Before the District Consumer Disputes Redressal Forum, Rohtak.
Complaint No. : 413..
Instituted on : 17.07.2017.
Decided on : 11.06.2019.
Surender age 37, son of Sh. Raj Singh resident of House No.109, village Jindran Kalan Tehsil Kalanaur Distt. Rohtak.
………..Complainant.
Vs.
- New India Assurance Company Limited Divisional Office, 313, Model Town, Delhi Road, Rohtak, through its Divisional Manager.
- Kotak Mahindra Bank Ltd., Financer of the vehicle, office at opposite police Line, Rohtak, through its Manager.
……….Opposite parties.
COMPLAINT U/S 12 OF CONSUMER PROTECTION ACT,1986.
BEFORE: SH.NAGENDER SINGH KADIAN, PRESIDENT.
SH. VED PAL, MEMBER.
DR. RENU CHAUDHARY, MEMBER.
Present: Sh.Balwan Saroha, Advocate for the complainant.
Sh. A.S. Malik, Advocate for the opposite party No.1.
Sh.J.K.Hooda, Advocate for opposite party No.2.
ORDER
NAGENDER SINGH KADIAN, PRESIDENT:
1. Brief facts of the case are that the complainant is a registered owner of Mahindra Scorpio-vehicle bearing Temp. No.HR-99WA-Temp.-406 which was got insured with the respondent vide policy no.140103311503000006177 for the period 20.11.2015 to 19.11.2016 for sum assured Rs.849350/-. That the vehicle was purchased on 23.11.2015 and due to some unavoidable circumstances in family, it could not be get registered in registering authority. That during the period of insurance policy, the insured vehicle met with an accident on 16.12.2015. That intimation regarding damage of said vehicle was given to the opposite party and respondent appointed a surveyor who duly inspected the vehicle and submitted his report in the office of opposite party. That complainant lodged his claim with the respondent alongwith required documents and repeatedly visited the office of the opposite party to get the claim amount but the opposite party did not disburse the claim amount till date. That the act of opposite party is illegal and there is deficiency in service on the part of opposite party. As such, it is prayed that opposite party may kindly be directed to pay the claim amount Rs.849350/- alongwith interest from the date of accident till its accrual, Rs.25,000/- as compensation and Rs. 11,000/- as litigation expenses to the complainant as explained in relief clause.
2 After registration of complaint, notice was issued to the opposite party. Opposite party in its reply has submitted that the alleged loss took place on 16.12.2015 and intimation regarding the same was given to the opposite party on 08.01.2016 . As such there is delay of 24 days in giving intimation regarding the loss in said vehicle, which is violation of terms and conditions of the policy and law. That the said vehicle was registered in the name of Surender but actual owner in possession of said vehicle was Balwan Singh at the time of alleged loss and he is paying installment to the financer. It is clear cut violation of terms and conditions of policy law and there is no insurable interest of the complainant as per terms and conditions of policy. As such claim is not payable in any manner. That the surveyor Sh.D.R.Gupta assessed the loss on Net of salvage basis less wreck(after cancellation of R/C) Rs.715000/, but the same is not payable as there is violation of terms and conditions of the policy. All the other contents of the complaint were stated to be wrong and denied. Opposite party prayed for dismissal of complaint with costs.
3 Ld. counsel for the complainant in his evidence has tendered affidavit Ex.CW1, documents Ex.C1 to Ex.C7 and has closed his evidence on dated 20.12.2018. Ld. counsel for the opposite party No.1 has tendered affidavit Ex.R1 and documents Ex.R2 to Ex.R8 and closed his evidence on 28.01.2019. Ld. counsel for the opposite party no.2 made a statement that reply already filed on its behalf be read in evidence as affidavit and has tendered document Ex.R2/1 and closed his evidence.
4. We have heard learned counsel for the parties and have gone through material aspects of the case very carefully.
5. In the present complaint, the claim of the complainant has been repudiated by the opposite party on the ground that there is delay of 24 days in intimating the opposite party and that the actual owner in possession of said vehicle was Balwan Singh at the time of alleged loss and he is paying installment to the financer and there is no insurable interest of the complainant. To prove his case, opposite party has placed on record investigation report dated 09.02.2016 of Royal Associates Ex.R5. As per this report, complainant has no insurable interest in the vehicle in question because the vehicle was used by one Balwan Singh. Regarding this fact, three statements have been annexed with this report. One of Balwan Singh, second of Surender and third is of another person namely Ajay. The respondent insurance company failed to provide the affidavit of Balwan Singh and Ajay s/o Prem Chand to the effect that vehicle was purchased by Surender for Balwan Singh and Balwan Singh is the actual owner of vehicle in question. Moreover, respondent company also deputed another surveyor i.e. Devender Singh who submitted his report Ex.R6 dated 15.06.2016 with the respondent insurance company. As per this report, the accident had taken place on 16.12.2015. The vehicle in question was purchased by Surender Singh s/o Raj Singh i.e. complainant from Lohchab Motors Pvt. Ltd. for a consideration of Rs.894052/-. As per this report, the vehicle was handed over to his cousin brother namely Balwan Singh and on dated 16.12.2015 when the said Balwan Singh was returning from village Bhali by driving the vehicle in question alongwith family members and at about 2:30PM, they reached near Central Fishery Education Organisation Lahli, the vehicle met with an accident. Meaning thereby, Balwan Singh was driving the vehicle and his family members were also travelling with him. It has not been mentioned anywhere in this report that vehicle was purchased for the utilization of Balwan singh by the complainant. Moreover, a statement was also annexed with this report and perusal of this statement itself shows that the vehicle was purchased by the complainant himself and for the look after and take care of the vehicle, the complainant handed over the same to his cousin brother Balwan Singh and he was depositing the monthly installments with the financer Kotak Mahindra Bank Ltd. Moreover, respondent has also failed to produce any document i.e. sale certificate or any affidavit to prove that actually the vehicle was handed over to Balwan Singh by Surender. So it cannot be presumed merely on the basis of photocopy of statements that the complainant has no insurable interest in the vehicle in question. Hence objection taken by the opposite parties regarding insurable interest is turned down.
6. The other ground of repudiation was that the vehicle was not registered on the date of accident and that the complainant has informed the insurance company on 08.01.2016 i.e. after a considerable delay of 24 days. Regarding the objection of registration of vehicle, it is observed that the vehicle bearing no.HR-99WATemp406 was purchased by the complainant on 23.11.2015 and it was having temporary registration for one month and the accident had taken place on 16.12.2015 i.e. within temporary registration period. Hence this objection is also turned down. Regarding the delayed intimation, we have placed reliance upon the order of Hon’ble State Commission, Haryana, Panchkula dated 20.09.2018 decided by Hon’ble Justice Nawab Singh titled as Cholamandalam MS General Insurance Co. Ltd. Vs. Baljeet Singh and order dated 20.08.2018 decided by Hon’ble Judicial Member Mr. Ram Singh Chaudhary titled as Iffco Tokio General Insurance Co. Vs. Balwant Rai whereby the Hon’ble State Commission has held that: “It is very clear from the circular of IRDA that the insurance company cannot repudiate the bonafide claims on technical grounds like delay in intimation and submission of some required documents. The decision of insurers to reject a claim of the claimant should be based on sound logic and valid grounds. The limitation clause does not work in isolation and is not absolute”. In view of the aforesaid law, which are fully applicable on the facts and circumstances of the cases, it is observed that the act of opposite party of repudiating the claim of complainant is illegal and amounts to deficiency in service.
7. Now come upon the assessment of loss. The respondent officials placed on record a copy of Confidential Motor Final survey report Ex.R7 dated 28.09.2016, as per which the loss has been assessed on net of salvage basis. The perusal of this report Ex.R7 prepared by Sh.Daya Ram Gupta Surveyor & Loss Assessor reveals that he assessed the loss after considering the different parameters. On total loss basis, he came to the conclusion that the loss is assessed Rs.847350/-, (IDV value Rs.849350/- less excess clause Rs.2000/- after cancellation of RC). In this report the surveyor has assessed the wreck value after cancellation of RC as Rs.115000/- whereas on the previous page, the surveyor has mentioned an expected salvage value as Rs.35000/-. Now the surveyor has also assessed the loss on net of salvage basis(after cancellation of RC) as Rs.732350/- and he also assessed the loss on net of salvage basis(after cancellation of RC) and considering the wreck value as Rs.115000/- and he also corrected the IDV of Vehicle Rs.832200/-. After considering all the above mentioned calculations of the loss, we came to the conclusion that the wreck value of the vehicle is considered as Rs.115000/-and the loss is assessed on net of salvage basis i.e. Rs.732350/-.
8. In view of the facts and circumstances of the case we hereby allow the complaint and direct the opposite party No.1 to pay the claim amount of Rs.732350/-(Rupees seven lac thirty two thousand three hundred fifty only) alongwith interest @ 9% p.a. from the date of filing the present complaint i.e.17.07.2017 till its realization and also to pay a sum of Rs.5000/-(Rupees five thousand only) as compensation on account of deficiency in service and Rs.5000/-(Rupees five thousand only) as litigation expenses to the complainant. The amount so awarded shall be paid to the financer i.e. Kotak Mahindra Bank Ltd.(opposite party No.2) within one month from the date of decision for disbursement of loan amount taken by the complainant. The salvage will remain with the complainant. The complainant is directed to intimate the Registration Authority that the vehicle has been totally damaged and after that intimation to this effect be also given by the complainant to the insurance company.
9. Copy of this order be supplied to both the parties free of costs. File be consigned to the record room after due compliance.
Announced in open court:
11.06.2019.
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Nagender Singh Kadian, President
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Ved Pal Hooda, Member.
……………………………….
Renu Chaudhary, Member.
