Haryana

Karnal

CC/124/2020

Smt. Santosh Rani - Complainant(s)

Versus

The New India Assurance Company Limited - Opp.Party(s)

S.S. Moonak

16 Oct 2023

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, KARNAL.

                                                        Complaint No.124 of 2020

                                                        Date of instt.27.02.2020

                                                        Date of Decision:16.10.2023

 

Smt. Santosh Rani, aged 62 years, wife of Shri Ramjuari, resident of house no.1937, Sector-4, Part-2, Urban Estate, Karnal. Aadhar no.8475 2304 0295).

                                                 …….Complainant.

                                              Versus

 

 

The New India Assurance Company Limited, through its Divisional Manager, Divisional Office, G.T. Road, Karnal.

 

                                                                        …..Opposite Party.

 

Complaint Under Section 35 of Consumer Protection Act, 2019.

 

Before   Sh. Jaswant Singh……President.       

      Sh. Vineet Kaushik…….Member

      Dr. Rekha Chaudhary…..Member

 

Argued by:  Shri S.S. Moonak, counsel for the complainant.

                    Shri Manjul Mishra, counsel for the OP.

 

                    (Jaswant Singh, President)

ORDER:   

                

                The complainant has filed the present complaint Under Section 35 of Consumer Protection Act, 2019 against the opposite party (hereinafter referred to as ‘OP’) on the averments that complainant is the registered owner of car bearing no.HR-05/AU-7950, the same was insured with the OP, vide policy no.98000031160305090712, valid from 15.03.2017 to 14.03.2018. The policy was comprehensive/package. The insured declared value of the car was Rs.5,27,740/-. On 10.09.2017, the aforesaid car met with an accident within the area of Buradi Bye-Pass Delhi and it was damaged extensively. At the time of accident, the son of complainant namely Pawan Kumar was driving the same, the car brought to Karnal with the help of crane and stationed in Karnal Motors, G.T. Road, Karnal for its necessary repairs, change of parts etc. The complainant informed the OP regarding the said accident and damaged of the car. The surveyor was appointed and necessary survey was conduced by the surveyor. The car was repaired from M/s Karnal Motors and also from other workshop. OP did not pay any amount to the workshop owners, as such the complainant was forced to pay under the compelled circumstances the repair bill to the tune of Rs.50,000/- to the owner of the workshop and other incidental expenses of the car in question from her own pocket, beside this the complainant had spent a sum of Rs.25,000/- on the incidental expenses. The complainant submitted all the relevant documents i.e. claim form etc. to the office of the OP for settlement of the claim of the car in question but OP did not give any positive response. Then complainant sent a legal notice dated 13.04.2019 to the OP, a vague reply was given by the OP to the said notice but the claim was neither settled nor repudiated. Thereafter, OP sent a letter dated 10.05.2019 to the complainant, in response to the said letter, complainant submitted the relevant documents but despite of that OP did not settle the claim and further treated the claim of the car unilaterally as No Claim. Aggrieved by this, complainant also submitted an application under RTI Act submitted the require fee for the supply of relevant information and documents dated 23.07.2019 through registered post, however instead of supply of relevant information documents, a vague reply was given by the OP by concealing true and material facts and did not supply the requisite information. In this way there is deficiency in service and unfair trade practice on the part of the OP. Hence this complaint.

2.             On notice, OP appeared and filed its written version raising preliminary objections with regard to maintainability; cause of action; locus standi and concealment of true and material facts. On merits, it is pleaded that complainant has rightly repudiated the claim of the complainant on dated 10.05.2019 as the intimation regarding accident was given on dated 12.09.2017 and claim form has been submitted on dated 11.09.2017 by Santosh Rani in which she mentioned that the accident took place Buraru Bye Pass New Delhi and as per her statement dated 19.09.2017 she has stated that my son Pawan Kumar used to drive the vehicle in question and on dated 10.09.2017 he was going to Delhi and the accident took place. Pawan Kumar stated that on 10.07.2017 he was coming from Delhi to Karnal and his vehicle met with an accident at Burari Bye pass. Again in his statement dated 22.09.2017 he has stated that on 10.09.2017 he went to Chandigarh in his car which is totally contradictory and the company has rightly repudiated the claim of the complainant. After investigation, it comes into light that no accident took place at Burari Bye-Pass and the same accident is occurred at Sector-44, Chandigarh and Pawan Kumar son of the complainant used his vehicle as Taxi which is the utter violation of terms and conditions of the policy and the OP is not liable to pay any compensation to the complainant as the complainant concealed the true facts of the accident and no FIR has been lodged by the complainant. There is no deficiency in service and unfair trade practice on the part of the OP. The other allegations made in the complaint have been denied and prayed for dismissal of the complaint.

3.             Parties then led their respective evidence.

4.             Learned counsel for the complainant has tendered into evidence affidavit of complainant Ex.CW1/A, copy of RC Ex.C1, copy of insurance policy Ex.C2, copy of insurance receipt Ex.C3, copy of application under RTI Ex.C4, copy of postal order Ex.C5, copy of postal receipt Ex.C6, copy of No Claim letter Ex.C7, copy of legal notice Ex.C8, copy of postal receipt Ex.C9 and closed the evidence on 14.01.2022 by suffering separate statement.

5.             Learned counsel for the OP has tendered into evidence affidavit of K.K. Sachdeva, Senior Divisional Manager Ex.OP1, copy of repudiation letter Ex.O2, cop of claim intimation letter dated 12.09.2017 Ex.O3, copy of investigation report Ex.O4, cop of statement of Santosh Rani Ex.O5, copy of statement of Pawan Kumar Ex.O6, copy of statement of Pawan Kumar O7, copy of statement of motor survey report Ex.O8 and closed the evidence on 05.08.2022 by suffering separate statement.

6.             We have heard the learned counsel for the parties and have gone through the record available on the file carefully.

7.             Learned counsel for the complainant, while reiterating the contents of complaint, has vehemently argued that complainant got his vehicle insured with the OP. On 10.09.2017, the said vehicle  met with an accident within the area of Buradi Bye-Pass Delhi and  was damaged extensively. The car was brought to Karnal with the help of crane in Karnal Motors, G.T. Road, Karnal for its necessary repairs. The complainant informed the OP regarding the said accident and damaged of the car. Complainant spent Rs.50,000/- on the repair of the vehicle beside this he had also spent a sum of Rs.25,000/- on the incidental expenses. The complainant submitted all the relevant documents with the OP for settlement of the claim but OP did not settle the claim after repeated visits and requests and further treated the claim of the complainant as No Claim and lastly prayed for allowing the complaint. Learned counsel for the complainant relied upon the case law titled as Amalendu Sahoo Vs. OIC II (2010) CPJ (SC) and Bharti Axa General Insurance Company Ltd. Vs. Naseem AkhtarII (2020) CPJ 68 (UT Chandigarh).

8.             Per contra, learned counsel for the OP, while reiterating the contents of written version, has vehemently argued that  Santosh Rani in her statement stated that his son Pawan Kumar used to drive the vehicle in question on 10.09.2017 and the accident took place Burari Bye Pass New Delhi. Pawan Kumar in his statement stated that on 10.09.2017 he was coming from Delhi to Karnal and his vehicle met with an accident at Burari Bye pass and in his statement dated 22.09.2017 he has stated that on 10.09.2017 he went to Chandigarh in his car which is totally contradictory and the company has rightly repudiated the claim of the complainant, vide letter dated 10.05.2019.  After investigation, it is observed that no accident took place at Burari Bye-Pass and the same accident is occurred at Sector-44, Chandigarh and Pawan Kumar son of the complainant used his vehicle as Taxi which is the utter violation of terms and conditions of the policy. Complainant concealed the true facts of the accident and no FIR has been lodged by the complainant and lastly prayed for dismissal of the complaint.

9.             We have duly considered the rival contentions of the parties.

10.           Admittedly, complainant got insured his vehicle with the OP. It is also admitted that the said vehicle met with an accident during the subsistence of the insurance policy.

11.           The claim of the complainant has been repudiated by the OP, vide letter Ex.O2 dated 10.05.2019 on the grounds which are reproduced as under:-     

“On getting intimation of loss, one investigator was deputed for the investigation o the matter. After receiving investigation report, it is found that there has been a deliberate and willful misrepresentation and concealment of original facts on your part in the following manner:

1. That manner, place and reason of accident mention by you in motor claim form and statement regarding accident is different from the actual manner, place and reason of accident. As per your version by your statement and motor claim form, your car was collided on dated 10.07.2017 at Burari bye pass with a ahead going vehicle suddenly applied break and your vehicle hit the rear of ahead going vehicle and got damaged.
2. During investigation on 22.09.2017, Mr. Pawan Kumar has confirmed in writing that the vehicle met with an accident at Chandigarh, Sector-44.
3. As per your statement dated 19.09.2017, you have also confirmed that your vehicle met with an accident on 10.09.2017 at Delhi.
4. Moreover, Mr. Pawan has also confirmed in writing that some time he was using the vehicle as Taxi.
5. As per information supplied by your and your son Mr. Pawan Kumar in motor claim form and written statements submitted by you regarding this accident in which place of accident is altogether different.
6. That while the investigators called through their mobile to Mr. Pawan Kumar. The contact detail also appears as Pawan Taxi.
7. During investigation also our have been informed by the investigator that your claim is not maintainable due to misrepresentation and non disclosure of material fact as per policy terms and conditions.

There is deliberate and willful misrepresentation and concealment of original facts on your part regarding the place of accident, manner and reason of accident, which constitutes serious breach of terms and conditions of the policy.

Hence, we regret our inability to consider your claim on the ground of misrepresentation and concealment of original facts.

Further, you are requested to give representation in this regard, if any, within 7 days of receipt of this letter. Failing which we shall close the file as No Claim.

 

 12.          The claim of the complainant has been repudiated by the OP on the abovesaid ground. OP has alleged that Pawan Kumar used the vehicle in question as Taxi. The onus to prove its version was relied upon the OP but OP has miserably failed to prove the same by leading any cogent and convincing evidence to prove that Pawan Kumar used the car in question as Taxi. Hence plea taken by the OP has no force.

 13.          The OP has alleged that there is misrepresentation and concealment of facts regarding the place of accident, manner and reason of accident, which constitutes serious breach of terms and conditions of the policy. The complainant in her statement Ex.O5 dated 19.09.2017 stated that his son Pawan Kumar used to drive the vehicle in question and on 10.09.2017 the accident took place Burari Bye Pass New Delhi. Pawan Kumar in his statement Ex.O6 dated 19.09.2017 stated that on 10.09.2017 he was coming from Delhi to Karnal and his vehicle met with an accident at Burari Bye pass, New Delhi.  OP relied upon the supplementary statement of Pawan Kumar Ex.O7 dated 22.09.2017. In the said statement the place of accident is mentioned as Chandigarh. When Pawan Kumar had already got recorded his statement Ex.O6 dated 19.09.2017 and there was no need to record the supplementary statement. Moreover, the said statement has been denied by Pawan Kumar. It is not a case of the OP that no accident has taken place. Hence, plea taken by the OP has no force.

14. Further,Hon’ble Punjab and Haryana High Court in case titled as New India Assurance Company Ltd. Versus Smt. Usha Yadav & others 2008 (3) RCR (Civil) 111, has held as under:-

“It seems that the Insurance Companies are only interested in earning the premiums which are rather too stiff now a days, but are not keen and are found to be evasive to discharge their liability. In large number of cases, the Insurance companies make the effected people to fight for getting their genuine claims. The Insurance Companies in such cases rely upon clauses of the agreements, which a person is generally made to sign on dotted lines at the time of obtaining policy. This is, thus pressed into service to either repudiate the claim or to reject the same. The Insurance Companies normally build their case on such clauses of the policy, but would adopt methods which would not be governed by the strict conditions contained in the policy”.

                Keeping in view, the ratio of the law laid down in aforesaid judgments, facts and circumstances of the present complaint, we are of the considered view that act of the OP while repudiating the claim of the complainant amounts to deficiency, which is otherwise proved as genuine one. 

 15.          The complainant alleged that he has spent Rs.50,000/- on repair of his vehicle but in this regard he has placed on record  only receipt of Rs.43,274/- issued by the Karnal Motors Private Limited.  As per surveyor report Ex.O8 dated 26.09.2017, the loss has been assessed by the surveyor of the OP as Rs.41,140/-. Hence, the report of the surveyor will prevail. In this regard we are relying upon the authority 2(2008) CPJ paged 182 (NC), United India Insurance Co. Vs. Maya, wherein it has been held that a surveyor report should not be dismissed summarily as the surveyor is independent and qualified person under the relevant provision of Insurance Act, 1938. In view of this authority as well as the facts and circumstances of the case, we are of the considered view that the OP is liable to pay the loss assessed by the surveyor alongwith interest, compensation for mental agony and harassment and litigation expenses.

16.            In view of the above discussion, we partly allow the present complaint and direct the OP to pay Rs.41,140/- (Rs. forty one thousand one hundred forty only) the loss assessed by the surveyor of the OP alongwith interest @ 9% per annum from the date of repudiation of the claim i10.05.2019 till its realization to the complainant. We further direct the OP to pay Rs.10,000/- to the complainant on account of mental agony and harassment suffered by her and Rs.5500/- for the litigation expense. This order shall be complied within 45 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:16.10.2023                     

                                                                  President,

                                                     District Consumer Disputes

                                                     Redressal Commission, Karnal.

 

(Vineet Kaushik)        (Dr. Rekha Chaudhary)

                          Member                        Member