State Consumer Disputes Redressal Commission
Sh. Asgar Ali. vs Icici Lombard General Insurance Co. ... on 23 June, 2022
H. P. STATE CONSUMER DISPUTES REDRESSAL
COMMISSION SHIMLA
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RBT/CC/2/2020
Date of Presentation : 06.10.2018
Order Reserved on : 05.05.2022
Date of Order : 23.06.2022
__......
Asgar Ali S/o Late Sh. Abdullah, R/o D 6/7,MIG-Flat, Sarin Khalil
Sadar Bazar Delhi, India.
......Complainant
Versus
1. ICICI Lombard, General Insurance Company Ltd.,
Registered Office ICICI Lombard House, 414/Veer
Savarkar Marg, Near Siddhi Vinayak Temple,
Prabhadevi, Mumbai-400025 through its authorized
and signatory of the Company.
2. ICICI Lombard, General Insurance Company Ltd.,
Regional Zonal Office Chandigarh.
...... opposite parties
Coram
Hon'ble Justice Inder Singh Mehta, President
Hon'ble Ms. Sunita Sharma, Member
Hon'ble Mr. R.K. Verma, Judicial Member
Whether approved for reporting?1
For Complainant : Mr. B.R.Kashyap Advocate.
For Opposite Parties : Mr. Jagdish Thakur, Advocate.
Complaint U/S 17 of the Consumer
Protection Act, 1986
Justice Inder Singh Mehta, President
O R D E R :-
Brief facts of consumer complaint:
1. Complainant Asgar Ali filed the present consumer complaint Under Section 17 of the Consumer Protection Act, 1986. 1 Whether reporters of the local papers may be allowed to see the order?
Asgar Ali Versus ICICI Lombard General Ins. Co. Ltd & Anr.
RBT/CC/2/2020 The complainant in his complaint has alleged that he is the owner in possession of the vehicle No. DL-3C-CE-6709. The said vehicle met with an accident on 18.05.2017 at Sanjauli Chowk, Shimla. The consequential FIR No. 0069 was registered at Police Station, Dhalli, Shimla. Intimation to the Insurance Company was given who appointed the Surveyor Kiran Kumar. Kiran Kumar surveyor cum loss assessor inspected the vehicle in question and filed the survey report. During the process, huge amount of Rs. 11,00,000/- was spent by the complainant including towing charges of damaged vehicle to be taken to Tara Devi showroom of opposite parties and complainant was subjected to parking charges.
2. Despite the complainant requested for settlement of claim, the Insurance Company failed to settle the same and the complainant left without any remedy except to file the present complaint with the prayer to this Commission to direct the Insurance Company to pay Rs. 20,00,000/- as damages beside the compensation Rs. 5,00,000/- and Rs. 25,000/- litigation charges for causing unnecessary harassment and for their willful and negligent in discharging their duties which amount to deficiency in service.
3. Per contra, opposite parties filed reply to the complaint. Opposite parties raised preliminary objections in the said reply and stated that this Commission has got no pecuniary jurisdiction to entertain and try the present complaint.
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4. The claim filed by the complainant is highly exaggerated and inflated and in order to bring the claim within the pecuniary jurisdiction of this Hon'ble Commission.
5. Factually, the claim should have been filed before the District Commission below as the insured declared value of the vehicle in question is Rs. 8,87,086/- and the liability of the opposite parties if any, cannot exceed the sum insured.
6. The vehicle bearing No. DL-3C-CE-6709 was insured with the opposite parties for a sum of Rs. 8,87,086/- on IDV basis and insurance was effective from 21.07.2016 to 20.07.2017. The certificate of insurance of vehicle alongwith terms and conditions of insurance policy are Annexures OP-1 and OP-2. It is pleaded that the opposite parties have not repudiated the claim of the complainant and closed the same for want of document as is evident from letters dated 07.09.2017, 17.10.2017 and 28.11.2017, copies thereof are Annexures OP-3 to OP-5.
7. The opposite parties are ready and willing to settle the claim as per the terms and conditions of insurance policy. The vehicle in question met with an accident on 18.05.2017 at about 11.30 PM near Sanjauli Chowk, Shimla as per FIR No. 0069 registered by one Sh. Deepak copy of which is Annexure OP-6.
8. On receipt of intimation, the opposite parties appointed Sh. Kiran Kumar surveyor and loss assessor on 2.6.2017 who conducted the survey at M/s Goyal Motors Shimla on 3.6.2017 and 3 Asgar Ali Versus ICICI Lombard General Ins. Co. Ltd & Anr.
RBT/CC/2/2020 submitted his final survey report dated 20.11.2017 to opposite parties.
9. Survey report is Annexure OP-7. The surveyor has recommended the settlement of the claim for a sum of Rs. 7,11,086/- on net of salvage basis. In the meanwhile, the opposite parties appointed perfect investigator who investigated the same and submitted his report. The copies of report alongwith photographs are Annexure OP-8(colly).
10. Thereafter, complainant was asked to submit the claim form, estimate of repair, copy of DL which he submitted with the opposite parties Annexures OP-9 to OP-11. On receipt of documents as mentioned above, the complainant was requested to supply the copies of registration certificate, indemnity bond, form No. 28,29,30 NOC form Number 35, AML document and permission to sell, bank cancelled cheque vide letter dated 7.9.2017 to 17.10.2017, but the complainant did not submit the same and opposite parties had no option than to close the claim of the complainant vide letter dated 28.10.2017 which is Annexure OP-5.
11. The vehicle in question was being plied in violation to the terms and conditions of the insurance policy as the seating capacity of CIAZ Car (Maruti) is five as per FIR six persons were travelling in the vehicle at the time of accident whereas as per the statement given by the complainant which is Annexure OP-12 seven persons were travelling in the vehicle at the time of accident. 4
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12. This seems only the reasons why the complainant did not supply the copy of RC to opposite parties till date. The complainant has submitted estimate of repair according to which the cost of repair is about 7,16,852/- which is on higher side.
13. On merits, opposite parties have pleaded that the delay has occurred in the non settlement of the claim due to want of documents. Opposite parties have further submitted that being insurer opposite parties are liable to indemnify the insured like complainant subject to terms and conditions of the policy and further the insured is required to submit the document as are required by the opposite parties being insurer for settlement of the claim. It is pleaded that the opposite parties have not repudiated the claim of the complainant, but has closed the same due to non-submission of the documents as is evidence from the perusal of Annexures OP-3 and OP-4. It is pleaded by opposite parties that the vehicle in question was insured for a sum of Rs. 8,87,086/- on IDV basis and by no stretch of imagination, the liability of the opposite parties can exceed more than sum insured.
14. Opposite parties have pleaded that this Hon'ble Commission do not have pecuniary jurisdiction to adjudicate the present complaint and the present complaint is devoid of any merit and the complainant is not entitled for any relief as has been claimed and prayed for dismissal of the complaint in the interest of justice.
15. The complainant has filed rejoinder and denied the allegations in preliminary objection No.1 and submitted that the 5 Asgar Ali Versus ICICI Lombard General Ins. Co. Ltd & Anr.
RBT/CC/2/2020 Insurance Company has knowingly not settled the claim despite furnishing the formalities on the part of the complainant and caused huge financial loss despite the loss of the vehicle as the claimant is paying regular parking charges since it was parked in the parking, but the opposite parties failed to settled the claim hence compelled the complainant to file the complaint. The complainant further in his rejoinder has denied the value of vehicle is Rs. 8,87,086/- as alleged as assessed by the opposite parties whereas the vehicle got insured for the amount of Rs. 10,50,000/-.
16. In reply to para-2 of the preliminary objections, the complainant has submitted that the contents are not in dispute except the value for the insurance was done by making huge amount for the insurance of the newly purchased vehicle met with an accident within a period of one year therefore, the insurance company has knowingly lower down the value and has not settled the claim despite the formalities furnished by the complainant and caused unnecessary mental harassment and beside the financial loss and the loss of vehicle after the accident and keep on denying and delaying to settle the claim. The opposite parties are liable for the deficiency and attract the provisions under the Act.
17. That the contents of Para 3 & 4 of the preliminary submissions are again denied being wrong and incorrect. That the complainant has not supplied the necessary documents required for the settle the claim as alleged hence denied. 6
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RBT/CC/2/2020 As a matter of fact, the Insurance Company keep on demanding the NOC from the Court having the jurisdiction where the accident took place which was to be otherwise, had to obtained by the Insurance Company as the vehicle was released conditionally in favour of the complainant by the Court in the Criminal Case FIR No. 69/017 Under Section 279 and 337 of IPC dated 18.05.2017, registered in the accident. Rest of the para denied. However, at the time of accident vehicle was fully covered under the policy for which the complainant has made huge amount for the insurance.
18. That the contents of Para-5&6 of the preliminary objections are denied. It is submitted that the value of the vehicle has been knowingly not assessed properly for which the insurance done by the complainant with the opposite parties and therefore, the claim filed by the complainant was neither settle nor has made payment of loss of vehicle in the accident and therefore, are willful and negligent in settle the claim for which the complainant has made the huge amount for the insurance on the newly purchased vehicle.
19. That the contents of para-7&8 of the preliminary objections are denied being wrong and incorrect. The complainant has specifically denied that the vehicle in question was plying in violation of the terms and conditions of the policy and for this reasons only opposite parties have not settled the claim.
20. The complainant in his rejoinder on merits denied the allegations alleged in the complaint and re-affirmed the averments made in the complaint.
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21. The complainant in support of his claim has filed affidavit of Mr. Asgar Ali Ext. C-1 in evidence and close the evidence.
22. Similarly, the opposite parties in support of its claim has filed affidavits of Engineer Shubham Grover, Nishant Gera and Kiran Kumar Ext. OP-1 to Ext. OP-3 in evidence and close the evidence.
23. Arguments of both the parties heard and the complainant has relied upon the written arguments and we have also perused the entire record carefully.
24. During the course of arguments learned counsel of the complainant has submitted that complainant is owner of the vehicle No.DL-3C-CE-6709. During the existence of insurance policy No.3001/MI-03866315/00/000 Annexure-OP-1, vehicle in question met with an accident. Learned counsel of the complainant has further submitted that aforesaid vehicle met with an accident at Shimla near Sanjauli. The intimation of the aforesaid accident was given to the opposite parties and consequently, FIR No.0069/2017 Annexure-OP-6 was registered. Learned counsel of the complainant has further submitted that on the basis of intimation, the opposite parties appointed surveyor Mr. Kiran Kumar. Surveyor Sh. Kiran Kumar assessed the loss to the tune of Rs.7,11,086/- against the IDV (insured declared value) of the vehicle is Rs.8,87,086/-. 8
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25. On the other hand, learned counsel of the opposite parties has pointed out that if any liability arises, it could not be beyond the sum assured and pecuniary jurisdiction of this Commission is not there. Therefore, this Commission has no jurisdiction to entertain the present complaint and the same is to be returned to the court of competent jurisdiction. As per certificate of insurance Annexure-OP-1 Rs.8,87,086/- is the value of the vehicle in question. Learned counsel of the opposite parties has submitted that complainant has inflated the amount in order to invoke the pecuniary jurisdiction of this Commission, therefore, this Commission would not entertain the present complaint. Learned counsel of the opposite parties has submitted that opposite parties have requested many times to supply the documents including R.C. Annexure-OP-3, OP-4 and OP-5 are the letters indicating so. Despite writing letters, the complainant has not supplied documents required particularly copy of R.C. (Registration Certificate). Learned counsel of the opposite parties has submitted that copy of R.C. has not been supplied or kept with complainant because the complainant was intending to hide the seating capacity of the vehicle. Learned counsel of the opposite parties has drawn our attention to page-7 of the complaint Annexure-C-2 i.e. copy of R.C., in which seating capacity is shown as "five". Learned 9 Asgar Ali Versus ICICI Lombard General Ins. Co. Ltd & Anr.
RBT/CC/2/2020 counsel of the opposite parties has further submitted that in order to settle the claim, opposite party has appointed investigator Sh. Shubham Grover as investigator and his report is Annexure-OP-8 colly.
26. Learned counsel of the opposite parties has further pointed out that Annexure-OP-12 is statement given to the investigator by the driver & complainant and driver happened to be his son. Learned counsel of the opposite parties has submitted that the vehicle insured has seating capacity of "five", whereas as per statement of driver Annexure-OP-12, at the time of accident there were "seven" persons, which violates terms & conditions of insurance policy. Learned counsel of the opposite parties has submitted that this statement has not been denied by complainant. Therefore factum stands proved on the record.
27. Learned counsel of the opposite parties has further pointed out that since terms & conditions of insurance policy has been violated, if at all anything is fasten on the Insurance Company, it could not be beyond 75% of IDV (insured declared value). He has relied upon the judgements i.e ;
1. New India Assurance Company Versus Narayan Prasad Appaprasad Pathak; 2006(2) CPJ 144 (NC).
2. NIC Ltd. Versus Suresh Babu and others; 2007(1) CPJ 23 (NC) Para-4.
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3. Amlendu Sahu Versus Oriental Insurance Company Ltd; 2010(2) CPJ 9 (SC) para-9.
FINDINGS
28. From the perusal of the complaint and reply of the opposite parties it is crystal clear that the complainant was the owner in possession of vehicle No. DL-3C-CE-6709.
29. It is further apparent on the record that the complainant insured the aforesaid vehicle with the opposite parties ICICI Lombard General Insurance Company vide Insurance Policy No.3001/MI-03866315/00/000 Annexure-OP-1.
30. The date of accident is 19.05.2017 as per FIR No. 0069/2017 Annexure OP-6 placed on record.
31. It is further proved on record that on the date of accident dated 19.05.2017 vehicle in question was insured with the opposite party.
32. The opposite party in para-7 of the reply has specifically stated that the vehicle in question was insured with the seating capacity of Ciaz Car (Maruti) is five persons.
33. The opposite party has admitted that on receiving the intimation of accident surveyor Kiran Kumar was appointed who assessed the damage of the vehicle on the total loss to the tune of Rs. 7,11,086/- and surveyor report proved on record is Annexure OP-10.
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34. As per Annexure OP-1 Insurance Policy seating capacity in the insured vehicle was only five persons.
35. As per FIR Annexure OP-6 there were six persons sitting in the insured vehicle at the time of accident.
36. As per statement of complainant Annexure OP-12 there were seven persons sitting in the vehicle at the time of accident.
37. The factum of seven persons travelling in the aforesaid vehicle is supported with an affidavit of Engineer Shubham Grover Ext. OP-1.
38. In totality, it is apparent on the record that the insured vehicle No. DL-3C-CE-6709 at the time of accident exceeded the number of persons which is violation in terms and conditions of the insurance policy.
39. Therefore, it is proved on record that there is breach of terms and conditions of the policy but this breach is not a fundamental breach disentitles the complainant to indemnify the claim of the claimant.
40. In the present case, the complainant was having the authorization of seating capacity of five persons in the said vehicle whereas at the time of accident material facts proved on record indicates that more than five persons were travelling in the said vehicle which is violative of terms and conditions of insurance policy.
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41. However, this factum ipso-facto does not disentitles whole claim of claimant.
42. The Guidelines in such cases have been issued by the Hon'ble National Consumer Disputes Redressal Commission in the case titled New India Assurance Company Ltd. Vs. Narayan Prasad Appaprasad Pathak, II (2006) CPJ 144 (NC) which is reproduced as under:-
___________________________________________________ Sr. No. Description Percentage of settlement
(i) Under declaration Deduct 3 years' difference in of licenced carrying premium from the amount of capacity. claim or deduct 25% of claim amount, whichever is higher.
(ii) Overloading of Pay claims not exceeding 75% of
Vehicles beyond admissible claim
Licensed carrying
Capacity
(iii) Any other breach of Pay upto 75% of admissible claim
Warranty/ condition
Of policy including
Limitation as to use.
43. The said guidelines have been upheld by the Hon'ble Supreme Court of India in the case titled Amalendu Sahoo Versus Oriental Insurance Company Limited, 2010 (4) Supreme Court Cases 536.
44. In view of the above discussion, complainant is entitled to have insurance claim on non-standard basis i.e. 75% of Insured Declared Value.
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45. The contentions of learned counsel on behalf of the opposite party that this Commission does not have pecuniary jurisdiction to entertain and try the present complaint as the claim filed by the complainant is highly exaggerated and inflated and in order to bring the claim within the pecuniary jurisdiction of this Commission, exaggerated claim which otherwise is triable by District Forum has got no force.
46. From the perusal of the pleadings, rejoinder filed on behalf of the complainant on 10.01.2019 before this Commission and the complaint was fixed for evidence of the parties on 7.3.2019. On 7.03.2019, the opposite parties participated in the proceedings and did not objected adjournment evidence of the complainant was closed in affirmative. The opposite parties did not objected the further proceedings in the complaint nor preferred to challenge the order dated 10.01.2019. The aforesaid conduct on the part of the opposite parties indicates that the objection was a mere formality and nothing else however, this Commission has got territorial jurisdiction in the instant complaint.
47. Therefore, we do not find force in the contentions of the learned counsel of the opposite parties.
48. In view of the above discussion, complaint is partly allowed and opposite parties are directed to pay insurance claim on non-standard basis i.e. 75% of IDV, which comes to Rs.5,33,314/- alongwith interest @ 9% per annum, from the 14 Asgar Ali Versus ICICI Lombard General Ins. Co. Ltd & Anr.
RBT/CC/2/2020 date of filing of complaint, till realization of entire amount. Opposite parties are further directed to pay Rs.50,000/- as compensation for harassment and Rs.25,000/- on account of litigation costs.
49. The file be consigned to record room after due completion. Certified copy of order be sent to the parties as well as their counsel strictly as per rules. Pending application(s), if any, also disposed of.
Justice Inder Singh Mehta President Sunita Sharma Member R.K.Verma Member 23.06.2022 *ss* 15