SHRI SWAPAN KUMAR MAHANTY, PRESIDENT
This is an application u/s.12 of the C.P. Act, 1986.
The case of the complainant, in brief; is that he purchased a Hyundai Car bearing registration No. W.B.-08A-4264 from Mohan Motor Udyog Pvt. Ltd. and the OP-2 Bharati Axa General Insurance Company Ltd. is the insurer of the said car. Again the policy being No. HAX/S8249698 had renewed for the period from 30.03.2016 to 29.03.2017. Prior to purchase of the car the OP-1 assured the complainant that during the period of free service within 03 years from the date of purchase, if any untoward incident likely to be happened in respect of the insured car in that event the complainant shall have to come first at the showroom of the OP-1 for getting the estimate for repair of the car and thereafter the OP-1 will look into the matter and shall help the complainant to get insurance claim from the OP-2. The insured car met an accident on 28.03.2017 at about 10.30 hours for which the complainant including his wife and driver sustained injuries on their person and immediately they were removed to Apollo Gleneagles Hospital, Kolkata. Complainant and his wife got admitted there for medical treatment where a major surgical operation had to be performed to the complainant and the insured car is also badly damage.
Further case of the complainant is that Manicktala P.S. case No. 86 dated 28.03.2017 U/sections 279/337/338/427/307 of I.P.C. was initiated against the driver of the insured car and during investigation I.O. seized the said car. Complainant discharged from the hospital on 04.04.2017 and also advice to bed rest for six months. The seized car was released on 06.05.2017 as per order of the Ld. A.C.J.M., Sealdah. Ultimately, on 09.05.2017 complainant placed the insured car to the workshop of OP-1 for getting estimate of damage. The technical of OP-1 thoroughly checked the insured car and uttered that the nature of damage is so bad and the cost of repair is equivalent to price of new car. They assured to inform the claim to the OP-2/Insurer. That on 18.08.2017 the OP-2 issued a letter addressed to the complainant that insurance claim of the damage car has been lodged on 03.06.2017. OP-2 appointed a surveyor to survey the damage car at the workshop of OP-1 without service any notice to the complainant and submitted a report. The OP-2 vide their letter dated 18.08.2017 informed the complainant that the driver of the insured car was under the influence of alcohol and for such reason the accident has been occurred. Lastly the OP-2 repudiated the claim on the ground of delay. Legal notice dated 08.09.2017 and 13.10.2017 were served to the OP-2 but such letters were unattended. Thus, the OP-2 has adopted unfair trade practice. Hence, the consumer complaint.
The OP-1 has contested the case by filing W.V. denying all the material allegations of the complainant. The specific case of the answering OP is that the complainant lodged claim to the OP-2 along with relevant documents. There is no deficiency in service and/ or unfair trade practice on the part of the answering OP. The matter of the processing of insurance claim of the damage car is wholly within the domain of the OP-2. The grievance of the complainant is against the OP-2/ Insurer and no relief has been claimed against the answering OP. Thus, the OP-1 has prayed for dismissal of the complaint.
The OP-2 Bharati Axa General Insurance Co. Ltd. has also contested the case by filing W.V. contending inter-alia that the case is not maintainable either in law or in fact and the complainant is not a consumer within the purview of consumer Protection Act, 1986. The specific case of the OP-2 is that complainant had purchased a Hyundai Xcent car bearing registration No. WB-08/A-4264 from OP-1 and obtained a policy for the said car for a period from 30.03.2016 to 29.03.2017 having a sum assured of Rs. 4,96,450/- (IDV). The complainant intimated about the accident to the Insurance Company on 03.06.2017 though the said car met an accident on 28.03.2017. That on receipt of the intimation of accident the Insurer appointed IRDA licensed surveyor to assess the loss of the damaged car. There is 67 days delay on the part of the complainant in intimating the alleged accident to the Insurer. As per investigation report, claim documents furnished by the insured and report of the police authority it transpired that driver of the subject car was under influence of liquor/ alcohol at the material time of accident. As per condition No. (b) of the Smart Drive Pvt. Car Insurance Policy the Insurance Co. is not liable to make any payment in connection with any accidental loss or damage. There is no deficiency in service and/ or unfair trade practice on the part of the OP-2. Accordingly, OP-2 has prayed for dismissal of the case.
Upon the pleadings of the parties the following points necessarily come up for determination.
i) Whether the complainant had car insurance policy with the OP-2 on the date of accident?
ii) Was the repudiation made by OP-2 Insurance Company violated the terms and conditions of the policy?
iii) Whether there was any deficiency in service on the part of the OPs?
iv) Whether the complainant is entitled to get the relief as prayed for?
Decision with Reasons
Points No. 1 to 4
All the points are taken up together for the sake of brevity in discussion and to avoid unnecessary repetition.
Both parties have tendered evidence through affidavit. We have travelled the pleadings of the parties coupled with evidence and documents on record.
` Fact remains that the complainant purchased a Hyundai Car bearing registration No. WB-08A-4264 from the OP-1 and OP-2 Bharati Axa General Insurance Co. Ltd. is the insurer of the said car. It is true that during subsistence of the insurance policy the insured car met an accident on 28.03.2017 at about 10.30 hours and Manicktala P.S. Case No. 86 dated 28.03.2017 under Sections 279/337/338/427/307 I.P.C. was started against the driver of the insured car. There is no dispute that the complainant and his wife Mrs. Supriya Saha sustained injuries on their person and they were removed to Apollo Gleneagles Hospital, Kolkata for treatment. Photocopies of discharge summary go to show that complainant and Mrs. Supriya Saha admitted to hospital on 28.03.2017. Both the injured were discharged on 04.04.2017. We have it from the discharge summary and certificate of Dr. Manabendra Nath Basu Mallick, consultant orthopedics of Apollo Gleneagles Hospital that complainant sustained comminuted subtrochanteric fracture right femur, shaft right tibia and middle phallanx lift little finger and surgery was done on 29.03.2017. He was advice to rest for six months to one year Mr. Supriya Saha also sustained minor head injury (lacerated forehead and left eyelid) due to road traffic injury as it appears from the discharge summary of Apollo Gleneagles Hospital.
In course of investigation of Manicktala P.S. case No. 86 dated 28.03.2017 police seized the insured car against seizure list and Sri Arup Kumar Saha, authorized person of the complainant/ owner of Hyundai car bearing No. WB-08A-4264 released the insured car on 09.05.2017 at his zimma on executing bond of Rs. 7,00,000/- as per order of the Ld. Additional Chief Judicial Magistrate, Sealdah. That on 09.05.2017 the damage car was placed to the workshop of OP-1 to assess the nature of damage after delay of 42 days. Service Advisor of OP-1 caused inspection of the damage car and also issued inspection report (Annexure-H) Claim Form was not provided to the representative of the complainant and lastly Claim Form was provided and also demanded photocopies of related documents of the damage car.
It is evident from the Claim Form that complainant signed it on 02.06.2017 and the OP-1 conducted primary inspection of the damage car in their workshop to assess the nature of damage on 09.05.2017. It is not believable that without receiving related documents of the damage car the technician of OP-1 conducted inspection of the car at their workshop and prepared inspection sheet. Therefore, it is crystal clear that the OP-2 did not take any initiative until receiving related documents of the damage car. OP-2 is unable to process the insurance claim without related documents of the insured car. Thus, another 24 days delay was happened purely due to will-full negligence on the part of the OP-1 and shifting of such delay on the shoulder of the complainant cannot be justified in the fact of the case.
In course of hearing of argument the Ld. Advocate for the OP-2 has submitted that police report clearly indicates that Sufal Mondal, driver of the subject car was under influence of alcohol/liquor on the date, time and hour of accident. He has further contended that there was 67 days delay on the part of the complainant intimating about the alleged accident to the OP-2/Insurer. Thus, the complainant has violated the terms and conditions of the policy and not entitled to get any relief as claimed.
Per-contra the Ld. Advocate for the complainant has submitted that there is no cogent documents and/ or evidence on record that Sufal Mondal, driver of the subject car was influence of alcohol/liquor at the time of driving the car. He has further submitted that if reason of delay in making a claim is satisfactory explained, such claim cannot be rejected on the ground of delay, it would not be fair and reasonable to reject genuine claims which had already been verified and found to be correct. Consumer Protection Act aims at providing better protection of interest of consumers. It is a beneficial legislation that deserves liberal construction and this loudable object should not be forgotten while considering claims made under the C.P. Act, 1986.
The ground on which the insurance claim of the complainant was repudiated on the ground of delay regarding information of accident and driver of the subject car was under influence of alcohol/ liquor. It is true that Manicktala P.S. did not book the driver Sufal Mondal U/sections 185/186/203 of M.V. Act for offence of drink and drive after the R.T.A. Blood Test by breath analyser was not done to establish that Sufal Mondal was driving the subject car after consuming alcohol/ liquor at the time of accident. On perusal of the Formal F.I.R. we do not find that the driver of the subject car was in drunken condition at the time of accident. As such, the argument advanced by the Ld. Advocate for the OP-2 has no leg to stand.
The next question which arises for consideration is whether the repudiation of claim by the OP-2 on the ground of delay is justified or not.
In Om Prakash vs. Reliance General Insurance & Anr. Reported in IV (2017) CPJ 10 (SC) The Hon’ble Apex Court while allowing the complaint filed by the complainant in connection with theft of a vehicle inter-alia held as under:-
“It is common knowledge that a person who lost his vehicle may not straightway go to the Insurance Company to claim compensation. At first, he will make efforts to trace the vehicle. It is true that the owner has to intimate the insurer immediately after the theft of the vehicle. However, this condition should not bar settlement of genuine claims particularly when the delay in intimation or submission of documents is due to unavoidable circumstances. The decision of the insurer to reject the claim has to be based on valid grounds. Rejection of the claims on purely technical grounds in a mechanical manner will result in loss of confidence of policy-holders in the insurance industry. If the reason for delay in making a claim is satisfactorily explained, such a claim cannot be rejected on the ground of delay. It is also necessary to state here that it would not be fair and reasonable to reject genuine claims which had already been verified and found to be correct by the investigator. The condition regarding the delay shall not be a shelter to repudiate the insurance claims which have been otherwise proved to be genuine. It needs no emphasis that the Consumer Protection Act aims at providing better protection of the interest of consumers. It is a beneficial legislation that deserves liberal construction. This laudable object should not be forgotten while considering the claims made under the Act.
In Reliance General Insurance vs. Rupinder decided on 16.06.2017 First Appeal No. 479 of 2016 the Hon’ble SCDRC, Punjab Chandigarh held that Insurance Regulatory and Development Authority (in short, “IRDA”) issued circular to all life-insurers and non-life insurers dated 20.09.2011 regarding delay in claim intimation/documents submission with respect to all life insurance contracts and all non-life individual and group insurance contracts. The same is reproduced hereunder:-
“INSURANCE REGULATORY AND DEVELOPMENT AUTHORITY Ref. IRDA/HLTH/MISC/CIR/216/09/2011 Dated: 20.09.2011 CIRCULAR To All life insurers and non-life insurers. Re: Delay in claim intimation/documents submission with respect to i. All life insurance contracts and ii. All Non-life individual and group insurance contracts.
The Authority has been receiving several complaints that claims are being rejected on the ground or delayed submission of intimation and documents. The current contractual obligation imposing the condition that the claims shall be intimated to the insurer with prescribed documents within a specified number of days is necessary for insurers for effecting various post claim activities like investigation, loss assessment, provisioning, claim settlement etc. However, this condition should not prevent settlement of genuine claims, particularly when there is delay in intimation or in submission of documents due to unavoidable circumstances.
The insurer’s decision to reject a claim shall be based on sound logic and valid grounds. It may be noted that such limitation clause does not work in isolation and is not absolute. One needs to see the merits and good spirit of the clause, without compromising on bad claims. Rejection of claims on purely technical grounds in a mechanical fashion will result in policy holders losing confidence in the insurance industry, giving rise to excessive litigation.
Therefore, it is advised that all insured need to develop a sound mechanism of their own to handle such claims with utmost care and caution. It is also advised that the insurers must not repudiate such claims unless and until the reasons of delay are specifically ascertained, recorded and the insurers should satisfy themselves that the delayed claims would have otherwise been rejected even if reported in time.
The insurers are advised to incorporate additional wordings in the policy documents, suitable enunciating insurers’ stand to condone delay on merit for delayed claims where the delay is proved to be for reasons beyond the control of the insured.”
The Hon’ble NCDRC in para No. 4 of Sri Avvn Ganesh’s case (supra) has held as under.
Even a cursory perusal of the detailed discussion in the State Commission’s order would be sufficient to demonstrate that all conditions for acceptance of the insurance claim except the point of reporting the “loss”
Within one month of its occurrence had been substantially fulfilled. In this case, the delayed intimation of the death of the insured due to the injuries he suffered on account of the “accident” (namely, failing off his bicycle and thereafter vicious dog bites on the his inner thighs and scrotum) cannot be held to be ruinous to the insurance claim because the facts and circumstances of the death were clearly established on the basis of medical records as well as deposition of the doctor who attended on the deceased insured.
In the instant case, the complainant has given cogent reasons for delay in informing the OP-2 about the accident OP-1 also responsible for 24 days delay as the damage car was placed to their workshop on 09.05.2017 for inspection and service advisor also caused inspection of the damage car and also issued inspection report. Complainant also furnished Claim Form with related documents of the damage car to the representative of the OP-1 as per their assurance prior to purchase of the car. The investigator has verified the accident to be genuine but the OP-2/Insurer repudiated the claim on the ground of 67 days delay in claim intimation. In the instant case subject car met an accident on 28.03.2017 and an F.I.R. was lodged to Manicktala P.S. without any delay. Complainant and his wife sustained injury on their person, they were admitted to Apollo Gleneagles Hospital for treatment on the date of accident and discharged on 04.04.2017. The discharge summary and certificate issued by Dr. Manabendra Nath Basu Mallick of Apollo Gleneagles Hospital support the version of the complainant regarding their injuries sustained due to R.T.A. and Dr. Manabendra Nath Basu Mallick, consultant-orthopedics of Apollo Gleneagles Hospital who performed surgery advice the complainant for rest 06 months to 01 year. Therefore, the delay in intimating is not prejudicial to the OP-2/Insurance Co. in that it is not prevented, because the delay, from carrying out any investigation into the facts and circumstances leading to the insurance claim to satisfied itself if the accident and consequent loss fell within the substantive conditions of the insurance policy. The facts and circumstances of the injury is clearly established on the basis of medical record. The OP-2 therefore, is not justified in repudiating the claim of the complainant without considering the explanation for the delay having a valid insurance policy.
It is true that the technician of the OP-1 checked the damage car but he did not assess the cost of repair of the damage car on the ground that the cost of repair will raise high and will touch as well as the price of a new car. No document is forth coming from the side of the complainant to establish that Rs. 4,96,450/- is to be required for cost of repair of the damage car. In the legal notice dated 12.10.2017 the complainant has claimed Rs. 3,00,000/- as compensation for damage car and/or arrange to get repair the damage car bearing registration No. WB-08A-4264 in good and proper condition as it remains before the accident from the workshop of OP-1 at their cost under the terms and conditions of the policy. In our opinion the claim of compensation is not just and proper and the OP-1 did not assess the cost of repair of the damage car.
Having heard the Ld. Advocate of both sides and carefully gone through the evidence and documents on record, in the facts and circumstances of the case, we are of the view that there is deficiency in service on the part of the OPs. As such, the complainant is entitled to get relief as prayed for. Thus, all the points under determination answered in the affirmative.
In result, the case succeeds in part.
Hence,
Ordered
That the complaint case be and the same is allowed on contest against the OPs with litigation cost of Rs. 5,000/- (Rupees Five thousand) only each (total Rs. 10,000/-).
OP-2 Bharati Axa General Insurance Company Ltd. is directed to disburse Rs. 3,00,000/- (Rupees Three lacs) only being the loss of damage car bearing registration No. WB-08A-4264 within 30 days from the date of this order along with litigation cost of Rs. 5,000/- (Rupees Five thousand) only.
OP-1 Mohon Motor Hyundai a unit of Mohon Motor Udyog Pvt. Ltd. is also directed to pay Rs. 40,000/- (Rupees Fourty thousand) only to the complainant for harassment, mental pain and agony for non assessing the cost of repair of the damage car and non intimating for lodging insurance claim of the complainant to the OP-2 within 30 days from the date of this order along with litigation cost of Rs. 5,000/- (Rupees Five thousand) only.
Liberty be given to the complainant to put the order into execution, if the OPs transgress to comply the order.
