DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION,

BATHINDA

C.C. No. 48 of 15-02-2022

Decided on : 25-01-2023

Bhuvnesh Kumar aged about 35 years, S/o Sh. Harish Kumar Ahuja, R/o Street No.14, Partap Nagar, Bathinda.

…...Complainant

Versus

1. Universal Sompo General Insurance Co.Ltd., Registered & Corporate office at Unit No.103, 1^st Floor, Ackruti Star, MIDC Central Road, Gautam Nagar, Andheri (E), Mumbai-400093 through its M.D./ Chairman.

2. Universal Sompo General Insurance Co.Ltd., Branch office at Tara Automobiles, 7002, (Authorized Dealer of Maruti Suzuki India Ltd.), Mansa Road, near ITI Chowk, Bathinda, through its Branch Manager/ Incharge.

.......Opposite parties

Complaint under Section 35 of the Consumer Protection Act, 2019.

Quorum :

Sh. Kanwar Sandeep Singh, President

Sh. Shivdev Singh, Member

Present :

For the complainant : Sh. A.S. Sekhon, Advocate.

For the opposite parties : Sh. Amandeep Sharma, Advocate.

O R D E R

Kanwar Sandeep Singh, President

1. The complainant Bhuvnesh Kumar (here-in-after referred to as complainant) has filed this complaint U/s 35 of Consumer Protection Act, 2019 (here-in after referred to as 'Act') before this Commission against Universal Sompo General Insurance Co.Ltd., and another (here-in-after referred to as opposite parties).

2. Briefly stated the case of the complainant is that his car Vitara Brezza bearing Registration No. PB-03BB 3434 was insured with the opposite parties vide Insurance Policy No.2367/64616536/S0/000 for the period from 30.9.2021 to 29.9.2022 by depositing the requisite premium with the opposite parties through online process from Bathinda. At the time of availing the said insurance policy, the complainant also obtained Add-on Coverage of Return to Invoice by depositing amount of Rs.1565/-. In this way, complainant deposited total premium of Rs.11,051/- with the opposite parties i.e. electronic payment from Bathinda and as per the policy, the IDV of the said car is Rs.6,25,911/-.

3. It is alleged that on 10.10.2021, the complainant alongwith his brother-in-law Harpreet Singh gone to Faridkot in the aforesaid Car No.PB-03BB 3434 for attending a job visit and when they were returning back to Bathinda, the said car was being driven by Harpreet Singh brother in law of the complainant while the complainant was sitting on the co-driver seat. When car reached near Chahal Brick Kiln, Chahal Road, within the area of P.S. Sadar Faridkot, it was about 10:30 PM a stray cattle came in front of the said car. Harpreet Singh, in order to save the stray cattle, took a sudden turn towards the right side of the driver and lost control of the car and the car hit with the tree alongside the road as a result of which, the car in question was badly damaged and the complainant also sustained multiple grievous injuries on his person and Harpreet Singh also sustained minor injuries. On the basis of statement of Harpreet Singh, a DDR NO.25 dated 15.10.2021 was lodged in P.S. Sadar, Faridkot regarding accident.

4. It is further alleged that the car of the complainant has been extensively damaged in the aforesaid accident and in this regard, complainant got prepared estimate dated 27.10.2021 to the tune of Rs.7,13,239.40 from Tara Automobiles, Bathinda, i.e. authorized Dealer of Maruti Suzuki India Ltd., who have prepared the Estimate dated 27.10.2021 of loss to the tune of Rs.7,13,239.40 i.e. more than the IDV of the car in question and as such it is a total loss. The complainant lodged the insurance claim with the opposite parties vide Claim No. CL21159122 and supplied all the aforesaid documents to the opposite parties and requested for the payment of the total IDV alongwith other expenses as per policy of the said car. The opposite parties asked for some queries vide letter dated 22.12.2021 which were duly replied by the complainant on 27.12.2021.

5. It is also alleged that although the complainant had furnished all the requisite documents to the opposite parties but the opposite parties failed to honour the claim of the complainant. The complainant lodged complaint with the opposite parties and opposite parties vide their letter dated 18.1.2022 assured the complainant to conclude the final decision within 7 days but the opposite parties ultimately repudiated the lawful claim of the complainant vide letter dated 29.1.2022 on the ground that "the driver Harpreet Singh was under the influence of alcohol" whereas Harpreet Singh was not under the influence of alcohol at the time of accident. The complainant sustained injuries while Harpreet Singh was saved from the major injuries by the grace of Almighty God.

6. It is further alleged that the complainant repeatedly requested the opposite parties to admit the lawful claim of the complainant and to make payment of insurance claim, but to no effect rather the opposite parties have refused to pay insurance claim alongwith other expenses as per policy. The complainant alleged that due to non-payment of claim amount, he has been suffering mental tension, agony, botheration, harassment and financial loss for which he claims compensation to the tune of Rs. 1,00,000/-.

7. On this backdrop of the facts, the complainant prayed the opposite parties to directions to pay amount of insurance claim of Rs. 8,89,779.81 i.e. Rs. 6,25,911/- as per IDV of the said vehicle, Rs.62,472/- as road tax, Rs.11,051/- as insurance premium and Rs.1,90,345.81 being the difference price as per the Return to Invoice clause; with interest @12% p.a. w.e.f. 10-10-2021 till payment in addition to 1,00,000/- as compensation and Rs. 22,000/- as litigation expenses.

8. Upon notice, the opposite parties appeared through counsel and contested the complaint by filing jointly written reply. In written reply, the opposite parties raised preliminary legal objections that the complainant has concealed the material facts and documents from this Commission. The complainant is not consumer.

9. It has been pleaded that on perusal of circumstantial evidence available, documents and as per police report, it is found that at the time of accident, driver of insured vehicle Mr. Harpreet Singh Aulakh was under the influence of Alchohol.

• The policy in question provides as under:-

“The company shall not be liable to make any payment in respect of:-

(c) Any accidental loss or damage suffered whilst the insured or any person driving the vehicle with the knowledge and consent of the insured is under the influence of intoxicating liquor or drugs”, In view of the same the claim of the complainant was repudiated.

10. Further preliminary objections are that the mix question of intricate law and facts are involved in the complaint which require detailed, comprehensive, elaborate oral and documentary evidence, which is not permissible under the present summary proceedings before this Commission. The present complaint has been filed by the complainant only to injure the goodwill and reputation of opposite parties. Even otherwise the complaint is false, frivolous and vexatious. The complainant is estopped from filling the present application by his own act, conduct commission, omission, negligence's acquiescence etc. That there is no deficiency of service on the part of opposite parties, hence the complaint is not maintainable. That this Commission, has no jurisdiction to entertain the complaint and that the complainant has no locus standi to file the complaint.

11. On merits, the opposite parties have denied that the Harpreet Singh driven the car at moderate speed. Whole the story is concocted one to make a plea. Rather on the perusal of circumstantial evidence available, documents and as per police report it is found that at the time of accident, driver of insured vehicle Mr. Harpreet Singh Aulakh was under the influence of Alcohol. Hence, the claim of the complainant has been repudiated legally and rightly. After controverting all other averments of the complainant, the opposite parties prayed for dismissal of complaint.

12. In support of his complaint, the complainant has tendered into evidence two affidavits namely Bhuvnesh Kumar and Harpreet Singh both dated 14.2.2022 (Ex.C-1 and Ex.C-15) and documents (Ex.C-2 to Ex.C-17) to Ex.C-17) and in additional evidence (Ex. C-18 to Ex.C-22).

13. In order to rebut the evidence of complainant, opposite parties tendered into evidence affidavit of Amandeep Harman dated 29.6.2022 (Ex. OP-1/12) and the documents (Ex.OP-1/1 to Ex.OP-1/11 and Ex.OP-1/13 to Ex.OP-1/15).

14. We have heard learned counsel for the parties and gone through the record.

15. The learned counsel for the parties have reiterated their version as pleaded in their respective pleadings.

16. In the case in hand, there is no dispute regarding insurance and accident of the car in question. The opposite parties have repudiated/no claim, the claim of the complainant vide letter dated 29-01-2022 (Ex. OP-1/9) on the grounds that :-

    “...However, on perusal of the circumstantial evidence available, documents furnished and as per the Police final report, it is found that at the time of incident, driver of the insured vehicle Mr. Harpreet Singh Aulakh was under the influence of alcohol. The policy in question provides as under - The Company shall not be liable to make any payment in respect of :

    (c) Any accidental loss or damage suffered whilst the insured or any person driving the vehicle with the knowledge and consent of the insured is under the influence of intoxicating liquor or drugs”,

    In view of the foregoing, we regret to inform you that the subject claim cannot be considered and it treated as 'No Claim'.

17. Therefore, in view of the aforesaid denial of claim of complainant on the basis that Harpreet Singh Aulakh who was driving car in question at the time of incident was under the influence of alcochol, it is to be seen whether there is sufficient evidence on file to prove this ground of the opposite parties or not.

18. Ex. C-5 is the copy of DDR No. 25 dated 15-10-21 regarding incident which was got recorded on 15-10-2021. A perusal of this document reveals that there is clearly mentioned that at the time of accident i.e. on 10-10-2021, Bhuvnesh Kumar/insured and Harpreet Singh, brother-in-law of complainant/insured were coming back from Faridkot in Vitara Brezza Car Regn. No. PB-03BB-3434 and Harpreet Singh was driving the car in question and at about 10.30 p.m. when they reached near Chahal Brick Klin, Chahat Road, a stray animals came in front of the car and to save the stray animal, Harpreet Singh, suddenly turned the car, due to which car stuck with tree. The opposite parties have not placed on file even a single document to prove that Harpreet Singh was under the influence of alcohol at the time of accident.

19. Ex. C-18 is the Inquiry report which was conducted by the police department on the application moved by the opposite parties on 11-5-2022 on the ground that DDR No. 25 dated 15-10-2021 was not correct. A perusal of this Inquiry report reveals that after detailed inquiry, the police department has arrived at a conclusion that DDR No. 25 dated 15-12-2021 is correct but Insurance Company, to deny the Insurance Claim, is asking to correct the DDR, hence application stands filed.

20. A perusal of file reveals that this complaint was filed on 15-02-2022 whereby complainant challenged the repudiation letter dated 29-01-2022 (Ex. OP-1/9) vide which opposite parties repudiated the claim of the complainant on the ground that at the time of accident Harpreet Singh Aulak driver of the insured vehicle was under the influence of alcohol. Firstly the opposite parties, as detailed above, tried its best to get changed the DDR and thereafter during the pendency of complaint, on 26-5-2022 vide letter dated (Ex. OP-1/10) changed their version and informed the complainant that in previous written communication (repudiation letter dated 29-01-22), there is a typographical error and as per documental evidence, it proved that complainant/insured was driving the vehicle at the time of accident under the influence of alcohol which leads to the violation of the provision of Section 1 of the policy of the vehicle in question.

21. Hence, the documentary evidence of the opposite parties placed by themselves on the file, show their contention that they changed their whole version beyond pleadings and concocted a false story to deny the genuine claim of the complainant.

22. Insurance Regulatory and Development Authority (IRDA) vide circular “ Ref No. IRDA/HLTH/MISC/CIR/216/09/2011 Dated 20-09-2011 directed All life insurers and non-life insurers :

    “The Insurers' decision to reject a claim shall be based on sound logic and valid grounds. It may be noted that such limitation 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.”

23. Thus, keeping in view the evidence placed on file by the parties, this Commission is of the considered view that opposite parties denied the genuine claim of the complainant on flimsy ground that Harpreet Singh driver of the car in question was under the influence of alocohol at the time of incident whereas there is evidence to this effect. The application of the opposite parties moved before police authorities for correcting the DDR also proved futile as police authorities after inquiry, held that DDR No. 25 dated 15-10-2021 was correct and especially a remark has been given by the police department that Insurance Company, to avoid, insurance claim, is asking to correct the DDR. Thereafter opposite parties changed their version on the ground of typographical mistake and issued letter to complainant that there is violation of policy terms and claim is not payable as complainant/insured was driving the vehicle in question at the time of accident and he was under the influence of alcohol at that time. Addendum Report (Ex, OP-1/8) produced on file by the opposite parties is only a self serving and an after thought document. This attitude of the opposite parties reveals that they just wanted to deny the claim for which they were searching for the excuses. Thus, deficiency in service on the part of the opposite parties stands fully proved.

24. Ex. C-3 is the Insurance Policy. A perusal of this document reveals that complainant paid Rs. 11,051/- as premium to the opposite parties for this policy, which includes premium for add-on coverage such as depreciation waiver and Return to Invoice. Return to Invoice as described as :

    Return to Invoice - in the event of Theft/Total Loss, the difference between IDV and current selling price of the vehicle will be paid. In case the model is discontinued, the difference between the IDV and the selling price of an equivalent model would be payable with consent of the customer. The difference between the IDV and the invoice value would be payable in case the consensus is not reached on the equivalent model. The claim proceeds will include cost of road tax, registration charges and insurance premium.

25. The estimate of repair Ex. C-6 shows that the repair charges of the damaged vehicle in question is Rs.7,13,239.40 whereas it reveals from Insurance Policy Ex. C-3 that IDV of the said vehicle is Rs. 6,25,911/-. Thus, when the repair cost of the damaged vehicle is more than IDV, it is a total loss.

26. Therefore, the complainant is entitled to claim amount i.e. IDV plus difference between IDV and invoice ( Invoice value Rs. 8,16,257/-minus IDV Rs. 6,25,911/- = difference Rs. 1,90,346/- (Ex. C-11 & Ex. C-6) + Road Tax and Registration Charges Rs. 62,472/- (Ex. C-16) + Insurance Premium Rs. 11,051/- (Ex. C-3).

27. Resultantly, this complaint is partly allowed with Rs. 10,000/- as cost and compensation. The opposite parties are directed to pay Rs. 8,89,780/- (Rupees Eight Lacs eighty nine thousand seven hundred and eighty only) with interest @ 6% p.a. w.e.f. 25-01-2022 (date of repudiation) till payment.

28. The complainant is directed to handover the damaged vehicle to opposite parties and sign the documents, if any, required by the opposite parties and complete the other formalities, if any, required by law for release of claim. However, it is made clear that all the charges shall be borne by the opposite parties in connection with shifting of vehicle and transfer of registration etc.,

29. The compliance of this order be made by the opposite parties jointly and severally within 45 days from the date of receipt of copy of this order.

30. The complaint could not be decided within the statutory period due to heavy pendency of cases.

31. Copy of order be sent to the parties concerned free of cost. File be consigned to the record room.

    Announced :

    25-01-2023

(Kanwar Sandeep Singh)

President

(Shivdev Singh)

Member