State Consumer Disputes Redressal Commission
Bajaj Allianz General Insurance Co. ... vs Amritpal Singh on 24 January, 2020
FIRST ADDITIONAL BENCH
STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
PUNJAB, CHANDIGARH.
First Appeal No.737 of 2017
Date of institution : 25.10.2017
Date of decision : 24.01.2020
1. Bajaj Allianz General Insurance Company Ltd., Regd. & Head
Office: G E Plaza, Airport Road, Yerwada, Pune-411006 and at
SCO 156-159, 2nd Floor, Sector-9, Chandigarh through Navjeet
Singh, Senior Executive Legal.
2. Bajaj Allianz General Insurance Company Ltd., Claims
Department, SCO 14, 4th Floor, the Urban Estate, Sector 5,
Panchkula, through Navjeet Singh, Senior Executive Legal.
3. Bajaj Allianz General Insurance Company Ltd., Branch Office,
Ferozepur Road, Faridkot, through Navjeet Singh, Senior
Executive Legal.
....Appellants/Opposite Parties
Versus
Amritpal Singh S/o Inspector Singh, R/o V. Jeeta Singh Wala, Tehsil
Baghapurana, District Moga.
....Respondent/Complainant
First Appeal against the order dated
28.08.2017 of the District Consumer
Disputes Redressal Forum, Faridkot.
Quorum:-
Hon'ble Mr. Justice Paramjeet Singh Dhaliwal, President
Mr. Rajinder Kumar Goyal, Member
1) Whether Reporters of the Newspapers may be allowed to see the Judgment? Yes/No
2) To be referred to the Reporters or not? Yes/No
3) Whether judgment should be reported in the Digest? Yes/No Present:-
For the appellants : Sh. Aayush Goel, Advocate for Sh. Vishal Aggarwal, Advocate For the respondent : None.First Appeal No.737 of 2017 2
JUSTICE PARAMJEET SINGH DHALIWAL, PRESIDENT The instant appeal has been filed by the appellants/opposite parties against the order dated 28.08.2017 passed by District Consumer Disputes Redressal Forum, Faridkot (in short, "the District Forum"), whereby the complaint filed by the respondent/complainant, under Section 12 of the Consumer Protection Act, 1986, was allowed in the following manner:
Therefore, complaint in hand is hereby allowed. OPs are directed to pay ₹6,61,413/- i.e. insured value of the vehicle along with interest at the rate of 9% per annum from 3.11.2015, when they repudiated the claim of complainant till final realization. They are further directed to pay ₹5,000/- to complainant as compensation for harassment and mental agony suffered by him besides ₹3000/- as litigation expenses. Compliance of this order be made within one month of the receipt of the copy of the order, failing which complainant shall be entitled to proceed under Section 25 and 27 of Consumer Protection Act.
2. It would be apposite to mention that hereinafter the parties will be referred, as have been arrayed before the District Forum. Facts of the Complaint
3. Brief facts, as averred in the complaint, are that the complainant was owner of a car make Maruti Swift Dezire VDI, having Registration No.PB-29U-5962; which was got insured by him with the opposite parties for ₹6,61,413/-, vide Private Car Package Policy No.OG-16-1217-1801-00001779, by paying premium of ₹24,007/-. The said policy was valid for the period 30.04.2015 to 29.04.2016 against all types of risks. On 17.05.2015, the said car met with an accident near village Bhagta Bhai Ka, District Bathinda while trying to save a herd of stray cows, which suddenly came in front of the car; as a result of which the car struck against a road side tree and its window opened First Appeal No.737 of 2017 3 and complainant fell outside the car. Thereafter, the car struck against an electric pole, causing damage to occupants namely Jagseer Singh, who was sitting on front left hand seat, and brother of complainant Rajwinder Singh, who was sitting in the rear seat. Rajwinder Singh received severe injuries and died on the spot. Both of them were taken to Civil Hospital, Bhagta Bhai Ka by the persons gathered at the spot. The post mortem of dead body of Rajwinder Singh was conducted on 18.05.2015. Intimation of said accident was given to the police and DDR No.10 was recorded in P.S. Dialpura, District Bathinda. Intimation was also given to the opposite parties about the said accident. They appointed G. S. Sohal, as Surveyor; who inspected the damaged vehicle at Sandhu Automobiles Pvt. Ltd., Authorized Maruti Dealer and found that the damaged vehicle was a total loss and was not repairable. Thereafter, two representatives of the opposite parties visited the repairer's shop and the complainant and, after inspecting the vehicle, made thorough investigation. The complainant supplied all the claim papers i.e. Claim Form, copy of driving licence, RC, DDR, post mortem report, affidavit etc. to the surveyor; who assured that the claim would be paid shortly. However, the opposite parties failed to pay the claim amount to complainant, despite his repeated visits and requests. Rather they repudiated his claim, vide letter dated 03.11.2015, illegally and arbitrarily. Alleging deficiency in service on the part of the opposite parties, the complaint approached the District Forum seeking following directions to them:
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i) to pay the insured amount of ₹6,61,413/-, along with garage/parking charges of ₹300/- per day from 08.06.2015 as demanded by the Authorized Maruti Dealer;
ii) to pay ₹1,00,000/- as damages on account of deficiency in service on their part;
iii) to pay interest at the rate of 18% per annum on the above mentioned amount(s) from the date of loss i.e. 17.05.2015 till payment; and
iv) to pay ₹10,000/- as litigation expenses.
Defence of the Opposite Parties
4. Upon notice, the opposite parties appeared before the District Forum, raising preliminary objections that there was no deficiency in service on their part. The complaint involves complicated questions of law and facts; which cannot be decided in summary procedure. The Insurance Policy is a contract and both the parties are under obligation to obey/fulfil all the terms and conditions thereof. The complainant already filed petition before Permanent Lok Adalat, Moga; which was dismissed and thereafter the complaint before the District Forum was not maintainable. The complainant had not immediately intimated the opposite parties regarding occurrence of accident and rather gave intimation to them after a long period of 18 days, in violation of Clause-1 of the terms and conditions of the policy. The complainant is not entitled to any claim, as he concealed the material facts. On receipt of claim form dated 6.06.2015, the opposite parties appointed Sh. Gagandeep Singh as Investigator, who gave report dated 30.09.2015. Thereafter, case was got reinvestigated from First Appeal No.737 of 2017 5 Capital Risk Management Company, then from M/s ICS Assured Service Pvt. Ltd. and lastly from M/s JD Health Care Services Mohali. They reported that as per the insured, the car dashed/hit a tree, he fell outside and his brother and relatives were trapped inside the car. Insured had not sustained any major injury and produced fabricated medical document pertaining to the alleged injuries. It was further reported that damage to the vehicle was mainly on the front side bumper and its impact did not majorly affect the back portion of car. It was further reported that deceased Rajvinder Singh, who was aged 17 years as per PMR, was sitting on driver's seat and he was driving the vehicle. He was not having effective and valid driving licence at that time. It was further pleaded that on receipt of investigation report, the opposite parties asked complainant to provide the driving licence of deceased Rajwinder Singh along with original verification and explanation, vide letters dated 26.09.2015 and 15.10.2015, but the complainant failed to supply the same. As such, the claim of the complainant was repudiated, vide letter dated 03.11.2015. On merits, issuance of insurance policy for the vehicle, in question, was admitted. However, occurrence of accident in the manner as alleged by the complainant was denied and it was pleaded that false DDR was got lodged by the complainant, in order to avail undue benefit of insurance policy. It was further pleaded that the opposite parties deputed surveyor as per Section 64UM of Insurance Act to verify and assess the alleged loss. The surveyor conducted the survey and assessed the damage subject to terms and conditions of the policy. The liability of the opposite parties would not be more than the loss, as assessed by First Appeal No.737 of 2017 6 IRDA licensed surveyor, if the claim is admissible as per terms and conditions of the policy. Other pleas, as raised in preliminary objections, were reiterated and denying all other allegations levelled in the complaint, dismissal thereof was prayed.
Evidence of the Parties and Finding of the District Forum
5. The complainant, in support of his claim, tendered his own evidence his affidavit Ex.C-1, and copies of documents i.e. insurance policy Ex.C-2, DDR Ex.C-3, letter dated 04.12.2015 Ex.C-4 and repudiation letter dated 03.11.2015 Ex.C-5.
6. The opposite parties, in support of their defence, filed affidavit of Sh. Navjeet Singh, Assistant Manager, TP Claims Ex.OP-1, affidavit of Sh. Gagandeep Singh, Investigator Ex.OP-9, along with copies of documents i.e. certificate of insurance Ex.OP-2, investigation reports Ex.OP-3 to Ex.OP-5, final survey report Ex.OP-6, letter Ex.OP- 7 and application dated 28.10.2015 Ex.OP-8.
7. The District Forum, after going through the record and hearing learned counsel for the parties, allowed the complaint, vide impugned order. Hence, this appeal.
Contentions of the Parties
8. We have heard learned counsel for the appellants/opposite parties, as none appeared on behalf of the respondent/complainant at the time of arguments. We have also carefully gone through the records of the case.
9. Learned counsel for the appellants has vehemently contended that the complaint before the District Forum was not maintainable, as the complainant had already availed alternative First Appeal No.737 of 2017 7 remedy by way of filing petition before the Permanent Lok Adalat; which was dismissed as withdrawn after filing of written statement/reply by the appellants. It has been further contended that it was duly established from investigation reports and other record that the version of the complainant was false, as he was not driving the vehicle, in question. In fact, deceased Rajvinder Singh, who was aged just 17 years, was driving the car at the time of accident. During investigation, the complainant failed to explain the injuries allegedly suffered by him or even give their details, to correlate the same with the accident. If the complainant would have been driving the car, he would have sustained serious injuries and it was not possible of his falling outside the car. No medical record was produced by the complainant to prove that he suffered any injury in that accident. It has been further contended that there was delay in intimating the opposite parties about the accident, which is violation of Clause-1 of the terms and conditions of the insurance policy. No FIR was lodged and only DDR was lodged regarding the accident, in which a person died. As per survey report, the vehicle was not total loss and it was much less than the same. The District Forum failed to consider all these things and passed a wrong order; which is liable to be set aside, by way of allowing this appeal.
Consideration of Contentions
10. We have given our thoughtful consideration to the contentions raised by the learned counsel for the appellants/opposite parties.
First Appeal No.737 of 2017 8
11. First of all, we would like to dispose of the plea of the appellants that the complainant has already availed the legal remedy available to him, by filing petition before the Permanent Lok Adalat, Moga, Ex.OP-8. It needs to be emphasized that the appellants in the grounds of appeal have themselves submitted that the said petition was dismissed as withdrawn. Thus, it means that the same was not decided on merits by the Permanent Lok Adalat. If the petition of the complainant would have been decided on merits by that authority, then the complaint before the District Forum could have been said to be not maintainable, but it is not so in the instant case. Moreover, Section 3 of the Act says that the provisions of the Act are in addition to and not in derogation of the provisions of any other law for the time being in force. Therefore, the complaint was very much maintainable before the District Forum and the plea of the appellants in this regard is rejected.
12. Now, coming to merits of the case, admittedly, the car of the complainant was insured with the opposite parties, vide Insurance Policy Ex.C-2; which was valid from 30.04.2015 to 26.04.2016. It met with an accident on 17.05.2015 and DDR Ex.C-3 was lodged with P.S. Bhagta Bhai Ka. In the said accident, brother of the complainant namely Rajvinder Singh sustained serious injuries and died. The claim of the complainant was repudiated by the opposite parties, vide letter dated 03.11.2015, Ex.C-5, on the following grounds:
"This is with reference to the above reported claim, letter sent to you on 26-Sep-2015 and 15-Oct-2015 and your reply received on 05-Oct-2015, we would like to inform you that the explanation submitted by your good self is not found to be satisfactory without any documentary support. Keeping in view of the above, your claim stands repudiated; accordingly, the same may please be noted."First Appeal No.737 of 2017 9
13. It is relevant to mention that vide letter dated 26.09.2015, Ex.OPs-7 (colly.), the opposite parties alleged that deceased Rajvinder Singh was driving the vehicle and they sought his driving licence from the complainant. The complainant was also asked to clarify about the fact, whether the persons travelling in the car were two or three. The complainant sent reply to that letter, which is at page-231 of record of the District Forum, stating that he was driving the vehicle and not Rajwinder Singh and that there were three people in the vehicle at the time of accident.
14. The opposite parties got reinvestigated the claim/incident of accident from Capital Risk Management Company and ICS Assure Service Pvt. Ltd. and lastly from JD Health Care Services Mohali. In the Investigation Report given by ICS Assure Pvt. Ltd. Ex.OPs-3, it is concluded that complainant appears to have not suffered any major injuries and he has presented fabricated medical documents. It was also observed that deceased Rajvinder Singh, aged 17 years, was driving the vehicle at the time of accident. The observations of the investigator are against the documents produced along with said report itself. At page 101, statement of Sh. Sadhu Singh S/o Sh. Jeeta Singh, R/o Barnala Road, Bhagta Bhai Ka has been produced. As per his statement, accident occurred in front of his house. He along with Ginder Singh and Sukhdev Singh of the same village saw that the driver of the car was lying outside the car and they removed a person out the car, who was sitting on conductor seat. Sh. Sadhu Singh specifically stated that the person, who was sitting on rear seat, fell on First Appeal No.737 of 2017 10 lever of the car by way of jump as a result of accident and his head was damaged with the impact of leaver on his head; as a result of which he died at the spot. Thus, from this statement of Sh. Sadhu Singh, the version of the complainant that he was driving the car at the time of accident and fell out of the car during accident is clearly proved. It is also proved from this statement of Sadhu Singh that the person, who died in the accident i.e. Rajvinder Singh, was sitting on rear seat and he died by falling on leaver of the car; which struck against his head. The plea of the opposite parties and investigator that the complainant did not sustain major injuries in the accident and he produced fabricated documents in this regard is also belied from the certificate dated 20.05.2015 at page-103 issued by Gurdeep Memorial Hospital, near Bus Stand Jalal (Bti), which is duly signed and stamped. As per this certificate, the complainant was brought to the said Hospital on 17.05.2015 with severe arm injury. The doctor found that he was suffering from arm fracture during a car accident. The complainant was treated by him from 17.05.2015 to 20.05.2015 and was advised bed-rest up to 01.06.2015. No cogent and convincing evidence has been led by the opposite parties or the investigator to prove that the said certificate was false and fabricated.
15. It also needs to be noticed that the investigation reports Ex.OPs-3 and Ex.OPs-5 are similar. The Technical Analysis, Clinical Analysis and Conclusion given therein are line to line same. Thus, it is clear that these investigation reports are not based on independent scrutiny of the claim of the complainant and accident. The observations of the investigators that Rajvinder Singh was driving the First Appeal No.737 of 2017 11 car at the time of accident have been falsified, in view of the aforesaid observation made by us and it is proved that the complainant was driving the car at the time of accident.
16. So far as plea of the opposite parties that the intimation of accident was given to them after a period of 18 days of the accident in violation of Cluase-1 of the insurance policy Ex.OPs-2, is concerned, firstly it needs to be mentioned that perusal of repudiation letter, Ex.C- 5, reveals that the claim was not repudiated on the ground of giving late intimation to the Insurance Company, but it was repudiated on the ground that the explanation submitted by the complainant was not found to be satisfactory without any documentary support, which has been duly discussed above. Thus, a ground which is not the basis of repudiation letter, cannot be put forth by the opposite parties subsequently to deny the claim. Furthermore, as already discussed above, perusal of certificate dated 20.05.2015 at page-103 proves that the complainant was suffering from arm fracture during accident. He was treated there from 17.05.2015 to 20.05.2015 and was advised bed rest up to 01.06.2015. Not only this, due to death of a young man of 17 years old, which is none else but the brother of the complainant, the entire family of the complainant was in great shock. In (OM PRAKASH v. RELIANCE GENERAL INSURANCE AND ANR.) Civil Appeal No.15611 of 2017, decided on 04.10.2017, the Hon'ble Supreme Court while allowing the appeal, observed in para No.11 as under:-
"11. It is common knowledge that a person who lost his vehicle may not straightaway 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 First Appeal No.737 of 2017 12 after the theft of the vehicle. However, this condition should not bar settlement of genuine claims particularly when the delay in intimation or submission of documents is due to unavoidable circumstances. The decision of the insurer to reject the claim has to be based on valid grounds. Rejection of the claims on purely technical grounds in a mechanical manner will result in loss of confidence of policy-holders 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 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."
17. In view of the ratio of the law laid down by the Hon'ble Supreme Court in the above noted a case, the delay in intimating the opposite parties on the part of the complainant is duly explained in view of the above discussed evidence on record, as he was bed ridden due to fracture of his arm and his entire family was in shock due to death of his younger brother, who was just 17 years old at that point of time.
18. Furthermore, the Insurance Regulatory and Development Authority (in short, "IRDA") issued Circular to all life-insurers and non- life insurers dated 20.9.2011 regarding delay in claim intimation/ documents submission with respect to all life insurance contracts and First Appeal No.737 of 2017 13 all non-life individual and group insurance contracts. The same is reproduced hereunder:-
"INSURANCE REGULATORY AND DEVELOPMENT AUTHORITY Ref. IRDA/HLTH/MISC/CIR/216/09/2011 Dated:20.09.2011 CIRCULAR To All life insurers and non-life insurers.
Re: Delay in claim intimation/documents submission with respect to i. All life insurance contracts and ii. All Non-life individual and group insurance contracts.
The Authority has been receiving several complaints that claims are being rejected on the ground of delayed submission of intimation and documents.
The current contractual obligation imposing the condition that the claims shall be intimated to the insurer with prescribed documents within a specified number of days is necessary for insurers for effecting various post claim activities like investigation, loss assessment, provisioning, claim settlement etc. However, this condition should not prevent settlement of genuine claims, particularly when there is delay in intimation or in submission of documents due to unavoidable circumstances.
The insurer's decision to reject a claim shall be based on sound logic and valid grounds. It may be noted that such limitation clause does not work in isolation and is not absolute. One needs to see the merits and good spirit of the clause, without compromising on bad claims. Rejection of claims on purely technical grounds in a mechanical fashion will result in policyholders losing confidence in the insurance industry, giving rise to excessive litigation.
Therefore, it is advised that all insurers need to develop a sound mechanism of their own to handle such claims with utmost care and caution. It is also advised that the insurers must not repudiate such claims unless and until the reasons of delay are specifically ascertained, recorded and the insurers should satisfy themselves that the delayed claims would have otherwise been rejected even if reported in time.First Appeal No.737 of 2017 14
The insurers are advised to incorporate additional wordings in the policy documents, suitable enunciating insurers' stand to condone delay on merit for delayed claims where the delay is proved to be for reasons beyond the control of the insured."
A perusal of the above reproduced circular reveals that the claims should not have been rejected on technical grounds and it is advised that the decision of the Insurance Company to reject a claim should be based on sound logic and valid grounds. Such limitation clause does not work in isolation and is not absolute. Rejection of claims on purely technical grounds in a mechanical fashion will result in policyholders losing confidence in the insurance industry, giving rise to excessive and unavoidable litigation. All the Insurance Companies need to develop a sound mechanism to handle such claims with utmost care and caution. In view of the ratio of the above reproduced circular of the IRDA and the Insurance Company is not allowed to adopt hyper- technical approach to deny genuine and legitimate claim of the complainant. Accordingly, it is held that the claim of the complainant was wrongly, illegally and arbitrarily rejected by the opposite parties and the same cannot be upheld.
19. Perusal of Final Survey Report Ex.OP-6 shows that the loss was assessed without dismantling the car and the said report was made, in view of the investigation got done by the insurance office. In the said report, total assessed amount towards parts was ₹4,28,211.75 and total assessed amount of labour was ₹45,828/-; totaling ₹4,74,039.75. However, as per the insurance policy, Ex.C-2, the total IDV of the car was ₹6,61,413/-. It is not proved from Final Survey Report, as to how the surveyor worked the retail price of parts First Appeal No.737 of 2017 15 mentioned therein and how the retail price and the amount assessed are the same. No depreciation has been made by the surveyor from the retail price. Thus, the surveyor report is unclear and cannot be accepted. In such circumstances, it can be said that the car, in question, suffered total loss in the said accident. The order passed by the District Forum is legal and valid and we do not find any reason to interfere with the same.
20. In view of our above discussion, the appeal is dismissed and the impugned order is upheld.
21. The appellants had deposited a sum of ₹25,000/- at the time of filing of the appeal. They further deposited a sum of ₹5,00,000/-, vide receipt dated 06.12.2017, in compliance of order dated 09.11.2017. Both these amounts, along with interest which has accrued thereon, if any, shall be remitted by the registry to the District Forum forthwith. The respondent/complainant may approach the District Forum for the release of the above said amounts and the District Forum may pass the appropriate order in this regard after the expiry of limitation period in accordance with law.
22. The appellants had also deposited ₹2,500/-, vide receipt dated 06.11.2017, in compliance of order dated 27.10.2017, for payment to the respondent/complainant. This amount, if not already remitted to the respondent/complainant, be sent to the District Forum forthwith, along with interest accrued thereon, if any. The respondent/ complainant may approach the District Forum for the release of the above said amount.
First Appeal No.737 of 2017 16
23. The appeal could not be decided within the statutory period due to heavy pendency of court cases.
(JUSTICE PARAMJEET SINGH DHALIWAL) PRESIDENT (RAJINDER KUMAR GOYAL) MEMBER January 24, 2020.
(Gurmeet S)