Complainant Smt.Nirmla Devi through the present complaint has sought the necessary directions to the opposite parties to pay the insured value of Rs.4,90,000/- as compensation detailed as Rs.3,60,000/- as claim of the vehicle and Rs.1,00,000/- for physical harassment and mental agony and Rs.20,000/- as cost of litigation expenses alongwith interest @ 12% p.a. upto realization.
2. The case of the complainant in brief is that she is owner of the vehicle Mohindra Bolero bearing registration No.PB-06-L-0536, Chassis No.MAIPS2GAKA2C81069 Engine No.GAA4C31948 and purchased this vehicle for domestic needs. Her husband was used this vehicle, who is holding a valid driving license. She insured this vehicle from the opposite party vide insurance cover note No.GG 31 401410921627 on 16.06.2015 valid upto 15.06.2016 for Rs.3,60,000/- and as such she is consumer of the opposite parties. She has further pleaded that on 9.7.2015 the vehicle in question met with an accident at National Highway Near Village Milwan at about 11.30 PM and the vehicle in question became total loss. Her husband was driving this vehicle at that time. After the accident she informed the opposite parties on 11.7.2015 and a affidavit dated 13.07.2015 duly sworned by Sh.Charan Dass, her husband was submitted to the opposite party and Sh.Vinay Kumar surveyor of the opposite party came on the spot and photograph of the vehicle was taken by him and he also collected the documents and also made enquiry from her as well as from the persons of locality. A letter was also submitted, written by the Gram Panchayat of the village Dhaki Saida Pathankot to the opposite party verifying the facts of the accident and also normal injuries sustained by her husband. She has next pleaded that in the month of September 2015 investigator Ashok Verma came in her house and threatened her and put pressured on her that her claim would not be passed regarding the vehicle in question by the opposite party as Charan Dass her husband was not driving the vehicle and she has given wrong information to the opposite party. He also told that if she wants to get the total loss of Rs.3,60,000/- she have to pay Rs.25,000/- to him otherwise she should left the hope to get the claim. On the same day the investigator forcibly took her signature on blank paper and made some writing on that blank signed paper in his office in connivance with his superior officer. On 3.9.2015 opposite parties issued letter to her that on the basis of investigation report her claim is not maintainable and also called reply within seven days from the complaint, that why her claim be repudiated. Thereafter, she on 9.9.2015 also submitted an application stating the complete facts of act and conduct of Ashok Verma Investigator, which was duly received on 9.9.2015 by the opposite party. A legal notice dated 2.12.2015 was served on the opposite party calling upon them to pay her claim within 15 days after the receipt of the notice. She has visited many time to the office of the opposite parties and requested them to pay the amount of claim of the vehicle in question but of no avail. The act of the opposite party is illegal, null and void and against the principles of natural justice. Hence this complaint.
3. Upon notice, the opposite party appeared and filed its written version through its counsel, taking the preliminary objection that the complaint filed by the complainant is not maintainable as the complainant has filed this complaint against the terms and conditions of the Insurance Policy and hence, the same is liable to be dismissed; the complaint is without any cause of action, hence liable to be dismissed and the complaint is absolutely false and frivolous. On merits, it was submitted that complainant Smt.Nirmla Rani has hatched a criminal conspiracy to take pecuniary advantage from the opposite party by wrongly declaring and falsely presenting that the alleged accident occurred due to sudden apply of brakes by forgoing Tipper stopped without giving any prior signal and subjected vehicle struck into rear back portion of tipper and causing damages. The alleged driver Charan Dass husband of insured Nirmla Devi admitted that he was driving the aforesaid vehicle in question which dashed into rare back portion of the ‘Tipper Truck on account of his rash and negligent driving. He narrated that he had sustained no injuries in the alleged accident but the version of the alleged driver was totally contrary as per circumstances of the alleged accident and damages visible to the vehicle in question and the written statement of his wife Smt.Nirmala Rani. Hence as per the observation of chief investigator Ashok Verma the aforesaid Charan Dass was not driving the vehicle in question at the time of said accident. He has falsely stated the manners as well as his involvement being driver on the said Mohindra Balero at the time of said accident and he had sustained no injury on his body as per manners and damages visible to the vehicle in question. Moreover no DDR or FIR was lodged against any person in respect to alleged accident and no registration number of forgoing Tipper was mentioned in any DDR or FIR, so all these facts proved the malafide intention of the complainant. Moreover it had been observed that complainant did not follow the one of basic principles of insurance i.e. “Principle of Utmost Good Faith.” It was further submitted that after receiving intimation from the opposite party vide intimation letter dated 11.07.2015 the opposite party deputed Mr.Vinay Kumar Nayyar for Motor (Spot) Survey Report. Who submitted his Motor Survey Report on 17.07.2015. Thereafter, the opposite party deputed Sanjeev Mahajan surveyor and loss Assessor Patel Nagar Pathankot for assessing the loss to the vehicle. Who submitted his report on 12.08.2015 by assessing total loss on Nett of salvage basis Rs.2,38,000/- .Thereafter the opposite party deputed Mr.Ashok Verma Chief Investigator Ambala Cantt to investigate the claim and who submitted his detailed report on 22.8.2015. The complainant deliberately suppressed the material facts in the intimation letter dated 11.07.2015 about the driver of the vehicle under insurance as well as in her statement to the investigator Mr.Ashok Verma Chief Investigator (Dept. of GIC) Ambala Cantt. Thereafter the opposite party written a letter dated 03.09.2015 to the complainant to submit your comments on the aforesaid observation of the Mr.Ashok Verma Chief Investigator, but the complainant has given vague reply to the letter by leveling a false allegations upon Mr.Ashok Verma Chief Investigator Ambala Cantt. Thereafter the opposite party vide its letter dated 30.09.2015 repudiated the claim of the complainant on the basis of concealment of facts and deliberately suppressed the material facts in the intimation letter dated 11.078.2015 about the driver of the vehicle under insurance as well as in her statement to the investigator Mr.Ashok Verma Chief Investigator (Dept. of GIC) Ambala Cantt. All other averments made in the complaint has been vehemently denied and lastly prayed that the complaint may be dismissed with costs.
4. Complainant tendered into evidence her own affidavit ExC1, of Sh.Charan Dass Ex.C2 and of Sh.Manjit Kumar Ex.C3 along with other documents exhibited as Ex.C4 to Ex C13 and closed the evidence.
5. On the other hand, the opposite party tendered into evidence affidavit of Sunil Tuli, Deputy Manager of opposite party Ex.OP1 alongwith other document exhibited as Ex.OP2 to Ex.OP-19 and Ex.OP-14 is de-exhibited vide order dated 15.6.2016 and closed the evidence.
6. We have carefully examined all the documents/evidence produced on record and have also judiciously considered and perused the arguments duly put forth by the learned counsels along with the incidental scope of adverse inference for some documents that have been somehow ignored to be produced by the contesting litigants. We observe that the prime dispute has prompted at the opposite party (OP1 to OP2) insurer’s claim repudiation (Ex.C4/Ex.OP3) of 30.09.2015 alleging ‘concealment of facts’ by the complainant in her insurance claim of 11.07.2015 for the full IDV of Rs.3.60 Lac (of the Policy) to cover the ‘total-loss’ repair-estimates of the accident-meted out insured vehicle. Further, the OP insurers have duly admitted in the written statement & also in the related affidavit (Ex.OP1) that the claim repudiation was duly conveyed in terms of Ex.C4/Ex.OP3 of 30.09.2015 strengthened by collaterals duly supporting the prime counts reading herein as:
Count (1): “Ref above, our spot surveyor Sh.Vinay Kumar Nayyar submitted his report with remarks that the driver of subject vehicle sustained minor injuries but seeing the condition of vehicle it appears that your representative try to conceal the fact.”
Finding (1): We have perused the above spot surveyor’s report of 17.07.2015 (Ex.OP8) and find that his referred ‘remarks’ in the absence of some cogent evidence shall amount to nothing more than a ‘bald’ statement and thus shall not shoulder the impugned repudiation. The ‘remarks’ have been presented simply as a ‘passing out’ opinion and does not carry the ‘technical’ details/ seriousness as requisitely desired for a judicious judicial review.
Count (2): “After that we have deputed Sh.Sanjeev Mahajan surveyor to assess the loss and the claim form submitted by yourself that Sh.Charan Dass S/o Sh. Sant Ram your husband was driving said vehicle at the time of accident. On the basis of spot surveyor remarks the claim investigated by Sh.Ashok Verma and you have given statement in writing that your husband Sh.Charan Dass was not driving said vehicle at the time of accident. So, as per your declaration in claim form as well as in your statement to investigator it is clear that you have concealed the facts.”
Finding (2): We have further perused the other two surveyors/investigators’ reports (Ex.OP10 of 12.08.2015 & Ex.OP6 of 22.08.2015) in the back-drop of i) allegation-infested complainant’s letter (Ex.OP4) of 09.09.2015, ii) complainant’s statement (Ex.OP7) dated 10.08.2015 (its wording proves its procurement under coercion), iii) affidavit Ex.OP9 dated 13.07.2015, iv) insurance claim Ex.OP11 and v) & vi) affidavits Ex.OP12 & Ex.OP13 of Charan Dass driver. We find that the OP’s designated surveyor(s)/investigator(s) have not produced any cogent evidence to support their presumption(s)/opinion(s) of the alleged concealment of facts pertaining to the ‘driver’ on the steering wheel of the insured vehicle at the time of accident. A simple presumption and/or opinion can never take the place of ‘evidence’ to repudiate an otherwise a valid insurance claim.
7. To sum it up all, we find that the OP insurers have arbitrarily repudiated the insurance claim in question and have since failed to produce any cogent evidence to support the above grounds/basis of repudiation and in its absence these shall amount to ‘bald’ statements, only. Thus, the OP insurers’ impugned repudiation of the insurance claim does not entail legality under the applicable law and need be set-aside. Even the senior court judgments as cited by the learned counsel for the OP insurers fail to help them out. The arising out legal proposition prompting out of these cited judgments clearly state that unchallenged ‘surveyors reports’ shall alone assist in finally quantifying the awards but here the surveyor’s conduct itself has been under stigma turning these to be unacceptable.
8. In the light of the all above, we partly allow the present complaint and thus ORDER the OP insurers to settle and pay the impugned insurance accident claim as applicable under the related Policy to the complainant besides Rs .5,000/- as compensation (for the harassment inflicted) and Rs.3,000/- as cost (of litigation) within 30 days of the receipt of the copy of these orders otherwise the aggregate awarded amount shall attract interest @ 9% PA form the date of the orders till actual payment.
9. Copy of the order be communicated to the parties free of charges. After compliance, file be consigned to records.
(Naveen Puri)
President.
ANNOUNCED: (Jagdeep Kaur)
July, 13 2016. Member
*MK*
