Before the District Consumer Dispute Redressal Commission [Central District] - VIII, 5th Floor Maharana Pratap ISBT Building, Kashmere Gate, Delhi
Complaint Case No. 10/dated 15.01.2019
Ved Prakash s/o Ramey Singh
Resident of House No. 6, Nand Nagri, Mandoli,
New Delhi-110093 …Complainant
Versus
Manager/Director
The Oriental Insurance Company Limited
16/20, WEA, First Floor, Near Shastri Park,
Padam Singh Road, Karol Bagh, New Delhi-110005
Manager/Director (Regd. Off)
Oriental House, P.B. No. 7037, A-25/25,
Asaf Ali Road, New Delhi-110002 ...Opposite Party
Date of filing: 15.01.2019
Coram: Date of Order: 02 01.2024
Shri Inder Jeet Singh, President
Ms. Shahina, Member -Female
ORDER
Inder Jeet Singh , President
1.1. (Introduction to case of parties) – The complainant has grievances of deficiency of services that he owns two wheeler Suzuki-swish bearing no. DL9S AW2912, model-2015, 125cc (hereinafter as the vehicle); it met with an accident in June 2018 and it was got repaired against invoice of Rs. 15,951/- but OP failed to reimburse the expenses of repairing and damages (on the ground that complainant does not have previous policy and that is why the claim was treated as ‘no claim’) despite the vehicle was insured from 05.10.2017 to 04.10.2018. That is why the complaint seeking reimbursement of claim of Rs. 15,951/- with interest at the rate of 12%pa, compensation of Rs. 50,000/-, legal expenses of Rs. 30,000/-, legal notice charges of Rs. 11,000/-, its total comes to Rs. 1,06,951/-.
1.2. The complaint is opposed by the OP, on various grounds amongst others, that policy no. 211200/31/2018/77307 for IDV of Rs. 42,256/- w.e.f. 05.10.2017 to 04.10.2018 (briefly ‘the insurance policy’ in respect of the vehicle), was obtained from Policybazar.com in the name of Sh. Meen Bahadur. The vehicle was got transferred by complainant in April 2018 in his name but policy was requested for transferred and got transferred on 08.06.2018 vis-à-vis there was delay in informing the incident. There is violation of policy conditions. The complaint is liable to be dismissed.
2.1. (Case of complainant) –What happened, the complainant is having insurance policy in respect of the vehicle effective from 05.10.2017 to 04.10.2018 but on 08.06.2018 (Friday), there was accident of the vehicle of the complainant, while saving a dog on road, the vehicle hit pole and there were serious damages. The vehicle was taken to OP’s authorized service centre M/s G.D. Motors Pvt. Ltd., who gave estimate of Rs. 24,850/- but at the time of delivery on 22.07.2018, the actual expenses paid were of Rs. 15,951/-. The complainant requested online to the OP, several times, but his claim was not settled nor any satisfactory response was given. There was also online/email request on 05.10.2018, it was denied by the OP on the reason stated as “as confirmed by policy bazaar that you don’t previous policy so we are closing the claim file as no claim”. The OP has not issued any repudiation letter of claim. Moreover, the complainant got changed insurance policy in his name (Ved Prakash) on 05.06.2018 from the name of previous policy holder (Sh. Meen Bahadur) but OP refused to acknowledge it.
2.2. Thence, the complainant sent legal notice dated 28.11.2018 but no result. The complainant felt harassment, deceived and kept in abeyance by OP. That is why the complaint.
2.3. The complaint is accompanied with copy of registration certificate of vehicle, insurance policy in the name of complainant, copy of insurance policy which was in the name of erstwhile owner/policy holder, estimate of Rs. 24,850/- for damaged vehicle, tax invoice of paid amount of Rs. 15,951/- along with job card detail, emails from 31.05.2018 to 12.09.2018, copy of claim form sent online, email dated 05.10.2018 (of OP while treating the claim file as no claim) and copy of legal notice dated 06.11.2018 with postal receipt and track report besides identity of complainant, e-fee receipt dated 20.03.2018 of transport department deposited for transfer of vehicle in the name of complainant.
3.1 (Case of OP)-This complaint is opposed by the OP vehemently, on the legal issue and on facts (already enumerated in para-1.2 above). The complaint is without cause of action, it has been filed without clean hands, it suffers from non-joinder of policybazar.com (who had issued the policy) and there is violation of terms and conditions of policy, the OP was not reported the accident and accidental loss immediately after the accident, which deprived the OP to appoint surveyor immediately to inspect the spot, besides the vehicle was removed from the spot before inspection by the appointed surveyor.
3.2. The insurance policy was in the name of Sh. Meen Bahadur, however, the RC of the vehicle was transferred in the name of complainant on 24.04.2018 but complainant applied only on 01.06.2018 onwards for transfer of his policy in his name. Later on, 08.06.2018 at about 16:53:54 hrs, the policy in question was transferred in the name of complainant after deposit of requisite specified transferred charges.
3.3. As per allegations in the complaint, there was accident on 08.06.2018/last Friday but the complainant informed belatedly on 11.06.2018 at about 05:32 pm to OP, the vehicle was also removed from the spot as it was taken to M/s G.D. Motors Delhi by the complainant, it deprived the OP to conduct spot survey of the vehicle. However, OP had deputed Sh. Sumit Srivastav, an independent and IRDA licence surveyor and loss assessor to ascertain the facts and do needful to access the damages/losses to the vehicle. The OP did its duty under all bona-fide.
Whereas, it was the duty of complainant to inform the OP immediately, the complainant is negligent and failed to comply the terms and conditions of the policy. The para-2 of the reply reproduces clause-1 of the terms and conditions of the policy, that the same has been violated by the complainant for want of immediate information of accident or loss or damage to the vehicle, but despite delayed information, the OP had deputed it surveyor. The surveyor has furnished his report vis-à-vis the act and conduct of complainant is sufficient to show that he measurably failed to act diligently.
3.4. The appointed surveyor has rendered his report. In Naresh Kumar Vs. Oriental Insurance Co. Ltd. 2014 CPJ 4 (NC), it was held that the surveyors are appointed by the insurance company and the reports are to be given due importance. The finding of surveyor is subject to terms and conditions of the policy and approval by Insurance Company. Since the complainant was not having previous policy; that is why the claim was closed as no claim. The complaint is filed without any cause of action and just to gain the sympathy of this Commission. It is liable to be dismissed.
3.5. The reply is accompanied with terms and conditions of insurance policy, to highlight clause-1 thereof (which are pages at 1 to 10 of the documents of paper book of OP), vehicle particulars to show the date of transfer is 24.04.2018 and surveyor report (which shows that loss was assessed for Rs. 9,020/- subject terms and conditions of policy & approval of Insured).
4. (Replication of complainant) – The complainant filed rejoinder to the reply of OP and it reiterates the contents of complaint by denying the allegations of reply to be vague and frivolous, the complaint does not suffer from non-joinder of party, otherwise the complaint is correct.
5.1. (Evidence)-Complainant Ved Prakash filed his affidavit of evidence, which is on the tune of complaint with documents.
5.2.OP led evidence of Ms. Mandakhini Balodhi, Senior Divisional Manager, in the form of her affidavit coupled with documents, which is replica of the reply.
6.1 (Final hearing)- The complainant and the OP have filed their written submissions, which is blend of pleadings and evidence, the facts in issue and relevant facts have already been referred in the case of parties, it does not require to reproduce them again.
6.2. The parties were given opportunity to make oral submissions, therefore, Sh. D. C. Seth, Advocate for complainant contended that it is apparent on the face of record that accident had happened, the vehicle was got repaired at the authorized service centre of OP and repairs charges were paid by the complainant, which is within the currency of insurance period and IDV. The complainant deserves the amount prayed, since the valid claim was declined by OP besides other relief.
6.3. On the other side Sh. Bhupesh Chandna, Advocate for OP reiterates that although surveyor has assessed the losses but it is subject to compliance of terms and conditions of policy, which was violated by the complainant for want of informing the OP immediately on transfer of vehicle in his name, even the policy was got transferred on 08.06.2018, when the incident is allegedly taken place as per complaint but the in the claim form incident mentioned is of 09.06.2018. Besides episode of hitting by the truck is mentioned in the claim form but incident of accident while saving life of a dog is mentioned in the complaint. The vehicle was required to be inspected at the spot to access all the circumstances of incident but complainant removed the vehicle and later-on information was furnished on 11.06.2018. The case of complaint is under suspicion and he is neither entitled for any claim nor admissible.
7.1 (Findings)-The contentions of both the sides are considered, keeping in view the pleadings and evidence of the parties, the written arguments, besides additional oral submissions, which have already been detailed in paragraph-6 above.
7.2. By taking into account stock of all the material on record, there are some undisputed facts but many rival plea of the parties as well as other circumstances inherent in documents or otherwise, besides inconsistent stand of complainant they need exploration, the same are culled out as follows:-
(i) There is no dispute in respect of erstwhile owner of the vehicle and policy holder as well as the complainant being subsequent registered owner of the vehicle and insurance policy was transferred in his name.
(ii) The accident had happened in June 2018, however, in the complaint, evidence r/w email dated 11.06.2018 and written arguments, the complainant maintains throughout that accident had happened on 08.06.2018 that too while saving the life of a dog on road but vehicle hit a pole. But in the claim form (Annexure-F of complainant’s paper book), which was filed online by the complainant, he mentions that date of accident is 09.06.2018 (under Headings 5 and 8) repeatedly narrates that when he was going home, a truck hit his vehicle from right back side and that truck run away. This is inconsistent stand of the complainant in his complaint and in the claim form. The claim form was furnished to the OP as per email dated 13.06.2018 (at page-22 of the paper book).
There is no scope of confusion of date, since in email dated 11.06.2018 the complainant mentions that it was last Friday and date of Friday is 08.06.2018, the complainant mentions both 08.06.2018 (day) as well as Friday (day) in para-7 of the complaint.
(iii) The OP has objection of non-joinder of policybazar.com. as another party to complaint, whereas it is not a necessary party because inter-se dispute is between the complainant as Insured and the OP as Insurer.
(iv) As per insurance policy condition no. 1, the complainant was required to inform the OP immediately of accident besides on the eve of transfer of vehicle in his name to get the appropriate endorsement in the insurance policy in his name.
Since the insurance policy has been transferred in his name on the request of complainant, the issue of delay stand waived off by the OP itself after acceptance of transfer charges and making/transferring policy in the name of complainant. So far, delayed information is concerned, it is a matter of record that complainant has not informed the police of said accident nor the OP was informed immediately after accident. As per email dated 31.05.2018 (Annexure-E page-17), the complainant requested the OP for transfer of policy in his name by forwarding copy of registration certificate and as per vehicle particulars (page-11 of paper book of OP) the vehicle was transferred in the name of complainant on 24.04.2018. As appearing, the complainant applied for transfer of insurance policy in his name after having registration certificate in his name to show ownership to the OP. Since the policy was transferred in his name, the terms and conditions are binding upon the complainant, as insurance policy already issued was in continuance after endorsement/change in the name of complainant. Simultaneously, as per email dated 11.06.2018 (at page no. 21 of the paper book), the complainant enquired about the procedure for lodging the claim in respect of accident happened to his vehicle. It clear infers that the complainant had not informed the insurance company immediately about the incident/accident but on 11.06.2018 by email (at page no. 21 of the paper book) written for seeking information to ascertain procedure for lodging the claim in respect of accident happened on last Friday. The surveyor appointed had carried the inspection by observing that date of accident is 09.06.2018 being next date from the endorsement of insurance policy on 08.06.2018 in the name of complainant. The surveyor has not discovered nor mentioned about any incident of 08.06.2018 vis-à-vis he also opined that rider was Sh. Sachin Kumar had sustained minor injury in that incident; it was without inspection of the spot, since vehicle was already removed. Simultaneously, the complainant has not informed the police or the OP immediately after incident, it is violation of clause no.1 of the insurance policy.
(v) The vehicle was got repaired from the OP’s authorized service centre M/s G.D. Motors Pvt. Ltd. and the surveyor has taken cognizance of estimates etc in his report and then damages were assessed as Rs. 9,020/- subject to final approval of insurer/OP and as per terms and conditions of policy.
(vi) However, when there is violation of terms and conditions of the policy, the claim cannot be rejected out-rightly, since guidelines have been laid down in National Insurance Co. Ltd. Vs. Sanjay Shivhare (RP No. 2393/2003 dod 13.09.2007), and one of the guidelines, among other, is that in the eventuality of breach of condition of the policy, the matter will be settled on non-standard basis. It is already held that the surveyor has furnished the report and it was found that vehicle had met with an accident during the validity of insurance policy. Thus, there exists cause of action for filing the complaint.
(vii) By considering aforementioned conclusion and proved circumstances, the complainant is entitled for reimbursement of repairs charges carried in respect of the insured vehicle damaged in accident. However, on the criteria of non-standard basis, the 75% of bill amount of Rs. 15,951/-, would Rs. 11,961/- but according to the surveyor’s report, after considering depreciation etc, the amount was assessed to Rs. 9,020/-. When the actual amount after depreciation comes to Rs. 9,020/-, then notional amount of Rs. 11,961/- (being 75% of bill of Rs. 15,951/-) cannot be allowed. Therefore, the claim of Rs. 9,020/- is admissible and the complainant is held entitled for amount of Rs.9,020/-, which is also within IDV.
7.3. The complainant has grievances that repudiation letter was not issued by OP nor after legal notice, however, the OP had treated the claim file as of “no claim” and it was not a repudiation of the claim. In view of the conclusion drawn in paragraph 7.2 above, this contention of complainant is also disposed off. Further, the consumer dispute is determined in this complaint, there is no scope for reconsidering/remanding of matter to Insurer just because of claim file was treated by it as ‘no-claim’ case.
7.4. The complainant claims interest at the rate of 12%pa, legal expenses of Rs. 30,000/- and legal notice charges of Rs. 11,000/-. Whereas, there is no agreed rate of interest but simultaneously the complainant has parted with the money while getting the vehicle repaired, therefore, interest at the rate of 4% pa from the date of complaint till realization of the amount of Rs. 9,020/- is determined in favour of complainant and against the OP.
The claim of fee for legal notice and other litigation cost ought to have been proportionate to the claim and to be reasonable, therefore, the same are determined as Rs. 5,000/- (consolidated) in favour of the complainant and against the OP.
7.5. Accordingly, the complaint is allowed in favour of complainant and against the OP while directing the OP to pay a sum of Rs. 9,020/- along with interest at the rate of 4%pa from the date of complaint till realization of amount besides cost/legal expenses of Rs. 5,000/-, payable within 45 days from the date of this order. In case the OP does not pay the amount within stipulated period, then there will be enhanced rate of interest of 7%pa (in place of 4%pa). The OP may also deposit the amount in the form of pay order/demand draft in the name of complainant in the Registry of this Commission; in that eventuality the complainant may be informed such deposit.
8. Announced on this 2nd day of January 2024 [पौष 12, साका 1945].
9. Copy of this Order be sent/provided forthwith to the parties free of cost as per rules, besides to upload on the website of this Commission.
[Inder Jeet Singh]
President
[Shahina]
Member (Female)
[ijs-3]
