BMW bearing registration no. DL3C BC 0555 colour White had met with an accident above the under pass of Rajnigandha Chowk driven by a boy aged 20-22 years. In these circumstances the OPs had repudiated the claim on two grounds, namely, delayed intimation about the accident and, secondly, suppression of material fact.
8.           The complainants have filed their rejoinder rebutting the contentions raised in the written statements and reiterating the averments contained in the complaint. Both the parties have filed their evidence by way of affidavit in support of their pleadings. Written arguments by both the parties have also been filed.
9.           This matter was listed before this Commission for final hearing on 23.12.2020 when the counsel for both sides appeared and advanced their arguments in support of their respective pleadings, the complaint for a direction to the OPs to approve their claim and the OPs for dismissal of the complaint, no case having been made out for the relief claim. I have perused the record and given a careful consideration to the subject matter.
10. Short question for adjudication in this complaint is whether the repudiation done by the OPs with respect to the claim filed by the complainant as a fall out of the accident of the insured vehicle suffers from any infirmity. The repudiation has been done on account of two grounds, namely,

1. delayed intimation; and secondly,
2. in correct information about the driver of the vehicle.

11. As regards the first ground regarding delay done in intimating the incident to the insurer, the Hon’ble Supreme Court of India is pleased to hold, in the matter of Gurshinder Singh versus Shriram General Insurance Co. Limited as reported in I [2020] CPJ 57 (NC), that mere delay in intimating the insurance company about the occurrence of event cannot be a ground to deny the claim if the police authorities have been reported. In the given case the Police Authorities were informed of the occurrence of the event and if that be case, relying on the aforesaid authority, the ground taken to this effect to deny the claim would not be sustainable.
12. Coming to the second ground taken to repudiate the claim regarding the driver driving the vehicle. This ground for want of cogent and tangible evidence cannot be accepted. The affidavit filed on behalf of an unconnected person does not carry conviction.
13. Having regard to the discussion done and the legal position explained I am of the considered view that the repudiation done by the insurer is not legally sustainable and it is accordingly set aside. The OPs are directed to pay the claim based on the surveyor report as keeping in view the authority of the Hon’ble NCDRC in the matter of New India Assurance Co. Limited versus Shree Shankar Sahkari Sakhar Karkhana Limited as reported in I [2020] CPJ 270 (NC) the surveyor report is the basis for settling the claim. The claim be passed and the amount be paid with interest at the rate of 5% from the date of amount was payable till its realisation. The interest of 5% will include the litigation charges and the compensation.
14. Ordered accordingly, leaving the parties to bear the cost.  
15. A copy of this order be forwarded to the parties to the case free of cost as is statutorily required. File be consigned to records.

(ANIL SRIVASTAVA)

MEMBER

PRONOUNCED ON

19.01.2021

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