CONSUMER DISPUTES REDRESSAL COMMISSION – X
GOVERNMENT OF N.C.T. OF DELHI
Udyog Sadan, C – 22 & 23, Institutional Area
(Behind Qutub Hotel)
New Delhi – 110016
Case No.166/2018
SH. SARWAN SHUKLA
S/o. RAM SHRAN SUKHLA
R/o. 1584/13, GOVINDPURI KALKAJI,
NEW DELHI-110044 .…..COMPLAINANT
Vs.
M/S. UNITED INDIA INSURANCE CO. LTD.
THROUGH ITS MANAGER,
2/27, OKHLA ROAD,
OPPOSITE HOTEL SOFTAL SURYA,
SARAI JULENA,
NEW DELHI-110025. …..OPPOSITE PARTY
Date of Institution- 27.07.2018
Date of Order- 20.10.2023
O R D E R
RITU GARODIA-MEMBER
- The complaint pertains to deficiency in service on the part of OP in repudiating the claim of the complainant.
- The complainant is a owner of a commercial vehicle bearing registration no. DL1ZZ-0962, having policy bearing no. 0423013115P112672017 valid from 27.01.2016 to 26.01.2017. On 13.12.2016, the complainant’s vehicle met with an accident near Liberty Mall, in front of rice mill within the jurisdiction of P.S Gharonda. The complainant suffered injury and the vehicle was completely damaged. The complainant intimated the OP about the accident.
- The complainant tried lodging a police complaint but, no FIR was registered. The complainant was constrained to send a complaint to superior police officer but even then no FIR was registered. The vehicle in question was seized by the police. The vehicle was released on Superdari vide Order dated 14.06.2017 of the learned Judicial Magistrate. The complainant towed the released vehicle by crane to Toyota showroom at Sonipat for repairs. He was given an estimate of Rs.9,43,386/-.
- The complainant filed a claim on 29.06.2017 as the vehicle was completely damaged. The claim was not paid by OP. The complainant sent a legal notice dated 02.02.2018. The Complainant prays for the repair cost of Rs.9,47,386.76/- with interest, the parking charges of Rs.6,000/- per month from 22.06.2017, crane charges for Rs.12,000/-, Rs.50,000/- towards mental pain and agony and Rs.55,000/- towards litigation expenses.
- OP in its reply, stated that the complainant is the owner of a commercial vehicle bearing no. DL 1ZZ-0962 Toyota Innova, vide policy no. 0423013115P112672017 from 27.01.2016 to 26.01.2017 for a sum insured of Rs.5,75,000/-. OP received intimation from the complainant and appointed a surveyor namely Sh. Bhavnesh Babbar to carry out a spot survey of the damaged vehicle on 13.01.2017. The said surveyor submitted a preliminary report dated 10.02.2017 stating that the police report is yet to be submitted.
- On 29.06.2017, the complainant intimated that the vehicle has been released on Superdari on 14.06.2017 and submitted a claim form. OP appointed another surveyor namely Sh. Amarjeet Singh Duggal. The surveyor submitted a report dated 12.08.2017. The details of assessment are as follows:-
- Sum Insured Rs.5,75,000.00
- Net liability on total loss basis Rs. 5,75,000.00
- Less excess policy clause Rs.2,000.00
- Wreck value of the damaged vehicle Rs.1,50,000.00
(without RC)
- Net liability on net of salvage basis Rs.4,23,000.00
- It is alleged that the complainant agreed with the surveyor report and gave his consent. The surveyor requested the complainant to submit the documents such as copy of FIR and MLC and the statement of driver and the passenger corroborating the incident. The complainant failed to submit these documents and claim was repudiated by letter dated 07.02.2018 as per terms and conditions of the policy. OP has highlighted the fact that order passed by learned MM was dated 13.12.2015 whereas the alleged accident occurred on 13.12.2016.
- OP has denied that complainant met with an accident near Liberty Mall and sustained injury. OP has also stated that no FIR has been registered till date. OP has alleged that complainant has stated that two vehicles (DL-1ZZ-0962 and HR-37A-3212) were involved in the accident. OP has also denied that complainant towed the vehicle to showroom in Sonipat. OP reiterates that complainant has failed to submit documents to corroborate the cause of accident and claim.
- Complainant in his rejoinder to the reply by OP has submitted that he has submitted the MLC of the passenger and a copy of the complaint lodged by the passenger who had sustained the injury. The injured passengers had also filed a motor accident claim case against OP. The complainant states that there was a typographical error in the date of the Superdari bond. The Superdari application mentions the correct date of accident i.e. 13.12.2016.
- Complainant has filed evidence by way of affidavit and has exhibited the following documents:
- Copy of RC is exhibited as exhibit CW 1/1.
- Copy of insurance is exhibited as exhibit CW 1/2.
- Copy of police complaint is exhibited as exhibit CW 1/3.
- Copy of the application for release of vehicle is exhibited as exhibit CW 1/4.
- Copy of the order of release is exhibited as exhibit CW 1/5.
- Copy of request format for claim is exhibited as exhibit CW 1/6.
- Copy of bill of crane charges is exhibited as exhibit CW 1/7.
- Copy of estimate prepared by Toyota. is exhibited as exhibit CW 1/8.
- Copy of legal notice and postal receipt is exhibited as exhibit CW 1/9 and CW1/10 respectively.
- Copy of the letter by OP and its reply are exhibited as exhibit CW 1/11 and CW 1/12 respectively.
- OP has filed evidence by way of affidavit and has exhibited the following documents:
- Copy of Insurance policy is exhibited as exhibit RW 1/1.
- Copy of preliminary surveyor report is exhibited as exhibit RW 1/2.
- Copy of intimation letter about release of vehicle on Superdari is exhibited as exhibit RW 1/3.
- Copy claim form is exhibited as exhibit RW 1/4.
- Copy of surveyor report is exhibited as exhibit RW 1/5.
- Copy of repudiation letter is exhibited as exhibit RW 1/6.
- This Commission vide order dated 05.09.2023 has observed:
Complainant was asked for clarification regarding MLC of the driver and other passengers. Complainant has brought originals of the medical bills and discharge summary of the driver Mr. Vikas. Complainant further states that the passenger was hospitalized for two and a half months and matter is pending in Rohini Court. Complainant will file in the course of the day a copy of medical record of driver Mr. Vikas and copy of matter pending in Rohini Court.
- The Commission has considered the material and documents on record. It is undisputed that the complainant is the owner of vehicle bearing registration no. DL1ZZ-0962. A policy bearing no. 0423013115P112672017 valid from 27.01.2016 to 26.01.2017 for insured declared value of IDV of Rs.5,75,000/- was issued by OP in respect of the said vehicle.
- The complainant as filed copy of claim form. Relevant portion is as follows:
Date and time – 13.12.2016 -3:00 to 4:00PM
Police Station- Gharaunda Haryana
Give short description of the accident- On 13.12.2016 my driver along with three passengers proceeded from Delhi to Shimla H.P. at 12:00AM noon at about 3:15PM when we reached near liberty mall in front of rice mill within the jurisdiction of PS Gharonda. At the same time an Indian tanker bearing no. HR-37A-3212 was wrongly parked at the extreme right side near divider and its driver all of sudden started reversing his vehicle without any light and signal. Seeing the approaching vehicle our driver tried to avert the collision and tried to swerve his vehicle towards the left in this process as a result of the force full impact our vehicle was completely damaged. Driver and other occupant of the vehicle suffered grievous injury.
- A surveyor, Sh. Bhavnesh Babbar, was appointed by OP who filed a report on 10.02.2017. The relevant portion are as follows:
- Name of the Driver: Vikas Upadhyay S/o of Shesh Narayan Upadhyay
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6. a) Date and time of accident: 13.12.2016 at about 3:20PM
b) Place of accident: Near Liberty Gharunda, Karnal
c) Date of allotment of Survey- 13.01.2017 in PS Gharonda.
-
Cause and Nature of Accident:
As stated by the insured’s representative on the spot that insured vehicle was being driven in the direction of Shimla from Delhi. On its way near site of accident, A truck going in right front, suddenly applied fast breaks and started reversing without giving any signal & IV right front portion reported dashed in it. Thus, the I.V. said to be got damaged. (the cause of loss to be tally with FIR).
The damages do appear accidental in nature and do confirm the nature of accident.
Under telephonic instructions received from your good office on 13.01.2017 to carry out the spot survey to the damaged Veh. No. DL. 1ZZ 0962 the undersigned visited police station Gharounda. The vehicle was inspected and photographs were arranged at our visit to the site which are enclosed herewith. The documents pertaining to the captioned vehicle were checked and noted down as produced to us.
- It is stated that the FIR was not registered by the police. A letter dated 07.02.2017 written by Mr. Samrat Kumar Singh (passenger in the vehicle in question) was sent to Superintendent of Police Karnal for registration of FIR. The relevant portion is as follows:
I am working in Adeoo India Group at New Delhi, Our company had sent the employee for official work to Simla and for the said purposes, our company had hired the services of taxi bearing No.Dl-1ZZ-0962 for commuting to Simla. On 13/12/2016 I along with my 2 colleagues and taxi driver had proceeded from Delhi at 12:00AM to Shimla, at about 3.15 when we reached near Liberty mall in front of rice mill within the jurisdiction of P.S Gharondha at the same time a vehicle i.e. Indian Oil Tanker bearing No.HR-37A-3212 was wrongly parked at the stream right side near divider and its driver all of sudden started reversing his vehicle without any light and signal, without seeing the approaching vehicle though our driver tried to avert the collusion and tried to Swayed his vehicle towards the left but still the above mentioned vehicle struck our vehicle in the said process, as a result of the forceful impact, our vehicle was completely damaged. I and other occupant of the vehicle suffered grievous injury.
That I was removed to Arvind Hospital where Dr. had diagnoses the grievous head injury, though the police reached at the hospital, and since I was not conscious therefore they have not recorded my statement however. I was informed that the police met our taxi driver and had not recording his statement and was pressuring not to lodge any complaint.
That after getting little relief I went to P.S. Gharonda for lodging my complaint but they kept on asking me to come on some other day. Thrice I visited the police station in order to lodge the complaint and insisted upon the SHO to register the FIR but he refused to register the FIR.
That when all my efforts to get the FIR registered remained futile -refused to register the FIR, therefore I have been left with no other option except to lodge the present written complaint to your good self.
- The complainant filed an application for release of the vehicle in question on Superdari vide application dated 05.06.2017. The relevant portion of this application is as follows:
- That the applicant is the registered owner of the above said vehicle which was seized by the police on 13.12.2016, in the above mentioned case.
- That so far the police has not registered the FIR against any person though applicant has been informed by the driver that the accident had occurred due to the fault of the Indian Oil Tanker bearing No. HR-37A-3212.
- The Superdari order dated 14.06.2017 is as follows:-
An application for releasing the vehicle bearing registration No.DL-1ZZ-0962 on superdari has been filed by the applicant Sh. Sarwan Kumar Shukla. It is pertinent to mention here that no FIR number has been mentioned in the application by the applicant and he has stated that the police of Police Station, Gharaunda has no registered in FIR against any person in the accident case in which the vehicle is involved. It is also averred that the vehicle is duly insured and original papers like Registration Certificate, Insurance papers, fitness, permit, pollution certificate etc. are lying in the vehicle. Since, the vehicle is no required by the police, it must be. handed over to applicant/owner who is ready to abide by all. the terms and conditions that court would impose on him while granting and allowing the superdari in hand. Report has been received from police station, Gharaunda with the averments that the aforesaid vehicle bearing No. DL-1ZZ-0962 has been lying in the police station in & damaged condition and it was involved in an accident. At the same time, it is admitted that no FIR was registered in this case that involved the vehicle and therefore, the police has no objection, if the same is released to the owner of the vehicle. The applicant has placed on record the photocopy of Registration Certificate which shows that vehicle is registered in the . name of applicant/owner Sarwan Kumar. The Driving License of (the driver of the vehicle namely Vikas is also on the record. Alongwith that the Insurance Certificate of the vehicle which is in the name of applicant! Keeping in mind the report received from the police station, Garalunda as well as, necessary relevant documentation provided on the record by the applicant' this court is of the considered view that there remain no reason as to why the vehicle standing in the compound of P.S. Gharaunda be not released on superdari 'to the applicant who is the owner of the vehicle.
- OP has filed the policy, the claim form and surveyor report. The motor surveyor report dated 12.08.2017 by Mr. Amarjit Singh Duggal, Surveyor and Loss Assessor. The relevant portion is as follows:
Particulars of Police report:The matter was reported to police. The police authorities did not register the FIR as per the insured.
The vehicle is released on Superdari.
-
Particulars of Loss/Damage:
The damages allowed were fresh and concurrent confirmation with the cause in nature of accident.
SUMMARY OF ASSESSMENT:
-
(Amt. in Rs.)(Amt. in Rs.)
Total Labour Charges 1,69,688.131, 18,438.00
Total Cost of Parts 10,21,793.616, 50,762.34
-
Less Scrap Value7,000.00
Less Excess Policy Clause2,000.00
Details of assessment on total loss/net of salvage basis
The details on liability on Total Loss Basis was carried out after ascertaining the market value of the insured vehicle from the local motor vehicle dealers. The details:
Sum InsuredRs.5,75,000.00
Invoice Value on the Date of LossRs. N.A.
Net Liability on Total Loss BasisRs.5,75,000.00
Less Excess Policy ClauseRs.2,000.00
Wreck Value of the Damaged Vehicle
(Without RC)Rs.1,50,000.00
Net Liability on Net of Salvage BasisRs.4,23,000.00
Net Liability on Repair BasisRs.7,60,000.00
Taking into account the physical verification of the insured vehicle documents submitted the details of mishap were discussed with the insured. The damages/mishap are found fresh/consistant with the cause of mishap.
As per documents submitted, verbal discussions it is noted that the insured vehicle met with an accident on 13.12.2016 and the inspection was carried out on 30.06.2017. The insured stated that the inspection was carried out after arranging the vehicle on superdari through court. The documents as submitted by the insured are enclosed.
Taking into account the damages to the insured vehicle the repair liability was not economical and hence the settlement of claim on NET OF SALVAGE BASIS WITHOUT RC.
- The complainant has also filed a receipt dated 13.12.2016 from Kapoor crane service for Rs.5,500/- and receipt dated 22.06.2017 for Rs.6,500/-. OP vide letter dated 07.02.2017 rejected the claim. The relevant portion is as follows:
With reference to the above stated subject, we regret to inform you that despite repeated calls, and reminders. We have not received the following documents.
- FIR as third party loss/injury is also involved and it is a case of superdari
- MLC of the driver and passengers involved in the accident.
The claim was intimated late by a month. As per our investigation report no record could be corroborated from the concerned authorities. Hence, we have no other alternative except to repudiate the file.
- The discharge summary of Mr. Vikas (Driver) from Arvind Hospital is as follows:
Date of admission: 13.12.2016
Date of discharge : 15.12.2016.
Diagnosis: RCA with head injury.
O/E- Semi conscious
- The discharge summary of Mr. Samrat (passenger) from Arvind Hospital is as follows:
Date of admission:13.12.2016
Date of discharge : 02.01.2017
O/E- Semi conscious.
- The claim form filled by complainant shows that the vehicle at the time of accident on 13.12.2016 carried one driver and three passengers. A tanker bearing No.HR-37A-3212 started reversing. The driver of the vehicle in question tried to swerve but there was forceful impact on the vehicle. The investigator report dated 10.02.2017 repeats the same incident. The name of driver is Vikas Upadhyay. The surveyor also inspected the vehicle at the police station as the same had been taken into custody by police. The surveyor concurred that the damage to the vehicle was in concordance with the accident.
- One of the passengers Mr. Samrat Singh sent a letter to the Superintendent to the police repeating the same incident. He stated that he was taken to Arvind Hospital with grievous head injury. When the police reached the hospital he was not conscious and hence his statement could not be recorded. Thereafter, the police authorities were not ready to register his complaint despite several efforts made by him.
- Subsequently, the complainant filed an application for release of vehicle on Superdari wherein he repeated the accident and submitted that the police officials are not ready to register his FIR. Superdari order dated 14.06.2017 state that the vehicle in dispute was seized by the police as it was involved in the accident. It was lying in police station in damaged condition. No FIR has been lodged.
- The surveyor report dated 12.08.2017 states that the matter was reported to police who did not register the FIR. He has also concurred that the damage to the car was consistent with the cause of mishap. The surveyor assessed the damage to the parts to the tune of Rs.7,60,200.34/- which was more than IDV of the vehicle which was Rs.5,75,000/-. The surveyor then advised the OP to settle the claim on total loss/net of salvage basis i.e. IDV minus excess policy clause and wreck value of damaged vehicle. However, the surveyor or OP has placed no calculation as to how they calculated the wreck value of the vehicle.
- OP vide repudiation letter dated 07.02.2017 rejected the claim on three grounds:
- No FIR received.
- No MLC received.
- Delay in intimation by one month.
- Discharge summary by Arvind Hospital shows that the driver Mr. Vikas and passenger Mr. Samrat were admitted in Arvind Hospital on 13.12.2020 with head injury in semi-conscious state. Thus, it cannot be disputed that the people in the vehicle were not injured.
- Hon’ble Allahabad high court in Royal Sundaram Alliance Insurance Co. Ltd. Vs. Shakuntla and Ors. Citiation no. 2020(2) ALJ 385 has observed:
The next question raised from the side of the appellant is that there was no FIR in respect of incident. In the impugned judgment, the learned Commissioner has mentioned that photo-estate copy of GD and inquest report was on record and from the perusal thereof, it is clear that a report was given in the PS Kasana and the police took the dead body in possession and inquest report was prepared. For the purpose of claim petition, I find it enough as registration of offence and FIR is the responsibility of the police. It has been found sufficient by the learned Commissioner and the Insurance Company, by any evidence, has not been able to show that no such accident took place. It is also pertinent to mention that to succeed under Act, it is not necessary to show and prove negligence. The driver has been examined to prove the event and to prove that when the accident took place he was involved in a work which was in the course of his employment. No evidence was given by the Insurance Company and even a surveyor was not deputed to bring facts as alleged to contradict the version of claim. As such, I find no force in the argument.
- The complainant filed a complaint with the police authorities who did not lodge the FIR. The complainant cannot be held responsible for the acts of police authorities.
- OP in their entire reply, repudiation letter and evidence by way of affidavit has not stated the date on which the OP was informed of the accident. The first surveyor was appointed on 13.01.2017, It does not lead to interference that OP was informed about the accident that took place on 13.12.2016 exactly on 13.01.2017. It is a settled principal of law that burden of proof lies on the parties making the averments. OP has failed to discharge this burden by merely stating that the information was given after one month of the accident.
- The mishaps mentioned in the accident and the sequence of event is same in the claim form, court order, passenger’s complaint to superintendent of police and the two surveyors report. It is difficult to understand as to why OP rejected the claim on frivolous grounds which were not in the hands of the complainant. The repair costs given by the surveyor’s estimate is more than IDV of the vehicle. Thus, the vehicle should be treated on a Total Loss basis.
- Hence, we find OP is guilty of deficiency of service and unfair trade practice and following directions are passed:-
- OP is directed to pay Rs.5,75,000 (IDV) with interest @9% from the date of complaint till realization.
- OP is directed to pay an amount of Rs. 25,000/- as compensation for the mental agony and the discomfort caused due to deficiency in service.
- OP is directed to pay Rs.5,000/- towards litigation expenses.
- Order to be complied within 30 days from the date of order.
- File be consigned to record room.
