Delhi

North East

CC/455/2012

Mohd. Ilyas Malik - Complainant(s)

Versus

The Management of M/s Race Honda - Opp.Party(s)

23 Jan 2020

ORDER

 DISTRICT CONSUMER DISPUTES REDRESSAL FORUM: NORTH-EAST

GOVT. OF NCT OF DELHI

D.C. OFFICE COMPLEX, BUNKAR VIHAR, NAND NAGRI, DELHI-93

 

Complaint Case No. 455/12

 

In the matter of:

 

	Mohd Iliyas Malik S/o Sh Ramjan Malik R/o B-18, B-Block, New Seelampur Delhi-110053.	Complainant
	Versus
1.         2.	The Management of M/s Race Honda 32, Patparganj Industrial Area Delhi-110092.   ICICI Lombard General Insurance Narain Manzil 3rd Floor Barakhamba Road, New Delhi-110001.	Opposite Parties

 

DATE OF INSTITUTION:       JUDGMENT RESERVED ON:               DATE OF DECISION      :

27.11.2012 23.01.2020 23.01.2020

 

 

N.K. Sharma, President

Ms. Sonica Mehrotra, Member

 

Order passed by Ms. Sonica Mehrotra, Member

 

ORDER

1. Briefly stated, grievance of the complainant as narrated in the present complaint is that he, being the owner of Scooty Honda Activa bearing Registration No. DL-13-SL-3027 purchased by him from OP1 on 18.11.2008 for sum of Rs. 48,370/- got                  the same insured through OP1 with OP2 vide policy  No. 3005/2010592724/0000000875 w.e.f. 12.09.2011 to 11.09.2012 for a total IDV of Rs. 42,073/- against payment of premium of Rs. 1172/- made to OP2. The subject vehicle met with an accident in first week of September 2011 due to which it got damaged and was submitted at the workshop of OP1 for estimating the damage claim. However, despite several visits made by complainant to OP2’s office, it failed to give any estimate of claim without any valid reason and misbehaved with complainant in its office on 25.09.2012 and finally vide repudiation letter dated 05.10.2012, it declined the entire claim for reason of misrepresentation of facts relating to date of loss and damages of vehicle old and accumulated. The complainant has submitted that neither were the vehicle loss misrepresented nor damages thereof were old and instead blame the OPs for having kept the vehicle in workshop unrepaired causing its bad condition. The OP2 also charged Rs. 1502/- as premium of renewal of policy for the period 2012 to 2013 without giving the pending claim. Complainant averred that the claim was raised within valid insurance period despite which the OP2 declined approval of claim and therefore OP2 is liable to pay the IDV of vehicle with penalty and interest from date of accident / date of intimation. Lastly, complainant got served legal notice dated 16.10.2014 on OPs through his counsel despite receipt of which, OP2 neither paid any heed to the complainant nor handed over the vehicle causing per day loss of Rs. 500/ to the complainant. Therefore, vide the present complaint the complainant alleging deficiency of service and breach of contract against OPs prayed for issuance of directions against OPs to grant him compensation of double the value of vehicle and Rs. 500/- per day loss from date of surrender of vehicle till realization alongwith interest @ 24% p.a. thereon.

Complainant has attached copy of purchase invoice, copy of policy certificate for the period 2011 to 2012 w.e.f. 12.09.2011 to 11.09.2012 alongwith Personal Protect Policy w.e.f. 13.09.2011 to 12.09.2012, copy of RC, Copy of gate pass issued by OP1 dated 08.09.2012, copy of receipt No. 0970 dated 08.09.2012 issued by OP1 for insurance renewal premium of Rs. 1502/- received from complainant, copy of repudiation letter dated 05.10.2012, copy of renewal certificate cum policy schedule w.e.f. 12.09.2012 to 11.09.2013 alongwith Personal Protect Policy and copy of legal notice dated 16.10.2012 alongwith courier AWB.

2. Notice were issued to the OPs on 02.01.2013 with observation that the complainant has not filed/lodged FIR with regard to the accident in which the vehicle was involved. OP2 entered appearance an filed written statement vide which it took the preliminary objection of no deficiency of service on its part since the complainant has himself deliberately not filed the estimate/ bill for alleged repair which would have shown that the alleged damaged were old and accumulated and did not correlate with the alleged date of accident and has failed to show the value of loss alleged by him and is instead seeking double the value of insured vehicle without any basis. OP2 took the defence that the alleged loss is clearly out of period of insurance coverage since the alleged accident as per the complainant took place between 01.09.2011 to 07.09.2011 whereas the insurance cover admittedly commenced from 12.09.2011 and in addition the complainant has also failed to state the location, extent or nature of alleged damage. OP2 urged that on inspection of the damaged vehicle, the damages find thereon were old and accumulated and not payable under contract of insurance in addition to the alleged date of accident falling outside the purview of period of contract of insurance. Lastly OP2 defended the renewal of the policy by submitting that the complainant paid the premium thereof upon receipt of which it was renewed. Therefore, OP2 prayed for dismissal of the complaint as per terms and conditions of the policy and the date of accident not falling within the policy period, OP2 was not liable to pay any claim outside insurance period. 
3. Rejoinder in rebuttal to defence taken by OP2 was filed by the complainant in which he submitted that the date of accident was within the policy period and the vehicle was still lying at the workshop of OP1 but due to malafide and negligent intension of OPs, the justified claim has not been paid due to deficiency of service and OPs being liable to repair the subject vehicle and pay the damage claim thereof. Complainant denied taking any advantage of latches as he immediately reported the loss and damages to the OPs and the vehicle has been lying there ever since.
4. OP1 filed its written statement  in which it resisted the complaint on grounds that as per the complainant’s own case, the vehicle met with an accident in September 2011 and insurance claim was filed in September 2012 with OP2 which was not approved by it and therefore OP1 has no role or concerned in the process of insurance claim since complainant had independent / separate contract with OP2 and no cause of action arose against OP1 which should be deleted from the array of parties for mis-joinder therein. On merits OP1 took the defence that when the complainant brought the subject vehicle to OP1’s workshop for accidental repairs on 08.09.2012, OP1 opened the job card No. 14555 on the said date and immediately prepared an estimate vide estimate No. 489 dated 10.09.2012 for repair work required and survey to be done by OP2 but the surveyor of OP2, after inspecting the said vehicle declared it as case of No Claim. OP1 urged that the complainant had himself filled up the reason of repairs and details of alleged accident on the claim form on basis of which surveyor of OP2 inspected the vehicle and OP1 defended itself by submitting that it had promptly prepared the estimate to enable its survey and submitted that No Claim or correspondence has ever been made by complainant with it in respect of the accident claim which is evident annexure enclosed with the complaint. Lastly OP1, while admitting that the subject vehicle is lying of its workshop, denied any sufferance by complainant since it is OP1 which is suffering to keep the subject vehicle in its workshop and engaging its valuable space due to failure on the part of complainant to pay the amount required for repair work since OP1 is neither concerned is preparation of claim nor its finalization and the subject vehicle has not yet been taken back by the complainant resulting in business losses of OP1. Therefore, OP1 prayed for dismissal of complaint on the defence so taken. OP1 has attached copy of jobsheet dated 08.09.2012 and estimate dated 10.09.2012.
5. Evidence by way of affidavit was filed by the complainant reiterating his grievance and exhibited documents relied upon as Ex-CW1/1 to CW1/7.
6. Evidence by way of affidavit was filed by OP2 exhibiting the motor survey report dated 06.11.2012 by its surveyor, loss assessor with recommendation to close the file as No Claim alongwith copy of photographs of the accidental vehicle and copy of estimate dated 10.09.2012 issued by OP1 with endorsement of surveyor thereon as “No Claim Old Damages. Cause of loss not match”.
7. Evidence by way of affidavit was filed by OP1 exhibiting the jobcard as OP1 W1/1.
8. Written arguments were filed by all the parties in reassertion / reemphasis of their respective grievance / defence.
9. In hearing held on 10.10.2019, complainant submitted that OP1 no longer exists on last known address since he was directed to furnish his fresh address vide order dated 28.05.2018 since notice to OP1 had been received back with postal remarks ‘No such Person Found on given address’ and left premises. However in view of settled law passed by Hon'ble Supreme Court in Catena of judgments,  when a notice is returned with postal endorsement ‘Refused’ or ‘Not available in the house’ or ‘House locked’ or ‘Shop closed’ or ‘Addressee not in Station’, due service has to be presumed. Therefore notice to OP1 is deemed served.  
10.  We have heard the arguments addressed by OP2 and have given our anxious consideration to the documents placed on record by all sides.

This Forum had observed that the complainant neither filed / lodged any FIR pertaining to the alleged date of accident nor filed copies of bills in respect of both, the complainant stated that he is not in possession of the same.

It is a clear admission on the part of complainant that the date of accident was first week of September 2011 and as per documents attached by him, the policy coverage with OP2 commenced from 12.09.2011 to 11.09.2012 and the jobcard issued by OP1 was dated 08.09.2012 after a month of which, the claim was repudiated by OP2 vide letter dated 05.10.2012. The jobsheet and estimate placed on record by OP1 are dated 08.09.2012 and 10.09.2012 respectively. These documents make it evident that there is a discrepancy/ difference of a year between the alleged date of accident September 2011 and the date on which the vehicle was brought for accidental damaged repair by complainant to OP1’s workshop September 2012. Moreover, no FIR has been placed on record by the complainant pertaining to the accident coupled with the facts that the alleged date of accident is prior to the insurance coverage. The Hon'ble National Commission in Ravi Shankar Jaiswal Vs New India Assurance Co. Ltd IV (2018) CPJ 326 (NC) held in a similar case where no FIR was filed in the matter that it was difficult to clearly established the date of accident. Hon'ble National Commission further observed that the complainant has not produced any communication from surveyor or insurance Company giving rise to suspicion regarding genuinity of the claim and factum of accident and dismissed the Revision Petition filed by the complainant against orders of Hon’ble SCDRC U.P.

In the present case not only is there no FIR but also the alleged date of accident does not fall within the insurance coverage period. After due appreciation of facts and law, we dismiss the present complaint as false and vexatious under Section 26 of Consumer Protection Act with cost of Rs. 2,000/- on the complainant to be deposited with Consumer Legal Aid for misusing legal machinery and wasting valuable judicial time.

11.  Let a copy of this order be sent to each party free of cost as per regulation 21 of the Consumer Protection Regulations, 2005.
12.   File be consigned to record room.
13.   Announced on  23.01.2020

 

(N.K. Sharma)     President

(Sonica Mehrotra)  Member