Haryana

Karnal

CC/165/2022

Ashish Kharbanda - Complainant(s)

Versus

The Chola MS General Insurance Company Limited - Opp.Party(s)

Ashok Kumar Arora

02 Aug 2024

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, KARNAL.

 

                                                        Complaint No. 165 of 2022

                                                        Date of instt.28.03.2022

                                                        Date of Decision:02.08.2024

 

Ashish Kharbanda aged 35 years son of Shri Gokal Chand, E-8, Subhash Gate, Karnal. Mobile no.98134 10075.

 

                                               …….Complainant.

                                              Versus

 

1. The Chola MS General Insurance Co. Ltd. through its authorized representative, SCO 334, Basement Mugal Canal Market, Karnal-132001.
2. The Chola MS General Insurance Co. Ltd. through its authorized representative, 7^th floor, Tower-A, no.5 DLF phase no.III, DLF Cyber City, Gurgaon-122002.
3. The Chola MS General Insurance Co. Ltd., through its authorized representative, SCO 2463-64, 2^nd floor, Sector 22C, Chandigarh-160022.
4. The Chola MS General Insurance Co. Ltd. through its authorized representative, 2^nd floor, Dare House, 2 NSC Bose Road, Chennai 600 001.
5. Monga motors, through its authorized representative (authorized dealers, Royal Enfield motorcycle and spares), Namaste Chowk, Old G.T. Road, Karnal 132 001.

 

                                                                    …..Opposite Parties.

 

Complaint under Section 35 of Consumer Protection Act, 2019.

 

Before   Shri Jaswant Singh……President.     

      Shri Vineet Kaushik…….Member

      Ms. Sarvjeet Kaur .…..Member

 

 Argued by: Shri Ashok Kumar, counsel for the complainant.

                   Shri Naveen Khetarpal, counsel for the OPs no.1 to 4.

                   OP no.5 exparte, vide order dated 04.03.2024.

 

                     (Jaswant Singh, President)

ORDER:   

                

                The complainant has filed the present complaint under Section 35 of the Consumer Protection Act, 2019 against the opposite parties (hereinafter referred to as ‘OPs’) on the averments that complainant had obtained cashless insurance policy from the OPs no.1 to 4 at Karnal bearing no.3410/00558569/000/00, effective from 05.11.2021 to 04.11.2022 for the insurance of his vehicle (make Royal Enfield Motors India Ltd.) bearing registration no.HR-05-AN-0101 through OP no.5, who represented itself to be the authorized agent of OPs no.1 to 4. At the time of issuance of the policy, the vehicle in question was physically checked/inspected/examined by OP no.5 and employees of OPs no.1 to 4 and after satisfying with regard to the condition of the vehicle in all respect, the OPs issued the insurance policy. On 01.01.2022 at about 11.30 a.m./12.00 noon, the complainant was coming back while driving the aforesaid vehicle from sector-4, to his house situated inside Subhash Gate, Karnal and at about 11.30 a.m./12.00 noon, when he reached near playground, petrol pump of sector-4, Karnal, he saw a calf standing on the road. In order to save the calf, balance of the vehicle gone out of control and struck against a stone lying nearby and the bike fell in the pothole dug there.  As a result of which, the vehicle of complainant was badly damaged. After the accident, the vehicle was taken to OP no.5, on 03.01.2022, OP no.5 duly informed the OPs no.1 to 4 regarding the abovesaid accident and factum of vehicle being lying in showroom of OP no.5. On receipt of information from OP no.5, OPs no.1 to 4 deputed an investigating team which had investigated the matter.  The investigating team took the complainant to the place of accident on 19.01.2022, inspected the spot and also took photographs of the spot as well as of the damaged vehicle and further recorded the statement of the complainant with regard to the manner of accident in question. At that time, the investigating team after satisfying itself with regard to the manner of accident told the complainant that no further document is required to be submitted to the insurance company and also assured to the complainant that claim with regard to the accident in question shall be passed in his favour. Thereafter, complainant received a letter dated 10.02.2022 whereby the OPs informed that they recommended for repudiation on misrepresentation of facts, alleged damaged are found old and rusted and no documentary proof or the date of loss and no spot photographs provided by insured, alleged cause of loss was not justified. In reply to the said letter, complainant informed the OPs vide his letter dated 15.02.2022 that there is no misrepresentation of facts in the matter in question. The parts of the vehicle were the same at the time of accident and in the same condition, which were at the time of taking insurance policy of the vehicle in question. Complainant waited sufficiently for response of the OPs and it seems that the OPs were not interested to get repaired/changed the damaged parts of the vehicle. Complainant obtained estimate for the damaged parts of the vehicle, which comes to Rs.38212/- . Thereafter, OP no.5 issued a service estimate for an amount of Rs.29,540/- in respect of the repair/change of the damaged parts of the insured vehicle. Thereafter, complainant requested the OPs for settlement of the claim but since the OPs did not give any satisfactory reply.  Then in the compelling circumstances, complainant sent a legal notice dated 28.02.2022 to the OPs but it also did not yield any result. In this way there is deficiency in service and unfair trade practice on the part of the OPs. Hence this complaint.

2.             On notice, OPs appeared and filed its written version, raising preliminary objections with regard to maintainability; premature and concealment of true and material facts. On merits, it is pleaded that the insured availed a policy no.3379/01592126/000/00, valid from 05.11.2021 to 04.11.2022. As per version of complainant on 01.01.2022 insured vehicle met with an accident in order to save the calf, balance of insured vehicle gone out of control and struck against a stone near playground petrol pump of sector 4 Karnal, when complainant coming back to his house. Complainant obtained estimate for the repair/change of the parts of his damaged vehicle which comes to Rs.38212/-. After receiving the delayed intimation of two days from complainant an independent investigator namely Ritansh Kharbanda was deputed to investigate the matter and verify the facts. Said investigator after collection of documents, statement of witness, visit to spot and verifying the facts, submitted his detailed report. As per his report claim of the complainant is not maintainable by Final Conclusion in the following manner:-

“Date, Time, Place, Nature and Cause of accident was not confirmed, as the damages are not coinciding with the nature and cause of accident and also the damages are found old, rusted and No Documentary proof of the date of loss or any spot photographs was provided to us by insured till date and also as per the Google timeline of insured/driver, we found no clue that he was at the spot at the time of accident reported, mis-representation is observed……..”

 

        Thereafter, OPs sent letter dated 10.02.2022 to insured for recommended for repudiation on misrepresentation of facts, dates are found old, rusted and no documentary proof of the date of loss and no spot photographs provided by insured, cause of loss not justified. Seven days period was given to insured to provide logical documentary evidence in this regard but insured neither replied the letter, nor provided documents, then left with no option claim of the complainant is repudiated, vide letter dated 24.02.2022 because “There has been deliberate and willful misrepresentation on insured part regarding the cause of loss, as the damages to the vehicle are not one arising out of an accident as represented by insured. The dates of the vehicle are not corroborating with cause of loss.”, which constitute gross violation of terms and conditions of the policy also. There is no deficiency in service and unfair trade practice on the part of the OPs. The other allegations made in the complaint have been denied and prayed for dismissal of the complaint.

3.             OP no.5 filed its separate written version stating therein that we have received one vehicle no. HR-05-AN-0101 in an accident, which is in the name of Ashish Kharbanda . The claim for this accidental bike was to be given by Chola MS General Insurance Company but for some reasons the said claim was not passed by the insurance company and thereafter on the asking of the complainant, the said bike was repaired on cash basis. The Monga Motors has nothing to do with the insurance company.

4.             Parties then led their respective evidence.

5.             Learned counsel for complainant has tendered into evidence affidavit of complainant Ex.CW1/A, copy of estimate Ex.C1, copy of letter dated 10.02.2022 Ex.C2, copy of letter dated 15.02.2022 Ex.C3, copy of legal notice Ex.C4, postal receipt Ex.C5, copy of letter dated 24.02.2022 Ex.C6, copy of insurance policy Ex.C7, copy of estimate/bill dated 25.03.2022 Ex.C8, copy of letter dated 09.04.2022 Ex.C9, copy of RC Ex.C10, photographs of damaged vehicle Ex.C11 to Ex.C17 and closed the evidence on 10.11.2022 by suffering separate statement.

6.             On the other hand, learned counsel for the OPs no.1 to 4 has tendered into evidence affidavit of Sunil Gupta, Legal Manager Ex.RW1/A, affidavit of Ritansh Kharbanda Ex.RW2/A, copy of affidavit of Jagdeep Singh Ex.RW3/A, copy of Motor Final Survey Report Ex.R1, copy of investigation report two wheeler Ex.R2, copy of letter dated 10.02.2022 Ex.R3, copy of letter dated 24.02.2022 Ex.R4, copy of insurance policy Ex.R5 and closed the evidence on 19.04.2024 by suffering separate statement.

7.             OP no.5 has tendered no evidence. On 04.03.2024 neither none has appeared on behalf of OP no.5 nor tendered his evidence and the position remained the same last five adjourned dates. Hence, OP no.5 was proceeded against exparte, vide order dated 04.03.2024 of the Commission.

8.             We have heard the learned counsel for the parties and perused the case file carefully and have also gone through the evidence led by the parties.

9.             Learned counsel for complainant, while reiterating the contents of the complaint, has vehemently argued that complainant got insured his vehicle with the OPs no.1 to 4 under cashless policy. On 01.01.2022, the said vehicle met with an accident and was badly damaged. After the accident, the vehicle was taken to the workshop of OP no.5. The intimation was given to OPs no.1 to 4.  Complainant lodged the claim with the OPs and submitted all the required documents but OPs did not pay any heed to the request of complainant and repudiated the claim of complainant, vide letter dated 10.02.2022 on the false and frivolous grounds and lastly prayed for allowing the complaint.

10.           Learned counsel for OPs no.1 to 4, while reiterating the contents of the written version, has vehemently argued that on receipt of intimation, an independent investigator namely Ritansh Kharbanda was deputed to investigate the matter and verify the facts and as per his report the claim was recommended for repudiation on the ground of misrepresentation of facts, and lastly prayed for dismissal of the complaint.

11.           We have duly considered the rival contentions of the parties.

12.           Admittedly, complainant got insured his motorcycle with the OPs. It is also admitted that the Insured Declared Value (IDV) of the vehicle was Rs.68214/-. It is also admitted that make of the vehicle in question was 2014 model.

13.           The claim of the complainant has been repudiated by the OPs, vide repudiation letter Ex.R4 dated 24.02.2022 on the ground that the damaged vehicle are found to be old and rusted, thus claim has been repudiated on the ground of misrepresentation.

14.           The claim of the complainant has been repudiated by the OPs on the abovesaid ground. The onus to prove their case was relied upon the OPs. To prove their case, OPs have tendered affidavit of Sunil Gupta, Legal Manager Ex.RW1/A, affidavit of Ritansh Kharbanda, Investigator Ex.RW2/A, photocopy of affidavit of Jagdeep Singh Surveyor Ex.RW3/A, copy of Motor Final Survey Report Ex.R1, copy of investigation report Ex.R2, copy of letter dated 10.02.2022 Ex.R3, copy of letter dated 24.02.2022 Ex.R4, copy of insurance policy Ex.R5 and photographs of the vehicle tendered by the complainant Ex.C11 to C17. On perusal of the aforesaid evidence,  documents and photographs, it has been proved that the accident is old one and not occurred as alleged by the complainant.

15.           Thus, as a sequel to abovesaid discussion, the present complaint is devoid of merits and same deserves to be dismissed and same is hereby dismissed. No order as to costs. The parties concerned be communicated of the order accordingly and the file be consigned to the record room after due compliance.

Announced

Dated:02.08.2024                                                                    

                                                                President,

                                                   District Consumer Disputes

                                                   Redressal Commission, Karnal.

 

(Vineet Kaushik)                (Sarvjeet Kaur)    

                     Member                           Member