State Consumer Disputes Redressal Commission
Srm Smart Hoops Pvt Ltd vs U.I.I. Co. on 22 November, 2023
Cause Title/Judgement-Entry STATE CONSUMER DISPUTES REDRESSAL COMMISSION, UP C-1 Vikrant Khand 1 (Near Shaheed Path), Gomti Nagar Lucknow-226010 Complaint Case No. CC/84/2016 ( Date of Filing : 28 Mar 2016 ) 1. SRM Smart Hoops Pvt Ltd Lucknow ...........Complainant(s) Versus 1. U.I.I. Co. Lucknow ............Opp.Party(s) BEFORE: HON'BLE MR. Rajendra Singh PRESIDING MEMBER HON'BLE MR. Vikas Saxena JUDICIAL MEMBER PRESENT: Dated : 22 Nov 2023 Final Order / Judgement Reserved State Consumer Disputes Redressal Commission U.P. Lucknow. Complaint Case No.84 of 2016 SRM Smart Hoops Pvt. Ltd., KN-353, Uttar Dhauna, Tiwariganj, Faizabad Road, Lucknow-227105 through its Director, Neeraj Agarwal. ...Complainant. Versus 1- United India Insurance Co. Ltd. having its Regional Office at Arif Chamber-I, II & III Floor, Kapoorthala Complex, Aliganj, Lucknow through its Authorized Signatory. 2- Chief Regional Manager, United India Insurance Company Limited, Regional Office, Lucknow. ...Opposite parties. Present:- 1- Hon'ble Sri Rajendra Singh, Member. 2- Hon'ble Sri Vikas Saxena, Member. Sri Dilip Mani, Jr. Advocate of Sri Vijay Dixit, for the complainant. Sri V.P. Sharma, Advocate for OPs. Date : 4.1.2024 JUDGMENT
Per Sri Rajendra Singh, Member- This complaint has been filed by the complainant SRM Smart Hoops Pvt. Ltd. under section 17 of the Consumer Protection Act, 1986.
The brief facts of this complaint case are that, that the complainant is a Private Limited Company incorporated and registered on 29.03.2012 and is engaged in automobile business. This complaint case is being filed for challenging the order of the opposite parties dated 14.10.2015 by which the insurance company rejected the claim of complainant in absolutely illegal manner and on non-existent grounds. The complainant company was offered the dealership of Mercedes-Benz Passenger Cars at Lucknow in Uttar Pradesh for which a letter of intent was issued by the Mercedes-Benz India Private Limited on 15.06.2012. The complainant inaugurated his showroom on 17.08.2012 and started functioning as authorised dealer of Mercedes-Benz Passenger Cars and spare parts. For initiating the business of selling cars, the complainant opted the necessary Trade Certificate issued under the provision of Rule 34 of the Central Motor Vehicle Rules 1989 w.e.f. 14.08.2012 after depositing the requisite fee as provided under the Rules. The said Trade Certificate was renewed from time to time as per the provisions of Rule 35 and 37 of the Rules.
All the vehicles which are brought in the showroom, are being insured by the complainant as per requirement of provisions of the Central Motor Vehicle Act 1988. During the course of business complainant received various vehicle for sale including Car Model ML-250 CDI with chasis number WDC 1660036L000208 which was received in the complainants showroom in the month of December 2012. All the vehicles which are used under the Trade Certificate are to be insured under the Road Risk Package Policy (Trade Plate Insurance Policy) and as such complainant got the Road Risk Package Policy (Trade Plate Insurance Policy) for all its vehicle including the Mercedes-Benz M Class. The period of insurance has been indicated from 31.08.2012 to midnight of 30.08.2013 and the vehicle has been insured for ₹ 60 lakhs. It has been indicated in the policy that the same is subject to terms and conditions attached along with the policy. The Car Model ML-250 CDI, the vehicle in question, while being shifted from the stockyard at Paharpur to the showroom at Faizabad Road, Lucknow met with an accident on 26.08.2013 at about 9:30 PM on Sitapur Highway in Bakshi Ka Talab area while the same was driven by the driver Mr. Dinesh Kumar. Factum of accident was informed by the driver to Mr. Gaurav Chauhan and Mr. Gaurav Chauhan reached the site of accident and it was found that the vehicle is badly damaged and could not be driven either to stockyard or to the showroom.
The report of accident was submitted by one Mr. Rahul Kumar, Service Advisor on 27.08.2013 at police station Bakshi Ka Talab, District Lucknow at about 2 PM. As no third-party injury has occurred, neither the driver of the vehicle got injured nor any public or private property was damaged, as such the concerned police station received the application after putting seal on the copy of the application and returned back the same to the employee of the complainant. The intimation of the accident was submitted telephonically by the officials of the complainant to the opposite parties on 27.08.2013. The vehicle was lifted with the help of crane and thereafter shifted to Paharpur stockyard of the complainant on 28.08.2013. On the intimation so given by the complainant to the insurance company, one Mr Avinash Chandra , Surveyor and Loss Assessor was assigned the job of Serveying the loss of the vehicle in the accident by the insurance company on 29.08.2013. The surveyor conducted a survey of damaged vehicle on 31.08.2013 and requested complainant to move the vehicle to the workshop so that the vehicle can properly be inspected and further sought some clarifications by means of letter dated 05.09.2013 and in the meantime complainant submitted claim form with the opposite parties.
The insurance company apart from appointing a surveyor, also appointed an investigator on 03.09.2013 and the said investigator Mr. Virendra Pal Arya took statements of the various employees of the complainant company as well as other persons with respect to incident in question and said investigator submitted its report on 30.09.2013 in which the factum of accident was not disputed and further nobody was injured in the accident. The surveyor Mr. Avinash Chandra submitted a report on 14.04.2014 thereby recommending for settling of the claim on constructive total loss less salvage basis. In spite of the fact that their own surveyor submitted his report on 14.04.2014, the claim was not settled by the opposite parties in illegal manner in spite of several efforts made by complainant and in absolutely illegal and arbitrary manner on 20.11.2014 M/s Surendra Kumar and Associate was appointed to reinvestigate the case. It has been indicated in the letter that the same has been issued in pursuance to the letter dated 11.11.2014 of the Head Office of the opposite parties. The said letter issued by the head office of the opposite parties to the regional office, Lucknow indicates that certain queries were made by the head office as indicated certain discrepancies for which the regional office, Lucknow was directed to get the matter reinvestigated.
Sri Surendra Kumar, the surveyor, who has been engaged by the parties on 20.11.2014 to reinvestigate the claim, issued a letter to the complainant on 05.12.2014 seeking various informations. Sri Surendra Kumar also wrote a letter to the Regional Transport Office, Lucknow seeking details with respect to the trade certificate issued to the complainant by means of letter dated 24.12.2014. In reply to the letter dated 24.12.2014, The Regional Transport Officer, Lucknow replied on 28.01.15 giving the information as required by the surveyor. It shows that it has specifically been indicated by the Regional Transport Officer that the trade certificate of the complainant was issued on 14.08.2012 which was valid till 13.08.2013 and thereafter it was renewed after depositing the required fees. The HOD Services of the complainant replied to the queries made by Sri Surendra Kumar by means of its letter dated 27.01.2015 which shows that all the queries made by the surveyor had been replied and the necessary documents required in support thereof were also supplied on 07.02.2015. The surveyor again sent a letter to the complainant seeking further clarifications with respect to some points which were not clarified as per the satisfaction of the surveyor. On 21.03.2015, the surveyor also wrote a letter to the manager, National Highway authority of India, Toll Gate, Itaunja, Sitapur Road, Lucknow seeking information with respect to the vehicle in question that whether the said vehicle passed through the toll Gate on 26.08.2013 i.e. the date of accident and the said authorities replied on 25.03.2015 on the margins of the letter dated 21.03.2015 indicating therein that the above-mentioned vehicle did not pass through the toll Gate on the above mentioned date.
The surveyor Sri Surendra Kumar submitted his report on 26.02.2015 even prior to the date on which he received the information from the toll Plaza of NHAI and recorded findings on certain issues against the claim of the complainant. As various findings were recorded in the report of the surveyor against the claim of the complainant, the complainant requested the Chief Regional Manager, United India Insurance Company Ltd., Regional Office, Lucknow for a joint meeting with the surveyor, officials of the insurance company and officials of the company so as to clarify with regard to the findings and observations mentioned in the report dated 26.02.2015 which the Chief Regional Manager was pleased to fix 13.03.2015 for the meeting in the Regional Office. On the said date, joint meeting of the officials was held at the regional office of the opposite parties in which the officials of the complainant clarified the opposite parties as well as the surveyor with respect to the findings and observations in the report including the discrepancies and in furtherance thereof submitted an application dated 31.03.2015.
Sri Surendra Kumar, the surveyor, after the joint meeting and after considering all the submissions made by the officials of the complainant in the joint meeting and other documents available on record, submitted its addendum to the early report dated 26.02.2015 on 12.05.2015 thereby recommending for claim to be payable to the complainant. It shows that after discussing all the points in great details and after going through evidence on record, it was concluded by the surveyor that all the basic requirements and conditions of the insurance policy was complied with by the insured and no concrete evidence was there which may prove breach of the policy conditions hence the claim is payable. So the claim be allowed but the opposite parties in absolutely illegal manner rejected the claim of the complainant on non-existent grounds by means of order dated 14.10.2015. It shows that five reasons have been indicated for not approving the claim of the complainant and all the reasons are absolutely non-existent and cannot be made basis for rejection of the claim when twice their own surveyor have recommended for setting the claim of the complainant.
The first reason indicated for not approving the claim of the complainant that there was undue delay in information of the claim. The said reason is absolutely incorrect on the face of records of opposite parties themselves as it is admitted by the opposite parties that the fact of accident has been communicated by the complainant to the officials of opposite parties on 27.08.2013 i.e. within 24 hours of the accident and within 48 hours, the opposite parties have themselves appointed a surveyor. It is further submitted that in the said point, it has been indicated that the surveyor was allowed to inspect the vehicle on 31.08.2013 and as such there has been no delay on the part of the complainant. The vehicle from the accidental site was lifted by the help of crane and thereafter shifted by toeing vehicle on 31.08.2013 and the surveyor, in his report has recommended for settling the claim of the complainant on constructive total loss basis.
The second reason is that the claim is a case of a accumulation of losses which is contrary to the report submitted by the surveyor as the vehicle was damaged in the accident and perusal of the photographs of the damaged vehicle at accident site shows that the same cannot be termed as a case of accumulation of loss rather the same is based on single accident for which a separate claim was lodged. It is stated that the complainant has not furnished the details of earlier claim whereas in fact the claim dated 19.01.2013 was settled by the opposite parties themselves on 10.10.2013 and whereas the claim dated 19.01.2013 was not set at rest by the complainant as before the said claim could be settled, the vehicle met with the accident on 26.08.2013 resulting into total loss of the vehicle.
The third reason has been indicated that the insured has not extended necessary cooperation to the independent IRDA approved surveyor to finalise the report of assessment of losses. The complainant submits that the said reason is contrary to their own record as the surveyor was appointed on 29.08.2013 and he inspected the documents within two days and thereafter whenever any clarification and explanation was sought from the officials of the complainant the same was duly provided by the officials of the complainant to the surveyor and it was up to the surveyor to explain the delay, but none of the report of the surveyor claims that the delay has been caused due to non-cooperation of the insured.
The fourth reason indicated is that the insured has denied access to material information relating to letter of intent between the insured and Mercedes-Benz. The complainant submits that the same cannot be the reason for rejection of the claim as per the requirement of the surveyor the relevant pages of the letter of intent were supplied by the complainant to the surveyor and the opposite parties and if at all the entire LOI was acquired the same could have been asked by the opposite parties or by the surveyor. It is submitted that the entire LOI was shown to the surveyor and it is further submitted that there is nothing in the LOI concealing of which may result into material change in the facts of the present case. It is further submitted that the letter of intent between the complainant and Mercedes Benz cannot be an important document for consideration of insured vehicle, more so when the insurance of the vehicle in question has not been denied by the opposite parties on the date of accident and the accident has also not been disputed, the claim of the complainant cannot be directed on frivolous and non-existent grounds.
The fifth reason indicated is that the insured has not informed the police and MVI to bring in more transparency is a clear violation of the policy condition. It is submitted that the officials of the complainant has duly submitted an application on 27.08.2013 at the concerned police station and the receiving of the said application has been provided to the opposite parties and as per report of the investigator of the opposite parties, the officials of the police station has not denied the seal on the application submitted by the officials of the complainant informing about the accident. The opposite parties failed to indicate any such policy condition which requires the insured to inform the police if there is no third-party loss or no person has injured. The only requirement of condition no.1 is that, that the insured shall intimate the company immediately upon occurrence of the accidental loss or damage and it is only in case of theft or other criminal act, the insured is required to give immediate notice to the police, as such reason indicated in the impugned order is contrary to the conditions of the policy.
The action of the opposite parties is highly illegal and arbitrary and against the basic business and ethics of insurance business as the vehicle of the complainant which is duly insured with the opposite parties at the time of the accident and was maintained as per conditions of the policy, it is the bounden duty of the opposite parties to settle the claim of the complainant and made payment of the losses suffered by the complainant with respect to the insured vehicle. The two successive independent IRDA approved surveyors appointed by the opposite parties themselves and have submitted the report insured of the complainant and for settlement of the claim on total constructive loss basis and as such the rejection of the claim by the opposite parties is contrary to the recommendations of the surveyor. The action of the opposite parties is highly illegal and in contravention of the statutory provisions of the Insurance Act. The claim was lodged with in time and the same was kept pending by the opposite parties for more than two years and opposite parties have appointed successive surveyors and investigator for the repudiation of claim by which reports have been submitted by the surveyor in favour of the complainant and inspite of that the claim has been rejected on non-existent grounds.
Therefore it is most respectfully prayed that this Hon'ble Commission may kindly be pleased to allow this complaint and may be pleased to direct the opposite parties to settle the claim of the complainant with respect to the insured vehicle which was insured for a value of ₹ 60 lakhs + interest thereupon from the date of claim has been raised by the complainant till the date of actual payment. The opposite parties may further be directed to pay ₹ 10 lakhs towards financial loss and mental agony and an amount of ₹ 10 lakhs as compensation on account of delay in settling the claim of the complainant.
The opposite parties have submitted their written statement stating that the claim of the complainant was not payable as per policy condition as such the same has been repudiated by means of speaking order of repudiation dated 14.10.2015. There is no provision for challenging the repudiation letter before this Hon'ble Commission. No FIR of the said accident has been lodged by the complainant to the police station concerned. The appellant appointed Mr. Avinash Chandra surveyor and loss assessor. True facts of the accident were not disclosed by the complainant and its officials to the said surveyor and they have failed to give full cooperation to surveyor. It is submitted that Er. Surendra Kumar submitted his report dated 12.05.2015 thereafter he submitted additional report dated 21.05.2015. The surveyor is not authorised to give recommendation of settlement of claim. The grounds of repudiation dated 14.10.2015 is quoted here:
"Accident vehicle number UP32TC0676 (Mercedes-Benz - 2012 model) date of accident 26.08.2013 Road Risk Package Policy no.0823033112010001615. 31.08.12 to 30.08.13 IDV ₹ 60 lakhs issued in your name. The competent authority has not approved your own damage claim specified above for the following reasons :
There was undue delay in information of the claim- the date of accident is reported as 26.08.2013 whereas the claim form is dated nil . We have deputed the surveyor Mr. Avinash Chandra immediately on receipt of the claim form on 29.08.2015 itself who has contacted you to proceed with his job of assessment of loss, but he could not take up the job till 31.08.2013 the date on which you have made the damaged vehicle available to the surveyor for inspection. Thus, there has been inordinate delay on your part in not allowing the IRDA approved independent surveyor in taking the job.
The claim is a case of accumulation of losses - Mr. Gaurav Chauhan your manager in his statement in writing dated 21.09.2013 has admitted that your vehicle specified above met with the accident on 01.04.2013. The surveyor Mr. Avinash Chandra vide his letter dated 15.09.2013 remind you about the claims dated 19.01.2013 and 02.08.2013 which were reported pending on the date of inspection of your aforesaid vehicle. The present accident is reported to have occurred on 26.08.2013. You have not furnished details regarding claim as how those have been dealt with; thus this claim is accumulation of losses and not payable under the policy. The insured has not extended necessary cooperation to the independent IRDA approved surveyor to finalise the report of assessment of losses. The surveyor Mr. Avinash Chandra was appointed immediately on receipt of your claim form on 29.08.2013 who has also contacted you to proceed with the job; but you have not made available and furnish the details of other losses specified above to bring any clarity in the assessment of the loss. The surveyor could not finalise his report of assessment on 14.04.2014 which is solely due to your non-cooperation to the surveyor resulting in a delay of more than seven months.
The insured has denied access to material information relating to LOI between the insured and Mercedes-Benz - the very important is the 'letter of intent' between you and the makers of Mercedes-Benz cars which would throw light on the procedure of getting the vehicles from the manufacturer by the dealers; only four pages of the LOI has been made available out of 14 pages of this document. Thus you have concealed material information relating to the subject matter, i.e. the insured vehicle.
Insured has not informed the police and MVI to bring in more transparency is a clear violation of the policy condition - you have made available a copy of letter dated 27.08.2013 addressed to the Bakshi Ka Talab police station which is said to have been received by the police station, the information of this kind received by the police at least should have been entered in the General Diary. The police had found that the case, in their opinion, was where registration of FIR was not necessary as per the Indian Code of Criminal Procedure. The lapse on the part of the police is that blood stains and liquor bottles were found in the vehicle but FIR was not registered. Thus you have failed to take action as per the requirement of law following a road accident and made available such documents to the surveyor and our company, as vital evidence of the accident.
The intimation of the claim was received only on 29.08.2013 that is after three days from the date of accident. The complainant is supposed to intimate urgently about the accident. The vehicle was allowed to be inspected only on 31.08.2013 to the surveyor. The vehicle met with accident on 26.08.2013 but the appellant were informed about the said accident on 29.08.2013 and the surveyor was allowed to inspect the vehicle on 31st August 2013. The complainant lifted the vehicle from the site without informing the company and due to this act of the complainant no spot surveyor has been appointed. In the news paper such as Dainik Jagran it was reported that the car was slipped into the Khai near Nabikot Nandana and the police has recovered empty bottles from the car and car was having pool of blood. The claim of the complainant was rightly repudiated by the opposite party on ground of denial of access of material information. In the present complaint there is no dispute about quantum of the composition as complainant is not entitled to any compensation due to violation of policy terms and conditions.
The complainant filed false and fabulous complainant after hiding the material facts and the vehicle in question having invoice value of ₹ 3,833,045/-. The complainant wrongly claimed ₹ 60 lakhs which was the insured amount. The surveyor recognised the claim subject to acceptance of liability by the opposite party but there are several violations of policy conditions. Mr. Virendra Pal during his investigation took the statement of various persons and as observed about alleged FIR and related news items are published in newspapers and his finding about the FIR are quoted below, "SRM workshop provided a photocopy of its letter dated 27.08.2013 which was reportedly addressed and submitted to station officer, PS, BKT vide which it was intimated that SRM vehicle ML-250 Mercedes-Benz went out of control and met with an accident resulting in badly damaged condition on its way from the stockyard Paharpur to showroom Gomti Nagar. In this accident nobody was injured.
The copy of said intimation letter to PS, 3 impression of stamps of "Thana Bakshi Ka Talab, Janpad Lucknow" and the said impression have illegible signatures.
With a view to seek confirmation, I visited PS BKT, Lucknow and to know the action taken by the police on the above intimation letter, wherein I met so Mr. Vinod Yadav , SSI Mr. C.V. Yadav and Head Moharrir on 11.09.2013.
A report dated 11.09.2013 was written on the back of the said intimation letter by the PS staff (Moharrir) which is, "रिपोर्ट पी0एस0 बी0के0टी0 लखनऊ-महोदय -थाना स्थानीय के रो0 आम दि0 27.08.2013 का अवलोकन किया गया तो थाना स्थानीय के रो0आम में दोनों दिनों में उक्त घटना की कोई सूचना दर्ज नहीं है। आख्या सादर प्रेषित है। ह0 पठनीय दि0 11.09.2013(मोहर) थाना बख्शी का तालाब, जनपद-लखनऊ"
Though, during discussion it was revealed that the three stamps impression appeared as that of PS BKT.
Visit to place of accident Mr. Gaurav Chauhan took me to show the site of accident on 11.09.2013 as driver Dinesh was not reportedly available for the purpose. Visual inspection revealed that the site of accident is little away from New Fauzi Dhaba at Nabikot Nandana village towards Lucknow on Sitapur- Lucknow Highway under PS BKT. The exact place is in between the road and railway line were a lot of wild grasses were seen. At the site of accident, at one side (towards Lucknow) there was a semiconductor (in having a signboard of "SR Group of Institution....". There was no hut or house adjoining or nearby the place of accident. However on the side of Highway towards Sitapur there was "New Fauzi Dhaba". I visited the said Dhaba and made necessary enquiry which revealed that one black car has fallen in the ditch (khai) in the night of 26/27.08.2013 which was seen lying in the morning of 27.08.2013. No one available at Dhaba at the point of time, could especially tell the cause of accident. No one was ready to give any written statement to the sole reason that no one wanted to be a witness to face future hardships/problems.
Almost on opposite side of the place of accident there was a Parle G Depot. There was also some people were available at the point of time who confirmed the presence of black car lying in the ditch when it was in the morning of 27.08.2013. Some people also mentioned that the accident occurred due to left front tire got burst. Mr. Mohit Mishra and Rohit, loading supervisor were available at the Depot. From the discussion, oral enquiry and observations, a fact was established that a black car fell into a ditch in the night intervening 26/27.08.2013. However no one was ready to be a witness on record. Photographs of the place of accident were taken by me which are enclosed.
Visit to Hindi daily Hindustan Office, Gomti Nagar Lucknow on page 5 dated 28.08.2013 on news item "Durghatna" with a picture of one car lying in the ditch in an open place in between railway line and road near Nandana Village with the following caption, "HINDI- WRITE IT" to seek confirmation and collect more information, I visited the office of the said newspaper and contacted Mr. Ramesh Sharma, PS to editor. He confirmed the above news item published on 28.08.2013 on the basis of receipt of report and photograph written by Hindustan Teams. With regard to liquor and beer bottles and blood, he mentioned that the information was received from police by the team which is also written in the newspaper.
I also visited daily newspaper Dainik Jagran office with a view to see confirmation and collect more information where the area manager Sri Prakash confirmed the news item published on 28.08.2013 on the basis of receipt of report and photograph written by the Jagran Team. With regard to liquor and beer bottles and blood, he mentioned that the information was received from police by the team.
The complainant has intentionally delayed to intimate the accident to the opposite parties. The complainant was avoiding mandatory conditions about the test drive and he was not maintaining any register.
The engineer Surendra Kumar in his report dated 26.02.2015 mentioned the following points:
The insured confirmed in writing that they were not maintaining any record regarding form 19. The stockyard, as claimed, is 24.6 km from the then showroom. The trade certificate in question was effective from 14.08.2013 to 13.08.2014 as per RTO record. It is confirmed from newspaper cutting as well as enquiry from local people that the accident occurred on 26.08.2013 at about 9:30 PM. There is no evidence of liquor bottles in the car at the time of accident. The signature of the driver Dinesh Kumar did not tally with the signature of the driver appearing on the gate pass. But the complainant told that the gate pass book is not traceable because their showroom shifted to some other place and it was misplaced.
Thereafter a lot of contradictions in the statement of guards, manager of stock yard and other concerned persons. Mr. Gaurav Chauhan manager of the insured stated that after first accident in the month of January 2013, the car remained at workshop for about two and half months and after second accident in the month of April 2013, the car remained at workshop for about four months. Thus, out of total 10 months from the date of its arrival to dealer point till date of accident on 26.08.2013, it remained six months at the workshop due to accident. The car has run about 10000 Kms in just three and half months. It is not possible for a car under trade certificate being used for trial run/being shown to the customer run, 10,000 kms in a short span. There was sufficient space at showroom and workshop of the insured to park about 23-24 cars and there was no point of car being kept at stock yard of some other dealer which is 24.6 km away from the showroom. No other entry of any Mercedes-Benz car in the stockyard register except the entry in question which was entered in the register after 27.08.2013 at PS2 be manipulated. It shows that the car was never at stockyard and it was being used for some other purpose than claimed. The car might be coming from the place (not the stockyard) when the accident occurred and just a cover of the loss, things were manipulated. There was no mention regarding any stockyard.
CONCLUSION Detailed investigation revealed that the trade certificate in question was valid on the date of accident but the car was not being used at the time of accident for trial run or showing it to some probable customer. It was being used for some other purpose. The insured had concealed the material facts. Just to cover the loss under the insurance policy in question; gate pass, stockyard register details et cetera were falsely prepared after the accident.
The vehicle in question was damaged into other accidents also, firstly in the month of January, 2013 after which the vehicle in question remained at workshop and thereafter met an accident in April, 2013.
The opposite party before repudiating the claim sought expert opinion and his opinion is quoted here under:
"Surveyor Avinash Chandra's registered letter dated the 05.09.2013 addressed to the insured called upon insured to submit, (i) estimate of repairs, (ii) complete claim form,(iii) details of FIR, FR MVI report, tp injury/death and/or tp property damage if any etc, (iv) original and copies of motor trade certificate and DL of the driver in charge of the vehicle at the time of accident, (v) the availability of the driver concerned to inspect the site of accident, (vi) the damage vehicle to be moved to the workshop for further inspection, (vii) proof of the movement of the vehicle from showroom to any other place etc, (viii) proof that the vehicle was in their possession and any other formality/information as may be sought for as required by the circumstances.
The surveyor, Avinash Chandra though has raised this important issue of LOI and the requirement of MVI's report in his letter dated the 05.09.2013, has simply dealt with the invoice relating to this vehicle, reported in the same is in order and said nothing about the MVI's report.
The aforesaid letter further payment the insured about the claims dated 19.01.2013 and 02.08.2013 pending for non-compliance on the part of the insured.
The car is said to have met with an accident on 01.04.2013 as admitted by Gaurav Chauhan a managerial person of the insured in his statement in writing. Thus indicating dismissed the claim dated 26.08.2013 , there were four claims in eight months. However his survey report dated 14.04.2014 is silent about these pending claims. The surveyor has surprisingly stated in his survey report above said that the odometer reading in this case was not available.
The claim is repudiated on the grounds which are genuine. The claim is repudiated on account of violation of policy condition and services rendered by the opposite party are sufficient and the complaint of the complainant deserves to be dismissed with cost.
The learned counsel for the complainant Mr. Dilip Mani on behalf of Advocate Mr. Vijay Dixit and the counsel for the opposite parties Mr. V.P. Sharma was present before the court but they did not argue so we have perused the pleadings evidences and documents on record.
We have seen the insurance policy. There is no dispute regarding the insurance policy. We have seen the survey report of Mr. Avinash Chandra who has stated in his survey report, "LOSS PARTICULARS Date, time and place: 26.08.2013, 09.30 p.m. and near Bakshi Ka Talab , Sitapur Road , Lucknow.
Because & Nature : as per claim form ' Hindi "The FIR also states same in brief. In English "subject car was preceded by a trailer. In attempt to overtake that (trailer), subject car moved ahead from left side; et cetera was seen parked there. To avoid that tractor, subject car was braked and steered rightward. It is revealed, then, it some unknown object below and the car overturned and rolled down into the ditch, there." Looking at the damaged subject car, this is justified."
So from this surveyor's report it is clear that the car was damaged and whatever has been said is justified. The surveyor has further said that IDV under the policy is of ₹ 60 lakhs and invoice value is ₹ 3,833,054/- less 10% depreciation and thereafter balance, the total loss assessment is ₹ 3,449,748/- thereafter directing the service it becomes ₹ 3,049,748/-. So this surveyor has assess the total loss at ₹ 1,349,748/-. The surveyor has stated that the following documents have been verified for the voyage in which this accident occurred. Gate pass of showroom for bringing in the vehicle from stockyard to showroom. Out register at the stockyard. The surveyor has further stated that trade certificate of the dealer is verified from original and found in order; attested photocopy enclosed. Chassis and engine numbers are verified physically also informed in order with those in invoice. So there is no discrepancy in this surveyor's report which was appointed by the insurance company and who submitted the report of the insurance company.
Thereafter the task was entrusted to some Er. Surendra Kumar who in his report submitted the date/time of accident as 26.08.2013 at about 9:30 PM. In the conclusion, Er. Surendra Kumar has submitted "detailed investigation revealed that the trade certificate in question was valid on the date of the accident but the car was not being used at the time of accident for trial run or showing it to some probable customer. It was being used for some other purpose. The insured had concealed the material fact just a cover of the loss of the insurance policy in question. Gate pass, stockyard register falsely prepared after the accident."
The surveyor did not show as to why the car was at the accident site? How did he come to know that gate pass and stockyard register has falsely been prepared and what was the evidence about it? So this report is only to reject the claim of the complainant and nothing else. The first survey reports is there and there was no reason to appoint another surveyor. It means that the insurance company may appoint surveyor again and again till they file the report what the insurance company wants.
This vehicle has been insured by the insurance company and there was no other vehicle which was insured with the same engine number and chasis number. One question arises as to when the invoice value was less under what circumstances the IDV Value was ₹ 60 lakhs? It is blunder on the part of the insurance company. When they are in the job of insuring the concerned vehicle, they were sleeping or they did not inspect the vehicle and also did not perused the invoice of the vehicle. So they are negligent in this way and it is deficiency of service on their part that they could not administer their job genuinely and honestly.
There is no evidence regarding accumulation of losses. There is no such entry in the insurance cover note. The opposite parties failed to prove this fact. When they insured the present vehicle, they are liable to pay the claim regarding the present vehicle.
In the repudiation letter the ground taken by the opposite parties is delay. Date and Time of accident is 26.08.2013 at 9:30 PM and the surveyor was appointed on 29.08.2013 and he visited the spot on 31.08.2013. On that day information has been given to the police which was mentioned in the surveyor's report. It has not been entered in GD and no FIR lodged because there was no loss of any life. The report has been received at the police station so it cannot be questioned that no information has been given to the concerned police station. Regarding the issue of delay as the information has been given to the police promptly and as per insurance company, information given to him on 29 August 2013. But as the surveyor has appointed on 29 August 2013, the information must have been given prior to this to the opposite parties. There is no such delay in giving information to the insurance company. In this regard we have to perused the following judgment of the Hon'ble Supreme Court.
In the case of Om Prakash Vs Reliance Gen Insurance and Another; SCC (2017) 9 SCC 724, Hon'ble Supreme Court has held, "it is common knowledge that the person who has lost his vehicle may not straight way go to the insurance company to claim compensation. At first, he will make efforts to trace the vehicle. It is true that the owner has to intimate the insurer immediately after the theft of the vehicle. However, this condition should not bar settlement of genuine claims, particularly when the intimation or submission of documents is due to unavoidable circumstances. The decision of the insurer to reject the claim has to be based on the grounds. Rejection of the claims on purely technical grounds in the mechanical manner will result in loss of confidence of policyholders in the insurance industry. If the reason for delay in making a claim is satisfactorily explained, such a claim cannot be rejected on the ground of delay. It is also necessary to state here that it would not be fair and reasonable to reject the genuine claims which had already been verified and found to be correct by the investigator. The condition regarding the delay shall not be a shelter to repudiate the insurance claims which have been otherwise proved to be genuine. It needs no inference that the Consumer Protection Act aims at providing better protection of the interest of consumers. It is beneficial legislation that it deserves liberal construction. This laudable objective should not be forgotten while considering the claims made under the Act."
In the case of Kamlesh vs Shriram Gen Insurance Company Ltd, (2020)19 , Supreme Court Cases 456 , the Hon'ble Supreme Court has held , "We have gone through the policy in question. Under the caption "conditions" which are part of the Policy, the relevant condition states:-
"1. Notice shall be given in writing to the Company immediately upon the occurrence of any accidental loss or damage in the event of any claim and thereafter the insured shall give all such information and assistance as the Company shall require. Every letter claim writ summons and/or process or copy thereof shall be forwarded to the Company immediately on receipt by the Insured.
Notice shall also be given in writing to the Company immediately the Insured shall have knowledge of any impending prosecution, inquest or fatal inquiry in respect of any occurrence which may give rise to a claim under this Policy. In case of theft or criminal act which may be the subject of a claim under this Policy the Insured shall give immediate notice to the police and co-operate with the Company in securing the conviction of the offender."
9) The aforesaid condition has two limbs:-
i) Notice shall be given in writing to the Company immediately upon the occurrence of any accidental loss or damage; and
ii) In case of theft or criminal act which may be the subject of a claim under this Policy, the Insured shall give immediate notice to the police.
The second limb contemplates issuance of immediate notice to the police only in cases of theft or criminal act. In the event of an occurrence of any accidental loss or damage, the condition does not contemplate issuance of any notice to the police.
10) The case that the appellant came up with was of an accidental loss, and, therefore, if no immediate notice was issued to the police, there was no infraction on part of the appellant. The accident had occurred during the night of 1 st and 2nd June, 2009 and the intimation was given to the respondent on 3rd of June, 2009. In our view, the notice was not delayed on any count and did satisfy the requirements contemplated by the conditions in the policy.
11) The decision of this Court in Amalendu Sahoo (supra) had dealt with fact situation where, in violation of the terms of the policy, the vehicle in question was being used for hire and, therefore, the guidelines, as set out in para 8 of the order impugned herein were referred to and relied upon. As there was no violation on part of the appellant, the principle on the basis of which the admissible claim could be reduced, does not apply.
12) In our view, there was thus no reason for the National Commission to hold that there was any violation of the requisite conditions on part of the appellant and there was no justification to reduce the claim to the extent of 60% of the IDV of the vehicle.
The conclusions drawn and the directions issued by the State Commission, in our view, were quite correct and did not call for any interference.
13) We, therefore, allow this appeal, set aside the view taken by the National Commission and restore the order dated 11.08.2015 passed by the State Commission."
So we come to conclusion that there is no delay in giving information to the insurance company and any claim cannot be rejected on technical grounds only. The insurance company was unable to prove that this vehicle was not damaged in the said accident. In this case the insurance company just acted like an investigator of the police department. The insured has given every information to the surveyor and the surveyor has admitted it. So the grounds of repudiation is not genuine. The opposite party could not prove that why did he Insure the vehicle at IDV of ₹ 60 lakhs. So this shows carelessness on the part of the opposite parties. They, to conceal their mistake, appointed surveyor again and again for getting a report according to their wishes.
So after perusal of all the pleadings and surveyor's report we are of the view that the complainant is entitled for the following reliefs.
The complainant is entitled to get ₹ 60 lakhs ( as the opposite parties charged premium on this amount so they are liable to pay this amount irrespective of the invoice) with interest at a rate of 12% per annum from 29.08.2013 from the opposite parties jointly and severally if paid within 30 days from the date of judgment of this complaint case otherwise the rate of interest shall be 15% per annum from 29.08.2013 till the date of actual payment.
The complainant is entitled to get ₹ 10 lakhs towards financial losses and mental agony from the opposite parties jointly and severally with interest at a rate of 12% per annum from 29.08.2013 from the opposite parties jointly and severally if paid within 30 days from the date of judgment of this complaint case otherwise the rate of interest shall be 15% per annum from 29.08.2013 till the date of actual payment.
The complainant is entitled to get ₹ 10 lakhs towards compensation on account of delay in settling the claim from the opposite parties jointly and severally with interest at a rate of 12% per annum from 29.08.2013 from the opposite parties jointly and severally if paid within 30 days from the date of judgment of this complaint case otherwise the rate of interest shall be 15% per annum from 29.08.2013 till the date of actual payment.
If the order is not complied with, within 30 days from the date of this judgment, the complainant may file execution application against the opposite parties in this court.
The complaint is allowed accordingly.
ORDER The complaint is allowed.
1- The opposite parties are directed jointly and severally to pay to the complainant ₹ 60 lakhs (as the opposite parties charged premium on this amount so they are liable to pay this amount irrespective of the invoice) with interest at a rate of 12% per annum from 29.08.2013 if paid within 30 days from the date of judgment of this complaint case otherwise the rate of interest shall be 15% per annum from 29.08.2013 till the date of actual payment.
2- The opposite parties are directed jointly and severally to pay to the complainant ₹ 10 lakhs towards financial losses and mental agony with interest at a rate of 12% per annum from 29.08.2013 if paid within 30 days from the date of judgment of this complaint case otherwise the rate of interest shall be 15% per annum from 29.08.2013 till the date of actual payment.
3- The opposite parties are directed jointly and severally to pay to the complainant ₹ 10 lakhs towards compensation on account of delay in settling the claim with interest at a rate of 12% per annum from 29.08.2013 if paid within 30 days from the date of judgment of this complaint case otherwise the rate of interest shall be 15% per annum from 29.08.2013 till the date of actual payment.
4- If the judgment is not complied with, within 30 days from the date of this judgment, the complainant may file execution application against the opposite parties in this court.
The stenographer is requested to upload this order on the Website of this Commission today itself.
Certified copy of this judgment be provided to the parties as per rules.
(Vikas Saxena) (Rajendra Singh) Member Presiding Member Judgment dated/typed signed by us and pronounced in the open court. Consign to record. (Vikas Saxena) (Rajendra Singh) Member Presiding Member Dated: 4.1.2024 JafRi, PA I Court 2 [HON'BLE MR. Rajendra Singh] PRESIDING MEMBER [HON'BLE MR. Vikas Saxena] JUDICIAL MEMBER