Haryana

Ambala

CC/288/2020

Vinod Kumar - Complainant(s)

Versus

Universal Sompo General Insurance Co Ltd - Opp.Party(s)

Gurmeet Singh Sandhu

01 May 2023

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, AMBALA.

 

Complaint case no.	:	288 of 2020
Date of Institution	:	27.11.2020
Date of decision	:	01.05.2023

 

Vinod Kumar aged 49 years son of Shri Gurdayal Singh, R/o H. No.175, Village Sangrani, Tehsil Naraingarh Distt. Ambala.

          ……. Complainant.

                                                Versus

 

1. Universal Sompo General Insurance Company Ltd, Unit No.401, 4th Floor, Sangam Complex, 127, Andheri Kurla Road, Andheri (E) Mumbai-400059 through its authorized Signatory/ Managing Director,
2. Universal Sompo General Insurance Company Ltd., Zonal office: SCO-9, First Floor, Above Central Bank of India, Sector-10, Panchkula (Haryana) through its Zonal Manager.

….…. Opposite Parties

Before:        Smt. Neena Sandhu, President.

                             Smt. Ruby Sharma, Member,

          Shri Vinod Kumar Sharma, Member.           

 

Present:      Shri G.S. Sandhu, Advocate, counsel for the complainant.

                             Shri Mohinder Bindal, Advocate, counsel for the OPs.

                            

Order:        Smt. Neena Sandhu, President.

 

1.                Complainant has filed this complaint under Section 35 of the Consumer Protection Act, 2019 (hereinafter referred to as ‘the Act’) against the Opposite Parties (hereinafter referred to as ‘OPs’) praying for issuance of following directions to them:-

i) To release the claim of damaged car of the complainant amounting to Rs.8,28,165.64/- alongwith other expenses incurred by the complainant along with upto date interest @24% per annum and future interest @ 24% per annum.

ii) To pay compensation/damages of Rs.20,00,000/- on account of mental agony and harassment to the complainant.

iii) To pay the cost of litigation expenses of Rs.50,000/-.

                             Or

Grant any other relief which this Hon’ble Commission may deems fit.

 

2.             Brief facts of the case are that the complainant is owner of the car Verna bearing Regn. No. HR-04H-8881 Model Verna 1.6 CRDI SX Model 2018 Chassis No. MALC841DLJM043176 Engine No. D4FBHM492739 and the same is under hypothecation with Bank of Baroda. The above said car has been insured with the OPs vide policy No.341389/00/100 for the period from 08.02.2020 to 07.02.2021 midnight, for which the complainant paid premium of Rs.29,924/-.  On 06.07.2020, the son of the complainant named, Raman Kumar was going towards Ambala City for his personal work while driving the car in question, and when at about 8.20 AM he reached near Bus Stand of village Banoundi on Ambala Shahzadpur Road, at that time suddenly a Neel Cow (Stray Cow) appeared in front of the car. When the son of the complainant applied sudden brake to save the neel cow, the car became out of control and hit the Safeda Trees standing near the road and was totally damaged. Thereafter the complainant towed his accidental car through Maharishi Markanda Motors & Crane Service, Jagadhri Road near Sai Baba Mandir, Ambala Cantt from village Banoundi to Smirithi Motors Pvt. Ltd Service Center at Village Tepla, Distt. Ambala by paying crane charges of Rs.2500/- on the same day i.e. on 06.07.2020 and also informed the OPs regarding the accident. The OPs appointed Surveyor-M/s Classic Insurance Surveyor and Loss Assessors Pvt. Ltd.  Samirithi Motors Ltd issued the estimate vide estimate No.ET20070091 dated 08.07.2020 amounting to Rs. 8,28,165.64/- in the name of the complainant. The car of the complainant is still parked with workshop of Samrithi Motors Ltd., Tepla Ambala in a totally damaged condition. Thereafter the complainant submitted all the relevant documents with the OPs for releasing the claim amount of damaged vehicle.  However, the OPs vide letter dated 24.08.2020 informed the complainant that they  are unable to consider his claim mentioning in the said letter that "We have observed that vehicle was fitted with oversized tyres which change the dimensions & weight of the vehicle specified by manufacturer which leads violation of Section 52 of M.V. Act, 1988". At the time of insurance of the vehicle in question of the complainant, the official of the OPs after examining the car of the complainant, insured the same with consideration amount and never raised any objection at that time. The OPs intentionally and deliberately declined to release the claim of the complainant, despite the fact that the complainant had already submitted all the documents. Under the compelling circumstances, the complainant served a Regd. Ad Legal Notice dated 16.09.2020 upon the OPs in the matter but to no avail.  Hence this complaint.
3.           Upon notice, the OPs appeared and filed written version wherein they raised preliminary objections to the effect that this Commission has no jurisdiction to entertain and try the present complaint ; the complaint of the complainant is ex-facie misconceived, vexatious, untenable and devoid of any merits; the complainant has approached this Commission with unclean hands; the present complainant involved adjudication of question of complicated facts, which will require leading of elaborate evidence by the parties which cannot be done under the summary jurisdiction  etc. On merits, while admitting the factual matrix of the case with regard to issuance of insurance policy in respect of the vehicle in question and occurrence of the accident of the said vehicle, as stated in the complaint, it has been stated that the vehicle in question was insured, subject to the provision of IMT and Policy conditions. It is clearly stated in the policy schedule that "THE INSURANCE UNDER THIS POLICY IS SUBJECT TO CONDITIONS, CLAUSES, WARRANTIES, EXCLUSIONS ETC. ATTACHED. The copy of Policy along with the terms and conditions was supplied to the insured at the time of taking the policy, which was never disputed by the insured. The complainant intimated about alleged accident which took place on 06.07.2020. Resultantly claim was lodged and IRDA licensed surveyor M/s Classic Insurance Surveyors and Loss Assessors Pvt. Ltd. was appointed to inspect and assess the loss. During the processing of the claim it was observed and pointed out by the surveyor, that the car in question was fitted with oversized tyres which changed the dimensions & weight of the said car, as specified by the manufacture which leads to unbalancing of the said car, while in high speed and on being applying the brakes, the said car could not resist its balance due to unsuitable dimensions of the tyres, hit into a roadside tree after going out of control. The damage to vehicle and the fact that the vehicle while avoiding a stray cattle, hit into a tree was directly attributable to the unspecified and unsuitable tyres dimension of the said car. Thus by fitting wrong and unspecified tyres on the car in question at the time of accident, it was being used/plied in contravention of the Motor Vehicles Act as well as in violation of the registration and insurance policy. Section 52 of the M V Act clearly says that "No owner of a motor vehicle shall so alter the vehicle that the particulars contained in the certificate of registration are at variance with those originally specified by the manufacturer". Although the surveyor recommended the claim in question for repudiation due to violation of M V Act and terms of the insurance policy vide his detailed survey report but only for the sake of assessment of loss, he assessed the loss on net of salvage basis to the tune of Rs.4,93,000/- subject to approval of the competent authority. Keeping in view the above mentioned facts and circumstances and application of mind, the claim of the complainant was repudiated legally and the complainant was duly informed about the fate of his claim vide letter dated 24.08.2020 but the complainant even then filed this false and frivolous complaint without any cause of action just to put undue pressure. Rest of the averments of the complainant were denied by the OPs and prayed for dismissal of the present complaint.
4.           Learned counsel for the complainant tendered affidavit of the complainant as Annexure CW1/A  and affidavit of Shri Raman Saini son of Shri Vinod Kumar resident of House No.175, Village Sangrani, Tehsil Naraingarh, District Ambala as Annexure CW2/A alongwith documents as Annexure C-1 to C-13 and closed the evidence on  behalf of the complainant. Learned counsel for the OPs tendered affidavit of Ankita Bose and Authorized Signatory, Universal Sompo General Insurance Company Limited, Registered Office, Navi Mumbai and affidavit of Shri Inder Pal Singh, Surveyor and Loss Assessor and director of company M/s Classic Insurance Surveyor & Loss Assessors Pvt. Ltd. having its registered office at 494, Sector 41A, Near Durga Mandir, Chandigarh UT as Annexure OP-A and OP-B respectively alongwith documents Annexure OP-1 to OP-10 and closed the evidence on behalf of OPs.
5.           We have heard the learned counsel for the parties and have also carefully gone through the case file.
6.           Learned counsel for the complainant submitted that the OPs repudiated the claim on bald ground that the accident took place, because of oversized tyres fitted in vehicle, whereas, the insurance was done by the OPs alongwith the same tyres fitted in the vehicle in question. Once the Ops were well aware of the factum of fitting in of the said tyres in the vehicle in question at the time of insurance, then, at this stage, they have no locus standi to repudiate the claim. By repudiating the genuine claim of the complainant, the OPs have committed deficiency in providing service.  
7.           On the other hand, learned counsel for the OPs submitted that since there was breach of Section 52 of the MV Act, as the complainant had modified his vehicle by replacing the original tyres with the oversized tyres, which in fact was also the main cause of damage of the vehicle, during accident, as it slipped due to imbalance when it tried to escape the neel cow, as such, his claim was rightly repudiated by the OPs.  
8.           The moot question which falls for consideration is, as to whether, the OPs were right in repudiating the claim of the complainant or not. It may be stated here that it is the definite case of the complainant that at the time of issuance of the policy in question by the OPs, in respect of the subject vehicle, the same oversized tyres were fitted in it, which were found at the time of accident also, yet, no such objection was ever taken by the OPs at the time of inspecting the vehicle in question for issuance of the policy in question. To support his contention, the complainant has placed on record bill of the tyres in question, Annexure C-13, which clearly reveals that the tyres in question were got replaced by the complainant in the vehicle in question from Kamboj Tyres, Jagadhri on 03.01.2020. Admittedly, the policy in question Annexure C-1 had been issued by the OPs in respect of the vehicle in question on 08.02.2020 which was valid upto 07.02.2021. Thus, the sequence of events narrated above, clearly goes to prove that when the insurance in question was issued by the OPs in respect of the vehicle in question, the oversized tyres were already fitted therein and  as such, in our considered opinion, if the OPs ignored the said fact and on the other hand preferred to receive premium from the complainant and issued the policy in question, then thereafter they cannot wriggle out of the claim filed by the complainant, by holding to the contrary. The OPs specifically did not deny the fact that the oversized tyres in question were fitted in the subject vehicle, at the time of issuance of the policy. From the perusal of surveyor report, Annexure OP-10, it appears that the Surveyor and Loss Assessor deputed by the OPs failed to note this aspect of the matter and opined that  claim is not payable because of oversized tyres in the vehicle, as there is violation of Section 52 of Motor Vehicle Act. Once, the OPs issued the insurance policy in question for the subject vehicle, with the oversize tyres fitted therein, which were found at the time of accident also, then at this stage, the OPs cannot back out to indemnify the complainant for the loss suffered by him due to accident. As such, we are of the considered opinion that by repudiating the claim, the OPs have committed deficiency in service, they are thus not only liable to indemnify the complainant for the loss suffered by him but are also liable to compensate the complainant for mental agony and physical harassment suffered by him alongwith litigation expenses. 
9.           Now the next question that arises for consideration is, what is the quantum of indemnification? It is evident from the surveyor report, Annexure OP-10 that the surveyor and loss assessor has assessed liability on net of salvage basis to the tune of Rs.4,93,000/-. Under these circumstances, it is held that the complainant is entitled to get an amount of Rs.4,93,000/- as assessed by the surveyor. Since, the genuine claim of the complainant was repudiated by the OPs, thereby causing mental agony, harassment and financial loss  to the complainant, as such,  he needs to be compensated suitably in that regard also.
10.           In view of the aforesaid discussion, we hereby allow the present complaint and direct the OPs, in the following manner:- 

1. To pay the claim amount of Rs.4,93,000/-,as assessed by the surveyor, to the  complainant, alongwith interest @4% p.a. from the date of repudiation of claim i.e. 24.08.2020, till realization. 
2. To pay Rs.3,000/- as compensation for the mental agony and physical harassment suffered by the complainant.
3. To pay Rs.2,000/- as litigation expenses.

 

                   The OPs are further directed to comply with the aforesaid directions within the period of 45 days, from the date of receipt of the certified copy of the order, failing which the OPs shall pay interest @ 6% per annum on the awarded amount, from the date of default, till realization. Certified copy of this order be supplied to the parties concerned, forthwith, free of cost as permissible under Rules. File be indexed and consigned to the Record Room.  

 Announced:- 01.05.2023.

 

 

 

(Vinod Kumar Sharma)	(Ruby Sharma)	(Neena Sandhu)
Member	Member	President