DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-II, U.T. CHANDIGARH

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Arun Soni son of Shri Suresh Kumar, resident of House No. 339, Mauli Jagran, Chandigarh.

                                                                   ---Complainant

Vs

National Insurance Co. Ltd., through its Senior Divisional Manager, Division Office-1, Sector 17, Chandigarh.

---- Opposite Party

BEFORE:          SH.LAKSHMAN SHARMA              PRESIDENT

MRS.MADHU MUTNEJA           MEMBER

                    SH.JASWINDER SINGH SIDHU          MEMBER

Argued By: Sh. Neeraj Sharma, Advocate for the Complainant.

Sh. Nitin Gupta, Adv. for Sh. R.C. Gupta, Adv. for OP.

PER MADHU MUTNEJA, MEMBER

1.                 Briefly stated, the Complainant was the owner of a second hand Maruti Van, which had been insured by the Opposite Party at IDV of `1,15,000/-.  The relevant period of insurance was from 30.09.2008 to 29.09.2009.

                    On 27.08.2009, while the Complainant was coming back from Haripur Sahib, the van fell into a Ditch (Khai), due to which it was badly damaged. The Complainant jumped out in time, but still suffered minor injuries due to the accident.  The accident had occurred at night and there was not much traffic at the place of accident. A DDR was registered at Police Station Barotiwala (H.P) (Annexure A-5). The Complainant has stated that he took photographs (Annex. A-6)  of the accident spot as per the instructions of the Opposite Party.  Thereafter, the Complainant himself hired a crane to pull the damaged van out of the Ditch and tow it to his residence.  Subsequently, he approached M/s Lall Auto, 339, Industrial Area, Phase-I, Panchkula for repair of his vehicle. An estimate of `1,83,560/- was prepared by them. Thereafter, the Complainant visited the office of the Opposite Party many times for settlement of his claim. 

                    The Complainant has alleged that it was only after many requests that a Surveyor SQN. LDR. Gulzar Singh (Retd.) was appointed to survey and assess the loss to the vehicle in the month of September, 2009. The Surveyor inspected the vehicle and the Complainant provided all the documents demanded by him. However, till date no intimation regarding the claim has been supplied to the Complainant.  Thereafter, another surveyor namely Mr. N.K. Sehgal was also appointed by the Opposite Party to assess the loss to the vehicle. He was also supplied  all the documents, as demanded. But the claim still remained unsettled. The Complainant also issued a legal notice dated 19.07.2010 to the Opposite Party for satisfaction of the claim, but as the payment of claim remained unpaid, the Complainant has filed the present complaint, with a prayer that the claim, as per the estimate of repair bill, be paid, along with compensation and cost of litigation. 

2.                 After admission of the complaint, notice was sent to the Opposite Party.

3.                 Opposite Party in reply has taken the preliminary objection that the Complainant is not a consumer qua them. Also the vehicle was being driven in gross violations of the terms & conditions of the Policy. However, Opposite Party has admitted that after purchase of the vehicle by the Complainant, the Registration Certificate and Policy was transferred in his name. The Opposite Party has stated that the insured did not extend cooperation to them, as required as per the terms & conditions of the Policy, and hence the claim remained unpaid.  As per the Opposite Party, the Complainant jumped out of the running vehicle which clearly shows that he intentionally did so to get claim against an old vehicle by perpetuating a fraud against the insurance company for the reasons best known to him. Hence the whole contract has been vitiated by the element of fraud.

                    In the para-wise reply, Opposite Party has questioned the transfer of the insurance/ registration in the name of the Complainant, as according to them the insurance was in the name of one Sh. Mani Ram. Further, the date, time and mode of alleged accident, as explained by the Complainant, is highly suspicious, and seems to be manufactured. It was an old vehicle, which was insured for a higher IDV with an intent to commit fraud on the insurance company. The Opposite Party has said that M/s Lall Auto  of Panchkula is not a competent and authorized repairer for issuing of estimate and repair of vehicle in question. On receipt of intimation of alleged loss, Sq. Ld. Gulzar Singh (Retd.), who was on the panel of the insurance company was appointed to assess the loss and ascertain the facts. The report and letters from the Surveyor is at Annexure OP/R-2 to R-4 respectively. Opposite Party has denied that that Sh. N.K. Sehgal was also deputed as a Surveyor. Due to the dubious circumstances of the case, the insurance company had deputed him as a Fact finder and Investigator with due coordination with the insured to find the actual facts of the case. His report is at Annexure OP/R-5.   

                    Relying on the above submissions and stating that the Complainant is not entitled to any claim or compensation, Opposite Party has prayed for dismissal of the complaint with cost. 

4.                 Parties led evidence in support of their contentions.

5.                 We have heard the learned counsel for the Complainant and learned counsel for the Opposite Party and have perused the record.

6.                 The allegation of the Complainant is that his insurance claim has been denied by the Opposite Party. The Opposite Party has stated that the Complainant is not a consumer, as the insurance does not stand in his name.  But a look at the Annexure OP/R-1, supplied by the Opposite Party themselves, shows that the policy stands in the name of the Complainant. The IDV of the vehicle is given as `1,15,000/-.

                    Annexure OP/R-2 is the survey report prepared by Sqn. Ldr. Gulzar Singh (Retd.). The net amount payable as per the survey report is `1,07,290.82/- on repair basis.  The Surveyor has alleged that the Complainant did not cooperate with him at the time of making assessment nor did he reply to a registered letter sent to him. Hence the surveyor has made the report independently.  The surveyor has stated that the IDV of the van is too high. The Complainant did not cooperate to provide any information regarding the sale purchase documents due to which reasons the Surveyor himself ascertained the value of the vehicle from the Sunday Car Bazar. Based on the said investigation, the Surveyor has come to the final conclusion that the net liability of the insurance is `44,500/-.  Hence in the opinion of the Surveyor the amount of `44,500/- only is payable to the Complainant by the insurance company. The Surveyor has further added that the case is not maintainable.  The Surveyor has also questioned why a spot survey was not conducted at the site of accident. Photographs of the damaged van taken by the Complainant have also been placed on record.  The conclusion of the Surveyor is as under:- 

“…………In my considered opinion the settlement of claim in this case is `44,500/- only which is reasonable to the insured and the insurer. But in this case keeping the peculiar circumstances of the accident in view as discussed above, the case is not maintainable.”  

                    Annexure OP/R-5 is the letter written by the Fact Finder and Investigator Sh. N.K. Sehgal to the Senior Divisional Manager of the OP-Insurance Company, wherein he has referred to certain issues.  He has stated that as per his investigation and the statement given by the Complainant to him in writing, the Complainant had purchased the vehicle for a sum of `1,00,000/- one year before the actual date of accident, but the final transfer and document had been delayed. When the Complainant was driving his vehicle on the ill fated day, it started drizzling. In the meantime, a Jeep came from the opposite side. Its full beam light fell on his eyes, due to which he steered his vehicle towards the left. The vehicle suddenly went off the road and fell down. But before the vehicle slipped the Complainant was able to open the door and jump out. The vehicle at that time was running at a speed of 20-30 Km/P.H. the Complainant was not wearing a safety belt and the vehicle fell 40/50 ft. below. The Complainant only suffered minor injuries while falling on the road from the car for which no treatment was required. The Complainant thereafter contacted the police and also organized photographs of the spot survey himself. Thereafter, he got the vehicle lifted and shifted to his residence. The estimate for repair was made after that. No spot survey was done. The Complainant did not seem to possess the stamp paper executed at the time of purchase of vehicle from the earlier owner. The Investigator has also stated that when the site of accident was scrutinized, it was observed that the main road coming from village Haripur side towards Barotiwala where the accident took place was quite wide and there was no blind turn. Not just two vehicles, but even overtaking of a vehicle from any side was easily possible. Looking at entirety of the facts, we feel that any prudent driver driving at normal speed would not take the risk of coming to the extreme left especially when he knows that there are big gorges on the side. The version of the insured seems very suspicious and unbelievable that he was able to jump out of the moving vehicle to escape unhurt at the said speed. The Investigator is of the firm opinion that the insured has intentionally and malafidely put his vehicle in a neutral position and caused damage to his vehicle to seek undue benefit from the Opposite Party, as its actual market value was far less than the IDV. 

                However, it needs to be emphasized here that objections about the value of the car, at this stage, by the Surveyor is absurd as Opposite Party have accepted premium for the car as per the IDV in the cover note.

7.             The contract of insurance is based on the principle of good faith. The principle of "uberrima fidei" clearly brings out that the contracting parties need to have absolute trust in each other. In the present situation the Complainant’s case/ version should have been plausible enough to be believed by the Opposite Party. This is the basic underlying principle of Tort law.

                The nature of accident has been questioned by the Opposite Party. The spot survey has not been possible because the Complainant has taken the vehicle himself to his residence and thereafter, informed the Opposite Party. The estimate of repair is not by an authorized dealer. Keeping in view the fact that the vehicle was an old one, the actual amount if payable would be only after allowing depreciation of damaged parts and hence, would be far less than the claim.

8.             The Surveyor and Investigator/ Fact Finder has already said that the circumstances do not seem to permit the payment of claim. The Hon’ble National Consumer Disputes Redressal Commission in case New India Assurance Company Ltd. Vs. Rabindra Narayan, I (2010) CPJ 80 (NC) has held: -

“….Surveyor’s report being important piece of evidence, to be given weight and relied upon, unless proved unreliable..”

                In an another case Dabirudin Cold Storage Vs. New India Assurance Company Ltd. & Ors., I (2010) CPJ 141 (NC), the Hon’ble National Consumer Disputes Redressal Commission has held that:-

“…….Surveyor’s report being important document, cannot be easily brushed aside.”

                The Complainant has not questioned the surveyor’s report. The Surveyor, as well as Fact Finder/ Investigator as already stated above, are sure that the claim is not payable.  We need to rely on these reports also, as the merits, facts and circumstances made out seem too strange to allow the complaint. We accordingly dismiss this complaint. No costs.

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

Announced

30^th May,  2012.                                                                       

Sd/-

(LAKSHMAN SHARMA)

PRESIDENT

Sd/-

(MADHU MUTNEJA)

MEMBER

Sd/-

(JASWINDER SINGH SIDHU)

MEMBER