State Consumer Disputes Redressal Commission
Mukul Aggarwal vs Bajaj Allianz General Insurance Co. Ltd on 22 December, 2014
IN THE STATE COMMISSION : DELHI (Constituted under Section 9 of the Consumer Protection Act, 1986) Date of Decision: 22.12.2014 Complaint Case No-72/2013 In the matter of: 1. Sh. Mukul Aggarwal S/o Sh. Dinesh Chandra R/o 10/812 Chattarpur Mini Farms Chattarpur Mandir Road New Delhi-110074 2. Dassault Systems India Pvt. Ltd. 12TH Floor, Building No. 10 C, DLF Cyber City, Phase-II Gurgaon-122002 Through its Director Finance & Administration .Complainants Versus 1. M/s Bajaj Allianz General Insurance Co. Ltd. 1, DLF Industrial Area, 2nd Floor, Moti Nagar, New Delhi-110015 2. M/s BMW India Pvt. Ltd. 7th Floor, Tower/B, Building No.8 DLF Cyber City Phase-II Gurgaon, Haryana-122002 3. M/s Bird Automotive Pvt. Ltd. Regd. Office: B-Block Connaught Place New Delhi-110001 Through its Managing Director/Director .Opposite Parties CORAM S.A.Siddiqui, Member (Judicial) S.C.Jain, Member 1. Whether reporters of local newspaper be allowed to see the judgment? 2. To be referred to the reporter or not? S.A.Siddiqui, Member (Judicial) JUDGEMENT
1) This is a complaint under section 12 r.w.
Section 17(1)(a)(ii)of the Consumer Protection Act 1986 (hereinafter called the Act) for the following reliefs:-
a. OP-1 & 2 be directed to indemnify the complainant for total loss of the car by replacing the vehicle with a new one of the same model or in the alternative, the OPs be directed to pay the replacement on road value of the equivalent model of car of Rs. 34,10,516/- and interest on the same from the date of accident to the date of payment.
b. Awarding compensation of Rs. 5 Lac to the complainant for metal torture, pain and agony etc. c. OPs be directed to pay to the complainant monthly EMIs being paid by the complainant to the Sundram Finance along with interest and associated finance costs for the car from the date of accident till the date of payment and to pay Rs. 15,000/- towards costs of litigation.
2) Factual matrix of the case are that complainant-1 Sh. Mukul Chandre Aggarwal, is the Director Finance and Administration with complainant-2 Dassault Systems India Pvt. Ltd. OP-1 M/s Bajaj Allianz General Insurance Co. Ltd. is a leading insurance company and OP-2 is manufacturer and seller of Luxury Cars. OP-3 is a car dealer having various showrooms in Delhi and NCR including the dealership of the BMW series cars addressed at 4, IDC M.G.Road, Opposite Sector 14, Gurgaon, Haryana.
3) Complainant decided to purchase a BMW Car for his personal use applied to his company for loan under its car lease scheme.
A loan of Rs. 26,92,229/- was sanctioned in the Month of May 2012. On 17.05.2012 complainant-1 purchased a BMW 3 Series Model Subtype-320D, Car mtg 2012, for an amount of Rs. 23,46,278/-. He also paid an amount of Rs. 03,45,991/- to OP-3 towards insurance charges, BMW secure, registration road tax, logistic and other taxes. Monthly EMI of the said car is being regularly deducted from the salary of the complainant-1 and being paid to Sundram Finance. The present price of the car is Rs. 34,10,516/- (annexure-4).
The complainant-1 also paid an amount of Rs. 83,989/- plus taxes to OP-3 to get his car insured from OP-1 as premium for two insurance policies viz, Bajaj Allianz General Insurance Co. Ltd. for private car and BMW secure for a sum assured of Rs. 29,46,278/- (annexure-5) for additional protection in case of total loss within one year of purchase of the vehicle, wherein the car would be replaced with a new one of the same type, inclusive of all cost of registration, tax and insurance.
4) Unfortunately, during the intervening night of 28/29.07.2012 between 12:30 am to 02:00 am the car met with an accident in front of DLF Square, which is situate between Shankar Chowk and IFFCO Chowk. Due to the accident the car was badly damaged to a total loss condition (annexure-8). After knowing of the accident, the staff of the complainant unsuccessfully tried to secure the assistance of BMW, but, no help could be given. The staff therefore called the BOSCH Car workshop, and the damaged car was towed to the workshop. On 29.07.2012 in the morning a call was again made to OP-3 informing him about the accident and seeking assistance to shift the car to its service centre (annexure-9). Since 29.07.2012 was a Sunday the staff of OP-3 suggested that it should be done on Monday morning. Accordingly, on 30.07.2012 damaged car was taken to OP-3, BMW Repair Centre i.e. Bird Automotive, Sector 14, Gurgaon. The driver Sh. Rakesh Singh went to the police station on 29.07.2012 to file a FIR and the Police was entered a DDR.
5) The complainant applied for insurance claim immediately on 30.07.2012 but he was told by the officials of OP-3 that inadvertently the Chassis number and engine number were incorrect by entered in the insurance papers provided by the OP-1.
The necessary corrections were made shortly by OP-1 (annexure-11) which through its letter (annexure-11) acknowledged the claim form dt. 30.07.2012. Also attached as (annexure-12) is the claim form dt. 09.08.2012 with corrected details. OP-3 informed the complainant on 09.08.2012 that the error has been corrected and the claim number was intimated (annexure-13). After necessary corrections by OP-1, the complainant immediately applied for the insurance claim by submitting two insurance claim forms including the BMW Secure claim on 09.08.2012 with the OP-1 through OP-3 for indemnification of the insured amount of Rs. 29,46,278/- and also by replacement of car in accordance with the BMW secure advanced insured cover. This has been admitted by the OP-1 through letter dt. 09.01.2013 (annexure-11). Thereafter complainant made enquiries and personal visits for settlement of the claim.
E-mails were also sent to expedite the process but no cogent reply was given by the OP-1. Therefore, complainant had no option but to approach State Commission with a complaint on 07.12.2012. Through order dt. 12.12.2012, the OP was directed to take a decision on claim of the complainant within a month of the receipt of the order, even after the service of the order of the State Commission on 13.12.2012 (copy of which is annexure-15) the OPs did not settle the claim, which amounts to deficiency of service on the part of the OPs, which also amounts to indulgence to unfair trade practice by the OPs. Later on OPs through letter dt. 09.01.2013 (annexure-11) repudiated the insurance claim which is most unfair and unjust, the complainant therefore pressed his complaint before Honble State Commission. Notices were issued to OPs who appeared and contested the complaint.
6) OP-1 in its written statement raised several preliminary objections. It was alleged that complainant-1 Sh. Mukul Aggarwal has no locus-standi to file complaint in as much as OP-1 has issued a private car package policy bearing No. OG-13-1102-1801-00002778 for the period from 17.05.2012 to 16.05.2013 in respect of BMW car in favour of M/s Dassault Systems India Pvt. Ltd. This being a private limited company is a separate legal entity, the present complaint being filed by a director of the insured company in his own name is not legally maintainable. The complaint was liable to be dismissed on this ground alone.
Another preliminary objection raised was that this complaint involves voluminous evidence in the form of survey report, investigation report, the daily accident report from NHA of India, GD entry, report of India forensic lab etc. It is necessary to prove the contents and veracity of these documents for proper adjudication of the matter. This is not possible in summary procedure before the SCDRC/Forum, hence the complaint may be returned for filing before competent judicial authority. Besides, it was alleged that alleged accident took place on 29.07.2012 at about 01:15 am and the police reached on the spot at 01:20 am. But the G.D.Entry was lodged after 14 hrs of the accident. Intimation to the insurance company was given after inordinate delay of 12 days, which is breach of fundamental condition of the insurance policy which requires the insured to intimate accident/loss to the insurer immediately.
It was further alleged that complainant has not come before the State Commission with clean hands, the whole story discussed in the complaint appears false and fabricated. As per daily accident report dt. 28.07.2012 NHA of India, the insured vehicle dashed with TATA Truck bearing registration No. RJ-18-GA-2107. This appears inconsonance with the investigation report and survey report. The story fabricated by the insured in collusion with the police authorities is different. From this contradiction it is evident why police took so many hours to write GD entry.
According to GD entry the insured vehicle was being driven by driver, there was no one with him inside the car at the time of accident. There was no mention of any injury to any person/driver in the car, whereas, there were stains of human blood inside the BMW car as confirmed by the India Forensic Lab report dt. 09.01.2013. Besides, the version of the complainant that the driver was sent in late hours of Saturday to pick up laptop and files of Sh. Mukul Aggarwal was highly improbable/unbelievable when the next day was Sunday i.e. holiday. Thus there were suppression of the material facts in the complaint. Moreover, two separate claim forms were filed. One singed by Sh. Deepak Yadav (dt. 30.07.2012 but received on 09.08.2012) and the other signed by Sh. Mukul Aggarwal dt. 09.08.2012. In both the claim forms, it was mentioned that only driver was present in the car at the time of accident. OP-1 on receipt of the claim immediately appointed Sh. Avnish Kumar, an IRDA licensed surveyor to ascertain the cause and assess the extent of loss. The surveyor filed his report to the company on 07.01.2013. The preliminary surveyor report was filed earlier on 17.08.2012. The insurance company also appointed India Forensic Lab to conduct forensic test of blood stains available in the damaged car, the full forensic investigation was conducted and samples of blood stains were collected from steering wheel, drivers seat & dash board. The report dt. 09.01.2013, opined to the presence of human blood only. It is further clear that insured has concealed facts regarding the bodily injuries suffered by the driver/occupants of the car at the time of accident. The alleged driver of the BMW car Sh. Rakesh Singh has stated that he suffered no injury and that he alone was present in the car at the time of accident. It raised a presumption that Sh. Rakesh Singh was not the actual driver at the time of accident. During the investigation, the driver/son of the owner of 3rd party vehicle gave a statement in writing that his vehicle was hit by BMW Car which was being driven at a high speed around 140-150 kms/hrs also that there were three young boys who were sitting in the car at the time of accident, who ran away after the accident.
7) During the survey, OP-1 as well as surveyor wrote various letters raising queries viz. letters dt. 23.08.2012, 03.09.2012, 09.10.2012 and 27.11.2012 in addition to various communications through e-mails. When insured failed to furnish satisfactory and logical explanation to the queries, the OP-1 repudiated the claim through its letter dt. 09.01.2013. No deficiency of service on the part of the OP-1 can therefore be attributed in view of particular facts and circumstances of the case. There was no deficiency of any kind on the part of the OP-1. The claim was rightly repudiated and the complaint was liable to be dismissed. Repudiation letter dt. 09.01.2013 was speaking and elaborate order. And the same was sent to the insured/complainant. Otherwise also he has no cause of action to file the instant complaint, which is liable to be dismissed.
8) OP-2 in its written statement raised several preliminary objections. It was stated that complainant was not a consumer within the purview of the Act. He was neither purchaser of the car nor the same was registered in his name with the RTO. In fact, the car was purchased by the Sundram Finance Ltd. who let out the same to Dassault System India Pvt. Ltd. by Supplemental Lease Agreement dt. 18.05.2012 which is annexure-1. The agreement was entered into between Sundram Finance Pvt. Ltd. and Dassault System Pvt. Ltd.
Vehicle Debit Note and Tax Invoice issued by OP-3 are in the name of the company. The car is registered in the name of Dassault System India Pvt. Ltd. by RTO. Thus, Sh. Mukul Aggarwal has no locus-standi to file the complaint which is liable to be dismissed.
9) It was further stated that this Commission does not have territorial jurisdiction to entertain the present complaint as no part of the cause of action has arisen within its territorial jurisdiction. The car was booked and purchased in Gurgaon from OP-3 at its showroom at Ambience Mall, Showroom No. 1, Ambience Island NH8, Gurgaon. The price was paid and delivery of the car was taken at Gurgaon, it was registered with RTO, Gurgaon, Haryana with registration no. HR-26-BS-8015, the accident of the car also occurred at Gurgaon, FIR was lodged with Police Station at Gurgaon, insurance policy was also taken at Gurgaon and insurance claim was also lodged at Gurgaon. Thus no part of the cause of action has arisen within the territorial jurisdiction of this Commission and the complaint is incompetent and liable to be dismissed.
10) It was further alleged that OP-3 whose registered office is located at Delhi has been arrayed in the present complaint only with a motive to attract jurisdiction of this Commission. The Delhi address of OP-1 in the present complaint was also mentioned to attract jurisdiction of this Commission. OP-2 has not have any branch or other office within the territorial jurisdiction of this commission.
11) The complainant has also not approached this Commission with clean hands as he has concealed material facts regarding the incident. No cause of action has arisen against OP-2. The complainant has alleged that since OP-2 issued BMW Secure and charged a premium of Rs. 24,719/-, it is liable to give a new car.
It is noteworthy that the benefits under the BMW secure for a new car is conditional upon confirmation of the total loss of the vehicle by a surveyors report and reimbursement of 75% of the IDV of the vehicle by insurance companies under the insurance policy.
Since this has not been done in the present case, OP-2 is not liable at all to give a new car to the complainant.
BMW secure is a value added product developed by the BMW India exclusively for its customers in order to provide additional benefits over and above what is available to them under Motor insurance policy in the event of the accident. BMW customer has an option to buy its product along with motor insurance policy to avail additional benefits such as in the event of total loss of the car, get a new car. To avail the benefit of the BMW secure, it is necessary that there must be a valid motor insurance policy, running concurrently with the term of this product and that the claim raised by the insured must have been admitted and settled by the insurance company.
12) It was denied that staff of the complainant tried to seek assistance from the OP-2 at the time of accident and that no help was given. OP-2 was not at all contacted by the staff of the complainant and no communication was made with OP-2. Call details filed by the complainant as annexure-9 along with the present complaint do not show any record of call(s) made to the OP-2 at the time of accident. It was further denied that OP-2 was jointly or severally liable to indemnify the complainant. There was no any deficiency of service on the part of the OP-2 nor any unfair trade practice was adopted. The responsibility of the OP-2 under BMW secure arises only when there is a surveyors report to confirm the total loss of the vehicle and the insurance company reimbursing 75% of the IDV of the insured vehicle under the motor insurance policy. Since this has not been done, OP-2 is not liable at all to give a new car to the complainant under the terms of BMW secure. Therefore the complaint was liable to be dismissed qua OP-2.
13) OP-3 also filed its reply, it was alleged that no relief has been claimed against OP-3, the complaint was bad for misjoinder of the parties and was liable to be dismissed in terms of Order 1 Rule 10 CPC.
14) Moreover, Sh. Mukul Aggarwal has no locus standi to file present complaint.
However, it was admitted that OP-2 is a manufacturer and seller of BMW Luxury Cars having its office at 7th Floor, Tower-B, Building No.8, DLF Cyber City, Phase II, Gurgaon, Haryana.
OP-3 is a dealer for sale of BMW Series Cars at addressed given in the complaint.
15) Further it was denied that there was not any telephonic call subsequent to the alleged accident on 29.07.2012, however, it was admitted that the car was brought to the service centre of the OP-3 at Gurgaon on 30.07.2012. Rest of the allegations were denied. The privity of the contract was between insured and insurance company i.e. OP-1. But it was admitted that OP-3 had pointed out mistake in engine number & chassis number, made by the insurance company OP-3 and got it corrected. It was also admitted that vehicle was brought to the workshop of the OP-3 on 30.07.2012 and this matter was immediately brought to the notice of the insurance company. The impleadment of OP-3 in this complaint was wholly misconceived as there was no any deficiency of service on the part of the OP-3.
16) Complainant filed three separate rejoinders against the written statements filed by the OPs, wherein all the allegations and contentions made in the complaint were reiterated. Parties led evidence through affidavits with documentary evidence annexed.
17) Before evaluation/appreciation of evidence on record it would be appropriate to look at the contents of repudiation letter dt. 09.01.2013 issued by the OP-1.
i.
There has been considerable delay in providing the intimation of reported claim to our company. At the same time the vehicle was removed from the spot without providing us an opportunity to verify the facts related to the damage to vehicle and the circumstances leading to loss. The same was necessary to determine the admissibility of the claim which is violation of policy condition no. 1 which reads as, Notice shall be given in writing to the company immediately upon the occurrence of any accident or loss or damage and in the event of any claim and thereafter the insured shall give all such information and assistance as the company shall require.
ii.
You failed to provide satisfactorily and logical explanations to the queries of our letters dt. 23/08/2012, 03/09/2012, 27/09/2012 and 07/12/2012 in addition to various communication through mails.
iii.
You provided two claim forms dt. 30/07/2012 and 09/08/2012 wherein fact of manner of accident mentioned and fact of manner of accident reported to the police is quite different and misleading one.
iv.
As per your goodself there was no injury to the driver but as per investigation/survey report blood stain found available on steering and found blood stain scatter in different part of IV.
However you have failed to report about the same, thus leading us to believe that there is suppression of actual facts related the reported loss.
In view of above, it is quite obvious that you have tried to mislead the insurance company by misrepresentation of facts for wrongful gains. Hence, your claim stands repudiated.
18) On receiving the information of the accident/insurance claim, OP-1 Bajaj Allianz appointed Sh. Avnish Kumar to conduct a survey and assess the cause, nature and extent of loss/damage caused to BMW car which met with an accident on 28/29.07.2012 at DLF Square, which is situated between Shankar Chowk and IFFCO Chowk, NH-8, Gurgaon, Haryana. In its report 07.01.2013 (Ex.R-9). Surveyor observed that the insured vehicle found damaged from front portion involving FR Bumper, Bulkhead, Both Fenders & Aprons, Radiator, Condenser, Intercooler, Engine Parts, Alternator assy,. Roof Panel FR W/s Glass, RH FR Door, RH Side Body, RH RR Door assy., Steering System, Suspension Parts FR, Dashboard assy, with air bags etc. The surveyor made certain remarks which are also relevant to note at this stage that there was difference in description of loss w.r.t. Policy report (DD No. 11 dt. 29.07.2012). And two claim forms provided by the insured. In claim form dt. 30.07.2012 (signed by Sh. Deepak Yadav, but not stamped), a truck in front applied sudden brakes and insured vehicle hit into it whereas as per policy report dt. 29.07.2012 the matter goes and states that to avoid a stray animal in front, driver of the insured vehicle applied sudden brakes due to which insured vehicle got unbalanced and hit into another running vehicle on right side and thereafter it hit another vehicle on left side, the truck details were missing in police report. Third party vehicle number plate was found in the damaged/insured vehicle. The surveyor has further remarked that the insured has also provided another claim form (duly signed by Sh. Mukul Aggarwal and duly stamped) dt. 09.08.2012 stating details except description of the accident. As per claim form signed by Sh. Mukul Aggarwal, no one got injured in the said accident. The claim form signed by Sh. Deepak Yadav was blank on the matter regarding injuries.
The surveyor also noted that there were blood stains/marks on steering wheels, the signs of injury to person on steering wheel/driver, suggesting that the person on steering wheel/driver must have receive serious injuries as the blood was found scattered. Driver/son of TP vehicle has given in writing (notarized) statement that there were 3 to 4 persons available in the vehicle at the time of accident.
19) FORENSIC INVESTIGATION REPORT dt. 09.01.2013 (Ex R-6): Samples of blood stains collected from the steering wheels, driver seat and dash board of BMW car bearing No. HR-26-20-8015 were human blood. Complainants case in driver was that on 28.07.2012 at about 11:30 pm insured paid driver Sh. Rakesh Singh took insured vehicle from residence of Sh. Mukul Aggarwal (complainant-1) to the office at DLF Cyber City, Phase-2, Gurgaon for collecting laptop, some files, and documents of Sh. Mukul Aggarwal and reached thereon 29.07.2012 at around 12:45 am, he was returning back from Gurgoan to Chattarpur residence of Sh. Mukul Aggarwal, the car met with an accident in the intervening night 28/29.07.2012 between 12:30 am to 2:00 am in front of DLF Square, which is situated between Shankar Chowk and IFFCO Chowk, at the time of accident Sh. Rakesh Singh was driving the vehicle, he was alone in the car. He did not receive any injury in the accident. On receiving information of the accident Sh. Mukul Aggarwal reached to the accident spot along with Sh. Deepak Yadav, Administrative Manager of M/s Dassault Systems India Pvt. Ltd. He called BMW assistance service but they denied to do anything during the night time, thereafter Sh. Deepak Yadav called BOSCH Car workshop at old Delhi Gurgaon Road and arranged towing van and damaged car was immediately shifted from accident spot. On 29.07.2012 at around 12:00 noon, Sh. Rakesh Singh went to DLF, Phase-II, Police Station and informed the police about the accident. Police noted the accident case under GD entry bearing No. 2 dt. 29.07.2012 at about 03:00 pm. On 30.07.2012 damaged car was shifted to BMW Workshop at M/s Bird Automotive Section suryas, as per police report sudden brakes were applied and the vehicle hit from the right to left side (no reference of front in back). According to FIR lodged by Sh. Rakesh Singh, sudden brakes were applied to save stray animal who appeared on the road. In the process the car got disbalanced and hit another vehicle on the right side of the road and thereafter also hit another vehicle in the left side road and the car received extensive damage.
20) We have heard Sh. S.U.Abbas, Counsel for the Complainant along with Complainant Sh. Mukul Aggarwal in Person. We have also heard Ms. Suman Bagga, Counsel for the OP-1, Sh. Rajesh Roshan, Counsel for the OP-2 and Ms. Manju, Counsel for the OP-3.
21) The first and the foremost arguments forcefully advanced by Ms. Suman Bagga, Ld. Counsel for the OP-1 was regarding jurisdiction of this Commission/Forum. She argued that this case involves voluminous evidence consisting of surveyors report, investigation report, daily accident report of NHA India, GD entry, report of India Forensic Lab. etc. and it was necessary to prove the contents/veracity of these documents for proper and effective adjudication of the matter. This is not possible in a summary procedure followed by this Commission and only Civil Court is right place to decide the case. She relied upon the rulings of following two cases in support of her contention:-
i.
Deccan Enterprises Pvt. Ltd Vs National Insurance Company Ltd. Petition No. 143/02 decided on 01.05.2002 by NCDRC, New Delhi.
ii.
Synco Industries Vs State Bank of Bikaner & Jaipur and Ors. SC 568.
22) In Deccan Enterprises case reference was made to the decision of the SC in Synco Enterprises Vs State Bank of Bikaner & Jaipur and Ors. in which the Apex Court observed: where complicated question of law and facts are involved, Forum under Consumer Protection Act may not be a proper Forum to dispose of such a case in summary fashion. Civil Court was the proper Forum.
23) We have gone through the decisions of the referred cases, the facts of both the referred cases are entirely different from the facts of the present case, which are simple like any other accidental case. We do not find any peculiar feature of complicated nature. This Commission in FA No. 1675/03 decided on 17.12.2007 Amit Gupta Vs National Insurance Company Ltd. observed that the opinion of the Ld. District Forum that complicated question of the law and facts are involved, which are beyond purview of the District Forum, while deciding a complaint in a summary manner under Consumer Protection Act, 1986 are not tenable. It was held that the notions that rival claims and contentions of the parties cannot be determined without detailed documentary and oral evidence, because of the facts being of complicated nature, are not at all justified. There was no such question of complicated nature of law and facts that could not have been gone into by District Forum, nor there was any need for calling upon the parties to produce detailed evidence subject to lengthy cross examination. The District Forum and Commission are established under the Consumer Protection Act 1986. President of the District Forum or for that purpose State Commission and National Commission are persons who have varied judicial experiences and are of the rank of District Judge, High Court Judge and Supreme Court Judge. In our view there was no such complicated or complex question of law and facts that could not be adjudicated by a District Forum or State Commission. In the present case facts are simple and the basic question for determination was whether there was any contractual liability of the OPs/respondents to indemnify the loss of the vehicle which was admittedly insured by OP-1 and OP-2, surveyor was also appointed to assess the loss. There appears no need to prove the contents of the documents filed by the parties. We therefore respectfully disagree with the contention of the Ld. Counsel for the OP-1.
24) The second major argument of the Ld. Counsel for the OP-1 as well as for OP-2 was that a contract of insurance was based on the doctrine of uberrimae fidei (of utmost good faith) and that the terms and conditions of such contracts are binding on both the parties. They forcefully contended that in the present case the complainant has not approached this Commission with clean hands and was guilty of suppression of material facts. Both the Ld. Counsels emphasized that the claim of the complainant was rightly rejected by the insurance company and the ground of repudiation have been elaborately discussed in its letter dt. 09.01.2013 (Ex.R-10). Under the circumstances, there was no deficiency of service nor adoption of unfair trade practice on the part of the insurance company and for this reason the complaint was liable to be dismissed. They also argued that complainant was not a consumer within the meaning of the section 2(1)(d) of the Act and had no locus-standi to file the present complaint. In addition the Ld. Counsel for the OP-2 further argued that under the provisions of the BMW secure, benefit of a new car is conditional upon confirmation of the total loss of the vehicle by a surveyors report and reimbursement of 75% of the Insured Declared Value (IDV) of the vehicle by the insurance company under motor insurance policy. Since this condition has not been fulfilled and insurance claim of the complainant has been repudiated by the insurance company, OP-2 is not liable at all to give a new car to the complainant under BMW secure as prayed in the compliant. There was delay in informing about the accident to OP-2.
OP-2 was informed about the accident for the first time on August 22, 2012 vide an e-mail which is after 22 days of the accident. Similarly, Ld. Counsel for the OP-1 contended that there has been violation of condition-1 of the insurance policy in as much as OP-1 insurance company was informed by the complainant after a lapse of 12 days. The condition of the insurance policy injoins upon the insured to have informed the insurer immediately after the accident.
25) On the other hand, Ld. Counsel for the complainant argued that the complainant-1 Sh. Mukul Aggarwal is working as Director Finance and Administration with Dassault Systems India Pvt. Ltd. He applied for car loan for himself to company under its car lease scheme; secured a loan of Rs. 26,92,229/- and purchased BMW car on 17.05.2012 for his personal use. Monthly EMI is being deducted from his salary and is being paid to Sundram Finance; delivery of the car was taken by him and the car remained in his personal use, even after accident EMI is being deducted from his salary. Undoubtedly, the complainant is an aggrieved person who has been regularly paying the monthly EMIs since the purchase of the car.
He has therefore every right to maintain the present complaint. The Ld. Counsel emphasized that the insurers decision to reject the genuine insurance claim should be based on sound logic and valid grounds. Rejections of claim purely on technical ground in a mechanical fashion will result in policy holder losing confidence in insurance industries, it was a flagrant deficiency in service and amounts to indulgence to unfair trade practice.
26) The first ground of rejection was that information to insurance company was given after 12 days in violation of the policy condition No. 4 i.e. the information should be given immediately in case of an accident or breakdown, also the grouse of the OP-1 insurance company was that no opportunity was provided to the insurance company to inspect the vehicle on the spot and it was shifted without knowledge or consent of the insurer. This deprived the insurance company to assess the actual cause and the manner, the accident took place. Regarding delay the Ld. Counsel for the OPs relied upon the following rulings of the Honble NCDRC:-
i.
New India assurance company Ltd. (appellant) vs Dharam Singh and Ors. (respondent) FA-426/04 decided on 04.07.2006.
ii.
Virendre Kumar VS New India Assurance Company and Rev. Pet. No. 2534/12 decided on 07.11.2012.
iii.
RP No. 2894/11 Suresh Kumar VS NIC and Ors. decided on 14.03.2013 NCDRC. Besides, reference was also made to United India Insurance Company Ltd. Vs Trilochan Jane decided on 09.12.2009 by NCDRC.
27) We have gone through these rulings, the facts and circumstances of these referred cases are quite different from the facts and circumstances of the present case. There has been inordinate delay in informing the insurance company and lodging the FIR in the referred cases but in peculiar facts and circumstances of the present case no benefit could be drawn by the OP by referring to the decisions of these cases. This should also be kept in mind that a case of accident was different from the case of theft.
28) In the present case the OPs have alleged delay of 12 days in informing the insurance company whereas there has been no any delay in lodging the FIR of the accident.
The Ld. Counsel for the complainant, on the other hand, has rejected the allegation of the delay which less than a delay of 12 days in informing the insurance company. The accident took place on 29.07.2012 during night. On Sunday morning complainant immediately made a telephone call to OP-3, and informed about the accident but was told by the officials of the OPs to report on Monday, July 30,2012 as the office was closed on Sunday. A crane assistance was sought from OP-3 and car was towed to the service centre of OP-3 on 30.07.2012 and the car is lying with them since then. This fact is not denied by the OP-3. It was noteworthy that complainant immediately submitted a claim form on 30.07.2012 and the factum of admission is reflected in the letter of OP-1 dt. 09.01.2013. The claim form was submitted to OP-3. OP-3 then pointed out that there was mistake in chassis number and engine number in the insurance policy documents. OP-1 corrected the mistake in the document regarding the engine number and chassis number and immediately thereafter i.e. on 09.08.2012 claim form with correct numbers was submitted.
29) Thus the delay was entirely due to the mistake on the part of the OP-1. Whether the mistake was made deliberately or inadvertently, either way, OP-1 itself is responsible for the delay. Delay can only be attributed for the OP-1 for mistake it made in insurance papers regarding the chassis number and engine number. Necessary correction was made by the OP-1 on 09.08.2011. Therefore, it does not lie in the mouth of the OP-1 to allege that 12 days delay was caused in giving information to OP-1 regarding the accident in violation of the insurance policy condition. There was absolutely no delay on the part of the complainant who from the very beginning i.e. immediately after the accident, tried to inform all and took all necessary steps to safe guard its own interest as well as the interest of the OPs. It is an admitted fact that intimation of the accident was given on 30.07.2012 itself and this fact has been acknowledged by the OP-1 in its letter dt. 09.01.2013. Besides, in para 11 of the affidavit of the evidence filed by the OP-3, it has been admitted that vehicle was brought in the workshop of OP-3 on 30.07.2012, due information was duly received by the OP-1 insurance company. All these facts and circumstances falsify the contentions of the OPs that there has been any delay in informing the insurance company regarding accident.
30) Removal of car from the spot of the accident: Since the accident occurred on a very busy road, NH-8, the complainant maintained that as per condition No.4 of insurance policy r.w. clause-D of the claim form damaged vehicle was to be parked at a safer place to avoid any subsequent loss or damage; adhering to this, car was towed to BOSCH Automotive Gurgaon Haryana, midway between the accident site and BMW Service Centre of OP-3. Here it was also important to note that NH-8 on which accident occurred was a busy national highway and it was not possible to wait for arrival of the officials of the insurance company for inspection after information. 29.07.2012 was also a Sunday therefore there was no alternative but to move badly damaged car to a safer place to avoid further damage or loss.
31) Another ground for repudiation of the insurance claim was alleged failure of the complainant to provide logical explanation to the queries of the OP-1 raised through companies letters dt. 23.08.2012, 03.09.2012, 27.09.2012 and 07.12.2012. It was emphasised on behalf of the complainant that out of these four letters complainant received only one letter dt. 23.08.2012; for others OP-1 was called upon to provide proof in the form of receipts etc. With respect to contents of letter dt. 23.08.2012 queries were answered in writing, the same day. The ground is therefore unattainable. Fourth ground of repudiation of the insurance claim is controversy regarding injury to driver. As per investigation and final survey report dt. 07.01.2013 blood stains were found on the steering wheel & dash board. It was alleged to be suppression of material facts. In this regard, complainants contention is that there is no chemical examination report or record with regard of blood stains. The complainant had not seen any blood stains in the car. The driver of the car Sh.
Rakesh Singh also told the complainant that he was not injured in the accident. Had the driver been injured in accident police must have seen those injuries, entering in DDR. Neither, the complainant suppressed anything nor there was any concealment of facts. The complainant approached the Commission with clean hands.
32) It was denied that Sh. Rakesh Kumar was not actual driver of the car at the time of the accident. It was further denied that at the time of accident, car was being driven at a very high speed of 140-150 kms/hrs. It was further denied that there were three young boys inside the car.
33) Territorial Jurisdiction: The Ld. Counsel for the OPs argued that this Commission has no territorial jurisdiction to entertain the present complaint as no part of the cause of action has arisen within its territorial jurisdiction. Car in question was booked and purchased in Gurgaon from OP-3 at its showroom at Ambianze Mall, Showroom-1, Ambianze island, NH-8, Gurgaon.
The complainant paid price and took delivery of the car at Gurgaon, it was registered with the transport department of Haryana at Gurgaon with Registration No. HR-26-BS-8015. The accident of the car in question occurred at Gurgaon, FIR was lodged with the police at Gurgaon and insurance policy was taken at Gurgaon and insurance claim was also lodged at Gurgaon. Thus no part of cause of action has arisen within the territorial jurisdiction of this Commission. The OPs relied upon the ruling of Honble Supreme Court in Sonic Surgical Vs. National Insurance Company Ltd. 2010 AIR (SCW) 298 in respect of their contention.
In reply of this contention counsel for the complainant argued that OP-1 and OP-3 have their branch offices at Delhi. Referring to provision of Section 17(2) of the Act, the Ld. Counsel argued that it is a settled law that where there are more respondents having their respective offices at different places the complaint can be filed at any one of the place where office of the respondents are situate. The Judgment of Honble Supreme Court in Sonic Surgical case does not apply in the facts and circumstances of this case.
34) It has not been denied by the OP-1 and OP-3 that they have no regional or branch offices in Delhi. Rather it is well known fact that OP-1 and OP-3 have their branch offices in Delhi and NCR where they carry on business. Therefore, in our considered view, the complaint can be entertained and adjudicated upon by this Commission in Delhi in view of the provision of Section 17(2)(b).
35) So far as the decision of the Honble Supreme Court in Sonic Surgical case is concerned, it has a very restrictive application. In Para 10 of the Judgment, the Honble Court held in our opinion, the expression Branch Office in the amended section 17(2) would mean the branch office where the cause of action has arisen. No doubt this would be departing from the plain and literal words of section 17(2)(b) of the Act, but such departure sometime becomes necessary (as it is in this case) to avoid absurdity. The provision of the section 17 (2)(b) are to be given their literal and plain meaning and departure can only be made in exceptional cases when absolutely necessary. In view of the peculiar facts and circumstances of the case, there is no need to depart from the plain and literal meaning of the words used under section 17(2)(b) of the Act.
36) The OP-1 through its letter dt.
09.01.2013 has repudiated the claim of the complainant on four grounds in complete disregard of the circular dt. 20.09.2011 issued by the IRDA which clearly suggest the insurance companies that its/insurers decision to reject a claim should be based on sound logic and valid grounds but this claim has been rejected purely on technical grounds, small contradictions and technicalities have been deliberately harnessed to repudiate the otherwise genuine claim. Bajaj Allianze General Insurance Company (OP-1) is a well known insurance company which must be knowing that genuine claims should be swiftly decided preferably within six months without resorting to procedural wrangling and hyper technicalities. In T.G. Abraham V/s M.D.Karala S.R.T.C. 2004 (III) CPJ 6, it has been held that consumer courts are not expected to go into technicalities of civil or criminal jurisprudence. Evidence Act and criminal procedure court are not applicable to proceedings before consumer court. Disputes are to be decided on yardstick of reasonableness and probabilities. Principles of natural justice do apply in full force.
37) Undoubtedly, in the present case a fatal accident took place leading to total loss of the BMW Car in the intervening night 28/29.07.2012 between 01:15 am to 2:00 am in front of DLF Square situate between Shankar Chowk and IFFCO Chowk. There was sever impact on the front side of the car. This fact has not been disputed at all surveyor was appointed who submitted his final report dt. 07.01.2013 where in assessed loss was to the tune of Rs. 26,65,506/- which is morethan 75% of the total IDV of the insured vehicle. Small contradictions in the manner of the accident were of little consequence. The major factors which were essential and germane to decide an insurance claim were readily available to the insurance company. Rejection of the claim on these petty grounds/contradictions is nothing but gross deficiency of service on the part of the insurance company.
It also amounts to indulgence in unfair trade practice. Therefore we are of the firm view that the insurance company (OP-1) was liable to reimburse the damage/loss caused in the accident. The loss assessed by the assessor was Rs. 26,65,506/-. The accident took place within less than two and half months of the purchase of the car.
There is another aspect of the matter too, BMW car in question was doubly insured. Apart from taking private car package policy from OP-1 the complainant has also taken BMW secure advance policy for which a premium of Rs. 24,719/- was paid; this policy was taken to secure additional benefits developed by the BMW India exclusively for its customers. it was a case of total loss as assessed loss by the surveyor exceeds 75% of the IDV. True the OP-1 repudiated the claim of the complainant but the repudiation has been found untenable and illegal with the result that deficiency of service on the part of the insurance company has been recorded by this Commission and insurance company has been found liable to reimburse the assessed loss to the vehicle. On account of BMW secure advance policy, the liability of the OP-2 also comes into play.
The reimbursement of the assessed loss has been approved by this Commission rejecting the repudiation order dt. 09.01.2013 of OP-1. Therefore, OP-2 cannot shirk from its liability under indemnification of insured amount of Rs. 29,46,278/- by replacement of the car in accordance with BMW Secure advance insured cover. OP-1 is a leading insurance company of the automobiles. OP-2 is a manufacturer of the BMW car and OP-3 is its distributors. The liability of OP-1 and OP-2 is joint and several.
38) In view of the above discussion, the following order is passed:-
i.
OP-1 and OP-2 are directed to indemnify the complainants for the total loss of BMW 3 Series 320D car in question by replacing the vehicle with a new car of the same make/model with all incidental registration road tax and logistics charges paid and duly insured as earlier.
ii.
OP-1 & 2 are further directed to pay a sum of Rs. 50,000/- towards compensation for harassment, mental agony and pain etc., and Rs. 10,000/- towards litigation charges.
iii.
The complainants are also directed to complete all formalities regarding the transfer of ownership of the damaged vehicle in favour of the insurer.
39) The order shall be complied within a period of 30 days from the date of order failing which the complainant will be free to resort to the execution proceedings provided under Section 25/27 of the Act.
40) Let a copy of the judgment be made available to the parties free of cost as per rule, thereafter file be consigned to record room.
(S.A.SIDDIQUI) MEMBER (JUDICIAL) (S.C.JAIN) MEMBER FATIMA