Before the District Consumer Disputes Redressal Commission, Rohtak.
Complaint No. : 200.
Instituted on : 29.03.2017
Decided on : 27.07.2022.
Ms. Rinki, aged 28 years daughter of Sh. Jagbir Singh, resident of village Baiyapur, Sonepat-131001.
………..Complainant.
Vs.
- The Managing Director, Srishti Hyundai, Opp. New Power House, Jind bye Pass road, Rohtak-124001.
- The Manager/concerned Officer, HDFC Ergo General Insurance Co. Ltd. Andheri-Kurla Road, Andheri(East) Mumbai-400059.
- Sh. Naveen Munjal, Claim Officer, SCO No.124-125, Ist Floor Madhya Marg, Sector-8C, Chandigarh-160009.
……….Opposite parties.
COMPLAINT U/S 12 OF CONSUMER PROTECTION ACT,1986.
BEFORE: SH.NAGENDER SINGH KADIAN, PRESIDENT.
MS. TRIPTI PANNU, MEMBER.
DR. SHYAM LAL, MEMBER
Present: Smt. Bhim Kaur Chillar, Advocate for the complainant.
Shri Naveen Chaudhary, Advocate for the opposite party no.1.
Shri Gulshan Chawla, Advocate for the opposite party no.2.
Opposite party no.3 already exparte.
ORDER
NAGENDER SINGH KADIAN, PRESIDENT:
1. Brief facts of the case are that complainant is the registered owner of vehicle bearing No.HR-11F-8900 got insured with respondent no.2 for the period of one year i.e. from 31.8.2016 to 30.8.2017, vide policy no.2311 2014 8547 4900 000 dated 31.08.2016. The value of the car was assessed by surveyor of respondents as Rs.9,50,000/-. The vehicle in question met with an accident on 16.10.2016 and he took his vehicle to respondent no.1. i.e. service centre on 17.10.2016. The officer of respondent no.1 intimated the respondent no.2 that the above said vehicle comes in the category of total loss. It is also averred that the officer of the respondent company demanded the consent letter from the complainant for selling the above said vehicle and for this purpose, the company sent a consent letter dated 16.11.2016 and a letter dated 3.12.2016 to the complainant, which is to be typed on stamp paper of Rs.100/-, the same was sent by the complainant in the prescribed manner, which was suggested by the respondents. The complainant gave her consent for selling the vehicle in question to the company and the company sold the said vehicle for Rs.3,62,000/- to some Pankaj Kumar. The complainant requested the officers of the company several times to settle the claim but they did not pay any heed to the genuine request of the complainant. Ultimately on 09.02.2017, the respondent no.2 sent a denial letter to the complainant by saying that the vehicle in question was earlier insured from Bharti Axa GIC Ltd. and took claim under cash loss and the damages in the current claim are identical to the damages claimed from Bharti Axa GIC Ltd. Hence, the act on the part of respondents is illegal and amounts to deficiency in service. Hence, this complaint and the complainant has prayed for directing the respondents to pay the amount of Rs.5,88,000/- alongwith interest @ 18% p.a. from the date of accident till its realization and also to pay an amount of Rs.2,00,000/- on account of harassment, Rs.22,000/- on account of counsel fee and Rs.5,000/- as litigation expenses to the complainant.
2. After registration of complaint, notices were issued to the opposite parties. Opposite party No.1 in its reply has submitted that the complainant is registered owner of vehicle no.HR11F-8900. It is admitted that the complainant took her car to the answering respondent on 17.10.2016. It is denied that the answering respondent intimated the respondent no.2 or intimated that the above said vehicle comes in the category of total loss. It is also submitted that the alleged insurance policy is a contract between the complainant and respondent no.2 with which the answering respondent has nothing to do. The answering respondents are not liable to pay amount to the complaint. It is prayed that complaint may kindly be dismissed with costs.
3. Opposite party No. 2 in its reply has submitted that the vehicle in question was met with an accident on 16.10.2016 and intimation about the same was reported to the respondent on 17.10.2016. The vehicle was insured with this insurance company for the period from 31.8.2016 to 30.8.2017, vide policy no.2311201485474900000 in the name of Mrs. Rinki, subject to the provision of IMT and policy conditions. The copy of policy alongwith the terms and conditions was supplied to the insured at the time of taking the policy, which was never disputed by the insured. It is also submitted that the loss was intimated to this insurance company on 17.10.2016, where thereafter surveyor namely, IAR insurance Surveyors and Loss Assessors (P) Ltd., who is IRDAI approved surveyor and loss assessor, was duly appointed, in order to assess loss and damages, who after the minute survey of the insured vehicle submitted his report. It is also submitted that after scrutinization of the surveyor’s report, the answering opposite party was enlighten with the fact that the complainant had claimed for the same damages from the previous insurer, i.e. Bharti Axa GIG Ltd. The surveyor’s report clearly mentioned the facts that “the damages claimed by the insured are identical to the damages claimed under cash loss from previous insurer (Bharti Axa GIG Ltd) vide claim no.C1050538 for the loss dated 8.6.2016. All the other contents of the complaint were stated to be wrong and denied and opposite party No. 2 prayed for dismissal of complaint with cost. However, OP No.3 did not appear despite service. As such OP No.3 was proceeded against exparte vide order dated 15.5.2017 of this Forum(now Commission).
4. Ld. counsel for the complainant has tendered affidavit Ex.CW1/A, documents Ex.CW1 to Ex.CW4 and closed his evidence on dated 26.9.2017. Complainant also tendered affidavit Ex.CW5 on dated 25.2.2019. Ld. Counsel for OP No.1 has tendered affidavit Ex.RW1/A and closed his evidence on dated 10.1.2018. Ld. Counsel for the OP No. 2 has tendered affidavit Ex.RW2/A and documents Ex.R1 to Ex.R11 and a copy of claim file was tendered in evidence as Ex.R12 by the officer of opposite parties on dated 07.12.2018 and thereafter evidence of opposite party No.2 was closed by the order dated 7.2.2020 of this Commission.
5. We have heard learned counsel for the parties and have gone through material aspects of the case very carefully.
6. As per the complainant, her vehicle was insured with the respondent no.2 and the same met with an accident on 16.10.2016 and he took his vehicle to respondent no.1. i.e. service centre on 17.10.2016. The officer of respondent no.1 intimated the respondent no.2 that the above said vehicle comes in the category of total loss. On the demand of officials of opposite parties, complainant has given her consent letter for selling the above said vehicle to the company and the company sold the said vehicle for Rs.3,62,000/-. The complainant requested the opposite parties for payment of remaining claim but the same was denied by the opposite party no.2 on the ground that vehicle in question was earlier insured from Bharti Axa GIC Ltd. and the complainant had taken claim under cash loss from the previous insurer vide claim No..C1050538 for the loss dated 08.06.2016.
7. In this case Vikas, the owner of Dhanu Motors workshop appeared before this Commission and submitted his affidavit as Ex.CW5 on dated 25.02.2019. Thereafter on dated 19.08.2019 the respondent counsel moved an application for summoning the witness Vikas Proprietor of Dhanu Motors Workshop. He was duly summoned as per procedure but the workshop was not found. Thereafter on dated 20.02.2020 the complainant counsel made a statement without oath that summoned witness proprietor of Dhanu Motors Workshop’s correct address was not found, because he has closed the earlier shop and his mobile number was also switched off. So the witness Vikas proprietor of Dhanu motors could not be examined further.
8. Counsel of the respondent company moved an application for cross examination of the complainant. The complainant appeared before this Commission and cross examination of complainant Ritika was conducted at length. In the present complaint the complainant specifically pleaded in para no.3 of the complaint that the respondent official demanded a consent letter from the complainant for selling of damaged vehicle. The complainant submitted his consent letter on dated 16.11.2016 and he further submitted an undertaking written on stamp paper of Rs.100/-. After that insurance company sold the vehicle of the complainant to one Pankaj Kumar for a consideration of Rs.362000/- and through this complaint, the complainant demanded the remaining IDV of Rs.588000/-(Total IDV Rs.950000/-). The written statement filed by the respondent. The reply of para no.3 of the complaint on merits is as under:- “It is wrong and denied that total loss vehicle has been sold by answering respondent, as alleged. It is submitted that the contents of preliminary objections may be read as reply to the present para and the same are not repeated herewith for the sake of brevity and repetition”. The insurance company has not specifically replied the para no.3 of the complaint and the adverse inference goes against the respondent insurance company. Moreover if the vehicle has not been sold by the insurance company, in that situation they can produce the witness/document before this Commission to prove the fact that the vehicle has not been sold with the consent of the insurance company or by the insurance company.
9. We have minutely perused the survey report placed on record by the respondent officials as Ex.R2. This report has been prepared by IAR insurance surveyor and loss assessor private ltd. and same has been submitted with the insurance company. In this report it has not been mentioned anywhere that whether the damages are of fresh in nature or old one. The surveyor and loss assessor is a technical person and he can easily observe that whether the vehicle has been damaged a long time back or the damages are fresh in nature, but the surveyor has not gave any expert opinion about the damages. It is a settled principle, when an old vehicle, repaired vehicle or policy lapsed vehicle was insured by the insurance company, at that time a survey report has been prepared by the company officials or by any other agency. Prior to issue the report, a technical person obtains the tracing of engine No., Chassis No. and photographs of the vehicle. In the present case the respondent insurance company failed to place on record any survey report or photographs which were taken by the agent/inspecting official of the insurance company at the time of insurance of the vehicle.
10. If the agent did the insurance of the damaged vehicle fraudulently, in that condition, what legal steps have been taken by the insurance company against the agent. Whether any complaint has been lodged by the insurance company against the agent or whether the insurance company cancelled the license of the agent for issuing the insurance policy fraudulently, but insurance company failed to place on record any document to prove the fact that the agent did the fraudulent act and they penalize the guilty agent/person/agency.
11. We have also minutely perused the document Ex.R1 an insurance policy issued by the respondent to the complainant on dated 30.08.2016 and the policy period is 31.08.2016 to 30.08.2017. In this policy no claim bonus has not been given to the complainant after considering the fact that the policy was issued as a fresh and add on coverage was also given under the head Zero Dep. and extra premium is also taken.
12. After considering the facts and circumstances of the case, it cannot be established that the vehicle was in damaged condition at the time of insurance. The main contention of the insurance company is that repair bills have not been placed on record by the complainant. Merely non production of bills do not prove that the vehicle has not been repaired. Affidavit Ex.CW5 has been placed on record to the effect that Vikas proprietor of Dhanu Motors has repaired the vehicle of the complainant. Evidence regarding repair has been established prior to issuance of 2nd policy. No document has been placed on record by the insurance company to prove the fact that the insurance has been taken fraudulently or any agent or any other person was involved. As per our opinion a fresh policy has been issued after due verification by insurance company and after taking survey report and photographs. Vehicle has been sold with the consent of company. After selling the vehicle the insurance company raised a fresh objection that vehicle was damaged in the month of June 2016 and the damages are old one. This objection cannot be raised at this stage and the insurance company cannot deny the remaining IDV i.e. Rs.588000/-
13. In view of the facts and circumstances of the case we hereby allow the complaint and direct the opposite party No.2 to pay Rs.588000/-(Rupees five lac eighty eight thousand only) alongwith interest @ 9% p.a. from the date of filing the present complaint i.e.29.03.2017 till its realization and shall also pay Rs.10000/-(Rupees ten 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.
14. 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:
27.07.2022.
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Nagender Singh Kadian, President
………………………………..
Tripti Pannu, Member.
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Shyam Lal, Member.
