BEFORE THE DISTRICT CONSUMER DISPUTES
REDRESSAL FORUM, JALANDHAR.
Complaint No.343 of 2016
Date of Instt. 09.08.2016
Date of Decision: 06.06.2017
Gurmukh Singh aged 33 years, son of Sardar Sohan Singh, resident of Village and Post Office, Rurka Kalan, Ratti Hetta, Tehsil Phillaur District Jalandhar.
Presently Fresh Collection Adjoining Macdonald, G.T. Road, Jalandhar. ..........Complainant
Versus
1. National Insurance Company Limited, Panesar Complex, 20-, G.T. Road, Jalandhar through its Senior Divisional Manager.
2. Rajeshwar Nath Surveyor, Valuers, loss Assessor, Motor Marine and Machinery-350 Lajpat Nagar, Jalandhar City.
.........Opposite parties
Complaint Under the Consumer Protection Act.
Before: Sh. Karnail Singh, (President)
Sh. Parminder Sharma (Member)
Present: Sh. KC Malhotra, Adv. Counsel for the complainant.
Sh. RS Arora, Adv. Counsel for OP No.1.
OP No.2 in person.
Order
Karnail Singh (President)
1. This complaint presented by complainant, wherein alleged that the complainant is the owner of Car BMW 3 series, Model 02/2009 bearing registration No.PB-08-BK-3286 insured with OP No.1. The car was insured vide Cover Note Certificate of insurance-cum-Policy Schedule, bearing Policy No.404320/31/14/61403052 for the period of Insurance from 04.02.2015 to 03.02.2016 for sum assured Rs.17 Lacs. The total premium of Rs.31,799/- as consideration was paid to OP No.1. Earlier, the vehicle was insured with Bajaj Allianz General Insurance Company for period of Insurance 02.07.2013 to 01.07.2014 for IDV 20,11,230/- in the name of M/s GNA Axies Limited under plan Private Car Package Policy. The car was purchased by the complainant in good roadworthy condition well maintained and was got it transferred in his name as owner and the registration of the Car and its ownership was also changed in the name of complainant. At the time of insuring the Car by OP No.1, physical pre-inspection of the vehicle was duly made by the representative of OP No.1 and after fully satisfying well maintained and road worthy condition and value of the vehicle, the vehicle was insured for sum insured Rs.17,00,000/-. The period of insurance commenced from 04.02.2015 to 03.02.2016. On the intervening night of 31st July, 2015 and 1st August, 2015 at about 12.00 am, when the car was being driven by Jaspal Singh, the left front tyre of the car was suddenly burst and car became unbalanced and turned to the left and dashed with the road side tree and due to hit the front portion of engine compartment caught fire which immediately engulfed with insured car. Due to mishap, the insured car was completely burnt and damaged. As per policy, the risk of the car was covered under comprehensive insurance policy plan package (Private Car).
2. That the OP has not ever delivered/supplied policy document and copy of proposal form to the complainant during the period of insurance for the risk covered and has only furnished certificate of insurance-cum-policy schedule dated 04.02.2015. It is pertinent to mention that it is mandatory and obligatory upon insurance company to issue and deliver policy document to the insured complainant, besides copy of proposal form free of cost. The policy document expresses the contract of insurance between the insurer/OP No.1 and the complainant insured. There is/was no ground for not issuing policy document and its delivery to the insured complainant. The terms and conditions including exclusion clause of the policy of insurance were not ever communicated nor made known to the complainant at the time of proposing for insurance under plan package of the complainant. As such, the terms and conditions were not part of policy subject matter of the complainant. Not issuing and delivery of policy document to the insured complainant constitute deficiency in rendering service as envisaged under the Consumer Protection Act, 1986. Regulations, 2002 framed by Insurance Regulatory and Development Authority of India known as IRDA by virtue of power conferred by Clause (zc) of sub-section 2 of Section 114A of the Insurance Act, 1938 read with Section 126 of the Insurance Regulatory and Development Authority Act, 1999. That IRDA Regulations, 2002 vide its Regulation 4 stipulate that it is the duty of an insurer to furnish to the insured free of charge within 30 days of the acceptance of proposal, a copy of proposal form. It is also stipulated under Regulation 6(2) while acting under Regulation 6(1) in forwarding the policy to the insured, the insurer shall inform by a letter forwarding the policy that he has a period of 15 days from the date of receipt of the policy document to review terms and conditions of policy and exercise option of Free Look Period of provision. In nutshell, it is mandatory and binding on OP No.1 insurance company that IRDA Regulations, 2002 must be followed strictly.
3. That OP No.1 had agreed and undertaken to indemnify loss and damages to the complainant on the happening of contingency peril covered under package. Accordingly, the complainant has got the right to be indemnified for loss and damage occurred to the insured car as a result of accidental burning reducing it to wreck as a total loss within limit of IDV Rs.17,00,000/- sum assured. Jaspal Singh driver of, insured car immediately informed fire Brigade at Phagwara and also reported to Police Post Rurka Kalan, Tehsil Phillaur, District Jalandhar which registered DDR No.6 dated 01.08.2015. The complainant promptly informed OP No.1 regarding burning of insured car by Fire and it was completely gutted and also sent e-mail through his Iphone. Spot survey was conducted on 01.08.2015 by Shri Harish Kumar Laroiya approved deputed spot Surveyor and submitted report dated 17.08.2015 to OP No.1 and thereafter the complainant submitted a claim form with all supporting documents, and estimate of loss and damage dated 05.10.2015 from Bansal Motor Garage, Jalandhar and completed and complied with all the requirements and formalities whichever were asked for by OP No.1 for quick settlement and payment of Own Damage Claim. The OP No.1 appointed Rajeshwar Nath, OP No.2 panel Surveyor of choice from its outfit for assessment and loss and damaged suffered by insured car. OP No.2 submitted interim report dated 11.11.2015 and thereafter another report dated 13.01.2016 to OP No.1. The complainant extended full cooperation and assistance and provided all information and documents whichever were asked for by OP No.2. It is notable that OP No.2 categorically admitted that the insured car was completely damaged and nothing is saved and totally wrecked and there was total loss of the insured car. The OP was duty bound to submit report to the insurer, OP No.1 as expeditiously as possible, but not later than 30 days of his appointment but failed to adhere to mandatory and statutory code of conduct and duties and responsibilities of a Surveyor and loss assessor biding time frame dead line. The delay was apparent since the report was submitted after being exasperated and unusual harassment to the complainant. The report of OP No.2 Surveyor is tailor made, arbitrary, malafide, wanton, illegal and unlawful which drastically and outlandishly slashed and drastically reduced IDV Rs.17,00,000/- sum assured to Rs.10,00,000/-. IDV unilaterally on whims and fancy by raising accusing finger on the decision of OP No.1 insurer. Such Surveyor report has not come out of with valid, convincing and cogent reasons grounded on presumptions, unreasonable, unrealistic, unfair non transparent, untruthful tainted with arbitrariness and malafide, wrong and perverse and cannot be put trust as acceptable. Interestingly, amusing and amazing that OP No.2 had only seen totally burnt completely wrecked insured car and had no occasion to watch its road worthy condition at the time of insurance and subsequent thereto but transgressed his duties and responsibilities to carry out assessment of loss and damage with objectively, and bonafide to show integrity strictly within realm of IRDA code of conduct prescribed for Surveyor and Loss Assessor. It is significant and important that it is settled law that claim for loss and damage to be reimbursed for which vehicle was insured and question of assessment of market value does not arise. The survey report of OP No.2 smacks of doubting integrity and competence of OP No.1 out of his purview to interfere IDV Rs.17,00,000/- sum assured. OP No.2 has travelled far away and has not acted in fair just impartial and transparent manner. There is no pale of controversy that claim was Total Loss. The report of OP is not sustainable in law on the facts and circumstances of the case.
4. That OP No.1 despite protracted follow up and protestation of the complainant has maintained deafening silence and failed to do settle and pay claim though Regulation 9(5) IRDA Regulations, 2002 obligate on insurance company/OP No.1 on receipt of survey report of Additional Survey report as the case may be, shall within 30 days, offer a settlement of claim to the insured. If the insurer for any reason to be recorded in writing and communicated to the insured, decide to reject a claim under the policy, it shall do so within a period of 30 days from the date of receipt of the survey report or Additional survey report as the case may be, but OP No.1 has failed to adhere to religiously. The violation thereof is punishable under Section 102(B) of the Insurance Act, 1938. The OP No.1 has deliberately dilly dallied the settlement of genuine, legitimate and bonafide total loss claim of insurance and harassed the complainant arbitrarily and malafide and as such there is deficiency in service on the part of the OP and thus the present complaint filed with the prayer that the complaint of the complainant may be accepted and OP may be directed to settle and pay to the complainant total loss claim of Rs.17,00,000/- sum assured insured declared value (IDV) of insured car alongwith interest at the rate of 12% per annum from the date of incident on 01.08.2015 till actual realization and further directed the OP to pay compensation of Rs.2,00,000/- and also pay litigation expenses of Rs.25,000/-.
5. Notice of the complaint was given to the opposite parties and OP No.1 filed his separate written statement, whereby contested the complaint by taking preliminary objections that the complaint is premature and preposterous. To the full knowledge of the complainant, the insurer has neither accepted nor denied the claim, therefore, the instant complaint is liable to be dismissed and further submitted that the complaint is more or less exploratory in its object, therefore, deserves to be dismissed with costs. On merits, it is admitted that the complainant has purchased the insurance policy but the other allegations as made in the complaint are categorically denied and lastly prayed that the complaint of the complainant is without merit and same may be dismissed. Whereas, OP No.2 filed separate reply, wherein stated that he is an approved surveyor and loss assessor for the past forty years and he was deputed on 06.11.2015 for Motor Survey Report for the OD Claim of vehicle No.PB-08BK-3286 and he submitted his interim report No.1 dated 11.11.2015 and interim report No.2 dated 13.01.2016 and final report dated 20.03.2016 to the National Insurance Company Ltd. considering all material facts and as per terms and conditions of insurance policy. He assessed the loss without prejudice on behalf of Insured keeping in view the principal of indemnity and availability of similar car in the market.
6. In order to prove the version of the complainant, counsel for the complainant tendered into evidence two affidavits Ex.CA and Ex.CB and further tendered into evidence some documents Ex. C-1 to Ex.C-19 and closed the evidence.
7. Similarly, counsel for OP No.1 tendered into evidence affidavit Ex.OP/1 and closed the evidence and counsel for the OP No.2 tendered into evidence affidavit Ex.OP2/1 and closed the evidence.
8. We bestowed our thoughtful consideration to the submissions made by the learned counsel for the respective parties and also gone through the case file very minutely.
9. Precisely, the complainant asked for relief that he is owner of Car 3 Series, Model 02/2009 bearing registration No.PB-08-BK-3286 insured with OP No.1 bearing policy No.404320/31/14/61403052 for a period 04.02.2015 to 03.02.2016 for sum assured Rs.17 lacs (IDV of Vehicle) and for that purpose the complainant has paid a premium of Rs.31,799/- and the said car of the complainant was being driven by Jaspal Singh and reached between village Rurka Kalan and Village Bir Bhasian, on Phillaur Link Road, District Jalandhar, the left front tyre of the said car suddenly burst and car became un-balanced and turned to the left and hit against the road side, Tree and this occurrence happened on the intervening night of 31.07.2015/01.08.2015 and accordingly the complainant submitted a claim to the OP and accordingly Surveyor Harish Kumar Loria was appointed on 01.08.2015 who inspected the spot and submitted his report on 17.08.2015. Thereafter, the OP again appointed an other Surveyor and got manipulated report therefrom and till today the claim amount of the complainant has not been paid despite elapsing of more than 1 ½ year and as such it is deficiency of service on the part of the OP.
10. First of all, we have to see whether the plea taken by the OP that the complaint is pre-mature, is having any force or not, for that purpose, we have to analyze so many facts. First of all, the occurrence took place on 01.08.2015 and to this effect, the complainant informed the OP as well as got registered a DDR and copy of the DDR is Ex.C-17 at PS Guraya and then complainant submitted a claim Ex.C-5 and RC 'Registration Certificate' of the Car Ex.C-8 and DL of Driver Jaspal Singh were also handed over to the OP and all the other cooperation whatsoever demanded by the OP, the same was given by the complainant but for the best known reason, the OP has not decided the claim of the complainant from 01.08.2015 till the date of filing complaint i.e. 09.08.2016, means about one year but as per Regulation 9(5) IRDA, after receipt of the Surveyor report or additional Surveyor report, the claim is to be decided within period of 30 days but in this case, the OP has intentionally, willfully withheld the case of the complainant and the same has not been decided for more than one year whereas it should be decided within 30 days and in support of this observation, we like to refer a pronouncement of Hon'ble National Commission cited in 2017(1) CLT 246 title United Insurance Company Ltd. Vs. Super Bakers (India) Ltd. wherein his Lordship held as under “The claim was to be settled within 30 days from the date of receipt of the report of Surveyor, as per IRDA guidelines”. The OP has not adhere the guidelines of IRDA and ignore to decide the claim of the complainant either side and we think it is not will and whim of the OP to kept pending the insurance claim of the complainant for so many years and whenever a complaint filed, he could took a plea that the claim is pre-mature rather the OP has to decide the claim within a stipulated period as per Guidelines given by IRDA but for the best known reason the OP has not decided the insurance claim of the complainant within 30 days and as such there is a clear cut deficiency in service and if only direction is given to the OP to decide the claim of the complainant then it will be lingering on the matter of the complainant for further more years.
11. Apart from above, it is also duty of the OP to furnish to the insured, free of charges, acceptance of the proposal, copy of proposal form within 30 days as per Regulation 4 IRDA 2002 but in this case, the OP has not provided the said acceptance of proposal as well as copy of proposal form and other document like term and condition of the policy and even the OP is required to forward the insurance policy with document to the insured within a stipulated period but in this case, the OP has miserably failed to bring on the file any documentary evidence that ever the said document had been supplied to the complainant. So, with these observations, we are of the considered opinion that the complainant is entitled for the relief claimed.
12. In the light of above detailed discussion, the complaint of the complainant is partly accepted and OP No.1 is directed to pay the IDV amount of Rs.17,00,000/- with interest @ 9% per annum from the date of accident i.e. 01.08.2015 till realization and further directed to pay compensation to the tune of Rs.20,000/- and litigation expenses of Rs.5000/-. The entire compliance be made within one month from the date of receipt of order. Complaint could not be decided within stipulated time frame due to rush of work.
13. Copies of the order be supplied to the parties free of cost, as per Rules. File be indexed and consigned to the record room.
Dated Parminder Sharma Karnail Singh
06.06.2017 Member President
