DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, SANGRUR .
Complaint No. 103
Instituted on: 18.02.2020
Decided on: 22.02.2024
Sukhchain Singh son of Gurmeet Singh resident of H.No.114, Ward No.12-A, Shivpuri Mohalla, Dhuri, District Sangrur.
…. Complainant.
Versus
1. Cholamandlam MS General Insurance Company Limited. Servicing Officer of Insurer- B-9/2-2481/21 Second Floor, Civil Lines, Old G.T. Road, Opposite Company Bagh, Jalandhar through its Manager 144001.
2. Cholamandlam MS General Insurance Co. Limited Regd. and Head Office, Second Floor, Dare House, 2 NSC Bose Road, Chennai-600001 through its Authorized Signatory.
3. Krishna Auto Sales Near Dream Land Colony, Patiala Road Sangrur through its Authorized Signatory 148001.
4. Dada Motors Pvt. Limited P.O. Kishangarh, Near Biza, Mehandipur, G.T.Road, Ludhiana through its Authorized Signatory 141001.
….Opposite parties
QUORUM
JOT NARANJAN SINGH GILL : PRESIDENT
SARITA GARG : MEMEBR
KANWALJEET SINGH : MEMBER
For the complainant : Shri A.S.Rajput Advocate
For the OPs No.1&2 : Shri Vinay Jindal, Advocate
OPs no.3&4 : Exparte.
ORDER
KANWALJEET SINGH, MEMBER
1. The complainant has alleged in this complaint that he has purchased a Tata Motors Ltd./Tata Xenon Yodha+ Pickup BSIV bearing registration number PB-13-BF-5199 after taking finance from Mahindra & Mahindra Financer Limited and he obtained the insurance policy of the above said vehicle from OP no.1 through OP no.3 which was valid from 31.12.2018 to 30.12.2019 covering own damage as well as third party risk. The OPs did not provide the terms and conditions of the policy. The complainant is using the said vehicle to earn his livelihood. On 30.04.2019, the vehicle in question was coming from Jammu to Punjab. At that time the vehicle was driven by Gurmeet Singh driver at a normal speed but suddenly due to mechanical defect in the vehicle driver lost his control of the vehicle and the said vehicle struck into the divider of the road. On the day of occurrence the complainant gave intimation of the accident to Malkeet Sharma Salesman of OP no.3 on its mobile number 7009738906 from the mobile phone of driver i.e. 9814878214. The salesman contacted through mobile and informed to the driver that he had registered the accident and intimated to the OPs no.1&2. The complainant was asked to bring the vehicle by towing to the workshop of OP no.3. Thereafter the local police reached at the place of occurrence and took the vehicle into their possession and registered the FIR no.67 dated 30.04.2019 U/s 279 IPC, P.S.V.Pur against the driver. The driver deposited an amount of Rs.800/- as fine before the Nazir of CJM, Samba and court ordered on 21.05.2019 for release the vehicle. Thereafter the complainant towing the vehicle into the workshop of OP no.3. The OP no.3 told the complainant that the vehicle of the complainant is badly damaged then the OP no.4 prepared the estimate of Rs.3,77,538/- for the repair of the vehicle. The claim of the complainant was repudiated by the insurance company on 08.08.2019 on the ground of belated intimation provided to the company on 13.07.2019 while the accident occurred on 30.04.2019. There was no delay whatsoever on the part of the complainant. The OPs were intimated of the accident on 30.04.2019. The OPs committed unfair trade practice and deficiency in service qua the complainant and lastly prayed that the Ops may kindly directed to repair the vehicle of the complainant and in alternative pay an estimate amount of Rs.3,77,538/- as loss and Rs.50,000/- as compensation and Rs.33000/- as litigation expenses.
2. Upon notice of this complaint, the opposite parties no.1 and 2 appeared and filed written version. In legal objections, OPs no.1 and 2 has pleaded that the question of law and fact are involved in the present complaint and require voluminous evidence which is not possible to try in summary procedure and appropriate remedy lies only in civil court. The complainant has concealed the material facts that there was in ordinary delay of 64 days in intimation of the claim from the date of alleged loss i.e. 30.04.2019 and intimation was given on 13.07.2019 and a serious breach committed by complainant of condition no.1 to 9 of the insurance policy. On merits, the insurance policy is applicable between the parties as per the terms and conditions of the policy and the provisions of the Motor Vehicle Act. The averments regarding manner of accident, damage of vehicle and lodging of F.I.R. are denied for want of knowledge. It is denied that there is any deficiency in service or unfair trade practice qua the OPs no.1 and 2. It is denied that any official of the OPs no.1 and 2 visited the premises of OP no.3 or inspect the vehicle or stated the complainant to take the vehicle to OP no.4. The remaining allegations are denied by the Ops no.1 and2 and prayed that the complaint of the complainant may kindly be dismissed.
3. Despite issuance of notice the OP no.3 did not appear and was proceeded against exparte vide separate order dated 24.05.2021 and earlier OP no.4 has appeared through counsel and filed memo of appearance only and no power of attorney has been filed on record but OP no.4 did not file reply of the complaint and defence of OP no.4 was struck off vide separate order dated 3.12.2021 and thereafter none had appeared on behalf of OP no.4 despite several calls and as such OP no.4 was proceeded exparte on 25.04.2023.
4. In support of his case the complainant tendered into evidence his affidavit Ex.C-1 and some other documents which are Ex.C-2 to Ex.C-17 and closed evidence.
5. On the other hand, to rebut the case of the complainant, the opposite parties no.1 and 2 produced in their evidence some documents i.e Ex.Op1&2/1 to Ex.Op1&2/5 and affidavit Ex.Op1&2/6 and closed evidence.
6. We have heard the learned counsel for parties and gone through the record file carefully with the valuable assistance of the learned counsel for the parties. During arguments the contentions of both the parties are similar to their respective pleadings, so there is no need to reiterate the same to avoid repetition.
7. Now, come to major controversy, whether the complainant is liable for relief as claimed by him in his prayer or not?
8. It transpires from the perusal of Ex.C-4 which is goods carrying vehicle package policy. The OPs no.1 and 2 issued the vehicle insurance policy bearing no.3313/00180801/000/00 in favour of the complainant. The complainant paid premium of Rs.16721/- to the OPs no.1 and 2. The policy period was valid from 31.12.2018 to 30.12.2019. It is mentioned in the policy schedule that the model 2018 of the vehicle in question is Tata Motors Ltd./Tata Xenon Yodha+ Pickup BSIV bearing chassis number MAT464608JSP18984 and engine no.4SPCR10PRY662579. The OPs no.1 and 2 fixed the insured declared value of the vehicle in question to the tune of Rs.643188/- . As per Ex.C-1 the certificate of registration of the vehicle issued by the Registering Authority, Sangrur in favour of the complainant. Ex.C-3 is the driving license of the complainant. From the perusal of pleadings of the complaint in para no.3 (b) that on 30.04.2019 driver Gurmeet Singh was driving the vehicle and coming from Jammu to Punjab but suddenly, due to mechanical defect in the vehicle the driver lost his control on the vehicle and the vehicle struck into the divider of the road. On the same day FIR no.67/19 dated 30.04.2019 which is Ex.C-5 was lodged at P.S.V. Pur, District, Samba of Jammu & Kashmir. The FIR was lodged in Urdu language. Ex.C-6 the FIR Urdu to Punjabi language translated by Mohd. Ashraf, Chamber No.111, Judicial Court Complex, Malerkotla. The driver deposited the fine amount of Rs.800/- the receipt which is Ex.C-7 before the Nazir of Chief Judicial Magistrate, District, Samba Court ordered on 21.05.2019 for release the vehicle in question.
9. The main issue for consideration before this Commission is “whether the complainant provided the intimation to the insurance company i.e. OPs no.1 and 2 immediately or not ?
From the perusal of reply of OPs no.1 and 2 in para no.2 of legal objection it is mentioned that there was delay of 64 days in intimation of claim from the date of alleged loss i.e 30.04.2019 and the intimation was given on 13.07.2019. This constitutes serious breach of conditions no.1 to 9 of the insurance policy by the complainant. This Commission has examined the document Ex.OPs1&2/1 repudiation letter. The relevant portion of the policy condition no.1 is reproduced as under:-
“1. Notice shall be given in writing to the company immediately upon the occurrence of any accidental loss or damage and in the event of any claim and thereafter the insured shall give all such information and assistance as the company shall required. ”
10. Per contra, it transpires from the face of record Ex.OPs1&2/4 self declaration/ affidavit produced in evidence of OPs no.1and 2 by Vidhi Passi, Manager Legal, on behalf of Ops no.1 and 2. In para no.1 of the affidavit, it is mentioned the delay of 74 days in intimation of the claim. From this angel, the stand of Ops no.1 and 2 with regard to delay in intimation of the claim is in itself contradictory rather the shoe is on the other foot.
To Trace out the veracity of truth, this Commission has examined a vital document which is Ex.C-8 call detail/ main CDR Report between 29.04.2019 to 30.04.2019. The pleadings of complaint in para no.3 (b) the complainant specifically mentioned that he gave intimation of the accident to Malkeet Sharma, Salesman of OP no.3 on its mobile number 70097-38906 through the mobile number of driver i.e. 9414878214. Thereafter the Salesman of OP no.3 informed the driver of the vehicle in question that he had registered the accident intimation and intimated the OPs no.1 and 2 regarding the accident. It is crystal clear from the examination of utmost important document which is Ex.C-8 the driver of the vehicle in question contacted on 30.04.2019 about 5.49.59 to cell number 7009738906. We feel that during the first communication call was noted 128 seconds. While in the second communication after 4 minutes a call was received by driver Gurmeet Singh on his cell number 9814878214 from the cell number 7009738906 on 30.04.2019 at 5.53.11. The conversation duration was noted 395 seconds ( approximate 7 minutes).
Moreover, this factum was neither rebutted by OPs no.1 and 2 in their reply in para no.3 (b) nor challenge the authenticity of the Ex.C-8. In this situation, it is incumbent upon the OPs no.1 and 2 to rebut the evidence of the complainant i.e. Ex.C-8. It is writ large on the file Ex.C-6 on page no.4 FIR translation from Urdu to Punjabi specifically mentioned the accident occurred about 0.5.15 hours. The whole scenario itself solve the issue with regard to intimation of the accident communicated by the driver through his cell phone (supra) to salesman of OP no.3.
11. It is pertinent to mention here that as per Ex.C-1 which is an affidavit of complainant on oath pleaded specifically in para no.2 that the intimation of the accident communicated to Salesman of OP no.3 on its mobile number ( supra). We hold that the evidence produced by complainant is legal one before the eye of law, reliable and truth worthy until and unless not rebutted by the OPs. In this context, Ex.C-8 call detail between OPno.3 and complainant is genuine one. From this angle, the driver of the vehicle intimated about the accident of the vehicle in question to OPs within 35 minutes on the same day of occurrence i.e. 30.04.2019. “ A man can lie, but document can’t” .
12. From the perusal of Ex.C-9 which is estimate of the damaged vehicle prepared by OP no.4 of Rs.3,77,538/-. Furthermore, Ex.OPs1&2/3 is motor final survey report-commercial page no.6 surveyor assessed loss gross total of Rs.2,86,260/- . The salvage value of the vehicle if any, mentioned as Rs.2,50,000/-. The excess and compulsory excess of Rs.500/- net liability of insurer Rs.35760/-. As per Ex.C-9 estimate prepared by OP no.4 regarding the damaged vehicle in question of Rs.3,77,538/-. This Commission has the considered opinion that the surveyor report is not reliable, truth worthy evidence. We feel that the Insurance Companies are in dominate position. The surveyor remuneration paid by the insurer. The surveyors are duty bound to work of loss assessment of the vehicle in question without prejudice.
13. We feel that the insurance company received huge amount by way of premium and issue the insurance policy to the innocent consumer frequently. On the other hand, the Phenomenon is toward the insurance companies are avoiding by one pretext another to pay the liability of insurance claim to the aggrieved consumers, we feel that an insurance contract is known as a contract of "uberrima fides" based on "utmost good faith" which is fully applicable in the present complaint. This is a fit case to redress the grievances of the complainant. This Commission has no hesitation to hold that OPs no.1&2 are liable to pay the repair charges of the insured vehicle in question as per estimate prepared by OP no.4 of Rs.3,77,538/- in the light of Ex.C-9.
14. Resultantly, keeping in view of the facts and circumstances of the complaint in hand and with careful analysis of the evidence available on record we partly allow the complaint of the complainant and direct the OPs no.1 and 2 to pay the repair charges of the insured vehicle in question of Rs.3,77,538/- . Further, the Ops no.1 and 2 are directed to pay a consolidated sum of Rs.5000/- on account of compensation and litigation expenses. This order be complied with by OPs no.1&2 within 45 days from the receipt of copy of this order.
15. The complaint could not be decided within the statutory time period due to heavy pendency of cases.
16. Copy of this order be supplied to the parties free of cost. File be consigned to the records after its due compliance.
Announced.
February 22, 2024
( Kanwaljeet Singh) (Sarita Garg) (Jot Naranjan Singh Gill)
Member Member President
BBS/-
