Chandigarh

DF-I

CC/139/2015

Kulbir Singh - Complainant(s)

Versus

Tata AIG General Insurance Co. Ltd. - Opp.Party(s)

Deepak Aggarwal

14 Sep 2015

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-I,

U.T. CHANDIGARH

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Consumer Complaint No.	:	CC/139/2015
Date of Institution	:	04/03/2015
Date of Decision	:	14/09/2015

 

 

Kulbir Singh son of Shri Kunwar Singh, resident of House No.2119, Sector 15C, Chandigarh.

…..Complainant

V E R S U S

1.      Tata AIG General Insurance Company Limited, 2^nd Floor, SCO 232-234, Sector 34-A, Chandigarh through its Manager.

2.      Tata AIG General Insurance Company Limited, Registered Office, 15^th Floor, Tower A, Peninsula Business Park, Ganpatrao Kadam Marg, Lower Parel, Mumbai.

……Opposite Parties

 

 

QUORUM:	P.L.AHUJA	PRESIDENT
	SURESH KUMAR SARDANA	MEMBER

 

                                                                                       

For complainant	:	Sh. Deepak Aggarwal, Advocate
For OPs	:	Sh. Rajesh K. Sharma, Advocate.

                       

 

PER P.L.AHUJA, PRESIDENT

1.         Sh. Kulbir Singh, complainant has filed this consumer complaint under Section 12 of the Consumer Protection Act, 1986, against Tata AIG General Insurance Company Limited & another, Opposite Parties (hereinafter called the OPs), alleging that he obtained an insurance policy from the OPs for his Bolero vehicle which was effective from 20.11.2013 to 19.11.2014. 

                According to the complainant, during the validity of the insurance policy, the vehicle in question met with an accident on 6.7.2014 when it was parked. The complainant duly informed the police and a DDR dated 7.7.2014 was lodged. The complainant informed OP-1 regarding the accident and it advised him to get the same repaired from Swami Automobiles Pvt. Ltd. and that the expenditure on the same shall be paid by it. On the said assurance, the complainant got the vehicle repaired from Swami Automobiles Pvt. Ltd. and the total expenditure came to be Rs.47,093/-.  Thereafter the complainant approached the OPs to pay the claim, but, when they did not take the claim seriously, he sent a representation through email on 21.8.2014. Ultimately the complainant received a letter (Annexure C-5) from the OPs informing that they were unable to entertain the claim. Alleging that the aforesaid acts amount to deficiency in service an unfair trade practice on the part of the OPs, the complainant has filed the instant complaint.

2.         In their joint written statement, OPs have admitted that the vehicle in question was insured with them for the period in question. It has been averred that the complainant never informed the OPs regarding the alleged loss.  It has been stated that on 7.7.2014 Mr. Avtar Singh from Swami Automobiles Pvt. Ltd. reported claim on Mahindra Bolero bearing Registration No.CH-01-AX-1148.  It has been denied that the OPs asked the complainant to take the vehicle to Swami Automobiles Pvt. Ltd.  It has been averred that on receipt of intimation of claim on the vehicle in question, the OPs deputed an IRDA Licensed Surveyor to do the survey, assess the loss and collect all the relevant documents for verification and assessment of the loss/damage caused to the vehicle and also to assess the claim under the terms and conditions of the policy of insurance. It has been contended that the surveyor vide his report dated 5.8.2014 assessed the loss to the tune of Rs.48,002/-, but, recommended no claim as the damage to the vehicle was not tallying with the cause of accident described by the complainant and due to non-disclosure of facts.  The OPs on the basis of the survey report and the declaration given in the claim intimation form, repudiated the claim of the complainant/insured vide letter dated 8.8.2014.  Pleading that there is no deficiency in service or unfair trade practice on their part, OPs have prayed for dismissal of the complaint.
3.         In his replication, the complainant has controverted the stand of the OPs and reiterated his own. It has been averred that the vehicle was parked on the road for which the OPs cannot be absolved of their liability.  It has been contended that under the observation of the alleged surveyor, the OPs want to avoid the legitimate claim of the complainant
4.         The parties led evidence in support of their contentions.
5.         We have gone through the entire evidence, written arguments submitted by the OPs and heard the arguments addressed by the learned Counsel for the complainant. 
6.         Admittedly, the complainant obtained a bumper to bumper insurance policy (copy of cover note is at Annexure C-1) for his vehicle Bolero from the OPs for the period from 20.11.2013 to 19.11.2014. The said vehicle met with an accident on 6.7.2014 for which a DDR dated 7.7.2014 (Annexure C-2) was lodged. The vehicle was got repaired from Swami Automobiles Pvt. Ltd. for total expenses of Rs.47,093/- vide bill (Annexure C-3). The complainant approached the OPs for payment of the claim.  However, the OPs refused the claim vide letter dated 8.8.2014 (Annexure C-5) on the ground that there was violation of the declaration signed by the complainant.
7.         It has been urged by the learned counsel for the complainant that, in fact, some unknown vehicle had hit the vehicle of the complainant, while it was parked, and the complainant duly reported the matter to the local police.  He has contended that the OPs were not justified in repudiating the claim because the complainant had no malafide intention to raise his claim against the OPs.
8.         On the other hand, it has been contended on behalf of the OPs that Mr. Surinder Goyal, licensed surveyor inspected the vehicle at Swami Automobiles Pvt. Ltd. on 8.7.2014 and he noticed the damaged parts of the vehicle as front bumper, RHS fender, RHS headlight, front facia, FR RHS suspension, power steering rack & pinion assembly and chassis frame etc. It has been contended that as per observations of the surveyor, such extensive damage to the under carriage of the vehicle was not possible in the parking stage. It has also been contended that Mr. Surinder Goyal, licensed surveyor also visited the spot of accident alongwith the complainant on 14.7.2014 and the complainant failed to substantiate the spot and cause of accident.  It has also been submitted that the complainant had parked the vehicle on the main road whereas there was parking adjacent to the road.  It has been further contended that the complainant submitted the following declaration in the claim form :-

“I/We agree to provide additional information to the Company, if required. I/We the above named, do hereby, to the best of my/our knowledge and belief, warrant the truth of the foregoing statement in every respect, and if I/We have made, or in any further declaration the Company may require in respect of the said accident, shall make any false or fraudulent statement, or any suppression or concealment, the policy shall be void and all rights to recover thereunder in respect of past or future accidents shall be forfeited.”

It has been further averred by the OPs that vide letter dated 18.7.2014 (Annexure R-4), the comments/clarification of the complainant were sought and he replied the said letter by sending an undated letter (Annexure R-5) in which he side tracked the issue. It has been further contended that no FIR was registered regarding the accident and only a DDR was lodged, which has got no evidentiary value because no investigation was conducted. It has been further urged that there is a breach of condition in the insurance policy and the surveyor recommended no claim due to non-disclosure of facts, therefore, the claim was rightly repudiated. 

9.         We have given our thoughtful consideration to the rival contentions.  In the survey report (Annexure R-6), the surveyor has recorded that in his observation such type of extensive damage to the under carriage of the vehicle was not possible in the parking stage. However, such observation of the surveyor is not supported by any cogent reason.  The complainant had obtained a bumper to bumper policy with consumables after making payment of a premium of Rs.23,900/- to the OPs and had there been some accident in some other manner, he could have claimed the damage by narrating that manner. The complainant has clearly mentioned in his DDR, copy of which is Annexure
   C-2, lodged with the police station, Phase 8, Mohali that on 6.7.2014 on account of some domestic work, he had gone to Sector 68, Mohali and he had parked his vehicle bearing No.CH-01-AX-1148 make Bolero in front of the park of Sector 68 and some unknown person struck his vehicle with his vehicle, on account of which severe damage was caused to the various parts of his car. We are of the opinion that the version given by the complainant in the DDR inspires confidence and there is no reason to doubt its veracity.  Even the police did not find any ground to doubt this version.
10.         So far as the observation in the survey report that the vehicle was parked on the main road whereas there was parking adjacent to the road is concerned, in his undated letter (Annexure R-5), which was received by the OPs on 5.8.2014, the complainant has clearly mentioned that his vehicle got met with an accident by unidentified people on Sunday and so many vehicles were parked on that parking area. He also mentioned that most of the residential (residents?) of the surrounding areas of the park, park their vehicles in the parking site in the evening time and there was no negligence on his part. The complainant has specifically mentioned that Bolero is his third car and he knows the value of the loss. We are of the view that if the complainant parked his vehicle on Sunday on the main road, it does not mean that he was negligent.  Having regard to the non-availability of the parking spaces at the busy places in the tricity, the parking of the vehicles on one side of the road is quite common. An owner of vehicle cannot always get a covered place in the market for parking of the vehicle. There is no such evidence that parking place adjacent to the road was lying vacant when the complainant parked his vehicle on the side of the main road.  So, we do not find any negligence on the part of the complainant if he parked his vehicle on the road because there is no such observation in the survey report that the vehicle was parked in the middle of the road. 
11.         The surveyor has also observed in his report that the complainant failed to substantiate the spot and cause of accident.  It is a matter of common knowledge that when the vehicle parked by the owner meets with an accident in which extensive damage is caused, he becomes quite puzzled and unnerved.  Thus, if the complainant, when went to the scene of occurrence on 14.7.2014 with the surveyor, could not pin point the exact spot of parking, no fault can be attributed to him.  The complainant had not seen the accident with his own eyes, therefore, evidently he could not give the cause of accident to the OPs.  We do not feel that the observation of the surveyor that the complainant has not disclosed the facts and is hiding something is based on sound and valid reasons.  We are not impressed with this contention that the complainant violated the declaration signed by him in the claim form.  We find that the surveyor has given the survey report in a perfunctory manner without applying mind. The complainant submitted a bill (Annexure C-3) of repairs of an amount of Rs.47,093/- which included Rs.10,800/- as labour charges and Rs.31,073.76 as the value of the parts.  However, the surveyor in his report Annexure R-6 has assessed the amount for parts at Rs.34,159/- and amount of labour as Rs.14,100/-.  Against the net bill amount of Rs.47,093/-, the surveyor has assessed the net loss as Rs.50,001.76 and after deducting the compulsory excess of Rs.2,000/- has recommended the net indemnity to Rs.48,002/-.  In other words, the surveyor has recommended the payment of Rs.48,002/- to the complainant against Rs.47,093/- claimed by him. The manner in which the surveyor has assessed the claim amount speaks volumes about his conduct and non application of mind. The circumstances show that the report of the surveyor is not reliable. The claim of the complainant is genuine and the same has been repudiated by the OPs on flimsy grounds. 
12.         In regard to the contention that no FIR was lodged and the DDR has got no evidentiary value, a complainant can make a report to the police and it is for the police to see whether a case for registration of FIR is made out or not. A complainant cannot compel the police to register the FIR in lieu of DDR. In this case, the complainant lodged a DDR with the police and it was for the police to satisfy themselves about the genuineness of the allegations.  The police did not consider it proper to register the FIR because according to them no cognizable offence was made out.  Hence, the complainant cannot be penalized for any omission or dereliction of duty on the part of the police.
13.         For the reasons recorded above, we find that the complainant, who was having a bumper to bumper policy with consumables, was entitled to get the claim on the basis of the net bill amount of Rs.47,093/-. According to the report of the surveyor, nothing was to be deducted towards depreciation and only the compulsory excess of Rs.2,000/- was to be deducted. Hence, after deducting the compulsory excess of Rs.2,000/-, the complainant was entitled to the amount of Rs.45,093/-. Non-payment of this amount and repudiation of the claim of the complainant amounts to deficiency in service on the part of the OPs.  Consequently, the complaint is partly allowed. The OPs are directed :-

(i)     To make payment of an amount of Rs.45,093/- to the complainant alongwith interest @ 9% per annum from the date of filing of the claim till realization.

(ii)    To make payment of Rs.10,000/- to the complainant towards compensation for harassment.

(iii)   To also make payment of Rs.7,500/- to the complainant as litigation expenses. 

 

14.         This order be complied with by OPs within one month from the date of receipt of its certified copy, failing which they shall make the payment of the amounts mentioned at Sr.No.(i) & (ii) above, with interest @ 12% per annum from the date of filing of the present complaint till realization, apart from compliance of direction at Sr.No.(iii) above.
15.         The certified copies of this order be sent to the parties free of charge. The file be consigned.

	Sd/-		Sd/-
14/09/2015	[Suresh Kumar Sardana]		[P. L. Ahuja]
hg	Member		President