DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-II

U.T. CHANDIGARH

Parminder Singh Dhaliwal son of Late Sh.Lakhpal Singh Dhaliwal, aged 41 years, H.No.103, A.K.S. Colony, Zirakpur, Punjab.

                                                                                    ---Complainant

V E R S U S

The Oriental Insurance Company Limited, Branch Office, SCO No.45, First Floor, Sector 20-c, Chandigarh, through its Senior Branch Manager.

---Opposite Party

BEFORE:            SHRI LAKSHMAN SHARMA                    PRESIDENT

                        SMT. MADHU MUTNEJA                   MEMBER

                        SH.JASWINDER SINGH SIDHU            MEMBER

Argued By:            Sh.B.C.Saini , Advocate for the complainant

Sh.R.K.Bashamboo , Advocate for the OP.

PER JASWINDER SINGH SIDHU, MEMBER

1]             Complainant (hereinafter referred to as CC for short) has filed the present complaint against the Opposite Party (hereinafter referred to as OP for short) on the ground that the CC was the owner of Vehicle No.Pb-44B-3700 RHINO make & model 2006 and the same was having an insurance effective from 31.7.2007 to 30.7.2008 vide policy No.31/2008/2856.  The insurance policy issuing office is OP. 

                The said vehicle met with an accident on 13.7.2008 near Galari Dhank Kali Mata Mandir Maryog, Distt. Solan (H.P.) and an FIR was lodged on 14.7.2008 vide FIR No.155, registered at P.S.Solan Sadar (Distt. Solan). 

                The CC lodged the claim with OP bearing Claim No.231110/21/2009/841 and one Sh.Subhash Sood was appointed as Surveyor to do the spot Survey on 12.8.2008.  The Surveyor visited the spot and took the photographs of the vehicle at the accident site on the same day.  The Surveyor submitted the Spot Survey Report, dated 12.3.2009 along with few comments. Thereafter, the CC received a letter dated 29.4.2009 seeking explanation from the CC about one month’s delay in intimating the happening of the accident of vehicle in question to the OP.  The CC responded with a legal notice dated 31.7.2009 answering the objections of the OP.  The CC thereafter sent another letter dated 22.10.2009 to OP in reply to the letter 13.08.2009, stating that the question of delay in informing the OP does not arise at all because the Salvage of the damaged vehicle could not be retrieved, as it had ultimately swept away in the flash floods. 

                CC alleging deficiency on the part of the OP seeks the relief of payment of Rs.4.00 lacs being IDV of the vehicle in question along with interest @18% from the date of filing of the claim.  Rs.2.00 lakh for compensation, mental agony and harassment along with Rs.50,000/- as litigation cost.

2]             On notice, OP filed their versions. 

                The OP has taken a preliminary objection to the fact that this Forum does not have any jurisdiction to try the present complaint as there is no defect, deficiency, delay or negligence on their part in rendering service to the complainant.

                On merits, OP states that the vehicle met with an accident on 13.7.2008, whereas the intimation of the accident to them was made on 12.8.2008 i.e. after about one month.  That immediately on receipt of intimation, Surveyor was appointed, who conducted the Spot Survey on the same day.  On demand of original R.C., Driving License and other documents by the Surveyor, CC again failed to respond promptly.  Thereafter, a letter dated 29.4.2009 was sent to the CC informing about his violation of Terms & Conditions of Policy by not informing the OP immediately of the occurrence of the accident.  Even the requirements raised vide their Letter dated 29.4.2009 was not met by the CC. 

                The OP has also found fault with the CC being careless in not recovering the vehicle from the site of the accident and allowing it to remain there, resultantly the same got washed-away in flash floods and heavy rains.  This has led to the situation that no more assessment could be made about the loss than the one made out at the site of the accident. 

                The OP has also taken the stand that as the CC failed to respond to the directions of the surveyor for completion of formalities as per the Claim Form Annexured R-1. The copy of Surveyor’s Report is Annexured R-2 and the copy of letter dated 29.04.2009 is Ann. R-3.

                The OP has stated in its version that the CC has faulted on his responsibilities of not intimating the happening of accident immediately.  Thereafter, the CC violated another condition of the policy, wherein it was incumbent upon him to safeguard the vehicle insured and in the event of any accident or break-down the vehicle insured shall not be left unattended without proper precaution being taken to prevent further damage or loss or any extension of damage shall be entirely of the insured’s own risk. 

                The OP has stated in its reply under the heading merits in Para-6 that even the intimation given to the police is just information. The police have neither investigated the matter nor have given its findings whether the contents of the DDR are correct. 

                The OP has admitted in its version about the receipt of legal notice sent by the CC and the same is said to be replied through their counsel one Sh.G.S.Ahluwalia, Advocate.  The said version of the OP is supported by an affidavit of Sh.Milap Chand, Sr.D.M. of the OP. The affidavit so filed is nothing but the replica of their version. 

3]             Parties led their respective evidences.

4]             Having gone through the entire complaint and version of OPs and the evidence of the parties, we came to the following conclusion:-

i)      It is an established fact that the said vehicle in question was insured by the OP and it met with an accident that took place on 13.7.2008 near Galari Dhank Kali Mata Mandir Maryog, Distt. Solan (H.P..) An FIR was lodged on 14.7.2008 vide FIR No.155, registered at P.S.Solan Sadar (Distt. Solan). 

It is important to visit the FIR NO.155, dated 14.7.2008 wherein “the person one Balwant Singh son of Virender Singh, R/o Vill. Maryog, P.O. Daro Devariya, P.S.Sadar Solan, Distt. Solan (H.P.) aged 33 years, was running a Dhaba under the name of Lucky Dhaba ,stated that It was from the passing by vehicles that he came to know about a vehicle having caught fire and had fallen in the “Khud” near Kali Mata Mandir. After reaching the very spot, he made a telephonic call to the police intimating the same and the police reached the spot and joined other persons to find out about the fate of the occupants of the vehicle, but were unsuccessful……” 

ii)     It is clear from the contents of the FIR that the happening of the accident was report to the police immediately.  Though, the intimation made to the OP is dated 12.8.2008 and the claim form was probably supplied to the CC on the same day, which is Ann.R-1.  The Surveyor too was appointed on that very day and he visited the site on 12.8.2008 at 6.00 P.M. 

iii)        While going through Ex.R-1 i.e. Motor Claim Form, it is revealed that on Page-3 under the heading Damage to Insured Vehicle, Column (a) it is mentioned “Total Loss”, whereas, Ex.R-2  dated 12.3.2009 is the Spot Survey Report, wherein the Surveyor has listed the damages under 19 different headings. The report finally ends with the comment that “….there is every likelihood that more damage may come into light at the time of Final Survey”.  We believe that as per intimation of CC he had suffered a Total Loss of his vehicle, whereas the Surveyor took as much as 7 month’s time to submit his Spot Survey Report and this report is still open-ended, and still not final. 

iv)    It is also observed that a note is given at the end of Spot Survey Report that “Vehicle was not in road worthy condition, toeing may be allowed accordingly.  The Terrain was very tuff undersigned reached the spot with very difficulty.”  This note clearly tells about the ground reality of the site where the damaged vehicle was lying.  It is beyond our comprehension that when all the four tyres, tubes are burnt to ashes and rims were heated up, as per the Spot Survey Report, the Surveyor has asked the vehicle to be toed whereas it has left the fact unexplained as to how the vehicle will reach the Road before toeing is carried out.  It is clear from the photographs Ann.C-4 to C-11 that the vehicle is nothing but a bundle of steel lying at the river bed, deep in the “Khud”. 

                To our surprise, though OP has objected vehemently about the delay by CC in intimating about the accident, but it has given complete liberty to the Surveyor to sleep over the matter for over 7 month’s and even at the end of it, the report is incomplete.

v)     The OP has stated time and again, in their reply to the legal notice, in the letter dated 29.4.2009 sent after the Spot Survey Report, as well as, in their version that the CC has failed to fulfill his obligations with regard to the said policy conditions.  But at the same time, we feel that OP too was responsible for few duties and responsibilities mentioned in Insurance Regulatory and Development Authority (Protection of Policyholder’s Interest) Regulations, 2002. 

                Under Clause 9 - Claim procedure in respect of a general insurance policy – under which the case of the CC lies, needs to be  reproduced, under Clause-9 (1) to (5):-

(1) An insured or the claimant shall give notice to the insurer of any loss arising under contract of insurance at the earliest or within such extended time as may be allowed by the insurer. On receipt of such a communication, a general insurer shall respond immediately and give clear indication to the insured on the procedures that he should follow. In cases where a surveyor has to be appointed for assessing a loss/ claim, it shall be so done within 72 hours of the receipt of intimation from the insured.

(2) Where the insured is unable to furnish all the particulars required by the surveyor or where the surveyor does not receive the full cooperation of the insured, the insurer or the surveyor as the case may be, shall inform in writing the insured about the delay that may result in the assessment of the claim. The surveyor shall be subjected to the code of conduct laid down by the Authority while assessing the loss, and shall communicate his findings to the insurer within 30 days of his appointment with a copy of the report being furnished to the insured, if he so desires. Where, in special circumstances of the case, either due to its special and complicated nature, the surveyor shall under intimation to the insured, seek an extension from the insurer for submission of his report. In no case shall a surveyor take more than six months from the date of his appointment to furnish his report.

(3) If an insurer, on the receipt of a survey report, finds that it is incomplete in any respect, he shall require the surveyor under intimation to the insured, to furnish an additional report on certain specific issues as may be required by the insurer. Such a request may be made by the insurer within 15 days of the receipt of the original survey report.

Provided that the facility of calling for an additional report by the insurer shall not be resorted to more than once in the case of a claim.

(4) The surveyor on receipt of this communication shall furnish an additional report within three weeks of the date of receipt of communication from the insurer.

(5) On receipt of the survey report or the additional survey report, as the case may be, an insurer shall within a period of 30 days offer a settlement of the claim to the insured. If the insurer, for any reasons to be recorded in writing and communicated to the insured, decides to reject a claim under the policy, it shall do so within a period of 30 days from the receipt of the survey report or the additional survey report, as the case may be.

5]             There are duties and responsibilities of a Surveyor and Loss Assessor as mentioned under CHAPTER -IV of INSURANCE SURVEYORS and LOSS ASSESSORS [licensing, Professional Requirements and Code Of Conduct] Regulations, 2000, wherein under Clause 13(2)(iv) it is mentioned that “examining, inquiring, investigating, verifying and checking upon the causes and the circumstances of the loss in question including extent of loss, nature of ownership and insurable interest;” Under Clause 13(2)(vi) it is mentioned that “estimating, measuring and determining the quantum and description of the subject under loss;”  Under Clause 13(2)((vii) it is mentioned that “advising the insurer and the insured about loss minimization, loss control, security and safety measures, wherever appropriate, to avoid further losses’”

6]             Having visited the above clauses, we find that there is a definite case of deficiency in service on the part of OP in not informing and intimating the CC/insured about the manner in which he was to conduct himself so that the assessment of the loss suffered by him could be done at the earliest and further losses are contained.  In the present circumstances, where even the claim of the CC is still lying open-ended as is evident from the letter dated 29.4.2009 seeking explanation from the CC as well as in the last line of the said letter it is mentioned  that “You are requested to comply with the above, at the earliest, to enable us to give the matter one further attention”, whereby it is clear that the OP has not repudiated the claim of the CC till date.

7]             It is observed that it was during the period when the assessment was lying at the end of the Surveyor, the vehicle in question, which could not be retrieved from the valley by the CC, on lack of intimation, ultimately got washed away in flash floods.  This one happening now cannot be undone and the assessment about the value of the salvage of the “Total Loss” vehicle as mentioned in the claim form Ann.R-1, cannot be ascertained.  However, we feel that OP having failed in their responsibility and duty, the quantum of the loss suffered by the OP due to non-retrieval of salvage, should be borne by them. The CC should not be burdened for the loss caused due to the negligent act of non-intimation of this fact by the OP.

8]             Under present circumstances, we find a definite act of deficiency in service on the part of the OP and direct them to release the amount due towards the CC on the basis of “Total Loss” as mentioned in the Claim Form Ann.R-1 on the “Insured Declared Value” of Rs.4 lacs [Rupees Four Lacs Only] as mentioned in the policy document, without deducting any amount for the loss of salvage.          This order of ours be complied within a period of 30 days from the date of receipt of its copy, failing which the OP shall be liable for an interest @18% p.a. on the amount due towards them from the 11.2.2009 i.e. after 6 months of lodging of claim with the OP till its realization. 

                OP is also burdened with Rs 5,000 against cost of litigation. However, there is no order as to compensation. The complaint stands disposed of accordingly in the above terms. 

                Certified copy of this order be communicated to the parties, free of charge. After compliance file be consigned to record room.

Announced

22.09.2011

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                                                           (LAKSHMAN SHARMA)

PRESIDENT

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(MADHU MUTNEJA)

MEMBER 

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(JASWINDER SINGH SIDHU)

MEMBER