Haryana

Yamunanagar

CC/185/2012

Rajbir S/o Jai Pal Singh - Complainant(s)

Versus

The Divisional Manager,Cholamandalam MS General Insurance Comapny, Ltd. - Opp.Party(s)

J.S. kler

29 Mar 2017

ORDER

BEFORE THE PRESIDENT DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, YAMUNA NAGAR AT JAGADHRI.

                                                                                                Complaint No.185 of 2012.

                                                                                                Date of institution: 22.02.2012

                                                                                                Date of decision: 29.03.2017

Rajbir aged about 42 years son of Sh. Jai Pal Singh resident of village Jaidhari, Tehsil Chhachhrauli, District Yamuna Nagar.

                                                                                                                     …Complainant.

                                    Versus

The Divisional Manager, Cholamandalam Ms. General Insurance Company Ltd., SCO No. 2453-56, Sector-22, Chandigarh.                                                                                                                                                                                                   

                                                                                                                     …Respondent.

BEFORE:      SH. ASHOK KUMAR GARG, PRESIDENT.

                       SH. S.C.SHARMA, MEMBER.

 

Present: Sh.  Manvir Singh Kler, Advocate, counsel for complainant.

               Sh. Rajiv Gupta, Advocate, counsel for respondent

 

ORDER  (ASHOK KUMAR GARG PRESIDENT)

 

1.                        Complainant Rajbir has filed the present complaint under section 12 of the Consumer Protection 1986 praying therein that the respondent (hereinafter referred as OP Insurance Company) be directed to make the payment of Rs. 48512/- alongwith interest on account of damages to his JCB Machine alongwith compensation and litigation expenses.

2.                     Brief facts of the present complaint, as alleged by the complainant, are that the complainant is a registered owner of JCB Machine bearing registration No. HR-58A-1475 which was insured with the OP insurance company vide insurance policy No. 3380/00318334/000/01 valid from 22.12.2010 to 21.12.2011 for a sum insured of Rs. 16,98,329/-( Annexure C-1). On 04.04.2011, the abovesaid JCB was standing on high way at Jagadhri-Ponta Road near Khizrabad, unfortunately the jeck road (Jeck of Bochat) and front part of the said machine was broken badly by some vehicle. On the same day i.e. on 04.05.2011, the complainant had sent intimation in this regard and on the next day i.e. on 05.05.2011, the surveyor Mr. M.L. Garg of the Op Insurance Company reached at the spot and made spot inspection and had also taken photographs of the said machine and had advised the complainant to get the said machine repaired and further assured that they will pay the repair charges to him. As per advise of the surveyor, the complainant got repaired the same from Krishan Automobiles, Opp. Anaj Mandi, Khizrabad and paid all the repair charges vide Bill No. 3526 dated 06.05.2011. Complainant again got insured the said JCB machine and paid the next installment of the premium amount as per the contract of three years. Thereafter, the complainant several time approached the OP Insurance Company and requested to make the payment of Rs. 48,512/- of the repair bill of the said JCB Machine but of OP Insurance Company linger on the matter on one pretext or the other. Thereafter, the complainant got issued a registered AD legal notice dated 03.08.2011 through his counsel but despite legal notice, the OP Insurance Company did not comply with the same. Hence, this complaint.  

3.                     Upon notice, OP Insurance Company appeared and filed its written statement by taking some preliminary objections such as complaint is not maintainable, no negligence or deficiency in service on the part of OP. In this case an intimation was received by the Op Insurance Company that one JCB Machine bearing registration No. HR-58A-1475 met with an accident on 04.04.2011 and on receipt of the said intimation, the OP Insurance Company immediately deputed Sh. M.L. Garg, Surveyor and Loss Assessor to survey and assess the loss. The said surveyor conducted the survey on 05.04.2011 at M/s Krishna Automobiles, Khizrabad and after inspection found that there was no accidental impact on the above said JCB. The said surveyor further observed that had a truck hit in the back side of the JCB machine, the other parts of the JCB Machine must have been damaged due to accidental impact but the surveyor observed that the damages present on the said JCB Machine do not coincide with the history of the accident and the damages present on the vehicle were due to General wear and tear. However, the said surveyor assessed the loss on repair basis to the tune of Rs. 18,580.90 vide his report dated 11.06.2011 subject to terms and conditions of the insurance policy. On receipt of the said report, the claim of the complainant was further processed and OP Company found that the claim of the complainant is not covered under the terms and conditions of the insurance policy. It has been further alleged that the loss or damages to the insured vehicle is covered, if the damages have been caused by accidental external means as per section 1(vi) of the insurance policy condition. Further, as per Section 1(2-A) of the terms and conditions of the Insurance Policy, consequential loss wear and tear, depreciation etc. is not covered under the terms and conditions of the insurance policy. Hence, it was found by the OP Insurance Company that no claim is payable to the complainant under the claim in question and the same was repudiated vide letter dated 23.08.2011 and on merit controverted the plea taken in the complaint and reiterated the stand taken in the preliminary objections and lastly, prayed for dismissal of complaint.

4.                     To prove the case, complainant tendered into evidence affidavit of complainant as Annexure CX and documents such as Photo copy of insurance policy as Annexure C-1, Photo copy of insurance cover note as Annexure C-2, Photo copy of claim repudiation letter dated 23.08.2011 as Annexure C-3, Photo copy of registered AD legal notice dated 03.08.2011 as Annexure C-4, Photo copy of quotation of Krishna Automobiles as Annexure C-5, Photo copy of receipts of Krishna Automobiles as Annexure C-6 and C-7, Insurance policy as Annexure C-8, Acknowledgement as Annexure C-9 and closed his evidence..

5.                     On the other hand, counsel for the OP Insurance Company tendered into evidence affidavit of Sh. M.L.Garg, Surveyor & Loss Assessor as Annexure RW/A and documents such as Photo copy of insurance policy as Annexure R-1, Photo copy of Surveyor report as Annexure R-2, Photo copy of repudiation letter dated 23.08.2011 as Annexure R-3 and closed the evidence on behalf of OP Insurance Company.

6.                     We have heard the learned counsel for both the parties and have gone through the pleadings as well as documents placed on file very minutely and carefully. The counsel for the complainant reiterated the averments mentioned in the complaint and prayed for its acceptance whereas the counsel for OP Insurance Company reiterated the averments made in the reply and prayed for dismissal of complaint.

7.                     It is not disputed that the complainant is registered owner of JCB Machine bearing registration no. HR-58A-1475 which was insured with the OP Insurance Company vide its policy No. 3380/00318334/000/01 valid from 22.12.2010 to 21.12.2011 (Annexure C-1). It is also not disputed that on intimation a surveyor was deputed by the OP Insurance Company who submitted his report dated 30.01.2010 (Annexure R-2).

8.                     The only plea of OP Insurance Company is that the complainant has misrepresented the facts in respect of alleged accident and damages observed in the JCB Machine were not accidental in nature and quite not in accordance with the history of said accident. Learned counsel for the OP argued that the investigator has categorically pointed out that the cause of accident narrated in claim form does not match with the nature and extent of damage present. As per claim form the insured JCB Machine was standing on the edge of the road. Suddenly a rear coming truck got hit in the back of the insured’s standing JCB Machine and ran away whereas after inspection, piston rod of bucket ram was found broken due to general wear and tear. There was no accidental impact on the abovesaid JCB Machine. If a truck hits in the back side of the JCB Machine, the other parts of the JCB Machine must have been damaged due to accidental impact but no accidental impact was observed during the inspection. Learned counsel for the Op Insurance Company further argued that the damages present on the vehicle are due to general wear and tear and the damages present on the abovesaid vehicle do not coincide with the history of accident. Lastly, argued that as per terms and conditions of the Insurance policy alleged loss of the vehicle in question was not covered under the policy hence the claim of the complainant has been rightly repudiated vide letter dated 23.08.2011 (Annexure R-3).

9.                     On the other hand, learned counsel for the complainant argued at length that genuine claim of the complainant has been wrongly repudiated by Insurance Company and tried his best to mould the fact that due to accident many parts of the JCB Machine were damaged but the contention of the complainant counsel is not tenable because normally, documents do not speak lie but men may do so, as complainant has miserably failed to prove any accident by way of cogent documentary evidence i.e. DDR or FIR. Even, the complainant neither filed affidavit of anyone who was present at the time of alleged accident nor has filed any spot photographs of the alleged accident. We have minutely perused the bills of repairs (Annexure C-5) and surveyor report (Annexure R-2), from which it is evident that the damages were only tube, piston rod and opening and fitting of the JCB Machine in question which were not accidental in nature and quite not in accordance with the history of alleged accident. Complainant failed to file any mechanic/expert report to controvert the version of the Insurance Company, hence, the plea of the OP Insurance Company and opinion of the surveyor seems reasonable. Onus to prove the accidental damages was upon the complainant but he has totally failed to do. Case law referred by the counsel for the complainant titled as National Insurance Company Limited & Another Versus Munni Lal Yadav, 2000(2) CPC page 715 (U.P) is not disputed but applicable to the facts of the present case as in that case insured jeep was met with an accident and FIR was also lodged. Some passengers had received injuries but the insurance company repudiated the claim on the ground of overloading of the passengers in the said jeep but in the present case alleged damages has been claimed in respect of accidental damages of JCB machine. 

10                    After going through the above noted circumstances, terms and conditions, as the complainant has totally failed to prove that JCB Machine in question met with accident and the damages were due to accident external means and further failed to file any mechanic/expert report that the damages were not due to wears and tears, overloading, we are of the considered view that the complainant has miserably failed to prove his case. Thus, there is no deficiency in service on the part of OP Insurance Company and the claim of the complainant has rightly been repudiated by the OP Insurance Company vide letter dated 23.08.2011 (Annexure R-3.)

11                    Resultantly, we find no merit in the present complaint and the same is hereby dismissed with no order as to costs. Copies of this order be sent to the parties concerned free of costs as per rules. File be consigned to the record room after due compliance.

Announced in open court. 29.03.2017.          

 

                                                                                    (ASHOK KUMAR GARG)

                                                                                    PRESIDENT,

                                                                                    DCDRF, YAMUNANAGAR

                                    (S.C.SHARMA )

                                     MEMBER