Haryana

Karnal

CC/646/2021

Suresh Kumar - Complainant(s)

Versus

The National Insurance Company Limited - Opp.Party(s)

S.S. Moonak

13 Feb 2024

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, KARNAL.

 

                                                      Complaint No. 646 of 2021

                                                      Date of instt.22.11.2021

                                                      Date of Decision:13.02.2024

 

Suresh Kumar, aged 43 years, son of Shri Soran Singh, resident of village Jabala, teshil Assandh, District Karnal. Aadhar card no.8873 8241 8094.

                                               …….Complainant.

                                              Versus

 

1. The National Insurance Company Limited, through its Divisional Manager, Railway Road, opposite HDFC Bank, Kurukshetra.
2. VPS Motors Pvt. Ltd. plot no.145-146, Sector-2, Kurukshetra 136 118 (Haryana) through its authorized person.

 

                                                                …..Opposite Parties.

               

Complaint Under Section 35 of Consumer Protection Act, 2019.

 

Before   Shri Jaswant Singh……President.

              Shri Vineet Kaushik…….Member

       

Argued by:   Shri S.S. Moonak, counsel for the complainant.

                     Shri Virender Adlakha, counsel for the OP no.1.

                     Shri Manjeet Kamboj, counsel for the OP no.2.

 

                    (Jaswant Singh, President)

ORDER:                     

          

                 The complainant has filed the present complaint Under Section 35 of Consumer Protection Act, 2019 against the opposite parties (hereinafter referred to as ‘OPs’) on the averments that the complainant is the registered owner of car bearing no.HR-40-F-2252 Model-2016. It was insured with the OP no.1, vide its policy no.20403312010000390, valid from d29.09.2020 to 28.09.2021. The insured declared value of the car was Rs.2,50,000/-. The policy was package/comprehensive. On 02.06.2021, the complainant was going from Assandh to his village (Jabala) Karnal, the car was being driven by him at a proper, normal and moderate speed on his due left hand side of the road and observing all the traffic rules. At about 8.30 p.m when the car reached near Sawan Palace within the area of village Jalmana, Police Station Assandh the car struck against the roadside iron grills and the car was totally damaged. The complainant received multiple, serious and grievous injuries on his various parts of body including fracture on right leg, teeth were dislocated, head injury and on other parts of body. From the place of accident, the complainant was admitted in Shree Hari Hospital, Karnal, where he was admitted, treated and operated upon there. He remained for 10 days in ICU and thereafter he visited the said hospital as an OPD patient. The complainant has spent an amount of Rs.3,50,000/- on his treatment, medicines, hospitalization, transportation etc., he has became permanently handicapped and disabled. It is further averred that from the place of accident the car was brought to workshop of OP no.2 with the help of crane and a sum of Rs.5000/- were paid to the crane owner. The complainant informed the OP no.1 regarding the damage of vehicle and injuries suffered by him in this accident. The car was surveyed by the surveyor of the OP no.1. The complainant has submitted all the relevant documents of the car and the medical bills, treatment record etc. to OP no.1. The claim of the complainant has neither been repudiated nor settled by the OP no.1 intentionally and deliberately. In this way there is deficiency in service and unfair trade practice on the part of the OPs. Hence this complaint.

2.             On notice, OP no.1 appeared and filed its written version raising preliminary objections with regard to maintainability; cause of action; locus standi and concealment of true and material facts. On merits, it is pleaded that as per complainant that accident occurred on 02.06.2021, when the complainant was going from Assandh to his village Jabala (Karnal) in his car, which was being driven by him. The intimation in this regard was sent to the OP after 42days of accident and lodged the claim form on 14.07.2021. No FIR/DDR was lodged with the local police. No spot photographs were taken of the alleged accidental car. No intimation was given to the OP soon after the accident, it is clear cut violation of term and condition no.1 of the policy. It is further pleaded that the alleged accident took place due to the negligence of the complainant himself. The complainant himself toe the said accidental car with crane to the VPS Motors, Kurukshetra and prepared the estimate of the car, without intimating to the OP. The complainant submitted his consent letter on 29.09.2021 for an amount of Rs.1,55,000/- towards the full and final settlement of his claim on Net of salvage basis with cancellation of R.C. but  the complainant did not provide the letter of cancellation of RC to the OP. The OP allowed/settled the claim of insured on 07.10.2021, but the complainant did not provide the letter of cancellation of RC to the OP and in this regard OP wrote three letters to complainant on 16.11.2021, 14.12.2021 and 28.12.2021 and thereafter on 08.02.2022 the case of complainant was as “No Claim”. There is no deficiency in service and unfair trade practice on the part of the OP. The other allegations made in the complaint have been denied and prayed for dismissal of the complaint.

3.             OP no.2 filed its separate written version raising preliminary objections with regard to maintainability and jurisdiction. On merits, it is pleaded that complainant is neither paying parking charges of Rs.200/- per day nor repairing his car. OP requested only to pay his genuine parking charges, for which complainant is liable to pay. OP never threatened to complainant to sell the car. There is no deficiency in service and unfair trade practice on the part of the OP. The other allegations made in the complaint have been denied and prayed for dismissal of the complaint.

4.             Parties then led their respective evidence.

5.             Learned counsel for the complainant has tendered into evidence affidavit of complainant Ex.CW1/A, copy of insurance policy Ex.C1, copy of RC Ex.C2, copy of driving licence Ex.C3, copy of treatment record Ex.C4, copy of bill of Hari Hospital Ex.C5, copy of legal notice Ex.C6, copy of postal receipt Ex.C7, copy of scan report Ex.C8, copy of treatment record Ex.C9 to Ex.C12, copies of medical bills Ex.C13 to Ex.C28 and close the evidence on 31.08.2022 by suffering separate statement.

6.             Learned counsel for the OP no.1 has tendered into evidence affidavit of Reena Basak Ex.OPW1/A, copy of claim closing letter dated 08.02.2022 Ex.OP1/1, copies of letters dated 16.11.2021, 14.12.2021 and 11.07.2023 Ex.OP1/2 to Ex.OP1/4, copy of surveyor report Ex.OP1/5, copy of affidavit of complainant Ex.OP1/6, copy of consent letter Ex.OP1/7, copy of statement of complainant Ex.OP1/8, copy of intimation letter Ex.OP1/9, copy of letters dated 02.11.2021 and 22.10.2021 Ex.OP1/10 and Ex.OP1/11, copy of discharge record Ex.OP1/12, copy of general admission Ex.OP1/13, copy of discharge record Ex.OP1/14, copy of progress sheet Ex.OP1/15, copy of letter dated 03.06.2021 Ex.OP1/16 and closed the evidence on 11.7.2023 by suffering separate statement.

7.             Learned counsel for no.2, on 11.07.2023 suffered a statement to the effect that written statement of OP no.2 be read as part and parcel of evidence on behalf of OP no.1.

8.             We have heard the learned counsel of the parties and perused the case file carefully and have also gone through the evidence led by the parties.

9.             Learned counsel for complainant, while reiterating the contents of complaint, has vehemently argued complainant got insured his car with the OP no.1. On 02.06.2021, the said vehicle of complainant met with an accident and was totally damaged. The complainant also received  grievous injuries in the said accident and remained admitted in Shree Hari Hospital, Karnal for 10 days. The complainant has spent an amount of Rs.3,50,000/- on his treatment. and he has became permanently handicapped and disabled. The car was brought to workshop of OP no.2. The complainant informed the OP no.1 regarding the damage of vehicle and injuries suffered by him in this accident. The car was surveyed by the surveyor of the OP no.1. The complainant has submitted all the relevant documents and the medical bills, treatment record etc. to OP no.1. The claim of the complainant has neither been repudiated nor settled by the OP no.1 intentionally and deliberately and prayed for allowing the complaint. Learned counsel for the complainant relied upon the case law of Hon’ble Punjab and Haryana High Court titled as National Insurance Company Limited Versus Kartikaya @ Kartikaya Phogat and others in FOA no.916 of 2021, decided on 19.07.2022.

10.           Learned counsel for the OP no.1, while reiterating the contents of written version, has vehemently argued that as per complainant the accident took place on 02.06.2021. The intimation in this regard was sent to the OP after 42 days of accident and lodged the claim on 14.07.2021. No FIR/DDR was lodged with the local police. No spot photographs were taken of the alleged accidental car. No intimation was given to the OP soon after the accident, it is clear cut violation of term and condition no.1 of the policy. The complainant has submitted his consent letter on 29.09.2021 for an amount of Rs.1,55,000/- towards the full and final settlement of his claim on Net salvage basis with cancellation of R.C. but  the complainant did not provide the letter of cancellation of RC to the OP. OP wrote three letters to complainant on 16.11.2021, 14.12.2021 and 28.12.2021 and thereafter on 08.02.2022 the case of complainant was closed as “No Claim” and prayed for dismissal of the complaint. Learned counsel for the OP no.1 relied upon the case law titled as The Manager, Tata AIG General Insurance Co.Ltd. Versus Kathamuthu and Ors. C.M..a. (MD) no.729 of 2017, decided on 13.04.2022 of Hon’ble High Court, Madras.

11.           Learned counsel for the OP no.2 has argued that complainant is neither paying parking charges of Rs.200/- per day nor repairing his car. OP requested only to pay his genuine parking charges, for which complainant is liable to pay and prayed for dismissal of the complaint qua OP no.2.

12.           We have duly considered the rival contentions of the parties.

13.           The claim of the complainant has been closed by the OP no.1, vide letter Ex.OP1/1 dated 08.02.2022 on the ground, which is reproduced as under:-

“letters dated 16.11.2021, 14.12.2021 and 28.12.2021 wherein intimation about your claim approval for Rs.1,55,000/- on net salvage basis without RC has been given, subject to cancellation of RC and also directed you to get your RC cancelled from the concerned authority and submit the proof of the same issued by RTO with NOC from financer, if any.

As you shall not keep your file open for so long as sufficient time has already been allowed to you for completion of formalities and RC cancellation through three reminders as per company’s rules, we are hereby closing your file as “No Claim”.

14.           The complainant has claimed Rs.2,50,000/- as own damage claim i.e. insured declared value of the vehicle and Rs.3,50,000/- on account of personal accidental claim.

15.           Firstly, we decide whether the complainant lodged the claim with the OP no.1 with regard to personal accidental claim or not?

16.           The onus to prove for lodging the claim with regard to personal accidental with the OP was relied upon the complainant but complainant has miserably failed to prove his version by leading any cogent and convincing evidence. The complainant has nowhere mentioned the date and month of submission of his claim with regard to personal accident with the OP in the entire complaint. Meaning thereby, the complainant has not lodged the personal accident claim with the OP and OP has specifically denied this fact.

17.           The complainant has claimed Rs.2,50,000/-as IDV of the vehicle as the vehicle. On receipt of the intimation, the surveyor of the OP no.1 has assessed the loss to the tune of Rs.2,10,047/-. Hence, the loss assessed by the surveyor is more than 75% of the IDV of the vehicle. Thus, the vehicle in question falls in the category of total damaged. The accident took place on 02.06.2021. The complainant sent the intimation to the OP no.1 after 42 days of accident and lodged the claim on 14.07.2021. Furthermore, complainant has also not got recorded any DDR/FIR regarding the said accident and also not sent the intimation to the OP no.1 in time, due to that no spot inspection was done by the OP no.1, thus complainant deprived the right of the OP no.1 to ascertain the actual facts with regard to accident. Furthermore, no photographs with regard to said accident has been placed on file by the complainant. Even the complainant has failed to cancel the RC of the vehicle despite various letters dated 16.11.2021, 14.12.2021 and 28.12.2021 issued by OP no.1. Moreover, complainant has violated the term and condition of the policy. Thus, the OP no.1 has rightly assessed the loss for the sum of Rs.1,55,000/-.

18.           Thus, in view of the above facts and circumstances of the case, we dispose of the present complaint with the liberty to complainant to fulfill the formalities with regard to cancel the RC of the vehicle in question and lodge the personal accident claim. On receipt of the claim after fulfill all the formalities, OP no.1 is directed to settle the claim of the complainant within 30 days, as per the terms and conditions of the policy. No order as to costs. This order shall be complied with accordingly. The parties concerned be communicated of the order accordingly and the file be consigned to the record room after due compliance.

Announced

Dated: 13.02.2024                                                           

                                                                President,

                                                    District Consumer Disputes

                                                    Redressal Commission, Karnal.

(Vineet Kaushik)               

  Member