District Consumer Disputes Redressal Commission ,Faridabad.
Consumer Complaint No. 207/2021.
Date of Institution: 08.04.2021.
Date of Order:.21.08.2023.
Ishant Anand S/o Shri Arun Rai R/o House No. 522, Sector-7B, Faridabad.
…….Complainant……..
Versus
1. M/s. The Oriental Insurance Company Ltd., Divisional Office:5B/4BP, Railway Road, NIT, Faridabad.
2. The Senior Divisional Manager, M/s. The Oriental Insurance Co. Ltd., divisional Office: 5B/4BP, Railway Road, NIT, Faridabad.
…Opposite parties
BEFORE: Amit Arora……………..President
Mukesh Sharma…………Member.
Indira Bhadana………….Member.
Complaint under section-12 of Consumer Protection Act, 1986
Now amended Section 34 of Consumer protection Act 2019.
PRESENT: Sh. Kishan Pal Bhati, counsel for the complainant.
Sh. Jatinder Singh, counsel for opposite parties.
ORDER:
The facts in brief of the complaint are that the complainant was the registered owner of Car bearing registration No. HR-30P-9203, Make Hyundai i-20 having its Chassis No. MALBM51RLFM123794F and engine No. D4FCM343488. The car mentioned above was insured with the opposite parties vide its Package Car Insurance Policy N\o. 211200/31/2020/64675 having its validity from 03.08.2019 to 02.08.2020 issued in the name of the complainant. The complainant paid an amount of Rs.11,283/- towards insurance premium covering its IDV of Rs.3,51,000/-. Unfortunately, the above mentioned insured No. HR-30P-9203 got damaged badly in motor accident, when the complainant was driving his insured car mentioned above and his wife Smt. Dimpal Singh, two daughters namely baby Manya Anand aged 9 years, baby Ananya Anand aged 4 years the friend of the complainant Shri Jtendra Mishra, his wife Smt. Kanchan Mishra and daughter baby Aakriti Mishra were travelling and were coming from Lucknow to Agra via Agra Lucknow Express Highway for Faridabad on 04.11.2019. When the complainant alongwith the above mentioned occupants in the car reached within the jurisdiction of police station Kurra Mainpuri (UP) at about 11.30pm, a stray animal came on the road and while saving the animal, the car hit the divider of the road resulting which the insured car went in road side ditches. All the occupants of the insured car No. HR-30P-9203 sustained injuries but the injuries sustained by Smt. Dimpal Singh, the wife of the complainant prove d fatal and her autopsy carried out in CHC, Hospital, Etawah (UP) vide PMR No. 1652/19 dated 05.11.2019, conducted by Dr. Sushil Kumar, Medical Officer on 05.11.2019. The complainant also sustained serious injuries on her person and was taken to Saifai Hospital Etawah where he remained hospitalized and gained his consciousness on 06.11.2019 and thereafter upon the statement of the complainant, the GD NO. 004 dated 06.11.2019 was recorded in Police Station Kurra Mainpuri (U.P) The other occupants were also treated in Saifai Hospital and were medico legally examined by the attending doctors After the accident, the complainant after his discharge from the hospital, intimated the concerned office of the opposite parties with regard to the accident in question and the damage caused to the insured car No. HR-30O-9203 in accident. The complainant submitted the motor claim form with the opposite partis alongwith all the required documents i.e photocopy of DL, RC, insurance, G.D.No. 004 dated06.11.2019 recorded in police station Kurra, Mainpuri (YP), whereby the opposite parties assured the complainant that the total loss claim of the complainant would be disbursed shortly. The complainant visited the office of the opposite parties time and again requesting them to release the insured amount of Rs.,3,51,000/- to the complainant at the earliest, as he was required to purchase a new car for his day to day use and being the need of his family members, but the opposite parties put off the matter with one excuse or the other by demanding various documents i.e the IUD of the complainant, aadhaar card, PAN card and the bank account number with a crossed cheque. Despite submitting all the requisite documents called for, the opposite parties failed to make the payment of Rs.3,51,000/- to the complainant. The complainant harassed at the hands of the opposite parties was forced to get a legal notice dated 15.06.2020, issued upon the opposite parties through his advocate Kr. Kishan Pal Bhati which was duly received by the opposite parties. Upon receipt of the legal notice, the opposite parties were sure that the complainant would approach the court of law and in order to save themselves from the wrath of law, the opposite parties sent a pre-repudiation letter dated 05.08.2020 to the complainant intimating that the insured had violated the terms and conditions of the insurance policy by travelling 7 persons, whereas the seating capacity of the insured car mentioned above was for 5 persons. The opposite parties failed to appreciate that both the daughters of the complainant insured were minors, who were travelling alongwith the complainant on the day of accident. The opposite parties also failed to note that baby Akriti daughter of Shri Jitendra Mishra was also minor aged 8 years who was accompanying the complainant in the insured car at the time of accident. Such a plea of the opposite parties was created just to deny the total loss claim of the insured car of the complainant. The opposite parties further mentioned in their letter that the claim of the complainant was liable to be repudiated but before doing so, the complainant was to submit his clarification within 15 days failing which, the opposite parties would repudiate the claim of the complainant as No Claim. Upon receipt of the letter mentioned above, the complainant immediately approached the letter issuing office Hansalaya Building, 15 Barakhamba Road, New Delhi and clearly told that all the three kids travelling in the insured car at the time of accident were minor daughters and as such could not be considered to be as total 7 members in car, at the time of accident. It was worth mentioning that the concerned dealing person clearly told the complainant that the opposite parties would not release the total loss claim of the complainant and as such the complainant would required to approach the court of law. Despite submissions of the complainant to the pre-repudiation letter dated 05.08.2020, the opposite parties failed to make the payment of the insured amount being the total loss of the insured vehicle, which was to the tune of Rs.3,51,000/-. The opposite parties playing smart sent a repudiation letter dated 25..09.2020 mentioning that the total loss claim of the complainant was closed as “No Claim”, in view of the terms and conditions, of the policy issued, survey report and on the same plea as was raised in pre-repudiation letter dated 05.08.2020. If the Hon’ble Commission go through the repudiation letter dated 25..09.2020, this Hon’ble Commission would note that in their letter dated 25.09.2020, the opposite parties had casually, gave an evasive reply saying the accident dated 25.09.2020, whereas the repudiation letter being issued was dated 25.09.2020. Such a stand of the opposite parties was beyond the compensation of the complainant as when the accident was being shown as that of 25.09.2020, how a pre-repudiation letter dated 05.08.2020 to the complainant, when there was no such accident occurred prior to 05.08.2020.The aforesaid act of opposite party amounts to deficiency of service and hence the complaint. The complainant has prayed for directions to the opposite parties to:
a) make the payment of Rs.3,51,000/- to the complainant being the total loss suffered in respect of the insured car No. HR-30P-9203. The opposite parties may also be ordered to pay interest @ 12% p.a. from the date of filing of the claim form till its actual payment.
b) pay Rs. 1,00,000/- as compensation for causing mental agony and harassment .
c) pay Rs. 22,000 /-as litigation expenses.
2. Opposite parties put in appearance through counsel and filed written statement wherein Opposite parties refuted claim of the complainant and submitted that the present complaint was not legally maintainable in vie wof the fact that the complainant had failed to establish any negligence of rendering of deficient or short services to the complainant in respect of the insurance policy No.211200/31/2020/64676 covering the insurance risk form 03.08.2019 nto 02.08.2020 in the name of the complainant Ishant Anand regarding car bearing registration NO. HR-30P-9203 make i20 Hyundai. Upon receipt of the intimation of the loss occurred to insured car No. HR-30P-9203, the opposite party insurer appointed surveyor to assess the loss. The complainant submitted the Repair Estimate of M/s. Trimph Auto Pvt. Ltd .dated 15.12.2019 showing to be the expenses of Rs.5,71,369.08 pais i.e Rs.4,44,560.38 paise upon Spare parts and Rs.1,26,808.70 paisa towards labor charges. The complainant also submitted the motor claim form with the opposite party insurer. The opposite party insurer appointed Shri S.K.Behl, Surveyor and Loss Assessors for Spot Survey report who submitted his report dated 20.12.2019. Thereafter the opposite party insurer appointed M/s. IAR Insurance Surveyors & Loss Assessors Pvt. Ltd. To carry out the motor survey report and accordingly the surveyor submitted its motor survey report dated 08.01.2020. Upon receipt of all the required connected documents and the survey reports, the OD claim of the complainant was processed and the Competent Authority as Service centre (DRO-1_, 10th floor, Hansalaya Building, 15 Barakhama Road, New Delhi, firstly issued pre-repudiation letter dated 05.08.2020 intimating the insured that the OD claim was not tenable as GD No. 004 dated 06.11.2019 mentions that at the time of accident 7 people were travelling in the vehicle, whereas the seating capacity of the car was 5. The OD claim of the complainant was liable for repudiation but before doing so, the oppose party insurer asked the complainant to give clarification within 15 days failing which the OD claim of the complainant should be closed as “NO Claim”. The complainant failed to respond , as such the opposite party insurer issued repudiation letter dated 25.09.2020, whereby the own damage claim of the complainant was repudiated with the remarks “No claim”. Opposite parties 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 parties–Oriental Insurance Company Ltd. with the prayer to: a) make the payment of Rs.3,51,000/- to the complainant being the total loss suffered in respect of the insured car MNo/ HR-30P-9203. The opposite parties may also be ordered to pay interest @ 12% p.a. from the date of filing of the claim form till its actual payment. b) pay Rs. 1,00,000/- as compensation for causing mental agony and harassment . c) pay Rs. 22,000 /-as litigation expenses.
To establish his case the complainant has led in his evidence, Ex.CW1/A – affidavit of Ishant Anand, Ex.C-1 –RC, Ex.C-2 – insurance policy, Ex.C-3 – Post mortem report,, Ex.C-4 – General Diary details, Ex.C-5 to 9– out patient slips,Ex.C-11 – driving licence, EX.C-11 – Out patient slip, Ex.C-12 – legal notice, Ex.C-13 – Pre-repudiation letter dated 05.08.2020, Ex.C-14 – repudiation letter dated 25.09.2020.
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 Ramesh Kumar,Senior Divisional Manager, M/s. Oriental Insurance Company Limited, 5B/4BP, Railway Road, NIT, Faridabad, Ex.R-1 – insurance policy, Rc.R-2 – claim intimation form, Ex.R-3 – Repair estimate,, Ex.R-4 – motor claim form,, Ex.R-5 – Motor Spot Survey report,, Ex.R-6 – Motor Survey report,, Ex.R-7 – pre-repudiation letter dated 05.08.2020, Ex.R-8 – Repudiation letter.
6. In this complaint the complaint was filed by the complainant with the prayer of the total loss of the vehicle No. HR-30P-9203.
7. The complainant got Package Car Insurance Policy bearing No. 211200/31/2020/64675 valid from 03.08.2019 to 02.08.2020 for the insured sum of Rs.3,51,000/-. Opposite party repudiated the claim of the complainant vide letter dated 25.09.2020 (Ex.C-14) on the grounds that “As per policy terms & conditions, this certificate of insurance has been issued in accordance with the Motor Vehicle Act, 1988. The insured is not indemnified if the vehicle is used or driven otherwise than in accordance with this schedule. Here, as per the copy of RC submitted by you, the seating capacity of the vehicle is 5. But, as per General Diary details (G.D.No. 004 dated 06.11.2019) a total of 7 people were travelling in the vehicle This is a clear violation of the Registration certificate issued to you by RTO Palwal and a violation of the MC Act.: The complainant also filed evidence Ex.C-1 to C-14.
On the other hand, counsel for the complainant argued at length and stated at Bar that there were 2 kids inside the car. The age of both the kids are less than 5 years. This is a minor violation.
As per the Motor Survey report vide Ex.R-6, the total cost of parts is Rs.3,92,833/- and the labour cost is Rs.1,26,808.70. Now this is total loss of the vehicle in question. The IDV value of the vehicle is Rs.3,51,000/-. We are allowing the complaint on non standard basis.
8. After going through the evidence led by the parties, the Commission is of the opinion that the surveyor is an expert person. We allow the complaint with non standard basis when the IDV value of vehicle in question is Rs.3,51,000/- . We assess the salvage value of the vehicle in question is Rs.50,000/-. Details are as under:
Insured value of the vehicle : Rs.3,51,000/-
Less Excess clause : Rs. 1,000/-
Rs.3,50,000/-
Deduction 25% on non standard basis : Rs. 87,750/-
Rs.2,62,250/-
Less cost of wreckage : Rs.50,000/- (with RC)
Net liability without wreckage : Rs.2,62,250/-
Net liability with wreckage : Rs.2,62,250/- minus 50,000/-
(Wreckage)_ = Rs.2,12,250/-
9. The learned counsel for complainant during arguments stated that the loss be given on total loss basis and the wreckage be given to the opposite parties and the complainant wants its cost. The complainant did not want to keep the wreckage with him, therefore, in these circumstances the complainant is entitled for the cost of the wreckage and the wreckage will remain with the opposite parties.
10. Thus, in view of above discussion, we allow the complaint and direct the opposite parties to pay Rs.2,62,250/- to the complainant on total loss basis, subject to the condition that the complainant will furnish the subrogation letter, cancellation of RC, affidavit, Form 29,30 and Form 35 and undertaking that he will not claim anything about the damage of the vehicle in question. In case the complainant keeps the wreckage, then he is entitled for Rs. Rs.2,12,250/-. Opposite parties are directed to pay Rs.20,000/- as costs as compensation for mental tension and agony alongwith litigation expenses to the complainant. Compliance of this order be made within 30 days from the date of receipt of copy of order. Copy of this order be sent to the parties concerned free of costs. File be consigned to the record room.
Announced on: 21.08/2023 (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.
