Haryana

Ambala

CC/147/2021

Naveen Sudan - Complainant(s)

Versus

The New India Assurance Co ltd - Opp.Party(s)

Nitish Sahni

04 Jan 2024

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, AMBALA.

Complaint case no.	:	147 of 2021
Date of Institution	:	01.04.2021
Date of decision	:	04.01.2024

 

Naveen Sudan son of Sh. Badri Nath Sudan, aged about 40 years, resident of House No.80/1269, Baldev Nagar, Ambala City.

          ……. Complainant

                                                Versus

1. The New India Assurance Co. Ltd., 5406, 2nd Floor, Cross Road No.3, Punjabi Mohalla, Ambala Cantt, through its Branch Manager
2. The New India Assurance Co. Ltd, SCO: 36-37, Section 17-A, Chandigarh, through its authorized signatory.

                                                                                       ….…. Opposite Parties

Before:        Smt. Neena Sandhu, President.

                             Smt. Ruby Sharma, Member,

          Shri Vinod Kumar Sharma, Member.           

 

Present:      Shri Nitesh Sahni, Advocate, counsel for the complainant.                                                                                                                                 Shri Mohinder Bindal, Advocate, counsel for the OPs.

Order:        Smt. Neena Sandhu, President.

                   Complainant has filed this complaint under Section 35 of the Consumer Protection Act, 2019 (hereinafter referred to as ‘the Act’) against the Opposite Parties (hereinafter referred to as ‘OPs’) praying for issuance of following directions to them:-

1. To pay Rs.6,50,000/- as total damage of the vehicle in question alongwith interest.
2. To pay a sum of Rs.2,00,000/- on account of loss, harassment, pain, agony suffered by the complainant.
3. To pay Rs.22,000/- as litigation expenses.
4. OR

Grant any other relief which this Hon’ble Commission may deems fit.

 

2.           Brief facts of the case are that the complainant is the registered owner of the vehicle i.e. Maruti Car Ertiga bearing registration NO.HR-37-D-5286 and got it insured vide Policy No.35350131180300003435 from the OPs valid from 25.10.2018 to 24.10.2019. On 17.09.2019 at about 09.30 PM, one Mr.Sham Sunder Sharma along with his son namely Jatinder was driving the said car of the complainant and was returning from village Garnala to Baldev Nagar, Ambala City. The said vehicle traveled less than one KM after joining high way (on Panjokhra-Baldev Nagar Highway) when at about 09.30 PM, smoke was noticed coming out of the dashboard and when it was taken to left side, in the mean while fire broke from dashboard and the vehicle caught fire. Driver and passenger immediately came out of the said vehicle to save their lives. The complainant also reached the spot after receiving the message of the same from the driver. Fire Brigade wad dialed but there was no response. Fire was extinguished by putting water from a running tubewell with the help of long rubber pipes by the farmers. However, no one received any injury in the said incident. The matter was reported to the police, as a result of which, DDR dated 18.09.2019 vide rapat no.16 dated 18.9.2019 was lodged. Thereafter, claim was lodged on 19.9.2019 with the OPs without any delay, but to the surprise of the complainant, his claim has been rejected vide letter dated 22.1.2021. During the proceedings of claim, all the documents were provided to the OPs as demanded by them from the complainant. The OPs desired that the vehicle should be inspected through authorized dealer of Maruti. As such, the complainant wrote letter to the authorized dealer i.e. M/S Ekansh Wheel stating that the matter was taken with Modern Automobile near Jandli Bridge, Ambala City, but no action was taken by them. The letter had also been written to the OPs and to the authorized Maruti Dealers i.e. Modern Maruti Authorized dealer but no steps were taken by them without any reason. However, though the photographs of the said vehicle revealed that the said vehicle has been burnt due to fire, but the OPs without any rhyme and reason and illegally and arbitrarily declined the claim of the complainant which amounts to deficiency in server and unfair trade practice on their part. Hence, the present complaint.
3.           Upon notice, OPs appeared and filed written version wherein they raised preliminary objections to the effect that the complaint is not maintainable; the complainant has not approached this Commission with clean hands as he has suppressed the material facts so as to get the claim amount; the present complaint is ex-facie misconceived, vexatious, untenable and devoid of any merit; this Commission has got no jurisdiction to entertain and try the present complaint;  complex and number of complicated issues of facts and laws are involved in this case and as such only the civil court has jurisdiction in the matter; the present complaint has been filed without any cause of action etc. On merits, it has been stated that the complainant reported fire loss of his vehicle in question which was under insurance cover. Upon intimation about this alleged occurrence and loss given by the insured, one surveyor Mr. Rajesh Verma was appointed for spot survey who visited the spot of occurrence on 18.09.2019 and took photographs of the vehicle in question; recorded the statements of the insured and his alleged driver on wheel at the relevant time and submitted his report in the office on 03.12.2019. At the same time, Surveyor-Chhattwal & Associates was also deputed to assess the loss. The said surveyor visited the residence of the insured at Baldev Nagar, Ambala City where he had parked his said damaged car and met the insured and discussed the matter in detail. During his survey, the insured pleaded that he has not shifted his car to the Modern Automobiles as they had demanded estimate charges but he asked the body shop Manager to determine the cause of fire but no one visited his house so he approached Panchkula Auto Services, Panchkula and got estimate from there. The version given by the insured and his driver to the spot surveyor was changed by them at the later stage. In their statement to the spot surveyor, the insured and his driver stated that the police and the insured reached at the spot within 20 minutes of the incident and the car got burnt in their presence. The driver made call to 100 no., 101 number as well as to the insured from the spot but fire brigade did not reach, which fact is not possible. When the police came at the spot then why the police will not call the fire brigade from their wireless or other emergency system. At the same time, as per version in the DDR, the driver informed the police about the said incident on 18.09.2019 and only then the police visited the spot. In the DDR, it is also submitted that the fire brigade could not be contacted but later in his statement to the spot surveyor; both the insured and driver stated that they informed to the contrary. Moreover, when police reached at the spot then why the police will not call the fire brigade by using their all means to avoid any big causality and occurrence being on the main highway. The car in question was taxi and as per traffic norms, there must be fire extinguisher in the car and it was the professional driver in control of said car then why he had not used the same. Moreover, the car in question was diesel car which is not as flammable, then how it caught fire so quickly and engulfed the whole of the car in question in such a short time.
4.           The other relevant point for consideration which was very prominent is why the insured did not make any effort to ascertain the cause of fire from the Maruti workshop although being asked time and again for the same. Moreover, in his statement dated 16.10.2019 on the back page of claim form, the insured undertook to get inspection from Modern Automobiles for cause analysis report to ascertain the cause of fire at the earliest but to no avail. He rather gave obnoxious excuse about non shifting the car to Modern Automobiles or any other Maruti authorized workshop that they were demanding charges for estimate but at the same time he got estimate from Panchkula Auto Service, a Maruti authorized workshop situated at a distance of 50 KMs which is very funny as to why he will approach a far away workshop who might be charging much more due to their additional travelling expenses. If he was so much close to that workshop then why he did try to get cause analysis report through that workshop being Maruti authorized workshop. It is sufficient to judge from the conduct of insured that he was not interested in getting the cause of fire ascertain due to certain manipulations on his part as he submitted two letters to Modern Automobiles for report but did not take his car to workshop without wasting time, as time is very crucial element in such cause ascertain cases. Why the Modern or Maruti experts will visit his residence and those experts will certainly expect the car parked at an authorized workshop. Moreover, the workshop will also require a certain fee as the car in question was not a new one car. The insured failed to place any proof about his bonafide with regard to his desire for getting the cause ascertain about fire. He rather intentionally delayed due to his malafide intentions and produced his car to Maruti workshop only after more than 6 months when it was next to impossible for them to ascertain the cause of fire in the said car. As per the terms of the insurance policy, the insured is bound to give all such information and assistance as the company may require for the processing of the claim but in the present case, the insured behaved not only negligently but he did not cooperate to ascertain the cause of fire as to whether it was due to any manufacturing defect or it was an accident or it was a manipulated act. Moreover, under the insurance contract, an insured is supposed to behave and take all reasonable care and precautions to save the insured vehicle from any loss or damage, as if the same is not insured but in the present case the insured had not called the fire brigade etc. to minimize the loss. Rather from the available documents and facts, it has been established and well proved beyond doubt that the version and information given by the insured about this alleged fire incident was altogether to be a false and wrong version that has been given by the insured to the insurance company just to get compensation on flimsy and self created circumstances. The service record of the said car in question showing extensive repairs and such a huge mileage undergone by it further raises doubts about the manipulations of the complainant to get rid of the said car by playing such manipulations. The complainant has violated the terms and conditions of the insurance policy not only by playing fraud but also by giving false and incorrect version about the cause of alleged fire and loss of his car.  After scrutinizing and elaborating the whole facts, situation, records and the evidence, the OPs were compelled to repudiate the claim of the complainant. The complainant was duly informed about the fate of his claim vide letter dated 22.01.2021. Rest of the averments of the complainant were denied by the answering OPs and prayed for dismissal of the present complaint with costs.
5.           Learned counsel for the complainant tendered affidavit of the complainant as Annexure CW-1/A and CW-1/AA alongwith documents as Annexure C-1 to C-31 and closed the evidence on behalf of the complainant. On the other hand, learned counsel for the OPs tendered affidavit of Mona Bagga, Sr. Divisional Manager of OPs–Company, New India Assurance Co. Ltd., Divisional Office, Ambala Cantt, affidavit of Er. Rajesh Sharma, Surveyors & Loss Assessors having its office at Flat No.162, Block G Society, Spangle Candos, Gazipur Road, Dhakoli Gazipur-160055 and affidavit of A.K.Chhattwal, Partner M/s Chhattwal & Associates, Surveyor and Loss Assessors having its office at 135, Ajit Nagar, Ambala Cantt. as Annexure OP-A, OP-B and OP-C respectively alongwith documents Annexure OP-1 to OP-25 and closed the evidence on behalf of OPs.
6.           We have heard the learned counsel for the complainant and learned counsel for the OPs and have also carefully gone through the case file.
7.           Learned counsel for the complainant submitted that since the vehicle in question was insured with the OPs, as such, they were legally bound to pay the claim amount after it suffered the incident of fire as narrated in the complaint, yet, on the other hand, repudiating the claim on the bald ground without substantiating the same, the OPs have committed deficiency in providing service and also indulged into unfair trade practice. 
8.           On the contrary, the learned counsel for the OPs while reiterating the objections and submissions made in their written version submitted that after scrutinizing and elaborating the whole facts, situation, records and the evidence, the OPs were compelled to repudiate the claim of the complainant as per the terms of the policy since the complainant has intentionally and deliberately concealed and suppressed the material facts about the alleged loss and proves to be a self created episode and story to have compensation deceitfully and by playing fraud. He further submitted that the complainant was duly informed about the fate of his claim vide letter dated 22.01.2021. The OPs were right in repudiating the claim, as per terms and conditions of the policy in question and thus cannot be held liable for deficiency in service or guilty of adoption of unfair trade practice.
9.           There is no dispute with regard to the fact regarding issuance of the policy in question, in respect of the said vehicle; that incident of fire which took place on 17.09.2019 was reported by the insured to the OPs during subsistence of the said policy and that the matter was reported to the police, as a result of which, DDR dated 18.09.2019 vide rapat no.16 dated 18.9.2019 was lodged. Admittedly, the OPs rejected the claim filed by the complainant vide letter dated 22.1.2021, Annexure C-6 on following grounds:-

 

1. You have intentionally not presented/produced your said car in question to the authorized Maruti workshop immediately to ascertain the cause of fire inspite of repeated requests and reminders and even written undertaking on your part and destroyed, the entire evidence with the willful and malafide delay only to ensure that the cause of fire should not be detected/identified

 

2. You or your driver failed to take any immediate and effective steps to avoid or minimize the loss to the insured car in question and you further failed to give any proof of you taking any step to inform or to call the fire brigade to extinguish the alleged fire.

 

3. All the claimed facts/explanation by you about not producing the said car to the Maruti workshop for fire cause analysis report or about reporting the matter to the fire brigade are not justified and are rather misrepresentation of facts just to get compensation deceitfully for which you are not legally entitled

 

4. In the light of above observations, it is evident that there was gross negligence and misrepresentation of facts on your part with regard to fulfillment of the terms, conditions and endorsements of the policy

 

10.           First coming to the stand taken by the OPs in repudiation letter that the insured has intentionally not presented/produced the vehicle in question to the authorized Maruti workshop immediately to ascertain the cause of fire and destroyed, the entire evidence to ensure that the cause of fire should not be detected/identified, it may be stated here that the car in question was inspected by Er.Rajesh Verma, Surveyor and Loss Assessor deputed by the OPs, on the very next day of fire incident i.e. 18.09.2019, which fact is also found mentioned in the Spot Survey Report dated 25.09.2019, Annexure OP-10.  In the coloum (Cause  & Nature of Accident), of the said surveyor report, it has categorically been mentioned that “As per the condition of vehicle & discussion with insured representative, cause seems to be true”. It has also been found mentioned in the Coloum (Particulars of Loss/Demages,) of the said report that “The undersigned visited to the spot on 18.09.2019, inspected the said vehicle, taken photographs covering maximum possible extent at damages and noted down the apparent/visible damages”. Thus, once the Surveyor deputed by the OPs has opined that the cause/incident of fire seems to be true and that he inspected the said vehicle at the spot and also took photographs covering maximum possible extent of damage, therefore, plea taken by the OPs that the insured has intentionally not presented/produced the vehicle in question to the authorized Maruti workshop immediately to ascertain the cause of fire and destroyed the entire evidence to ensure that the cause of fire should not be detected/identified, is devoid of merit and  is rejected.
11.           Coming to the second plea of the OPs that the insured or his driver failed to take any immediate and effective steps to avoid or minimize the loss to the insured car in question and further failed give any proof of taking any step to inform or to call the fire brigade to extinguish the alleged fire, it may be stated here that In the coloum Investigation Process (Statement) of the said surveyor report, it has been mentioned that as per the statement, given by Sham Sunder, Driver to the Surveyor, he called on 100 and 101, as a result of which though Police came but fire brigade did not.  This fact has also been confirmed by the insured in his statement given to the said Surveyor. Thus, if the fire brigade did not come on call made by the driver of the vehicle, it cannot be said that no steps were taken by the driver or the insured to extinguish the said fire, especially, when as per statement of one Jatinder Singh, Spot Witness ((Annexure –OP-10)) the fire was of such an extent that it could not be extinguished though he tried to extinguish the same for about 45-50 minutes. Even otherwise, had there been any doubt in the mind of the OPs in that regard, their Surveyor could have easily obtained report from the Fire Brigade Department, which he failed to do so.  As such, this plea also being devoid of merit is rejected.
12.           Coming to third plea taken by the OPs that all the claimed facts/explanation by the insured about not producing the said car to the Maruti workshop for fire cause analysis report or about reporting the matter to the fire brigade are not justified it may be stated here that once the vehicle in question was got inspected for the first time on 18.09.2019 i.e. for spot survey and thereafter final survey was got done on 03.10.2019 and its report, Annexure OP-11, was submitted by the Surveyor on 04.01.2020, wherein the Surveyor has assessed the liability of the OPs to the tune of Rs.7,28,940/- as such,  ground taken by the OPs that the insured failed to produce the vehicle to the Maruti workshop for fire cause analysis report  does not merit acceptance and is accordingly rejected. As far as plea taken by the OPs regarding non-reporting of the matter to the fire brigade is concerned, the same has already been discussed above and accordingly plea taken by the OPs in this regard also stands rejected.
13.           As far as plea taken by the OPs that the insured failed to provide the necessary documents like cause analyzing report; duplicate RC/DL/Fitness; permit verification; vehicle loan statement etc. it may be stated here that the documents duplicate RC/DL/Fitness; permit verification; vehicle loan statement would have definitely obtained by the OPs at the time of selling the policy in question to the complainant and thus the OPs have failed to justify their stand as to why they again required these documents, when it is the definite case of the complainant that all the documents got burnt in the said fire. As far as cause analyzing report is concerned, it may be stated here that this document could have easily obtained by the OPs at their own level through their Surveyors. In the case of Gurmel Singh v. National Insurance Co. Ltd., 2022 SCC OnLine SC 666, the Hon’ble Supreme Court has held that:-

“The insurance company has become too technical while settling the claim and has acted arbitrarily. The appellant has been asked to furnish the documents which were beyond the control of the appellant to procure and furnish. Once, there was a valid insurance on payment of huge sum by way of premium and the Truck was stolen, the insurance company ought not to have become too technical and ought not to have refused to settle the claim on non-submission of the duplicate certified copy of certificate of registration, which the appellant could not produce due to the circumstances beyond his control.”

14.           In view of the ratio of law laid down by the Hon’ble Supreme Court of India, in the above referred case, it is therefore held that the OPs were not justified in repudiating the claim of the complainant.  From the perusal of policy schedule cum certificate of insurance, Annexure OP-3, it is evident that the IDV of the vehicle in question was fixed at Rs.6,12,500/-, whereas, the Surveyor in the Motor final survey report dated 04.01.2020, Annexure OP-11 has assessed the liability of the OPs to the tune of Rs.7,28,940/- on repair basis, meaning thereby that the claim  is payable under Total Loss category. The Surveyor has assessed the liability of the OPs under Total Loss to the tune of Rs.6,12,000/- after deducting Rs.500/- as excess clause. Under these circumstances, the complainant is held entitled to an amount of Rs.6,12,000/- under Total Loss case as assessed by the Surveyor aforesaid. By not making payment of this amount of Rs.6,12,000/-, the OPs are deficient in rendering service. 
15.           In view of the aforesaid discussion, we hereby allow the present complaint and direct the OPs, in the following manner:-
    1. To pay the amount of Rs.6,12,000/-, to the complainant, as has been assessed by Surveyor and Loss Assessor on total loss basis, alongwith interest @6% p.a. w.e.f  22.01.2021, i.e the date of repudiation of claim, onwards.
    2. To pay Rs.5,000/- as compensation for the mental agony and physical harassment suffered by the complainant.
    3. To pay Rs.3,000/- as litigation expenses.  

 

The OPs are further directed to comply with the aforesaid directions within the period of 45 days, from the date of receipt of the certified copy of the order, failing which the OPs shall pay interest @ 8% per annum on the awarded amount, from the date of default, till realization. Certified copy of this order be supplied to the parties concerned, forthwith, free of cost, as permissible under Rules. File be indexed and consigned to the Record Room.

 

Announced:- 04.01.2024

 

(Vinod Kumar Sharma)	(Ruby Sharma)	(Neena Sandhu)
Member	Member	President