Jammu and Kashmir

Jammu

CC/488/2017

NARESH KUMAR - Complainant(s)

Versus

UNITED INDIA INSURANCE - Opp.Party(s)

AZAR USMAN KHAN

19 May 2018

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM,JAMMU

(Constituted under J&K Consumer Protection Act,1987)

                                                          .

 Case File  No                283/DFJ           

 Date of  Institution     17-10-2015

 Date of Decision      :   26-04-2018

Naresh Kumar,

S/O Late Sh.Bakshi Tek Chand,

R/O W.No.12 Near Naban Mandir,

Rajouri,HYP J&K  Bank Ltd.

Jawahar Nagar,Rajouri.

                                                                                                                                       Complainant

                        V/S

1.Managing Director,

United India Insurance Company Ltd.

Regd.& Head Office 24,Whites Road,

Chennai,600014.

2.The Branch Manager,

United India Insurance Company Ltd.

21 C/B Block Opposite Convent School,

Gandhi Nagar,Jammu.

                                                                                                                                                Opposite parties

CORAM

                  Khalil Choudhary             (Distt.& Sessions Judge)     President

                  Ms.Vijay Angral                                                               Member

                  Mr.Ghulam Sarwar Chauhan                                       Member

 

In the matter of   Complaint under section 10 of J&K Consumer

                              Protection Act 1987.

 

Mr. Azhar Usman Khan,Advocate for complainants, present.

Mr.Vishnu Gutpa,Advocate for OPs,present.

 

                                                                     ORDER

                   Grievance of complainant as dicernible from the complaint is that complainant being registered owner of vehicle Mahindra & Mahindra XYLO,XYLo Lts. bearing registration No.JK11A-7175 got the same insured with OP under Policy No.1106003114P11034381 for the period 19-02-2015 to 18-02-2016,(Copy of insurance policy annexure-A). Complainant further submits that unfortunately on,10-08-2015,the vehicle met with an accident at Nowshera Rajouri which caused huge accidental damage to the vehicle and complainant immediately lodged complaint with the agent of OP who reported the incident  to the higher officers and the representative of OP told him to get the vehicle repaired on his own and OP will reimburse the loss suffered due to accident. Allegation of complainant is that on the assurance of Company officials, he repaired the vehicle  from Mahindra Astro India and incurred expenses to the tune of Rs.1,34,204.60against proper bill, copy of bill is annexed as Annexure-B,but the Op failed to reimburse the loss. Constrained by the act of Ops,complainant served legal notice to OPs,but did not yield any fruitful result, hence the present complaint. In the final analysis, complainant prays for indemnification of loss to the tune of Rs.5,00,000/-under different heads.

               On the other hand,OPs filed objections and while admitting the insurance of vehicle in question and accident during the currency of insurance policy went onto submit that the complaint deserves outright dismissal as the complainant is guilty of obtaining the policy by suppression of material facts and by misrepresentation of material facts by suppressing the fact that during the previous policy period, he had obtained two claims from New India Assurance Co,(previous insurer)and was not entitled to No Claim Bonus. The policy had thus become void having been obtained fraudulently by misrepresentation of material facts and non-disclosure which the complainant under the principle of utmost good faith was bound to disclose before obtaining the policy. That the complaint deserves out right dismissal as the claim was intimated to OPs after inordinate delay of 7 days without assigning any reason and the vehicle had also been moved from place of accident to Jammu without intimation, FIR and without permission of the OP.The complainant is guilty of breach of policy condition No.1 that the notice in writing of accident or loss or damages shall be submitted to the insurer immediately after the incident. No reason whatsoever was assigned for the inordinate delay of 7 days. Rest of the contents are denied by OP1.

              Complainant adduced evidence by way of duly sworn evidence affidavit and affidavit of Amit Sharma.Complainant has placed on record copy of policy, copy of schedule of premium, copy of pre-invoice and copy of legal notice.

                 On the other hand,Ops adduced evidence by way of duly sworn evidence affidavits of  M.L.Verma,Divisional Manager,United India Insurance Co.Gandhi Nagar Jammu and C.J.Sharma Surveyor Jammu Cantt.Ops have placed on record copy of claim intimation letter and copy of surveyor report.

           We have perused case file and heard L/Cs for the parties at length.

                            After hearing L/Cs for parties and perusing the case file, the point for consideration is, as to whether or not Ops are deficient in service in not settling the case of the complainant.

                       Before heading further, it is to be noted that since parties have lead evidence in the shape of evidence affidavits, which are much or less reproduction of contents of their respective pleadings,therefore,we do not feel it necessary to represent the same again and if need arises, same would be referred hereinafter at appropriate stage.

              L/C for complainant vehemently argued that despite completion of all requisite formalities,OPs did not indemnify the loss suffered by the complainant, therefore, same constitutes deficiency in service. On the other hand, submission of L/C for OPs is that the claim was intimated to OP after inordinate delay of 7 days without assigning any reason and the vehicle had also been moved from place of accident to Jammu without intimation, FIR and without permission of the OP.

                Be it noted that in so far as insurance of vehicle in question and its loss during currency of policy is concerned, same are not in dispute. According to complainant, insured vehicle suffered loss. In order to support his contention that loss to the insured vehicle is suffered, complainant relied upon estimation details.

                  Once it has been shown that vehicle was comprehensively insured and it was damaged during currency of Insurance Policy, in that event, Ops are not expected to devoid the benefits of Insurance Policy to the insured on technical grounds, which are short of fundamental breach of contract of indemnity.

                 Otherwise also legally speaking it is settled law that the parties are always bound and governed by the terms and conditions of contract and whenever contract is entered into there is proposal made by one party in its unequivocal and unambiguous terms conveyed to the otherside and acted by otherside with the same response and in its understanding and knowledge leaving no scope of any future suspicion and incredibility in mind to come in the way of the said contract afterwards.

                      Admittedly, as per surveyor report dated 10-10-2015, which is on record, loss was assessed on Net liability by applying less excess clause to the tune of Rs.500/-and net liability assessed to the tune of Rs.92,652/-,therefore, we hold that complainant is entitled to indemnity to the extent assessed by the surveyor,which under the contract of insurance,Ops were required to reimburse to complainant.

                  It is needful to recall the judgment of Hon’ble Supreme Court passed Oriental Insurance Company Ltd.V/S M/S Ozma Shipping Co.and Anr.2010 AIR SCW 514;

Before parting with this case we would like to observe that the insurance companies in genuine and bona fide claims of the insured should not adopt the attitude of avoiding payments on one pretext or the other. This attitude puts a serious question mark on their credibility and trustworthiness of the insurance companies. Incidentally by adopting honest approach and attitude the insurance companies would be able to save enormous litigation costs and the interest liability.

                       Although complainant prays for sum of Rs.1,34,205/-as expenses incurred on repair of vehicle, but perusal of surveyor report reveals that insured is entitled to Net recommended amount of Rs.92,652/-and same has not been disputed by the complainant, hence loss assessed by the surveyor is only available reasonable basis and documentary, evidence for the loss suffered by the complainant.

                          Therefore, in view of the foregoing reasons the complaint filed by the complainant for redressal of his grievance is allowed and Ops are directed to pay to the complainant Net Recommended amount of Rs.92,652/-alongwith interest  7% per annum w.e.f.10-12-2015(i.e.two months after surveyor report),till its realization. The complainant is also entitled to compensation of Rs.5,000/-for causing unnecessary harassment and mental agony and litigation charges of Rs.5000/-.The OPs shall comply the order within one month from the date of receipt of this order. Copy of this order be provided to both the parties as per requirement of the Act. On deposit of the amount in this Forum, the same shall be paid to the complainant through payees account cheque.The complaint is accordingly disposed of and file be consigned to records after its due compilation.

Order per President                                              Khalil Choudhary

                                                                         (Distt.& Sessions Judge)

Announced                                                              President

26-04-2018                                                   District Consumer Forum

Agreed by                                                                Jammu.

 

Ms.Vijay Angral          

Member        

 

Mr.Ghulam Sarwar Chauhan,

Member