Before the District Consumer Disputes Redressal Forum, Room No. 208 2nd Floor, District Administrative Complex, Tarn Taran
Consumer Complaint No : 92 of 2018
Date of Institution : 06.09.2018
Date of Decision : 22.10.2019
Balkar Singh Proprietor Daljit Trading Co. resident of 417 Race Course Road, Amritsar.
...Complainant
Versus
United India Insurance Company, Amritsar Road Opposite SSP Office, Tarn Taran Punjab through its Manager.
…Opposite Party
Complaint Under Section 12 and 13 of the Consumer Protection Act, 1986.
Quorum: Sh. Charanjit Singh, President
Smt. Jaswinder Kaur, Member
For Complainant Sh. Nitin Sharma Advocate
For Opposite Party Sh. Sandeep Khanna Advocate
ORDERS:
Charanjit Singh, President;
1 The complainant Balkar Singh has filed the present complaint against the opposite party on the allegations that he is owner of Car Skoda Laura bearing No. PB-02BA-6600 having Engine No. BXEV2660 Chassis No. 87A154343. The complainant got the insurance of the above said car from the opposite party from time to time since 27.12.2007 and from 27.12.2007 to 26.12.2008 paid the Insurance Premium on car value of Rs. 15,85,000/- and thereafter, from 29.12.2008 to 28.12.2009 paid Insurance Premium at the value of the car Rs. 13,50,000/- and thereafter from 29.12.2009 to 28.12.2010 paid insurance premium at the value of the Car Rs. 12,00,000/- and thereafter, from 29.12.2010 to 28.12.2011 paid premium at the value of car Rs. 10,00,000/-and thereafter from 29.12.2011 to 28.12.2012 paid insurance premium at the value of Rs. 9,00,000/- and thereafter from 11.1.2013 to 10.1.2014 paid the premium at the value of the car of Rs. 8,00,000/- and thereafter from 11.1.2014 to 10.1.2015 at the value of car of Rs. 7,00,000/- and lastly got insurance from 11.1.2015 to 10.1.2016 and paid the premium for the value of the car at Rs. 6,70,000/-. The opposite party after accessing the value of the car at Rs. 6,70,000/- agreed to insurer the same at price of Rs. 6,70,000/- in private car package policy. The complainant paid the premium to the opposite party from time to time and hired the services of the opposite party for valuable consideration and as such, the complainant is consumer of the opposite party and falls under the definition of consumer. The complainant never claimed any compensation amount from the insurance company i.e. opposite party for the above said period. On 9.12.2015, the above said car met with an accident due to sudden coming of stray cow in front of car when the complainant alongwith his son Harpreet Singh were coming back from Delhi to Tarn Taran and regarding the same a DDR No. 40 dated 11.12.2015 was registered by P.S. Doraha. Thereafter the complainant taken the vehicle to authorized agency i.e. Krishna auto sales for repair but the estimate made by the said Krishna Auto Sales came to Rs. 16,01,393/- as such, it is a case of total loss and thereafter the complainant submitted to the opposite party regarding the insurance claim for the above said vehicle but the opposite party vide letter dated 29.3.2016 flatly refused to pay the total insured amount of Rs. 6,70,000/- and has only stated that they will pay Rs. 3,30,000/- after deducting Rs. 90,000/- for wreck value and deduction of excess clause out of Rs. 4,25,000/- which was alleged accessed by the surveyor. The contract of the insurance was entered the complainant and opposite party out of free will and value accessed by the opposite party of the vehicle being Rs. 6,70,000/- and at present opposite party is only showing its ability to Rs.3,30,000/- which is not accepted to the complainant. The present case is a case of total loss and as such, the surveyor has no role to play in the present case. The complainant approached the opposite party time and again and requested to pass his claim of total loss but the opposite party has not heard the genuine request of the complainant. The act of the opposite party amounts to negligence and deficiencies in services and has also caused mental pain, agony and harassment to the complainant. The complainant has prayed that the opposite party be directed to pay the total loss amount of Rs. 6,70,000/- alongwith interest at the rate of 18% per annum thereon and also prayed Rs. 2,00,000/- as compensation and Rs. 11,000/- as litigation expenses. Alognwith the complaint, the complainant has placed on record his affidavit Ex. C-1, copy of RC Ex. C-2, Copy of Rapat No. 40 Ex. C-3, Estimate of Krishna Auto Sales Ex. C-4, Letter dated 29.3.2016 Ex. C-5, Claim lodged to the opposite party Ex. C-6, Letter dated 16.5.2016 Ex. C-7, Information under RTI Ex. C-8, Surveyor Report Ex. C-9, Complaint filed before the Consumer forum Amritsar Ex. C-10, Affidavit of complainant filed before the Consumer Forum Amritsar Ex. C-11, Certified copy of order dated 5.6.2018 Ex. C-12, Form B Ex. C-13, Affidavit of Navdeep Singh Ex. C-14.
2 After formal admission of the complaint, notice was issued to Opposite Party and opposite party appeared through counsel and filed written version contesting the complaint by taking preliminary objections that the complainant is estopped from filing the present complaint. The present complaint is not maintainable and is barred since the complainant had previously filed a complaint on the same cause of action which was dismissed by the District Forum, Amritsar vide order dated 5.6.2018 on the ground that the said forum had no territorial jurisdiction. However, the complainant has filed the present complaint for the second time before this Forum on the same cause of action which is not legally maintainable. The complaint is liable to be dismissed on this score alone. The complainant is not covered under the definition of Consumer as defined in Consumer Protection Act 1986. The complainant is not an authorized person to file the present case on behalf of insured firm. The complainant has no right to invoke jurisdiction of this Forum. The present complaint is not maintainable being a pre mature one. In the present case, the claim in question has never been repudiated or disallowed by the opposite party. Rather the claim of the complainant was pending disposal at the time of filing of the present complaint. The complainant has got no cause of action to file the present complaint. The competent authority of the opposite party had approved the claim of the complainant for an amount of Rs. 3,33,000/- and the opposite party was ready and willing to pay the said amount. The present complaint has been filed by the complainant to drag the opposite party in to unnecessary litigation. The complainant is estopped by his own act and conduct from filing the complaint. The opposite party had appointed Er.Avinash Vyas, Surveyor & Loss Assessor in the present case who has assessed the loss on the basis of Net of Salvage basis, considering the market value of the car. As per the said report, the amount came to Rs.4,25,000/- and after deducting Rs. 90,000/- as wreck value and Rs.2,000/- as excess clause and net payable amount was assessed as Rs.3,33,000/- . The complainant was intimated vide letters dated 29.3.2016 and 13.6.2016 to get his car repaired and submit the bills for settlement of the claim. The complainant failed to do so and as such, the opposite party is not liable for the loss in question. The complainant has violated the basic terms and conditions of the insurance policy in question and hence the present complaint is not maintainable. The intimation regarding the accident in question was not given immediately by the complainant to the opposite party. The accident took place on 9.12.2015 as alleged, but the same was intimated to the opposite party on 14.12.2015 for a long unjustified delay of 6 days. The complainant is not entitled to the relief claim for. The complainant has not approached this Forum with clean hands and has tried to conceal the material facts. The claim has never been repudiated, rather the competent authority of the opposite party had approved the claim of the complainant for an amount of Rs. 3,33,000/- and the opposite party was ready and willing to pay the said amount. There is no deficiency on the part of the opposite party and the relief towards the interest and damages etc. is not payable as such in this regard it is submitted that basically neither there is any provision under the consumer Protection Act nor there is any agreed clause in the contract of insurance to pay such life. On Merits, it was pleaded that the parties are governed as per terms and conditions of the contract of insurance. The complainant is not an authorized person to file the present case on behalf of the insured firm. As such, the complainant has no right to invoke jurisdiction of this Forum. The opposite party has denied the other allegations of the complaint and reiterated the stand as taken in the preliminary objections of the written version and prayed for dismissal of the complaint. Alongwith the written version, the opposite party has placed on record affidavit of Satpal Assistant Manager United India Insurance Co. Ltd. Ex. OP-1, Photostat copy of Insurance Policy Ex. OP-2, Original Intimation of Loss Ex. OP-3, Photostat copy of death certificate Ex. OP-4, Photostat copy of Survey Report Ex. OP-5.
3 We have heard the Ld. Counsels for the complainant and opposite party and have gone through the evidence and documents placed on the file by the parties.
4 In the present case, insurance is not disputed and accident of the vehicle in question is not disputed. The case of the complainant is that the complainant is owner of Car Skoda Laura Bearing its registration No. PB-02BA-6600 which he got insured with the opposite party from 11.1.2015 to 10.1.2016 against the Insured Declared Value of Rs. 6,70,000/-. On 9.12.2015 the car of the complainant met with an accident due to sudden coming of stray caw. The complainant has also lodged a DDR No. 40 dated 11.12.2015 at Police Station Daroha which is Ex. C-3, Estimate from Krishna Auto Sales for an amount of Rs. 16,01,393/-. The complainant has also placed on record one document of insurance company Ex. C-5 in which the opposite party has assessed the net payable amount of Rs. 3,33,000/- The complainant has also placed on record one applications dated 1.4.2016 Ex, C-6, 16.5.2016 Ex. C-7 addressed to the Branch Manager, United India Insurance Co. Ltd. Opp. SSP Office, ASR Road Tarn Taran in which the complainant has requested to give the claim of Rs. 6,70,000/- of the total loss of the car. On the other hands, the case of the opposite party is that the competent authority of the opposite party had approved the claim of the complainant for an amount of Rs. 3,33,000/- and the opposite party was ready and willing to pay the said amount. The opposite party had appointed Er.Avinash Vyas, Surveyor & Loss Assessor in the present case who has assessed the loss on the basis of Net of Salvage basis, considering the market value of the car. As per the said report, the amount came to Rs.4,25,000/- and after deducting Rs. 90,000/- as wreck value and Rs.2,000/- as excess clause and net payable amount was assessed as Rs.3,33,000/- . The complainant was intimated vide letters dated 29.3.2016 and 13.6.2016 to get his car repaired and submitted the bills for settlement of the claim. The opposite party has placed on record affidavit of Satpal Assistant Manager United India Insurance Co. Ltd. Ex. OP-1, Photostat copy of Insurance Policy Ex. OP-2, Original Intimation of Loss Ex. OP-3, Photostat copy of death certificate Ex. OP-4, Photostat copy of Survey Report Ex. OP-5. As per Ex. C-5 the opposite party on the basis of survey report has assessed the loss on net of salvage basis considering the present market value of the car which comes to Rs. 4,25,000/- out of which wreck value is Rs. 90,000/- and after deducting excess clause, net payable is Rs.3,33,000/-. In the present case IDV of the vehicle is not disputed because in the survey report the sum insured is written as Rs. 6,70,000/-. Vide Ex. C-4 the estimate amount of the repair is mentioned as Rs. 16,01,393 and the complainant has also placed on record affidavit of Navdeep Singh Service Manager Krishna Auto Sales Near Freedom Industry Amritsar Ex.C-14 in which he has stated that on 9.12.2015, he prepared the bill regarding the repair of vehicle NO. PB-02BA-6600 belonging to Balkar Singh. As per the estimate regarding the repair of vehicle a total cost of Rs. 16,01,393/- will be borne by the owner of the vehicle for its report. As such the estimate Ex. C-4 has been proved on record by the complainant while placing on record the affidavit of Navdeep Singh Ex. C-14. The whole of the case of the opposite party revolves around the survey report Ex. OP-5. But in the present case, to prove the report of surveyor Ex. OP-5, the opposite party has not placed on record the affidavit of surveyor. In the absence of which no evidentiary value can be made on the report submitted by the surveyor. Reliance in this connection has been placed upon Manikant Vs. New India Assurance Co.Ltd. 1(2012) CPJ 88 (NC) of the Hon’ble National Commission wherein it has been held that the surveyor did not appear in court and subject himself to cross examination nor was any affidavit filed by him to prove his report . Producing a document in court does not by itself constitute proving the document. It has to be backed by credible evidence. In the instant case, no evidence was led to prove the surveyor’s report in the absence of which the surveyor’s report has little evidentiary value. The complainant has submitted all the documents for settlement of claim. The opposite party on the one hand is saying that there is long un justified delay of 6 days in intimation and on the other hands, the opposite party is alleging that the complainant is entitled to Rs. 3,33,000/-, meaning thereby the opposite party is not clear upon stand. The point taken by Opposite Party is that the accident took place on 9.12.2015 but the same was intimated to the opposite party on 14.12.2015 after long unjustified delay of 6 days. This delay in the opinion of the Forum is not such a delay which could compel the insurance company to close or repudiate the claim of the complainant. Otherwise also, a circular dated 20.9.2011 was issued by IRDA, referred to all the insurance companies, which reads as under:-
“Circular
To: All Life Insurers and non-life insurers
Re: Delay in claim intimation/ documents submission with respect to
i) All life insurance contracts and
ii) All Non-life individual and group insurance contracts.
The Authority has been receiving several complaints that claims are being rejected on the ground of delayed submission of intimation and documents.
The current contractual obligation imposing the condition that the claims shall be intimated to the insurer with prescribed documents within a specified number of days is necessary for insurers for effecting various post claim activities like investigation, loss assessment, provisioning, claim settlement etc. However, this condition should not prevent settlement of genuine claims, particularly when there is delay in intimation or in `submission of documents due to unavoidable circumstances. The insurers’ decision to reject a claim shall be based on sound logic and valid grounds. It may be noted that such intimation clause does not work in isolation, and is not absolute. One needs to see the merits and good spirit of the clause, without compromising on bad claims. Rejection of claims on purely technical grounds in a mechanical fashion will result in policy holders losing confidence in the insurance industry, giving rise to excessive litigation.
Therefore, it is advised that all insurers need to develop a sound mechanism of their own to handle such claims with utmost care and caution. It is also advised that the insurers must not repudiate such claims unless and until the reasons of delay are specifically ascertained, recorded and the insurers should satisfy themselves that the delayed claims would have otherwise been rejected even if reported in time.
The insurers are advised to incorporate additional wordings in the policy documents, suitably enunciating insurers’ stand to condone delay on merit for delayed claims where the delay is proved to be for reasons beyond the control of the insured.
J. Harinarayan
Chairman”:
A bare reading of circular shows that if the claim is otherwise payable then it should not be repudiated or rejected simply on the ground of delay and delay is only to be considered when claim is otherwise not made out and is liable to be rejected even if the matter has been reported in time. In case titled as National Insurance Company Limited Vs. Kulwant Singh 2014(IV) CPJ page 62 (NC) the Hon’ble National Commission observed that the insurance company should not have repudiated the claim merely on account of delay in giving the information to insurance company particularly when there was absolute no delay in lodging the FIR with the police. In the case in hand also, the theft took place on 1.10.2014 and intimation to the police was also given on the same day i.e. 1.10.2014 and as such, there was no delay at all for giving the intimation to the police. Moreover, in similar case titled as Reliance General Insurance Company Limited- Petitioner Vs. Sri Avvn Ganesh-Respondent 2012(1) CPJ page 176 in case under Consumer Protection Act, 1986 the intimation of death was given to the insurer with delay and claim was repudiated on the ground that death of insured was intimated after 4 months as against stipulated period of one month. The complainant filed complaint on the allegation of deficiency in service by insurance company, but the same was dismissed, but appeal filed by the complainant was allowed by Hon’ble State Commission. On revision, the Hon’ble National Commission, New Delhi observed that all the conditions for acceptance of insurance claim except point of reporting loss within one month of its occurrence had been substantially fulfilled and delayed intimation of death of insured due to injuries he suffered on account of accident could not be held to be destructive to insurance claim because the facts and circumstances of death were clearly established on the basis of medical on records as well as deposition of doctor who attended the insured and it was observed that like in case of theft of moveable insured property, delay in intimation was not prejudicial to the insurer because in such cases, Insurance company was not prevented, because of delay, from carrying out any investigation into the facts and circumstances as to whether the accident and consequent loss fell within the substantive condition of insurance policy and no infirmity was found in the order and revision petition was dismissed. In the case in hand also, there is delay of 6 days as claimed by the Opposite Party which is not material in the case in hand for closing or repudiating the claim case of the complainant and as such, the complainant is entitled to claim the insurance amount of the vehicle in question. Moreover, it is usual with the insurance company to show all types of green pastures to the customer at the time of selling insurance policies, and when it comes to payment of the insurance claim, they invent all sort of excuses to deny the claim. In the facts of this case, ratio of the decision of Hon‟ble Apex Court in case of Dharmendra Goel Vs. Oriental Insurance Co. Ltd., III (2008) CPJ 63 (SC) is fully attracted, wherein it was held that, Insurance Company being in a dominant position, often acts in an unreasonable manner and after having accepted the value of a particular insured goods, disowns that very figure on one pretext or the other, when they are called upon to pay compensation. This, take it or leave it‟, attitude is clearly unwarranted not only as being bad in law, but ethically indefensible. It is generally seen that the insurance companies are only interested in earning the premiums and find ways and means to decline claims. In similar set of facts the Hon’ble Punjab & Haryana High Court in case titled as New India Assurance Company Limited Vs. Smt.Usha Yadav & Others 2008(3) RCR (Civil) Page 111 went on to hold as under:-
“It seams that the insurance companies are only interested in earning the premiums and find ways and means to decline claims. All conditions which generally are hidden, need to be simplified so that these are easily understood by a person at the time of buying any policy. The Insurance Companies in such cases rely upon clauses of the agreement, which a person is generally made to sign on dotted lines at the time of obtaining policy. Insurance Company also directed to pay costs of Rs.5,000/- for luxury litigation, being rich.
5 In view of the above discussion, the present complaint is partly allowed and the opposite party is directed to make the payment of Rs. 6,70,000/- (Rs. Six Lacs Seventy Thousand only) to the complainant within one month from the date of receipt of copy of this order, subject to furnishing the letter of subrogation, power of attorney for transfer of Registration certificate of the vehicle in question in favour of opposite party. The complainant has also been harassed by the opposite party, as such the complainant is also entitled to Rs. 10,000/- ( Rs. Ten Thousand only) as compensation on account of harassment and mental agony and Rs 7,500/- (Seven Thousand and five hundred only) as litigation expenses. Opposite Party is directed to comply with the order within one month from the date of receipt of copy of the order, failing which the complainant is entitled to interest @ 9% per annum, on the awarded amount, from the date of accident till its realisation. Copy of order be supplied to the parties free of costs as per rules. File be consigned to record room.
Announced in Open Forum
Dated 22.10.2019 (Charanjit Singh)
President
(Jaswinder Kaur)
Member
