BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM; FATEHABAD.
Complaint Case No.05 of 2017.
Date of Instt.: 06.01.2017.
Date of Decision: 11 .09.2017.
M/s Raja Motros Sirsa Road, Fatehabad, Tehsil and District Fatehabad through Sh.Rakesh Kumar, Accounts Manager.
..Complainant
Versus
The New India Assurance Company Ltd., Fatehabad, through its Branch Manager.
..Respondent/OP
Before: Sh.Raghbir Singh, President.
Mrs.Ansuya Bishnoi, Member.
Sh.R.S.Panghal, Member.
Present: Sh. I.S.Sihag, Advocate for complainant.
Sh.N.D.Mittal, Advocate for the respondent/OP.
ORDER
The present complaint under Section 12 of Consumer Protection Act, 1986 has been filed by the complainant against the Opposite Party.
1. In brief, the facts of the present case are that the complainant i.e. M/s Raja Motors, Sirsa Road, Fatehabad got his car, make Hyundai Verna, bearing engine No.308320, chassis No.128376, Model 2013, registration no.HR-22-J/8190, insured from the OP on 13.11.2013. The insurance policy was valid from 13.11.2013 to 12.11.2014 and the complainant is registered owner of the vehicle in question. It is further submitted in the complaint that on 07.02.2014 when the vehicle in question was going from Tohana to Fatehabad and reached near village Lehrian suddenly a blue bull came in front of the car and in order to save the animal the driver lost the balance of the car and the same hit against a tree and was damaged badly. The intimation of the accident was given by the complainant to the OP on 13.02.2014 and surveyor of the OP estimated Rs.6,08,893/- as cost of repair of the damaged vehicle. However the total cost of repair of the damaged vehicle was calculated as Rs.4,67,158/-. But the OP has not made payment of the above-said amount to the complainant till date. Therefore, the complainant has suffered financial loss, mental agony and physical harassment. It is also further submitted that the complainant served a legal notice on 19.09.2016 to the OP through his counsel for making payment of the above-said amount along with interest and damages. However vide reply dated 10.10.2016 the OP intimated that the claim of the complainant has already been repudiated by the OP on 27.11.2015. It is further submitted that intimation of the repudiation of the claim was never given by the OP to the complainant. Hence, this complaint.
2. Upon notice, the OP appeared and resisted the claim of the complainant by filing a written statement. In the written statement the OP took preliminary objections that the complainant has got no locus-standi to file the present complaint and the complainant has given false and fabricated facts and has not approached this Forum with clean hands and has concealed the correct facts. On merit it is submitted in the written statement that as a matter of fact in the present case the complaint i.e. M/s Raja Motors is the seller of the car and purchaser of the car is also M/s Raja Motors and the same Raja Motors has insured the said car on behalf of the OP i.e. New India Assurance Company Ltd. under tie up arrangement. It is further submitted that M/s Raja Motors initially purchased the car in question from Hyundai Motors India Ltd. vide invoice No.A101301064592 on 04.06.2013. M/s Raja Motors started using this car soon after purchase as Demo Car without getting it insured and without getting it registered. Unluckily the said car met with an accident some-time in November 2013. So for getting claim the insurance and registration of the vehicle was necessary. Therefore firstly on 13.11.2013 and secondly on 20.11.2013 temporary registration of the said car was done without any sale letter which was issued on 10.01.2014 i.e. after the date of temporary registration. On the basis of temporary registration bearing No.HR99PT(Temp)1448 the insurance of the vehicle was issued for the period from 13.11.2013 to 12.11.2014. Thereafter for getting the false claim the OP got the permanent registration number on 06.02.2014 and intimated the insurance company on 13.02.2014 that the insured vehicle has met with an accident on 07.02.2014 after lifting the vehicle from the alleged spot and without getting the spot survey and without even informing the police. It is further submitted that the act of complainant deprived the OP/Insurer to get the spot survey done and to get the matter investigated which would have revealed the actual date of accident. It is also further submitted that in fact when the accident had occurred then the vehicle was neither registered nor insured. However after getting the intimation the OP appointed surveyor to inspect the vehicle and assess the loss. The surveyor reported that temporary registration was up to 12.12.2013 but the permanent registration was done on 06.02.2014 i.e. much after the expiry of statutory period of one month. The alleged date of accident is 07.02.2014 i.e. just one day after the date of permanent registration. The surveyor also reported that damage to the vehicle was not fresh in nature. It is further submitted that keeping in view all the circumstances and report of the surveyor the claim of the complainant was repudiated vide letter dated 27.11.2015. The repudiation of the claim of the complainant by the OP is perfectly in accordance with law and as such the present complaint is liable to be dismissed being devoid of any merit.
3. To prove his case the complainant in evidence has tendered the affidavit of Rakesh Kumar, Accounts Manager, M/s Raja Motors as Ex.C1 and documents as Ex.C2 to Ex.C6 and Annexure C1 to Annexure C6. On the other hand the OP in support of his case has tendered in evidence affidavit of Ishwar Chand Sirohi Divisional Manager of New Assurance Company as Annexure R1 and documents as Annexure R2 to Annexure R18.
4. The learned counsel for the complainant in his arguments reiterated the submissions made in the complaint and contended that vehicle in question was insured by the OP on 13.11.2013 and the same was valid up to 12.11.2014 which is evident from Annexure C-3.The accident of the said vehicle occurred on 07.02.2014 i.e. within the subsistence of the policy dated 13.11.2013. It is also evident form the report of the surveyor that the vehicle in question has been damaged on account of an accident and estimated cost of the vehicle has also been assessed by the surveyor appointed by the OP. It is also further contended by the counsel for the complainant that on the date of occurrence i.e. 07.02.2014 the insured vehicle was having a permanent registration and the driver of the vehicle was having a valid driving licence on the date of occurrence as is evident from the report of surveyor. Therefore, the OP has illegally and wrongly repudiated the genuine claim of the complainant. The counsel has further prayed for acceptance of the complaint.
5. On the other hand the learned counsel for the OP vehemently rebutted the arguments advanced by learned counsel for the complainant. The counsel for the OP contended that in the present case the complainant i.e Raja Motors is purchaser of the vehicle and as well as seller of the said vehicle. The said vehicle has also been insured by the M/s Raja Motors on behalf of OP i.e. New India Assurance Company under the tie-up arrangement. The temporary registration of the said vehicle has also been issued by the complainant i.e. Raja Motors himself. It is further contended by the counsel for the OP that in fact the vehicle/car in question was purchased by the complainant on 10.01.2014 which is evident from Annexure R-15 and R-16. Therefore the question of the insurance of the vehicle on 13.11.2013 i.e. before the date of purchase of the vehicle does not arise. It is also contended by the learned counsel that two temporary registrations having different period, of the said car have been issued and alleged date of accident is 07.02.2014 i.e. just one day after the date of permanent registration. All these things creates doubts regarding the genuineness of the insurance and date of accident as alleged by the complainant.
The counsel for the OP also contended that the present complaint has not been filed within 12 months from the date of repudiation of the claim by the OP as provided is Clause 7 of the terms and conditions of the policy. In view of said Clause 7 the complainant is not entitled to get the benefit of limitation provided under Section 24(A) of Consumer Protection Act, 1986. Therefore, the present complaint is liable to be dismissed on this ground alone. In support of this contention learned counsel for OP relied upon the judgments titled as National Insurance Co.Ltd. Vs. Sujir Ganesh Nayak & Co. & Anr.-II(1997) CPJ 1(SC) ; H.P. State Forest Company Ltd. Vs. United India Insurance Co. Ltd. – I(2009)CPJ1(SC); M/s Global Ispat Ltd. Vs. Oriental Insurance Co.(NC)DOD-10.09.2014.
The counsel finally prayed for dismissal of the complaint being devoid of any merit.
6. We have perused the entire record placed on the case file and have given thoughtful consideration to the arguments advanced by learned counsel for the parties. As per the written statement it is the case of the OPs that the accident of the vehicle in question had taken place sometime in the month of November, 2013 and had not taken place on 07.02.2014 as alleged by the complainant. However the surveyor appointed by the OPs in his investigation report dated 04.11.2014 (Annexure R-6) in the observation clause has stated that after going through the investigation it came to the light that accident between car No.HR22J/8190 and a tree took place on 07.02.2014 in village Lehrian. It is further observed that the car was badly damaged on account of the accident and the R.C. of the said vehicle was in the name of M/s Raja Motors, Fatehabad, on the date of accident. It is also further observed that on verification the driving licence of the driver of the said vehicle was found genuine and the accident took place due to the no negligence on the part of driver. From perusal of the record of the case it is also revealed that on the date of accident i.e. 07.02.2014 the vehicle was having valid registration certificate (Annexure C-5) in the name of complainant, the vehicle was having insurance dated 13.11.2013 (Annexure C-3) signed and issued by the OP and the driver of the vehicle was having a genuine driving licence on the date of accident as is evident from Annexure R-6 i.e. investigation report. It is not disputed that the Insurance Policy Annexure C-3 has been duly signed by the OPs. In case the OPs think that the complainant has committed criminal breach of trust or fraud upon the OPs in that eventuality the OPs were at liberty to initiate criminal proceedings against the complainant. However, there is no document on the file which reveals that any complaint before the police has been made by the OPs. It is also pertinent to mention here that the claim of the complainant has been repudiated by the OPs without assigning any reason and the same is not speaking as is evident from Annexure R-2 i.e. Repudiation letter dated 18.11.2015. Moreover the Annexure R-2 is not addressed to any-body. The relevant column is blank. There is nothing on the file to prove that the repudiation letter was communicated to the complainant. Since there is no evidence on the file that the repudiation letter was communicated to the complainant as such clause 7 i.e. disclaimer clause of the terms and conditions of the policy and the case law relied upon by the counsel for the OP are not applicable in the present case.
In view of the discussion as made above, the deficiency against the OP in rendering service to the complainant is proved. Hence, the present complaint is allowed directing the OP to pay the amount as per surveyor report with interest @ 6% per annum from the date of repudiation of the claim till realization within the period of one month, failing which the complainant is at liberty to file the execution application under Sections 25 & 27 of the Consumer Protection Act, 1986. Copy of this order be supplied to the parties free of cost as per rules. File be consigned after due compliance.
Announced in open Forum.
Dated: 11.09.2017.
(Raghbir Singh)
President,
Distt.Consumer Disputes
Redressal Forum, Fatehabad
(Ranbir Singh Panghal) (Ansuya Bishnoi)
Member Member
