DISTRICT CONSUMER DISPUTES REDRESSAL FORUM,

BATHINDA

C.C. No. 440 of 03-08-2016

Decided on : 18-10-2018

Sanjay Kapoor aged about 50 years S/o Ramsharan Kapoor S/o Sh. Amarnath R/o # 413/328 Madhok Pura, Near Railway Station, Bathinda.

…...Complainant

Versus

1. Royal Sundaram Alliance Co. Ltd., Corporate Office : Vishranthi Melaram Tower No. 2/319, Rajiv Gandhi Salai (OMR), Karapakkam, Chennai 600 097, through its Manager/Director/MD

2. Vikas Jain Surveyor, R/o H. No. 178/9, Gali No. 9, Harpal Nagar, Bhatti Road, Bathinda.

3. Indian Overseas Bank, Kikar Bazar, Bathinda, through its Branch Manager.

.......Opposite parties

Complaint under Section 12 of the Consumer Protection Act, 1986.

Quorum :

Sh. M.P.Singh Pahwa, President

Smt. Sukhwinder Kaur Member

Present :

For the complainant : Sh. Naresh Garg, Advocate.

For the opposite parties : Sh. Rakesh Mangla, Advocate, for OP No. 1.

OP No. 2 deleted.

OP No. 3 exparte.

O R D E R

M. P. Singh Pahwa, President

1. Sanjay Kapoor, Complainant (here-in-after referred to as 'complainant') has filed this complaint under Section 12 of the Consumer Protection Act, 1986 (here-in-after referred to as 'Act') against Royal Sundaram Alliance Insurance Insurance Co. Ltd., and others (here-in-after referred to as 'opposite parties').

2. Briefly stated, the case of the complainant is that he is owner of car Maruti Swift D-Zire bearing registration No. PB-03-AF-8837. It is Hypothecated with opposite party No. 3. The Opposite Party No.1 is having agency arrangement with Maruti Suzuki, manufacturer of the car under cashless provisions through out India. In tie-up arrangement with Maruti Company, the opposite party No.1 insured Maruti Suzuki vehicle on-line through Net under cashless scheme. In this arrangement, the insurance is valid all over India in the Maruti Service Centres. In case of any loss to the vehicle, the vehicle shifted with any service centre in India of Maruti Suzuki Company is to be repaired free of cost under cashless scheme. The opposite parties pay the amount directly to the workshop anywhere in India.

3. It is revealed that the car was previously insured with opposite party No.1 w.e.f. 03-01-2014 to 02-01-2015 through on-line Insurance (on Internet). The opposite party No.1 issued Insurance Certificate No. MOP2153208 under Maruti tie up cashless agency arrangement on-line at Bathinda. The opposite party No.1 issued one page cashless Insurance certificate at Bathinda on-line and no other policy or terms and conditions were supplied to the complainant. The said car met with an accident in the revenue limits of Jaitu on 12-10-2014. FIR was registered against driver. The complainant took his car on supardari from JMIC Faridkot on 30-12-2014. The car was shifted with M/s Tara Automobiles, Bathinda. The opposite party No.1 appointed opposite party No. 2 as surveyor at that time. Under the instructions of opposite party No. 1, the opposite party No. 2 settled the claim on cash loss basis i.e. lump-sum amount. The complainant after taking the amount of Rs.1,39,000/- from opposite parties No.1 & 2 got repaired the car from outside local repairer at Bathinda (M/s Bhagat Motor Garage) and shifted the vehicle from M/s Tara Automobiles, Bathinda to Bhagat Motor Garage in March-April 2014. M/s Tara Automobiles demanded high amount for repair of the car. As such, the opposite parties No. 1 & 2 settled the claim on lump-sum amount of Rs.1,39,000/- and paid the same to complainant vide cheque dated 11-05-2015 against the loss dated 12-10-2014. The car was got repaired from M/s Bhagat Motor Garage Bathinda as the complainant took the parts from market without bills which was cheaper than the Tata Automobiles. The car was road worthy in the last week of May, 2015. Thereafter, the complainant got Pollution Certificate from Happy Engg. Works on 28-05-2015 which is self speaking that the car is road worthy.

4. It is further alleged that opposite party No.1 contacted the complainant on telephone and renewed Insurance of the Car on 30-12-2014 for the next insured period w.e.f. 03-01-2015 to 02-01-2016 and charged Rs. 12,657/- and issued on-line cashless Insurance Certificate No. M0P2689174 at Bathinda. The car was lying in damaged condition at Bathinda and it was in the knowledge of opposite parties No. 1 & 2 as they did not settle the claim at that time.

5. It is further alleged that opposite party No.1 again not supplied any policy with terms and conditions to the complainant. They issued only Insurance Certificate of one page on-line. The opposite party No. 1 assured that they have tie-up arrangement with Maruti Company. The opposite party No.1 insured the Maruti vehicle on-line through net under cashless scheme. In this arrangement, the Insurance is valid all over India in the Maruti Service Centres.

6. It is further pleaded that car of the complainant met with an accident on the intervening night of 22/23-07-2015 at about 3.15 A.M. near Sirsa. Police of PS Sadar Sirsa registered Police Repert No. 36. In this accident Tarsem Kumar was driver and complainant was also injured and was admitted to Aman Hospital Bathinda. The complainant lodged claim with opposite party No. 1. The opposite party No. 1 again appointed opposite party No. 2 as surveyor. The car was shifted with M/s. Tara Automobiles, Bathinda as per cashless insurance scheme. In this accident, the car was badly damaged. Tara Automobiles and opposite party No. 2 declared it as total loss and settled the claim on net of salvage basis i.e. damaged vehicle sold to third party by opposite party No.1 and the balance claim was to be paid by opposite party No.1 to the complainant. The car was insured for Rs.6,28,720/- as admitted IDV by opposite party No. 1 on 30-12-2014 w.e.f. 03-01-2015 to 02-01-2016. Thereafter opposite parties No. 1 & 2 appointed Mr. Balwinderjeet Singh Chandok @ Bobby Chandok S/o Sh. R. S. Chandok (Surveyor) from Chandigarh. He took damaged car from complainant under the supervision of opposite party No. 2 and gave Rs. 3,75,000/- to complainant on 13-10-2015. The opposite parties No.1 & 2 undertook to pay balance amount of Rs.2,53,720/- to complainant within a week and told that thereafter they will collect original RC from the complainant. Thereafter opposite parties No.1 & 2 started vague inquires and demanded proof of the repair of the car of previous accident. However the complainant provided bill of repairer and pollution certificate etc., and also shown police report of Sirsa where second accident took place along with medical record but opposite parties No. 1 & 2 did not listen and repudiated the claim illegally vide letter dated 31-12-2015 giving the reason as "Misrepresentation of facts regarding previous policy period and damaged claimed".

7. It is alleged that the said letter is totally illegal as the vehicle was sold by opposite parties No. 1 & 2 to the aforesaid person after settlement of 'on net of salvage basis'. Thereafter concocted version just to defeat his claim. Moreover opposite parties No. 1 & 2 never supplied any survey report to the complainant.

8. It is also pleaded that surveyor (opposite party No. 2) of opposite party No. 1 at the time of survey obtained signatures of the complainant on different 5-6 papers, blank vouchers and gave assurance that the balance claim will be paid to him within one week.

9. It is alleged that surveyor (opposite party No. 2) is under the thumb of opposite party No.1. He cannot afford to disoblige his master i.e. opposite party No. 1 from where he has to obtain business. So he is always to toe the dictates of opposite party No. 1.

10. As per complainant due to non payment of balance claim of Rs. 2,53,720/- it has caused mental agony, pains and suffering to the tune of Rs.50,000/- .

11. On this backdrop of facts, the complainant has alleged deficiency in service. Hence this complaint for directions to the opposite parties to pay balance claim amount of Rs.2,53,720/- on account of loss to the Car; Rs.50,000/ as compensation with interest @ 18% P.A. and Rs.25,000/- as cost of litigation.

12. In view of statement of learned counsel for complainant, name of opposite party No.2 was deleted.

13. Upon notice, opposite parties No. 1 & 3 appeared through their respective counsel and contested the complaint by filing separate written reply.

14. In written reply, the opposite party No. 1 has pleaded that complainant has approached this Forum with unclean hands. He is not entitled to any relief. He had originally got an accident claim settled on salvage loss mode with the opposite party in the previous policy period. Thereafter the policy was cancelled by the opposite party with effect from date of accident. However, the complainant, without either properly repairing or disposing off the insured vehicle to the salvage buyer, got a fresh insurance for the same vehicle and has claimed again for accident damages without proper evidence of repair of the vehicle for prior claim. He has tried to wrongly enrich himself at the hands of the opposite party by claiming for fresh accidental loss without showing proper evidence of repair of vehicle of prior claim.

15. It is further alleged that originally the complaint got a private car package policy for his vehicle Maruti D'Zire vide policy No. M0P2153208 for the period of coverage from 3-1-2014 to 2-1-2015 subject to terms and conditions therein. He reported an accident to the opposite party which had occurred on 12-10-2014, vide claim form. On receipt of claim intimation, the opposite party appointed IRDA Licensed surveyor to assess the damage and loss to the subject vehicle. The surveyor submitted his report dated 20-1-2015. Considering the nature of damages and loss to the subject insured vehicle, the complainant requested the opposite party to settle the claim on salvage loss mode and executed consent letter on Rs 100/- Non-Judicial Stamp paper dated 3-3-2015. He agreed for the sum of Rs. 1,40,000/- as settlement (less policy excess: Rs. 1000 = Rs. 1,39,000-). The opposite party settled the claim for Rs. 1,39,000/- (Rs. 1,40,000/- minus policy excess Rs. 1000/-) in favour of the financier of the vehicle Indian Overseas Bank and thereafter cancelled the subject policy with effect from date of accident i.e. 12-10-2014. Hence there was no policy for the subject vehicle after the date of loss i.e. 12-10-2014. Meanwhile, the complainant, who retained the wreck of the vehicle, had got renewed the policy with effect from previous policy ending period i.e. 3-1-2015 to 2-1-2016 even though the accident claim was pending at that time. Thereafter, he preferred another claim with the opposite party for accident alleged to have occurred on 22-7-2015. The opposite party once again appointed IRDA licensed surveyor to assess the loss and damage to the vehicle. Once again, the complainant opted for salvage loss settlement. The opposite party got a quotation for salvage for Rs. 4,00,000/- from salvage buyer. The consent letter was signed by the complainant for settlement of Rs. 2,00,000/- (after deduction of wreck value and excess). Thereafter it was observed that the complainant who had chosen for salvage loss in the prior claim, had retained wreck and chosen to repair the same. However he had neither produced the vehicle for re-inspection nor produced proper repair bill along with purchase of parts etc. for the prior claim i.e. for accident dated 12-10-2014. Hence the opposite party sought explanation from the complainant vide letter dated 3-11-2015. In response, the complainant only submitted cash memo for Rs 40,500/- from "Bhagat Motor Garage" and did not produce any VAT bills/receipts for spare parts purchased from authorized dealer. The complainant admitted not having any bills as he chose to procure the parts from local market. It clearly proves that complainant had chosen not to repair the subject vehicle after the accidental loss which had occurred on 12-10-2014 and only produced a cash memo for Rs, 40,500/- when asked for clarification. He had neither produced the vehicle for inspection after repair and choose to make a claim later for alleged new accident to the insured vehicle. The complainant took the benefit of salvage loss settlement of claim dated 12-10-2014 for Rs. 1,39,000/- ( settled in favour of financier) and choose to keep the wreck himself and got repaired the same. However thereafter he has not produced the vehicle for inspection to the opposite party or even submitted proper invoices/cash receipts for spare parts/labour from authorized dealer. the complainant was trying to wrongfully benefit from the policy of insurance by not properly repairing the original damages and thereafter claiming again later in the fresh policy. Even the accident damage photos for the two claims are similar, raising suspicion that the complainant is merely claiming once again for the previous loss. For this reason this opposite party rightly repudiated the claim of the complainant vide letter dated 31-12-2015.

16. It is further pleaded that opposite party has not committed any deficiency of service or indulged in unfair trade practice.

17. It is further pleaded that complainant has to abide by the policy terms and conditions and provide necessary documents/clarifications as sought for from the opposite party for any claim to be settled by this opposite party. The complainant has not produced the vehicle for inspection after repairs in the prior claim nor has produced the VAT invoices/cash memo for spare parts for the repairs. As such, the complaint is not maintainable and is liable to be dismissed.

18. The opposite party No. 3 in short reply denied the material averments of the complainant mainly for want of knowledge and prayed for dismissal of complaint.

19. Parties were afforded opportunity to produce evidence. In support of his claim, complainant has tendered into evidence his affidavit dated 18-10-2016 (Ex. C-1), photocopy of RC (Ex. C-2), photocopy of insurance (Ex. C-3 & Ex. C-4), photocopy of bill (Ex. C-5), photocopy of FIR (Ex. C-6), photocopy of DDR (Ex. C-7), photocopy of medical prescription (Ex. C-8), photocopy of pollution certificate (Ex. C-9) and photocopy of account statement (Ex. C-10).

20. In order to rebut this evidence, opposite party No. 1 has tendered into evidence photocopy of insurance policy (Ex. OP-1/1), photocopy of claim form (Ex. OP-1/2), photocopy of survey report (Ex. OP-1/3), photocopy of consent letters (Ex. OP-1/4 & Ex. OP-1/5), photocopy of insurance policy (Ex. OP-1/6), photocopy of claim form (Ex. OP-1/7), photocopy of survey report (Ex. OP-1/8), photocopy of quotation (Ex. OP-1/9), photocopy of consent letter (Ex. OP-1/10), photocopy of receipt (Ex. OP-1/11), photocopy of letters (Ex. OP-1/12 to Ex. OP-1/14), photocopy of repair bills (Ex. OP-1/15 and affidavit dated 23-1-2017 of Anessh Bhaskaran (Ex. OP-1/14) and closed the evidence.

21. During evidence, none appeared on behalf of opposite party No. 3. As such, it was proceeded against exparte vide order dated 7-3-2017.

22. The learned counsel for the complainant has also submitted written arguments.

23. We have heard learned counsel for the parties, gone through the record and written arguments of complainant.

24. Learned counsel for complainant has reiterated his stand as set up in the complaint and as detailed above. It is further submitted by learned counsel for the complainant that it is admitted that vehicle was previously insured w.e.f. 3-1-2014 to 2-1-2015 and subsequently it was insured vide policy schedule (Ex. C-4) w.e.f. 3-1-2015 to 2-1-2016. The vehicle met with an accident on the intervening night of 22/23-7-2015. Of course earlier to this also, the vehicle met with an accident on 12-10-2014 but the claim was settled on 'net on salvage basis'. The complainant got the vehicle repaired and made it roadworthy. Bill (Ex. C-5) proves that vehicle was got repaired. Ex. C-9 is Pollution control Certificate dated 28-5-2015. It also proves that vehicle was roadworthy on 28-5-2015 otherwise the complainant was having no reason to get Pollution control Certificate. The copy of DDR (Ex. C-7) also proves that accident took place on the intervening night of 22/23-7-2015. The intimation regarding accident was given to the opposite party. The opposite party appointed surveyor. The vehicle was badly damaged. The surveyor declared it total loss and recommended for settlement on 'net on salvage basis'. The salvage was sold through surveyor Balwinderjeet Singh Chandok for Rs. 3,75,000/-. The opposite parties No. 1 & 2 undertook to pay balance amount of Rs. 2,53,720/-. The opposite party has illegally repudiated the claim vide letter dated 31-12-2015 (Ex. OP-1/13) on the ground of misrepresentation of facts but no misrepresentation fact is revealed. There is also no evidence to show that complainant has misrepresented any fact. Of course, complainant got the insurance policy renewed w.e.f. 3-1-2015 before getting the vehicle repaired, but the claim was pending with the opposite party. The opposite party was under obligation to get the vehicle inspected before renewal of policy. The complainant cannot be made to suffer. The complainant was asked to supply details of bills regarding repair of the vehicle and he also submitted bills to prove that vehicle was got repaired after first accident and made roadworthy. If there is any lapse on the part of agent or opposite party, the complainant is not to suffer for that lapse.

    In support of his submissions, learned counsel for the complainant has cited following case law :-

    (i) 2009 (4) CPJ 230 ( NC) case titled Oriental Insurance Co. Ltd., Vs. Mehar Chand

    (ii) Decision of Hon'ble Supreme Court in Civil Appeal No. 3253 of 2002 decided on 9-4-2009 case titled New India Assurance Co. Ltd., Vs. Pradeep Kumar

    (iii) 1992 (2) CPJ 354 (NC) case titled United India Insurance Co. Vs. P S Mani

    (iv) 2008 (3) RCR Civil 637 case titled Birla Sun Life Insurance Vs. Keshav Lal

    (v) 2008 (3) RCR Civil 111 case titled New India Assurance Co. Ltd., Vs. Usha Yadav

    (vi) 2008 (II) CPJ 42 case titled Madhu Jain Vs. National Insurance Company Company Limited.

    (vii) 2009 (1) CPJ 93 (NC) case titled United India Insurance Ltd., Vs. Ghanshyam Singh

    (viii) 2002 (III) CPJ 95 case titled Oriental Insurance Co. Ltd., Vs. Rakesh Kumar Mishra

    (ix) Appeal No. 272 of 2009 decided on 11-5-2010 by Hon'ble State Commission, U.T. Chandigarh, case titled National Insurance Co. Ltd., Vs. Ravinder Kaur and others

    (x) 2008 (II) CPJ 342 case titled National Insurance Company Limited Vs. Kanhaiya Lal D.A.V. (P.G.) College, Roorkee

    (xi) 2008 (IV) CPJ 134 case titled New India Assurance Company Ltd., Vs. Chandana Mitra & Another

    (xii) 2008 (II) CPJ 483 case titled General Insurance Co. Ltd., & Anr Vs. Abhijit Saini & Another

25. On the other hand, learned counsel for opposite party has submitted that complainant has not approached this Forum with clean hands. He has concocted totally false story. The contract of insurance is based on good faith. Both the parties are required to disclose material facts to each other. The factual position will reveal that complainant has tried to mislead the opposite party as well as this Forum. The previous policy was valid from 3-1-2014 to 2-1-2015. During this covered period i.e. on 12-10-2014, the vehicle met with an accident and complainant obtained possession of the vehicle on supardari on 30-12-2014. These facts are admitted by complainant in the complaint also. The vehicle was allegedly got repaired in the month of March-April, 2015. To prove this fact, the complainant has produced bill Ex. C-5. Claim regarding previous accident was settled on 11-5-2015 but complainant got the policy renewed w.e.f. 3-1-2015 to 2-1-2016 on 30-12-2014. Ex. C-4 proves this fact. On 30-12-2014 as well on 3-1-2015, the vehicle was not roadworthy and it was in badly damaged condition. These facts were not revealed by complainant while obtaining policy. The complainant obtained policy (Ex. C-4) by declaring Insured Declared Value as Rs. 6,28,720/-. These facts show that complainant got the policy renewed by concealing all material facts and by assuming/claiming that vehicle is roadworthy having value of Rs. 6,28,720/-. Earlier claim was settled vide letter Ex. OP-1/5. As per this settlement, IDV of the vehicle was Rs. 7,46,605/-, settlement Value Rs. 7,00,000/-, Wreck Value Rs. 5,60,000/- and Net Liability of the opposite party was Rs. 1,39,000/-. This amount was admittedly received by complainant. The complainant also admitted that certificate of insurance will be cancelled from the date of accident and he submitted original certificate of insurance for cancellation. In this way, the vehicle was already considered as total loss after consent for Salvage loss settlement. Had the complainant got the vehicle repaired and made roadworthy, he was certainly to got it inspected from surveyor of the opposite party before obtaining new policy. All these facts show that complainant has tried to mislead opposite party as well as this Forum. The complainant has claimed repair of the vehicle only on the basis of bill (Ex. C-5). As per this bill, all the denting, painting work, new parts, mechanical labour etc., were got conducted from Bhagat Motor Garage but there is nothing to show that Bhagat Motor Garage was also selling new parts. No bill for new parts was produced. Even the name of new part is not mentioned. Similarly no authenticity can be attached to Pollution control Certificate. There is no other evidence to prove repair of the vehicle. As such, the opposite party has rightly repudiated the claim by concluding that complainant has misrepresented the fact.

26. We have carefully gone through the record, case law cited by learned counsel for the complainant and have considered the rival contentions.

27. In the matter of insurance contract, the basic principle is good faith. Both the parties are expected to act on good faith and not to conceal any material fact.

28. In order to settle the controversy, some factual position of relevant material facts is necessary. The previous policy was valid from 3-1-2014 to 2-1-2015. The vehicle met with an accident on 12-10-2014. It was taken to police possession. The complainant obtained its possession on supurdari. As per complainant, he got the vehicle repaired in March-April, 2015. Therefore, it is clear that after 12-10-2014 i.e. date of accident till March-April, 2015, the vehicle was not roadworthy. The complainant got the policy renewed on 20-12-2014 effective from 3-1-2015 to 2-1-2016 by depicting declared value as Rs. 6,28,720/- whereas the factual position was that vehicle was not roadworthy due to major accident. The complainant was also expected not to get the policy renewed when the previous claim was pending and the vehicle was not roadworthy. There is also nothing to show that complainant revealed these facts at the time of availing renewed policy. In these circumstances, it can be safely inferred that complainant has not acted in good faith at the time of renewal of policy.

29. The matter can be examined from another angle also. The complainant has settled previous claim on 'net of salvage basis'. The consent letter (Ex. OP-1/5) proves that at that time IDV of the vehicle was 7,46,505/-, Settlement value was Rs. 7,00,000/-, Wreck Value was Rs. 5,60,000/-, policy excess Rs. 1,000/- and the net liability of the opposite party was Rs. 1,39,000/-. This amount was received by the complainant. As per this letter, the complainant also admitted that he is aware that Certificate of Insurance will be cancelled from the date of accident and he submitted original Certificate of Insurance for cancellation but the complainant has already got the policy renewed from 3-1-2015 to 2-1-2016. The complainant has not disclosed this fact at the time of settlement of claim. Again it can be inferred that complainant did not act in good faith at the time of this claim.

30. The complainant has pleaded that after settlement of claim he got the vehicle repaired and made it roadworthy but there is nothing to show that complainant got it inspected or he ever afforded opportunity to the opposite party for inspection after repair. The complainant has produced on record bill (Ex. C-5) to claim that he got the vehicle repaired from Bhagat Motor Garage. As per this, the total cost of the repair was Rs. 40,500/- which includes denting, painting and new parts. The name of new parts is not mentioned. No invoice of new parts is submitted despite letter dated 3-11-2015 whereby complainant was asked to submit proof of repair like repair bills etc.,

31. Therefore keeping in view this factual position, the conclusion is that the complainant has not displayed good faith at the time of taking/renewal of policy in question and has rather actively concealed the material facts. Hence, this complaint fails is hereby dismissed being devoid of merit.

32. The complaint could not be decided within the statutory period due to heavy pendency of cases.

33. Copy of order be sent to the parties concerned free of cost. File be consigned to the record room.

    Announced :

    18-10-2018

    (M.P.Singh Pahwa )

    President

     

     

    (Sukhwinder Kaur )

    Member