The present complaint was filed by the aggrieved complainant against the titled insurers upon receipt of repudiation (Ex.C3/ Ex.OP4) dated 29.11.2017 to his ‘repair-claim’ pertaining to his accidented but comprehensively insured ‘XUV Motor-Car’. The related letter further enunciated that the complainant’s failure to respond in time to the OP’s registered letter (Ex.OP6) # 1996 (03.10.2017) and also to its subsequent regd. reminder (Ex.OP5) of 17.11.2017 had prompted the closure of the related file as ‘No Claim’. It shall be pertinent here to first examine/ peruse the contents of these pre-repudiation queries to have a better understanding of the backdrop of the disputed matter and also of the bottleneck issue of the OP's impugned repudiation.   

Regarding Ex.OP6 (03.10.2017):  (The OP seeks insured’s clarifications vide this letter)

Paragraph 1: Query: Reads as: “The competent authority is not satisfied with the reply put forth by the insured pertaining to the ‘cause of loss/ accident’ in the ‘claim-form’ vis-à-vis ‘police-report’. In his letter of 15.03.2017, his own statement as per the claim-form gets contradicted and thus creates doubt about the actual cause of loss. The insured in this letter has stated that due to late night hours and being shocked due to accident it did not come to his mind to report the loss to police which is itself wrong and there is difference of cause of accident however the cause of loss as per police report may please be treated as actual”. (Sic!). 

 Paragraph 2: Query  

 “Further, the insured submitted an affidavit on 20.09.2017 stating cause of loss as per claim form is right and police report is wrong, stating cause of loss as “at place of accident there were Traffic Barricades on road by Traffic Police and there were heavy rush of traffic, slowed down the speed of vehicle due to crowd on road, canter hit my car from back side and damage it badly”.  (Sic!)

Regarding Ex.OP5 (17.11.2017): (The OP reminds for an expeditious reply to Ex.OP6).

Here, the insurer has reminded the insured that his reply to Ex.OP6 was awaited and the same be posted within 7 days (24.11.2017) otherwise Claim File be closed as ‘NO Claim’.

And, finally the insured complainant receives the repudiation Ex.OP4 dtd 29.11.2017. 

2.       Sh. Nitin Mahajan, a businessman resident of Pathankot and sole-proprietor of the firm M/s Nitin Mahajan Colonizers & Developers had owned an XUV 500 in the N/o (name of) his firm and got it comprehensively insured for an IDV of Rs.857,143/- with M/s National Insurance Co. Ltd., the opposite party (for short, the OP). On 10.10.2016, the XUV Car got badly damaged in a roadside accident near Ludhiana. The insured XUV owner completed all the requisites and formalities too, precedent to an accident claim and finally filed the insurance claim with the OP insurer, who appointed its Surveyor and the claim process was initiated. Incidentally, the claim-process progressed smoothly as all requisite documents were made available and all queries were satisfactorily replied. There has been an overall affirmative assent as to factum of accident and terms of the applicable insurance policy. Neither, was there any dissent on the issue of ownership of the accidented vehicle nor upon the validity of the driver’s license of the holder driving at the time of the accident.   

3.       Finally, the OP insurer queried as to the varying version of accident in Police FIR vis-à-vis Claim Form i.e., two different versions as to how the accident occurred? As to what caused the accident? In the claim-form, the insured had stated that the driver had to slow-down the vehicle fast, by applying emergency brakes, upon seeing the Police Checking-Barricades ahead on the road and the following Canter-Truck hit them from behind; however, in police FIR (complaint), the emergency brakes had to be applied as a stray-animal had suddenly come before the vehicle when the Canter-Truck hit it from behind. Then, the OP insurers had queried the complainant to explain the ‘variation’ surfacing in the two documents and also to narrate as to what actually had preceded the accident. The complainant claims having repeatedly explained (verbally in-person, telephonically and also in-writing) to the OP that the accident had in-fact occurred on account of the emergency braking (fast but essential to avoid worse, the front-collision) of his vehicle and the OP may accept the one that favors his insurance-claim, the best. However, the OP insurer in its endeavor to reject the claim made it an issue and subsequently repudiated the claim, unceremoniously.

4.       We have duly heard the learned counsels for both the sides, on points of law, and have also thoroughly examined the records with requisite care and caution on the points of fact, as placed before us. We are also inclined to examine the inference it’s ‘scope n spread’ on account of some documents ignored to be produced/not-produced during the course of proceedings. We observe that the OP insurer disallowed the impugned Insurance-Claim vide its repudiation letter (Ex.C3/Ex.OP4) dated 29.11.2017 for of the one and only reason (as addressed therein) that there has been variation as to what had actually preceded the accident (stated/ admitted) in the two versions, first in the i) FIR – Emergency Braking to avoid front-collision with an animal that had suddenly strayed before the insured-vehicle; and, ii) Claim-Form – Emergency Braking to avoid front-collision with Police-Checking Barricades placed/spread right on the road.     

5.       We observe from the above two versions that primarily it has been the emergency braking to the fast-moving vehicle that preceded the accident. The emergency Braking caused the vehicle to slow-down/halt where as the close-following Canter Truck could not manage its 'halt' that ‘fast’ and had hit the insured vehicle from behind. It is quite understandable that the police had managed/ maneuvered the contents of the FIR through the complainant himself so as to keep out the ‘traffic-barricades’ away and out of any context/conflict/controversy and complaint etc. Further, the complainant being ignorantly innocent and honest had stuck to the actual version in the claim-form that he had earlier shared with the OP and its representatives, in person and/or over the TP cell, several times. We are of the considered opinion at the face of the evidenced-facts as available on the records that there’s have been no misrepresentation and/or misstatements of facts and as such the impugned ‘repudiation’ of the insurance-claim, in question, by the OP Insurer had been unwarranted, arbitrary and unfair; neither in accordance with the provisions of the statutory law nor in conformity with the sanctity of natural justice, equity and good conscience. Further, it has violated with impunity the preferred consumer rights of the insured complainant causing him much physical harassment, mental agony and financial loss. Lastly, we hold the insurer guilty of statutory misconduct amounting to ‘unfair trade practices/deficiency in service’ and thus liable to an adverse award under the provisions of the governing statute.

6.       Next, we are faced with determination of compensatory ‘award’ that many a times, is misinterpreted by some as ‘reward – fruits of litigation’ we say that’s a ‘misnomer’ as law does provide for ‘minimizing’ the quantum/excess/loss inflicted upon/suffered by victim/aggrieved but not to the extent of bestowing undue ‘enrichment’ upon him. Moreover, for the sake of fairness in delivery of justice alike, an award needs to be well matched with the misconduct and in conformity with the applicable statute. It may be somewhat light better moderate but certainly not harsh so as to be and look retributive.

7.       The insured complainant in the last paragraph of his complaint has prayed for directives to the OP insurer to honor his ‘claim’ and reimburse the full amount of repairs paid/ borne by him to get his accidented XUV 500 Car back on the road along with interest @ 18% P.A. w e from the date of accident. He has also sought Rs.50,000/- as compensation for having suffered humiliation/harassment/ financial loss etc and Rs.10,000/- as cost of litigation. There’s only a one line mention of an ‘estimated-loss’ by the Workshop (J. S. Grover Auto Pvt. Ltd.) @ Rs.598,875.42p + Towing-Charges @ Rs.7,000/- aggregating to Rs.605,875/- in the first intimation letter (Ex.C17) of 13.10.2016 to the OP Insurer though they have confirmed (Ex.OP7) the final receipted 'claim' @ Rs.691,336/- from the insured.

8.       We further observe that the OP had deputed its Surveyor & Loss Assessor who has deposed Vide his Affidavit (Ex.OP2) of 19.06.2018 having filed his interim report dated 11.11.2016 and final report dated 16.03.2017, but these two reports have been somehow omitted/ ignored to be produced on records by the insurer. The OP have instead produced one Motor Spot/ Final Survey Report (Ex.OP7) of 17.07.2018 (Year 2018 stands manually altered to 2017 to make it read as 17.07.2017) & marked Addendum with no annexation or reference to the original document to which it serves as addendum. Then there’s another report (Ex.OP8) dated 07.05.2017 by the OP’s Surveyor addressed as supplementary estimate to that of one dated 16.03.2017 (again ignored to produce) bifurcating the cost of parts as internal and external. (Sic!). Incidentally, both reports (Ex.OP7 & EX.OP8) are not accompanied by requisite deposition/ affidavit of the Surveyor and thus are not admissible in the light of NCDRC ruling that the report of the surveyor which is not supported by affidavit cannot be accepted. {(2012) (I) CPR 386 (NC)}. Under the circumstances we have to but dismiss the Surveyor’s Reports and accept that submitted by the complainant to the OP insurer, along with the claim.

9.       We observe that the insurer’s intimation dated 13.10.2016 (Ex.C17) to the OP insurer regarding the accident contains the repairs estimates presented @ Rs.598,875.52 p from Mahindra’s Authorized Vendors cum Workshop M/s J S Grover Auto Pvt. Ltd., at Ludhiana but details of estimates are again not produced. Thus, the expense towards repairs of vehicle needs be resolved on actual(s)/ in totality of the matter. Under the circumstances and in the best fitness of situation, we find it appropriate to quantify the claimable 'repair loss' @ Rs.691,336/- as filed by complainant in his 'claim' to the OP insurer and as also acknowledged by them though implicitly.

10.     In the light of the all above, we order the opposite party insurers to reimburse the claimed repairs-bills, in full, i.e., Rs.691,336/- with interest @ 6% PA from the date of claim (till paid in full) besides Rs.15,000/- in lump sum as cost cum compensation within 45 days of receipt of the  certified copy of these orders.                                         

11.     The complaint could not be decided within the stipulated period due to heavy pendency of Court Cases, vacancies in the office and due to pandemic of Covid-19.

12.     Copy of the order be communicated to the parties free of charges. After compliance, file be consigned to record.

(Naveen Puri)

                                                               President.   

ANNOUNCED:                                (B.S.Matharu)

MAY 13, 2022.                                         Member.

YP.