Haryana

Karnal

CC/196/2020

Ms. Mamta Gulati - Complainant(s)

Versus

Pardeep Gupta Agent Bajaj Allianz General Insurance Company Limited - Opp.Party(s)

Balwan Singh

03 Mar 2022

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, KARNAL.

 

                                                       Complaint No. 196 of 2020

                                                        Date of instt.03.06.2020

                                                        Date of Decision:03.03.2022

 

Ms. Mamta Gulati wife of Shri Vijay Gulati resident of House no.47, ward no.3, Ram Lila ground, Gharaunda, District Karnal.

 

                                               …….Complainant.

                                              Versus

 

1.     Pardeep Gupta agent Bajaj Allianz General Insurance Co. Ltd. Swastik Enterprises Karnal Road, Assandh, District Karnal. Mobile no.9896029166.

2.     Bajaj Allianz General Insurance Co.Ltd., 1^st floor, 167/18-C, Sadar Bazar Road, Ambala Cantt., through its Branch Manager.

3.     Bajaj Allianz General Insurance Co. Ltd. SCO-156-159, 2^nd floor, Sector 9-C, Chandigarh, through its Divisional Manager.

 

                                                                      …..Opposite Parties.

 

Complaint Under Section 12 of the Consumer Protection Act, 1986 and after amendment Under Section 35 of Consumer Protection Act, 2019.

 

Before   Sh. Jaswant Singh……President.       

      Sh. Vineet Kaushik…….Member

              Dr. Rekha Chaudhary…..Member

  

 Argued by: Shri Balwan Singh, counsel for complainant.

Opposite party no.1 given up.

Shri Atul Mittal, counsel for OP no.2 and 3.

 

                    (Jaswant Singh President)

ORDER:   

                

                   The complainant has filed the present complaint Under Section 12 of the Consumer Protection Act, 1986 as after amendment Under Section 35 of Consumer Protection Act, 2019 against the opposite parties (hereinafter referred to as ‘OPs’) on the averments that complainant got insured her vehicle i.e. Skoda Superb 1.8 bearing registration no.HR-26DG-5126 with the OP no.2 through OP no.1 for a sum insured of Rs.9,30,341/- under a package policy no.0G-19-9906-1801-00022266 for the period of insurance 07.06.2018 to 06.06.2019 by paying a premium of Rs.24,185/-. On 23.08.2018 while the vehicle was being driven by Shri Vijay Gulati (husband of complainant) at about 8.30 p.m. at Panipat near Power House Panipat, the ahead going canter suddenly applied brakes just to save a cyclist due to which the vehicle of complainant dashed into the rear portion of ahead going canter and resulted in completely damaged. A DDR no.20 dated 23.08.2018 was got registered at police post Baljeet Nagar, Panipat. Complainant lodged claim with the OP. OP appointed a surveyor for assessment of loss. Surveyor inspected the damaged vehicle and verified all the claim documents, arranged snaps of the accidental vehicle and discussed the loss with the repairer and complainant and instructed that the vehicle need not to be repaired because of the fact that vehicle incurred total loss and is beyond repair. All requisite claim documents were handed to the surveyor, since the vehicle being beyond repair the surveyor declared the vehicle total loss. OPs also deputed an investigator for verifying the facts relating to accident. Both the surveyor and investigator were very much satisfied with the claim and accordingly submitted their reports. It is further averred that OPs issued a letter on 12.11.2019 that the claim has been settled on total loss basis with the replacement of second hand vehicle. The complainant asked the OPs to provide the vehicle of same make/model and condition but even after passing of a span of more than six months, OPs have failed to provide the same. The vehicle of the complainant is lying in the same damaged condition since 23.08.2018 resulting into violation of the rights of the complainant by the OPs. Keeping in view the terms and conditions of the policy, in case of total loss, the compensation is payable by deducting the excess clause of Rs.2000/- from IDV i.e.9,30,341-2000=9,28,341/- but OPs are adopting delay tactics that’s why even after passing of a period of 14 months plus, the claim has not been settled. Complainant moved certain communications on toll free number to the higher officials of the OPs for settlement of claim, but of no use. Even on the request of the complainant for disbursal of OD claim to the complainant, OPs have not paid any heed to the request of complainant. In this way there was deficiency in service and unfair trade practice on the part of the OP. Hence this complaint.

2.             On notice, OP no.1 did not appear and lateron, OP no.1 given up by the learned counsel for complainant being unnecessary party, vide separate statement dated 20.07.2021.

3.             OP no.2 and 3 appeared and filed their joint written version, raising preliminary objections with regard to maintainability; cause of action; jurisdiction and concealment of true and material facts. On merits, it is pleaded that the claim of the complainant was thoroughly processed by the OPs by way of appointment of Mr. Ajay Mahajan, Surveyor and Loss Assessor, who thoroughly investigated the claim of the complainant and submitted the detailed report dated 21^st February 2019, who assessed the loss to the tune of Rs.11,91,032/- which was subject to the approval and terms and conditions of the insurance policy. In this regard, OPs sent letter dated 24.10.2018, to the complainant wherein she was requested that, as per surveyor’s assessment the vehicle falls under category of constructive total loss. According to that the complainant submitted the liability of the insurers on constructive total loss basis is insured declared value (IDV) less value of wreck and applicable excess clause as per policy condition no.3 which states. “The company may at its own option repair, reinstate or replace the vehicle or part thereof and/ or its accessories or may pay in cash the amount of the loss or damage and the liability of the company shall not exceed and also submitted NOC and Form 35 from Bank and thereafter on scrutiny of the documents, letter dated 12.11.2018 was again written to the complainant mentioning therein that since he has failed to provide satisfactory explanation to the queries raised in the aforesaid letters. Since the complainant failed to reply the said letter and for non-cooperation of the applicant, as the complainant refused to take car replacement as per policy terms and conditions, the claim of the complainant was repudiated, vide letter dated 23.09.2019. There is no deficiency in service and unfair trade practice on the part of the OPs. The other allegations made in the complaint have been denied by the OPs and prayed for dismissal of the complaint.

4.             Parties then led their respective evidence.

5.             Complainant tendered into evidence her affidavit Ex.CW1/A, copy of letter dated 12.11.2018 Ex.C1, copy of letter dated 28.01.2019 Ex.C2, copy of RC of vehicle in question Ex.C3, copy of insurance policy Ex.C4, copy of DDR Ex.C5, copy of gmail 09.08.2017 Ex.C6 and closed the evidence on 30.09.2021 by suffering separate statement.

6.             On the other hand, OP no.2 and 3 tendered into evidence affidavit of Jai Singh Assistant Manager Ex.OW1/A, affidavit of Ajay Mahajan Surveyor & Loss Assessor Ex.OW2/A, letter dated 23.09.2019 Ex.O1, letter dated 24.11.2018 Ex.O2, letter dated 24.10.2018 Ex.O3, surveyor report Ex.O4 and closed the evidence on 14.01.2022 by suffering separate statement.

7.             We have heard the learned counsels of the parties and perused the case file carefully and have also gone through the evidence led by the parties

8.             Learned counsel of complainant, while reiterating the contents of the complaint, has vehemently argued that during the subsistence of the insurance policy on 23.08.2018, the vehicle in question met with an accident and become totally damaged. The intimation with regard to accident was given to OPs. Thereafter, OPs appointed an authorized surveyor and loss assessor for assessment of the loss of the vehicle in question.  After that, OPs/company gave the option to complainant of replacement with second hand vehicle.

The complainant asked the OPs to provide the vehicle of same make/model and condition but OPs failed to provide the same. He further argued that complainant requested the OPs to pay the insured declared value of the vehicle after deducting the excess clause of Rs.2000/- from IDV i.e.9,30,341-2000=9,28,341/-, but OPs failed to do so.  Hence, prayed for allowing the complaint.

9.             Per contra, learned counsel of OP no.2 and 3 argued that after receiving the intimation regarding the accident of the insured vehicle in question, OPs appointed a surveyor. The surveyor submitted his report and as per the surveyor assessment, the vehicle falls under category of constructive total loss. The OPs were ready to replace the car as per the terms and conditions of the policy but complainant refused to take car replacement. The claim of the complainant was rightly repudiated, vide letter dated 23.09.2019 and prayed for dismissal of the complaint.

10.           Admittedly, the vehicle in question was met with an accident and got completely damaged, during the subsistence of the insurance policy. The claim of the complainant has been repudiated by the OP no.2 and 3, vide repudiation letter Ex.C2 dated 28.01.2019 on the following grounds:-

        “This is reference to your claim and letter sent to you on 24.10.2018 and 12.11.2018 for which your goodself have failed to submit any reply till date.

        Due to non-cooperation and non-submission of essential requirements we are unable to process your claim, and hence the same stands closed”.

11.           In the letter Ex.O2 dated 12.11.2018 and letter Ex.O3 dated 24.10.2018 OPs sought the consent for replacement of vehicle in question but complainant did not reply to the same.

       

12.           It is submitted by OP no.2 and 3 that the OPs sent the letters dated 23.09.2019, 12.11.2018 and 24.10.2018 Ex.O1 to Ex.O3 respectively to the complainant and sought the consent for replacement of vehicle in question but the complainant did not pay any heed to the letters sent by the OPs, therefore, there is no deficiency in service on their part.

13.           It is submitted by the learned counsel for complainant that complainant is not interested to take any other vehicle in place of her damaged vehicle. Admittedly, OPs no.2 and 3 were/are ready to replace the vehicle in question with the old car. OPs forcibly want to give another vehicle to the complainant but complainant was/is not willing to get the same. So, in our view, OPs cannot pressurize the complainant for replacement of the vehicle with another old vehicle. It is also submitted by the OPs that the claim of the complainant had been closed due to non-cooperation and non-submission of essential requirements. The onus to prove the same lies upon the OPs but OPs miserably failed to prove the same by leading any cogent and convincing evidence. Moreover, in the present complaint the complainant has claimed an amount of Rs.9,28,340/-  and thus her personal interest is involved, then, as to why, she would not supply the requisite documents to the insurance company. Hence, plea taken by the OPs that complainant had not supplied the documents as demanded by the OPs, is having no force. Hence, the act of the OPs while closing/repudiating the claim of complainant amounts to deficiency in service, which is proved otherwise genuine one.

14.           As per insurance policy, the insured declared value (IDV) of the vehicle in question is Rs.9,30,341/- and after deducting less policy clause of Rs.2000/- it comes to Rs.9,28,341/-.  Thus, the complainant is entitled for the amount of Rs.9,28,341/- alongwith interest, compensation and litigation expenses.

15.           Thus, as a sequel to abovesaid discussion, we allow the present complaint and direct the OP no.2 and 3 to pay Rs.9,28,341/- (Rs. Nine lakhs twenty eight thousand three hundred forty one only) to the complainant alongwith interest @ 9% per annum from 28.01.2019 i.e. the date of closing of claim till its realization. We further direct the OP no.2 and 3 to pay Rs.25,000/- to the complainant on account of mental agony and harassment and Rs.11,000/- towards the litigation expenses. This order shall be complied with within 45 days from the receipt of copy of this order.  Complainant is also directed to get transfer the RC of the vehicle in question in the name of concerned insurance company. Complainant is directed to handover the salvage of the vehicle in question to the insurance company. The parties concerned be communicated the order accordingly, and the file be consigned to the record room, after due compliance.

Dated:03.03.2022

                                                                       

                                                                  President,

                                                     District Consumer Disputes

                                                     Redressal Commission, Karnal.

 

(Vineet Kaushik)        (Dr. Rekha Chaudhary)

                    Member                         Member