Order by:

Sh.Mohinder Singh Brar, Member

1.       The complainant has filed the instant complaint under section 35 of the Consumer Protection Act, 2019 stating that complainant is owner of car Verna bearing no.PB-76B-7900 make Hyundai Motors India Pvt. Ltd. and the same was duly insured with Opposite Party No.1, vide policy no.HFH29548 for the period 17.11.2021 to 16.11.2024 which includes premium of own damage from the period 17.11.2021 to 16.11.2022 and period of liability cover and period of CPA cover from 17.11.2021 to 16.11.2024. Alleged that said vehicle was financed by the IndusInd Bank and the loan has to be paid for the period 23.11.2021 to 15.10.2026. On 09.09.2022, the above said vehicle demanded by one of the friend of complainant namely Rajinder Singh son of Sh.Karnail Singh for the purpose of going to attend the Shagun Ceremony at Nawan Shahr and being a close friend, the complainant handed over the said insured car to his friend Rajinder Singh. On 09.09.2022 said Rajinder Singh along-with his family members going to Nawan Shahr and when they reached on Laddowal flyover, Ludhiana then the said car fallen from the said bridge due to that fall, all the occupants got injuries and the wife of said Rajinder Singh, his mother and Pinkpreet Singh died on the spot and the friend of complainant namely Rajinder Singh suffered serious injuries regarding which he was also admitted in the hospital and discharged on 16.09.2022 and after discharge, on his statement a DDR No. 17 Dt.22.09.2022 police got registered with Police Commissionerate P.S. Laddowal. Due to the said accident the vehicle of complainant was totally damaged and in this regard the complainant immediately gave intimation to opposite party no.2 who further appointed the loss assessor and surveyor i.e. opposite party no.3 after registered the claim vide claim no.CM535332 and the vehicle was physically inspected and damages were noted and necessary photographs were taken on the workshop of M/S Brar Motors Pvt. Ltd., Moga to whom the said vehicle was given for the purpose of repairing on the instructions of Opposite Parties. Alleged that even after completing all the formalities and after taking all the documents from complainant as well as from M/S Brar Motors PVt. Ltd. the claim has not been decided. Moreover, the vehicle of complainant was come under total loss and the labour charges of the said vehicle was estimated by the said Brar Motors to the extent of Rs.9,98,729/- and the copy of said estimate was also handed over by complainant to the opposite party no.3. Alleged further that on 22.11.2022 the complainant received a letter cum reminder from Opposite Party No.3, in which, they demanded the driving license of Mr. Pinkpreet Singh on the basis of a DDR. No.44 Dt.09-09-2022 as alleged in the said application. The said letter was duly replied by the complainant through registered post 12.12.2022 explained the facts that DDR.no. 44 as mentioned above, if any, was entered on the basis of false and frivolous facts and the same was not lodged on the correct facts, infact the Rapat no.17 Dt. 22.09.2022 was entered on the basis of correct facts and also attach the copy of said report with the reply to the letter Dt. 20.11.2022 along with the copy of driving license of said Rajinder Singh. On 15.12.2022 the second reminder was received by the complainant then again complainant gave reply to the said letter Dt.15-12-2022 on 03-01-2023 through registered post to the opposite party no.3 but again no further response has been received by the complainant. Alleged further that the complainant has already fulfilled all the formalities and submitted all the documents but till today the opposite party no. 2 on behalf of opposite party no.1 has not decided the claim of complainant. Alleged further that as per the policy the car was for the insured declared value Rs.11,66,591/- and the vehicle of the complainant is covered under the said IDV. Complainant also issued a registered legal notice to the opposite parties vide registered post Dt. 06-03-2023, but no response has been received by the complainant. Due to such act and conduct of Opposite Parties, the complainant has suffered mental tension and harassment. Hence, this complaint. Vide instant complaint, the complainant has sought the following reliefs:-

a)       Opposite Parties may be directed to pay an amount of Rs.9,98,729/- i.e. the accidental repair charges of the insured vehicle

b)      To pay Rs.5,00,000/- as compensation on account of mental torture and agony.

c)       And any other relief which this Commission may deem fit and proper be granted to the complainant in the interest of justice and equity.

2.       Opposite Parties No.1 & 2 appeared through counsel and contested the complaint by filing written reply taking preliminary objections therein inter alia that there is no deficiency of service on the part of answering Opposite Parties; the complainant has approached this Commission with unclean hands; the present complaint does not raise any consumer dispute against Opposite Parties as defined under Consumer Protection Act; this Commission has no jurisdiction to entertain the present complaint. Averred that the complainant approached the answering Opposite Parties to purchase a Future Secure Private Car policy in the year 2021. Accordingly, the Answering Opposite Party issued the Policy Schedule bearing no. HFH29458 in favor of the Complainant for the Insured Vehicle being a Hyundai Verna CRDI MT SX having registration number as PB-76B-7900 having chassis no. MALC841FLMM304981 and Engine No. D4FAMM416755 for the period 17.11.2021 to 16.11.2022 (for own damage claim) and 16.11.2024 (for liability cover and CPA Cover). Averred that the answering Opposite Parties thereafter received a claim form by the complainant herein intimating the Answering Opposite Parties about the damage suffered by the Insured vehicle and also that the friend of the Complainant i.e. Rajinder Singh and his mother, wife and another person namely Pinkpreet Singh were heavily injured and everyone except Rajinder Singh succumbed to their injuries. In light of the same the complainant was seeking the insured amount. On receipt of such claim, the answering Opposite Parties appointed a Surveyor in order to conduct the survey and investigation of the claim. During the investigation, it was observed that the claim intimation was made with a delay of 21 days. The answering Opposite Parties were intimated on 01.10.2022 and as per the records available and furnished by the Complainant itself, the date of loss was recorded as 09.09.2022. Such delay in intimation is in contravention of condition no.1 of the policy terms and conditions. Further it was also observed that there was another DDR registered on 09.09.2022 for the said accident wherein it was stated that Mr Pinkpreet Singh was driving the insured vehicle. However, as per the DDR submitted by the complainant during the claim stated that the insured vehicle was being driven by Rajinder Singh. Therefore, in order to ascertain the correct facts and to make sure that the claim was valid, the following documents were requested from the Complainant i.e. Driving License of Pinkpreet Singh;  KYC Form along with Pan Card, Aadhar Card, Address Proof within 6 months; Vehicle Financier details/NOC (if any). The answering opposite Parties had communicated the aforementioned discrepancies to the complainant vide letters dated 14.12.2022 and 22.12.2022 and therefore given ample opportunities to the complainant in order to provide clarification and additional documents, however the complainant failed to comply with such directions and reminders. In pursuance of the same, a closure letter dated 28.12.2022 was sent to the complainant intimating the complainant that due to the non-receipt of the requested documents, which were imperative for the fulfillment of the claim and also due to the delay in intimation being contrary to condition no.1 of the Policy contracts, the Claim was closed as No-Claim. Averred further that a legal notice dated 04.03.2023 was received by the answering opposite parties from the complainant which was duly replied by them, vide letter dated 04.04.2023. In parawise reply, all other allegations made in the complaint are denied and a prayer for dismissal of the complaint is made.

3.       Upon service of notice, none appeared on behalf of Opposite Party No.3, hence Opposite Party No.3 was proceeded against exparte.

4.       In order to prove his case, the complainant has placed on record his affidavit Ex.C1 alongwith copies of documents Ex.C2 to Ex.C13 and affidavit of Sh.Rajinder Singh s/o Karnail Singh as Ex.C13, affidavit of Sh.Mandeep Singh s/o Rajinder Singh as Ex.C14 .

5.       On the other hand, Opposite Parties has placed on record affidavit of Smt.Mohini Suryawanshi, Senior Executive Legal, Future Generali India Insurance Company as Ex.OP1/A alongwith copies of documents Ex.OP1 to OP9.

6.         We have heard the ld. counsel for both the parties and also gone through the record.

7.       The case of the complainant is that he is owner of car ‘Verna’ bearing registration no.PB-76B-7900 make Hyundai and the same was duly insured with Opposite Party No.1, vide policy no.HFH29548 for the period 17.11.2021 to 16.11.2024 which includes premium of own damage from the period 17.11.2021 to 16.11.2022 and period of liability cover and period of CPA cover from 17.11.2021 to 16.11.2024. The said vehicle was financed by the IndusInd Bank. On 09.09.2022 one friend of the complainant namely Rajinder Singh son of Sh.Karnail Singh demanded the said vehicle for the purpose of going to attend the Shagun Ceremony at Nawan Shahr and being a close friend, the complainant handed over the said car to his friend. On 09.09.2022 said Rajinder Singh along-with his family members going to Nawan Shahr and when they reached on Laddowal flyover, Ludhiana then the said car fallen from the said bridge due to which all the occupants got injuries and the wife of said Rajinder Singh, his mother and Pinkpreet Singh was died at the spot and the friend of complainant namely Rajinder Singh suffered serious injuries regarding which he was also admitted in the hospital and discharged on 16.09.2022 and after discharge, on his statement a DDR No. 17 dated 22.09.2022 was registered with Police Commissionerate P.S. Laddowal. Due to the said accident the vehicle of complainant was totally damaged and in this regard the complainant immediately gave intimation to opposite party no.2 who further appointed Opposite Party No.3 as loss assessor and surveyor and the vehicle was physically inspected and damages were noted and necessary photographs were taken on the workshop of M/S Brar Motors Pvt. Ltd., Moga to whom the said vehicle was given for repair. The vehicle of complainant was come under total loss and the labour charges of the said vehicle was estimated by the said Brar Motors to the extent of Rs.9,98,729/-. Contended that on 22.11.2022, the complainant received a letter cum reminder from Opposite Party No.3, in which, they demanded the driving license of Mr. Pinkpreet Singh on the basis of a DDR. No.44 Dt.09-09-2022. The said letter was duly replied by the complainant through registered post 12.12.2022 explained the facts that DDR.no. 44 as mentioned above was entered on the basis of false and frivolous facts and the same was not lodged on the correct facts, infact the Rapat no.17 Dt. 22.09.2022 was entered on the basis of correct facts. On 15.12.2022 another reminder letter was received by the complainant, then again complainant gave reply to the said letter on 03.01.2023 through registered post. Contended that despite completing all the formalities and despite submitting all the documents, Opposite Parties No.1 & 2 failed to settle the claim of the complainant.

8.       On the other hand, ld. counsel for Opposite Parties No.1 & 2 contended that Opposite Parties No.1 & 2 received a claim form intimating them about the damage suffered by the insured vehicle. On receipt of such claim, Opposite Parties No.1 & 2 appointed a Surveyor in order to conduct the survey and investigation of the claim. During the investigation, it was observed that the claim intimation was made with a delay of 21 days. The Opposite Parties No.1 & 2 were intimated on 01.10.2022 and as per the record furnished by the complainant itself, the date of loss was recorded as 09.09.2022. Such delay in intimation is in contravention of condition no.1 of the policy terms and conditions. Further it was also observed that there was another DDR registered on 09.09.2022 for the said accident wherein it was stated that Mr Pinkpreet Singh was driving the insured vehicle. However, as per the DDR submitted by the complainant the insured vehicle was being driven by Rajinder Singh. Therefore, in order to ascertain the correct facts and to make sure that the claim was valid some documents were requested from the complainant i.e. Driving License of Pinkpreet Singh;  KYC Form along with Pan Card, Aadhar Card, Address Proof within 6 months; Vehicle Financier details/NOC (if any) and the opposite parties No.1 & 2 communicated the aforementioned discrepancies to the complainant vide letters dated 14.12.2022 and 22.12.2022, but the complainant failed to comply with such directions and reminders. In pursuance of the same, a closure letter dated 28.12.2022 was sent to the complainant intimating him that due to the non-receipt of the requested documents and also due to delay in intimation, the claim was closed as ‘No-Claim’.

9.       We have considered the rival contentions of ld. counsel for the parties and also gone through the record. The main contention raised by ld. counsel for the Opposite Parties No.1 & 2 is that there are discrepancies in DDR got recorded on 09.09.2022 by Mandeep Singh son of the Rajinder Singh and DDR got recorded by Rajinder Singh on 22.09.2022.

10.     In our considered opinion, the second DDR which was lodged by Rajinder Singh is believable, who was occupant at the time of accident, but the DDR got registered by Mandeep Singh son of Rajinder Singh cannot considered to be true as he was not the occupant in the said accidental car. Further in this regard Mandeep Singh son of Rajinder Singh also filed an affidavit before this Commission stating that the said DDR was not recorded by him as he was not in a condition to record the same. The relevant para of the affidavit is reproduced as under:-

“the said DDR was not recorded by me as I was not in a condition to record the same as my mother, father and grandmother were seriously got injured in the said accident and out of which my mother and grandmother and Pinkpreet Singh died at the spot, so I came under shock and did not recorded any DDR and the DDR No.44 is based upon false facts, as the police officials got the signatures of the deponent on the blank papers regarding the formalities of the accident.”

Further Rajinder Singh (occupant) also filed his affidavit before this Commission stating that at the time of accident, the car in question was being driven by him. The relevant para of the affidavit is reproduced as under:-

“I have lodged a DDR No.17 Dt. 22.09.2022 at Police Station, Ladduwal, Ludhiana and the same has been based upon true and correct facts and on the day of accident I had taken the car of my friend Joginder Singh bearing No.PB-76B-7900 and the said car was driven by me and the said car was met with an accident.”

So, in these circumstances, the DDR got registered by Rajinder Singh (occupant) on 22.09.2022 is considered to be true.

11.     Further the contention raised by the Opposite Parties No.1 & 2 is not genuine for the reason that the complainant alleged in this complaint that his friend Rajinder Singh demanded the car in question for going to attend the Shagun Ceremony at Nawan Shahr and being a close friend, the complainant handed over the said insured car to his friend Rajinder Singh. In our considered view, the complainant handed over the car in question to his friend after seeing his valid driving license and if the said Rajinder Singh further gave the said car to Pinkpreet Singh for driving, then what is the fault/negligence on the part of the complainant. Moreover besides DDR, there is no any cogent evidence on record showing that at the time of accident Pinkpreet Singh was driving the car. In the absence of any cogent and convincing evidence, it cannot be said that Pinkpreet Singh was driving the car at the time of said accident. So, in these circumstances, the demand of documents raised by Opposite Parties No.1 & 2, vide letter dated 12.12.2022, 22.12.2022, 28.12.2022 and 04.04.2023 is also not maintainable.

12.     The second objection raised by Opposite Parties is that there is a delay of 21 days in intimating the Opposite Parties, which in our opinion is also not maintainable, as in the alleged accident wife and mother of Rajinder Singh (occupant) died, so he was busy in funeral/cremation of his wife and mother. Moreover, in this regard, the IRDA also issued circular to the Insurance Companies that the genuine claim be not rejected on hyper technical grounds i.e. delay, which is reproduced as under:-

“INSURANCE REGULATORY AND DEVELOPMENT   AUTHORITY

Ref. IRDA/HLTH/MISC/CIR/216/09/2011 Dated:20.09.2011 CIRCULAR

To All life insurers and non-life insurers.

Re: Delay in claim intimation/documents submission with respect to

i.         All life insurance contracts and  ii. All Non-life individual and group insurance contracts.

The Authority has been receiving several complaints that claims are being rejected on the ground of delayed submission of intimation and documents.

The current contractual obligation imposing the condition that the claims shall be intimated to the insurer with prescribed documents within a specified number of days is necessary for insurers for effecting various post claim activities like investigation, loss assessment, provisioning, claim settlement etc.  However, this condition should not prevent settlement of genuine claims, particularly when there is delay in intimation or in submission of documents due to unavoidable circumstances.  

The insurer’s decision to reject a claim shall be based on sound logic and valid grounds.  It may be noted that such limitation clause does not work in isolation and is not absolute.  One needs to see the merits and good spirit of the clause, without compromising on bad claims.  Rejection of claims on purely technical grounds in a mechanical fashion will result in policyholders losing confidence in the insurance industry, giving rise to excessive litigation.

So, the second objection raised by the Opposite Parties that there is a delay in intimation of claim is not maintainable.

13.     Vide instant complaint, the complainant claimed the amount of Rs.9,98,729/- as accidental repair charges of the vehicle in question. However, perusal of the record reveals that no repair bill of the vehicle in question is produced on record by the complainant. Complainant has placed on record one invoice of Brar Automotive (Ex.C8), in which, accidental repair charges are mentioned as Rs.998729/-, but there is no proof on record showing that the vehicle in question got repaired or not. However, perusal of para no.6 of legal notice (Ex.C11) reveals that vehicle was not repaired. The para no.6 of the legal notice is reproduced as under:-

“That My client has already fulfilled all the formalities and submitted all the documents but till today the noticee no.2 on behalf of noticee no.1 has not decided the claim of my client due to which my client suffers irreparable loss and the vehicle of my client is still in his possession without any repair and he suffered a huge loss due to the no repair of his vehicle and also suffered a rental charges for the stationed of the said damaged vehicle regarding which my client has sufficient proof.”

Perusal of the record further reveals that surveyor duly appointed by Opposite Parties has not assessed the loss of the vehicle in question. In these circumstances, we are of the concerted view that as the vehicle in question fell down from the bridge and in the said accident three occupants out of four died at the spot, so the vehicle in question is presumed to be totally damaged. But however, as there is no any cogent and convincing evidence on record showing the vehicle in question got repaired or not as well no assessment being done by the Opposite Parties qua the estimated loss of the vehicle in question, so the amount as claimed by the complainant cannot be awarded.

14.     In view of the discussion above, the present complaint is allowed in part, as the claim is genuine. Hence, Opposite Parties are directed to assess the loss of the vehicle in question as per the documents already submitted by complainant including the Driving License and affidavit of  Rajinder Singh and affidavit of Mandeep Singh s/o Rajinder Singh and to settle the claim of the complainant accordingly. Further Opposite Parties are directed to pay compository cost of Rs.20,000/-(Rupees Twenty Thousand only) as compensation and litigation expenses to complainant. The pending application(s), if any also stands disposed of. The compliance of this order be made by the Opposite Parties within 30 days from the date of receipt of copy of this order, failing which, the Opposite Parties are further burdened with additional cost of Rs.10,000/- (Rupees Ten Thousand only) to be paid to the complainant for non compliance of the order. Copies of the order be furnished to the parties free of costs. File is ordered to be consigned to the record room.

Announced on Open Commission