Haryana

Ambala

CC/167/2018

Rishabh - Complainant(s)

Versus

NIA - Opp.Party(s)

13 Jun 2019

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, AMBALA.

                                                          Complaint case No.: 167 of 2018

                                                          Date of Institution         :  28.05.2018

                                                          Date of decision   :  13.06.2019.

Rishabh s/o Sh. Lalit Kumar, r/o House No.73, Ghali Road, Naresh Vihar, Ambala City, Haryana.

          ……. Complainant.

The New India Assurance Company Ltd., Civil Lines, Arya Chowk, above OBC Bank, Ambala City through its Branch Manager.

                    .…. Opposite Party.         

Before:        Smt. Neena Sandhu, President.

                   Smt. Ruby Sharma, Member.                            

Present:       Ms. Neha Arora, Advocate, counsel for complainant.

Shri Dev Batra, Advocate, counsel for OP.

Order:        Smt. Neena Sandhu, President

Complainant has filed this complaint under Section 12 of the Consumer Protection Act, 1986 (hereinafter referred to as ‘the Act’) against the Opposite Party (hereinafter referred to as ‘OP’) praying for issuance of following directions to it:-

1. To pay the claim amount of Rs.2,40,000/- alongwith interest @18% per annum.
2. To pay Rs.50,000/- as compensation for the mental agony and physical harassment suffered by him and also cost of litigation.
382.  

Any other relief whichthis Hon’ble Forum may deem fit.

 

Brief facts of the case are that the complainant is the owner of TATA Manza Car having Registration No.HR-04-D-0668 and the same was insured with the OP vide policy No.35350231160100012432 for an IDV of Rs.2,40,000/- for the period from 08.12.2016 to 07.12.2017. On 29.07.2017, while the said car was driven by Sagar, the brother of the complainant and complainant and one of his worker Jeet Ram, were sitting there, unfortunately, it met with an accident with a truck and got badly damaged. Jeet Ram received grievous injuries, whereas, Rishabh i.e. complainant received minor injuries but Sagar received very minor injuries. The main concern was to provide immediate medical treatment to badly wounded Jeet Ram, therefore, his brother Sagar did not get himself medico legally examined. Immediately after the accident, Sagar got lodged FIR against the driver of unknown truck with the police and also intimated the OP regarding the said accident and requested for appointment of surveyor, to assess the damage of the car. Complainant took the car to M/s City Automobiles, Industrial Area, Ambala City for assessment of loss of the damages. Since the car was badly damaged, therefore, it was declared as total loss by the surveyor and it was informed to him that compensation will be paid by the insurance company on total loss basis. Complainant had submitted all the relevant documents with the company and the surveyor, but he received a letter dated 13.01.2018 from Shri R.P. Kakkar, who was deputed as investigator by the insurance company, whereby, complainant was asked to submit some documents and to explain why his brother Sagar was not medico legally examined in the hospital. He duly replied the said letter and also submitted the required documents. However, he received a letter from the office of the OP, vide which, it was informed to the complainant that his claim has been rejected and is not payable. By not paying the claim amount, the OP has committed to deficiency in service. Hence, the present complaint.

2.                Upon notice, OP appeared through counsel and filed written version raising preliminary objections regarding jurisdiction and concealment of material information. On merits, it is stated that as a matter of fact, a car make TATA Manza having registration No.HR-04-D-0668 was duly insured with it vide policy No.35350231160100012432 w.e.f. 08.12.2016 to 07.12.2017. Allegedly, the said car met with an accident on 29.07.2017. It was also alleged that at the time of accident, Sagar s/o Shri Lalit Kumar was driving the said car. On getting intimation about the accident, a surveyor was appointed, who submitted his report dated 16.10.2017, whereby, he recommended the loss under all the modes of assessment and reflected the loss to be considered on “Net of Salvage Basis (with RC) worked out to Rs.1,69,000/-, if decision to disposal of salvage is taken within stipulated time limit, subject to other terms and conditions of the insurance policy and approval of the competent authority. However, due to involvement of third party loss, Shri R.P. Kakkar, investigator was deputed to investigate the matter in detail, who submitted his report dated 29.01.2018, stating therein that “Keeping in view the above documentary evidence that on the day of accident i.e. 29.07.2017 there were only two persons i.e. Jeet Kumar and Rishabh in the vehicle, who were brought to Civil Hospital, Ambala Cantt. by Amit Kumar, Constable in the ambulance. The said investigator called on mobile No.98113-17507 to Mr. Rishi of Delhi, who told him that on 29.07.2017, he informed about the accident to the police at No.100. He further told that two boys trapped in car No.HR-04D-0668 and he had taken them out. As per investigator, Mr. Sagar was not in the car at the time of accident. Had he been there, then he would have definitely given the information to the police and would have accompanied his brother Rishabh and servant Jeet Kumar to the hospital. During investigation, it was found that Rishabh was not having any driving license. Even as per information provided by SPOI cum DSP (HQ) Ambala under RTI that on 29.07.2017 at 02:10 AM, a phone received from Mobile No.9811317507, the person giving the information on police control room Ambala stated that due to hitting of the TATA Indica Car No.HR-04D-0668 with the divider, two boys sitting therein, got injured. VT was immediately noted and Ambulance was sent on the spot of accident and it was informed that there were two boys in the Indica car and both were injured and they were being taken to Civil Hospital, Ambala Cantt. The Civil Hospital vide letter No.RTI/18/04 dated 13.01.2018 informed that on 29.07.2017, Jeet Kumar and Rishabh were brought by Constable Amit Kumar having Belt No.1340 from site of Mohra by Traffic Police Ambulance. A false and frivolous FIR had been lodged just to get the compensation. The rest of the allegations levelled by the complainant are denied for lack of knowledge and prayer has been made for dismissal of the present complaint.

3.                The ld. counsel for the complainant tendered affidavit of complainant as Annexure CA alongwith documents as Annexure C-1 to C-9 and closed the evidence on behalf of the complainant. On the other hand, learned counsel for OP tendered affidavits of Rajeev Singhal, Sr. DM & R.P. Kakkar, Investigator General Insurance Claims, Ambala Cantt as Annexure RA & RB alongwith documents R1 to R14 and closed the evidence on behalf of the OP.

4.                We have heard the learned counsel for parties and carefully gone through the case file and also the case laws referred by ld. counsel for the OP.

5.                Admittedly, vide letter dt. 14.03.2018 Annexure C-5, the OP repudiated the claim of the complainant on the ground that complainant has given wrong information that at the time of accident, Sagar was driving the car in question, whereas, on investigation, it was found that Rishabh was driving the car. The ld. counsel for the complainant has contended that at the time of accident, the complainant and his one worker namely Jeet Ram were sitting in the car when it was being driven by his brother Sagar. In the said accident, Jeet Ram received grievous injuries and complainant also received minor injuries and they were taken to the hospital for the medical treatment. Due to serious injuries, Jeet Ram succumbed to death. As Sagar received very minor injuries, as such, no medical treatment was required and that’s why he was not taken to the hospital. Sagar himself went to the police station to get registered the FIR regarding the accident. This fact that at the time of accident, the car was being driven by Sagar, got proved from the order dt. 05.02.2019 of the Motor Accident Claims Tribunal, Ambala. By repudiating the genuine claim of the complainant, the OP has committed deficiency in service. In rebuttal, the ld. counsel for the OP has contended that at the time of lodging the claim, complainant has given false information regarding who was driving the car in question at the time of accident. In fact, at the relevant time, the said car was being driven by the complainant and not by his brother Sagar. Even at that time, Sagar was not present in the said car. He further contended that this fact got proved from the information sought by the investigator, so appointed by the OP from the police station and the hospital concerned. The police control room, Ambala, has reported that an information regarding accident was received on 29.07.2017 at 02:10 AM that two boys injured in an accident at Ambala-Shahabad road and were being taken to Civil Hospital, Ambala. The hospital has also provided the information that on 29.07.2017, Mr. Jeet Kumar was brought at 02:45 AM (2557) and Rishabh was brought at 03:10 AM to the hospital by Constable Amit Kumar having Belt No.1340 from the site by Traffic Police Ambulance and their names have been registered in the hospital register at Sr. No.16892/29.07.2017 and No.16894/29.07.2017 respectively. From the said documents, it is quite clear that at the time of accident, there were only two persons namely Jeet Kumar and Rishabh in the car in question and both of them got injured and were brought to the Civil Hospital, Ambala Cantt. by Constable Amit Kumar. Since the complainant is guilty of concealing the true facts from the insurance company, therefore, he is not entitled to get any claim under the policy in question and the OP has rightly repudiated the claim. In support of his contention, the ld. counsel for the OP has placed reliance upon case laws titled as Smt. Mukesh Vs. Sandeep, VOL.CLXXIX- (2015-3), 372 (P&H); Piccadily Hotels Pvt. Ltd. & Anr. Vs. ICICI Lombard General Insurance, decided by the Hon’ble National Commission on 11.04.2018 and Manoj Khare Vs. HDFC Ergo General Insurance Company Ltd., Revision Petition No.2944 of 2015, decided by the Hon’ble National Commission on 19.04.2017.

6.                On perusal of order dt. 05.02.2019 of the Motor Accident Claims Tribunal, Ambala, in the case titled as Ranjeeta & Others Vs. Rishab & another, it is revealed that in para No.13, it is mentioned that the investigator, so appointed by the insurance company stepped in witness box as RW1 and in cross-examination, he has admitted that he had mentioned Sagar, being not driver of the car at the relevant time on the basis of presumption. He further admitted that he had not recorded the statement of Rishi of Delhi, who is stated to have made call to police control room regarding the accident. Even he has not recorded the statement of Constable Amit Kumar or driver of ambulance, who had taken the injured to the hospital. He further admitted that police had not given any finding that Sagar was not driving the car at the time of accident. On the basis of the statement of said investigator, the ld. Motor Accident Claims Tribunal, Ambala, has held that insurance company has failed to prove that car was being driven by Rishabh and not by Sagar. From the information given by the police vide letter dated 14.12.2017 annexed alongwith Annexure R-7 and by the hospital vide Annexure R-10, it is evident that on 29.07.2017, Rishabh and Jeet Ram got injured in the accident and had taken treatment. But, merely on the basis of said documents, particularly when the investigator in his cross-examination before the ld. MACT had admitted that he had mentioned Sagar, being not driver of the car at the relevant time, on the basis of presumption, it cannot be inferred that at the relevant time of accident, the car was not being driven by Sagar. No other document has been produced by the OP to prove this fact that at the time of accident, the car was being driven by Rishabh and not by Sagar. Thus, we have no apprehension to say that the OP has failed to prove that the at the time of accident, the car was being driven by Rishabh and not by Sagar and the complainant has concealed the material facts from the OP. It may be stated here in the case of Piccadily Hotels Pvt. Ltd. & Anr. Vs. ICICI Lombard General Insurance (supra), the information given in the claim form was different from the information given in the FIR. In the case of Manoj Khare Vs. HDFC Ergo General Insurance Company Ltd. (supra), the date of accident mentioned in the claim form was different than that of actual date of accident. But in the present case, it is not so, thus the law laid down in the above referred cases by the Hon’ble National Commission, is not applicable to the present case. Since the OP has failed to prove that at the time of accident, the car was not being driven by Sagar, therefore, we hold that the OP was not justified to repudiate the claim of the complainant and is thus liable to indemnify the complainant for the loss suffered by him.

7.                Now the question which arises for consideration is what should be the quantum of indemnification. From the perusal of Surveyor report dated 16.10.2017 Annexure R-5, it is evident that the surveyor has assessed the loss on net of salvage basis to the tune of Rs.1,69,000/-. In the case of United India Insurance Co. Ltd. Vs. Deen Dayal, II (2009) CPJ, 45 (NC), the Hon’ble National Commission has held that the surveyor’s report being important document cannot be brushed aside lightly without any material to contrary on record. Since in the present case, the report of the surveyor is well explained and detailed one, therefore, we are of the view that the OP is liable to indemnify the complainant for the loss as assessed by the surveyor to the tune of Rs.1,69,000/- and not Rs.2,40,000/- ‘as claimed by the complainant. The OP is also liable to compensate the complainant for the mental agony and physical harassment suffered by him alongwith litigations expenses. 

8.                In view of the aforesaid discussion, we hereby allow the present complaint and direct the OP in the following manner:-

1. To pay Rs.1,69,000/- alongwith interest @ 7% per annum w.e.f. 14.3.2018 i.e. the date of the repudiation of claim till its realization.
2. To pay Rs.5,000/- as compensation for mental agony and physical harassment suffered by the complainant.
3. To pay Rs.3,000/- as litigation expenses.

 

9.                 The OP is further directed to comply with the aforesaid directions within the period of 30 days from the date of receipt of the certified copy of this order, failing which, the awarded amount shall carry interest @ 9% per annum for the period of default. Certified copies of this order be supplied to the parties concerned, forthwith, free of cost as permissible under Rules. File be indexed and consigned to the Record Room.

Announced on: 13.06.2019.

 

 

          (Ruby Sharma)                                                    (Neena Sandhu)

           Member                                                               President