Chandigarh

DF-II

CC/245/2017

M/s Mohan Overseas - Complainant(s)

Versus

SBI General Insurance Co. Ltd., - Opp.Party(s)

Ashwani Gaur Adv. & Prerrna Gaur Adv.

30 Nov 2017

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-II, U.T. CHANDIGARH

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Consumer Complaint  No	:	245 of 2017
Date  of  Institution	:	14.03.2017
Date   of   Decision	:	30.11.2017

 

 

 

 

M/s Mohan Overseas through its Proprietor Mohinder Bajaj, Barsat Road, Noorwala, Panipat.       

             …..Complainant

Versus

SBI General Insurance Company Ltd., through its Branch Manager, 1^st & 2^nd Floor, SCO No.457-458, Sector 35-C, Chandigarh.  

                          ….. Opposite Party

 

BEFORE:  SH.RAJAN DEWAN            PRESIDENT

                                MRS.PRITI MALHOTRA        MEMBER

                                SH.RAVINDER SINGH         MEMBER 

 

 

Argued by: Sh.Ashwani Gaur, Adv. for complainant.

 Sh.Inderjit Singh, Adv. for Opposite Party

 

PER RAVINDER SINGH, MEMBER

 

 

          The facts in issue are that car of the complainant i.e. Volkswagen Passat bearing Regd.No.HR-06-W-2448 was insured with Opposite Party vide Policy No.000000002372175 valid from 15.12.2014 to 14.12.2015 having IDV of Rs.11,70,000/- (Ann.I).  It is averred that the said insured vehicle while driven by son of the complainant Ashish Bajaj met with an accident on 13.9.2015 in the area of Prince Road, New Delhi and the matter was reported to Police Station Model Town, Delhi and FIR No.659/2015, dated 13.9.2015 was registered (Ann.II).  It is also averred that Ashish Bajaj was holding a valid driving license at the time of accident of said vehicle.  It is further averred that the cause of accident was due to bursting of the front tyre of the said car, due to which the car went out of control and rammed into the road divider and thereafter, after climbing the road divider, the car hit against an electric pole, causing the damages.  On intimation, the Surveyor of the Opposite Party inspected the car and assessed the loss. It is stated that the Surveyor assessed the loss to the tune of Rs.9,12,850/- after deducting the depreciation without dismantling the car, which is much more than 75% of the Insured Declared Value (Ann.III). 

         It is submitted that Ashish Bajaj who was driving the vehicle at the time of accident had suffered injuries on his left arm and elbow and was removed to Shri Ganga Ram Hospital, Delhi for treatment, where the doctor observed that the patient was breathing positive for alcohol and his blood sample was taken for alcohol test (Ann.V). However, as per the examination report of Forensic Science Laboratory, Govt. of NCT, Delhi dated 31.12.2015, in both the blood samples, the presence of Ethy1 Alcohol could not be detect (Ann.VI) and this report was also submitted with the concerned police station. It is also submitted that thereafter, the complainant submitted his claim with the Opposite Party along with FSL Report and other requisite documents, but the Opposite Party repudiated the claim only on the basis of MLC in which the doctor observed that the patient smells of liquor.  It is further submitted that the complainant hired Sh.Vinesh Maini, Auto Mobile Engineer, Surveyor & Loss Assessor at his own cost, who had also submitted his report dated 16.6.2016 by stating therein that Sh.Ajay Mahajn, Surveyor of the Opposite Party has assessed loss without dismantling the car by mere physical inspection of the car and that the loss would increase further when the actual repairs of the car shall be carried out as some unforeseen repairs/replacement would come into picture and in such an eventuality, the actual loss shall exceed beyond 75% of the IDV and as such, the complainant is entitled for Insured Declared Value of the car as per policy it being a total loss.  Hence, this complaint has been filed alleging the repudiation of the claim as well as wrong assessment of loss done by the Surveyor of Opposite Party, as illegal and deficiency in service on the part of Opposite Party.

 

2]       The Opposite Party has filed reply and while admitting the factual matrix of the case, stated at the time of accident, the vehicle was being driven by the driver Ashish Bajaj under the influence of liquor which is a violation of the Motor Vehicles Act as well as term of Insurance Policy and accordingly the claim was righty repudiated.  It is denied that the loss of the vehicle was more than the assessed amount or car was total loss.  It is submitted that the loss of the vehicle was got assessed by an authorised Surveyor and the liability of the insurance company cannot go more than the amount assessed by the Surveyor subject to right of insurance company to the salvage/wrack as well as subrogation.  It is also submitted that the report of Sh.Vinesh Maini relied by the complainant is concoction and improved version. Pleading no deficiency in service and denying rest of the allegations, the Opposite Party has prayed for dismissal of the complaint.

        

3]       The complainant has also filed replication reiterating the contentions as raised in the complaint.   

 

4]       Parties led evidence in support of their contentions.

5]       We have heard the ld.Counsel for the parties and have carefully examined the facts and pleadings along with entire evidence on record.

 

6]       The objection raised by the Opposite Party regarding territorial jurisdiction of this Forum is not tenable. The policy vide which the vehicle in question was insured is issued from the Branch Office of Opposite Party at Chandigarh, which is evident vide Ann.A-1 (Page No.15 to 17), hence, this Forum has the territorial jurisdiction to try & adjudicate the present complaint. 

 

7]       Admittedly, there is no dispute regarding the accident of the insured vehicle in question on 13.9.2015.  The accidental insured vehicle was thoroughly inspected by the Surveyor appointed by the Opposite Party, who assessed the loss to the tune of Rs.9,12,850/- (Ann.III), which is more than 75% of the IDV (Insured Declared Value) of the vehicle i.e. Rs.11,70,000/-, thus, it is a case of Total Loss.

 

8]       Strangely, the Opposite Party has denied the claim of the complainant by issuing letter dated 12.4.2016 (Ann.A-I) stating therein the reason for the repudiation that Mr.Ashish Bajaj, who was the driver of the vehicle at the material time of accident was under the influence of Alcohol and thus the claim is not payable as per the policy term & condition No.2(c) of Section-1.  This ground of repudiation of Opposite Party is held to be untenable and without merit for the simple reason that in the report issued by Forensic Science Laboratory, Govt. of NCT of Delhi, Delhi it is recorded that:-

 

“In Chemical & GC-HS examination, ‘Ethyl Alcohol’ could not be detected in exhibits ‘1A’ & B’”

 

            

9]       Though it is recorded in the document – Medico Legal Case of Ashish Bajaj (Ann.C-5 Page 35) issued by Sh.Ganga Ram Hospital, that “Alcohol Breath +ve, Alcohol intake +ve” and also recorded that blood samples were taken for the examination as Ashish Bajaj was not cooperative for Alcohol Breath analyzer Machine.  However, the report of Forensic Science Laboratory, Govt. of NCT of Delhi, Delhi (Ann.VI) (Page 36 & 37) confirms that Ashish Bajaj was not under the influence of liquor. Thus, there is no violation of terms & conditions of the policy, as alleged by the Opposite Party and the claim is duly payable to the complainant.

 

10]      The Opposite Party by rejecting the genuine claim of the complainant, even after the report of Forensic Science Laboratory, Govt. of NCT of Delhi, Delhi, has not only rendered deficient services but also resorted to unfair trade practice.

 

11]       Keeping in view the above discussion, we are of the considered opinion that deficiency in service as well as indulgence into unfair trade practice on the part of the Opposite party is proved. Therefore, the present complaint is allowed with directions to the Opposite Party as under:-

1. To pay the Insured Declared Value of Rs.11,70,000/- of the insured damaged car to the complainant along with interest @6% p.a. from the date of repudiation i.e. 12.4.2016 till realization;

 

2. To pay an amount of Rs.10,000/- as compensation for the harassment suffered by the complainant on account of deficient service and unfair trade practice on the part of OP;

 

3. To pay litigation expenses to the tune of Rs.5000/-.

 

         This order shall be complied with by Opposite party within a period of 45 days from the date of receipt of copy of this order.

12]      The complainant shall handover the salvage of the damaged vehicle to the Opposite Party and shall also complete all the necessary requisite documentation formalities, as per need of OP Insurance Company.   

 

         Certified copy of this order be forwarded to the parties, free of charge. After compliance, file be consigned to record room.

Announced

30^th November, 2017                                                    

                                                                                                Sd/-

                                                                   (RAJAN DEWAN)

PRESIDENT

 

 

Sd/-

 (PRITI MALHOTRA)

MEMBER

 

Sd/-

(RAVINDER SINGH)

MEMBER