Haryana

Kurukshetra

118/2018

Subhash gautam - Complainant(s)

Versus

NIA - Opp.Party(s)

K.K.Gupta

29 Nov 2019

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, KURUKSHETRA.

 

Consumer Complaint No.118 of 2018.

Date of instt.:23.5.2018.              

 Date of Decision:29.11.2019.

 

Subhash Gautam s/o Shri Balbir Chand, r/o Peerwali Gali, Mohalla Gurunanakura, Thanesar, Kurukshetra. Now resident of H.No.1724/24, Akash Nagar, Chanarthal Road, Backside of Saini Public School, Kurukshetra.

                                                                        …….Complainant.                                           Versus

 

1. New India Assurance Co. Ltd., Head Office at 87, M.G. Road, Fort Mumbai-400001, through its Authorized Signatory.
2. New India Assurance Co. Ltd., Dr. Sahni Nursing Home, Pipli Road, Kurukshetra, through its Branch Manager.

                ….…Opposite parties.

 

Complaint under Section 12 of Consumer Protection Act.

 

Before       Smt. Neelam Kashyap, President.    

                   Ms. Neelam, Member.       

                   Shri Issam Singh Sagwal, Member.                                                 

Present:     Shri K.K. Gupta, Advocate for the complainant.               

Shri Rajesh Singhal, Advocate for the opposite parties.

           

ORDER

                                                                         

                    This is a complaint under Section 12 of the Consumer Protection Act, 1986 moved by complainant Subhash Gautam against New India Assurance Co. Ltd., the opposite parties.

2.             The brief facts of the complaint are that the complainant is the registered owner of Ford Figo 1.4 Duratorq TDC IZXI car bearing Registration No.HR-07R-6597, bearing Chassis No.MAJ1XXMRJ1BM13159 and engine No.BM13159 and the same was insured with OPs vide policy No.35360131150300006481 for a sum of Rs.3,50,000/- valid from 19.11.2015 to 18.11.2016 and paid Rs.11493/- as premium. On 16.11.2016 at about 06:00 AM, he alongwith his son Naveen Gautam were in the area of Nilokheri to Taraori and his son was driving the car and the complainant was lying on the behind seat. The complainant was following a dumper. In the meanwhile, the driver of dumper suddenly applied the break and due to this impact, he had met with an accident. After the accident, the car was not in running condition and he parked the same on roadside and arranged lift for his son as his son was to go to his office. After reaching Panipat, he met with the owner of workshop Har Bhagwan Motors Panipat and told him about the accident and now the car was standing at Har Bhagwan Motors, Panipat. The car is suffered total loss which is not repairable. He lodged the damage claim with the OPs alongwith all requisite documents immediately and the car was surveyed by OP No.2, who told that the vehicle is a total loss and not repairable. The complainant requested various times to the OPs, who assured that his claim is in process and would be settled, but his claim was not settled by the OPs. Since 16.11.2016 i.e. the date of accident the car is lying at Workshop Har Bhagwan Motors, Panipat and he is paying the rent of the same to the tune of Rs.100/- per day, total amounting Rs.47,000/- upto 28.2.2018. This way, the OPs are deficient in providing the services to him. Hence, this complaint.

3.             Upon notice, the opposite parties appeared and filed written statement raising preliminary objections regarding locus-standi; the complaint is bad for mis-joinder & non-joinder of necessary party and jurisdiction. It is stated that the complainant has not approached this Hon’ble Forum with clean hands and has suppressed the true & material facts from this Hon’ble Court. The true and material facts are that the investigator was deputed by the OPs to find out the true facts of the case, but the complainant had not cooperated with him and had even not show the spot of accident. Moreover, no spot survey was conducted and even the police was also not informed regarding the accident, which creates doubt on the story of the complainant. The receipt of toll plaza was specifically demanded from the complainant, but he had failed to produce the same. The complainant alleged that his son was driving the car at the time of alleged accident, whereas, his son was present in his office at Chandigarh at 09:02 AM which shows that his son was not driving the car and someone else was driving the car. This way, the complainant had failed to explain the facts of the case and it is the basic condition of the policy of insurance that if there is any misrepresentation or concealment of facts, the insurance company is not liable to pay any claim. There was no deficiency on the part of the OPs. On merits, the rest of the contents of the complaint are denied and prayed for dismissal the same against the OPs.

4.             The learned counsel for the complainant tendered affidavits Ex.CW1/A; Ex.CW2/A alongwith documents Annexure-1 to Annexure-19. On the other hand, learned counsel for OPs tendered affidavit Ex.RW1/A alongwith documents Ex.R-1 to Ex.R-12.

5.             We have heard the learned counsel of the parties and carefully gone through the case file.

6.             The learned counsel for the complainant reiterated all the averments made in the complaint. He argued that the complainant is the registered owner of Ford Figo car and the same was insured with OPs valid from 19.11.2015 to 18.11.2016. He further argued that on 16.11.2016 at about 06:00 AM, the complainant alongwith his son Naveen Gautam was in the area of Nilokheri to Taraori and his son was driving the car, at that time, the said car was met with an accident. After the accident, the complainant parked the car on roadside and arranged lift for his son as his son was to go to his office. He further argued that after the accident, he went to his office i.e. UHBVN, Panipat and contacted there with Har Bhagwan Motors, Panipat telephonically and the car was standing there till today. He further argued that the complainant lodged the damage claim with the OPs alongwith all requisite documents immediately and the car was surveyed by OP No.2, who told that the vehicle is a total loss and not repairable, but OPs had not settled claim. He further argued that the car is lying at Har Bhagwan Motors, Panipat from the date of accident and he is paying the rent of the same to the tune of Rs.100/- per day, total amounting Rs.47,000/- upto 28.2.2018.

7.             The learned counsel for the OPs reiterated all the averments made in the reply. He argued that the complainant had not cooperated with the Investigator appointed by the OPs and had even not show the spot of accident. He further argued that the police was also not informed regarding the accident. The receipt of toll plaza was specifically demanded from the complainant, but he had failed to produce the same. The complainant alleged that his son was driving the car at the time of alleged accident, whereas, his son was present in his office at Chandigarh at 09:02 AM, which shows that his son was not driving the car and someone else was driving the car. He further argued that if there is any misrepresentation or concealment of facts, the insurance company is not liable to pay any claim. There was no deficiency on the part of the OPs.

8.             From the pleadings and evidence of the case, we found that there is no dispute that the vehicle in question of the complainant was duly insured with the OPs from 19.11.2015 to 18.11.2016 vide policy Annexure C-3. The said vehicle was met with an accident and the OPs deputed a surveyor, who submitted his report Ex.R-10 and assessed the value of loss on net of salvage basis to the tune of Rs.2,43,053/-. The grievance of the complainant is that he lodged the claim with the OPs, but they refused to pay the amount, as assessed by the surveyor. Since the OPs refused to pay the claim to the complainant, therefore, the onus was upon the OPs to prove the grounds on which they refused to pay the claim amount. The OPs firstly contended that the complainant had not cooperated with the Investigator appointed by the OPs and had even not show the spot of accident and also not given the intimation to the OPs, but this contention of the OPs has no force in view of the Facts Finding Investigation Report Ex.R-5, wherein at Para No.3.4, the said Insurance Investigator has duly mentioned that “Accordingly, the car was brought from Taraori to his workshop and intimation in this regard was submitted to the New India Assurance Co.

9.             The OPs further contended that the police was not informed regarding the accident. In this regard, the complainant has contended that since his car was struck from behind the dumper, therefore, there was no fault on the part of the driver of said dumper. As such, the complainant did not want to lodge any FIR or want to take any legal action against the said dumper and therefore, he had not intimated the police about this accident. We found force in this contention of the complainant.

10.            The OPs further contended that the complainant alleged that his son was driving the car at the time of alleged accident, whereas, his son was present in his office at Chandigarh on 16.11.2017 at 09:02 AM, which shows that his son was not driving the car and someone else was driving the car, but this contention of the Ops is not believable in view of the Facts Finding Investigation Report Ex.R-5, wherein at Para “FINDINGS”, the said Investigator admitted that the vehicle in question was being driven by Mr. Naveen Gautam (insured’s son). Moreover, the complainant has drawn attention of this Forum towards reply dated 26.3.2018 to the legal notice sent by the OPs (Annexure C-8), wherein, the OPs mentioned that son of the complainant marked his presence on 16.11.21017 at 9.02 AM in the office at Chandigarh. However, from the Facts Finding Investigation Report Ex.R-5, it is clear that the accident took place on 16.11.2016, instead of 16.11.2017. Meaning thereby, the OPs wrongly inquired the attendance of son of the complainant of dated 16.11.2017, instead of 16.11.2016, which might be a clerical mistake on the part of the OPs. So, from this above, it is established that Mr. Naveen Gautam, son of the complainant was driving the car at the day of accident.  

11.            The OP further contended that the complainant financed the said vehicle from PNB, Kurukshetra, but had not paid the installments of said loan. In this regard, the complainant has produced Clearance Certificate dated 25.11.2019 from the PNB, Kurukshetra as Mark-A on the case file, wherein, the said bank has certified that the car loan has been closed on 06.4.2019 and there are no dues outstanding in this loan A/c. So, this contention of the OPs is also not tenable. So, in view of above facts & circumstances of the case, we are of the considered opinion that the OPs has wrongly refused to pay the claim of the complainant. Hence, the OPs are deficient in providing the services. However, in the Survey Report Ex.R-10, the said surveyor assessed the value of loss on net of salvage basis to the tune of Rs.2,43,053/- and in this regard, the complainant has given his consent letter Ex.R-11, subject to provide the cancelled RC of the vehicle in question. Hence, the OPs are liable to pay the said amount to the complainant alongwith interest, subject to submission of the cancelled RC of the vehicle in question by the complainant with the OPs.  The complainant contended that the car is lying at Workshop Har Bhagwan Motors, Panipat from the date of accident and he is paying the rent of the same to the tune of Rs.100/- per day, total amounting Rs.47,000/- upto 28.2.2018, but this contention of the complainant has no force, because the complainant has not produced any receipt or document in this regard on the case file, without which, this contention of the complainant is not believable, hence rejected.  

12.            In view of the aforesaid discussion, we hereby allow the present complaint and direct the OPs to pay Rs.2,43,053/- (as settled between the parties) alongwith interest @ 6% per annum w.e.f. 23.5.2018 i.e. the date of the filing the present complaint, till its realization, to the complainant, subject to submission of the cancelled RC of the vehicle in question by the complainant with the OPs. The OPs are further directed to pay Rs.5,000/- as litigation expenses, to the complainant. However, it is made clear that the complainant will submit the cancelled RC of the vehicle in question to the OPs within 15 days and thereafter, the order will be complied with within 30 days, failing which, the complainant will be at liberty to initiate proceedings under Section 25/27 of the Act against the OP. Certified copy 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, after due compliance.

 

Announced in open Forum:

Dt.:29.11.2019.                                                   (Neelam Kashyap)

                                                                        President.

 

(Issam Singh Sagwal),         (Neelam)       

Member                             Member.