State Consumer Disputes Redressal Commission
Rajbir Singh vs Icici Lambard General Insurance Co. Ltd on 10 May, 2022
Daily Order STATE CONSUMER DISPUTES REDRESSAL COMMISSION, U.T., CHANDIGARH Complaint case No. : 30 of 2021 Date of Institution : 14.12.2021 Date of Decision : 10.05.2022 Rajbir Singh son of Sh.Jasbir Singh resident of House No.221, Sector 21-A, Chandigarh (UT). ...Complainant V e r s u s ICICI Lombard General Insurance Co. Ltd. through its Chairman cum Managing Director, having its Regd./Regional Office at 4th floor, The Statement, Plot No.149, Industrial Area, next to Hometel Hotel, Chandigarh, 160002 BMW Krishna Automobiles Chandigarh, 125 Industrial Area, Phase l, Chandigarh, 160002 through its Managing Director/Proprietor ....Opposite parties BEFORE: JUSTICE RAJ SHEKHAR ATTRI, PRESIDENT. MRS. PADMA PANDEY, MEMBER.
MR.RAJESH K. ARYA, MEMBER.
Present:-
Sh.Rajbir Singh, Complainant in person.
Er.Sandeep Suri, Advocate for opposite party no.1.
Sh.Jagvir Sharma, Advocate for opposite party no.2.
PER JUSTICE RAJ SHEKHAR ATTRI, PRESIDENT The instant complaint has been filed by above named complainant under Section 47 (1) (a) & (ii) of the Consumer Protection Act, 2019 (in short the CPA 2019) alleging that opposite party no.1-( ICICI Lombard General Insurance Co. Ltd.) got him entered into an unfair contract of insurance, which has caused a significant change in his rights, as it has imposed unreasonable charges, obligations, conditions and to cause him disadvantage.
The other facts in brief are that the complainant being owner of car BMW 320d, bearing Registration No. PB13 BL 7457 (manufactured in 2016 and registered in 2017, chassis No. WBA8C7707H5C36037 and engine No.0121Y092), got it insured from opposite party no.1-ICICI LOMBARD, vide Policy No.3001/221951247/00/B00, Annexure C-2, for the period from 08.06.2021 to 07.06.2022. Insured Declared Value (IDV) of the said vehicle was fixed at Rs.25,87,000/- with zero depreciation. An amount of Rs.1,06,183/- was paid by the complainant to opposite party no.1 towards premium.
It has been stated that the said vehicle met with an accident on 07.09.2021 near the ITBP Panchkula, wherein it was totally damaged. DDR No.12 dated 07.09.2021, Annexure C-3 was got registered with the Police and at the same time, opposite party no.1 was also informed regarding the said accident. Since, the vehicle in question was under insurance cover, as such, the complainant lodged claim no. MOT11370836 with opposite party no.1. The damaged vehicle was towed to the workshop of opposite party no.2. Surveyor appointed by opposite party no.1 visited the premises of opposite party no.2 on 07.09.2021 and he inspected the vehicle in question. It is alleged that the surveyor took signatures of the complainant on some blank papers, on the ground that the same are required for lodging of claim with opposite party no.1. On inspection, the surveyor declared the vehicle in question as "total loss" whereafter, opposite party no.1 assured the complainant that IDV of the vehicle will be paid to him within 15 days. However, instead of making payment of IDV aforesaid, opposite party no.1 started pressing the complainant to take an amount of Rs.18 lacs against the IDV of Rs.25,87,000/- to which he refused.
It has also been averred that thereafter, the opposite parties in connivance with each other adopted unfair trade practice on following grounds;-
Imposing of unreasonable charges of Rs.1,04,999/- on the complainant viz a viz survey/assessment/estimate of loss suffered by the vehicle in question;
Offering a vehicle with Uttar Pradesh registration number; and Levying of parking charges to the tune of Rs.500/- per day for the period, the said vehicle was parked in the premises of opposite party no.2 Apart from it, the package policy (Annexure R-1) under condition no.3 authorizes the company to replace the damaged vehicle with the old one, which is highly unfair.
By stating that opposite party no.1 failed to make payment of IDV to the complainant despite the fact that the vehicle in question had been declared as total loss and on the other hand, opposite party no.1-ICICI by getting him entered into an unfair contract of insurance which has caused a significant change in the rights of the complainant and has imposed unreasonable charge, obligation and condition to his rights, just with a view to cause him disadvantage, following prayer has been made by the complainant in his complaint:-
"......OP No.1 be directed to disburse Rs.25,87000/- (Rupees Twenty five lac eighty seven thousand)i.e. (Insured Declared value) along with interest @18% p.a. with effect from the date of lodging of claim by the complainant i.e. 07.09.2021:
OP's be directed to pay Rs.1,04,999/- unreasonable charges imposed on the complainant as well as parking charges i.e. Rs.50,000/- (approximately at the time of filing the present complaint) along with interest @ 18% p.a. from the date of lodging of claim by the complainant i.e. 07.09.2021;
OP' No.1 be directed to pay compensation of Rs.1,00,000/- (Rupees one lac) on account of unfair trade practices and malpractices on account of making false assurances with regard to settling of claim by way of disbursement of requisite amount.
OP' No.1 be directed to pay Rs.10,00000/- (Rupees ten lac) as damages and compensation on account of mental agony/torture and physical harassment to the complainant on account of deficiency in services and making false assurances to the complainant on various occasions;
Opposite Party be directed to pay Rs.1,10,000/- (One lac ten thousand) towards litigation charges;
Any other relief which this Hon'ble Forum may deem fit in facts and circumstances of the present complaint............"
In the reply filed by opposite party no.1, while admitting factual matrix of the case regarding issuance of the insurance policy in respect of the vehicle in question, as per details given in the main complaint by the complainant, it has been stated as under:-
that since only an amount of Rs.1,06,183/- has been paid by the complainant towards premium for getting the vehicle insured as such this Commission is not vested with pecuniary jurisdiction to entertain and decide this complaint;
that only the District Commission has pecuniary jurisdiction to entertain and decide this complaint;
that the provisions of Section 47 of the CPA 2019 are not applicable to the present case, as no unreasonable charge, obligation or condition has been created as far as the insurance policy in question is concerned;
that as per terms and conditions of the policy, vide email dated 08.11.2021 the complainant was offered replacement of the vehicle with a higher model/later year than that of the insured vehicle but he failed to give any response;
that despite making number of requests through emails dated 09.11.2021, 21.12.2021, 12.01.2022 and 11.02.2022, the complainant failed to provide the proof of purchase of the vehicle in question and other required documents for processing his claim;
that no unreasonable charges were ever imposed upon the complainant and if opposite party no.2 has imposed any charges towards making estimate of repairs then opposite party no.1 cannot be held responsible for it;
that if the vehicle was taken by the complainant to opposite party no.2 that has no relation whatsoever with opposite party no.1;
that the insurance company is still investigating the present claim and the same is being considered as a fraudulent claim;
that the insurance company is further investigating the insurance as the complainant has obtained the policy in question by inflating declaration of IDV of the vehicle in question; and that the company has also taken up the matter with the concerned taxation authorities in order to ascertain the actual cost price of the purchase of the vehicle by the complainant.
While denying the remaining averments made by the complainant in his complaint, prayer has been made by opposite party no.1 to dismiss the complaint with cost.
Opposite party no.2 in its reply stated that since the vehicle in question has been parked in the premises of opposite party no.2 as such it is entitled to charge parking charges; and that the complainant was informed to make payment of Rs.1,04,999/- towards preparation of estimate of repairs of the damaged vehicle but he failed to make payment of the said amount. Remaining averments have been denied being wrong.
In the rejoinder filed, the complainant reiterated all the averments contained in his complaint and controverted those of opposite parties no.1 and 2.
On 27.04.2022, Counsel for opposite party no.1 placed on record copy of Motor Final Survey Report dated 12.03.2022, Annexure R-2, alongwith affidavit of Kiran Kumar, Authorized Surveyor, which has been taken on record.
The parties led evidence in support of their case.
We have heard the parties and scanned the material available on the record, including the written arguments.
Jurisdiction of this Commission:-
It may be stated here that the provisions of Section 47 of Consumer Protection Act, 2019 (under which this complaint has been filed) speak about the jurisdiction of this Commission. It is necessary to reproduce Section 47 of CPA 2019 as under:-
".........47. (1) Subject to the other provisions of this Act, the State Commission shall have jurisdiction--
to entertain--
complaints where the value of the goods or services paid as consideration, exceeds rupees one crore, but does not exceed rupees ten crore: Provided that where the Central Government deems it necessary so to do, it may prescribe such other value, as it deems fit;
complaints against unfair contracts, where the value of goods or services paid as consideration does not exceed ten crore rupees; appeals against the orders of any District Commission within the State...
xxxxxx........."
A bare perusal of Section 47 (1) (a) (ii) provides that the State Commission shall also have the jurisdiction to entertain and decide the complaints against unfair contracts, where the value of goods or services paid as consideration does not exceed ten crore rupees.
Thus, the moot question which falls for deciding jurisdiction of this Commission in the present case is, as to whether, the complainant has been able to prove that he has been enthralled under the "unfair contract" or not? For this, first we have to refer to the definition of "unfair contract" provided under Clause 2 (46) of CPA 2019 as under:-
(46) "unfair contract" means a contract between a manufacturer or trader or service provider on one hand, and a consumer on the other, having such terms which cause significant change in the rights of such consumer, including the following, namely:--
(i) requiring manifestly excessive security deposits to be given by a consumer for the performance of contractual obligations; or
(ii) imposing any penalty on the consumer, for the breach of contract thereof which is wholly disproportionate to the loss occurred due to such breach to the other party to the contract; or
(iii) refusing to accept early repayment of debts on payment of applicable penalty; or
(iv) entitling a party to the contract to terminate such contract unilaterally, without reasonable cause; or
(v) permitting or has the effect of permitting one party to assign the contract to the detriment of the other party who is a consumer, without his consent; or
(vi) imposing on the consumer any unreasonable charge, obligation or condition which puts such consumer to disadvantage...."
In the present case, in para no.2 of the preliminary objections of opposite party no.2, it is coming out from the record that, while placing reliance on one email dated 10.09.2021 the complainant was informed by opposite party no.2 that the vehicle in question has been received by it for repair under insurance claim from opposite party no.1-ICICI Lombard and that Mr.Kiran Kumar Surveyor has been deputed for inspection. However, at the same time, it is also evident that vide email dated 13.11.2021 (at page 31 of the paper book), opposite party no.2 asked the complainant to make payment of parking charges @Rs.500/- per day. When during arguments, the complainant argued that since the insured vehicle was parked in the premises of opposite party no.2, on the directions of opposite party no.1 and also since the vehicle in question being insured, as such, any estimate cost for repairs was to be borne by the insurance company, Counsel for opposite party no.1 vehemently argued that the insurance company is not liable to pay the said charges andthat the same shall be borne by the complainant only. It is significant to mention here that opposite party no.1 has failed to produce on record any document and also failed to refer any condition contained in the insurance policy whereform it could be proved that parking charges and estimate cost, during the period the vehicle is landed in the workshop, on the directions of the insurance company, shall be borne by the insured. In our considered opinion, the act of thrusting the said charges upon the complainant-insured, amounts to imposing upon the complainant unreasonable charge, obligation and condition which had put him to disadvantage. The case of the complainant thus falls under Section 2 (46) (vi) of CPA 2019.
Secondly, opposite party no.1 has itself disputed the contract/terms and conditions of the insurance policy i.e. the contract of insurance, qua IDV, by stating in para no.9 of its written reply that the claim raised by the complainant is the result of fraudulent insurance contract obtained by way of wrong declaration of IDV to claim undue benefit. Thus, the contract itself has been challenged by opposite party no.1 meaning thereby that the insurance company by way of alleging with regard to wrong declaration of IDV by the complainant, wanted to cause significant change in the rights of the complainant. Thus, here also, this complaint meets the provisions of Section 2 (46) of CPA 2019.
Thirdly, and more important, admittedly, under the garb of condition no.3 of the insurance policy, opposite party no.1 offered replacement of the damaged/total loss vehicle with a higher model/later year, which had been registered in Uttar Pradesh and, in case, had the said offer been accepted, the complainant was required to pay a hefty amount towards its transfer of registration from one State to another and difference of amount in the cost of the vehicle being of higher model/later year. This act and conduct of opposite party no.1 also amounts to effect of permitting opposite party no.1 to assign the contract to the detriment of the complainant, without his consent and also imposing upon him unreasonable charge, obligation and condition to put him to disadvantage. Thus, this act and conduct of opposite party no.1 also covered the provisions of Section 2 (46) (v) and (vi) of CPA 2019 which gives reason to this Commission to say that it was a case of 'unfair contract'. In this view of the matter, objection taken by opposite party no.1 regarding jurisdiction of this Commission stands rejected and it is held that this complaint is maintainable under Section 47 (1) (ii) of CPA 2019.
Replacement of vehicle offered by opposite party no.1:-
Whether the complainant was bound to accept replacement of vehicle offered by opposite party no.1 or not is the next question which needs determination by this Commission?
To wriggle out of the situation, Counsel for opposite party no.1 vehemently contended that as per condition No.3 of the insurance policy, since the insurance company was at liberty either to repair, reinstate or replace the vehicle or part thereof and/or its accessories or may pay in cash the amount of the loss or damage, as such, the complainant was offered replacement of the vehicle vide email dated 08.11.2021 but he failed to give any response to it. We have considered this contention and are of the considered view that the same does not merit acceptance for the reasons to be recorded hereinafter.
First we will like to reproduce relevant condition no.3 of the insurance policy, which reads as under:-
"3. The Company may at its own option repair reinstate or replace the vehicle or part thereof and/or its accessories or may pay in cash the amount of the loss or damage and the liability of the Company shall not exceed:-
For total loss/constructive total loss of the vehicle -the Insured's Declared Value (IDV) of the vehicle (including accessories thereon) as specified in the Schedule less the value of the wreck.
For partial losses, i.e. losses other than Total Loss/Constructive Total Loss of the vehicle actual and reasonable costs of repair and/or replacement of parts lost/damaged subject to depreciation as per limits specified....."
Perusal of aforesaid clause reveals that the insurance company was having option either to repair reinstate or replace the vehicle or part thereof and/or its accessories or may pay in cash the amount of the loss or damage and the liability of the Company shall not exceed the IDV in case of total loss.However, it is an admitted case of opposite party no.1 that the complainant was offered replacement of the vehicle with a higher model/later year than that of the insured vehicle. It may be stated here that offering the vehicle of higher model/later year than that of the insured vehicle in itself was violation of terms and conditions of the contract on the part ofopposite party no.1. The complainant, who has appeared in person, has vehemently contended that the vehicle so offered by opposite party no.1 by way of replacement was of higher model/later year was not accepted by him because of two reasons; firstly because it was offered on a very high rate being higher model; and secondly it had been registered in Uttar Pradesh and in case the said offer would have been accepted, the complainant would have required to pay a hefty amount towards its transfer of registration from one State to another. These contentions have also been raised by the complainant in his rejoinder. The opposite parties did not controvert the said contentions by way of filing objections/reply to the said rejoinder, to prove to the contrary, meaning thereby that they have nothing to say in the matter. Even otherwise, perusal of condition 3 a. of the insurance policy reveals that it has been agreed between the parties that the liability of the company shall not exceed the IDV of the vehicle as specified in the schedule less that value of wreck/salvage, over and above the fact that it was also having an option to repair, reinstate or replace the vehicle or part thereof and/or its accessories or may pay in cash the amount of the loss or damage. Plain reading of the said condition goes to reveal that it was not made a condition precedent that the company will only repair, reinstate or replace the vehicle or part thereof and/or its accessories, in case any accident took place and it is declared as total loss. Thus, once it was also mentioned in the said condition that the company may pay in cash the amount of loss or damage and its liability shall not exceed the IDV of the vehicle as specified in the schedule less the value of wreck, as such, the complainant was also at liberty to accept the option either to get the IDV of the vehicle in question or to get the vehicle in question replaced with the same model/made, in case of total loss of the insured vehicle.
Furthermore, this condition in itself could be termed as an ambiguous condition. The Hon'ble Supreme Court of India in Civil Appeal No. 4139/2020 decided on April 25, 2022 (Haris Marine Products Versus Export Credit Guarantee Corporation (ECGC) Limited held that an ambiguous term in an insurance contract ought to be construed harmoniously by reading it in its entirety and if still vague the rule of contra prof contra proferentem must be applied and the term must be interpreted against the drafter of the policy, i.e. in favour of the insured.
Opposite party no.1 has failed to place on record any evidence to prove that the complainant was bound to get the insured vehicle repaired/replaced, in case, it met with an accident and declared as Total Loss (TL/constructive Total Loss (CTL) by the surveyor. Thus, in our considered opinion, the respondent was entitled for getting refund of the amount equal to the IDV of the vehicle in question less the excess clause, as it was a case of total loss because of the accident aforesaid. By not making payment of the IDV amount to the complainant, despite the fact that the vehicle in question was declared by the surveyor, as total loss, the opposite party no.1 was deficient in providing service and also adopted unfair trade practice.
In this view of the matter, it can easily be said that there is a material violation on the part of opposite party no.1 as it failed to offer replacement of the vehicle of the same make and model. At the same time, it is also a case of unreasonable charge, obligation and condition imposed upon the complainant, which were out of the purview of terms and conditions contained in the insurance policy because had he accepted the said replacement offer, he would have caused twin loss; firstly because of its higher price on account of higher model; and secondly he would have to shell out hefty amount towards transfer of its registration from one State to another. As such, the complainant was not bound to accept the same.
Proof of purchase of the vehicle in dispute to be submitted by the complainant:-
Another contention raised by opposite party no.1 to wriggle out of the situation was that the claim of the complainant could not be processed in time, because he failed to provide the proof of purchase of the vehicle in question. We have considered the said contention but did not agree with the same due to the reasons stated hereinafter.
It is significant to mention here that perusal of record reveals that vide email dated 11.10.2021 (at page 33 of the reply of OP No.1), one Kiran Kumar, Surveyor and Loss Assessor requested the complainant to provide the details of payments made for purchase of the said vehicle. It is coming out from the record that vide email dated 13.10.2021 (at page 32 of paper book), the complainant shared the relevant documents pertaining to purchase of the said vehicle and it was also informed that the vehicle in question had been purchased for an amount of Rs.27.10 lacs from Soma Motors. Perusal of record further reveals that after receipt of email dated 13.10.2021 from the complainant, opposite party no.1 was satisfied and as such sent emaildated 08.11.2021, whereby it was informed to him that on the basis of survey report, the insurance company is offering settlement of his claim on replacement basis and he was asked to confirm his selection of vehicle as replacement. Relevant contents of the said email dated 08.11.2021 are reproduced hereunder:-
Date: 11-08-2021 Mr Rajbir Singh Barnala Road Subject: Approval of Claim no. MOT11370836 Under Policy No. 3001/221951247/00/B00 Dear Sir, We write in reference to the claim no. MOT11370836 registered under the Policy no. 3001/221951247/00/B00 covered from 08-JUNE-2021 till 07-JUNE-2022 with the company.
We like to state that as per the claim intimation received we have reviewed the claim and basis survey report we would like to offer settlement of the claim on a "Replacement basis".
Please note that as per the policy terms The Company may at its own option repair, reinstate or replace the vehicle or part thereof and/or its accessories or may pay in cash the amount of the loss or damage and the liability of the Company shall not exceed Therefore with this communication we request you to kindly confirm on selection of vehicle as replacement.
We affirm that ICICI Lombard GIC Ltd. at all the times acts with diligence, in good faith, and in no manner prejudicial to the interest of its insured.
Regards...".
Thus, the contents of the said email dated 08.11.2021 are sufficient to say that the insurance company was satisfied with the documents provided by the complainant in respect of his claim andit was only thereafter that his claim was processed, as a result whereof, he was offered replacement of the vehicle, yet, with a higher model/later year and with registration number of some other State, which was not accepted by him, for the reasons given above.
Even otherwise, opposite party no.1 has failed to convince this Commission as to why no efforts were made by it to complete the said process of asking the proof of payment in respect of the vehicle in question, at the time of receipt of the premium and issuance of the insurance policy in question on 08.06.2021. Thus, in the present case, if opposite party no.1 ignored to seek such information from the complainant, at the time of issuance of insurance policy, as such, now it cannot be allowed to defeat his claim on this ground, especially, when his case of total loss was approved by the surveyor. In this view of the matter, contention raised by opposite party no.1 in this regard, has no legs to stand and is accordingly rejected.
Wrongful declaration of IDV to claim undue benefit:-
To defeat the claim of the complainant, it was also contended by Counsel for opposite party no.1 that the complainant had wrongly exaggerated the IDV to claim undue benefit and that the insurance company is investigating the same.
We are surprised to note, as to how, once the insurance policy in question had been issued in favour of the complainant on receipt of huge amount of premium to the tune of Rs.1,06,183/-, the insurance company like opposite party no.1 can raise such a ground at the time of settling his claim. This exercise of alleged investigation, as to whether, the complainant had exaggerated the IDV or not was to be carried before issuance of the policy in question and not at the time of processing his claim.Once, the insurance policy in question had been issued by opposite party no.1 at a particular IDV, on receipt of the premium from the insured, later on, it cannot wriggle out of the claim filed by the insured on the ground that IDV was on the higher side. It is a case, wherein, it can easily be said that opposite party no.1 is only interested in earning the premiums but is not keen and found to be evasive to discharge its liability. It has been noticed by this Commission that in large number of cases that the insurance companies make the insured to fight for getting their genuine claims. In New India Assurance Company Limited Versus Smt. Usha Yadav & others 2008(3) R.C.R. (Civil) 111, under similar circumstacnes, the Hon'ble Punjab & Haryana High Court expressed its anguish and observed as follows:-
Furthermore, it has also not been clarified by opposite party no.1 as to why they were ready to offer replacement of the vehicle with different make/model, vide email dated 08.11.2021, if they were doubting the authenticity of declaration of IDV by the complainant. It is important to mention here that not even a single document has been placed on record in the shape of evidence to prove that the complainant has exaggerated the IDV at the time of obtaining the insurance policy in respect of his vehicle. Had there been any doubt in that regard, opposite party no.1 should not have issued the policy in question but it is not so.
It is also relevant to mention here that Section 19 of the General Insurance Business (Nationalization) Act, 1972 states that it shall be the duty of every Insurance Company to carry on general insurance business so as to develop it to the best advantage of the community. The denial of claim of the complainant to pay the IDV, as his vehicle has been declared total loss, is utterly arbitrary on the grounds raised by opposite party no.1. It is mere an excuse to escape liability and is not bonafide intention of opposite party no.1. In this view of the matter, plea taken by opposite party no.1 in this regard stands rejected.
A bare perusal of the record reveals that the surveyor and loss assessor after investigation, vide its report dated 12.03.2022, Annexure R-2 assessed the net liability of the insured to the tune of Rs.19,75,000/- after deducting the amount of Rs.6,10,000/- as wreck value of the total loss vehicle against IDV of Rs.25,87,000/-. An amount of Rs.2000/- has been deducted towards excess clause. This fact in itself is sufficient to say that the claim has been found to be genuine. In our considered opinion, it will not be reasonable to reject genuine claim which had already been verified by the Investigator. In Om Prakash Vs. Reliance General Insurance and ANR., [Civil Appeal No. 15611 of 2017 arising out of SLP (C) No.742 of 2015], decided on October 4, 2017, the Hon'ble Supreme Court has held as under:-
".....It is also necessary to state here that it would not be fair and reasonable to reject 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 emphasis that the Consumer Protection Act aims at providing better protection of the interest of consumers. It is a beneficial legislation that deserves liberal construction. This laudable object should not be forgotten while considering the claims made under the Act...."
In the present case also, it is evident from the surveyor report, that the surveyor did not question the genuineness of the accident. Thus, when the surveyor itself has assessed the loss after taking into account the IDV of vehicle @ Rs.25,87,000/-, meaning thereby the fact that the loss/damage to the vehicle as total loss has not been disputed, as such, it can be said that the claim raised is not fabricated and false. By not paying the amount of Rs.25,87,000/-, less Rs.2000/- as excess clause, to the complainant, opposite party no.1 indulged into unfair trade practice and was also deficient in providing service. Thus, in view of peculiar facts and circumstances of this case, it is held that opposite party no.1 is liable to make payment of IDV i.e. Rs.25,87,000/- less Rs.2000/- as excess clause, to the complainant.
Parking charges and estimate cost:-
As far as levying of parking charges and estimate cost by opposite party no.2 is concerned, it may be stated here that opposite parties no.1 and 2 have failed to prove by placing on record any evidence to the effect that the complainant was liable to pay the said charges, especially, when his genuine claim was lingered on by the insurance company, in the manner explained. It is not the case of the opposite parties that the surveyor had assessed the loss of the vehicle on "repair basis" but the complainant did not allow opposite party no.2 to carry out the necessary repairs. Whereas, on the other hand, admittedly, the vehicle in question had been declared total loss and it was the duty of opposite party no.1 to clear the wreck of the damaged vehicle and make payment of IDV to the complainant but it miserably failed to do so and lingered on the matter, on the bald grounds that the IDV has been inflated, as such, its investigation is going on; and that the complainant did not provide the proof of payment for purchase of the vehicle in question. These grounds have already been discussed above in detail by this Commission and have been found to be vague. In this view of the matter, we are of the considered view that, once the vehicle was insured with opposite party no.1, the liability of any charges arising out after accident of the said vehicle, especially, when it has been declared as total loss by the surveyor, will rest with the insurance company and not the insured. Furthermore, it is coming out from the record that opposite party no.2 vide email dated 10.09.2021 (reproduced in its reply itself) had informed the complainant that it has received the vehicle in question under insurance claim from opposite party no.1. Thus, under these circumstances, when the vehicle in question was in the custody of opposite party no.2 under the directions of opposite party no.1, the complainant could not have removed the same, on its own, till any decision was taken by the insurance company, for its final disposal. In this view of the matter, it is held that the complainant is not liable to pay the parking charges as well as the estimate cost to opposite party no.2. It is therefore made clear that in case any such charges/estimate cost has been received by opposite party no.2, it shall return the same to the complainant, within a period of 15 days from the date of receipt of a certified copy of this order, failing which the said amount shall entail interest @9% p.a. from the date of receipt of the said amount till realization.
Genuine claim of the complainant has not been considered by opposite party no.1. It is not uncommon that the insurance companies, for issuance of policies, issue lucrative offers and incentives, so as to attract maximum number of citizens. However, the moment any insured raises genuine claim, seldom it is accepted by the insurance company and every effort is being made to reject it on one or the other technical or flimsy ground, giving rise to such kind of avoidable litigation. Such insurance companies, like opposite party no.1 always keep their consumers misinformed or misguided and trap them in ambiguous contracts just with a view to defeat their claim at later stage. At the time of accepting premiums, there would be no technical grounds in their schemes but the moment the insured raised his claim, it is noticed that the same is repudiated or lingered on, on technical and super technical grounds. Under these circumstances, no choice is left with the insured than to knock the doors of court and that is how, this kind of avoidable litigation is being generated. The basic flaw lies with the insurance companies themselves, while providing deficient service to their customers, as has been done in the present case by opposite party no.1. As such, the said act and conduct of opposite party no.1 needs to be deprecated.
For the reasons recorded above, this complaint stands partly allowed with costs, against the insurance company-Opposite Party No.1, as under:-
To reimburse/pay claim amount to the tune of Rs.25,85,000/- (Rs.25,87,000/- IDV less Rs.2000/- as excess clause) to the complainant alongwith interest @9% p.a. from 08.11.2021 i.e. the date when offer for settlement was made to the complainant, on the basis of survey report.
To pay compensation to the tune of Rs.75,000/- for causing mental agony and harassment to complainant.
To pay cost of litigation to the tune of Rs.35,000/-to the complainant.
This order be complied within a period of 30 days from the date of receipt of a certified copy of this order failing which the aforesaid entire amount shall further entail interest @12% p.a. from the date of passing of this complaint till realization.
However, the complainant shall assist opposite party no.1, if required, to transfer the vehicle, which has been declared total loss, in the name of the insurance company and transfer charges, if any, will be borne by opposite party no.1 only.
Complaint against opposite party no.2 is dismissed with no order as to cost, subject to directions given in para no.20 above.
Certified Copies of this order be sent to the parties, free of charge.
The file be consigned to Record Room, after completion.
Pronounced.
10.05.2022 Sd/-
[JUSTICE RAJ SHEKHAR ATTRI] PRESIDENT Sd/-
(PADMA PANDEY) MEMBER Sd/-
(RAJESH K. ARYA) MEMBER Rg.