Complaint No: 304 of 2019.
Date of Institution: 27.09.2019.
Date of order: 09.01.2024.
Sukhchain Kaur w/o Dalwinder Singh, resident of Village Dhariwal Bhoja, Tehsil and District Gurdaspur.
….........Complainant.
VERSUS
1. The Manage, New India Assurance Company Ltd., branch office Rayya, District Amritsar, Punjab. Pin Code – 143112.
2. New India Assurance Company Ltd., G.T. Road, Mandi, Gurdaspur, through its Branch Manager.
….Opposite parties.
Complaint u/s 12 of Consumer Protection Act.
Present: For the Complainant: Sh.G.S.Janday, Advocate.
For the Opposite Parties: Sh.Sanjeev Mahajan, Advocate.
Quorum: Sh.Lalit Mohan Dogra, President, Sh.Bhagwan Singh Matharu, Member.
ORDER
Lalit Mohan Dogra, President.
Sukhchain Kaur, Complainant (here-in-after referred to as complainant) has filed this complaint under section 12 of the Consumer Protection Act (here-in-after referred to as 'Act') against The Manager, New India Assurance Co. Ltd. Etc. (here-in-after referred to as 'opposite parties).
2. Briefly stated, the case of the complainant is that the complainant is owner of Toyota Innova Car Model 2008 bearing registration No.PB-11-BF-3112. The vehicle is meant for personal use of the complainant. It is pleaded that the above mentioned car of the complainant was comprehensively insured vide policy No. 36050231170100000686 by the opposite party No. 1 who have also branch office at Gurdaspur i.e. the opposite party No. 2 in the sum of Rs.6,00,000/- commencing from 30.05.2017 and valid upto 29.05.2018. It is further pleaded that unfortunately the above mentioned vehicle of the complainant met with a road accident at night on 14.08.2017 at village Paddey near Ghoman Tehsil Batala District Gurdaspur. The impact of this accident was so serious that the vehicle of the complainant aforesaid was totally damaged. However the complainant intimated office of the opposite parties regarding this road accident in time i.e. on 15.08.2017 morning. It is further pleaded that the employee of the opposite parties Mr. Manoj Sharma visited the spot and inspected the vehicle and after toeing it with some other vehicle took it to the Toyota agency at Amritsar for further necessary action. The opposite parties also appointed a Surveyor Mr. J.S. Malhotra for conducting the survey of the vehicle of the complainant. It is further pleaded that the said vehicle of the complainant is still lying with the Toyota Dealership/agency at Amritsar in the same damaged condition. But neither the damage suffered has been assessed by the designated surveyor of the company of the opposite parties nor the claim case of this vehicle of the complainant has been processed nor paid to her so far. It is further pleaded that by the utter reluctance on the part of the opposite parties, the complainant has suffered a huge monetary/mental harassment. The complainant has also not enjoyed the luxury of the vehicle kept by the complainant for which the opposite parties are solely responsible. It is further pleaded that the opposite parties have parked the vehicle of the complainant with the Toyota Dealership at Amritsar at their own risk and responsibility and as such the opposite parties would be solely liable to pay any parking charges which are to be paid till the vehicle remains parked there. It is further pleaded that the complainant submitted all the requisite documents to the opposite parties to get the claim, but the opposite parties putting the matter with one pretext to the other. It is further pleaded that the complainant has also issued a legal notice through his counsel on 17.10.2018 through registered post, but the opposite parties give vague reply. Ultimately on 16.11.2018, the opposite parties repudiated the claim of the complainant. It is further pleaded that the complainant has visited the office of the opposite party No.2 regarding the claim of the vehicle and inspite of repeated demands and requests on the part of the complainant, but the opposite parties illegally repudiated the claim of the complainant. It is further pleaded that due to this illegal act and conduct of the opposite parties the complainant has suffered great loss and also suffered mental agony, Physical harassment and inconvenience. It is further pleaded that there is a clear cut deficiency in service on the part of the opposite parties.
On this backdrop of facts, the complainant has alleged deficiency and unfair trade practice on the part of the opposite parties and prayed that necessary directions may kindly be issued to the opposite parties to make the payment of claim on account of damaged vehicle of the complainant in the road accident and also directed to pay Rs.50,000/- as mental pain, agony and harassment and Rs.10,000/- as litigation expenses to the complainant, in the interest of justice.
3. Upon notice, the opposite parties appeared through counsel and contested the complaint and filing their written reply by taking the preliminary objections that all allegations made in the complaint, which are not specifically denied herein, are denied being false and baseless. The complaint is absolutely false and frivolous. It is pleaded that at the very outset the replying opposite parties denies all the allegations, facts and averments stated in the complaint filed by the complainant except to the extent it is expressly admitted therein. The non-traversal of any paragraph should be read as categorical denial. The complaint filed by the complainant is not legally maintainable against the replying opposite parties and is liable to be dismissed, as the complainant has attempted to misguide and mislead the Hon'ble Commission and as such, the complaint is liable to be dismissed on this ground alone. It is further pleaded that no cause of action has ever arisen in favour of the complainant against the replying opposite parties to file the present complaint and hence, the complaint under reply is an abuse of the process of law and as such the same is liable to be dismissed. The complainant has no locus standi to file the present complaint. The insurance is a contract between the two parties and both the parties are bound with the terms and conditions of the policy. The scope of the terms and conditions cannot be increased or decreased. It is further pleaded that the insurance is a contract based on utmost good faith and it is the duty of the insured to disclose all the material facts and only misrepresentation on the part of the insured is fatal one. The complainant has not come in this Hon'ble Court with clean hands and has suppressed true and material facts from this Hon'ble court, therefore the complainant is not entitled for any relief. It is further pleaded that the complainant has not complied with the mandatory provision of insurance policy. The spot survey of accident was manipulated i.e. the vehicle was shifted from actual place of accident to the place where spot survey was conducted. The vehicle was having rusting at the time of spot survey as per report of investigator. There is gross violation of the company rules for underwriting the policies and the representations of the insured are FALSE AND MANIPULATED TO GRAB UNDUE COMPENSATION FROM THE INSURERS. It is further pleaded that the complainant failed to lodge any FIR regarding the alleged accident when the police station is in the vicinity of the place of alleged accident. No doubt there is no injured or any death in the alleged accident but the vehicle of the complainant has been totally damaged as alleged by the complainant and there is huge loss of property for which an FIR should have been registered against the unknown person when the driver of the offending vehicle had run away from the spot as alleged by complainant. It is further pleaded that it is highly improbable that someone hit the car of complainant and caused a huge loss to complainant property and complainant kept mum over the matter and not lodging any FIR against the said unknown driver. Moreover the registration number of the offending truck as alleged by the complainant has not been mentioned in the claim form or any of the documents or statement made by the complainant. It is further pleaded that the vehicle whose pre inspection was done by A.K.C.M. Ins. Auxiliary Pvt. Ltd. on 29.05.2017 and the vehicle whose spot survey was done by Sh. Manoj Kumar Surveyor & loss assessor and final survey was done by Sh. J.S. Malhotra surveyor and loss assessor Amritsar approved by IRDA. The investigation of this accident was conducted by S.A. Investigating & consulting Agency Abrol Nagar Pathankot on 08.08.2018 and they have pointed out that it is not the same vehicle but the two vehicles are different one having material differences as pointed out by S.A. Investigating & Consulting Agency to the opposite parties which are supported by photographs taken by them during their investigation and compared with photographs taken during pre-inspection of the vehicle done on 29.05.2017 by A.K.C.M. Ins. Auxiliary Pvt. Ltd. It is further pleaded that so the above facts clearly shows that the complainant is concealing the true facts from the Insurance Co. The letter dated 05.10.2018 has also been sent to the complainant to clarify the above said facts and has sought query/cogent or reliable evidence regarding the alleged accident form complainant within the specified time but the complainant failed to provide any reply regarding the query/cogent or reliable evidence sought by the opposite parties and as such there is mis-representation and concealment of the actual facts. So it is clear cut violation of Policy Terms & Conditions. It is further pleaded that thereafter on 16.11.2018 the opposite parties repudiated the claim of the complainant on the basis of detailed report of the Investigator as the complainant failed to provide any reply regarding the query/cogent or reliable evidence sought by the opposite parties. The complainant has not complied with the mandatory provision of insurance policy. The spot survey of accident was manipulated i.e. the vehicle was shifted from actual place of accident to the place where spot survey was conducted. It is further pleaded that the vehicle was rusting at the time of spot survey as per report of investigator. There is gross violation of the company rules for underwriting the policies and the representations of the insured are FALSE AND MANIPULATED ΤΟ GRAB UNDUE COMPENSATION FROM THE INSURERS.
On merits, the opposite parties have reiterated their stand as taken in legal objections and denied all the averments of the complaint and there is no deficiency in service on the part of the opposite parties. In the end, the opposite parties prayed for dismissal of complaint with costs.
4. Learned counsel for the complainant has filed Self Attested affidavit of Sukhchain Kaur, (Complainant) alongwith other documents as Ex.C-1 to Ex.C-6.
5. Learned counsel for the opposite parties has tendered into evidence affidavits of Sh. Charan Dass, (Senior Divisional Manager, The New India Assurance Co. Ltd., Pathankot) as Ex.OPW-1/A and Sh. Sarv Daman Bhalla (S/o Mr. Arun Kumar Bhalla of M/s. S.A. Investigating & Consulting Agency, Pathankot) as Ex.OPW-2/A alongwith other documents as Ex.OP-1 to Ex.OP-53.
6. Rejoinder not filed by the complainant.
7. Written arguments filed by the complainant but not filed by the opposite parties.
8. Counsel for the complainant has argued that complainant is owner of Toyota Innova Car which is insured with the opposite parties vide policy Ex.C2. The said car met with an accident on 14.08.2017. Intimation regarding the accident was given to the opposite parties on 15.08.2017 by the complainant and employee of opposite parties Mr.Manoj Sharma carried out spot inspection and vehicle was taken to Amritsar for repair. Mr.J.S.Malhotra conducted the final survey but the damages to the vehicle have not been assessed so far and vehicle is lying with the dealer with out repair and which amounts to deficiency in service on the part of the opposite parties. Counsel for the complainant has further argued that opposite parties have relied upon report of investigator which has no evidentary value as the said investigator has not placed on record his affidavit to prove the report and counsel for the complainant has relied upon judgments as per which report of investigator has no value in the absence of affidavit reported in 2007(1) CLT 303 Pb. Kulwinder Kaur Vs. L.I.C.
9. On the other hand counsel for the opposite parties has argued that as per report of investigator the spot survey of the accident was manipulated and the vehicle was shifted from actual place of accident to the place where spot survey was conducted. It is further argued that the complainant has failed to lodge any FIR in respect of the accident. It has further argued that spot survey was carried out by Sh.Manoj Kumar surveyor and loss assessor and Sh.J.S.Malhotra surveyor and loss assessor Amritsar carried out final assessment. It is further argued that the pre inspection of the vehicle was done by A.K.C.M. Insu. Auxilary Pvt. Ltd. and the investigation was conducted by S.A. Investigating & Consulting Agency on 08.08.2018 and the said investigator has pointed out that two different vehicles are involved having material differences and the difference is apparent on the comparison of photographs taken during pre inspection on 29.05.2017 by A.K.C.M. Insu. Auxilary Pvt. Ltd. and the other photographs. It is further argued that the vehicle was having rusting on the parts which was noticed by the investigator which shows that accident was old one and accordingly the claim was rightly and legally repudiated on 16.11.2018 on the basis of the report of the investigator.
10. We have heard the Ld. counsels for the parties and gone through the record.
11. It is admitted fact that complainant is registered owner of Toyota Innova Car bearing registration No.PB-11-BF/3112. It is further admitted that the said vehicle was comprehensively insured with the opposite party No.1 w.e.f. 30.05.2017 to 29.05.2018. It is further admitted fact that the vehicle owned by the complainant was damaged in the accident. It is further admitted that claim lodged by the complainant has been repudiated vide letter dated 16.11.2018. The only issue for adjudication before this Commission is whether the accidental loss to the vehicle is old one and manipulated and consequent repudiation is justified or not.
12. To prove her case complainant has placed on record her affidavit, copy of policy of registration certificate Ex.C1, copy of policy of insurance Ex.C2, copy of legal notice Ex.C3, postal receipt Ex.C4, copy of reply to legal notice Ex.C5 and copy of repudiation letter Ex.C6 whereas opposite parties have placed on record affidavit of Mr.Charan Dass Sr.Divisonal Manager Ex.OPW-1/A, copy of spot survey report Ex.OP-1, copy of final survey report Ex.OP-2, copy of report of investigator Ex.OP-3, copy of claim intimation letter Ex.OP-4, copy of repudiation letter Ex.OP-5, copies of photographs Ex.OP-6 Ex.OP-53.
13. Perusal of spot survey report Ex.OP-1 carried out by Sh.Manoj Kumar surveyor dated 20.08.2017 shows that the spot survey was carried out by the said surveyor who has confirmed the accidental loss to the vehicle. However, in the column of observations the said surveyor has given remarks that "Please check the matter before settling the claim". Perusal of vehicle survey report carried out by Mr.J.S.Malhotra Ex.OP-2 shows that said surveyor has declared the vehicle as total loss and made recommendations for settlement of the claim on NOC basis for Rs.3,73,000/- without R.C. and has also attached photographs of the inspected vehicle with the report. The main dispute has arisen after submitting of the report Ex.OP-3 by the investigator wherein the investigator has tried to point out various irregularities. It has been pointed out by the investigator that;
1. The insured vehicle No.PB-11-BF/3112 had not met with an accident as reported by the insured as the damages do not corroborate with the nature and cause of alleged accident.
2. During the investigation of the claim it was found that pre- inspection of the vehicle No.PB-11-BF/3112 is questionable.
3. During the investigation it was observed that alleged date of loss i.e. 14.08.2017 is a manipulated dated of loss as the vehicle had developed rusting at the time of spot survey which cannot be appeared within 24 hours of the accident.
4. The insured vehicle has been last driven by insured's friend Mr.Sunny Gupta but his relationship is not established directly with the son of the insured as there is gap of three years in date of birth of oth the said persons.
5. On the contrary the alleged driver is in daily direct contact with the son-in-law of the insured at Batala as Mr.Sunny Gupta is having his shop in the vicinity of SDM Office where Mr.Narinder Kumar (son-in-law of the insured) is posted as Licensing Clerk.
6. The insured has not informed the police stating that they did not inform the police because there is no TP loss.
7. The police has not initiated any investigation into the matter since the matter has not been reported to them.
8. The witnesses have decline to give any written confirmation for the accident of the vehicle.
9. The vehicle history of the vehicle number PB-11-BF/3112 has raised questions about the mileage of the vehicle being claimed by them. Please refer to the column above "History OF Vehicle".
10. We had made secret investigations of the above mentioned loss at various places and in the neighborhood of the insured and it came to light that the statement of the claimants is FALSE in all respects and that the above loss reported to the insurers is purely an after though to grab compensation from the insurers.
11. The pre-inspection of the vehicle number PB-11-BF/3112 has been done by AKCM Ins. Aux. Services Pvt. Ltd. at Amritsar and the pre-inspection of the vehicle when seen closely is highly questionable. Please refer to the above column "Pre-Inspection".
12. The study of underwriting has revealed the faulty underwriting at BO Rayya in the month of May 2017 even the major lapses have come to light. Please refer to the column "Underwriting".
13. The study of spot survey of the vehicle has revealed the faulty spot survey in presence of Mr.Arvind Sethy the then BM at BO Rayya in the month of May 2017 even the major lapses have come to light. Please refer to the column "Spot Survey Report".
14. The spot survey report is self speaking about the manipulations made by the insured to arrange the spot survey to grab undue compensation from the insurers. Please refer to the column "Spot Survey Report".
15. In a nut shell the insured has tried all possible methods to manipulate the facts so that the insured can grab undue compensation from the insurers.
Meaning thereby that the investigator is of the view that the spot survey was manipulated by the Branch Manager of Branch Office Rayya and Sh.Manoj Kumar spot surveyor and there is manipulation in the pre-inspection of the vehicle. The investigator is of the view that the vehicle in question had already met with an accident before the issuance of the policy and pre-inspection was carried out through AKCM Ins. Aux. Services Pvt. Ltd. by replacing number plates of some other vehicle but we are of the view that the report of investigator Ex.OP-3 has not been proved on record by filing affidavit of the investigator. Even the opposite parties have failed to file the affidavit Sh.Manoj Kumar who carried out spot survey vide Ex.OP-1 even the report of spot survey is also silent about such aspects of fraud. Said investigator report Ex.OP-3 does not carry any value in the eyes of law and is liable to be ignored. Moreover, we are of the view that if the vehicle owned by the complainant had already been met with an accident and the pre-inspection spot survey etc. are manipulated in that case what action has been taken by the opposite parties against AKCM Ins. Aux. Services Pvt. Ltd. and Mr.Arvind Seth the then Branchy Manager of Branch Office Rayya and if no action has been taken by the opposite parties against the said persons, then how the complainant can be victimized by the opposite parties by denying the lawful claim of the complainant on the basis of unproved report of the investigator. The accident is reported to have been taken place on 14.08.2017 and as per report Ex.OP-3 the investigator has been deputed on 25.08.2018 approximately more than eight months and the report of investigator is only a story prepared by the investigator without any evidence or documents to support his assertions made in the report. Moreover, the investigator has not justified in his report as to how he arrived at the conclusion after the deputation on the case after eight months. We are of the view that the insurance companies are only interested in collecting premium and when it comes to settle and pay the claim the insurance companies find one or the other excuses to deny the said claim by causing unnecessary harassment to the public at large. Perusal of report of vehicle survey report Ex.OP-2 shows that Mr. J.S. Malhotra has assessed the payable loss on NOC basis for Rs.3,73,000/- without R.C.
14. We have placed reliance upon judgment Hon'ble National Consumer Disputes Redressal Commission New Delhi in case titled as Mitesh Lavji Thacker Vs. Iffco-Tokio General Insurance decided on 30.01.2023. It has been held by the Hon'ble State Commission that where two views are possible the one which is in favour of the complainant should be taken reported in 2007(1) CLT 303 Pb. Kulwinder Kaur Vs. L.I.C. Opposite parties have mainly relied upon report of the investigation. However, perusal of file shows that opposite parties have not placed on record any affidavit of investigator or the Manager/Principal Officer of the company. As such we are of the view that no reliance can be placed on such report of the investigator which is not supported by affidavit.
15. Accordingly, present complaint is partly allowed and opposite parties are directed to pay the claim as assessed by the surveyor vide his report Ex.OP-2 within 30 days of the receipt of copy of this order. Further, it is made clear that if the accidental loss is not settled and paid within 30 days then the above referred payable amount shall carry interest @ 9% P.A. w.e.f. 20.08.2017 till realization. Since the complainant has suffered mental tension, harassment and agony as such complainant is also entitled to receive Rs.10,000/- including litigation expenses of Rs.3,000/- which shall be paid by the opposite parties within the above referred given time also.
16. The complaint could not be decided within the stipulated period due to heavy pendency of Court Cases, vacancies in the office and due to pandemic of Covid-19.
17. Copy of the order be communicated to the parties free of charges. File be consigned.
(Lalit Mohan Dogra)
President.
Announced: (B.S.Matharu)
Jan. 09, 2024 Member.
*YP*
