Chandigarh

StateCommission

A/112/2022

ICICI LOMBARD GENERAL INSURANCE COMPANY LTD, - Complainant(s)

Versus

LAKHAN KAPOOR - Opp.Party(s)

GAURAV BHARDWAJ

27 Sep 2022

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

U.T., CHANDIGARH

 

Appeal No.	:	112 of 2022
Date of Institution	:	10.08.2022
Date of Decision	:	27.09.2022

 

 

 

 

 

ICICI Lombard General Insurance Company Ltd., Plot No.149, 4^th Floor, Industrial Area, Phase-I, Chandigarh through its Legal Manager/ Authorised Signatory Mr. Divyam Suri.

……Appellant/Opposite Party.

Versus

Sh. Lakhan Kapoor, Aged 25 years, S/o Sh. Rajan Kapoor, R/o House No.2180, Sector 15-C, Chandigarh.

…..Respondent/Complainant.

BEFORE:    MRS. PADMA PANDEY, PRESIDING MEMBER

                  MR. RAJESH K. ARYA, MEMBER

 

Argued  by:-     

Sh. Gaurav Bhardwaj, Advocate for the appellant.

Sh. Raman Sharma, Advocate for the respondent.

 

PER  RAJESH  K. ARYA, MEMBER

                   This appeal has been filed by the opposite party, namely, ICICI Lombard General Insurance Co. Ltd. (appellant herein) against order dated 05.04.2022 passed by District Consumer Disputes Redressal Commission-II, U.T., Chandigarh [in short ‘District Commission’], whereby consumer complaint bearing No.573 of 2020 filed by the complainant, namely, Sh. Lakhan Kapoor (respondent herein) has been allowed by the Ld. District Commission in the following manner:-

“10]   In view of the foregoing, we are of the opinion that the deficiency in service on the part of Opposite Party is proved. Accordingly, the present complaint is allowed against the Opposite Party with directions to pay to the complainant the Insured Declared Value (IDV) of the vehicle i.e. Rs.26,07,750/- along with interest @9% p.a. from 8.6.2019 i.e. two months after the loss till the date of payment. The Opposite Party is also directed to pay an amount of Rs.25000/- to the complainant towards compensation for causing him mental agony & harassment, along with litigation expenses of Rs.10,000/-.  The salvage of damage insured vehicle shall be retained by the OP Insurance Company and the complainant shall sign all necessary documents in favour of the OP Company in respect of the insured damaged vehicle in question, if desired by OP. 

         This order shall be complied with by the Opposite Parties within a period of 30 days from the date of receipt of certified copy of this order, failing which they shall also be liable to pay additional compensatory cost of Rs.20000/- to the complainant apart from the above relief.”

2.      The brief facts as culled from the impugned order dated 05.04.2022 passed by the Ld. District Commission were as under:-

          “Concisely put, the complainant’s Audi A4 Car bearing Regd.NO.CH-01-BQ-0555, was duly insured with OP Company for the period from 15.11.2018 to 14.11.2019 (Ann.C-2). It is averred that unfortunately the said insured vehicle met with an accident on 8.4.2019 regarding which FIR No.68, dated 20.4.2019 was lodged and furnished with OP Company.  It is also averred that OP got the repair value of the damaged vehicle assessed which turned out to be much higher than the Insured Declared Value, so the OP vide letter dated 6.7.2019 (Ann.C-2) demanded certain documents from complainant i.e. Indemnity Bond, AML Documents and Permission to Sell etc.  It is submitted that the complainant replied to the OP that since the vehicle is on spurdari, it is not possible to give permission to sell the salvage of the vehicle without permission from Court.  The complainant also moved an application for permission to the Judicial Magistrate, Dehradun, where challan was presented by the police against the complainant, but the said court dismissed the application. However, in Cr.MiSc. No.525/2020 Lakhan Kapoor Vs. State of Uttrakhand, vide order date 28.7.2020, the Hon’ble High Court of Uttrakhand granted permission to handover the accidental vehicle in question to the insurance company after photographs are taken by the Investigating Officer (Ann.C-6).  Accordingly, the Investigating Officer had taken photographs, placed the same on record of criminal case on which endorsement regarding compliance of Hon’ble High Court order has been made.  It has also been ordered by the ld.Magistrate on 21.9.2020 that the order is to be remitted to the Insurance Company for necessary compliance (Ann.C-7).  It is submitted that the complainant kept on requesting the OP to settle the claim, but the OP instead sent a copy of letter dated 19.9.2019 alleged to have been written to the complainant mentioning that OP is unable to process the claim as ‘closed’ and as such the OP has no liability in this case.  It is submitted that the OP has fabricated alleged letter dated 19.9.2019 and the same has never been dispatched to the complainant.  The complainant also sent a legal notice to the OP, but to no avail. Hence this complaint has been filed alleging deficiency in service on the part of OP.

2]       The OP has filed reply and while admitting the factual matrix of the case, stated that the complainant has been repeatedly called upon to provide the necessary documents which he had failed to provide and as a result, the claim was closed as ‘NO Claim’.  It is submitted that the claim was not repudiated but was closed as ‘No Claim’ as necessary documents were not provided.  It is denied that the order of Hon’ble High Court was provided to Jatin Arora on 29.7.2020.  It is denied that the repair value has been assessed at Rs.26,07,750/-.  It is submitted that as the claim has been closed and not processed for payment/repudiation, the amount if any payable under the claim has not been yet assessed/finalized by OP, that decision can be taken on the reopening of the claim. Denying all other allegations and pleading no deficiency in service, the OP has prayed for dismissal of the complaint.”

 3.     The order passed by Ld. District Commission has been assailed on the ground that the Ld. District Commission failed to appreciate the fact that there is no negligence on the part of the appellant, rather, it is the respondent who is himself guilty of his own act and conduct for not supplying the requisite documents i.e. Indemnity Bond, AML Documents, Permission to sell the vehicle & Bank foreclosure, which were required for releasing the claim amount and as such, the claim of the respondent was righty closed vide letter dated 19.09.2019, Annexure C-8. It has been stated that the respondent has not come to this Commission with clean hands and suppressed material facts with regard to supply of documents. It has further been stated that the Ld. District Commission failed to appreciate the fact that bare perusal of order dated 28.07.2020 of High Court of Uttrakhand would show that the respondent had sought permission for handing over the vehicle to the Insurance Company and no permission to sell was ever sought from the High Court. It has  further been stated that if the vehicle is handed over to the appellant, then, he cannot sell the vehicle without permission of Hon’ble High Court but he did not utter a single word in his complaint and also did not seek any permission to sell the vehicle. Without admitting its liability, the appellant has further stated that awarding interest @9% p.a. from 08.06.2019 by Ld. District Commission is totally wrong and illegal because the respondent got permission for handing over the vehicle to the appellant on 21.09.2020 and the said documents were never supplied to the appellant. It has further been stated that the Ld. District Commission ignored the evidence led by the appellant, which caused mis-carriage of justice and as such, the impugned order under appeal is liable to set aside. 

4.      On the other hand, in its written arguments, while reiterating the averments made in the complaint, the respondent has stated that to satisfy the requirement of permission to sell, he filed a petition before Uttrakhand High Court because his legal expert advised him that a total loss vehicle could not be sold and instead its salvage could only be handed over to the Insurance Company. Accordingly, requisite prayer was made and the Hon’ble High Court allowed the salvage/vehicle to be handed over to the appellant vide order dated 28.07.2020. It has further been stated that the appellant took the stand that necessary documents were not provided and closed the matter in an illegal manner. It has further been stated that the alleged letter dated 19.09.2019 was forged and fabricated as the appellant had not placed on record any proof of its dispatch. It has further been stated that once the foreclosure from the Bank and permission to hand over the damage vehicle were already supplied, there was no reason, why the appellant should not have re-opened the file itself and required the Court to pass an order. It has further been stated that in appeal, now a hyper-technical ground has been taken by the appellant that permission to sell was not obtained and instead permission to hand over the vehicle was obtained from the Court. It has further been stated that this plea was never taken by the appellant in its written statement filed before the Ld. District Commission and therefore, no such ground can be taken in appeal. It has further been stated that the order of Hon’ble Uttrakhand High Court is very clear that the said damaged vehicle is no more required in the Court and it is free from all encumbrances to be handed over to the appellant to which, the appellant is free to deal the way it wants. It has further been stated that there is no bar created by the Hon’ble High Court and thus, the plea being taken in appeal is totally frivolous and without any basis.

5.                It has further been stated that the other plea being raised by the appellant that interest has been wrongly awarded w.e.f. 08.06.2019 i.e. two months after the date of accident till the date of payment, cannot be accepted because the respondent had paid interest on the loan account to the Bank despite the fact that the vehicle had been totally damaged and was not in use and further because the payment of IDV became due on the date of accident and the entire IDV amount remained in the use of the appellant. It has further been stated that once the action of closure of the claim by the appellant is totally whimsical and further the action in not reopening the claim after the requisite documents were supplied by the respondent along-with legal notice dated 30.09.2020, the appellant is clearly guilty of compelling the respondent to approach by way of filing consumer complaint. Lastly, stating that the Ld. District Commission has rightly allowed the complaint, the respondent prayed for dismissal of the appeal with costs.

6.                Before dwelling on to the merits of the case, we would like to first decide Miscellaneous Application bearing No.603 of 2022 for condonation of delay of 59 days in filing the present appeal. Condonation of delay has been sought on the ground of procedural delay involved in obtaining necessary permissions from different quarters with regard to the filing of appeal. It has been stated in the application that copy of impugned order was prepared on 22.04.2022. The same was received on 26.04.2022. After deliberations at Head Office level situated at Mumbai, approval to file appeal was accorded on 20.05.2022. The approval for preparing the draft was accorded by the said Head Office on 26.07.2022 and demand draft of 50% of the awarded amount was prepared on 27.07.2022, which was received by Regional Office at Chandigarh on 01.08.2022 and as such, the appeal was filed on 10.08.2022. The application is supported by duly sworn affidavit of Mr. Divyam Suri, Authorised Signatory of ICICI Lombard General Insurance Co. Ltd. situated at Plot No.149, Industrial Area, Phase-1, Chandigarh.

                   In view of aforesaid position, we are satisfied that the delay in filing the present appeal occurred due to departmental procedure in obtaining necessary approval for filing appeal, which needs to be condoned. Thus, for the reasons stated in the application, the delay in filing the appeal stands condoned. MA/603/2022 stands disposed of accordingly.

7.                After giving our thoughtful consideration to the rival contentions raised by the Ld. Counsel for the parties and going through the record, impugned order and the written arguments very carefully, we are of the considered view that the appeal is liable to be dismissed for the reasons to be recorded hereinafter. It may be stated here that the Hon’ble Uttrakhand High Court vide order 28.07.2022, placed on record of Ld. District Commission as Annexure C-6, permitted the petitioner (respondent herein) to handover the vehicle to the Insurance Company but before that, the IO was directed to take photographs of the vehicle, which were to be jointly signed by the petitioner as well as by the IO and were to be verified before the Court concerned by both of them jointly on the date that may be fixed by the 4^th Additional Chief Judicial Magistrate, Dehradun. It was further observed that the verified photographs shall be considered primary evidence of the fact during trial. Accordingly, vide its order dated 04.09.2020, the Ld. Additional Chief Judicial Magistrate-III, Dehradun, in furtherance of Hon’ble Uttrakhand High Court order, directed the IO to take the photos of disputed vehicle and to sign the same and to verify the same by IO and the applicant, which was done on 21.09.2020 and accordingly report was submitted. It is also not in dispute that the respondent supplied the requisite documents to the appellant along-with legal notice dated 30.09.2020. Once the respondent got permission in his favour from Hon’ble Uttrakhand High Court qua handing over the damaged vehicle to the appellant, then nothing remains to be done thereafter from the side of the respondent. It is true that a total loss vehicle could not be sold and instead its salvage could only be handed over to the Insurance Company, which the respondent did after getting due permission from Hon’ble High Court. Now raising contention to the contrary that no permission to sell was ever sought from the Hon’ble High Court itself shows the malafide intentions of the appellant not to settle the genuine claim of the respondent and rather, taking pleas to defeat the claim on one pretext or the other.

8.                Not only above, the appellant though had taken a specific plea in its written statement filed before the Ld. District Commission that when all other letters were duly received by the respondent, then there was no occasion for him not to receive letter dated 19.09.2019, yet it failed to place on record the copy of said letter dated 19.09.2019 either before the Ld. District Commission or at the appellate stage by seeking appropriate permission of this Commission to place on record the same. Thus, an adverse inference is drawn against the appellant that any such letter was ever sent by the appellant to the respondent. To prove   delivery of the said letter, the onus was upon the appellant, which it failed to discharge, when the respondent had specifically denied receipt of the said letter in his complaint.

9.                As regards the contentions raised by the appellant that interest @9% p.a. w.e.f. 08.06.2019 i.e. two months after the date of accident till the date of payment, has been wrongly awarded by Ld. District Commission, it may be stated here that this contention is not sustainable in the eyes of law for the simple reason that the principle of equity comes to the rescue of the respondent here because he had also paid interest on the loan amount despite the fact that the damaged vehicle was a total loss and totally useless and also the payment of IDV became due on the date of accident and the entire IDV amount remained in the use of the appellant – Insurance Company. The respondent was at doubly loss and thus, the Ld. District Commission rightly directed the appellant to pay Rs.26,07,750/- being the Insured Declared Value (IDV) of the vehicle alongwith @9% p.a. w.e.f. 08.06.2019 i.e. two months after the date of accident till the date of payment.

10.              Therefore, in our considered view, the Ld. District Commission rightly allowed the complaint vide the order impugned, which does not suffer from any infirmity or material irregularity and is based upon true appreciation of facts and settled law on the subject.

11.              For the reasons recorded above, the appeal, being devoid of any merit, is dismissed with no order as to costs.

12.              Certified copies of this order be sent to the parties, free of charge.

13.              The file be consigned to Record Room after completion.

Pronounced

27.09.2022.

 (PADMA PANDEY)

          PRESIDING MEMBER

 

 

 

(RAJESH K. ARYA)

MEMBER

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