Karnataka

Kolar

CC/112/2023

Sri.Haseeb Khan - Complainant(s)

Versus

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

Sri.S.Ahmed Khan

19 Jan 2024

ORDER

Date of Filing: 14/07/2023

Date of Order: 19/01/2024

BEFORE THE KOLAR DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, OLD D.C. OFFICE PREMISES, KOLAR – 563 101.

Dated:19^th DAY OF JANUARY 2024

SRI. SYED ANSER KALEEM, B.Sc., B.Ed., LL.B., …… PRESIDENT

SMT. SAVITHA AIRANI, B.A.L., LL.M., …..LADY MEMBER

CONSUMER COMPLAINT NO:112/2023

Sri. Haseeb Khan,

S/o Aman Ulla Khan,

R/at. No. Seethanaikanahalli,

Village, H Hosakote Post,

Malur Taluk,

Kolar-563130.

(Rep. by Sri. S. Ahmed Khan , Advocate)          ….  Complainant.

                                                                                                                - V/s –

1. Universal Sompo General Insurance Company Ltd.,

Registered & Corporate Office:

Unit No. 103, 1^st Floor,

Ackruti Star, MIDC Central Road, Gautam Nagar, Andheri,

Mumbai-400093.

Maharashtra.

 

2. Universal Sompo General Branch Office at Bangalore,

3^rd Floor, K.V.V Samrat,

217/A,3^rd Main Outer Ring Road

Kasturi Nagar,

Bangalore-560043.

(Rep. by Sri. B. Kumar, Advocate for OP.No.1&2)

 

3.  INDUS IND BANK LTD,

Rep. by its Manager,

 115, Ground Floor Karthik Nagar

LRde Layout Behind HDFC Bank

Marathalli,

Bangalore-560037.

  (Ex-parte )                                                    ….Opposite Parties.

                                                                        

-: ORDER:-

BY SRI. SYED ANSER KALEEM, PRESIDENT

1. That the complainant has filed this complaint under section 35 of the C.P.Act 2019 against the Opposite parties alleging deficiency in service and pray for direction to the Ops to pay a sum of Rs.25,00,000/-as per the insurance Policy and to pay the cost of the proceedings.
2. The facts in brief is that, the complainant is the owner of the lorry Bharath Benz bearing Registration             No.KA-16-C-6748 and the said vehicle is insured with the Op’s Insurance Company with a policy bearing                  No. 2315/61114111/02/000. It is stated that, on 24-10-2022 at night hours, when the vehicle was parked the said insured lorry in the landed property, accidently the said lorry caught fire without any fault and negligence of the lorry driver. It is stated further that the complainant was intimated to the Op insurance Company on 27-10-022 and lodged the police complaint on 28-10-2022 and the case was registered in FAR No. 05/2022. Further in pursuance of the police complaint and the jurisdictional police conducted mahazar. It is stated further in support of the complainant case that the complainant produced the documents like Road tax receipt, pollution certificate, Police mahazar and other documents. Further states that, the vehicle is insured with the Op for a sum of Rs.18,68,175/- and on the date of said fire incident the insurance policy is in force.  Further the complainant was intimated the fact of fire incident to his insurance company on 27-10-2022. It is alleged that the Op insurance company repudiated the claim of the complainant on the ground of extra fittings that is fog lights on the vehicle which cause failure and delay in intimating the fire incident. Further the complainant states that when the vehicle was parked and under the rest and moreover the engine of the lorry was off when the fire incident occurred and the reasoning of the Op insurance company is not scientific and illogical one for repudiation of the claim. That the complainant also produced the report sent by the Op insurance Company It is stated further that the report of the Op insurance company is biased and the same was prepared at the instance of the Op insurance Company just to suffer irreparable cause to the complainant. Further the complainant states that, the complainant was earning his livelihood from the said lorry to maintain his family. It is further stated that due to repudiation of the claim complainant wander to pillar to post and suffered mental agony till today. Hence the complainant alleges that the Op insurance company committed deficiency in service and the Op insurance company is liable to pay damages to extent of Rs.25,00,000/-to the complainant.  Hence this complaint.

 

3.   Upon admission of the complaint and on issuance of notice, Op’s Insurance Company appeared though its counsel and filed its version.  In the version of Ops it is admitted that, the Bharath Benz lorry bearing Registration No. KA-16-C-6748 is insured with them with subject to terms and conditions of the policy.  However the Op insurance company denies that the on 24/10/2022 driver of the subject lorry after finishing the work parked the lorry at the landed property and the said lorry caught fire and the complainant suffered damages to extent of Rs.25,00,000/- Further denies the lodging of the police compliant on 28-10-2022.  It is contended that, the complainant failed to intimate the Op insurance company immediately after the fire incident and hence justifying the repudiation of the claim.

 

4. Further the Op contended that, the complainant was violated the terms and conditions of the policy.  It is contended that the complainant by suppressing the facts filed the complaint and there is swapping of driver is making misrepresentation before this commission.  Further contended that the complaint is not maintainable and no cause of action accrued to the complainant. Finally on the above said grounds Op insurance company prays to dismiss the complaint in the ends of Justice.

 

5.  In order to prove the case of the parties and both parties filed their affidavit evidence and documentary evidence.

 

6. On the basis of the pleadings of the parties, the following points will do arise for our consideration.

 

1. Whether the complainant proves that, there is deficiency in service committed by the Op Insurance Company for not honoring the Insurance claim?
2. Whether the complainant is entitled for the relief as sought in the complaint?
3. What Order?

 

We have heard the arguments of both parties at length and perused the evidence placed on record.

Our answers to the above points as under:

Point No.(1) :   In the Affirmative

 

Pont No. (2):-   In the Partly Affirmative

 

Point No.(3):-   As per the final orders

                       for the following

 

                            REASONS

 

7. Point No.(1) & (2):-  On perusal of the pleadings of the parties and evidence placed on record and we are of the opinion that these two points are interlinked to each other and in order to avoid repetition of discussion of facts and for the sake brevity these points will taken up together for common discussion.

 

8. Further, on perusal of the pleadings and evidence placed before us, it is not in dispute that the complainant is the owner of the Bharath Benz Lorry bearing Registration No. KA-16-C-6748 and the said lorry is insured with the Op insurance company and IDV declared to an extent of Rs.18,68,175/-.  It is also not in dispute that, the insured lorry was caught fire on 24-10-2022 during the currency of the policy, but the complainant intimated the Op insurance company on 27-10-2022 and lodged the complaint before the Jurisdictional Police. The only grievance of the Op insurance company is that, the complainant failed to intimate the fact of fire incident immediately and intimated on 27-10-2022.

 

9. The crux of the matter to be considered that whether the repudiation of the claim of the complainant is justifiable one for not intimating the fire incident immediately to the Op insurance company?

In order to substantiate the case of the complainant and the complainant filed his affidavit evidence.  On perusal of the affidavit evidence complainant deposed that, the driver of the subject vehicle after finishing his work who parked his vehicle in the landed property on 24-10-2022 at night hours, and the subject vehicle caught fire and when the vehicle was at rest in a parking condition.

 

10. Further on perusal of the police FAR dated 28-10-2022 acknowledgment issued by the jurisdictional police it reveals that subsequent to fire accident complainant lodged the police complaint and on perusal of Panchanama report it also discloses that, the panchanama witnesses deposed before the concerned police that the subject vehicle was parked during night hours the said fire incident took place unfortunately. Further on perusal of the estimation dated 29-10-2022 given by the Bharath Benz it discloses that the estimation for repair approximately about Rs.46,00,997/-  and all these records very well support the case of the complainant that, the subject vehicle was burnt down due to fire incident.  Whereas the Op insurance company failed to produce any rebuttable evidence and in absence of the rebuttable evidence the saying of complainant that, subject vehicle had caught fire is acceptable one and also established by the copies police documents and the duly drawn mahazar also.

 

11. Further on perusal of the insurance policy bearing No.2315/61114111/02/000 issued in favor of the complainant it reveals that, the subject vehicle is duly insured and transferred to the name of the complainant and the subject policy commencing for the period from             13-03-2022 to 12-03-2023. Further the fire incident had occurred on 24-10-2022 and hence mishap occurred when the policy was in force.

 

12. The only grievance of the Op insurance company that, the complainant did not intimated immediately after the fire incident, on perusal of the records and also undisputed fact, that, the subject had caught fire on 24-10-2022 at night hours and intimated the OP Insurance Company on         27-10-2022 and complaint is lodged on 28-10-2022.  It is worth to note that, the date of fire incident was occurred on 24-10-2022 at night hours and complainant came to know about the incident later on as the subject vehicle had parked at the landed property and the same is not in dispute.  The complainant clearly stated in his pleadings and affidavit evidence and he is earning livelihood for himself and his family members, when the subject vehicle was burned down naturally that the complainant suffered too much mental agony by that time he might be in sorrowful condition as the vehicle was the bread winner for him but the complainant intimated within 2 days to his Insurance Company.  When the intimation given to the Insurance Company it is their duty to deploy its surveyor for the verification and to assess the, what is the quantum of damages cause to the subject vehicle due to fire incident. On perusal of the   survey report placed before us and it reveals that the loss (net claim amount) is to an extent of Rs.28,52,538/-.That the condition regarding the delay shall not be a shelter to repudiate the Insurance claims which have been otherwise proved to be genuine. This commission observed that, the Consumer Protection Act aims at providing better protection of the interest of consumers. It is beneficial legislation that deserves a liberal construction. Hence the word ‘immediately” cannot be construed narrowly so to deprive claimant benefit of the settlement of genuine claim. Further the complainant relied on the decision of the Hon’ble State Commission, Gujarat, on perusal of the same the Hon’be State commission based on the judgments of Hon’ble National Commission and the Hon’ble Apex Court held that Consumer Protection Act Aims at protecting the interest of consumers and it being a beneficial legislation deserves pragmatic construction.  Hence contention raised by the OP Insurance Company regarding delay holds no water.   

 

13.   Further the delay of two days in intimating the fire incident to the OP Insurance Company is not a fatal to the case of the complainant.  Also the OP Insurance Company specifically not denied the fire incident but contended that, due to extra fittings like fog lamps such incident was occurred and it is contrary to the terms and conditions of the policy.  It is worth to note that, the driver of the subject vehicle after finishing his work, who parked the said vehicle at the landed property, the fire incident was occurred during night hours when the subject vehicle was at rest and in a parking condition, if such being the case due to night hours the engine condition also at the status of cool condition  and hence the saying of the OP an account of extra fitting of fog lamp such incident is occurred cannot be acceptable one in absence of any scientific evidence.  Further when the subject vehicle had caught fire that is on 24-10-2022 and on perusal of the policy it clearly discloses that, the period of risk commencing from 13-03-2022 to 12-03-2023 and hence it reveals that the fire incident was occurred during the currency of the policy.

 

14. The crux of the matter is that, the delay in intimating the OP Insurance Company is disentitled the complainant to claim insurance benefit covered under the policy?  It is well known fact that, the insurance is a contract based on doctrine of Uberrimafide and it is applicable for both parties.  Insurance is a contract by which one party promises to save the other from loss caused to him by the conduct of the promisor himself, or by the conduct of any other person, is called a contract of indemnity.  Further the object of the insurance is to cover the loss suffered by the insured or its beneficiaries.  In a many decisions of Hon’ble Apex Court as well as Hon’ble National Court, it is held that, mere delay cannot be a ground to repudiate the claim of the insured. 

 

15.  Furthermore, on perusal of the copy of FAR/5/2022 and the Mahazar drawn by the Jurisdictional Police and these documents clearly reveals that, when the subject vehicle was parked in the landed property and during night hours, the said vehicle caught fire and damaged the cabin, two front wheels, stepney tires & back side tires and the body of the subject vehicle burned down.  On perusal of the police records and panchanama it also supports the case of the complainant the subject vehicle had caught fire on 24-10-2022.  Hence when the policy is in force when the incident was occurred the OP Insurance Company ought to have honored the claim of the complainant by appointing the suitable surveyor to assess the damages.   Further OP Insurance Company cannot exonerate its liability merely on technical ground of 2 days delay and non-honoring the legitimate claim of the complainant as it amounts to deficiency in service on the part of the OP Insurance Company.

 

16. On perusal of the evidence placed on record and on accepting police FAR/5/2022 and the Mahazar drawn by the police the subject vehicle was burnt down due to fire incident.  Whereas the complainant has produced the estimate issued by the Bharath Benz it reveals that, in order to repair the subject vehicle and estimation is given to an extent of Rs.46,00,997/-.  It is worth to note that, as per survey assessment report loss (net claim amount) is to an extent of Rs.28,52,538/-.  Whereas, on perusal of IDV value mentioned in the Insurance Policy issued in favor of the previous owner of the lorry policy dated 13-03-2022 to     12-03-2023 and the IDV value said policy is mentioned under the insured declared value is an extent of Rs.18,68,175/- and hence in our opinion to assess the loss cause to the complainant due to burning of the subject vehicle in the said fire accident we can safely relay on the Insured declared value of the vehicle Rs.18,68,175/-.  Under the circumstances we are of the opinion that complainant is entitle for the above said IDV value of Rs.18,68,175/-.  Further an account of the burning of the subject vehicle in the said fire incident and the damaged vehicle is in the custody of the complainant and hence during the course of arguments both the advocates for their respective parties  submitted value of salvage to an extent of Rs.2,50,000/- to 3,00,000/-.  Under the circumstances when two views are possible to assess the value of the salvage, we adopt the theory of doctrine of two views, one is favor to the complainant that is lesser value of salvage and another one is favor to the OP that is higher value of the salvage in such circumstances the view which is favorable to the complainant is to be taken.  Accordingly the value of salvage is taken for Rs.2,50,000/- only towards the value of salvage.  Hence the OP Insurance Company is liable to pay Rs.16,18,175/- to the complainant after deducting the value of salvage.  Further on the basis of evidence placed on record only on the meager technical ground repudiated the claim of the complainant and made the complainant to wander from pillar to post and hence complainant is entitled for the interest @ 7.5% P.a on amount of Rs.16,18,175/- from the date of repudiation till its realization and also OP to pay Rs.2,000/- towards cost of proceedings.   Accordingly we answered the Point No.(1) in the affirmative and Point No.(2) in the partly affirmative.

 

17. Point No. (3):-  On the basis of discussion and reasons assigned while answering Point No.(1)&(2) and thereon we proceed to pass the following order:

 

ORDERS

1.  The complaint is hereby partly allowed with cost.
2. The OP No.(1) & (2) Insurance Company i.e Universal  Sompo General Insurance Company Ltd., represented by its manager are liable to pay a sum of Rs. 16,18,175/- along with interest @ 7.5% P.a from the date of repudiation of the claim till its realization.
3. Further OP.No.(1)&(2) are hereby directed to pay Rs.2,000/- towards the cost of the proceedings.
4.  Further OP.No.(1)&(2) are directed to comply the orders shown at above SL.No. (2) & (3) within 30 days from the date of receipt of order and to submit compliance report within 45 days.
5. Send a copy of this order to all the parties to the proceedings at free of cost.

 

  (Dictated to the Stenographer, transcribed by him, corrected and  then pronounced by us on this 19^th DAY OF JANUARY 2024)

 

 

   MEMBER                                PRESIDENT