Punjab

Ludhiana

CC/14/732

Jasvinder Kaur - Complainant(s)

Versus

National Ins.Co.Ltd - Opp.Party(s)

B.K.Rampal

29 Jun 2015

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, LUDHIANA.

 

                                                          C.C.No.732 of 28.10.2014

                                                          Date of Decision:29.06.2015

Mrs.Jasjinder Kaur w/o Sh.Baljinder Singh r/o VPO Baddowal, Tehsil & District Ludhiana.

                                                                                      … Complainant

                                             Versus

The National Insurance Company Limited, Divisional Office-II, Near Dholewal Chowk, Ludhiana (through its Divisional Manager).

                                                                             …          Opposite Party

          Complaint under section 12 of the Consumer Protection Act,1986

Quorum     Sh. R.L.Ahuja, President.

                   Sh.Sat Paul Garg, Member.

                  

Present       Sh.B.K.Rampal, Adv. for complainant.

                   Sh.Rajeev Abhi, Adv. for OP.

 

                                                ORDER

R.L. AHUJA, PRESIDENT

1.                Present complaint u/s 12 of the Consumer Protection Act, 1986 (herein-after in short to be referred as ‘Act’) has been filed by Mrs.Jasjinder Kaur(hereinafter in short to be referred as ‘complainant’) against 1.The National Insurance Company Limited, Divisional Office-II, Near Dholewal Chowk, Ludhiana (through its Divisional Manager)(herein-after in short to be referred as ‘OP’)- directing them to pay the  total loss amount of the car as per the policy of Rs.3,60,000/- alongwith costs of the petition, interest and damages assessed by the Court and other benefits to the complainant.

2.                In brief, the case of the complainant is that the complainant is owner of Honda City car bearing registration No.PB-10-CH-0036 having engine No.L15A30152133 which was fully insured by the complainant from OP vide insurance policy No.HNC/0063245 for Rs.3,60,000/-. The complainant and her husband are Government Gazette Officer. Unfortunately, on 10.11.2013, the abovesaid vehicle was met with an accident while coming from Shahkot to Ludhiana via Sidhwan Bet at village Sangowal at about 7:00 P.M. The car struck against the standing tree which was near the bank of road. The car was fully insured with the OP. This accident has been occurred suddenly on account of darkness and the vehicle was struck against the standing tree and on this account, the car was fully damaged. In that accident, one person was also expired and police lateron registered the FIR. The OP assured that if any loss has been occurred to the vehicle through any accident or incident then the OP is liable to make the damage/loss. The car was driving by S.Manjit Singh, brother-in-law of the complainant who is having valid driving license. The claim was lodged with the OP by the complainant vide Claim No.63245/0026075 for reimbursement of the damages, approximate of more than Rs.3 lakh. The OP deputed U.P.S.Sachdeva & Company, Surveyor, Loss & Assessors & Valuers for assessing the loss to the abovesaid vehicle and the complainant submitted all the documents as suggested by the surveyor vide their letter dated 15.1.2014 for assessment of the loss to the car alongwith estimate of Rs.3 lakh as the car is fully damaged in this accident. The surveyor also assessed the loss about Rs.3 lakh. The claim was remained pending for about one year with the OP. The OP vide letter dated 13.10.2014 illegally rejected the claim of the complainant on the ground that there is a delay for information to the company. The vehicle was handed over to M/s Lally Motors Pvt. Ltd., Ludhiana on 11.11.2013 with the consent of the officers of insurance company and information was immediately provided by the complainant and M/s Lally Motors Pvt. Ltd.also. Such act and conduct of OP for repudiating the genuine claim of the complainant is claimed to be deficiency in service by the complainant. Hence, this complaint.

3.                Upon notice of the complaint, OP was duly served and appeared through Sh.Rajeev Abhi, Advocate and filed the written reply, in which, it has been submitted in the preliminary objections that the present complaint is barred u/s 26 of the Consumer Protection Act and the same is not maintainable since the insurance policy obtained by the complainant is a contract in itself and the parties are bound by the terms and conditions of policy. It is one of the condition no.1 in the policy is that :-

“Notice shall be given in writing to the company immediately upon the occurrence of any accident or loss or damage and in the event of any claim and thereafter, the insured shall give all such information and assistance as the company shall require. Even letter claim writ summons and/or process or copy thereof shall be forwarded to the company immediately on receipt by the insured. Notice shall also be given in writing to the company immediately the insured shall have knowledge of any impending prosecution, inquest or fatal inquiry in respect of any occurrence which may give rise to a claim under this policy. In case of theft or criminal act which may be the subject of a claim under this policy, the insured shall give immediate notice to the police and co-operate with the company in securing the conviction of the offender.”

Immediately, on the receipt of the claim, it was duly registered, entertained and processed. The complainant had lodged the claim on 6.1.2014 for the loss allegedly taken place on 10.11.2013 after the delay of 57 days whereas the complainant was bound to lodge the claim immediately as per the terms and conditions of the policy obtained by the complainant. The complainant was called upon by the answering OP vide its letter dated 8.1.2014 followed with reminder dated 9.5.2014 to send the clarification alogwith the documentary proof about the delay in informing the company. The complainant has failed to send any reply. M/s UPS Sachdeva & Co.was appointed as surveyor and loss assessor, who had personally inspected the car bearing No.PB-10-CH-0036, took the photographs and other documents and thereafter, prepared his interim report dated 1.2.2014 and final survey report dated 11.3.2014 and submitted the same with the answering OP. Before submission of the final survey report, M/s UPS Sachdev and Co.had called upon the complainant vide its letters dated 15.1.2014 and 22.2.2014 to submit the documents and information detailed in the said letters. Sh.Sandeep Arora, Advocate, Chamber No.2015, 2^nd floor, Lawyers Complex, New Courts, Ludhiana was appointed for verification of registration certificate and fitness certificate of car No.PB-10-CH-0036, who moved an application with the DTO/Registering Authority, M.V.Ludhiana and the registering authority after due verification of the records had submitted their report on the application moved by Sh.Sandeep Arora. After the receipt of the report of the Registering Authority/M.V.Ludhiana, Sh.Sandeep Arora prepared his report dated 16.6.2014 under his signatures and submitted the same with the answering OP. Sh.Sandeep Arora was also appointed to verify the genuineness and validity of the driving license of Manito Singh s/o Nazar Singh. Sh.Sandeep Arora moved an application with DTO, Ludhiana and the Licensing Authority, Ludhiana after due verification of the records, had submitted their report on the application moved by Sandeep Arora, After the receipt of the report of Licensing Authority, Ludhiana, Sandeep Arora prepared his report dated 5.6.2014 and submitted the same with the answering OP. Sh.Prem Singh, Ludhiana was appointed as investigator to investigate the own damage claim of car No.PB-10-CH-0036 a/c Jasjinder Kaur. The said investigator made thorough investigation, took the documents, recorded the statements and thereafter, prepared his report dated 28.7.2014 under his signatures clearly stating that the insured informed the insurance company after about 2 months and had send the vehicle to M/s Lally Motors Pvt. Ltd. after about a month. The complainant could not justify the reasons for delay in intimating the company so late and this had deprived the answering OP of assessing the loss in the true prospective and there are chances of deteriorating of damage. After the receipt of the report of M/s UPS Sachdeva & Co., Sh.Sandeep Arora, Advocate and Sh.Prem Singh, investigation and after scrutinizing the documents placed in the claim file and after applying the mind by the officials of the answering Op in terms of the insurance policy, the claim of the complainant was repudiated as ‘No Claim’ by the answering OP vide its letter dated 13.10.2014 on the grounds that there is delay in lodging the claim which amounts to violation of condition No.1 of the motor car policy and that Harbans Kaur w/o late Bhag Singh had lodged the FIR against Manjit Singh, the driver of the car for negligent and rash driving. The present complaint is not maintainable since the insurance policy, claim lodged and repudiated in the name of Ms.Jastinder Kaur and not in the name of Ms.Jasjinder Kaur, the complainant who had no locus standi to file complaint. The present complaint is not maintainable since complicated question of law and facts are involved which requires elaborate evidence both oral and documentary and it is only civil court of competent jurisdiction, who can decide the present complaint and the complaint cannot be decided by the Forum in a summary manner. The is estopped by her own act and conduct from filing the present complaint since she has not come to this Hon’ble Forum with clean hands and has concealed the material facts that the alleged loss had taken place on 10.11.2013, whereas, the complainant had lodged the claim on 6.1.2014, after the expiry of 58 days, whereas, the complainant was bound to intimate/lodge the claim immediately as per the terms and conditions of the policy. On merits, the facts regarding insurance of the vehicle in question, lodging of claim, appointment of M/s UPS Sachdeva & Co.,surveyor and loss assessor, submission of certain documents, assessment of loss and repudiation of the claim vide letter dated 13.10.2014 are not denied. However, it is submitted that the insurance policy is a contract in itself and the parties are bound by the terms and conditions of the policy. Otherwise, similar pleas were taken as taken in the preliminary objections and at the end, denying any deficiency in service and all other allegations of the complainant being wrong and incorrect, answering OP made prayer for dismissal of the complaint with costs.

4.                Both the parties adduced their evidence in the form of affidavits and documents.

5.                We have heard the learned counsel for both the parties.

6.                Learned counsel for the complainant has contended that it is proved fact on record that the complainant is the owner of vehicle in question i.e. Honda City car bearing registration No.PB-10-CH-0036 having engine No.L15A30152133 which was fully insured with the OP by the complainant against insurance policy No.HNC/0063245 for Rs.3,60,000/-. Further, it has been contended that on 10.11.2013, the aforesaid vehicle of the complainant met with an accident and the same was totally damaged and the accident had been occurred suddenly on account of darkness and the vehicle was struck against the standing tree and one person was also expired and police later on registered the FIR. Further, it is proved fact that the claim was lodged with the OP by the complainant and estimate of Rs.3 lakh was also submitted and the complainant had handed over the vehicle in question to M/s Lally Motors Pvt. Ltd., Ludhiana on 11.11.2013 with the consent of the officers of the insurance company and information was provided by the complainant and M/s Lally Motors Pvt. Ltd. The complainant had also supplied the required documents to the OP and surveyor of the OP. However, the claim of the complainant was repudiated by the Op on illegal grounds which amount to deficiency in service on the part of the OP. Further, learned counsel for the complainant has relied upon judgments titled as National Insurance Co.Ltd. vs.Kulwant Singh-IV(2014)CPJ-62(N.C.); Shriram General Insurance Company Limited vs. Rajesh Kumar-2014(2)CLT-390(Haryana State Commission); National Insurance Co.Ltd. vs. Ravi Dutt Sharma and another-2012 ACJ-2171(P & H High Court, Chandigarh); New India Assurance Co.Ltd. vs. Jugraj Singh since deceased by Lrs and others-II(2013)CPJ-66(N.C.); Akbar Ali vs. Savitha Estate and Resorts India Pvt.Ltd.-II(2013)CPJ-68(N.C.); Amalendu Sahoo vs. Oriental Insurance Co.Ltd.-II(2010)CPJ-9(S.C.) and Rajiv Rameschandra OZA vs, United India Insurance Co.Ltd.-II(2012)CPJ-30(Gujarat State Commission).

7.                Learned counsel for the Op has filed the written arguments, in which, he has reiterated all the averments made in the written reply filed by OP and further, it has been submitted under the head of “Points of Arguments” that the insurance policy is a contract in itself and the parties are bound by the terms and conditions of the policy. As per the policy condition no.1, the complainant was to lodge the claim immediately. As per the claim documents, the alleged loss had taken place on 10.11.2013, whereas, the complainant had lodged the claim on 6.1.2014 after the expiry of 58 days, whereas, the complainant was bound to intimate/lodge the claim immediately which amounts to violation of condition no.1 of the policy. The complainant was called upon to explain the reasons of delay in lodging the claim by the OP vide their letter dated 8.1.2014 followed with the reminder dated 9.5.2014 but without any reply. It is also one of the condition in the policy that the complainant will take reasonable care to avoid the loss as per the condition no.4 of the policy. The accident in the present compliant had occurred due to rash and negligent driving of Manjit Singh against whom, an FIR has been lodged by Mrs.Harbans Kaur w/o Bhag Singh. This amounts to violation of the said condition of the policy. The complainant had sent the vehicle to the workshop after more than a month and intimation to the OP about the accident was given after about two months. The car was never given to M/s Lally Motors on 11.11.2013. No consent was given by the officers of the insurance company by sending the car to M/s Lally Motors Pvt. Ltd. Information was not provided immediately by the complainant and M/s Lally Motors Pvt. Ltd., regarding the damage to the car. No documents have been placed on record to show the sending of the car to M/s Lally Motors Pvt. Ltd. on 11.11.2013. Even no documents have been placed on record duly acknowledged by the OP showing the sending of the car to M/s Lally Motors Pvt. Ltd with the consent of the officers of the insurance company. Even no documents have been placed on record to show the sending of information to the insurance company immediately by the complainant and Lally Motors Pvt. Ltd. The complainant had concocted a false story and is not coming to the Forum with clean hands and as such, she is not entitled to any discretionary relief from this Forum. The claim of the complainant had rightly been repudiated as ‘No Claim’ vide letter dated 13.10.2014 and the grounds of repudiation are legal, valid and enforceable. Learned counsel for the OP has also made reference of the documents produced by the OP in the evidence and further, relied upon judgments titled as New India Assurance Co.Ltd. vs. Ram Avtar-I(2014)CPJ-29-(N.C.); New India Assurance Co,Ltd vs. Maha Singh-III(2014)CPJ-204(N.C); Oriental Insurance Company Limited vs. Delhi Assam Roadways Corporation-II(2014)CPJ-10(N.C.); Kuldeep Singh vs. Iffco Tokio General Ins.company Ltd.-II(2013)CPJ-189(N.C.); Satish vs. United India Insurance Co.Ltd.-II(2013)CPJ-481(N.C.); Dharam Kumar Aggarwal vs. Bajaj Allianz General Insurance Co.Ltd. and others-IV(2012)CPJ-795(N.C.) and New India Assurance Company Limited vs. Rajendra Pal Singh-I(2009)CPJ-492(Uttarakhand State Commission).

8.                We have heard the rival contention of learned counsel for the complainant and have also gone through the written arguments filed by the learned counsel for the OP and have also perused the judgments filed by the learned counsel for the parties during the course of arguments and have also perused the record on the file very carefully.

9.                Perusal of the record reveals that it is an undisputed fact between the parties that the complainant is the owner of the vehicle in question i.e. Honda City car bearing registration No.PB-10-CH-0036 Ex.C1 which was duly insured with the OP vide insurance policy No.HNC/0063245 Ex.C2 for Rs.3,60,000/- Ex.C4 which was valid from 20.5.2013 to 19.5.2014 on payment of premium. Further, it is a proved fact on record that the aforesaid vehicle of the complainant met with an accident on 10.11.2013 when the same was coming from Shahkot to Ludhiana via Sidhwan Bet at village Sangowal and the same was struck against the standing tree which was near the bank of road. The occupants of the car were namely Sh.Bhag Singh, Harbans Kaur, Kuldip Singh and Manjit Singh were suffered injuries and they were got admitted in the hospital, where Sh.Bhag Singh s/o Sh.Atma Singh succumbed to the injuries. Further, it is a proved fact on record that the vehicle in question was taken to the workshop of Lally Motors Pvt. Ltd., Ludhiana and due intimation was given to the insurer and the claim was lodged with them which was duly registered and processed and M/s UPS Sachdeva & Company was appointed as surveyor and loss assessor, who after his through survey and inspection of the vehicle, submitted his interim report dated 1.2.2014 Ex.R33 and final survey report dated 11.3.2014 Ex.R21, vide which, he had assessed the net assessed loss as Rs.3,49,500/- against the net assessed estimate of Rs.7,76,904.12P.

10.              The bone of contention between the parties is qua the delay in intimation of accident to the Op by the complainant. The contention of the learned counsel for the Op is that there is a delay of 57 days in intimating the Op as the occurrence took place on 10.11.2013, whereas, the intimation was given to the OP on 6.1.2014 and as per the terms and conditions of the insurance policy, the complainant was required to intimate the OP regarding the loss immediately after the occurrence. Since, the complainant did not intimate well within time, the claim of the complainant was rightly repudiated by the OP. On the other hand, there is plea of the learned counsel for the complainant that after the accident, insured and injured were taken to the hospital at Jagraon, where insured Sh.Bhag Singh s/o Atma Singh had expired and the vehicle was taken to Lally Motors Pvt. Ltd., Ludhiana on the next date and the complainant and officials of Lally Motors Pvt. Ltd., Ludhiana had intimated the officials of OP regarding the accident. However, the claim was lodged after some days.

11.              Since, the issuance of policy as well as accident of the vehicle are not in dispute. The only question of delay is in dispute between the parties. No doubt, as per the submission of the complainant that oral intimation was given to the officials of the OP qua the accident. But there is nothing on record that due intimation to the OP was given on the next day. But it is proved fact on record that accident took place on 10.11.2013 and DDR NO.11 dated 11.11.2013 Ex.C3 was lodged with the P.S.Mehatpur, District Jalandhar on the statement of Sh.Mohinder Singh s/o Atma Singh and thereafter, subsequently, FIR No.7 dated 18.1.2014 Ex.R3 was also got registered at P.S.Mehatpur, District, Jalandhar. So, it is apparently clear from the copy of DDR Ex.C3 that due intimation was given to the police well within time. So, from this document Ex.C3, it cannot be presumed that no accident took place qua the vehicle in question. Even if it is presumed that there is a delay in lodging the claim with the OP by the complainant and in case, there is violation of terms and conditions of the insurance policy, in that eventuality, the claim of the complainant cannot be repudiated in toto and the same can be settled on non-standard basis in view of the judgments passed by the Hon’ble Supreme Court of India titled as Amalendu Sahoo vs. Oriental Insurance Co.Ltd.-II(2010)-CPJ-9(S.C.) and National Insurance Co;.Ltd vs. Nitin Khandewal-2008-ACJ-2035, vide which, the claim of the insurer were ordered to be settled on non-standard basis, in case of violation of terms and conditions of the insurance policy.

12.              During the course of arguments, learned counsel for the OP has pointed out that the present complaint is not maintainable as the same is filed by one Mrs. Jasjinder Kaur. Though, the insurance policy is in the name of one Mrs.Jastinder Kaur.

13.              Perusal of the RC Ex.C1 of the vehicle in question as well as insurance policy Ex.C2 reveal that the same are in the name of Mrs.Jastinder Kaur. However, the present complaint has been filed in the name of Mrs.Jasjinder Kaur. However, perusal of the complaint and other documents which have been placed on record by the complainant reveals that the complainant had put her signatures as Jastinder Kaur. So, it appears that name of complainant as Jasjinder Kaur instead of Jastinder Kaur is merely a typical mistake. So, the name of the complainant be read as Jastinder Kaur instead of Jasjinder Kaur.

14.               In view of the above discussion and law laid down by the Hon’ble Supreme Court of India, we hereby allow this complaint and as a result, direct the OP to settle and pay the claim of the complainant on non-standard basis as per the surveyor report dated 11.03.2014 Ex.R21 and as per the terms and conditions of the insurance policy to the complainant, failing which, Op is liable to pay interest @9% p.a. from the date of lodging of claim till its realization. Further, Op is directed to pay Rs.15,000/-(Fifteen thousand only) to the complainant as compensation on account of mental pain, agony and harassment suffered by the complainant and Rs.2000/-(Two thousand only) as litigation costs to the complainant. Compliance of order be made within 30 days from the date of receipt of copy of this order which be made available to the parties free of costs. File be completed and consigned to record room.

         

                             (Sat Paul Garg)              (R.L.Ahuja)

   Member                      President

 Announced in Open Forum

Dated:29.06.2015

Gurpreet Sharma.