This is a case filed by the complainant u/s 35 of C.P Act 2019. The prayer of the complainant according to the complainant petition is as under.

• That the complainant is the owner of a vehicle namely XYLO D2 BS4, Mahindra and Mahindra, Class of vehicle Omni bus (Private use) vide Registration no. WB 72 H 7189 and which was duly insured with the HDFC EGRO General Insurance Company Limited/ Opposite party for the period from 21/02/2019 to 20/02/2020 vide POLICY NO. 2311 2026 6195 5300 000.
• That unfortunately the above mentioned vehicle of the complainant met an accident on 28/06/2019 and the said vehicle got damaged on the said accident and the complainant in order to get the insurance claim reported the loss with the O.P./Insurance company on 29/06/2019 vide claim no. C 230019146140
• That at the time of accident the complainant was driving the vehicle which was clearly mentioned by the complainant in the claim form and he also submitted his Driving License and other relevant information/document which was asked by the Claim Surveyor and waited with good hope that company will take initiative to settle damage claim but suddenly company sent another surveyor/authorized person on behalf of the company namely Soumya Bose with contact number 8777023740 and the said Mr. Bose completely misguided your complainant and told the complainant to put his signature on some papers and also told to submit the driving license of his regular driver which will help to settle the matter more smoothly. He also told the complainant that his driving license would be black listed if he did not provide his driver's driving license. The complainant in good faith and being influenced by the words of Mr. Bose has submitted the driving license of his driver.
• That in this regard the opposite party/ insurance company sent one letter to the complainant on 12/09/2019 and the complainant replied the same stating inter-alia about the fact that the said surveyor misguided the complainant and took some of his signature over papers and the driving license of his driver. After then no communication was made from the end of the opposite party/ insurance company and on 30/10/2019 one letter was sent to the complainant stating all the vague and baseless statements and also declaring the claim of the complainant as no-claim in the records of the opposite party/ insurance company.

• That the complainant states that the above mentioned vehicle of the complainant met an accident on 28/06/2020 and the said vehicle got damaged on the said accident and the complainant in order to get the insurance claim reported the loss with the O.P./ Insurance company on 29/06/2019 vide claim not € 2300 19146140 and when the complainant after elapsing of several months did not get any fruitful answer/result from the end of the company to settle his claim, he gave reminder to the company of said claim but the company under misconception of fact have register the said reminder as another claim, vide claim no. C 230019305435, without settled the actual claim of the complainant for damage of vehicle of the complainant which was gross negligence on the part of the opposite party/ company.
• That the letter dated 30/10/2019 sent by the opposite party/ insurance company to the complainant was very unfortunate response from a responsible insurance company, who without observing whole facts and only with the intention to repudiate the claim of the complainant, have sent the same with ulterior motive and intention and which seems to be gross negligent to provide service as well gross deficiency on the part of the company in processing the claim on the part of the opposite pat insurance company.
• That the complainant finding no other alternative and being prejudiced by the act of the opposite party/insurance company on 09/12/2019 sent legal notice to the concerned authorities of the comp stating inert-alia and also asking to settle his claim but to no effect rather the opposite party/company on 28/01/2020 sent a reply of the said notice and denied to settle any claim of your complainant.

• That the complainant has conveyed his grievances to the opposite party/ Insurance company time to time for settlement of his claim in regard to damages of his abovementioned vehicle but the company was very much reluctant to settle the same and with the intention to repudiate the said claim had sent the said the surveyor namely Soumya Bose who completely misguided your complainant with ulterior motive and intention and submitted wrong report in connivance with the company. The opposite party/company have had no intention to provide any service to the complainant rather with the sole intention to repudiate the claim of the complainant have done all these acts which seems to be grass negligence on the part of the O.P. to provide service to the complainant. The complainant suffered huge loss due to the deficiency in service by the company and for causing fraud upon the complainant through their works.
• That the vehicle of the complainant was severely damaged on the said accident and the service Centre/workshop assessed the damages to repair the said vehicle at the tune of Rs. 6,20,000/- (Six lacs twenty thousand) only
• That your claimant/complainant's is a businessman and he was very much dependent upon the said vehicle for going various sites but the said vehicle has been still lying in damaged condition at the Dhupguri Service Centre (Dhupguri Automobiles Mahindra Workshop) since the date of accident and as such the complainant has been facing great hardship to continue his business in absence of his said vehicle.
• That the instant complaint has been filed against the O.P. above named for redressal of his grievances.
• That the cause of action for this complaint arose on 28/06/2019 when the above mentioned vehicle of the complainant met an accident and the same was informed to the O.P./ company and also on 30/10/2019 when the company repudiated the claim of the complainant as No-Claim and also on 28/01/2010 when the company has denied to pay or settle the claim amount to the complainant and which is still continuing.
• That the Ld. Forum has the jurisdiction to entertain and try this complaint as the complainant of the instant case resides within the jurisdiction of Ld. Forum.
• That the complainant has valued the suit to the tune of Rs. 7,70,000/- and paid the requisite fees and also craves the leave to make the payment of further deficit fees, if any, as and when directed to pay by this Id. Forum.
• That the complainant craves the leave of this Id. Forum to amend any of the clauses of this complaint and/or to file any other proper suit or proceedings for other causes of action.

Reliefs shouted by the complainant from this commission. 

a) For a direction to the opposite parties to make the payment of a sum of Rs. 6,20,000/- to the complaint for repair of damages of the vehicle vide registration no. WB 72 H 7189 together with interest at 18% per annum

 b) For a direction to the opposite party to make the payment of a sum of Rs. 100,000/- to the complainant towards his loss in business, harassment and also on account of negligence and deficiency in service of the O.P. company

c) For a direction upon the opposite party to pay Rs. 50,000/- to the complainant on account of his sufferance from mental pain agony and anxiety;

d) Interest and pendente-lite interest;

e) Cost of the proceeding:

f) Any other reliefs as the Id. Forum may deem fit and proper.

After receiving the notice from this commission the opposite parties files written version, exchange questionnaires file written notes of argument and also participate in the hearing of argument.  Against the complainant petition the opposite party placed the following argument in written which is as under.

That the instant complaint is not at all maintainable either in law and / or on facts against the said O. Ps. and hence, the same deserves to be dismissed in liming as against the said O. Ps. for the following reasons: The complainant has implemented this O. Ps. in the present complaint with an ulterior motive only to harass and to derive unlawful pecuniary gain from the said O.Ps. basing upon falsehood and figment of imagination beyond comprehension. The present complaint is bad in law for non- joinder of the necessary party since the insured vehicle was hypothecated with Sundaram Finance Ltd. but the said financier has not been made a necessary party to the present complaint. It is true as well as an admitted fact by the said O.Ps. that the said vehicle bearing Regn. No. WB-72-H/7189 in question was duly insured with the answering O. Ps. vide Policy No. 2311 2026 6195 5300 000 for the period from 21/02/2019 to 20/02/2020 as stated in para 2 of the complaint but the same is always subject to certain terms, conditions, exclusions and definitions contained therein. It is also true that a claim was intimated by the complainant to the O.Ps. On 29/06/2019 under the said policy for a loss that occurred on 28/06/2019 and the same was registered as Claim No. C230019146140. Thereafter an IRDA licensed independent surveyor had been appointed by the said O.Ps. for assessing the loss and extent of liability of the insurer towards the vehicle. In the said claim form, it was clearly stated by the complainant himself that at the relevant time of the accident, the vehicle in question was being driven by him and he had declared himself as the driver and he had also submitted the driving license of his own along with the claim form. It is pertinent to mention here that during claim processing / survey, the complainant himself voluntarily disclosed the facts to the surveyor that in fact at the relevant time of accident, the said vehicle was being driven by his paid driver, namely, Mr. Ajibul Islam. One receipt bearing the DL Number of Mr. Ajibul Islam issued by the M. V. Department, Jalpaiguri and his ID proof was also submitted to the Insurance Co. along with his statement. It is further pertinent to mention here that the aforesaid fact was confirmed by the complainant / insured as well as the                                                                                                                                 said driver, Ajibul Islam themselves in writing vide separate Declaration sheets dated 18/08/2019 addressed to the Claim Manager of the said Insurance Co. Moreover the complainant had also confirmed in the said letter dated 18/08/2019 that since at the time of lodging of claim to the said O.Ps., he came to know that the D/L possessed by his paid driver, Mr. Ajibul Islam was fake one and hence the complainant had stated his own name in the claim form and provided his own D/L so that he could get the claim amount towards his damaged vehicle from the O.Ps.From the aforesaid facts as disclosed and confirmed by the complainant, it is crystal clear that the complainant just to derive an unlawful pecuniary gain from the O.Ps. knowing very well about the terms & conditions of the policy as well as the statute, had tried to mislead and played a fraudulent role which clearly amounts to suppression / concealment and misrepresentation of material fact. Subsequently, the O.Ps. vide a letter dated 12/09/2019 under Claim No. C230019146140 dated 29/06/2019 requested the complainant to clarify the matter within seven days as to why his claim should not be repudiated. Thereafter having no response from the said complainant, the O.Ps. finally repudiated the instant claim and informed the complainant vide letter dated 26/09/2019.Thereafter the complainant lodged the further claim for the 2nd time again on 14/10/2019 and the same was registered by the O.Ps. vide Claim No C230019305435 and the said O.Ps. again appointed an IRDA licensed independent surveyor for assessing the loss and extent of liability of the insure towards the vehicle. The surveyor on survey observed that the 2nd claim was submitted by the complainant for the same cause of loss and after considering the earlier I claim file, the O.Ps. further repudiated the claim since the same was already closed earlier on 26/09/2019 as No Claim and informed t complainant accordingly vide letter dated 30/10/2019. It is pertinent to mention here that during claim processing / survey, the complainant himself voluntarily disclosed the facts to the surveyor that in fact at the relevant time of accident, the said vehicle was being driven by his paid driver, namely, Mr. Ajibul Islam. One receipt bearing the DL Number of Mr. Ajibul Islam issued by the M. V. Department, Jalpaiguri and his ID proof was also submitted to the Insurance Co. along with his statement. It is further pertinent to mention here that the aforesaid fact was confirmed by the complainant / insured as well as the said driver, Ajibul Islam themselves in writing vide separate Declaration sheets dated 18/08/2019 addressed to the Claim Manager of the said Insurance Co. Moreover the complainant had also confirmed in the said letter dated 18/08/2019 that since at the time of lodging of claim to the said O.Ps., he came to know that the D/L possessed by his paid driver, Mr. Ajibul Islam was fake one and hence the complainant had stated his own name in the claim form and provided his own D/L so that he could get the claim amount towards his damaged vehicle from the O.Ps.From the aforesaid facts as disclosed and confirmed by the complainant, it is crystal clear that the complainant just to derive an unlawful pecuniary gain from the O.Ps. knowing very well about the terms and conditions of the policy as well as the statute, had tried to mislead and played a fraudulent role which clearly amounts to suppression / concealment and misrepresentation of material fact. Subsequently, the O.Ps. vide a letter dated 12/09/2019 under Claim No. C230019146140 dated 29/06/2019 requested the complainant to clarify the matter within seven days as to why his claim should not be repudiated. Thereafter having no response from the said complainant, the O.Ps. finally repudiated the instant claim and informed the complainant vide letter dated 26/09/2019.Thereafter the complainant lodged the further claim for the 2nd time again on 14/10/2019 and the same was registered by the O.Ps. vide Claim No C230019305435 and the said O.Ps. again appointed an IRDA licensed independent surveyor for assessing the loss and extent of liability of the insure towards the vehicle. The surveyor on survey observed that the 2nd claim was submitted by the complainant for the same cause of loss and after considering the early I claim file, the O.Ps. further repudiated the claim since the same was already closed earlier on 26/09/2019 as No Claim and informed the complainant accordingly vide letter dated 30/10/2019.

On the basis of the upper mention argument the opposite parties prayed for dismiss the instant complainant with cost. 

Decisions with reasons

From the materials as well as evidence on record it is revealed that this commission /Forum has got the territorial as well as pecuniary jurisdiction to try this case and the case has filed well within the period of limitation.

POINTS FOR CONSIDERATION

• Is the Complainant Consumer as per provision under Section 35 of the C.P. Act,2019?
• Has this Forum jurisdiction to entertain the instant complaint?
• Have the O.Ps any deficiency in service, as alleged by the Complainant?
• Whether the Complainant is entitled to get any relief/reliefs, as prayed for?

DECISION WITH REASONS

Point Nos.1 & 2

Both the points are taken up together for the sake of convenience.

In their written version the opposite party stated that there is no cause of action against the said O.P and tee case is not maintainable in this commission. Ld. Agent for the Complainant submitted that the Complainant is a consumer under the Ops as defined under Section 35 of C.P Act 2019 and this commission has territorial and pecuniary jurisdiction to entertain the complaint. On perusal of the complaint petition, written version, evidence on affidavit and the documents on record, we find that the Complainant is a consumer under Section 35 of the C.P. Act, 2019 and this commission has both pecuniary and territorial jurisdiction to entertain the complaint. Both the points are thus disposed of in favour of the Complainant.

  Point Nos.3 & 4

In their written notes of argument (WNA-Point-iv) the OPs admitted the fact that the vehicle of the complainant met an accident on 28/06/2019 in order to get the insurance claim reported the loss with the O.P./Insurance company on 29/06/2019 vide claim no. C-230019146140. According to the documents submitted by the OPs (dated 22/05/2023) it is found that on 21/08/2019 (after 51 days of registration of accident claim) SHAKTI SERVICES, an investigating agency investigate the alleged matter on behalf of the O.Ps and submits their report. But, in their W.V or in W.N.A there is no whispering about SHAKTI SERVICES. The reports of this agency firstly confirm the accident by writing the facts and showing the picture of the vehicle. In their report the upper mentioned agency claimed that they have taken the statement of the insured and the alleged driver. At the time of hearing of argument learned advocate show the pictures of the insured and the alleged driver while writing the statement. But, from the case record it reveals that on 31/01/2023 the OPs submitted some documents before this commission. In document number 2 the OPs submitted Xerox copies of the letter dated 18/08/2019 duly signed by the Ranojit Ghosh and Ajijul islam respectively and also claimed that this document was submitted by the complainant to the claim manager of the said OPs. Both the statements are contradictory. Both the investigating agency and the O.Ps claiming that the complainant and the alleged driver wrote separate letters in front of them and handed over to them. On the basis of these two letters/statements the OPs repudiate the claim of the complainant. The reason of repudiation of the insurance clam of the complainant by the OPs was that at the time of accident Mr. Ajijul Islam was driving the vehicle and his driving licence was fake. In every document the complainant denied the matter. Complainant submits that at the time of accident the complainant himself was driving the vehicle and in the accident claim form he mention the same On 29/06/2019. But, it is not understandable that why the complainant and Mr. Ajijul Islam write to the claim                                                              manager of OPs (dated 18/08/2019) describing a different facts which will go against them and in favour of the OPs.   

Two surveyor reports have been submitted in this case by the insurance company.  The survey reports itself has several date discrepancy. The second survey report submitted by the insurance company on 31/01/2023. It shows that the survey report was submitted 30/10/2020 but, from the same report it reveals that surveyors license had expired on 20/08/2020.  The new surveyor report submitted by the insurance company on 22/05/2023 before the commission. The report shows that the surveyors old report has been written or printed on a new pad, only the date of validity of the surveyor concerned has been changed. 

It is also clear from the first surveyor report that the surveyor Mr. Sonu Kr. Prasad verified and received the driving license of the complainant with other documents. The first survey report was deeply influenced by the report of SHAKTI SERVICES, an investigating agency investigate the alleged matter on behalf of the OPs and submits their report to the OPs. The complainant had duly answered the query of surveyor. This submission of the complainant was not disproved by the insurance company by any cogent evidence.

From the upper mentioned facts and circumstances it is understood that the insurance company has tried to mislead the commission by submitting different misleading information or evidence at different times.

  In Haris Marine Products vs Export Credit Guarantee   on (CIVIL APPEAL NO. 4139/2020)25 April, 2022

the Honourable Supreme Court of India has observed as follows…. an ambiguous term in an insurance contract is to

 be construed harmoniously by reading the contract in its entirety. If after that, no clarity emerges, then the term

 must be interpreted in favour of the insured, i.e., against the drafter of the policy.

  In Gurmel Singh vs Branch Manager, National    on (CIVIL APPEAL NO. 4071 OF 2022)20 May, 2022 the Honourable Supreme

Court of India has observed as follows… In many cases, it is found that the insurance companies are  

refusing the claim on flimsy grounds and/or technical grounds. While settling the claims, the insurance

company should not be too technical and ask for the documents, which the insured is not in a position to produce

due to circumstances beyond his control

  In Life Insurance Corporation Of ... vs Pramila Basak on 20 May, 2021 the Honourable National Consumer Disputes

 Redressal Commission  New Delhi in Revision Petition No. 414 Of 2020 (Against the Order dated 17/12/2019 in Appeal

 No. 232/2018 of the State Commission West Bengal) observed as follow-

  The insurance contract being a contract of utmost good faith is a two-way door. The standards of conduct as expected

under the utmost good faith obligation should be met by either party to such contract.

In their written notes of argument (Page -3, Point-xvi) the O.Ps stated as under

It is further submitted that although the surveyor based on his inspection of the damaged vehicle , had assessed the liability of the company to the extent of Rs. 4,06,669/-subject to the terms and condition of the policy.

The recent case before the Supreme Court, National Insurance Company Ltd. vs Vedic Resorts And Hotels Pvt. Ltd. on 17 May, 2023 ......Court revolved around the pivotal role of surveyor reports in claim settlements. Surveyors, appointed by insurance companies, assess the extent of loss or damage suffered by policyholders and provides expert opinions on the matter. Their reports serve as crucial evidence in determining the validity and quantum of insurance claim. The court held that insurance companies cannot dismiss surveyor reports arbitrarily or without providing cogent and satisfactory reasons for their rejection. This ruling ensuring that insurance companies are held accountable for their decisions. The surveyors report certainly can be taken note as a piece   of evidence until more reliable evidence is brought on record to rebut the contents of the surveyors report.

In this case the insurance company has further failed to draw our attention to any other clause contained in the terms and conditions of the Insurance policy which restrict to get the genuine claim by the complainant in case of accident of the said vehicle. In the case of National Insurance Co.Ltd. vs M/S Hareshwar Enterprises (P) ... on 18 August, 2021 the Honourable Supreme Court also give emphasis on the surveyors report. In the facts and circumstances herein the surveyors report was submitted as the natural process, the conclusion reached therein is more plausible and reliable rather than the investigation report.

We find that the Complainant has successfully proved her case in part. 

In the instant case, the copy of the insurance policy was filed by the complainant. In the insurance policy, the Insured Declared Value (I.D.V.) of the vehicle is mentioned as Rs.2,84,200/-.The surveyor based on his inspection of the damaged vehicle, had assessed the liability of the company to the extent of Rs. 4,06,669/- We are in view that the complainant should get highest award of compensation on the basis of the I.D.V. of the vehicle. The I.D.V. of the vehicle is Rs. 2,84,200/-.

Hence, It is

O R D E R E D

That the case C.C./19/2020 be and the same is allowed on contest against the O.P with cost of Rs. 5,000/- payable to the complainant.

O.P. is to pay Rs. 2,84,200/-.(Two lakh eighty four thousand two hundred only ) to the Complainant along with interest thereon at the rate of 6% p.a. from 29/06/2019 till the date of payment within 30 days from this date..

O.P has to pay Rs. 10.000/- to the consumer legal aid account of this commission for consciously avoided the commissions notice for appearance.

 Failing which the Complainant is at liberty to execute the decree according to law.

Let plain copy of this order be given to the parties free of cost.