Punjab

Ludhiana

CC/21/126

M/s Ferro Sona Garments Pvt.Ltd - Complainant(s)

Versus

IFfco Tokio Gen Ins Co.Ltd. - Opp.Party(s)

Nitin Kapila Adv.

02 Jul 2024

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, LUDHIANA.

                                                Complaint No: 126 dated 10.03.2021.                                                        Date of decision: 02.07.2024. 

 

M/s. Ferro Sona Garments Pvt. Ltd., #3102/6, Nirankari Colony, Kuldeep Nagar, Near Sunder Nagar, Ludhiana, through its Authorized Person Jivan Kumar.

                                                                                      ..…Complainant

                                                Versus

1. IFFCO Tokio General Insurance Company Ltd., having its registered office at IFFCO Sadan C1, District Centre Saket, New Delhi-110017 through its authorized person.
2. IFFCO Tokio General Insurance Company Ltd., having its local office at 1^st and 2^nd Floor, Sohan Singh Complex, Ishmeet Singh Chowk, Shastri Nagar, Ludhiana through its authorized person.                                                                                   …..Opposite parties 

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

QUORUM:

SH. SANJEEV BATRA, PRESIDENT

MS. MONIKA BHAGAT, MEMBER

 

COUNSEL FOR THE PARTIES:

For complainant             :         Sh. Nitin Kapila, Advocate.

For OPs                          :         Sh. Vyom Bansal, Advocate.

 

ORDER

PER SANJEEV BATRA, PRESIDENT

1.                Shorn of unnecessary details, the facts of the case are that the complainant is a private limited company, incorporated under the Indian Companies Act and Sh. Jivan Kumar, Accountant is authorized to file the present complaint. The complainant purchased one BMW X1 having registration No.PB-10GW-3333 for personal use of its director. The vehicle was insured with the OPs vide policy No.M1887353 having validity from 02.07.2018 to 01.07.2019.

                   The complainant stated that on 19.10.2018 at about 08.30 AM, Rajiv Jain S/o. Varinder Kumar Jain was driving the vehicle in question and while exiting the main gate of the house, the said car rubbed against the main gate on the left hand side of the car. Rajiv Jain suddenly reversed the car and in that process, rear right hand side of the car hit into right hand side of the gate. When Rajiv Jain moved the car towards the front then the car hit into the front wall of its front right hand side. According to the complainant there was no third party loss or third party property damage nor any injury was caused to any person. The complainant immediately lodged the claim with the OPs with regard to damage of the vehicle upon which the OPs appointed Surveyor who visited the spot and checked the car but despite sending reminders, the claim of the complainant was not paid. The complainant was unable to use the vehicle due to loss occurred to the vehicle. The officials of the OPs under the garb to pay the claim, pressurized the complainant to swear an affidavit with an undertaking to pay only the part of the claim amount. Even the complainant agreed to get repair the car from his own pocket as the OPs only allowed the claim to the price of left side and right side repairs and assured to pay the amount payable for the claim of the left side and right hand side. Further the complainant sworn an affidavit dated 26.12.2018 with an undertaking not to claim the amount for loss on the front portion and as such, the complainant got the vehicle repaired from Krishna Auto Mobile i.e. the authorized agency of BMW vehicles who charged Rs.11,42,398/- for repair of the damaged vehicle. The complainant further stated that he gave intimation to the OPs but the OPs sent an Email dated 21.01.2019 wherein they have paid a lesser claim of Rs.4,76,500/- against the terms and conditions of the policy. The complainant sent legal notice dated 12.03.2020 upon the OPs through Sh. Nitin Kapila, Advocate but no reply was received from the OPs even after relaxation of Covid-19 restrictions. The act and conduct of the OPs amounts to deficiency in service and unfair trade practice  for which the complainant is entitled to compensation. In the end, the complainant has prayed for issuing directions to the OPs to make the payment of Rs.6,65,898/- being repair charges of the vehicle along with compensation of Rs.5,00,000/- and litigation expenses of Rs.50,000/-.

2.                Upon notice, the OPs appeared and filed written statement and assailed the complaint by taking preliminary objections on the ground of maintainability; the complainant is not a consumer; lack of jurisdiction and cause of action; suppression of material facts; the complaint has been filed to extort money from the OPs etc.

                   Under the column Factual Submissions, the OPs stated that the car BMW XI SDRIVE20D XLINE was insured with them we.f. 02.07.2018 to 01.07.2019 vide policy No.M1887353 for Private Vehicle as per policy schedule. Upon receipt of intimation of claim on 22.10.2018 from the complainant for damages to the vehicle, occurred on 16.10.2018, the OPs registered the claim vide claim No.37698006 and deputed an IRDA registered independent surveyor Mr. GPS Miglani to survey and assess the loss to the vehicle. The OPs also appointed M/s. Karnal Associates, Investigating and Detective Agency to investigate the cause of loss to the vehicle, who visited the place of loss and also collected statements of the insured. The investigator issued three letters dated 13.11.2018, 14.11.2018 and 20.11.2018 requiring documents with request to the owner to produce CCTV footage of the accident. The OPs further stated that the said letters were replied but CCTV footage was never produced. Thereafter, the investigator submitted his report dated 05.12.2018 stating “that BMW XI car No.PB-10GW-3333 may have met with accident on any date or anywhere…… Therefore, it seems, the insured has manipulated the case and tried to misrepresent the Insurance Company to gain the benefit of the claim by concealed the facts.”

                   The Surveyor collected the documents from the complainant, got filled the claim form, inspected the vehicle and clicked photographs and also Mr. Varinder Kumar Jain, Director of Insured Company submitted an affidavit to the surveyor by conceding that the Insurance Company is only liable to the extent of damage on the Left Hand side of the car and rear portion of the car. The Surveyor submitted his final report dated 05.01.2019 by assessing the liability of the Insurance Company at Rs.4,76,500/-, which the officials of the OPs after applying their mind settled and paid the said amount to the repairer of the vehicle. According to the OPs, the claim of the complainant has been rightly settled and allowed to the extent of admissible under the policy as per satisfaction of the complainant.

                   On merits, the OPs reiterated the crux of averments made in the preliminary objections and factual submissions. The OPs have denied that there is any deficiency of service and has also prayed for dismissal of the complaint.

3.                In evidence, Sh. Jivan Kumar, the authorized person of the the complainant tendered his affidavit as Ex. CA and reiterated the averments of the complaint. The complainant also placed on record documents Ex. C1 is the copy of resolution dated 03.02.2021, Ex. C2 is the copy of insurance policy w.e.f. 02.07.2018 to 01.07.2019, Ex. C3 is the copy of Motor Claim Form, Ex. C4 is the copy of Email dated 21.01.2019, Ex. C5 is the copy of receipt dated 15.12.2018 of Rs.6,00,000/-, Ex. C6 is the copy of receipt dated 23.01.2019 of Rs.72,203/-, Ex. C7 is the copy of tax invoice dated 31.12.2018 of Rs.1,78,381/-, Ex. C8 is the copy of tax invoice dated 31.12.2018 of Rs.9,64,017/-, Ex. C9 is the copy of Service Proforma Invoice dated 08.01.2019 of Rs.4599/-, Ex. C10 is the copy of Service Proforma Invoice dated 08.01.2019 of Rs.5943.66, Ex. C11 is the copy of Service Proforma Invoice dated 08.01.2019 of Rs.2870.33, Ex. C12 is the copy of affidavit of Varinder Kumar Jain, Ex. C13 to Ex. C18, Ex. C22, Ex. C27 are the copies of Email correspondence, Ex. C19 is the copy of reply given by Varinder Kumar Jain to  Karnal Associates, Ex. C20 is the copy of letter dated 20.11.2018 written by Karnail Associates to Varinder Kumar Jain, Ex. C21 is the copy of reply dated 19.11.2018 given by Varinder Kumar Jain to Karnal Associates, Ex. C23 is the copy of reply dated 16.11.2018 given by Varinder Kumar Jain to Karnal Associates, Ex. C24 and Ex. C25 are the copies of letter dated 14.11.2018 written by Karnal Associates to Varinder Kumar Jain, Ex. C26 is the copy of letter dated 13.11.2018 written by Karnal Associates to Varinder Kumar Jain, Ex. C28 is the copy of legal notice dated 12.03.2020, Ex. C29 and Ex. C30 are the postal receipts and closed the evidence.

4.                On the other hand, the counsel for the OPs tendered affidavit Ex. RA of Sh. Devendra Kumar, Authorized Signatory of the OPs along with documents Ex. R1 is the copy of  policy schedule, Ex. R2 is the copy of investigation report dated 05.12.2018 of Karnal Associates, Ex R3 is the copy of Motor Claim Form, Ex. R4 is the copy of Motor Survey Report dated 05.01.2019 of Miglani Insurance Surveyor & Loss Assessors Pvt. Ltd., Ex. R5 is the copy of affidavit of Varinder Kumar Jain and closed the evidence. 

5.                We have heard the arguments of the counsel for the parties and also gone through the complaint, affidavit and annexed documents and written statement along with affidavit and documents produced on record by both the parties.

6.                Complainant, a Private Limited Company purchased one BMW car having registration No.PB-10GW-3333 for personal use of its Director and secured a Private Package Car Insurance Policy from the OPs having validity from 02.07.2018 to 01.07.2019 vide policy Ex. C2 = Ex. R1. In the third week of December 2018, the car in question when driven by one Rajiv Jain stated to have struck against the outer gate of the house, resulting in damage to the vehicle. On 22.10.2018, intimation to the OPs was given and a Motor Claim Form Ex. C3 = Ex. R3 having mostly blank and unfilled columns was submitted with the OPs The date and time  of accident in the Motor Claim Form was mentioned to be 19.10.2018 at 08.30 A.M. On receipt of the claim, the OPs deputed Karnal Associates, an Investigation and Detective Agency to investigate the claim of the damage to the car of the complainant. The investigator recorded the statements of Varinder Kumar Jain, Rajiv Jain who stated the date and time of the accident to be 16.10.2018 at 07.30 AM. The Investigator also inspected the accidental car lying parked for repairs at Krishna Automobiles. The investigator vide letters dated 13.11.2018 (Ex. C26), dated 14.11.2018 (Ex. C24 & 25) and dated 20.11.2018 (Ex. C20) requested the complainant to provide CCTV camera footage in order to reconcile the date and time of the accident but Varinder Kumar Jain was evasive. The Investigator reached on the following conclusion vide its report dated 05.12.2018 Ex. R2:-

“On the basis of the above findings we are of the conclusion that BMW X1 Car No.PB10GW-3333 may have met with accident on any date or anywhere. Mr. Varinder Jain (Insured) & his son Mr. Rajeev Jain mentioned in their statements the date of accident are 16-10-2018 whereas mentioned in the claim form is 19-10-2018. We issued three registered Letters dated 13-11-2018, 14-11-2018 & 20-11-2018 and requested to Mr. Varinder Jain (Insured) about the investigation regarding to show us the CTV Cameras recordings dated 16-10-2018 & 19-10-2018 for observe that who was the driver of the above Car at the time of accident but the insured ignore to show us the CCTV Cameras Phootage and not co-operated with us. Mr. Varinder Jain replied out two Letters after cross the limit of CCT Cameras Recordings/Phootage. Because the recordings/phootage automatically deleted after 30 days. Therefore it seems, the insured has manipulated the case and tried to misrepresent the Insurance Company to gain the benefit of the claim by concealed the facts.”

 

7.                Simultaneously, the OPs availed services of GPS Miglani of Miglani Insurance Surveyors & Loss Assessors Pvt. Ltd. For Motor Survey Report who vide their report dated 05.01.2019 Ex. R4 assessed the net loss to be Rs.4,76,500/-. During the course of settlement process, Varinder Kumar Jain being the Director of the complainant company furnished an affidavit Ex. C12= Ex. R5 and negotiated a settlement with the OPs and relinquished his claim with regard to repairs of the damaged front portion of the car and agreed to receive the reimbursement from the OPs on the left side and rear side of the damage vehicle. He further undertook not to pursue the claim in any court of law and accorded his satisfaction with regard to extent and manner of settlement. The operative part of affidavit Ex. C12 = Ex. R5 is reproduced as under:-

“…..6. That the nature, cause and actual cause of accident is when the driver was exiting main gate of the house, the insured car LH side rubbed against LH side of the gate and driver suddenly reversed the car and in doing so rear RH side hit into RH of gate and then the driver moved towards front and in doing so the car hit into the front wall with its front RH side.

7. That there was neither any Third-Party loss of any nature nor any T.P. Property damage occurred nor any such bodily injury caused to any person arising out of this accident.

8. That I agree to get the front portion repaired from my own pocket and the insurers are only to allow me LH side and Rear Side, damaged in this accident. Further I have already deposited Rs.6 Lacs to the repairer from my pocket for repairs of front portion and the claim of LH Side and Rear would be cashless given by Iffco Tokio GIC Ltd.

9. That I undertake not to pursue any case in any court of law as case is settled to my ensure satisfaction.”

8.                In pursuance of settlement, the amount of Rs.4,76,500/- was paid to Krishna Automobiles on 21.01.2019 by the OPs. The complainant received the said payment without any protest. However, it is not the case of the complainant that he was coerced or forced to enter into settlement by the representatives of the opposite parties. In this regard, reference can be made to IV (2016) CPJ 95 (Punj.) in Birla Sun Life Insurance Company Limited Vs Gurpreet Singh whereby the Hon’ble State Consumer Disputes Redressal Commission, Punjab, Chandigarh held that the OPs have already paid to the complainant which was accepted and no proof with  regard to acceptance of amount under protest has been placed. Impugned order cannot be sustained.  Reliance can be further made to II (2013) CPJ 586 (NC) in M.L. Kathuria Vs Oriental Insurance Co. Ltd. and another whereby the Hon’ble National Consumer Disputes Redressal Commission, New Delhi held that once party accepts payment as full and final satisfaction without any protest, party cannot put forward claim before Consumer Fora. The complainant had accepted Rs.3,10,000/- while accepting the claim voluntarily and without any coercion exercised upon him as such, no illegality, irregularity or jurisdiction error in impugned order. Further, reliance can be placed in II (2003) CPJ 51 (Uttara.) TATA AIG General Insurance Co. Ltd. Vs Shalini Joshi whereby the Hon’ble Uttrakhand State Consumer Disputes Redressal Commission, Dehradun held that the respondent has never alleged that full and final settlement amount was received under any protest or it was partial payment. When the settlement amount has already been paid much prior to the date of filing of compliant, no cause of action wholly or in part has arisen to file complaint. The respondent has not filed any evidence that the bill was not considered by surveyor in its report. Insured amount has already been paid before the date of filing complaint case. Thus, respondent has not come with clean hands before District Commission and there is no deficiency in service on the part of insurance company.

9.                This Commission is constrained to observe that despite efforts by the investigator, the complainant did not co-operate and as such, the investigator could not establish the exact date, time and manner of accident. He has observed in his report that the insured has manipulated the case and tried to misrepresent the insurance company to gain benefit by concealing facts. Strangely enough, the officials of the OPs did not examine this important aspect of manipulation and misrepresentation and went on to enter into settlement with the complainant. Further Varinder Kumar Jain, Director of the complainant and his son and driver of vehicle Rajiv Jain did not step into witness box even before this Commission to elucidate the genesis of the accident. The complaint has also been filed belatedly after more than 2 years after the receipt of settled claim. So by applying ratio of the above said citations and keeping in view the facts and circumstances of the case, it is crystal clear that the complainant has concealed the facts regarding acceptance of amount of Rs.4,76,500/- without raising any protest, as such the complaint is not maintainable and the same deserves dismissal.

10.              As a result of above discussion, the complaint fails and the same is hereby dismissed. However, there shall be no order as to costs. Copies of order be supplied to parties free of costs as per rules. File be indexed and consigned to record room.  

11.              Due to huge pendency of cases, the complaint could not be decided within statutory period.

 

 

(Monika Bhagat)                              (Sanjeev Batra)               Member                                         President  

 

Announced in Open Commission.

Dated:02.07.2024.

Gobind Ram.