District Consumer Disputes Redressal Commission ,Faridabad.
Consumer Complaint No. 550/2019.
Date of Institution:15.11.2019.
Date of Order:.10.07.2023.
M/s. Ayush Logistics through its proprietor Manjeet, House No. 65-E, Gali No.4, Malerna Road, Adarsh Nagar, Ballabgarh, Distt. Faridabad. Aadhar card No. 9666 9046 2650.
…….Complainant……..
Versus
M/s. ICICI Lombard General Insurance Company Ltd., 401 & 402, 4th floor, Interface 11, New Linking Road, Malad (West), Mumbai – 400 064 through its Divisional Manager/principal Officer.
2nd address:
M/s. ICICI Lombard General Insurance Company Limited, Krishna Tower, 2nd floor, B.P.55, Neelam Bata Road, NIT, Faridabad, Distt. Faridabad through its Divisional Manager/Authorized representative.
…Opposite party
BEFORE: Amit Arora……………..President
Mukesh Sharma…………Member.
Indira Bhadana………….Member.
PRESENT: Kr. R.K.Gaur counsel for the complainant.
Sh. Rakesh Dabaas, counsel for opposite party.
ORDER:
The facts in brief of the complaint are that the complainant was registered owner and in possession of Eicher container bearing its registration NO. HR-38-X-8581 having the chasis No.004967, Engine No. 178498 Model 2018. The complainant got insured the above said vehicle with the opposite party insurance company, vide insurance No. No. 3003/161783401/00/000 valid from 27.12.2018 to 26.12.2019 for an amount of Rs.15,00,000/- and for which the complainant gave requisite amount of premium to the opposite party at that time. On 12.1.2019 the driver of the complainant went on the above said vehicle/container, after loading the material therein from M/s. S.M.Express Transport Chennai to Delhi and then on 14.01.2019, the driver of the complainant, namely Khurshid son of Sahab Khan, informed the complainant telephonically that the above said vehicle of the complainant met with an accident, near Ridhora Gram Phate, while he was going from Malegaon to Akola, in which Kalasi Aasif sustained injuries on his person, as he was accompanied with him at that time. He further disclosed that he had left the said vehicle in order to save himself from the general public at the spot. In this regard, FIR bearing No. 16 dated 15.1.2019 under sections 279, 304-A of I.P.C and under section 184 of M.V.Act was registered at Police Station, Malegaon, Distt. Washim (Maharashtra). In the said accident, the above said vehicle of the complainant got totally damaged. The complainant informed immediately about the same, thereafter the opposite party appointed its surveyor, who visited at the spot, who inspected the damaged vehicle and also made enquiry about the driver of the complainant and he submitted his survey report to the opposite party. The said surveyor directed the complainant to obtain estimate of the damaged vehicle of the complainant. Accordingly, the complainant took his damaged vehcle to the authorized service centre of Eicher vehicles i.e. Shree Motors Private Limited, Ballabgarh, Faridabad, who issued estimate alongwith proforma invoice showing the amount of Rs.6,94,608 /- and also the complainant obtained estimate of body repairing of his vehicle from M/s. Y.K.Body Repairing, Faridabad, who gave its estimate of Rs.2,35,000/-. Thus the total estimate amount of repairing of vehicle of the complainant comes to Rs.9,29,608/-. On the basis of above said estimates, the complainant submitted his claim form alongwith all relevant/required documents including driving licence of driver, R.C., route permit etc. to the opposite party and requested them to release the payment of claimed amount on account of damages of his vehicle, so that he may get repair the said vehicle, as the opposite party was to provide cashless facility in respect of above said vehicle, for repairing of accidental damages etc. but tll date the opposite party did not approve the claim of the complainant and instead they had issued letter dated 01.05.2019 to the name of the complainant, vide which the opposite party had intimated the complainant that the claim of the complainant cannot be settled for the reason “misrepresentation of facts (driver details were misrepresented at intimation/claim from actual & try to hide the material facts”, resultantly the damaged vehicle was lying with workshop. The aforesaid act of opposite party amounts to deficiency of service and hence the complaint. The complainant has prayed for directions to the opposite party to:
a) release the payment of Rs.9,29,608/- alongwith interest @ 18% p.a. from the date of its due till realization of whole amount, immediately, in respect of totally damage of Eicher container bearing its registration No. HR-38-X-8581 having its chasis No. 004967, engine No. 178498 Model 2018.
b) pay Rs. 2,00,000/- as compensation for causing mental agony and harassment .
c) pay Rs. 11,000 /-as litigation expenses.
2. Opposite party put in appearance through counsel and filed written statement wherein Opposite party refuted claim of the complainant and submitted that the complainant had neither any cause of action nor locus standi in lodging of the present complaint before this Hon’ble Commission, reason being on 15.01.2019 the complainant had intimated the insurance company at its call centre with regards to accident and damages resulted thereto of his Eicher container No. GR-38X-8581and subsequently claim form was also submitted, wherein, driver Khursid had been claimed. At the same time the complainant had not disclosed about any Third Party injury/Third party damage under said claim form at the time lodging his aid claim. Thereafter, the insurance company had deputed an IRDA licenced independent surveyor viz. V.S.Kalantri in order to conduct spot survey & assess the loss/damages to the vehicle in question, in turn, after spot survey, the said surveyor had submitted his spot survey report dated 06.02.2017 to the insurance company by enclosing spot photographs of damaged insured vehicle & estimate etc. subject to his remarks mentioned therein. After that, the insuranace company had got investigated the matter through an independent investigator viz. Eminent Support Services pvt. Ltd., so as to ascertain the veracity and genuineness of the claim. During investigation, the said investigator had recorded the statements too of proprietor of the complainant company as well as alleged driver Khurshid and collected medical treatment record of Aasif being alleged cleaner & son of the alleged driver Khurshi alongwith record of the FUIR No. 0016 dated 15.01.2019 u/s 279/304A IPC read with section 184 of M.V.Act, P.S. Malegaon, District Washim, Maharastra so got lodged upon the statement of one Shamkant Vishwas Patil being the brother of Mahesh driver of truck No. MH-18BG-2473 & FIR No.0023 dated 26.01.2019 u/s 379 IPC, P.S.Malegaon, District Washim, Maharastra so got lodge dupon the statement of one Manjeet Rana being the proprietor of the complainant company so attached herewith. After completion of investigation the said investigator had submitted his investigation report to the insurance company. From the said report as well as the other documents including medical documents it was established that the version of the complainant & alleged driver Khurshi was contrary to the actual manner of accident & damages as well as injuries resulted thereto. On the contrary, it was strong possibility that the alleged cleaner Aasif being the son of said alleged driver Khurshid, under the influence of the alcohol, was driving the vehicle in question at the relevant time and the story as to driver Khurshid was concocted one. Thereafter the insurance company had deputed an IRDA Licenced independent surveyor viz. Indersain Kumar in order to assess the loss to the vehicle in question, in turn, after survey, the said surveyor had submitted his survey report dated 23.4.2019 to the insurance company by assessing the loss as Rs.3,36,329/- subject to his remarks mentioned therein. As such, the complainant had misrepresented the true & material facts & information, particularly as to manner of incident and the details of the driver of insured vehicle on the relevant date, at time & place, by concealing the same in order to cover up their wrongs so established from the pleading, FIRs & the findings of the investigator of insurance company under his investigation report so got conducted so as to ascertain the veracity and genuineness of the claim, resultantly, violation of condition No. 8 of the insurance policy. Since intimation constitute violation of terms & conditions of the insurance policy, hence the insurance company had arrived at the decision in treating such claim as No claim vide letter of intimation dated 01.05.2019 which decision cannot be termed unconscionable at all. Opposite party denied rest of the allegations leveled in the complaint and prayed for dismissal of the complaint.
3. The parties led evidence in support of their respective versions.
4. We have heard learned counsel for the parties and have gone through the record on the file.
5. In this case the complaint was filed by the complainant against opposite party–M/s. ICICI Lombard General Insurance Co. Ltd. with the prayer to: a) release the payment of Rs.9,29,608/- alongwith interest @ 18% p.a. from the date of its due till realization of whole amount, immediately, in respect of totally damage of Eicher container bearing its registration No. HR-38-X-8581 having its chasis No. 004967, engine No. 178498 Model 2018. b) pay Rs. 2,00,000/- as compensation for causing mental agony and harassment . c) pay Rs. 11,000 /-as litigation expenses.
To establish his case the complainant has led in his evidence, Ex.CW1/A – affidavit of Manjeet,Ex.C1 (colly) – Sales invoice,, Ex.C-2 (colly 2 pages), ex.C-3 – Tax invoice,, Ex.C4 (colly 4 pages) – Tax invoice,, Ex.C5 (colly 5 pages) – Tax invoice, Ex.C-6 – Retail invoice, Ex.C7 – e-way bill system,, Ex. C-8 – bill, Ex.C-9 GST invoice, Ex.C-010 to C-33 – bills,,Ex.C-34- RC, Ex.C-35 – insurance policy,, Ex.C-36 – FIR,, Ex.C-37 – estimate,, Ex.C-38 (colly 7 pages) – proforma invoice, Ex.C-39 - statement of Manjeet Singh Rana, Ex.C-40(colly 3 pages) – Claim form, Ex.C-41 – driving licence, Ex.C-42 – Form 47 Authorisation certificate of N.P.(Goods), Ex.C-43 (colly 2 pages) – permit in respect of National Pertmith heavy goods vehicle part-A,,
Ex.C-44 (colly 4 pages) – FIR,, Ex.C-45 – order dated 25.01.2019 passed by J.M.F.C, First Class, Malegaon, Distt. Washim,, Ex.C-46 – CRPC40(a), Ex.C-47(Colly 2 pages) - Arrest/Court surrender Form,, Ex.C-48 – letter dated 01.05.2019 regarding claim status notification,, Ex.C-49 – legal notice,, Ex.C-50 – postal receipt.
On the other hand counsel for the opposite party strongly agitated and opposed. As per the evidence of the opposite party Ex.RW1/A – affidavit of Rohan Mishra, Manager (Legal), M/s. ICICI Lombard General Insurance Co. Ltd., 4th floor, Red Fort Capital Parsvnath Tower, Bhai veer Singh Marg, Gole Market, New Delhi, Ex.R-1 – RC Ex.R-2 – Haryana Transport Department Authority, RTA, Faridabad, Ex.R-3 – insurance policy, Ex.R-4 – claim form,Ex.R-5 – driving licence, Ex.R-6 - driving licen, Ex.R-7 – motor survey report (spot) Ex.r-8 – Service/Repair estimate, Ex.R-9 to 16 – photographs, Ex.R-17 – investigation report, Ex.R-18 – letter dated 27.02.2019, Ex.R-19 – statement of Khurshid, Ex.R-20 – Referral card, Ex.R-21 – FIR, Ex.R-22 – FIR, Ex.R-23 – Repart, Ex.R-24 to 26– photographs, Ex.R-27 – motor survey report, Ex.R-28 – letter dated May 01,2019.
6. In this case, the complaint was filed by the complainant with the prayer to damage of the vehicle in question with the loss almost of Rs..9,29,608/-.
7. After going through the evidence led by the complainant and objections taken by the opposite party that as per the photographs and the statement submitted by the opposite party from Ex.R1 to R-27 and as per claim form vide Ex.R4 the name of the driver was Khurshid and in the claim form name of the driver is different.. As per Referral card vide Ex.R-20, the conductor was in drinking position. The main dispute is that who was driving the vehicle in question. As per the statement of the complainant , his father was the driver of the vehicle. The cleaner of the truck was in a drinking position as per Referral card vide. Ex.R-20. There are two FIRs of the same occurrence. One is for the damage of the vehicle and other is u/s 379 IPC after 6 days. The goods were stolen from the truck in question.
8. Keeping in view of the above submissions, the Commission is of the opinion that when the accused is facing the trial as per the evidence the father of the cleaner was driver then question of the change of driver does not arise. The police also investigated the matter and filed the untraced report u/s 173 Cr.P.C As per Motor Survey Report vide Ex.R-27 and arguments advanced by the counsel for the opposite party is not matching to the surveyor of the vehicle in question. As per FIR vide Ex.R-21, the damage of the vehicle assessed by the surveyor is Rs.3,36,329.32. As per the complainant estimate was given almost about 9 lacs and build bill given by the complainant is Rs.5,26,000/- and the amount assessed by the surveyor is Rs.3,36,329.32. In this case, the counsel for the opposite party has failed to establish his case that the driver of the vehicle in question was the cleaner not given by the father of the cleaner. Hence, the complaint is allowed.
9. Opposite party is directed to pay the assessed amount i.e. Rs.3,36,329.32 vide Ex. R-27 alongwith interest @ 6% p.a. from the date of filing of complaint till its realization. Opposite party is also directed to pay Rs.5500/- as compensation for causing mental agony & harassment alognwith Rs.5500/- as litigation expenses to the complainant. Compliance of this order be made within 30 days from the date of receipt of copy of this order. Copy of this order be sent to the parties concerned free of costs. File be consigned to the record room.
Announced on: 10.07.2023 (Amit Arora)
President
District Consumer Disputes
Redressal Commission, Faridabad.
(Mukesh Sharma)
Member
District Consumer Disputes
Redressal Commission, Faridabad.
(Indira Bhadana)
Member
District Consumer Disputes
Redressal Commission, Faridabad.
