Haryana

Karnal

CC/10/2019

Hitesh Saini - Complainant(s)

Versus

The National Insurance Company Limited - Opp.Party(s)

N.S. Chaudhary

18 Jun 2019

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM KARNAL.

 

                                                          Complaint No. 10 of 2019

                                                          Date of instt. 03.01.2019

                                                          Date of Decision 18.06.2019

 

Hitesh Saini son of Shri Ashok Saini resident of House no.346/2 behind Union Bank of India Building, Bachpan Play School, Model Town, Karnal.

 

                                                                         …….Complainant.

                                                  Versus

 

1. The National Insurance Co. Ltd. through its Regional Manager, Regional Office, Chandigarh.

2. The National Insurance Company Ltd. Railway Road, Karnal, through its Divisional Manager.

3. M/s Bhatia Motors Pvt. Ltd. ITI Chowk, Karnal, Tehsil and District Karnal through its proprietor.

                                                                                                                                                                      …..Opposite Parties.

 

           Complaint u/s 12 of the Consumer Protection Act. 

 

Before    Sh. Jaswant Singh……President. 

      Sh.Vineet Kaushik ………..Member

                 

 

 Present:  Shri N.S. Chaudhary Advocate for complainant.

                Shri Gaurav Gupta Advocate for OPs no.1 and 2.

                  Shri N.M. Mehta Advocate for OP no.3

 

                   (Jaswant Singh President)

ORDER:  

                 

                        This complaint has been filed by the complainant u/s 12 of the Consumer Protection Act 1986 on the averments that the complainant is the registered owner of Toyota Innova Car bearing Registration no.HR-05-AE-1770. This vehicle is insured with OPs no.1 and 2, vide policy/cover note bearing no.401708085785, valid for the period from 16.02.2018 to 15.02.2019. There was a fire in the said workshop in the early morning on 18.03.2018 in which about 30 vehicles were burning completely. The vehicle of the complainant was also burnt completely in that fire. The complainant alongwith the other owners of their respective vehicles lodged the claim and had sent their claim information to the respective insurance companies. In the present case of the complainant, the OPs no.1 and 2 were duly intimated about the said accident through letter dated 26.03.2018 and other relevant documents such as insurance policy, registration certificate as well as report of the fire department were duly handed over to the surveyor concerned. The surveyor was also appointed by the OPs and he has also assessed the loss as total loss of the said vehicle. The other insurance companies i.e. Tata AIG as well as Iffco Tokio Insurance Companies have already settled the claim of the respective vehicles of their owners. However, the OPs have failed to settle the claim of the complainant and to make the payment to the complainant till date inspite of various reminders and visits of the complainant. Then complainant sent a legal notice dated 4.12.2018 in this regard but it also did not yield any result. In this way there was deficiency in service on the part of the OPs. Hence complainant filed the present complaint.

2.             Notice of the complaint was given to the OPs, OPs no.1 and 2 appeared and filed written version raising preliminary objections with regard to concealment of true and material facts; cause of action; mis-joinder and on-joinder of necessary parties and complainant is estopped by his own act and conduct from filing the present complaint. On merits, it is pleaded that on getting intimation of loss of complainant’s car in Bhatia Motors due to fire, one Investigator Sh.R.N. Sharma was deputed for the investigation the matter by the company. Company also appointed IRDA approved independent surveyor Mr. Jatin Sawhney for survey of vehicle and assessment of loss. Both of them submitted their respective detailed report. After receiving report it is found that your claim is not maintainable, due to the following reasons:

a) On perusal of the documents and investigations of the matter, it is observed that complainant’s vehicle was lying in Bhatia Motors Karnal where fire caught in workshop due to electric shock in which complainant’s vehicle was also burnt.

b) The motor insurance policy excludes the losses under contractual liability which is the General Exceptions no.2 of Motor Insurance Policy. The company shall not be liable under this policy in respect of “any claim arising out of any contractual liability.”

The loss sustained is not payable due to gross violation of policy Terms and Conditions and reasons stated above. In view of the same, the claim of the complainant was repudiated by the OPs no.1 and 2, vide repudiation letter dated 25.01.2019. In this way there was deficiency in service on the part of the OPs no.1 and 2. The other allegations made in the complaint have been denied by the OPs no.1 and 2 and prayed for dismissal of the complaint.

3.             OP no.3 filed its separate written statement raising preliminary objections with regard to maintainability and concealment of true and material facts. On merits, it is pleaded that no consideration whatsoever was paid by complainant for service and general check-up of his car to the OP no.3. It is further pleaded that the cause of fire at the workshop of OP no.3 was electrical short circuit and not due to any negligence and mischief of any other party. It is further pleaded that OP no.3 fully cooperated with the respective insurance companies of the complainant as well as other consumers and provided the necessary and required documents for settlement of the case to the surveyor. It is further pleaded that the other insurance companies i.e. Tata AIG as well as Iffco Tokio have already proved the claim of the respective vehicle of their owners which are completely burnt in this fire as well on 18.03.2018. It is further pleaded that the liability to pay the claim amount is that of the respective insurance company, opposite parties no.1 and 2 in this case. Hence there is no deficiency in service on the part of the OP no.3. The other allegations made in the complainant have been denied by OP no.3 and prayed for dismissal of the complaint.

4.             Complainant tendered into evidence his affidavit Ex.CW1/A and documents Ex.C1 to Ex.C10 and closed the evidence on 17.05.2019.

5.             On the other hand, OPs no.1 and 2 tendered into evidence affidavit of Rajinder Kumar Ex.RW1/A, affidavit of R.N. Sharma Investigator Ex.RW2/A and documents Ex.R1 to Ex.R6 and closed the evidence on 12.06.2019.  OP no.3 tendered into evidence affidavit of Rajesh Bhatia Ex.RW1/A and closed the evidence on 27.05.2019.

6.             We have appraised the evidence on record, the material circumstances of the case and the arguments advanced by the learned counsel for the parties.

7.             The case of the complainant, in brief, is that the Toyota Innova car of the complainant is insured with OPs no.1 and 2. On 17.03.2018 complainant has sent his vehicle for service to workshop of OP no.3. There was a fire in the said workshop in the early morning on 18.03.2018, in which about 30 vehicles, including complainant’s vehicle were burnt completely. OPs no.1 and 2 were duly intimated about the said incident. The surveyor was also appointed by the OPs and he has also assessed the loss as total loss of the said vehicle. The other companies have already settled the claim of the respective vehicles of their owners. However, the OPs have failed to settle the claim of the complainant till date. As per regulations of the Insurance Regulatory and Development Authority (IRDA) the OPs are bound to settle the claim within the period of 30 days of receipt of the survey report. The act so the OPs amount to deficiency in service and unfair trade practice.

8.             On the other hand, the case of the OPs no.1 and 2 is that on getting intimation of loss of complainant’s car, investigator was deputed for investigation the matter-company also appointed independent surveyor for survey the vehicle and assessment of loss. Both of them submitted their respective detailed reports. After receiving report, it was found that claim was not maintainable due to the reasons:

a) On perusal of the documents and investigations of the matter, it is observed that complainant’s vehicle was lying in Bhatia Motors Karnal where fire caught in workshop due to electric short circuit in which complainant’s vehicle was also burnt.

b) The motor insurance policy excludes the losses under contractual liability which is the General Exceptions no.2 of Motor Insurance Policy. The company shall not be liable under this policy in respect of “any claim arising out of any contractual liability.”

The loss sustained in not payable due to gross violation of the policy terms and conditions and same was repudiated on 25.01.2019.

9.             The case of the OP no.3 is that cause of fire at his workshop was electrical short circuit and not due to any negligence and mischief of any other party. There is no relationship of a consumer between the complainant and OP no.3 as no consideration has been paid by the complainant to the OP no.3 for services rendered by him.

10.            Admittedly, the vehicle in question was burnt during the subsistence of the insurance policy. It is also admitted in the said incident more than 30 vehicles were completely burnt. It is also admitted other insurance company i.e. Tata AIG & IFFCO TOKIO have settled the claim of the respective vehicles of their owners. On receipt intimation regarding incident, OPs no.1 and 2 appointed one investigator and one surveyor for survey of vehicle and assessment of loss.

11.            The claim of the complainant was repudiated by OPs no.1 and 2 on the grounds that vehicle in question was lying in Bhatia Motors Karnal i.e. OP no.3, where fire caught in workshop due to electric short circuit and the company shall not be liable under this policy in respect of the claim arising out of any contractual liability. The term of contractual liability means liability that one party assumes on behalf of another by way of a contract, there is no contract between the complainant and OP no.3. The onus was upon the OPs no.1 and 2 to prove the contractual liability but they failed to do so. Thus, the case of the complainant does not fall under the contractual liability.

12.            The counsel of the OP no.3 relied upon the Ex.R3 (insurance policy) under which the OP no.3 was insured. But in this policy, all types of vehicles’ spares parts insured and vehicles were lying in the premises not insured. So, OP no.3 cannot be held liable for the loss of vehicle of complainant.

13.            OPs no.1 and 2 had intimated regarding the incident, by the complainant through letters dated 26.03.2018 and other required documents were duly handed over to the surveyor concerned. As per the regulations of the Insurance Regulatory and Development Authority i.e. IRDA, the OPs were bound to settle the claim of the complainant within the period of 30 days of the receipt of the survey report. Motor survey report Ex.R2 submitted on 21.09.2018. But the claim of the complainant was repudiated on 25.01.2019, after delay of more than four months. Thus, complainant is entitled for the interest on the claim amount from 20.10.2018 i.e. on expired of 30 days of receipt of surveyor report. As per Ex.C5 and Ex.C6 the claim of the other owner of the vehicles has already been settled by the other insurance companies. So, OPs no.1 and 2 are also liable to settle the claim of the complainant as per instructions of the IRDA. Thus, we are of the firm view that the acts of the OPs no.1 and 2 amount to deficiency in service and unfair trade practice.

14.            Thus, as a sequel to abovesaid discussion, we allow the present complaint and direct the OPs no.1 and 2 to pay the insured amount of the vehicle in question to the complainant with interest @ 9% per annum from 20.10.2018 till its realization. We further direct the OPs no.1 and 2 to pay Rs.20,000/- to the complainant as compensation for harassment, mental agony as suffered by him and to pay Rs.5500/- towards litigation expenses. The complainant is also directed to get transfer the vehicle in question in the name of OPs no.1 and 2 and also deposit the salvage of the vehicle with them. This order shall be complied within 30 days from the receipt of copy of this order. The parties concerned be communicated of the order accordingly and the file be consigned to the record room after due compliance.

Announced

Dated:18.06.2019

                                                                       

                                                                  President,

                                                           District Consumer Disputes

                                                           Redressal Forum, Karnal.

               

                (Vineet Kaushik)

                    Member