Chandigarh

StateCommission

A/196/2024

MAGMA HDI GENERAL INSURANCE COMPANY - Complainant(s)

Versus

RAJ KUMAR WALIA - Opp.Party(s)

VISHAL SHARMA

08 Nov 2024

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

U.T., CHANDIGARH

 

Appeal No.	:	196 of 2024
Date of Institution	:	15.05.2024
Date of Decision	:	08.11.2024

 

 

 

 

MAGMA HDI General Insurance Co. Ltd., Equinox Business Park, Tower 3, 2^nd Floor, Unit Number 1B & 2B, LBS Marg, Kurla (West), Mumbai – 400070 through its authorised signatory Sh.Sunny Chadda, Assistant Manager-Legal.

…Appellant/opposite party no.1

V e r s u s

1. Raj Kumar Walia aged about 55 years s/o Sh. Krishan Parkash r/o House No.84/C, Raipur Khurd, Behlana, Chandigarh.

….Respondent No.1/complainant

2. BERK Auto LLP SCO 6,7,8,9, Defence Enclave, CHIMA Complex Zirakpur, Punjab through its authorised officer/ General Manager

….Respondent No.2/  opposite party no.2

BEFORE:

JUSTICE RAJ SHEKHAR ATTRI, PRESIDENT MR. PREETINDER SINGH, MEMBER

 

Present:-    Sh.Vishal Sharma, Advocate for the appellant-on VC.

                   Sh.Shyam Singh Chokkar, Advocate for  respondent no.1

                   Respondents No.1 and 2 exparte vide order dated 06.06.2024

 

JUSTICE RAJ SHEKHAR ATTRI, PRESIDENT

                   The appellant/opposite party no.1-Magma HDI General Insurance Co. Ltd.,  has come up in this appeal assailing  the order dated 01.01.2024, passed by the District Consumer Disputes Redressal Commission-I, U.T., Chandigarh, whereby consumer complaint bearing no.944 of 2022 filed by the respondent no.1/complainant was partly allowed against it as under:-

4. “…In the light of the aforesaid discussion, the present consumer complaint succeeds, the same is hereby partly allowed and OP-1/insurer is directed as under :-

1. to pay the IDV of  ₹10,65,425/- to the complainant alongwith interest @ 9% per annum from the date of closure/repudiation of the claim i.e. 6.11.2022 onwards.
2. to pay  ₹20,000/- to the complainant as compensation for causing mental agony and harassment;
3. to pay  ₹10,000/- to the complainant as costs of litigation.

5. This order be complied with by OP-1 within forty five days from the date of receipt of its certified copy, failing which, the payable amounts, mentioned at Sr.No.(i) & (ii) above, shall carry interest @ 12% per annum from the date of this order, till realization, apart from compliance of direction at Sr.No.(iii) above.
6. Since no deficiency in service or unfair trade practice has been proved against   opposite party no.2, the consumer complaint against it stands dismissed with no order as to costs.....”

2.           Before the District Commission, it was the case of the complainant that he is the registered owner of a Hyundai Creta 1.5 car bearing registration No.CH-01-CJ-9715 which was purchased by him from   opposite party no.2.  The said vehicle was got insured from opposite party no.1 vide policy (Annexure C-2) which was valid w.e.f. 2.5.2022 to 1.5.2023 with total IDV of Rs.10,65,425/-. Unfortunately, on 12.9.2022, the vehicle in question being driven by Suraj Ahluwalia, real brother of the complainant, met with an accident at Sundran-Nimbuan Road, Village Sundran, Tehsil Dera Bassi, Distt. SAS Nagar, Mohali.  The opposite parties were immediately informed about the accident and the vehicle was taken to the premises of   opposite party no.2.  Thereafter, officials of  opposite party no.2 examined the accidental vehicle and estimated the cost of repair at Rs.10,44,387.35.  Opposite party no.1 had also deputed surveyor who also assessed the loss to the tune of Rs.10,44,387.35 and disclosed the complainant that as the IDV of the subject car is Rs.10,65,425/-, as such, the same falls under the category of total loss and asked   opposite party no.2 not to repair the same.  Officials of   opposite party no.2 asked the complainant to complete the formalities, so that claim can be settled as early as possible, which was done by him. Thereafter lot of correspondence took place between the parties qua the claim in question.  However, vide email dated 6.11.2022, opposite party no.1 informed the complainant that his  claim is not payable. Hence, consumer complaint was filed before the District Commission.
3.           In the reply filed, opposite party no.1, while taking preliminary objections regarding maintainability, jurisdiction, cause of action etc. stated that in fact, the investigator deputed by it submitted his report to the effect that  at the relevant time of accident, the vehicle in question was not being driven by Sh.Suraj Ahluwalia aforesaid, brother of the complainant, but three young boys were present in the subject car, at the time of accident, out of which one was driving it. It was stated that the complainant misrepresented the facts, as a result of which, his claim stood  repudiated. However, it was candidly admitted that the vehicle in question was insured with opposite party no.1 at the relevant time with IDV of Rs.10,65,425/-. 
4.           Despite service, none put in appearance on behalf of  opposite party no.2, as a result of which, it was proceeded against exparte by the District Commission vide order dated 08.02.2023.
5.           The contesting parties led evidence in support of their case.
6.           The District Commission after hearing the contesting parties and on going through the documents on record, partly allowed the complaint in the manner stated above. Hence this appeal has been filed by the appellant/opposite party no.1.
7.           None put in apperance on behalf of respondents no.1 and 2, as a result of which, they were proceeded against exparte by this Commission, vide order dated 06.06.2024. However, thereafter, on 18.07.2024, Sh.Shyam Singh Chokkar, Advocate, joined the proceedings on behalf of respondent no.1.
8.           We have heard counsel for the contesting parties and scanned the material available on the record.
9.           Admittedly, the claim of respondent no.1 was repudiated by the appellant vide letter dated 25.01.2023, Annexure OP-4, merely on the ground that since the google map mobile location of Sh.Suraj Ahluwalia, brother of the complainant, at the relevant time of accident was found to be at some other place, instead of his presence at the site of accident, therefore, the insured vehicle was being driven by somebody else and not by Sh.Suraj Ahluwalia.
10.           Before this Commission, the appellant's counsel has fervently raised the contention that, despite the appellant having submitted evidence in the form of the Google Maps mobile location of Shri Suraj Ahluwalia, which purportedly indicates his position as being distant from the site of the accident, the District Commission erred in its judgment by overlooking this fact and in turn, partially upheld the consumer complaint, contrary to the appellant's assertions.

In our considered view, the mere fact that the Google Maps location of Shri Suraj Ahluwalia places him away from the scene of the accident is insufficient to conclude that he was neither driving the insured vehicle nor was present at the accident site. A mobile phone, such as the one reportedly linked to Shri Suraj Ahluwalia, is not necessarily an infallible indicator of one's actions or whereabouts at a given time. It is entirely plausible that a person might forget their mobile phone at home, or might have handed it over to a family member—such as a spouse or child, prior to leaving to drive the vehicle. Therefore, the appellant's reliance on this information as conclusive evidence is misplaced. Moreover, the appellant has failed to cite any specific provisions or clauses from the insurance policy in question that mandate the insured or the driver of the vehicle to carry their mobile phone at all times while driving the insured vehicle. The mere presence of a mobile phone at the scene of the accident, or the tracking of its location, does not automatically establish liability or the presence of the driver at the site. No stipulation has been referenced out of the insurance policy in question that the claim should be assessed based solely on mobile phone or Google Maps data.

11.           Even if we were to accept the appellant’s argument regarding the Google mobile location data, it does not fundamentally alter the circumstances of the case. Admittedly, the accident in question occurred on 12th September 2022 at 01:45 PM near Village Sundran, Tehsil Derabassi, SAS Nagar, Punjab. However, upon reviewing the Google Maps mobile location i.e. the evidence provided by the surveyor, which was incorporated in his report, it is clear that the location data corresponds to timestamps of 09:59 AM and 10:00 AM on the same date, which is approximately 3 hours and 45 minutes before the accident occurred. This significant time discrepancy further undermines the appellant's reliance on the Google Maps data as conclusive proof of the appellant’s involvement or the lack thereof at the scene of the accident. In light of these facts, we find that the appellant’s attempt to repudiate the claim based on the Google Maps mobile location evidence does not warrant acceptance. The time difference, coupled with the potential for alternative explanations regarding the use of the mobile phone, makes this evidence insufficient to overturn the decision of the District Commission.
12.           As far as contention raised by the appellant to the effect that  only three kids were travelling in the insured car and one of the kid was driving the same, it may be stated here that the District Commission has rightly  adjudicated this issue by holding that  in the absence of any evidence in this regard, bald plea taken cannot be considered.    
13.           It is therefore held that the act of the appellant in repudiating the genuine claim of the complainant is not justified, and such an act of the appellant, amounts to deficiency in rendering service, negligence and adoption of unfair trade practice. The District Commission was thus right in partly allowing the consumer complaint. 
14.           In view of the above discussion, it is held that the impugned order passed by the District Commission, being based on the correct appreciation of evidence and law on the point, does not suffer from any illegality or perversity, warranting the interference of this Commission and the same stands upheld.
15.           Consequently, this appeal stands dismissed with no order as to cost.
16.           All the pending application(s), if any, stand disposed of, accordingly.
17.           Certified copies of this order be sent to the parties, free of charge, forthwith.
18.           The concerned file be consigned to Record Room, after completion and the record of the District Commission-I, U.T, Chandigarh, after annexing the additional documents, if any, submitted before this Commission in this appeal, be sent back immediately.

Pronounced

08.11.2024

Sd/-

 [JUSTICE RAJ SHEKHAR ATTRI]

PRESIDENT

 

 

 

Sd/-

(PREETINDER SINGH)

MEMBER

Rg.