DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-II

U.T. CHANDIGARH

Anil Kumar son of Sh. Dharam Pal, resident of #44, V.P.O. Behlana, U.T. Chandigarh (Permanent address: H.No. 4153, Sector 68, Mohali).

                                                                                    ---Complainant

V E R S U S

1]       M/s United India Insurance Co. Limited, Regd. & Head Ofice #24 Whites Road, Chennai – 600014, through its Managing Director.

2]       M/s United India Insurance Co. Ltd., SCO No. 123-124, Sector 17, Chandigarh, through its Branch Manager.

3]       Sh. Raj Kumar, Branch Manager, United India Insurance Co. Ltd., SCO No. 123-124, Sector 17, Chandigarh.

4]       M/s Hind Motors (India) Limited, #B-16, Industrial Area, Phase-2, Mohali.

---Opposite Parties

BEFORE:            SHRI LAKSHMAN SHARMA                    PRESIDENT

                        MRS.MADHU MUTNEJA                   MEMBER

                        SH.JASWINDER SINGH SIDHU            MEMBER

Argued By:      Sh.O.P. Narang, Adv. for the complainant.

Sh.Vinod Chaudhari, Adv. for OPs No.1, 2 & 3.

Sh.Gagan Aggarwal, Adv. for OP No.4.

PER JASWINDER SINGH SIDHU, MEMBER

1.             Complainant (hereinafter referred to as CC for short) has filed the present complaint against the Opposite Parties (hereinafter referred to as OPs for short), on the grounds that the CC is the owner of vehicle (TATA Safari) bearing Regn. No. CH-03-R-0026 (Model 2004) and that the CC is the holder of a valid driving licence as issued by the Licensing Authority, U.T. Chandigarh.  The CC got the above said vehicle comprehensively insured from OP No.2, after paying an amount of Rs.13,736/- on 3.5.2010 as premium and the said policy under cover note 611357. A policy bearing No. 111683/31/10/01/00000110 was issued. The said policy was valid from 3.5.2010 upto 2.5.2011.

                The vehicle in question met with an accident on 16.5.2010 at 11.30 PM and the CC intimated the OP No.2 & 3 the very next morning and on the directions of the OPs, the same was taken to an authorized workshop i.e. OP No.4. A surveyor was sent to inspect the said vehicle and assess the loss. The report of the surveyor was submitted to OP No.2.

                The OP No.4 prepared and issued a copy of job card dated 17.5.2010 (Annex.C-V) to the CC and further, promised that the said vehicle would be repaired immediately, after getting all the requisite formalities done by themselves from the insurance company i.e. OP No.2. Thereafter, the CC informed OP No.2 regarding the status of the vehicle lying with OP No.4.  OP No.2 assured the CC that the needful would be done at the earliest and that a surveyor has been appointed, who would be submitting his report in the meanwhile. OP No.2 asked the CC to lodge a DDR with the police and the same having been reported on 21.5.2010, a copy of which is annexed as Annexure C-VI.

                CC has alleged in his present complaint that the OPs have not done the needful and had to make several visits to their offices. It is also alleged that OP No. 4 asked the CC if he wanted to get his vehicle repaired he should pay the required money and thereafter, he may claim the same from the Insurance Company. But on the other hand, OP No.2 & 3 kept on assuring the CC for a prompt action. The CC has also alleged that OP No.2 & 3 did not even issue any letter or communication with regard to his requirement, so as to facilitate the matter.

                CC has categorically stated that in absence of any action on the part of OP No.2 & 3, the vehicle remained unattended at the premises of OP No.4, for which the OP No.4 was asking for parking charges and as it was not on account of any fault on the part of the CC, he felt harassed and humiliated.  On the above mentioned allegations CC has claimed directions against the OPs to get the vehicle repaired at the cost of the OPs as the same is comprehensively insured. The CC has also prayed for a compensation of Rs.3,00,000/- and Rs.11,000/- as cost of litigation. 

2.              On notice, OPs No.1 to 3 filed their collective versions; whereas, OP No.4 preferred to file a separate version.

                In the opening Para of their version, OPs No.1 to 3 have taken preliminary objections to the present complaint on the ground that the answering OPs are not deficient in providing proper service to the insured, as would be seen from the annexed report (R-1), where the surveyor appointed by the answering OP made numerous visits and requested a number of times to the OP for dismantling of the vehicle, but the OP paid no heed to his requests and the vehicle was not dismantled, as required by the inspecting surveyor. 

                From the above para, it is clear that the answering OP has laid all the deficiencies at the door step of OP No.4. Furthermore, as the loss assessed by the Surveyor is to the tune of Rs.25,741.41P, the report of the Surveyor (R-1) in its present form is in itself be considered as a final report.  It is further stated that the OP No.4 is supposed to have written a letter undated (Annex.R-2) to clarify the policy status at the earliest, but the CC remained silent.

                On merits, it is contested that no cause has accrued in favour of the CC on account of deficiency in service or unfair trade practice of the answering OPs.  It is further stated that though the accident had taken place on 16.5.2010, it is clear from the records that the CC lodged the police report on 21.5.2010 and hence, the delay on the part of the CC is a breach of the terms and conditions of the policy.  It is also mentioned that because of such delay, the site of accident was disturbed and the claim of the CC was stage managed and tailored and the occurrence was at variance with the actual matrix of the happenings.

                It is also alleged that the allegations of the CC in Para 7 to 9 of the complaint are wrong and the surveyor had made several visits, but his instructions were not followed by the CC, as it was incumbent upon the CC to abide by the instructions and requirements of the Surveyor appointed by the Company.  The affidavit of one Sh. Parveen K. Gupta, Area Manager, UIICO, Sector 17, Chandigarh, filed with the reply, is the complete replica of the version.  The answering OPs have also filed the Survey Report dated 6.11.2010 (R-1), along with Rough Estimate (R-2) and a letter dated 26.8.2010, with their version.

3.              OP No.4 had filed written statement on its behalf taking preliminary objections to the fact that as the CC has not paid even a single penny to OP No.4, hence, he does not fall into the definition of a consumer qua OP No.4.  The answering OP has taken serious objections to the fact that the complaint in the present form is false, vexatious and baseless and has been filed with a malafide intention of harassing and prejudice to OP No.4.

                On merits, though the OP NO.4 had filed Annexure OP-4/1, 4/2 4/3-6 and Annexure OP-4/7, in support of their version, whereas; there is nothing mentioned against the different allegations of the complaint, nor any reasoning is attributed while contesting the allegations of the CC. The answers to the paras of the complaint have either been denied for want of knowledge or need not be answered as being part of the record. 

4.              Parties led their respective evidences.

5.              Having gone through the entire complaint, version of the OPs, the evidence of the parties and the written arguments of the parties. With the able assistance of the ld. Counsel for the parties, we have come to the following conclusions.-

i)         It is very important to mention the fact that the vehicle in question met with an accident on 16.5.2010 at 11.30 P.M. near Zirakpur. The vehicle was taken to OP No.4 on 17.5.2010 i.e. the very next day, as is clear from Ex.C-V, which is the job card of OP No.4. It is also clear from this document that the copy of RC Book, Driving License, Insurance Claim Form and Insurance Cover Note was made available to OP No.4 on that very day and the same is explicitly marked in the column (Availability of Documents) of the Job Card.

ii)        As the CC has levelled the allegations with regard to the lack of information, as to how the OPs No.1-3 and OP No.4 have been acting with regard to the repair of the said vehicle and the preparation of survey report.  It is very much clear from Ex.R-I dated 6.11.2010 that the said report was prepared after a gap of SIX MONTHS i.e. the surveyor was appointed on 19.5.2010 and the report was finalized on 6.11.2010.  It is further noticed that the surveyor had clearly mentioned that in column no. 14 of its report that the R.C., Driving License and Insurance Cover Note were checked and found in order.  Furthermore, under the Headings “Route Permit” and “Loading Challan”, it is mentioned that the same is not required. From the above observations of the Surveyor, it is clear that there was no discrepancy in any document which was made available to the OPs on the very next day of the accident.

iii)       The defence of OP 1-3 that the CC had intimated the police after a passage of 05 days of the happening of the accident; whereas, it is established beyond all reasonable doubts that they themselves were informed about the happening of the accident the very next day, as is clear from Ex.OP-4/1, which is a claim intimation slip and is dated 17.5.2010. This document also speaks about deputing one Mr. Sohal as the Surveyor for the said job.  As this document belongs to OP 1-3, their allegations as mentioned in their version do not hold ground.

iv)       It is also important to visit the survey report dated 6.11.2010, wherein, on page 4, a detailed report with regard to the survey is submitted. As per this report, the surveyor has alleged that the findings have been intimated to the Chandigarh office and one Sh. R.K. Singh, the Senior Divisional Manager, D.O. III, Chandigarh was asked to check whether the vehicle had been pre-inspected before granting insurance risks to the insured, as there was a gap of few days between the old insurance and the fresh one.  It is also alleged in the same report that the OP No.4 did not dismantle the damaged vehicle, so that a final assessment could be made, for the reasons that OP No.4 was insisting an advance payment before it started with the repair.  It is important to mention here that OP 1-3 did not make any efforts to investigate the matter as per the findings of the survey report, or as mentioned again at foot note that the insurance company must confirm from the concerned person, who had issued the cover note whether he had pre-inspected the vehicle before granting the comprehensive risks to the insured or not. The OPs have failed in dispensing with their responsibility with regard to this issue.  They have also not come up with any excuse for their failure to do so .Hence they are deficient on this count.

v)        Further from the version of OP-4 and Annexes OP-R/3-6, it is clear that OP-4 has written these letters dated 17.6.2010, 20.7.2010, 26.8.2010 and 25.9.2010 citing the fact that the CC should contact the insurance official to clarify the policy status, so as to start the accidental job. We feel that these letters have been written as an after thought to escape the liabilities as there is no receipt from the side of the CC confirming the delivery of these letters and as far as the fact with regard to any clarification, it was incumbent upon the insurance company for such a demand and not the Workshop who was only responsible to repair the vehicle and has nothing to do with the insurance status of the vehicle.  It is also clear that the OP-4 is not the mouthpiece of OP 1-3 and                               that OP 1-3 had never demanded such clarification from the CC through OP-4. OP 1-3 have themselves remained silent all through the process before the filing of the complaint and even after having filed their version, they took nearly EIGHT Months time after filing of their version to raise an issue with regard to the requirement of fitness certificate of the said vehicle in question from the CC by mentioning the same in their written arguments, which was required to process the claim of the CC. Hence OP 1-3 are wrong in raising this issue at this stage as they had issued the Policy on the very basis of these documents.  

6]             We feel that OP 1-3 are themselves not clear about their stand with regard to the assessment of the claim of the CC, as we find them wanting in acting on the findings of the survey report and after having filed their version which does not mention any requirement with regard to the fitness certificate and the same is also corroborated from the finding of the surveyor, who had found all the documents in order for the process of the claim and any hitch if at all was only with regard to the total assessment of the claim as the vehicle was not dismantled by OP-4.  In the present circumstances, we feel that as per OP 1-3, stating that the claim of the CC is not yet settled and on the bases of the subsequent report of the Surveyor dated 18.7.2011, by which the assessment of the loss is enhanced to Rs.55,721.25P the issue becomes final. We feel that the entire process of assessment of the claim of the CC even after the lodging of the present complaint took nearly  1½ year, the OP 1-3 failed to give a reasonable excuse as to on what grounds they slept over the matter for such a long period.  

7]             It is important to cite the Insurance Regulatory and Development Authority (Protection of Policyholders’ Interests) Regulations, 2002, which clearly speaks about the following aspects, as mentioned in Regulation No. 9 (2)&(3):-

9(2) Where the insured is unable to furnish all the particulars required by the surveyor or where the surveyor does not receive the full cooperation of the insured, the insurer or the surveyor as the case may be, shall inform in writing the insured about the delay that may result in the assessment of the claim. The surveyor shall be subjected to the code of conduct laid down by the Authority while assessing the loss, and shall communicate his findings to the insurer within 30 days of his appointment with a copy of the report being furnished to the insured, if he so desires. Where, in special circumstances of the case, either due to its special and complicated nature, the surveyor shall under intimation to the insured, seek an extension from the insurer for submission of his report. In no case shall a surveyor take more than six months from the date of his appointment to furnish his report.

9(3) If an insurer, on the receipt of a survey report, finds that it is incomplete in any respect, he shall require the surveyor under intimation to the insured, to furnish an additional report on certain specific issues as may be required by the insurer. Such a request may be made by the insurer within 15 days of the receipt of the original survey report.

From the above guidelines and lack of proof of any communication, it is clear that OP 1-3 have miserably failed in their duties towards the insured and the pain and loss that the CC has gone through is solely due to the negligent act of the OP 1-3. We feel that having involved OP No.4 to create a shield for themselves also amounts to an unfair trade practice on the part of OP 1-3. Our views also gather strength from the observations of the Hon’ble Justice RANJIT SINGH in civil writ petition No3996 of 2011 wherein it is held that “Insurance companies are charging hefty premium for insuring the vehicles. Once the question of liability arises the companies resort to one technical objection and the other. These companies really chase people and literally promise everything at the time of selling policy. It is usual to see people struggle to run after Agents and Surveyors to get their rightful claims.  Such agents then look other way and make insurers to make rounds to company offices. Insurers are then made to approach the Courts and are even dragged to this Court on one technical plea or the other. No one really is made to read the terms while making him to sign on the printed forms for selling policies. This attitude must change. Hence, on the above observations, we allow the present complaint and direct OP 1-3 to release the amount of the claim as per the survey report dated 18.7.2011, by which the assessment of the loss is calculated as Rs.55,721.25P,. We further saddle OP 1-3 with the consolidated amount of compensation to the tune of Rs.50,000/-, along with Rs.5000/- as cost of litigation, within 30 days of the receipt of the copy of this order, failing which OP 1-3 shall be liable for an interest @ 18% p.a. on the entire amount that stands due against them, except for the cost of litigation.

                We also saddle OP No. 4 to the tune of Rs10,000/-  for playing into the hands of OP1-3 and in not doing their part of the job honestly and promptly. They are further directed to not to charge any parking charges from the CC and release the vehicle, immediately, after receiving payments minus the above penalty. 

                    Certified copy of this order be communicated to the parties, free of charge. After compliance file be consigned to record room.

Announced

05.10.2011                                                                      Sd/-

                    (LAKSHMAN SHARMA)

PRESIDENT

Sd/-

(MADHU MUTNEJA)

MEMBER

Sd/-

 (JASWINDER SINGH SIDHU)

MEMBER