State Consumer Disputes Redressal Commission
New India Assurance Company Limited vs Amritpal Singh on 18 November, 2024
ADDITIONAL BENCH
STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
PUNJAB, CHANDIGARH
First Appeal No.773 of 2023
Date of Institution : 15.12.2023
Date of Reserve : 29.10.2024
Date of Decision : 18.11.2024
New India Assurance Co. Ltd., Regional Manager, Regional Office,
108, Surya Tower, The Mall, Ludhiana-141001.
Now through its Manager, New India Assurance Co. Ltd., Regional
Office, SCO 36-37, Sector 17-A, Chandigarh.
....Appellant/Opposite party No.1
Versus
1. Amritpal Singh aged 39 years son of Jasbir Singh resident of
House No.2/565, Street No.3, Ajit Nagar, Faridkot (Mobile
No.84270-46088).
....Respondent/complainant
2. Imperial Ford, Prop. Vijay Kumar, Near Hariyali Petrol Pump,
Moga Road, Village Satiya Wala Ferozepur Cantt.
3. Andhra Bank, through its Branch Manager, Circular Road,
Faridkot.
.....Respondents/Opposite parties No.2 & 3
First Appeal under Section 41 of the Consumer
Protection Act, 2019 against the order dated
14.03.2023 of the District Consumer Disputes
Redressal Commission, Ferozepur.
Quorum:-
Mr.Harinderpal Singh Mahal, Presiding Judicial Member
Mrs. Kiran Sibal, Member Present:-
For the appellant : Sh.Sukhdarshan Singh, Adv. For respondents No.1&3: Ex-parte For respondent No.2 : Deleted, vide order dt. 30.04.2024 First Appeal No 773 of 2023 2 HARINDERPAL SINGH MAHAL, PRESIDING JUDICIAL MEMBER This appeal has been preferred by the appellants/opposite party No.1 - NIAC Ltd. against the order dated 14.03.2023 passed by District Consumer Disputes Redressal Commission, Ferozepur (in short 'District Commission'), whereby the complaint filed by the complainant under the Consumer Protection Act (in short 'the Act') was allowed against opposite party No.1 with the direction to settle the claim of the complainant as per report of surveyor on the non-
standard basis by paying 75% amount of the loss as assessed by the surveyor.
It would be apposite to mention that hereinafter the parties will be referred, as have been arrayed before the District Commission.
2. Briefly stated facts of the complaint are that the complainant is having car make Ford Model Ecosport, bearing Registration No.PB-04-X-4344 and the same was insured with opposite party no.1 through opposite party No.2, vide Policy No.36170031180300001246, which was effective for the period 13.06.2018 to 12.06.2019. The IDV of the car was fixed as Rs.7,25,000/- and premium of Rs.16,759/- (including GST) was paid by the complainant. On 11.07.2018, while the complainant was going from Ferozepur to Moga at about 10:00/10:30 P.M. When the complainant reached near the gate of village Karmaiti, a Truck Trolla was coming from the opposite direction whose front lights were very high, therefore, the car of the complainant struck First Appeal No 773 of 2023 3 with the waste bitumen lying on the corner of the road and thereafter it struck on both the side and front side with Safeda trees and the car of the complainant was badly damaged. On the next morning, the car was taken to village Kotla in the house of sister of the complainant and the complainant was taken to Moga in Patiala Hospital, Zira Road for physiotheraphy from Dr. Aman, who later on expired. Intimation regarding the accident was given to the opposite party when the complainant himself find better. The opposite party No.1 appointed surveyor, who never met the complainant. Thereafter, investigator was appointed, who visited the site and the house of the sister of the complainant. On asking of opposite party No.1, the car was sent to Ford Agency in Mullanpur. All the information, as demanded was supplied to the investigator. After passing of almost one year, the complainant shocked to see the letter dated 17.07.2019, wherein it was mentioned that as per the report of the surveyor and investigator, opposite party No.1 is not satisfied with the version of the complainant of the cause of accident and place of accident. However, the opposite party No.1 did not deny the fact that the car was completely damaged. The act of opposite party No.1 roe repudiating the claim of the complainant amounts to deficiency in service and unfair trade practice, which compelled the complainant to file the complaint before the District Commission seeking following reliefs:
First Appeal No 773 of 2023 4
i) to pay Rs.1,00,000/- as damages for causing mental tension and harassment to the complainant;
ii) to pay Rs.7,25,000/- i.e. the value of the car and the complainant also claimed interest @18% per annum on the account of the claim from the date of accident till its realization; and
iii) to pay Rs.15,000/- as counsel fee.
3. Upon notice, opposite parties appeared through their counsel and filed their separate replies. Opposite party No.1 filed its reply taking preliminary objections that the alleged accidental damages to the vehicle do not match with the attributed cause of accident as explained. There is inordinate delay of three months and eleven days in giving information of loss to the Insurance Company. The complainant has not lodged any FIR or DDR for the occurrence of loss arising out of the alleged accident and for injuries sustained by him. The complainant had also not got conducted the spot survey of the occurrence of accident. The complainant has failed to cooperate with the answering opposite party in the settlement of claim as required. The parties are bound by the terms and conditions for insurance policy. The District Commission has no jurisdiction to entertain, try and to decide the complaint. The complainant has not approached the District Commission with clean hands and suppressed the material facts from the District Commission. The jurisdiction to decide the complaint is with the Civil Court as it involves complicated First Appeal No 773 of 2023 5 questions of law and facts, which require lengthy evidence. On merits, it is admitted that the complainant had got his car insured from opposite party No.1. Rest all the averments as averred by the complainant in his complaint were denied and prayed for dismissal of the complaint.
4. Opposite party No.2 filed its written reply taking preliminary objections that the complaint is not maintainable in the present form. On merits, it is submitted that complainant contacted opposite party No.2 only on 12.09.2018 at 2:30 p.m. when he brought his car in the branch office of opposite party No.2 at Mullanpur and job card prepared on 13.09.2018. Thereafter, the complainant was told to supply certain documents, which was submitted by him only on 18.10.2018 and the answering opposite party gave information to opposite party No.1 on 22.10.2018. Since then, the complainant did not approach the answering opposite party. It is further submitted that the answering opposite party has no concern with the business and affairs of opposite party No.1 and the claim of the complainant is to be settled by opposite party No.1 only. The complainant has not paid an amount of Rs.21,250/- for parking charges for 85 days despite of the fact the complainant was informed that he will be charged Rs.250/- per day. Rest all the averments as averred by the complainant in his complaint were denied and prayed for dismissal of the same.
5. On the other hand, opposite party No.3 during the course of proceedings before the District Commission has suffered a First Appeal No 773 of 2023 6 statement on 13.10.2021 that the complainant has already cleared the loan amount with regard to Car No.PB04X4344 & NOC has already issued to him for unlien of hypothecation from R.C. He also produced copy of NOC before the District Commission.
6. The parties led their evidence in support of their respective contentions before the District Commission and after hearing the contentions of the parties, the complaint was allowed, vide impugned order dated 14.03.2023.
7. Aggrieved by the said order, this appeal has been filed by the appellant/opposite party No.1 for setting aside the impugned order dated 14.03.2023 and to allow their appeal.
8. Notice of the appeal was issued to the respondents through registered post but respondents No.1 & 3 did not appear despite service and they were proceeded against ex-parte, vide order dated 30.04.2024 and on the same day, learned counsel for the appellant stated at bar that he does not want to proceed with the present appeal against respondent No.2, accordingly respondent No.2 was deleted from the array of parties.
9. We have heard the contentions of the appellant and have carefully gone through the record as well as written arguments filed by the appellant/opposite party No.1. We have also given our thoughtful consideration to the same.
10. Learned counsel for the appellant/opposite party filed their written arguments as well as orally submitted that there is no link of occurrence and damage caused to the car with the story of First Appeal No 773 of 2023 7 accident given by the respondent/complainant. He further contended that the occurrence took place on 11.07.2018, whereas the intimation was given to the appellant/opposite party No.1 on 22.10.2018 i.e. after lot of delay, which is remained unexplained on the record and the probability of altering everything which suits to the respondent/complainant cannot be ruled out. He further submitted that no FIR in this case was registered by the respondent/ complainant which further create doubts to the story as depicted by him for the cause of damage. Even no medical record has been produced by the respondent/complainant regarding the injuries received by him, as alleged. No doubt, the car bearing No. PB-04-X-4344 was in the name of Sh.Amritpal Singh and the same was insured with the appellant/opposite party No.1, vide policy No.36170031180300001246 for the period 13.06.2018 to 12.06.2019 and the incident of accident, as claimed by the appellant/complainant, took place on 11.07.2018 i.e. during the period of the policy. Though the main objection, which raised by the appellant-Insurance Company in the present appeal is that the accident took place on 11.07.2018, whereas the information for the same was given to the appellant/opposite party on 24.10.2018 after lapse of four months, which create doubts in the story of the respondent/complainant regarding the accident. Moreover, no FIR was lodged by the respondent/complainant qua the accident occurred.
First Appeal No 773 of 2023 8
11. Now, the question, which is to be seen if the delay in intimation given to the appellant/opposite party No.1 is sufficient to repudiate the claim of the respondent/complainant, as alleged by the appellant/opposite party No.1.
12. Before proceeding further, we have to look into the terms and conditions of the policy, where it is mentioned that intimation be given to the Insurance Company after the incident. The relevant condition No.1 of the policy, Ex.OP1/16 is reproduced as below:
"CONDITIONS XX XX XX XX XX
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."
13. The careful perusal of the above condition reveals that there is no time limit notified in the said condition. However, the word 'immediate' has been used just to cover the delay but it does not First Appeal No 773 of 2023 9 construe that if information is given after three or four months, as in the present case, then the claim of the claimant is to be repudiated. The point of delay in giving the information to the Insurance Company has been well settled by the Hon'ble Supreme Court in its judgment titled "Gurshinder Singh Vs. Sriram General Insurance Co. Ltd." decided on 24.01.2020, wherein it has been held as under:
"19. We find, that this Court in Om Prakash (supra) has rightly held that the Consumer Protection Act aims at protecting the interest of the consumers and it being a beneficial legislation deserves pragmatic construction. We find, that in Om Prakash (supra) this Court has rightly held that mere delay in intimating the insurance company about the theft of the vehicle should not be a shelter to repudiate the insurance claim which has been otherwise proved to be genuine.
XX XX XX XX XX XX
22. In the present case, the facts are undisputed. The theft had occurred on 28.10.2010. The FIR was lodged at P.S. Nakodar, Jalandhar, Punjab on the same day i.e. 28.10.2010. The police have admittedly lodged the final report. The investigators appointed by the insurance company have submitted their investigation report on 25.02.2011, finding the claim of the appellant to be genuine. In this background, the National Commission was not justified in reversing the concurrent orders of the District Forum and the State Commission. The appeal is, therefore, allowed. The impugned Judgment and order dated 17.03.2015 passed by the National Commission is quashed and set aside. The order of the District Forum dated 09.05.2012 as maintained First Appeal No 773 of 2023 10 by the State Commission vide order dated 26.03.2013 is maintained."
14. The perusal of the above law laid down by the Hon'ble Supreme Court, which is clearly held that the Consumer Protection Act has been introduced by the legislature to protect the interest of the consumers and being a beneficial legislation it should have a pragmatic approach and it has also justified the claim granted to the claimant in which there was much delay in giving the information. The condition which falls for consideration in the present case is identical with the case of the Hon'ble Supreme Court, so the objection raised by the appellant/opposite party No.1 that there was delay of four months is not acceptable to this Commission and is devoid of any merit.
15. Further, much opportunity was given to the appellant/ opposite party No.1 -Insurance Company to assess the loss of the vehicle as they also appointed surveyor as well as investigator. The surveyor in his report has observed as under:
"12. Detail of Assessment : As per instructions received from New India Assurance Co. Ltd., Regional Office, Ludhiana to assess the loss of damaged vehicle which was brought from accidental place and lying at M/s Garyson Auto Pvt. Ltd. (Imperial Ford), Vill. Karimpur, New Kothari Resorts, Ferozepur Road, Ludhiana-141101. Undersigned visited the workshop on 23.10.2018 and took few photographs of the damaged vehicle. Insured was not available at the time of survey. It was observed that damages do not match with the attributed cause of accident (mentioned in the claim form). The delayed limitation as date of accident is 11.07.2018 and First Appeal No 773 of 2023 11 vehicle found in worst/rusted/ dismantled condition, which is beyond repairs."
16. Similarly, investigator in his report has observed as under:
"Keeping in view of our observation and investigation of the case, we are not satisfied with the insured's version regarding the cause of accident and place of accident where the said accident to the said vehicle took place, non submission of any medical record and reason for delay in informing the insurer about the said accident and also not lodging any F.I.R. and all these facts leads to suspicion and fraud in the said case.
Since Insured has misrepresented the facts about the happening of the said accident, which is breach of warranty under the said policy cover and we recommend insurer to file the said claim as No claim."
17. This report of the surveyor as well as investigator shows that they only gave their opinions on the basis of imagination that the damage caused to the vehicle was not in consonance with the accident scene as narrated by the respondent/complainant, so the claim cannot be given. However, they have not specified any reason on the basis of which they came to the conclusion that the damage caused to the vehicle does not match with the facts as revealed by the respondent/complainant in his story. Therefore, this report of the surveyor as well as investigator cannot be said to be the ground for rejecting the justified claim of the claimant because when the appellant/opposite party No.1 itself admitted that the car was lying damaged and when they investigated the same they also produced the pictures which also shows the bad condition of the First Appeal No 773 of 2023 12 vehicle, in question, and that cannot be brushed aside just on the assumptions that the damage caused to the vehicle does not match with the parameters of the scene as narrated by the respondent/complainant. So, this objection also, as raised by the appellant/opposite party No.1 is devoid of any merit and is hereby falls on the ground.
18. We rely upon the judgment of the Hon'ble Supreme Court reported in (2009) CPJ 46 (SC) titled "New India Assurance Company Limited v. Pardeep Kumar" wherein it has been laid down that surveyor's report is not the last and final word. It is not that sacrosanct that it cannot be departed from; it is not conclusive. The approved surveyor's report may be basis or foundation for settlement of a claim by the insurer in respect of the loss suffered by the insured but surely such report is neither binding upon the insurer nor insured.
19. Further, the appellant/opposite party No.1 has raised the issue that no FIR was got registered with the police authorities after the accident, which does not carry any merit because as the facts stated by the claimant his car stuck with the tree due to lights of the vehicle on the other side and the road was under repair and when there is an accident by the claimant himself and no third party is involved then there is no need to register the FIR on the issue. Accordingly, this objection also has no weight. First Appeal No 773 of 2023 13
20. The District Commission while deciding the complaint of the respondent/complainant has rightly allowed the claim of the complainant.
21. Sequel to the above discussions, we do not find any infirmity and illegality in the order of the District Commission. Accordingly, the appeal filed by the appellant/opposite party No.1 is hereby dismissed being devoid of merits and the order of the District Commission is upheld.
22. The appellants/opposite parties had deposited a sum of Rs.25,000/- at the time of filing of the appeal. It deposited another sum of Rs.2,01,375/- in compliance of the order dated 29.02.2024. Both these sums, along with interest accrued thereon, if any, shall be remitted by the Registry to the District Commission, after the expiry of 45 days of the sending of certified copy of the order to them. The concerned party may approach the District Commission for the release of the above amount to the extent of his/its entitlement and the District Commission may pass the appropriate order in this regard, in accordance with law.
23. The appeal could not be decided within the statutory period due to heavy pendency of court case.
(HARINDERPAL SINGH MAHAL) PRESIDING JUDICIAL MEMBER (KIRAN SIBAL) MEMBER November, 18th, 2024 parmod