State Consumer Disputes Redressal Commission
New India Assurance Company Ltd. vs Kulwant Singh on 17 August, 2022
APPEAL NO.183 OF 2022 17.08.2022
THE NEW INDIA ASSURANCE CO. LTD VS. KULWANT SINGH
STATE CONSUMER DISPUTES REDRESSAL COMMISSION HARYANA,
PANCHKULA
Date of Institution: 11.05.2022
Date of final hearing: 17.08.2022
Date of Pronouncement:17.08.2022
APPEAL NO.183 OF 2022
IN THE MATTER OF
The New India Assurance Company Limited, through Branch Manager,
Branch Office, Karnal through its Authorized Officer Shri Amrit Pal Singh,
Manager (Legal), The New India Assurance Company Limited, Regional
Office, SCO 36-37, Sector 17-A, Chandigarh.
....Appellant/Opposite Party
Versus
Kulwant Singh son of Shri Lal Singh, resident of #315, Gali No.4A, R.K.
Puram, Jatal Road, Panipat.
....Respondent/Complainant
CORAM: HON'BLE MR. JUSTICE T.P.S. MANN, PRESIDENT
Present: Shri Rajesh Kumar Sharma, counsel for the appellant.
PER: T.P.S. MANN, J.
ORDER
1. In view of the order of the Hon'ble Supreme Court passed in suo motu writ petition (C) No.3 of 2020, delay in filing of the appeal is condoned.
DISMISSED Page 1 of 9
APPEAL NO.183 OF 2022 17.08.2022
THE NEW INDIA ASSURANCE CO. LTD VS. KULWANT SINGH
2. The New India Assurance Company Limited, through Branch Manager, Branch Office, Karnal-opposite party has filed the present appeal under Section 41 of the Consumer Protection Act, 2019 for challenging the order dated 08.02.2022 passed by the District Consumer Disputes Redressal Commission, Karnal whereby complaint preferred by Kulwant Singh complainant was allowed and the opposite party directed to pay Rs.4,16,500/- as Insured Declared Value (IDV) to the complainant alongwith interest @ 9% per annum from the date of repudiation/closing of claim till its realization; to pay Rs.20,000/- to the complainant on account of mental agony and harassment suffered by him and Rs.5,500/- for the litigation expenses. The complainant was however directed to get the registration certificate of the vehicle transferred in the name of the Insurance Company and also to handover the salvage of the vehicle in question to the Insurance Company.
3. While filing the complaint, the complainant pleaded that he got insured his vehicle i.e. car Chevrolet Beat, bearing registration No.HR-06AH-2209 with the opposite party for a sum insured of Rs.4,16,500/- under a package policy valid from 15.03.2018 to 14.03.2019. On 21.02.2019 at about 10.30 p.m. Deepak Kamboj son of Balwant Singh Kamboj, resident of Pipal Wali Gali, Panipat was coming from Meerut to Karnal on the abovesaid vehicle. When he reached village Tajpur Simbhalka, near Shamli (UP) the vehicle met with an accident on account of sudden application of brakes by the tractor trolley going ahead of his vehicle. The driver of the car also DISMISSED Page 2 of 9 APPEAL NO.183 OF 2022 17.08.2022 THE NEW INDIA ASSURANCE CO. LTD VS. KULWANT SINGH applied the brakes but the car went underneath the trolley and hit into it, on application of sudden brakes. The driver of Swift Dezire car coming behind also hit into the car of the complainant. The driver of the car on account of the shock suffered by him could not note the registration number of both the vehicles causing accident. DDR No.038 dated 23.02.2019 was got registered at Police Station Shamli. After coming to his senses Deepak informed the complainant that he had met with an accident near Shamli. The complainant immediately left for Shamli. The car was towed to Karnal with crane and the complainant brought Deepak to Panipat and carried him to hospital at Panipat for treatment. Cash Memo No.538 dated 22.02.2019 of Rs.3,500/- for towing charges was issued by Kaka Crane Services, Karnal.
4. Further case of the complainant was that the Insurance Company was intimated about the accident on 25.02.2019. The insurer appointed the surveyor on 27.02.2019 and all relevant documents were submitted to the insurer. The estimate of loss was given to the surveyor, which amounted to Rs.6,82,400/- whereas the assessment of loss on the whims of Senior Divisional Manager of opposite party was brought out only to Rs.1,15,400/- after deduction of excess policy clause and salvage value of Rs.1,000+Rs.3,134. The meager assessment of loss to the tune of Rs.1,15,400/- was not enough for payment to the complainant and the Senior Divisional Manager of Insurance Company could manage an investigation report based on which the claim was closed as "No Claim" whereas insurer managed DISMISSED Page 3 of 9 APPEAL NO.183 OF 2022 17.08.2022 THE NEW INDIA ASSURANCE CO. LTD VS. KULWANT SINGH quotation for damaged vehicle for its market value through surveyor. One quotation for Rs.30,000/- was obtained from M/s Aarav Automobiles, Karnal. They obtained discharge voucher and satisfaction voucher duly signed by the complainant but without filling in both the vouchers, which was clear cut indication that previously the insurer was willing to settle the claim for total loss. Lateron, on the instruction of Divisional Manager, the surveyor assessed the loss on repair basis, which was prejudicial to complainant and indication of bad intention on the part of the insurer. The vehicle of the complainant was parked in damaged condition in Suraj Nagar, opposite Sugar Mill, Meerut Road, Karnal, since 22.02.2019. There was thus deficiency in service and unfair trade practice on the part of the opposite party. Hence, the complaint by the complainant seeking direction to the opposite party/insurance company to pay the insured declared value (IDV) i.e. Rs.4,16,500/- alongwith interest @ 18% per annum and also to pay a sum of Rs.1,00,000/- as compensation for mental agony and Rs.51,000/- as litigation costs.
5. Upon notice, opposite party appeared and filed its written version raising preliminary objections with regard to maintainability and misrepresentation of facts. On merits, it was pleaded that the opposite party had rightly repudiated the claim of the complainant on 02.12.2012. The complainant manipulated and misrepresented the facts of the accident to the officials of the opposite party and the claim of the complainant repudiated on the following grounds:- DISMISSED Page 4 of 9
APPEAL NO.183 OF 2022 17.08.2022
THE NEW INDIA ASSURANCE CO. LTD VS. KULWANT SINGH
i. The upper engine cover (plastic) was intact, whereas metal parts
under the cover were found broken which is possible in internal damage only.
ii. The radiator and condenser were pressed badly but front radiator spot was intact whereas it is not possible that front spot is intact and parts behind spot are badly damaged.
iii. Investigator verified the fact of the accident detail with the near place of accident and people on both of the road told that no such accident on 21.02.2019.
iv. Earlier during survey Mr. Deepak stated that he lifted the car to Karnal on 22.02.2019 using Aryaman Motor Crane, whereas in the statement given to investigator by Deepak states that he does not know how the car was lifted to Karnal.
v. As per statement of Kulwant, Mr. Jaswant lodged the FIR but as per statement of Deepak he himself lodged the FIR. vi. Investigator also issued three registered letter dated 01.07.2019, 18.07.2019 and 09.09.2019 to complainant Kulwant Singh and requested him to provide the relevant documents regarding the accident, but he did not provide the documents. vii. In claim form no detail regarding injury/FIR/DDR was mentioned. viii. Both headlights fitting in the involved vehicle does not match with the make and model of the complainant car. Also old tail lights were fitted in the car with bulbs removed.
6. It was also pleaded that neither there was any deficiency in service nor unfair trade practice on the part of the opposite party. The other allegations made in the complaint were denied by the opposite party and accordingly, dismissal of the complaint was sought.
7. In support of his case, the complainant tendered into evidence his affidavit Ex.CW1/A, copy of R.C. Ex.C1, copy of insurance policy Ex.C2, general diary detail dated 23.02.2019 Ex.C3, claim form DISMISSED Page 5 of 9 APPEAL NO.183 OF 2022 17.08.2022 THE NEW INDIA ASSURANCE CO. LTD VS. KULWANT SINGH Ex.C4, copy of estimate Ex.C5, quotation of Aarav Automobiles Ex.C6, prescription slip of Sai Ram Nursing Home Ex.C7, Towing bill dated 22.02.2019 of Kaka Crane Service Ex.C8, surveyor performance appraisal's form Ex.C9, No Claim letter dated 02.12.2019 Ex.C10, claim intimation letter dated Ex.C11, motor car inspection report Ex.C12 and driving licence of Deepak Kumar Ex.C13.
8. On the other hand, opposite party tendered into evidence affidavit of A.K. Bhola Senior Divisional Manager Ex.O1, letter dated 02.12.2019 Ex.O2, letter dated 07.11.2019 Ex.O3, investigation report Ex.O4, statement of Kulwant Ex.O5, statement of Deepak Ex.O6, General Diary Detail Ex.O7, Reminders dated 1.7.2019, 18.07.2019, 09.09.2019 Ex.O8 to Ex.O10, surveyor and loss assessor report Ex.O11, statement of Kulwant Ex.O12, claim intimation letter Ex.O13 and claim form Ex.O14.
9. After hearing counsel for the parties and perusing the case file besides going through the evidence led by the parties, the District Consumer Commission hold that the act of the opposite party in repudiating the claim of the complainant amounted to deficiency in service and unfair trade practice and accordingly, the complainant was entitled to IDV of the vehicle alongwith compensation for harassment and mental agony besides litigation expenses.
10. Being not satisfied with the order passed by the District Consumer Commission, the opposite party filed the present appeal. DISMISSED Page 6 of 9
APPEAL NO.183 OF 2022 17.08.2022 THE NEW INDIA ASSURANCE CO. LTD VS. KULWANT SINGH
11. Learned counsel for the appellant-opposite party has submitted that the complainant had manipulated and misrepresented the facts of the accident to the officials of the opposite party. The opposite party sent letter and reminders dated 01.07.2019, 18.07.2019 and 09.09.2019 requesting him to provide the relevant document regarding accident but he did not provide the same. Prayer has accordingly been made for acceptance of the appeal and setting aside the impugned order.
12. Having heard counsel for the appellant and on going through the impugned order, the State Commission finds that the opposite party had taken the plea about the complainant not submitting the required documents. However, it is made out that in the reminder Ex.O10 except the number of Swift Dzire and name of its owner, number of tractor trolley and name of its owner and call detail of complainant, Deepak Kamboj and Jaswant Singh, were duly supplied by the complainant. The accident had taken place at about 10.30 p.m. Being night time, it was not possible to note down the registration numbers of the vehicles involved in the accident. There is no legal hitch to decide the claim without the call details of aforesaid persons. The call details could not be obtained easily by anyone without any cogent reason. Hence, the plea taken by the opposite party is without any force.
13. The Insured Declared Value of the vehicle in question was Rs.4,16,500/-. From the surveyor report Ex.O11, the surveyor of the opposite party assessed the loss to the tune of Rs.6,82,400/-. From the estimate Ex.C-5, Aarav Automobiles assessed the loss to the DISMISSED Page 7 of 9 APPEAL NO.183 OF 2022 17.08.2022 THE NEW INDIA ASSURANCE CO. LTD VS. KULWANT SINGH tune of Rs.6,78,718/-. However, the assessed loss cannot be taken into consideration, it being more than the IDV. The opposite party recommended the net liability after salvage deduction for mere Rs.1,15,400/-. The surveyor did not justify such huge deduction of the amount in his report. Hence, the report of the surveyor cannot be accepted being arbitrary and unjustified.
14. Counsel for the appellant/opposite party has submitted that the report submitted by a surveyor is an important piece of evidence and has to be given due weight in the absence of any evidence contrary to it. The amount assessed by the surveyor as has been explained by the Insurance Company is to be accepted. In this regard, counsel for the appellant has relied upon the order of the Hon'ble National Consumer Disputes Redressal Commission, New Delhi in Tarun Parekh Vs. Divisional Manager, Oriental Insurance Company Limited, F.A. No.62 of 2015 decided on 24.05.2022. However, the said order is not applicable in the present case as in the aforesaid order, the Hon'ble National Consumer Commission also held that the report submitted by the surveyor is not sacrosanct and could not be ignored provided there is cogent evidence otherwise. In the present case, the surveyor had assessed the loss to the tune of Rs.6,82,400/- whereas the IDV of the vehicle was Rs.4,16,500/-. No reasons were given as to how the assessed loss could be taken into consideration, be it more than the IDV.
15. Of late it has been noticed that the Insurance Companies are attempting to earn premiums but not interested in paying the claims DISMISSED Page 8 of 9 APPEAL NO.183 OF 2022 17.08.2022 THE NEW INDIA ASSURANCE CO. LTD VS. KULWANT SINGH set up by the individuals. The Insurance Companies rely upon the clauses of the policy but adopt the method, which could not be governed by strict conditions contained in the policy.
16. In view of the above, it can be safely held that the act of the opposite party amounted to deficiency in service and unfair trade practice while repudiating the valid claim of the complainant. Therefore, the complainant was entitled for the IDV of the vehicle alongwith compensation for harassment and mental agony besides litigation expenses. The appeal is devoid of any merit and, accordingly, dismissed.
17. The statutory amount of Rs.2,60,477/- deposited by the appellant while filing the appeal be disbursed in favour of complainant Kulwant Singh against proper receipt and identification subject to any revision/appeal, if any but in accordance with rules.
18. Application(s) pending, if any, stand disposed of in terms of the aforesaid order.
19. A copy of this order be provided to all the parties free of cost as mandated by the Consumer Protection Act, 2019. The order be uploaded forthwith on the website of the Commission for the perusal of the parties.
20. File be consigned to record room along with a copy of this order.
(T.P.S. MANN) PRESIDENT Pronounced On: 17.08.2022 UK DISMISSED Page 9 of 9