Haryana

StateCommission

A/1365/2017

CHOLAMANDALAM MS GEN.INSURANCE CO. - Complainant(s)

Versus

SURENDER SINGH AND ANOTHER - Opp.Party(s)

RAJNEESH MALHOTRA

06 Mar 2020

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION HARYANA, PANCHKULA

 

First Appeal No.1365 of 2017

Date of Institution:13.11.2017

Date of decision:06.03.2020

 

1.      M/s Cholamandalam MS General Insurance Co. Ltd., Ist Floor, Plot No.6, Near Metro Pillar No.18, Pusa Road, Karol Bagh, New Delhi-110005.

 

2.      M/s Cholamandalam MS General Insurance Co. Ltd. 2^nd Floor, Laxmi Vila, E-52, Chitranjan Marg, Jaipur-302001

…Appellants

Versus

 

1.      Surender Singh S/o Roop Chand, R/o Village Sarai Bahadur, Tehsil Narnaul, Distt. Mahendergarh, Haryana.

 

2.      M/s Mahindra & Mahindra Finance Service Ltd., Branch, Opposite D.C.Residence Narnaul through its Branch Manager.

 

…Respondents

 

CORAM:   Mr.Harnam Singh Thakur, Judicial Member.
                   Mrs. Manjula, Member.

 

Present:-    Mr.Rajneesh Malhotra, Advocate for the appellants.

                   Ms.Bhawna Grewal, Advocate for the respondent No.1.

                   Respondent No.2 already ex parte vide order dated 14.05.2018.

 

                                      O R D E R

 

HARNAM SINGH THAKUR, JUDICIAL MEMBER:

 

 

There is a delay of 16 days in filing the appeal, on the grounds mentioned in the application for condonation of delay and in the interest of justice, delay of 16 days is allowed.

2.      The appeal has been preferred against the order dated 07.09.2017 passed by the District Consumer Disputes Redressal Forum, Narnaul (in short ‘District Forum’) vide which the complaint was partly allowed and directed the opposite party Nos.1 and 2 to pay Rs.4,90,000/- as IDV of the vehicle in question after deducting Rs.500/- on account of compulsory deduction subject to handing over the salvage/damaged vehicle in question and NOC from the financer. The complainant was also directed to get the RC cancelled from the Registering Authority  and submit letter with the OPs-insurance company. Further, O.P.- Nos.1 and 2 Insurance Company were also directed to pay Rs.2200/- as compensation as well as litigation expenses.

3.      The brief facts giving rise to the complaint are that he (complainant) was registered owner of vehicle Xylo bearing Regd. No. HR-66-9990.  The O.P.No.3 financed the vehicle in question for a sum of Rs.3,75,000/-, the interest was fixed for Rs.1,15,320/-. The entire loan amount was repayable in 36 monthly installment of Rs.13,630/- each. The vehicle in question was insured with O.P. No.1 and O.P.No.2. The insurance was valid from 18.11.2015 to 17.11.2016 for an IDV of Rs.4,90,000/-.  Unfortunately on 25.08.2016, the vehicle met with an accident and vehicle in question was totally burnt.  DDR was lodged with the police on 29.08.2016.  He informed OP No.1 and 2 and surveyor and loss assessor Sh.Pawan Kumar Sharma appointed, who inspected the vehicle and submitted his report.  The claim was lodged by the complainant, but, O.P.Nos.1 and 2 have not paid the IDV of the vehicle.  Thus there was deficiency in service on the part of the O.Ps.

4.      Upon notice,  opposite party Nos.1 and 2 (now appellants) filed joint written statement taking some preliminary objections such as maintainability of complaint, accruing cause of action and concealment of true facts.  It has further been submitted that upon receipt of intimation regarding loss from the complainant/insured, the matter was investigated by the investigation agency to determine the exact cause of fire to the captioned vehicle.  Surveyor was appointed, who observed that the fire has not been caused by any mechanical/combustion failure, electric short circuit or by struck against tree.  It was observed that insured vehicle was intentionally set on fire.   All the doors were closed and diesel tank was open. The complainant has violated the terms and conditions No.1 and 8 of the insurance policy. The loss of vehicle had occurred due to deliberate act of the complainant. On merits, all the contents of the complaint were controverted and reiterated the stand taken in the preliminary objections and prayed for dismissal of the complaint as the claim of the complainant has been rightly repudiated by the O.Ps.-Insurance company. There was no deficiency in service on the part of the O.Ps.

5.      O.P.No.3 (now respondent No.2) filed separate written statement and alleged that complainant applied for re-financing the vehicle  to it and an amount of Rs.3,75,000/- was financed and upon it interest was fixed as Rs.1,15,320/- and loan amount was repayable in 36 monthly installments of Rs.13,620/- each.  It was admitted that insurance was done by Vijay Kumar an employee of O.P.No.3 at Branch Office, Narnaul.  Thus there was no deficiency in service on the part of the answering O.P.

6.      After hearing both the parties, District Consumer Disputes Redressal Forum, Narual (In short “District Forum”) partly allowed the complaint vide impugned order dated 07.09.2017 and granted relief is mentioned in para No.2 of the order.

7.      Feeling aggrieved therefrom, O.P. Nos.1 and 2 have preferred this appeal.

8.      The arguments have been advanced by Mr.Rajneesh Malhotra, the learned counsel for the appellants as well as Ms. Bhawna Grewal, the learned counsel for the respondent No.1. With their kind assistance the entire record of the learned District Forum as well as appellate file had also been properly perused and examined.

9.      During the course of arguments, it is contended by the learned counsel for the appellants that learned District Forum has wrongly allowed the complaint, whereas complainant-respondent No.1 tried to alter the material facts and have intentionally damaged the vehicle in question to take the benefit out of insurance.  The complainant has violated the terms and conditions No.1 and 8 of the insurance policy in question by delay in sending intimation to the insurance company about the fire incident and also suppressing of the material facts.

10.    It is further argued by the  learned counsel for the appellant that learned District Forum has failed to take into consideration the investigation report of the surveyor in which he has observed that  fire has not been caused by any mechanical/combustion failure, electric short circuit or by struck against tree and it was observed that the insured vehicle was intentionally set on fire as all the doors were closed and diesel tank of the vehicle was open.  The terms and conditions of the insurance policy are of “utmost good faith” and thus respondent No.1-complainant is not entitled to  any relief.  In support of the arguments, learned counsel placed reliance upon opinion of Hon’ble Supreme Court in Ravneet Singh Bagga Vs. M/s KLM Royaql Dutch Airlines, 1999 (4) RCR (Civil) 690 and opinion of Honb’le National Commission in National Insurance Co. ltd. Vs. Yodeva Synthetic Private Ltd. IV (2006) CPJ 210. Hence, it is submitted by learned counsel for the appellants that impugned order passed by learned District forum be set aside while accepting the appeal.

11.    On the other hand, it is contended by learned counsel for the complainant-respondent No.1 that there is no illegality in the impugned order passed by the learned District Forum. There is no violation of the terms and conditions Nos.1 and 8 of the insurance policy as there is no delay in intimating the appellants-insurance company about the incident and there is no suppression of material facts.

12.    It is further argued by learned counsel for the complainant-respondent No.1 that surveyor report cannot be taken into consideration because the report of the surveyor is sketchy, without explaining the reason for alleged setting of fire by complainant himself or any other interested person.  Hence, it is submitted by learned counsel for the complainant-respondent No.1 that appeal is without merits and liable to be dismissed.

13.    Having heard learned counsel for the parties and careful perusal of the evidence available on the record of the District Forum and above cited judgements before us by learned counsel for the appellants, we are of the considered view that there is no illegality or infirmity in the impugned order passed by the learned District Forum. At the outset, it is alleged that there is violation of terms and conditions No.1 and 8 of the insurance policy, but, this argument of learned counsel for the appellants is not much convincing because there was no delay in reporting the accident to appellants-insurance company.  Perusal of facts reveals that accident took place on 25.08.2016 at about 08.30 pm and appellants-insurance company was informed on 26.08.2016, there is only delay of about 15 hours, which cannot be said to be a culpable delay. In the authorities Ravneet Singh Bagga Vs. M/s KLM Royal Dutch Airlines and National Insurance Co. ltd. Vs. Yodeva Synthetic Private Ltd. (supra) relied upon by learned counsel for the appellants are distinguishable as there was  a delay of  three and half months in one case and similar in other, but, not so in the present case.

14.    Similarly, there is no violation of  terms and condition No.8 of the insurance policy as alleged because there is no suppression of facts.  It is alleged that complainant-respondent No.1 himself or any other interested person set the vehicle at fire but this  allegations is without any substance because report of surveyor investigator Ex.C-5 is itself sketchy and cannot be relied upon because no reason has been explained as to why the complainant/interested person could have set the vehicle at fire.  Moreso, closing of doors and opening of diesel tank do not amount to setting the vehicle at fire either by complainant or at the instance by some other person unless and until some cogent evidence is led.  In support of the allegations, mere assertion or report of surveyor without any reasoning cannot be relied upon.

15.    In view of the above, we do not find any illegality in the impugned order passed by the learned District Forum.  No interference is warranted for.  Hence, there is no merit in the appeal, therefore, the same is dismissed.

16.    Statutory amount of Rs.25,000/- deposited by the opposite party No.1 and 2-appellants while filing the appeal shall be disbursed in favour of the respondent No.1-complainant-Surender Singh against proper receipt and identification subject to decision of the appeal/revision, if any.

 

06th  March, 2020   Manjula                                 Harnam Singh Thakur                                                      Member                                 Judicial Member                            

 

 

S.K

(Pvt. Secy.)