Date of filing: 03.06.2015 Date of disposal: 15.11.2019
Complainant: Chiranjib Saha, S/o. Chandradeb Saha, resident of Chandralay, Plot MO CB 16 KSTP DHADKA, District: Burdwan, PIN – 713 301.
Opposite Parties: 1. HDFC ERGO General Insurance Co. Ltd., represented through its Branch Manager, having its office at 4th Floor, City Plaza, City Centre, Durgapur, PIN – 713 216.
Proforma Opposite Party: 2. HDFC Bank Ltd., represented through its Branch Manager, having its office at 45 G. T. Road, Birhata (near Dhaldighi Petrol Pump), PO., PS. & District: Burdwan, PIN – 713 101.
Present:
Hon’ble President: Smt. Jayanti Maitra (Ray).
Hon’ble Member: Ms. Nivedita Ghosh.
Hon’ble Member: Shri Sailaranjan Das.
Appeared for the Complainant: Ld. Advocate, Suvro Chakraborty.
Appeared for the Opposite Party No. 1 : Ld. Advocate, Saurav Kumar Mitra.
Appeared for the Proforma Opposite Party No. 2 : None (ex parte).
J U D G E M E N T
The facts in brief are that Shri Chiranjib Saha (hereinafter termed as Complainant) had taken a Private Car Package Policy bearing No. 23112001233388020000 against the vehicle No. WB 38V 7713 (Model Hyundai, I-10) from HDFC ERGO General Insurance Co. Limited (hereinafter termed as OP-1) having its period of validity 29.08.2013 to 28.08.2014 and the same is the subject matter of the instant Consumer Complaint.
As per the complainant, the abovementioned vehicle met with an accident on 21.08.2014 and he informed of occurrence to OP-1 on 22.08.2014 which was registered as claim No. C230014056125 by the OP-1. When the complainant submitted the claim towards repairing of the damaged car, the OP-1 sent a letter seeking clarification on certain discrepancies in the mode, manner and place of occurrence of the accident, which was replied to by the complainant on 19.10.2014 and 07.11.2014 (erroneously mentioned as 11.11.2014). Thereafter the complainant received a letter dated 10.11.2014 wherein his claim had been repudiated on various grounds.
Being aggrieved thereby, the instant Consumer Complaint has been filed with the following prayers:
1. Directing the OP No. 1 to pay a sum of Rs. 66,879=00 by holding them liable for conduct of deficiency in service and unfair trade practice.
2. Directing the OP NO. 1 to pay a sum of Rs. 30,000=00 as mental pain and agony and harassment.
3. Directing the OP No. 1 to pay a sum of Rs. 25,000=00 as litigation cost.
The OP-1 has resisted all the claims of the complainant by way of filing written version.
The averments made in the written objection, in short, are that the present complaint suffers from suppression of material facts and as such, the complainant has not approached the Forum with clean hands and as such it should be dismissed.
As per the statement of the OP-1 on receipt of the claim from the complainant the OP-1 had engaged one Surveyor and one Investigator. The Surveyor after surveying the vehicle had submitted report. The Investigator also had submitted detailed report. Based on the reports submitted by both of them, the OP-1 concluded that the place of accident as stated by the complainant was not true.
It has further been contended by the OP-1 that the complainant had not been able to produce the receipts from the brake van service provider who towed the damaged car from the place of occurrence of the accident to the residence of the complainant. Basically on these two grounds the claims of the complainant has been repudiated.
We have gone through all the records, the questionnaires and the answers given therein and the affidavit and written argument filed by the rival parties.
Ld. Counsel for the complainant submits that while the car met with an accident his client who was driving the car sustained minor injuries. Also since he was quite nervous he called two of his friends to assist him and with their help the car was taken to his residence. He submitted that since it was already 9:45 p.m. the garage was already closed. So on the next date he took the damaged vehicle to the garage for repairing. He further submitted that the OP in order to deprive his client of his rightful claim had put forward some untenable grounds which do not stand scrutiny in the eye of law.
Ld. Counsel appearing for the OP submits that the complainant has not approached the Forum with clean hands. As per the report submitted by the Investigator no accident seems to have occurred on the place as stated by the complainant. Also the complainant has not been able to produce the document supporting the claim that the car was towed from the place of occurrence of the accident to his residence. So this has created ground for suspicion for the actual occurrence of the accident on the material date. He further submits that since the complainant did not furnish the facts he was entitled to get any reimbursement of his claim and as such his complaint was liable to be dismissed.
We have heard the submission of the Ld. Counsel for both parties and perused all the records submitted before us.
Decision with reasons:-
The basic issue involved in this dispute is that the complainant’s claim has been repudiated by the OP basically on two grounds, i.e., as per the findings of the Investigator no accident seemed to have occurred at the place as stated by the complainant and also the complainant had failed to submit any paper supporting towing of his car from the alleged place of accident to his house. It has also been stated that as per the Investigator’s report the Policemen who were on duty 1 ½ kms from the place of occurrence of the accident were not aware of any accident occurring in that vicinity. No police complaint also has been lodged by the complainant.
The ld. Counsel for the OP has submitted few judgements in support of his argument which are as follows:
- 2014 (1) CPR (NC) 722, 2. 2014 (1) CPR (NC) 130, 3. 2014 (4) CPR (NC) 530,
4. 2013 (2) CPR (NC) 424, 5. 2014 (1) CPR (NC) 5, 6. 2012 (0) AIR (SC) 3285,
There is no denying the fact by either side that an accident had occurred on 21.08.2014. The complainant informed the Insurance Company i.e., the OP-1 on the next date i.e., on 22.08.2014. The Surveyor engaged by the Insurance Company estimated the cost of the damages sustained by the car as Rs. 53,932=00. However, in his opinion the accident was not genuine and damages sustained to the said vehicle were not relevant to the cause and nature of accident. However, he has not put forward any reason for coming to such conclusion.
As per the investigation report it has been stated that Investigator could not find any trace of accident in the place of occurrence. Moreover, the complainant has not been able to produce the document, i.e., the receipt for towing the car from the place of occurrence to his residence. However, while concluding his observation, the Investigator has stated that the accident “might be happen on the said location disclosed by insured, but it is not proved from OP & other witness of insured local area”.
From the above discussion one thing is crystal clear that the car in question bearing No. WB 38V-7713 met with an accident. The place of occurrence of the accident has only been disputed. It has not been questioned whether the car which was being driven by the complainant had a valid driving license and on the material date, i.e., on the date of occurrence of the accident, the driving license of the complainant was valid. No sane person would deliberately cause damage to his car only for the purpose of getting compensation. It is nowhere in dispute that the car sustained major damages. The car cannot sustain major damages unless it meets with some accident. It is not the case of the OP-1 that the car sustained major damages due to any negligence on the part of the complainant. The car was repaired from an authorized service centre. The Investigator has not stated in his report anywhere incorporating the view of the service centre as regards probable cause of accident and the most interesting part is the Investigator has not ruled out the happenings of the accident. In his conclusion he has stated that accident “might be happen on the said location disclosed by insured, but it is not proved from OP & other witness of insured local area”.
The only point is whether the accident actually happened at the place of occurrence or not. On perusal of the records it is seen that the accident occurred on 21.08.2014 and the same was informed to the Insurance Company on the next date, i.e., on 22.08.2014. However, the spot survey was carried out only on 02.09.2014, i.e., almost ten days after the occurrence of the accident. In our view ten days lapsed between the occurrences of the accident of the actual survey is a long period and since it was the rainy season, there was every possibility that the marks of accident, like tyre marks on the ground and this could get erased over a period of ten days. Therefore, this logic of the OP-1 cannot be accepted.
As regards the second contention that the failure of the complainant to produce the receipt from the brake van service provider is not a very strong ground for denial of the claim. It is an admitted fact that the car sustained damages due to accident. Since the complainant has submitted the receipt from the brake van service provider for towing the car from his residence to the garage logically it implies that the car mist have been brought to his residence by some brake van service provider as it was not in a condition to be driven. Mere failure to produce the receipt is not a very cogent ground for refusal of the claim.
As per the written version the policemen on duty at a distance of 1 ½ km from the place of alleged occurrence of the accident had no knowledge of such occurrence. It is quite possible since 1 ½ km is quite a long distance. Only because they have no knowledge of such occurrence it had not happened. Also since no First Party Claim is being lodged FIR is not mandatory.
The Ld. Counsel for the Ops has cited a few judgements in support of his contention. No. 1 as follows: 2014 (1) CPR (NC) 722. This judgement pertains to mis-representation of birth certificate. On that ground claim was repudiated. Since in the instant complaint, the OP have not contended that the complainant have mis-represented any fact. This citation does not apply in the instant complaint, secondly, they have cited 2014 (1) CPR (NC) 130. In this citation the complainant’s claim was rejected because he concocted cock and bull story to give the benefit. But in this instant case the OP has not been proved conclusively that the whole accident is fabricated or the complainant has violated the conditions of contract in any manner. Therefore, this judgement is also not applicable in the instant complaint. Thirdly, 2014 (4) CPR (NC) 536. The claim was not accepted on the ground the driver who was driving the car was not having the valid driving license. Here the complainant is a holder of valid driving license and it is not the case of the OP that the car was being driving with invalid driving license. So this judgement was also not applicable in this as.
From the whole gamut of the incident it is clear that the insured car met with an accident and sustained major damages. The same was taken to a garage on the next date and was repaired by the authorized service centre. The total expenditure incurred Rs. 66,879=00
In view of the above discussion and on perusal of the records we are of the considered view that the complainant is entitled to get reimbursement of the cost of repairing of the car as per rules.
Hence, it is
O r d e r e d
that the instant Consumer Complaint being No. 69/2015 be and the same is allowed on contest in part with cost. The O.P. No. 1 is directed to pay Rs. 53,932=00 (Rs. Fifty three thousand nine hundred thirty two) only as cost of repairing of the damaged car as assessed by the Surveyor along with simple interest @9% (nine per cent) per annum from the date of repudiation of the claim till its realization. The O.P. No. 1 is further directed to pay compensation to the tune of Rs. 10,000=00 (Rs. Ten thousand) only for mental pain, agony and harassment and Rs. 5,000=00 (Rs. Five thousand) only as cost of litigation to the complainant. The OP No. 1 are directed to comply the award within 45 (forty five) days from the date of passing of this award, failing which, the complainant is at liberty to put the entire award in execution as per provisions of law.
Let plain copies of this order be supplied to the parties free of cost as per provisions of law.
Dictated & Corrected by me: (Jayanti Maitra (Ray)
President
(Sailaranjan Das) DCDRF, Purba Bardhaman
Member
DCDRF, Purba Bardhaman
(Sailaranjan Das) (Nivedita Ghosh)
Member Member
DCDRF, Purba Bardhaman DCDRF, Purba Bardhaman
