PREMLAL N.RATAN vs NEW INDIA ASSURANCE CO. LTD.

COMPLAINANT who is conducting transportation business has filed this dispute claiming sum of Rs. 9,69,632/- from the O.P. being the loss suffered by him in the alleged accident to the transport vehicle in respect of which insurance coverage was obtained and Insurance Company did not settle the claim. Few relevant facts :

COMPLAINANT as stated was carrying on business of transporting goods in and around Mumbai and owned a transport vehicle bearing No. MCY 2793 and in respect of which he had obtained insurance coverage from the Insurance Company which was valid during the period of 23.10.1993 to 22.10.1994 in a sum of Rs. 1,56,000/-. Copy of the policy in question is made available and forms part of the complaint paper book. Complainant proceeds to state that on 24.9.1994, the vehicle in question got involved in the accident causing damage to it. According to him he immediately reported the fact of incident to the Insurance Company. It may be stated that this is disputed by the Insurance Company as will be pointed out later on. He also states that he lodged the complaint at the police station.

The complainant thereafter of his own removed the vehicle from the site of accident and took it to the Garage M/s. Lacozy Motors Ltd. which was located in Thane District and got the damage assessed and the expenses that were needed for repairs. The said garage owner inspected the vehicle and submitted an estimate for Rs. 1,91,626.64 of which Rs. 1,71,226.64 being the cost of spare parts and Rs. 20,400/- being the labour charges. Copy of the said estimate forms part of the Annexure to the complaint.

COMPLAINANT thereafter submitted his claim along with the said estimate of the Garage to the Insurance Company. According to the complainant he submitted the same on 6.10.1994. The Insurance Company appointed one Mr. L.M. Kirpalani as his Surveyor to visit and have the spot inspection and assessment of loss, caused in accident, etc. and accordingly when the said Surveyor wanted to survey the vehicle it was not at the site where the accident as alleged by the complainant had taken place. He state the vehicle was removed by the complainant to the above mentioned Garage without their permission or consent and from there to Lorry Terminal at Vashi. The Surveyor, therefore, could not conduct the inspection and correspondence was ensued in that behalf and ultimately the Surveyor was taken to the place, viz. Lorry Terminal, in Navi Mumbai for inspection.

AS the report of the Surveyor says Garage owner did not co-operate in a way expected, as he was guided by the complainant himself who was also present at the time of visit. The Surveyor however notwithstanding conducted the survey after much haste. That report forms part of the compilation herein. Thereafter the correspondence came to be exchanged between the parties. Insurance Company by its various letters called upon the complainant to submit the claim in a prescribed format accompanied by requisite documents. However this was not complied with and instead complainant kept on insisting settlement of claim on the basis of estimate of actual amount and correspondence ensued forms part of the Annexure to the pleadings of the parties.

AS according to the complainant his claim was not settled by the Insurance Company that he filed the complaint alleging deficiency etc. making the claim for the amount as mentioned earlier.

THE Insurance Company appeared and denied they being deficient as contended by the complainant. Inter alia it asserted that the complainant had committed breaches in several respects and had not submitted the claim in a prescribed format as per rules. In that it is asserted that accident took place on 24.9.1994 and Insurance Company was informed only on 7.10.1994 and matter was reported to the police on 2.10.1994. It is asserted that it was obligatory upon the complainant to report to the Insurance Company as also the police immediately after the accident as also claimed loss on the basis of actual loss and not on the basis of estimate, as done. It is further asserted that the complainant removed the vehicle from the alleged site of accident without informing the Insurance Company which he was not supposed to do till the survey and inspection is conducted by it. It is also further pointed out that truck was ultimately found kept in the public terminal in an exposed condition.

Insurance Company also pointed out that the complainant adopted non-co-operative attitude and did not even co-operate its Surveyor to inspect the vehicle at the earlier stage. The complainant had also not complied with the formalities by submitting the necessary record such as police complaint, etc. Finally Insurance Company also stated that insurance coverage was to the extent of Rs. 1,56,000/- whereas the claim has been made to the extent of Rs. 9,69,632/- which is inflated claim when in the FIR lodged before the police by the complainant himself, even at belated stage of the vehicle has been assessed to the extent of Rs. 10,000/- only.

REFERRING to the report of the expert, Insurance Company pointed out that the accident theory put forth by the complainant raises grave doubt and it has pointed out circumstances such as late reporting, removal of the vehicle, not assisting the Surveyor to conduct the survey, not mentioning the colluding vehicle, etc. The vital contention taken up by the Insurance Company is that the complainant had not submitted the claim for the alleged damages but what was submitted was estimate of the Garage for repairs, etc. Insurance Company has pleaded that claims are not settled on the basis of estimated cost, etc. but the claim has to be submitted accompanied with final bills of carrying out repairs, etc. It is contended that since claim was not submited in a required form and (sic.) and certain important formalities were not complied with there was no valid claim as such before it. Insurance Company has also highlighted that insurance coverage is to the extent of Rs. 1,56,000/- whereas the complainant has claimed a sum of Rs. 9,69,632/- for which no particulars which would convince have been furnished.

INSURANCE Company has also relied upon the report of the Surveyor as also affidavit of the Surveyor by name Kirpalani, which is on the record. It is to be stated that Surveyor Kirpalani has filed affidavit supporting the statements made by him in his Report. The said report was on the basis of actual state of affairs when he inspected the vehicle in the Lorry Terminal. The complainant has filed the rejoinder. At the outset it needs to be stated the same proceeds in a perfunctory manner and does not deal with the points that have been urged by the Insurance Company and without answering and explaining the points raised by the Insurance Company. The Complainant has proceeded on bear denial basis. Following points would arise for consideration : (1) Whether complainant proves Insurance Company/O.P. herein deficient in rendering services in the matter of settlement of his claim in respect of damages sustained to his vehicle in an accident ? (2) Whether complainant is entitled for the amount as claimed towards the loss in this complaint i.e. upto Rs. 9,69,632/- ? (3) What reliefs ? Our answer to the above point are as under : Point No. 1 : No. Point No. 2 : No. Point No. 3. : Would not survive, in view of findings on point Nos. 1 and 2. Reasons : Point Nos. 1 and 2 :

THE factual aspects of the matter have been adverted to herein above in detail. We have carefully scrutinized the contemporaneous record such as correspondence, police report, report of the Surveyor, pleadings, FIR etc. To ascertain and probe the grievance of the complainant of Insurance Company being deficient, it is necessary to note that deficiency implies as per definition in Section 2(1)(g) of the Consumer Protection Act, 1986 which reads as under- "Deficiency'' means any fault, imperfection, shortcoming or inadequacy in the quality, nature and manner of performance which is required to be maintained by or under any law for the time being in force or has been undertaken to be performed by a person in pursuance of a contract or otherwise in relation to any service."

IT would thus be noticed that to contribute deficiency, it has to be established there being any fault, imperfection, shortcoming or inadequacy in the quality, nature and manner of performance which is required to be maintained by or under any law for the time being in force by the provider of service or has been undertaken to be performed by a person in pursuance of a contract. As stated parties herein are under contractual obligation since the insurance policy is considered as a contract between the insured and Insurance Company.

If one reads the various terms and conditions of the insurance policy, it provides in an elaborate way the manner in which the insured has to comply with requisite formalities in the matter of lodgement of claim. In case of accident, terms clearly provide that the same has to be reported to the Insurance Company immediately as also to the police. Here this has not done. The accident according to the complainant occurred on 24.9.1994, whereas the Insurance Company came to know of it on 7.10.1994 and what is more, report to the police has been lodged on 2.10.1994. The complainant has not explained the said delay and certainly it raises a legitimate doubt as entertained by the Insurance Company.

FURTHERMORE removal of the vehicle from the site of accident without informing the Insurance Company also contravenes terms of the policy. Complainant not only removed the vehicle from the alleged place of accident but he took it to a public lorry terminal which was in the open space thereby exposing it to further deterioration. It needs to be stated, the complainant has not sufficiently and adequately offered explanation to the various pleas as raised by and on behalf of the Insurance Company. In this respect, reference is required to be made to the contents of the report of the expert. What the Surveyor observed with regard to condition of the vehicle at the time of inspection appears in his report dated 9.1.1995.

THIS would show that even the general condition of the vehicle prior to alleged date of accident was not good and the Insurance Company rightly asserted that it was duty and obligation of the complainant as Insured to maintain the insured vehicle properly and take precaution to avoid damages. Further about the story of accident, the Surveyor has expressed in this way : "(a) The general condition of the vehicle had deteriorated further. The cabin sheet metal, load body panels etc. were heavily corroded. (b) Number of parts like cleaner seat, door pads, door inner components, outer mouldings, engine cover etc. were missing. (c) There were clear indications of temporary crude repairs/welding done on W/S frame, door pillars, hinges, front show panel, R.H. Door assay and sill which were also heavily corroded. (d) THIS report indicates that the vehicle was damaged prior to the alleged accident and, therefore, the pre-accident condition of the vehicle was very poor. (e) Our checking of the chassis frame did not indicate any apparent damage. The chassis frame will be re-examined after it is opened out and if there is any bend noticed, the same will be allowed for repairs. However, the question of replacing the chassis with a new one does not arise at all.

There is no indication of any hit by a Tempo vehicle on the rear of the subject vehicle, although recorded in the police F.I.R. With regard to the damages on the front end and cabin doors, the insured has mentioned that a truck coming from the opposite direction dashed with the subject vehicle. The insured has not given any particulars of the "on-coming" vehicle nor it is mentioned in the Police F.I.R. THIS statement, therefore, needs investigation. It is pertinent to note that the complainant has not offered any explanation for such discrepancy. Far and foremost factor militating against the complainant is that all along the correspondence shows he was harping the Insurance Company to settle his claim on the basis of "Esetimate", prepared by the Garage owner and submitted to the Insurance Company. Needless to add that on the mere estimation one cannot settle the claim much less the Insurance Company since the loss of damages are to be ascertained on the basis of actual losses and damages. Conduct of the complainant also is revealing casting grave doubt about the story of so-called accident. Herein above we have noted what the Surveyor had observed but complainant has not explained as to why he removed the vehicle from the sight of alleged accident in a hurry without informing either to the police or to the Insurance Company and kept it in the public terminal. Further the versions and expenses as given by the complainant before the police and as is tried to be made out in the complaint are in material variance, which will be very evident from the report of the Surveyor part of which reproduced herein above and as reported to the police.

NEXT vital point militating against the complainant is that claim for insurance was not lodged on compliance of all the formalities but the complainant was insisting the Insurance Company for release of payment on the basis of mere estimations of the Garage which were not in accordance with the Rules and Regulations as also terms and conditions of the insurance policy.

FOR all these reasons, as adverted to herein above, we are of the view that entire conduct of the complainant raises grave and legitimate doubt about the story of the accident. The complainant never submitted the claim in a requisite form accompanied with requisite documents such as police report, etc. After alleged accident, complainant did not report to the Insurance Company immediately or to the police and no explanation is offered for the same. As noticed, the police were informed only on 2.10.1994 i.e. nearly after 8 days of the alleged date of occurrence. The complainant has not offered explanation, which would appear to be convincing and dispel the doubt as entertained by the Insurance Company. On the factual situation as adverted to hereinabove, the Insurance Company cannot be held to be deficient. Insurance Company is a public body and deals with the monies of the public and it has to be more cautious and circumspect in the scrutiny of the claim made to it in the matters like this and exercise of such caution and precaution would certainly cannot be construed as unreasonable or unfair so as to constitute deficiency. For all these reasons, we answer both the points above against the complainant. Since two major points have gone against the complainant, no question arises for payment of compensation. order "1. Complaint stands dismissed. 2. However there shall be no order as to costs. 3. Office shall furnish copies of the order herein to the parties."

Complaint dismissed.