Before the District Consumer Disputes Redressal Commission, Rohtak.

                                                                             Complaint No. : 158

                                                                             Instituted on     : 01.04.2019.

                                                                             Decided on       : 06.02.2023

Sheela daughter of Mahender Singh, Resident of Bhaini Chanderpal, Tehsil, Meham, District Rohtak now wife of Parmod Resident of Village Mokhra, Tehsil Meham, District Rohtak.

                                                                             .......................Complainant.

                                                Vs.

Oriental Insurance Company Ltd. through its Branch Manager, 323/21, Jawahar Market, Opp. Model Town,  Rohtak.

                                                                             ……….Opposite party.

          COMPLAINT U/S 12 OF CONSUMER PROTECTION ACT,1986.

BEFORE:   SH.NAGENDER SINGH KADIAN, PRESIDENT.

                   DR. TRIPTI PANNU, MEMBER.

                   DR. VIJENDER SINGH, MEMBER.

Present:       Shri Sameer Gambhir, Advocate for the complainant.

                   Shri Puneet Chahal, Advocate for the opposite party.

                                                ORDER

NAGENDER SINGH KADIAN, PRESIDENT:

1.                Brief facts of the case as per complainant are that he had purchased a Private Car Package Insurance Policy bearing No.242596/31/2017/TMP/3084 from opposite party with regard to his vehicle No. HR15C-8505 having validity from 15.02.2017 to 14.02.2018. It is further submitted that on 11.12.2017,  the driver of the complainant Ashok Kumar was driving the above said vehicle and was going from Lucknow to Delhi. When they reached approximately 100 meter before Intoza Flyover, an unknown vehicle struck against the Car of the complainant and due to that car of the complainant fell into the road side ditches, the driver of the said vehicle died and other occupants of the vehicle sustained injuries in the accident. The car of the complainant was completely damaged in the said accident. The complainant had intimated the opposite party regarding the complete damage of vehicle. Opposite party has deputed Surveyor of Lucknow Mr. J.P.Berry for assessment of damage of vehicle, who submitted his report that the vehicle bearing No.HR15C-8505 is under total loss. Surveyor and Insurance Official of the opposite party had submitted that complainant is entitled for IDV of vehicle. IDV of the vehicle is Rs.4,69,001/-. Complainant had visited to Lucknow office of opposite party and then they told to him that the claim amount of IDV will disburse by the Rohtak Office of opposite party. Complainant had submitted the requisite documents of copy of FIR, DL of Ashok Kumar, RC, Insurance of Vehicle and claim Form to the opposite party. Complainant is also paying the monthly charges of Rs.700/- to park the total damage vehicle. The opposite party has not disbursed the claim amount inspite of many assurances. As such, there is deficiency in service on the part of opposite party. Hence this complaint and it is prayed that opposite party may kindly be directed to pay the IDV amount of Rs.4,69,001/- of the vehicle alongwith interest @ 18% per annum from the date of damage of vehicle i.e. 11.12.2017, also to pay Rs.1,00,000/- on account of harassment and Rs.11,000/- as litigation charges to the complainant.

2.                After registration of complaint, notice was issued to the opposite party. Opposite party in his reply has submitted that complainant has not intimated to the answering respondent immediately for conducting the spot survey. The alleged accident/loss occurred on 11.12.2017 whereas intimation for accident of vehicle was given on 05.02.2018. The answering opposite party had appointed an IRDA accredited surveyor to carry the survey/investigation. On perusal of investigation report that the seven persons were travelling in the vehicle and Shamsher was driving the vehicle. This has leaded to breach of insurance contract and condition due to misrepresent concealment of material fact. In these circumstances, the answering respondent insurance company was not liable under the policy terms and conditions in respect of the claim. All the other contents of the complaint were stated to be wrong and denied and opposite party prayed for dismissal of complaint with costs.

3.                Ld. Counsel for the complainant in his evidence has tendered his affidavit Ex.CW1/A to Ex. CW4/D, documents Ex.C1 to Ex.C27 and closed his evidence on dated 01.03.2021. Ld. Counsel for the opposite party in his evidence has tendered his affidavit Ex.RW1/A, documents Ex. R1 to Ex. R7 and closed his evidence on dated 03.11.2021.

4.                We have heard learned counsel for the parties and have gone through material aspects of the case very carefully.

5.                In the present case insurance and accident of the vehicle is not disputed. But the claim of the complainant has not been paid by the opposite party on the ground that complainant has not intimated to the respondent immediately for conducting the spot survey. The alleged accident/loss occurred on 11.12.2017 whereas intimation for accident of vehicle was given on 05.02.2018.  In this regard it is observed that accident had taken place on 11.12.2017 and the FIR was lodged on the same day i.e. 11.12.2017. Hence there is no delay in lodging the FIR. Regarding the delayed intimation to the company, we have  placed reliance upon the law of Hon’ble Supreme Court of India in Civil Appeal no.1069 of 2022 decided on 11.02.2022 titled as Jaina Construction Company Vs. Oriental Insurance Company, Civil Appeal no.5705 of 2021 decided on 13.09.2021 in case titled as Dharamender Vs. UIIC, as well as Civil Appeal no.653 of 2020 decided on 24.01.2020 in case titled as Gurshinder Singh Vs. Shriram General Insurance Co. Ltd. & Anr., Hon’ble Apex Court has observed that: “When insured lodged FIR immediately after theft of a vehicle occurred and when police after investigation have lodged a final report after vehicle was not traced and when surveyors/investigators appointed by insurance company found claim of theft to be genuine, then mere delay in intimating insurance company about occurrence of theft cannot be a ground to deny claim-Lodging of FIR on same day theft occurred-Therefore, denial of claim set aside”.  The law cited above, are fully applicable on the facts and circumstances of the case as in the present case also, FIR was lodged on the same day.  It is settled principle that when police receives any information regarding the accident, the police officials visits the spot, take necessary photographs and also take the possession of accidented vehicle in their custody. A mechanical inspection is also done by a technical person. The other plea taken by the opposite party is that as per investigation report, insured has mentioned in the claim form that Mr. Ashok was driving the vehicle at the time of accident and has also submitted his DL but whereas as per the newspaper cutting, Mr. Shamsher was driving the vehicle at the time of accident. In this regard it is observed that firstly no newspaper cutting is placed on record and secondly newspaper cutting is not an authentic proof of evidence. On the other hand, as per affidavit Ex.CW4/D, Sh. Ashok Kumar was driving the vehicle at the time of accident. At the time of arguments, ld. counsel for the complainant has placed on record copy of order dated 23.12.2022 as ‘Annexure-JN-A’ passed by Sh. Manish Kumar Ld. Commissioner, under the Employee’s Compensation Act, 1923, Rohtak in application no.28/2018 whereby it is held that Sh. Ashok Kumar was driving the vehicle no.HR-15C-8505 on dated 11.12.2017 and died during the course of employment.  Hence it is proved that Ashok Kumar was driving the vehicle in question at the time of accident. As such the repudiation of the claim by the opposite party is illegal and amounts to deficiency in service. As such opposite party is liable to pay the IDV of the vehicle to the complainant. As per cover note Ex.C1, the IDV of the vehicle is Rs.469001/- and after deducting the salvage value of vehicle, which we have assessed as Rs.40000/-, the loss comes to Rs.429000/-(rounded off).  It is also on record that the vehicle in question was hypothecated with the HDFC Bank which is proved from the R.C. Ex.C2 but at the time of arguments, ld. counsel for the complainant placed on record copy of Loan Closure Letter of financer and NOC of vehicle ‘Annexure-JN-B’, as per which the complainant has repaid the loan amount on 10.01.2023

6.                In view of the fact and circumstances of the case we hereby allow the compliant and direct the opposite party to pay the amount of Rs.429000/- (Rupees four lac twenty nine thousand only) alongwith interest @ 9% p.a. from the date of filing the present  complaint i.e. 01.04.2019 till its realization and shall also 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 within one month from the date of decision.  On the other hand, complainant is directed to send a letter to the RTO for cancellation of R.C. and to supply the copy of the letter to the opposite party.

7.                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:

06.02.2023.

                                                          ................................................

                                                          Nagender Singh Kadian, President

                                                                        ………………………………..

                                                                        Tripti Pannu, Member.

                                                                        ………………………………..

                                                                        Vijender Singh, Member.