Haryana

Karnal

CC/21/2022

Gaurav Kumar - Complainant(s)

Versus

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

Vijay Kamboj

15 May 2024

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, KARNAL.

 

                                                        Complaint No. 21 of 2022

                                                        Date of instt.13.01.2022

                                                        Date of Decision:15.05.2024

 

Gaurav Kumar (deceased) son of Shri Roshan Lal, resident of village Biana, tehsil Indri, District Karnal, through his legal heirs namely:-

 

1. Uma Rani wid/o of late Shri Gaurav Kumar.
2. Eklavya Kamboj (minor) son of late Shri Gaurav Kumar.
3. Taksheel Kamboj (Minor) son of late Shri Gaurav Kumar.

Both minors through her mother and next friend namely Uma Rani.

4. Sudesh Rani mother of late Shri Gaurav Kumar

All resident of village Biana, Tehsil Indri, District Karnal.

 

                                                                        …….Complainants.

                                              Versus

 

The New India Assurance Company Ltd. through its Divisional Manager, Divisional Office, Karnal.

 

                                                                        …..Opposite Party.

 

Complaint under Section 35 of Consumer Protection Act, 2019.

 

Before   Sh. Jaswant Singh……President.       

      Sh. Vineet Kaushik…….Member

      Dr.  Suman Singh…..Member

 

 Argued by: Shri Vijay Kamboj, counsel for the complainants.

                    Shri Naveen Khetarpal, counsel for the OP.

 

                     (Jaswant Singh, President)

ORDER:   

                

                The complainant has filed the present complaint under Section 35 of the Consumer Protection Act, 2019 against the opposite party (hereinafter referred to as ‘OP’) on the averments that complainant is registered owner of one car bearing registration no.HR-75B-8377 Model 2017. The complainant got insured the said vehicle with the OP, vide policy no.12220031201350035726, valid from 21.07.2020 to 20.07.2021. On 13.11.2020, complainant was driving the aforesaid vehicle and coming from village Badarpur towards village Biana. In the way, one tractor was coming from other side, in the meantime one car which was behind the tractor trolley and he overtaking the tractor trolley and to save himself, the complainant turned the car towards left hand side, and became unbalance and struck with the tree on the kacha portion and due to this incident the car had badly damaged and is not in a position to ply over the road. The intimation regarding the said incident was given to the OP through toll free number. On receipt of intimation, OP appointed a surveyor, who visited the spot and made the physical verification of the said car and also completed all the necessary formalities. On asking of the surveyor of the OP, complainant has shifted the car with the help of Karnal Crane Services, Sector-7, G.T. Road, Karnal at Metro Motors Pvt. Ltd., Karnal. The service Manager has prepared the estimate for the repair of the aforesaid vehicle to the tune of Rs.2,17,508/-. In the said incident, the vehicle of complainant has badly damaged and same is neither repairable nor plyable over the road. Thereafter, complainant approached the OP several times and requested to settle the claim but OP did not pay any heed to the request of complainant and lingered the matter on one pretext or the other. Then complainant sent a legal notice dated 09.08.2021 to the OP but it also did not yield any result. Due to this act and conduct of the OP, complainant has suffered great loss, harassment, mental pain and agony. In this way there is deficiency in service and unfair trade practice on the part of the OP. Hence this complaint.

2.             On notice, OP appeared and filed its written version raising preliminary objections with regard to maintainability; cause of action and concealment of true and material facts. On merits, it is pleaded that the after receiving the intimation regarding damage of vehicle, company appointed an IRDA approved independent licensed surveyor Er. G.P. Singh for survey and loss assessment. He submitted his report, as per his report the vehicle is repairable but till today the insured has not repaired his vehicle and not submitted bills after repair which are very much necessary to process the claim of the complainants as per terms and conditions of the policy. The surveyor also mailed to M/s Metro Motors and telephonic calls to insured in respect of carrying out repairs at the earliest. But the complainant failed to do the same. So, the claim of the complainants is not maintainable and same has not been paid to complainants by OP. Moreover, the amount shown for the damages is highly excessive. The actual damages assessed by the competent surveyor is Rs.69453/- instead of Rs.2,17,508/-. It is worthwhile to mention here that the sum insured of vehicle is Rs.1,26,000/- but complainant is not entitled to claim even assessed by the surveyor. 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.             Parties then led their respective evidence.

4.             Learned counsel for the complainants has tendered into evidence affidavit of Uma Rani Ex.C1, copy of insurance policy Ex.C2, copy of RC Ex.C3, copies of driving licence, aadhar card and PAN Card of Gaurav Kumar Ex.C4 and C5, copy of claim intimation letter dated 20.11.2020 Ex.C6, copy of motor claim form Ex.C7, copy of satisfaction-cum-discharge voucher Ex.C8, copy of estimate Ex.C9, copy of invoice of Karnal Crane Services Ex.C10, copy of legal notice Ex.C11, postal receipt Ex.C12, copy of death certificate of Gaurav Kumar Ex.C13 and closed the evidence on 04.10.2023 by suffering separate statement.

5.             On the other hand, learned counsel for the OP has tendered into evidence affidavit of R.K. Mittal Manager Ex.RW1/A, affidavit of Er. G.P. Singh Ex.RW2/A, copy of survey report Ex.R1, copy of mail dated 09.12.2020 Ex.R2, copy of insurance policy Ex.R3 and closed the evidence on 20.03.2024 by suffering separate statement.

6.             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.

7.             Learned counsel for complainants, while reiterating the contents of the complaint, has vehemently argued that during the subsistence of insurance policy, the vehicle of the complainant met with an accident and was totally damaged and not repairable. The intimation was given to the OP. Complainant lodged the claim with the OP and completed all the formalities and requested to settle his claim but OP did not settle the claim. During the pendency of the complaint, complainant died and now present complaint pursued by his LRs and lastly prayed for allowing the complaint.

8.             Per contra, learned counsel for the OP, while reiterating the contents of written version, has vehemently argued that on receipt of intimation, company appointed an IRDA approved independent licensed surveyor, Er. G.P. Singh for survey and loss assessment of the damaged vehicle. The insured/complainants have not repaired his vehicle and not submitted bills till date. Since the vehicle has not been repaired by insured/complainants and not submitted bills after repair, so, the claim of the complainants is not maintainable. The actual damages assessed by the surveyor is Rs.69453/- but complainant is not entitled to claim even assessed by the surveyor as per terms and conditions of the policy and lastly prayed for dismissal of the complaint.

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

10.           Admittedly, the vehicle in question met with an accident during the subsistence of the insurance policy. It is also admitted that the insured declared value of the vehicle was Rs.1,26,000/-. It is also admitted that estimated cost of repair was Rs.2,17,508/-.

11.           OP has alleged that vehicle is repairable but insured/complainants has not repaired thier vehicle till today and not submitted the bills after repair with the OP. The onus to prove their version was relied upon the complainants. To prove their version, complainants have placed on file estimate Ex.C9 issued by Metro Motors (P) Ltd. (TATA), Karnal, to the tune of Rs.2,17,508/- but it is only an estimate, they have not placed on file any repair bill/invoice. On the other hand, surveyor of the OP, vide his report Ex.R1, has assessed the loss to the tune of Rs.69,453/-. Hence the surveyor report will prevail and the complainant is entitled for Rs.69,453/-. In this regard we are relying upon the judgment 2(2008) CPJ paged 182 (NC), United India Insurance Co. Vs. Maya, wherein it has been held that a surveyor report should not be dismissed summarily as the surveyor is independent and qualified person under the relevant provision of Insurance Act, 1938. In view of this authority as well as the facts and circumstances of the case, the OP is liable to pay the loss assessed by the surveyor alongwith interest, compensation for mental agony and harassment and litigation expenses.

 12.          Further, Hon’ble Punjab and Haryana High Court 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”.

                Keeping in view the ratio of the law laid down in aforesaid judgment, facts and circumstances of the present complaint, the act of the OP amounts to deficiency in service and unfair trade practice.

13.           In view of the above discussion, we partly allow the present complaint and direct the OP to pay Rs.69,453/- (Rs. sixty none thousand four hundred fifty three only) as the loss assessed by the surveyor interest @ 9% per annum from the date of filing of the complaint i.e.13.01.2022 till its realization to the complainants. We further direct the OP to pay Rs. 25,000/- to the complainants on account of mental agony and harassment suffered by them and Rs.11,000/- for the litigation expense. The parties concerned be communicated of the order accordingly and the file be consigned to the record room after due compliance.

Announced

Dated:15.05.2024                                                                     

                                                                President,

                                                   District Consumer Disputes

                                                   Redressal Commission, Karnal.

       

                  (Vineet Kaushik)              (Dr. Suman Singh)

               Member                              Member