Haryana

Karnal

CC/560/2021

M/s Dayal Logistics - Complainant(s)

Versus

United India Insurance Company Limited - Opp.Party(s)

Rahul Bali

23 Jan 2024

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, KARNAL.

 

                                                      Complaint No. 560 of 2021

                                                      Date of instt. 06.10.2021

                                                      Date of Decision:23.01.2024

 

M/s Dayal Logestic, 14-15, Vikas Colony, near Heritage Lawn, Sector-35, Karnal, through its Director/Authorised Signatory namely Shri Randeep Chauhan.

                                               …….Complainant.

                                              Versus

 

United India Insurance Company Ltd. D.O. II, New Bus Stand, Karnal, through its Assistant Manager, Pankaj Singh/ Authorized Signatory.

 

…..Opposite Party.

       

Complaint Under section 35 of the Consumer Protection Act, 2019.

 

Before   Shri Jaswant Singh……President.

              Shri Vineet Kaushik…….Member

      Dr. Suman Singh….Member

  

Argued by:  Shri Rahul Bali, counsel for the complainant.

                    Shri Ashok Vohra, counsel for the OP.

                    (Jaswant Singh, President)

ORDER: 

                        

                 The complainant has filed the present complaint Under section 35 of the Consumer Protection Act, against the opposite party (hereinafter referred to as ‘OP’) on the averments that complainant is a Logistic Company under the name of Dayal Logistics. The complainant’s company is the registered owner of vehicle bearing registration no.HR-45-C-1921, which was got insured with the OP, vide insurance policy bearing no.1123003118P1113116043, valid from 02.12.2018 to 01.12.2019. The said car of complainant met with an accident and in this regard an FIR no.635 dated 24.11.2019, under section 279, 304-A of IPC was registered in District Hardoi, Police Station Kotwali Dehat. At the time of accident Shri Vinod Kumar Pandey son of Shri Ram Ladaitey Pandey was the driver on the abovesaid vehicle. The intimation regarding the said accident was sent to the OP and complainant also submitted various documents with the OP for processing of the claim. On 20.05.2020, a final notice was received, vide which it was intimated that the driver of the vehicle has not been made available before investigating authority. Finally, on 22.05.2020, it was further mentioned that various other documents and details be submitted which are mentioned at clause 1 to 11. Besides this affidavit of driver was also asked for. The details which were available were submitted in the office of OP, but affidavit of driver could not be submitted as he was out of station and due to covid-19, the same was not obtained. On 27.08.2020, the complainant has received a letter, vide which the claim of the complainant was repudiated by the OP on the false and frivolous ground. Thereafter, complainant has obtained affidavit of driver Shri Vinod  Kumar Pandey and has also submitted photocopy in the office of OP in the month of November, 2020 and it was intimated that the case would be reopened and decided as per documents available. After that complainant visited the office of OP numbers of times and requested to disburse the claim amount but no avail. Then complainant sent a legal notice dated 24.06.2021 through his counsel but it also yield no result. 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; jurisdiction; cause of action; locus standi and concealment of true and material facts. On merits, it is pleaded that the claim of complainant was duly processed, considered on merits and the same was not found payable due to the fact that the OP has requested the complainant repeatedly and inspite of telephonic calls, wahtsapp messages dated 25.02.2020 and letter of OP no.INV/Motor Claim-HR-45C-1921 dated 06.03.2020 and letter dated 20.05.2020 and registered letter dated 22.05.2020, to supply the requisite documents detailed as under:-

1.     Legible copy of FIR registered in respect of the accident occurred on 23.11.2019.

2.     Legible copies of RC and permit of vehicle no.HR-45C-1921.

3.     Superdari orders for the relevant vehicle no.HR-45C-1921.

But the abovesaid documents have not been supplied by the complainant, consequently the claim of the complainant was repudiated vide speaking letter no.8437 dated 27.08.2020 on the ground that inspite of letters/reminders sent to the complainant he has not complied with the required papers/documents. Moreover, the complainant has breach the terms and conditions of the policy as he has concealed the facts. The letter dated 09.07.2020 is crystal clear “That despite of sufficient opportunity given by investigator vide his various letter dated 06.03.2020, 20.05.2020, 22.05.2020 neither the driver has been made available nor the documents has been submitted. You have not given reply of our official letter dated 13.03.2020. That his non-cooperation is violation of condition no.1 of the insurance policy.

The death of third person and T.P.P.D. occurred in the accident on 23.11.2019 has been concealed by you in the claim form and claim intimation.”

It is further pleaded that insurance company appointed M/s Bharat Associate Insurance Investigators Karnal to investigate the matter and accordingly the investigator investigate the matter and wrote many letters to the complainant for the supply of the requisite documents but the complainant has no insurable interest so he fails to submit reply of even letter and prefer to file complaint flimsy grounds and with the very purpose to lower down the well established reputation of the OP in the eyes of the general public. The OP has rightly repudiated the claim of the complainant. 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 complainant has tendered into evidence affidavit of complainant Ex.CW1/A, copy of FIR Ex.C1, copy of driving licence Ex.C2, copy of authorization certificate of National Permit Ex.C3, copy of RC Ex.C4, copy of order dated 21.12.2019 Ex.C5, copy of letters dated 20.05.2020, 22.05.2020 Ex.C6 and Ex.C7, copy of letter from Dayal Logestic Ex.C8, copy of repudiation letter dated 27.08.2020 Ex.C9, affidavit of Vinod Kumar Ex.C10, copy of aadhar card of Vinod Kumar Ex.C11, copy of legal notice dated 24.06.2021 Ex.C12, postal receipts and envelop Ex.C13 and Ex.C14 and closed the evidence on 08.12.2022 by suffering separate statement.

5.             On the other hand, learned counsel for the OP has tendered into evidence affidavit of Raj Kamal Assistant Manager Ex.OP1/A, affidavit of A.P. Chawla, Insurance Surveyor & Technical Consultant Ex.OP2/A, copy of letters dated 16.07.2020 and 04.03.2020 Ex.O1 and Ex.O2, copy of survey report of A.P. Chawla Technical Consultant, Surveyor and Loss Assessor dated 04.03.2020 Ex.O2A, copy of report of Bharat Associates Insurance Investigators dated 29.06.2020 Ex.O3 and Ex.O4, copy of final notice dated 22.05.2020 of Bharat Associates Ex.O5, copy of final notice dated 20.05.2020 of Bharat Associates Ex.O6, copy of letter dated 06.03.2020 of Bharat Associates Ex.O7, copy of repudiation letter dated 27.08.2020 Ex.O8, copy of letter dated 13.03.2020 Ex.O9, copy of letter dated 09.07.2020 Ex.O10, copy of postal receipt Ex.O11 and closed the evidence on 25.07.2023 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 complainant, while reiterating the contents of the complaint, has vehemently argued that complainant got insured his vehicle with the OP. On 24.11.2019 the said vehicle met with an accident and an FIR no.635 dated 24.11.2019 was lodged in Police Station Kotwali Dehat, District Hardoi. In the said accident, the vehicle of complainant was badly damaged. The intimation regarding the said accident was given to the OP. On receipt of intimation, OP appointed a surveyor, who investigated the matter. All the necessary documents were submitted to the surveyor as well as to the investigator  of the OP by the complainant to settle the claim but OP repudiated the claim of complainant on the false and frivolous grounds 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 OP vide letters and its reminders dated 06.03.2020, 20.05.2020, 22.05.2020 and 13.03.2020 demanded certain documents from the complainant but complainant did not submit the same. Thus, the claim of complainant was rightly repudiated by the OP, vide its letter dated 27.08.2020 and lastly prayed for dismissal of the complaint.

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

10.           Admittedly, complainant got insured his vehicle with the OP. It is also admitted that the vehicle of complainant met with an accident during the subsistence of the insurance policy. It is also admitted that the insured declared value of the vehicle in question at that time was  Rs.27,50,000/-.

11.           The claim of the complainant has been repudiated by the OP, vide letter Ex.C9/Ex.O8 dated 27.08.2020 on the grounds, which are reproduced as under:-

                “Please note that your file stands closed, on account of sr. no.1 and 3 below:-

1. Inspite of letters/reminders sent to you, you have not complied with the required papers/documents.
2.  As you have withdrawn your claim by giving your consent through your letter dated… we are closing your claim file as ‘No Claim’.

3  We are closing your claim file, on account of the following reasons;-

    Breach of policy conditions-material to loss”.

12.             OP had also sought the documents, vide letter Ex.O5/Ex.C7 dated 22.05.2020, which are reproduced as under:-

1.     Legible copy of FIR registered in respect of the accident occurred on 23.11.2019.

2.     Legible copies of RC and permit of vehicle no.HR-45C-1921.

3.     Superdari orders for the relevant vehicle no.HR-45C-1921.

13.           Complainant has alleged that he had supplied required documents. The onus to prove his case was relied upon the complainant.  To prove his case complainant has placed on file, copy of FIR Ex.C1, copy of Registration Certificate of vehicle in question Ex.C4 and copy of superdari order dated 21.12.2019 Ex.C5. All the abovesaid documents are legible. When complainant has placed on file legible copies of said documents as to why he would have not submitted the legible copies of the same to the OP. Moreover, it is also unbelievable an insured whose personal interest is involved for such huge amount why he will not supply the documents to the insurance company for getting his claim amount and will indulge himself in unwanted litigation. Hence, in view of the above, we found no substance in this contention of the OP.

14.          OP has alleged in repudiation letter Ex.O8 that complainant has withdrawal his claim by giving his consent through letter. The onus to prove was relied upon the OP but OP has miserably failed to prove the same by leading any cogent and convincing evidence. OP has failed to place on file the alleged consent letter to prove their version. Hence,  we found no substance in this contention of the OP.

15.           OP has also alleged that complainant has failed to submit the affidavit of his driver. On receipt of notice dated 20.05.2020 and 22.05.2020 from the OP, complainant has specifically replied the said notices that due to covid-19,  the driver of the vehicle was not available and on availability of the driver the complainant has submitted his affidavit Ex.C10 on 04.11.2020. Undisputedly, in those days the covid-19 spread in whole the country, hence the plea taken by the complainant has force.

16.           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”.

17.           Keeping in view the ratio of the law laid down in the aforesaid judgments, the facts and circumstances of the present complaint, we are of the considered view that the act of the OP while declining the claim of the complainant amounts to deficiency in service and unfair trade practice, which is otherwise proved genuine one.

18.           The complainant has claimed of Rs.11,88,704/-as assessed by the surveyor of the OP in his report Ex.O2A  dated 04.03.2020. The make of the vehicle in question is 2017 and accident took place in the year of 2019. As per surveyor report Ex.O2/A dated 04.03.2020, the net liability has been assessed by the surveyor of the OP as Rs.4,95,000/-. Hence, the report of the surveyor will prevail. In this regard we are relying upon the authority 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, we are of the considered view that the OP is liable to pay the loss assessed by the surveyor alongwith interest, compensation for mental agony and harassment and litigation expenses.

19.            In view of the above discussion, we partly allow the present complaint and direct the OP to pay Rs.4,95,000/- (Rs.four lakhs ninety five thousand only) as loss assessed by the surveyor of the OP to the complainant alongwith interest @ 9% per annum from the date of repudiation of the claim i.e. 27.08.2020 till its realization. We further direct the OP to pay Rs.25,000/- to the complainant on account of mental agony and harassment suffered by him and Rs.11,000/-for the litigation expenses. This order shall be complied with within 45 days from the receipt of copy of this order. The parties concerned be communicated of the order accordingly and the file be consigned to the record room after due compliance.

Announced

Dated:23.01.2024

                                                                       

                                                                  President,

                                                     District Consumer Disputes

                                                     Redressal Commission, Karnal.

 

 

(Vineet Kaushik)        (Dr. Suman Singh)

                          Member                           Member