DISTRICT CONSUMER DISPUTES REDRESSAL FORUM,

BATHINDA

C.C. No. 54 of 20-02-2018

Decided on : 05-03-2019

Boota Singh S/o Sh Nazar Singh R/o Village Sheikhpura, Tehsil Talwandi Sabo, District Bathinda.

…...Complainant

Versus

United India Insurance Co. Ltd., The Mall, Bathinda, through ts Divisional Manager

.......Opposite party

Complaint under Section 12 of the Consumer Protection Act, 1986.

Quorum :

Sh. M.P.Singh Pahwa, President

Smt. Manisha Member

Present :

For the complainant : Sh. Onkar Nath Goyal, Advocate.

For opposite party : Sh. Manohar Lal Bansal, Advocate.

O R D E R

M. P. Singh Pahwa, President

1. Boota Singh, Complainant (here-in-after referred to as 'complainant') has filed this complaint under Section 12 of the Consumer Protection Act, 1986 (here-in-after referred to as 'Act') against United India Insurance Co. Ltd., (here-in-after referred to as 'opposite party').

2. Briefly stated, the case of the complainant is that he is registered owner of car bearing registration No. DL-3CBL-4847. The said car was comprehensively insured with opposite party for Rs. 1,80,000/- w.e.f. 2-6-2017 to 1.6.2018 vide Cover Policy No. 2004063117P103406380. IDV is to be treated as market value throughout the policy period without any further depreciation for the purpose of total loss and constructive total loss claims.

3. It is pleaded that the Car No. DL-3CBL-4847 was being driven by his son Amarpreet Singh. On 24-7-2017 at about 10.45 p.m. due to coming of stray animal and struck with tree, accident took place. Amarpeet Singh immediately lodged DDR No. 28 dated 24-7-2017 in P.P. Behniwal. The complainant immediately informed the opposite party i.e. on 25-7-2017 in the morning through Navdeep Kumar, agent of the opposite party.

4. It is alleged that opposite party knowingly, willfully not got the vehicle spot surveyed. It was responsibility of the opposite party to conduct spot survey. Navdeep Kumar agent of the opposite party instructed the complainant to take the vehicle at Bathinda for its necessary repair and preparing estimate. As such, complainant parked the car with M.R. Motors, Mansa Road, Bathinda. The mechanic of M.R. Motors after thorough checking the accidental car, revealed that it is a total loss. Thereafter the opposite party deputed Er. Atul Gupta, Surveyor & Loss Assessor to conduct survey of the damaged car. He got survey of the car conducted but surveyer did not supply copy of survey report. He has wrongly mentioned in his letter dated 25-11-2017 that Amarpreet Singh driver and complainant are not cooperating with him. He submitted false survey report. The complainant and his son were always ready and willing to cooperate the surveyor in all respects. The complainant spent Rs.3000/- for shifting the damaged vehicle from Behniwal to Bathinda.

5. It is alleged that final surveyor gave assurance that the vehicle is total loss and the full claim as per IDV i.e. Rs.1,80,000/- will be paid along with shifting Charges. The final surveyor Er. Atul Gupta took all the necessary documents i.e. photo copy of registration certificate, driving license, Insurance policy and DDR etc., from the complainant. He also obtained signatures of the complainant on blank consent form, vouchers and blank papers with the understanding that opposite party will pay total loss claim as per IDV along with shifting charges of Rs.3000/-.

6. It is alleged that more than 6 months have elapsed but there is no response from the opposite party. The opposite party illegally and arbitrarily rejected the genuine claim of the complainant vide letter dated 02-02-2018 on the ground that on verification it has been found that the record is not available with District Transport Office, Faridkot and the complainant has not informed the opposite party for conducting spot survey.

7. The complainant has pleaded that this letter dated 02-02-2017 is totally illegal, null, void and nonest. The surveyor is under the thumb of opposite party. He cannot afford to disoblige their master from where he is to obtain business. The surveyor and the opposite party are bound to supply duplicate copies of the survey reports to the insured.

8. It is also pleaded that due to non-payment of claim, the complainant is suffering heavy damages on account of interest loss and suffering mental agony and pains. For all these sufferings, he has claimed compensation to the tune of Rs. 20,000/- and interest @ 18% P.A. He has also claimed Rs. 10,000/- on account of litigation charges in addition to Rs. 1,80,000/- IDV and Rs. 3,000/- spent for shifting charges. Hence, this complaint.

9. Upon receipt of notice, the opposite party appeared through counsel and contested the complaint by filing written reply. In written reply, the opposite party raised legal objections that the complaint has been filed to injure the goodwill and reputation of the opposite party. Even otherwise, the complaint is false, frivolous and vexatious to the knowledge of the complainant. As such, the opposite party is entitled to special costs u/s 26 of the Act to the tune of Rs.10,000/-. That intricate questions of law & facts are involved which requires voluminous documents and evidence. It is not possible in the summary procedure. The appropriate remedy, if any, lies only in the Civil Court. That the complainant has concealed material facts and documents from this Forum. He is not entitled to any relief.

10. As per opposite party, the true facts are that on receipt of intimation regarding alleged accident, which allegedly took place on 24-7-2017 and reported to opposite party on 4-8-2017, the opposite party deputed Er. Atul Gupta. He submitted his preliminary report and assessed the loss on different counts, subject to final approval from the competent authority. While processing the claim, it revealed that the insured has violated the terms & conditions of the policy as the complainant has not got conducted spot survey nor intimated the opposite party immediately about the alleged accident and loss. Since the insured has failed to give notice as per terms and conditions, within a reasonable period, in the absence of spot survey, it creates suspicion about the genuineness of accident and loss i.e. about the cause of accident, date and time of accident. Moreover, in the absence of concerned record with DTO, Faridkot, it could not be ascertained that actually insured was owner of the insured vehicle or not and/or that he has not transferred the vehicle to any person. His claim has already been repudiated by the competent authority. Intimation in this regard has already been given to the complainant vide registered letter dated 2-2-2018.

    It is asserted that the claim has been rightly repudiated as per terms and conditions of the policy and after thorough investigations.

11. The further legal objections are that the complainant has no locus standi or cause of action to file the complaint. That the complaint is not maintainable in its present form. That the complainant is estopped hy his own act, conduct and acquiescence from filing the complaint and lastly that there is no deficiency in service or unfair trade practice on the part of opposite party.

12. On merits, issuance of Insurance cover note is not disputed but it is further stated to be subject to terms and conditions of the policy and the claim, if any, is payable as per terms and conditions of the policy. All other averments of the complainant are denied. The opposite party reiterated its stand as taken in legal objections and detailed above. In the end, the opposite party prayed for dismissal of complaint.

13. Parties were afforded opportunity to produce evidence. In support of his claim, complainant has tendered into evidence photocopy of Insurance Policy (Ex. C-1), photocopy of DDR dated 24-7-2017 (Ex. C-2), photocopy of R.C. (Ex. C-3), photocopy of D.L. (Ex. C-4), photocopy of letters (Ex. C-5 & Ex. C-6), photocopy of empty envelop (Ex. C-7), photocopy of Estimate (Ex. C-8), photocopy of retail invoice (Ex. C-9), affidavit dated 16-4-2018 of complainant (Ex. C-10) and verification of RC (Ex. C-11).

14. In order to rebut this evidence, opposite party has tendered into evidence affidavit of Baldev Singh (Ex. OP-1/1), photocopy of postal receipt (Ex. OP-1/2), photocopy of letter (Ex. OP-1/3), photocopy of postal receipts (Ex. OP-1/4 & Ex. OP-1/5), photocopy of letter (Ex. OP-1/6), photocopy of survey report (Ex. OP-1/7), photocopy of DDR (Ex. OP-1/8), photocopy of affidavit of Boota Singh (Ex. OP-1/9), photocopy of claim form (Ex.OP-1/10), photocopy of letter (Ex.OP-1/11), photocopy of RC (Ex. OP-1/12), photocopy of verification of RC (Ex. OP-1/13), photocopy of RC (Ex. OP-1/14), photocopy of verification of RC, DL and DDR (Ex. OP-1/15), photocopy of RC (Ex. OP-1/16), photocopy of photographs (Ex. OP-1/17 to Ex. OP-1/27), photocopy of policy (Ex. OP-1/28), photocopy of claim intimation (Ex. OP-1/29) and closed the evidence.

15. We have heard learned counsel for the parties and gone through the record.

16. The learned counsel for the complainant submitted that material facts are not in dispute. It is not disputed that complainant got his car insured with the opposite party for IDV of Rs. 1,80,000/-. The covered period was 2-6-2017 to 1-6-2018. As per complainant, his vehicle met with an accident on 24-7-2017. This fact is also not disputed by the opposite party. The factum of accident was also reported to the police vide DDR dated 24-7-2017 (Ex. C-2). The complainant has also asserted that the opposite party was also intimated regarding accident and opposite party appointed surveyor. The opposite party has placed on record copy of survey report which shows that assessment on total loss basis was Rs. 1,79,000/- and net of salvage basis with RC Rs. 1,34,000/-. On net of salvage basis without R.C Rs. 1,49,000/- . The loss assessed on repair basis was Rs. 1,60,522/-. Admittedly, IDV of the vehicle is Rs. 1,80,000/-. Therefore, the assessment on repair basis is also more than 75% i.e. Rs. 1,35,000/-. In these circumstances, it was a case of constructive total loss and the complainant was entitled to reimbursement to the tune of Rs. 1,80,000/-. The opposite party has repudiated the claim vide letter dated 2-2-2018 copy of which is Ex. OP-1/3. This letter shows that claim was repudiated on the ground that RC record is not available with District Transport Office, Faridkot and the complainant has not intimated the Insurance Company for conducting survey. The complainant has placed on record copy of RC (Ex. C-3) to prove that he is the registered owner of the vehicle. The complainant has also got this fact verified from DTO, Faridkot vide letter (Ex. C-11). Therefore, it is proved by documentary evidence that complainant is registered owner of the vehicle. The opposite party has not produced any evidence to prove that complainant is not registered owner of the vehicle.

17. Of course, the opposite party has also pleaded that complainant was to intimate for spot survey, but the opposite party has also placed on record survey report (Ex. OP-1/5). The surveyor has mentioned cause of accident/occurrence as reported by complainant and has concluded that as per his inspection and observation, the damages were fresh, accidental and concurrent to the cause of loss stated. In this way, the surveyor has not raised any suspicion regarding genuineness of the accident. Therefore, repudiation of claim on both the counts is not sustainable and is liable to be set aside. The opposite party has illegally repudiated the claim of the complainant. As such, he is also entitled to compensation and cost of litigation.

18. On the other hand, the learned counsel for the opposite party has submitted that contract of insurance is like other contracts. The parties are bound by terms and conditions as mentioned in the policy. The complainant himself has placed on record copy of policy (Ex. C-1). The first condition of the policy is that notice is to be given in writing to the company immediately upon occurrence of any accidental loss or damage, in the event of any claim. As per complainant himself, accident took place on 24-7-2017. The Claim Form (Ex. OP-1/29) proves that the complainant lodged claim on 4-8-2017. There was delay of more than 10 days in reporting the matter to the opposite party. The opposite party lost the right of spot survey. The spot survey was necessary to determine the mode of accident, time and place of accident. The opposite party remained deprived of their valuable right of spot survey to assess the actual loss. The complainant has also not cooperated in the survey. Copies of letter Ex. OP-1/11 and Ex. OP-1/15 prove this fact. Therefore, the complaint is liable to be dismissed.

19. We have carefully gone through the record and have considered the rival contentions.

20. The admitted facts are that the complainant being owner of the vehicle has got it insured from opposite party vide policy Ex. C-1. The covered period was 2-6-2017 to 1-6-2018. As per complainant, the vehicle met with an accident on 24-7-2017. The claim lodged by the complainant has been repudiated by the opposite party vide letter dated 2-2-2018 (Ex. OP-1/3). A perusal of this letter reveals that the claim has been repudiated on the following grounds :-

    (i) On verification, it has been found that RC record not available with District Transport Office, Faridkot.

    (ii) Being a major loss, complainant has not informed Insurance Company for conducting of spot survey.

21. Now, it is to be seen whether repudiation of claim on the above mentioned grounds is justified.

22. The vehicle was got insured by the complainant being owner. The complainant has placed on record copy of registration certificate (Ex. C-3) which proves ownership of the complainant. The complainant has also placed on record copy of verification report dated 30-7-2018 (Ex. C-11) much after date of repudiation. This letter also proves that complainant was reported registered owner of the vehicle in question. This letter also belies the version of the opposite party that record of ownership is not available with DTO, Fridkot.

23. Now, coming to the next ground. Of course accident took place on 24-7-2017. The complainant has pleaded that the opposite party was intimated on the very next day i.e. 25-7-2017. The complainant has not produced any record to prove that intimation was given to the opposite party on the very next day. The opposite party produced on record copy of Claim Form (Ex. OP-1/29). It is dated 4-8-2017. The opposite party has also produced copy of survey report (Ex. OP-1/7). It also proves that surveyor was appointed on 4-8-2017.

24. Now, it is to be seen whether any prejudice has been caused to the opposite party by this delay in reporting the matter. As per opposite party itself, claim was lodged on 4-8-2017 and surveyor was appointed on 4-8-2017 but the surveyor has also conducted survey on 9-8-2017. The report of the surveyor rather goes to show that as per inspection and observations, the damages were fresh, accidental and concurrent to the cause of loss stated. This document rather proves that no prejudice has been caused to the opposite party even if there is some delay in reporting the matter to the opposite party. Therefore, repudiation of the claim on this ground is also not sustainable.

25. Now the point for consideration is regarding amount to which complainant can be held entitled. Admittedly, IDV of the vehicle/car is Rs. 1,80,000/-. It remains unchanged for the whole covered period.

    The surveyor has assessed the loss on repair basis to the tune of Rs. 1,60,522/-. 75% of the IDV is worked out to be Rs.1,35,000/-. Therefore, the assessed loss is more than 75% of the IDV. In such circumstances, it is to be treated as constructive total loss.

26. The surveyor has also assessed the loss on total loss basis to the tune of Rs. 1,79,000/- i.e. IDV Rs. 1,80,000/- less excess clause Rs. 1,000/-. Therefore, the complainant is held entitled to Rs. 1,79,000/- being a case of total loss.

27. The claim repudiated by the opposite party is not sustainable. As such, the complainant is also held entitled to interest as compensation @12% from the date of repudiation till payment.

28. In view of above discussion, this complaint is partly accepted with Rs. 5,000/- as cost of litigation. The opposite party is directed to pay the claim amount of Rs. 1,79,000/- to the complaint with interest @ 12% p.a. from the date of repudiation i.e. 2-2-2018 till realization, within 45 days thereafter.

29. The complainant will be liable to furnish letter of Subrogation and General Power of Attorney authorizing the opposite party to get the ownership of the vehicle in question transferred in their name and will handover the damaged vehicle in question/salvage to the opposite parties.

30. The complaint could not be decided within the statutory period due to heavy pendency of cases.

31. Copy of order be sent to the parties concerned free of cost. File be consigned to the record room.

    Announced :

    05-03-2019

    (M.P.Singh Pahwa )

    President

     

     

    (Manisha)

    Member