Haryana

Karnal

CC/59/2021

Gaurav - Complainant(s)

Versus

The New India Assurance Company Limited - Opp.Party(s)

Rajesh Gupta

03 May 2024

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, KARNAL.

 

                                                      Complaint No.59 of 2021

                                                      Date of instt.29.01.2021

                                                      Date of Decision:03.05.2024

 

Gaurav aged 28 years son of Shri Ram Singh, resident of Village Butan Kheri, Tehsil Indri, District Karnal.

                                               …….Complainant.

                                              Versus

 

1. The New India Assurance Company Limited, office at Gagan Building, Opposite Bus Stand, G.T. Road, Karnal, through its Branch Manager/authorized signatory.
2. Mahindra Finance, 2^nd Floor, 87-88, Mahila Ashram Complex, Karnal through its Branch Manager.

…..Opposite Parties.

       

Complaint Under Section 35 of Consumer Protection Act, 2019.

 

Before   Shri Jaswant Singh……President.

              Shri Vineet Kaushik…….Member

              Dr. Suman Singh……Member

          

Argued by:  Shri Rajesh Gupta, counsel for complainant.

                    Shri Naveen Khetarpal, counsel for OP No.1.

                    Shri Dheeraj Sacheva, counsel for 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 complainant is registered owner of a car bearing registration No.HR26BT-0117, which was insured with the OP No. 1 against insurance policy No.35360131190100005623 valid from 03.12.2019 to 28.08.2020. The said car was purchased by the complainant after availing loan from OP No.2 and was paying installments regularly till January 2012 except four-five installments due to some financial problem. On 10.02.2020 at about 6.00. PM. the aforesaid car of the complainant met with an accident on Nilokheri to village Sandhir road, District Karnal and in that accident, the aforesaid car has badly damaged. In this regard, FIR was registered and intimation was also given to the OP No.1. OP No.1 appointed a surveyor and all the requisite documents were supplied to him. The surveyor of OP inspected the vehicle carefully and has been given his report. As per report of surveyor, the vehicle of complainant has been totally damaged and advised estimated cost of repair of said vehicle as Rs.16,69,635.64/-. Complainant visited the office of OP No. 1 at Karnal after few days of the accident and submitted claim form along with all documents and requested to release the amount of claim of damaged vehicle but despite several requests to the OP No.1, they did not pay any heed to the request of the complainant and prolonged the matter under one pretext or the other. Complainant also approached the OP No.2 and requested Branch Manager that the monthly installment of the said vehicle against the loan may be withheld for next six month, because his vehicle has met with an accident and also he has sustained multiple and grievous injuries in this accident. A huge amount has been spent on the treatment of the complainant and now he is unable to deposit the installment against the car loan. In this aspect the complainant has also moved an application to OP No.2 on 7.1.2021 but the OP No.2 is continuously demanding the monthly installment through its agent/representatives and declined the genuine request of the complainant. The complainant was shocked when he received a letter dated 10.02.2020 from the OP No.1 wherein the OP No.1 informed the complainant that the claim of vehicle of complainant has been repudiated. The complainant had also approached Sidak Automobile, Karnal for repairing the said vehicle but prior to repair of the said car, Sidak Automobile, Karnal started demanding an amount of Rs.1,00,000/- from the complainant by saying that the same would be adjusted after receipt of claim amount from the company of the OP. The complainant is not in a position to deposit the parking charges. The complainant on account of non-availability of said car with him is suffering a lot of mental harassment, humiliation as well as financial loss. Hence the complainant was left with no other alternative but to file the present application/suit.

2.             On notice, OP no.1 appeared and filed its written version, raising preliminary objections with regard to maintainability; cause of action, estoppels, and concealment of true and material facts. On merits, it is pleaded that the vehicle was got damaged on 10.02.2020 and OP was intimated on 25.05.2020 i.e. after the delay of 103 days of accident. After receiving the intimation regarding damage of vehicle, OP appointed Karnal associates Investigator to investigate the matter who submitted his detailed report dated 18.08.2020 and confirmed that at the time of accident the driver Gaurav was in drunken condition. Since, the insured violated the terms and conditions of the insurance policy thus, OP is not liable to pay the claim as per terms and conditions of the insurance policy. 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 appeared and filed its separate written version raising preliminary objections regarding maintainability; abuse of process of law; estoppels, etc. On merits, it is pleaded that complainant approached the OP for loan of commercial vehicle for purchase of SKODA Rapid Carand accordingly a written agreement was executed between the parties and an amount of Rs.1,50,000/- was disbursed to the complainant vide loan No.6423373 on 31.08.2019. As per record, the loan of complainant has been closed and NOC has already been issued in favour of complainant. 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 RC Ex.C1, copy of DL Ex.C2, copy of insurance policy Ex.C3, copy of loan payment summary Ex.C4, copy of FIR Ex.C5, copy of MLR Ex.C6, copy of hospital card Ex.C7, copy of estimate of car Ex.C8, copy of repudiation letter dated 27.10.2020 Ex.C9, copy of letter dated 07.01.2021 Ex.C10, copy of postal receipt Ex.C11, copy of superdari Ex.C12 and closed the evidence on 03.11.2022 by suffering separate statement.

6.             On the other hand, learned counsel for the OP No.1 has tendered into evidence affidavit of R.K.Mittal as Ex.RW1/A, affidavit of Balbir Singh, Investigator Ex.RW2/A, and affidavit of Engineer Y.K.Arora Ex.RW3/A, copy of repudiation letter dated 27.10.2020 Ex.R1, copy of investigation report Ex.R2, copy of surveyor report Ex.R3, copy of insurance policy Ex.R4, copy of terms and conditions Ex.R5 and closed the evidence on 04.10.2023 by suffering separate statement.

7.             Learned counsel for the OP No.2 has tendered into evidence affidavit of Chetan Sharma, GPA holder Mahindra and Mahindra Financial Services Ltd Ex.RW2/A, copy of loan agreement Ex.OP2/A, copy of statement of account Ex.OP2/B and closed the evidence on 09.02.2023 by suffering separate statement.

8.             We have heard the learned counsel for 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 the complaint, has vehemently argued that complainant is the registered owner of car bearing registration No.HR26BT-0117 and the same was insured with the OP No.1. During subsistence of the insurance policy, the car in question met with an accident. The complainant informed the OP no.1 regarding the said accident. OP appointed a surveyor to investigate the matter. All the relevant documents were submitted to the OP no.1 as well as to the surveyor but despite that the claim of the complainant has been repudiated on false and frivolous grounds and lastly prayed for allowing the complaint.

10.           Per contra, learned counsel for the OP No.1, while reiterating the contents of written version, has vehemently argued that car in question was damaged in an accident on 10.02.2020 and the OP was intimated on 25.05.2020 i.e. after a delay of 103 days of accident. On receipt of intimation with regard to accident, the said claim was duly processed, the surveyor had conducted the survey, assessed the loss and submitted its report and found that at the time of accident the driver drunk. The claim of the complainant stands repudiated as the complainant has violated the terms and conditions of insurance policy. There is no deficiency in service and unfair trade practice on the part of the OP and lastly prayed for dismissal of complaint.

11.           Per contra, learned counsel for the OP No.2, while reiterating the contents of written version, has vehemently argued that the claim of complainant is only against the OP No.1, and there is no role of OP No.2 and hence, prayed for dismissal of complaint qua OP No.2.

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

13.           Admittedly, the vehicle in question met with an accident during the subsistence of the insurance policy.

14.           The claim of the complainant has been repudiated by the OP No.1, vide repudiation letter Ex.C9/Ex.R1 dated 27.10.2020, on the following grounds which are reproduced as under:-

“Accident took place on 10.02.2020 but intimation for deputation of Surveyor was given by you on 25.05.2020, after 103 days of occurrence, thereby no opportunity is given by you to know facts and finding of the case whereas “as per policy condition No.1 notice shall be given in writing to the company immediately upon the occurrence of any accidental loss or damage in the event of any claim and thereafter the insured shall give all such information and assistance as the Company shall require.

During course of investigation, it is find that driver Mr.Gaurav driving vehicle at the time of accident was alcohol drunken thereby violating Standard Form for Pvt. Car Package Policy Section I, No.4 (c) which reads that “any accidental loss or damage suffered whilst the insured or any person driving the vehicle with the knowledge and consent of the insured is under the influence of intoxicating liquor or drugns” the company shall not be liable to make any payment. 

Based on the facts stated above, claim is not maintainable and file has been closed as repudiated.”

15.           The claim of the complainant has been repudiated by the OP on the above mentioned ground. The onus to prove its version that at the time of accident the complainant was drunk was relied upon the OP but OP has miserably failed to prove the same by leading any cogent and convincing evidence. During the investigation by the investigator one Ajmer Singh has stated that Gaurav was drunk at the time of accident. The OP has not examined said Ajmer Singh during the course of evidence in order to prove the said fact. Moreover, the Investigation Report Ex.R2 is only a photocopy, which has no value in the eyes of law.  Furthermore, no medical report has been placed on file by the OP from which it can be ascertained that at the time of accident the complainant was drunk. Hence, this plea taken by the OP is having no force.  

16.           The OP further has also alleged that the complainant has intimated the OP No.1 after delay of 103 days. If there is delay in lodging the claim to the OP No.1 by the complainant and due to this the very right of spot inspection of vehicle has been deprived and complainant has violated the terms and conditions of the insurance policy. If for the sake of gravity, if it is presumed that complainant has violated the terms and conditions of the insurance policy, in that eventuality, the claim of the complainant cannot be repudiated in toto.  In this regard, we can rely upon the case laws cited in Revision Petition no.1870 of 2015(NC) decided on 14.08.2018 titled as New India Assurance Co. Ltd. Versus Thirath Singh Brar, and authority of our own Hon’ble State Commission in First Appeal no.717 of 2016 decided on 6.4.2017 titled as United India Insurance Company Limited and others Versus Anshul Bansal.  In both judgments it was held that in case of any breach of warranty/condition of the policy the insurer is liable to pay 75% of admissible claim on non-standard basis.

17.           Further,  Hon’ble Punjab and Haryana High Court in case titled as New India Assurance Company Ltd. Versus Smt. Usha Yadav & others 2008 (3) RCR (Civil) 111, has held as under:-

“It seems that the Insurance Companies are only interested in earning the premiums which are rather too stiff now a days, but are not keen and are found to be evasive to discharge their liability. In large number of cases, the Insurance companies make the effected people to fight for getting their genuine claims. The Insurance Companies in such cases rely upon clauses of the agreements, which a person is generally made to sign on dotted lines at the time of obtaining policy. This is, thus pressed into service to either repudiate the claim or to reject the same. The Insurance Companies normally build their case on such clauses of the policy, but would adopt methods which would not be governed by the strict conditions contained in the policy”.

 

18.           Keeping in view the ratio of the law laid down in the abovesaid authorities and the facts and circumstances of the present complaint, we are of the considered view that the act of the OP No.1 amounts to deficiency in service and unfair trade practice while closing the claim of the complainant in toto. Hence, complainant is entitled to get 75% only of the admissible claim on non-standard basis.

19.           Admittedly, the vehicle in question had been totally damaged in the said accident. As per insurance cover note the Insured Declared Value of the vehicle is Rs.3,00,000/-. Thus, the complainant is entitled for Rs.2,25,000/- i.e. 75% of IDV, alongwith interest, compensation and litigation expenses. 

20.           In view of the above discussion, we partly allow the present complaint and direct the OP No.1 to pay Rs.2,25,000/- (Rs. Two lacs twenty five thousand only) i.e. 75% of the insured amount to the complainant alongwith interest @ 9% per annum from the date of closing of the claim till its realization. We further direct the OP No.1 to pay Rs.25,000/- to the complainant on account of mental agony and harassment suffered by him and Rs.11,000/- towards  the litigation expenses. This order shall be complied within 45 days from the receipt of copy of this order. The complainant is also directed to get all the formalities completed with regard to transfer of vehicle/ cancellation of the RC as and when the OP desire. Complaint qua OP No.2 stands dismissed. The parties concerned be communicated of the order accordingly and the file be consigned to the record room after due compliance.

Announced

Dated: 03.05.2024                             

                                                          President,

                                             District Consumer Disputes

                                             Redressal Commission, Karnal.

 

(Vineet Kaushik)        (Dr. Suman Singh)

                          Member                     Member