ORDER

(Passed this on 29 ^th September, 2016)

Shri Shekhar P. Muley, President.

01.       The complaint is regarding unfair trade practice by the Opposite Parties in repudiating the insurance claim of the complainant

02.       The Opposite Parties are Shriram General Insurance Companies and are engaged in insurance business. OP 1 is a Head office and OP 2 is its branch offices. OP3 is Shriram Transport Finance Company. The complainant is engaged in self employment. In order to avail re finance on his Excavator Loaders bearing No. MH-31-CP-4534 he had approached the OP3, who agreed to advance finance of Rs. 9.65 lakh. Accordingly he and OP 3 executed an agreement on 30.4.2011. The OP 3 itself purchased insurance policy for the financed vehicle from                      the Ops 1 and  2 by  debiting  premium  amount  to  his  a/c  and

Comprehensive  policy  was  issued.  The  policy  period was from

25.4.2012 to 24.4.2013 and IDV was Rs.9.65 lakh. The OP 1 and 2 did not furnish policy certificate, schedule, and terms and conditions to him. Only the certificate of insurance was given, that too at much later date.

03.       During subsistence of policy the vehicle met with an accident on 11.8.2012 and sustained heavy loss. The incident was reported to police and also orally to the OP 2 and 3. Thereupon the OP 2 directed him to arrange for spot photographs of the damaged vehicle and thereafter to move it for repairs. A day thereafter he was told to give intimation in writing and accordingly the OP2 was re-intimated on 13.8.2012. Thereafter on 14.8.2012 he requested the OPs to arrange for survey of the vehicle. The claim was registered by the OP 1 and 2. A Surveyor Manoj Chandak was appointed to assess the loss. He visited the garage, took photographs and directed the complainant to commence repair work. The Surveyor Manoj Chandak then asked him to meet him on 16.8.2012 with all documents. When the complainant met him, he made illegal demand of 10% on assessed value. The complainant refused to agree to such demand. He apprised the OPs of such conduct of the Surveyor and further told them that he would be appointing a govt. Surveyor and his assessment would be binding on them.  Pursuant to his letter one Vijay Limaye was appointed to conduct final survey. He visited the garage on 17.8.2012 and conducted final survey. But he erroneously assessed the loss at Rs. 2,72,556/- as against total expenses               of Rs. 8,42,776/-.   The   Surveyor   Limaye  then   provided  him                             

a discharge voucher for Rs. 2,72,556/- and insisted him to sign it. Since the complainant was not satisfied with the assessment he put his signature on the voucher with an endorsement ¨without prejudice to my Rights¨. Then on 23.8.2012 the OPs 1 and 2 informed him that one Sarbjeet Tuli was appointed as a Surveyor but he had refused to conduct survey. So they appointed Manoj Chandak to whom photographs and documents were not given because of some altercations. Then one Mahajan was appointed. But most of the Surveyors did not desire to conduct survey. But contrary to this, he was never intimated about appointment of Tuli nor did he visit the garage to carry out assigned work. After repair work was done Limaye reinspected the repaired vehicle on 20.9.2012. The complainant borrowed an amount of Rs.8,42,776/- to pay for repairs and to move the vehicle out of the garage. However, the OP’s on one or other count delayed to settle his claim. The OP 3 who unilaterally purchased the policy for the vehicle from the OP 1 and 2 has benefited their business and also pocketed commission from OP 1 and 2. Hence, the OP 3 was bound to co-operate and provide all assistance to him to get his claim settled from the OP 1 and 2. But the OP 3 failed to do that and is thus guilty of deficiency in service along with the OP 1 and 2. Hence, he has prayed to direct the OP to pay him Rs. 8,42,776/-  with 18% interest from 11.8. 2012, compensation Rs.1.50 lakh and cost Rs. 25,000/-

04.       OP 1 and 2 filed reply with preliminary objections of suppression of material facts and not approaching the forum with clean hands. It is stated that he failed to take proper care of the vehicle from loss or damage and thus committed breach of condition.  The incident was intimated to the OP after 3 days. It is further stated he had approached them for policy and on payment of premium it was issued with terms and conditions. The policy schedule and bond were given to him. It is denied that no terms and conditions were provided and he never complained about that till his claim was rejected. The vehicle met with an accident but did not sustain heavy loss. It is denied that incident was immediately intimated to them. It is denied that the OP 1 directed him to arrange for spot photos. A surveyor was appointed but he did not tell him to carry out repairs. It is denied that the surveyor illegally demanded 10% of the assessed value. Letter correspondence is also denied. It is admitted that Limaye was appointed to conduct final survey and he assessed total loss at Rs.-2,72,556/-. it is denied that the Surveyor asked the complainant to sign the discharge voucher and he signed it without prejudice to his rights. It is denied that his claim was unnecessarily denied. Denying each and every allegations it is prayed to dismiss the complaint.

05.       OP 3 filed reply and admitted that it has advanced                        re-finance of Rs.-9.65 lakh on the said vehicle and accordingly agreement was executed. It is denied that the OP3 itself approached him and purchased the policy. Intimation of loss was

given to it. It is denied that it received any commission on the policy. It is also denied that it did not provide any assistance to the complainant to get the claim. Denying all other allegations, it is prayed that the complaint be dismissed.

06.       We have heard learned counsels for both the parties. Perused documents. After considering the submissions, facts, and documents, we record our findings for the following reasons.

FINDINGS  AND  REASONS

07.       The complaint is mainly defended on the ground of belated written intimation of the incident to the OP’s 1and 2. From the complaint itself it could be seen that the accident occurred on 11.8.2012 and police were informed on the same day. FIR was also registered on the same day. It is further stated that the OPs were orally informed. This is denied by the OPs. Except bare averment there is nothing to substantiate this fact. Then it is stated that after taking spot photographs, the vehicle was moved for repairs. A day thereafter the OP 2 orally directed him to report the incident in writing and in compliance of the direction he re-intimated the OP 2 by letter dated 13.8.2012. Thus there was three days delay in giving intimation of the incident to the OP’s.

08.       The counsel for the OP’s referring to the condition no.1 of the policy contended that it is mandatory to give notice in writing to the company immediately upon the occurrence of any accidental loss or damage to the insured vehicle and the policy condition has to be strictly construed. He relied on few citations.

            a)          Gayatri Devi v/s United India Insurance Co. Ltd.

                       IV (2011) CPJ 30 (NC)

            b)        National Insurance Co. Ltd. v/s Satya Devi

                       II (2011) CPJ558 (HR)        

            c)        New India Assurance Co. Ltd. v/s Trilochan Jane

                      F.A No. 321/2005 (NC) decided on 9.12.2009

            d)       Om Prakash v/s National Insurance co. Ltd.

                      III (2012) CPJ 59 (NC)

09.       The law regarding immediate intimation of the loss of insured vehicle to insurance company has been consistently laid down to the effect that any delay in intimation is fatal to claim compensation. The word ´immediate´ has been interpreted in strict sense. The occurrence of loss, theft or damage of insured vehicle has to be intimated within 24 hours or at the most next day of the occurrence. Since there was delay of three days in intimation it was a material breach of policy condition. Under such circumstances the OP 1 and 2 are not liable to indemnify the complainant for the loss.

10.       It is alleged by the complainant that he was not provided with terms and conditions of the policy and therefore he was not aware of such condition. To this allegation it is rightly submitted by learned counsel for the OPs 1 and 2 that till filing of the claim the complainant never made such grievance. That shows fallacy in his allegation. Such allegation is easy to make, but the question is why he kept silent till the time of incident. Even otherwise we do not see much substance in this allegation.

11.       Another objection is that the OP’s were not given an opportunity to inspect the damaged vehicle at the spot of accident. If the complaint is read it is to be noted that after intimating the OP’s orally, he was asked to arrange for a photographer for spot photographs and then move the vehicle for repairs. Accordingly the complainant did that, which means there was no survey of the damaged vehicle on the spot. The OP’s have denied about asking him to arrange for a photographer or moving the vehicle for repairs. Except his statement we do not find any evidence in support of his such statement. Though the complainant says that on 13 .8. 2012 he again intimated the OP’s in writing, the OP’s have denied. On the said letter                              dated- 13.8.2012 there is no endorsement of receipt. From this averments it could be gathered that the vehicle was moved from the spot before it could be inspected by the Surveyor. We do not comprehend how an insurance company would allow the damaged vehicle to be moved for repairs before making            spot inspection of it. Obviously the insurance company will first inspect  the damaged vehicle before repairs. Otherwise how extent of loss and damage would be assessed by the company ? This is serious breach on the part of the complainant that he repaired the vehicle before it could be inspected by the Surveyor.

12.       There is allegation of obtaining signature of the complainant on discharge voucher. Its copy is not filed so there is nothing to verify the fact. There is allegation of illegal demand by the Surveyor. But in our opinion it is not necessary to go into that allegations; not because it is without evidence, but it has nothing to do with repudiation of the claim. This complaint can be disposed of on two main grounds; viz. delayed intimation of occurrence and not allowing the OP’s to make spot survey of the damaged vehicle before repair was carried out. These being major

violations by the complainant we are not inclined to allow the claim. There is no ground to proceed against the OP 3, which is a financier. In the result, the complaint is liable to be dismissed. Hence, we pass the following order.

                                    ORDER

                        1.         The complaint is dismissed.

                        2.         No order as to cost.

                        3.         Copy of the order be given free of cost to both

                                 the parties.