DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, NORTH-WEST
GOVT. OF NCT OF DELHI
CSC-BLOCK-C, POCKET-C, SHALIMAR BAGH, DELHI-110088.
CC No: 167/2018
D.No._______________________ Dated: ________________
IN THE MATTER OF:
HARPAL SINGH YADAV,
S/o SH. GEDAN LAL,
R/o H. No.-55, GALI No.3,
C-BLOCK, BURARI, DELHI-110084.… COMPLAINANT
Versus
BAJAJ ALLIANZ GENE. INS. Co. LTD.,
BLOCK No-04, 7th FLOOR,
DLF TOWER 15, SHIVAJI MARG,
DELHI-110015. … OPPOSITE PARTY
CORAM:SH. M.K. GUPTA, PRESIDENT
SH. BARIQ AHMED, MEMBER
MS. USHA KHANNA, MEMBER
Date of Institution: 26.02.2018
Date of decision:26.05.2020
SH. M.K. GUPTA, PRESIDENT
ORDER
1. The complainant has filed the present complaint against OP under the Consumer Protection Act, 1986 therebyallegingthat the complainant is registered owner of Tata Indigo Manza commercial vehicle bearing Registration no. DL-01-YD-5830 for his livelihood purpose and the complainant has a commercial license no. DL-0119950099398 and the complainant booked insurance for his
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vehicle from his residence online with OP on 29.10.2014 and continue his insurance from OP till October-2017 and thecomplainant paid a premium of Rs.18,960/- as current year premium amount w.e.f. 29.10.2016 to 28.10.2017. On 05/06.10.2017, the theft was committed by unidentified person with respect to the above mentioned vehicle registered in the name of the complainant in front of his premises. Thereafter, the complainant approached 100 number on 06.10.2017 and the complainant also approached to Police Station Burari on 06.10.2017 but due to technical problem the official of Police Station was unable to lodge FIR. The complainant further alleged that the complainant intimated to OP about the incident at the earliest possible opportunity on 06.10.2017. On 07.10.2017, the complainant received FIR from Police Station Burari vide FIR no. 031654 dated 07.10.2017 and in the meanwhile the complainant searched about his vehicle desperately and visited the Police Station repeatedly and enquired about the status of investigation conducted by the Police officer regarding the theft of his vehicle and subsequently, the complainant fulfilled all the essential requirements in order to process the theft claim and in this regard the complainant fully co-operated with the surveyor set by OP. Thereafter, the copy of the final untraced report alongwith the copy of concerned order dated 13.11.2017 passed by Ld. ACMM-01, Central District, TIS Hazari Courts, Delhi which was received by the
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complainant. The complainant further alleged that the complainant was shocked when the official of OP refused for insurance claimstating that “Please Note that you have taken the policy under private car package through online portal whereas the vehicle is commercial on which is breach of insurance contract and violation of policy condition no. 08 which is stipulated as under: the due observation and fulfillment of the terms, conditions and endorsement of the policy is so far as they relate to anything to be done or complied with by the insured and the truth of the statements and answer in the said proposal shall be condition precedent to any liability of the complainant to make any payment under the policy.” The complainant further alleged that the complainant opted the insurance policy from OP since 2014 and every time renewed his policy from OP as commercial vehicle and the complainant also requested to OP to immediately process the theft claim but OP ignored the pleas, informing him that the claim has been repudiated. Thereafter, the complainant also wrote a letter to OP on 08.01.2018 but all the requests of the complainant were fallen in deaf ears and the complainant suffered a lot by unfair trade practice by OP and the same has caused great mental tension pain, agony, harassment, inconvenience and loss to the complainant which clearly shows the deficiency in service on the part of OP.
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2. On these allegations the complainant filed the complaint praying for direction to OP to pay the IDV of the vehicle of Rs.4,94,180/- alongwith interest @ 24 % p.a. till the date of its realization as wellas compensation of Rs.2,00,000/- for causing mental, physical pain, agony and harassment and has also sought Rs.11,000/- as cost of litigation.
3. OP has been contesting the case and filed written statement and submitted that the contract of insurance being the contract of utmost good faith requires every person to enter into it with all honesty and no deceit and policy holder is required to disclose all material and relevant information before commencement of contract and the insured is not to withhold critical information which could have bearing on the terms & conditions of the contract. OP further submitted that the complainant opted for voice based online mode for taking vehicle insurance policy for his TATA Indigo Manza bearing Regn. No. DL-1-YD-5830 and he opted for private car package policy no. OG-15-9906-1801-000-45234 through online mode for year 2014-2015 and though it was an online policy, however, the transcript of the same was made available to the complainant and he was requested to peruse the same and inform OP of any discrepancy, disagreement or clarification within 15 days of receipt of policy failing which he would be bound by the contents of the transcript. OP further submitted that the complainant never came forward with rectification of any discrepancy or clarification in
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the policy sent to his and which eventually leads to acceptance of the terms of the policy as it is and the complainant is now estopped from resiling from the information provided for taking the insurancepolicy and the complainant has deliberately opted for private car package policy for his commercial vehicle in order to save on the premium amount and the other 2 policies taken by the complainant for year 2015-2016 & 2016-2017 are OG-16-9906-1801-000-58932 & OG-17-9906-1801- 00059250 respectively. OP further submitted that since the complainant misrepresented the factum of class of vehicle (the same being the commercial one) while opting for the policy from OP therefore he could not be allowed to take the plea of unwarranted dismissal of his claim by OP and the complainant could not be allowed to create a win a win situation for himself. OP further submitted that the complaint is not maintainable and is liable to be dismissed.
4. The complainant filed rejoinder and denied the submissions of OP.
5. In order to prove his case, the complainant filed his affidavit in evidence and also filed written arguments. The complainant placed on record copy of R.C. with the endorsement by the transport department that the R.C. in respect of the vehicle is issue for a tourist vehicle, copy of his driving license (commercial), copy of Certificate Cum Policy Schedule issued by Oriental Ins. Co. Ltd. for the period from 28.10.2013 to 27.10.2014 (mid-night) in respect of Passenger Carrying Package Policy, copies of Certificate Cum Policy
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Schedules issued by OP, copy of Certificate of Insurance (Private Car Package Policy) issued by OP, copy of FIR, copy of order dated 13.11.2017 passed by ACMM-01, Central District, TisHazari Courts, Delhi, copy of repudiation dated19.01.2018, copies of letters dated 08.01.2018 & 10.02.2018 sent by the complainant to OP about release the theft claim alongwith postal receipts and tracking report.
6. On the other hand,Sh. Shyama Charan Vats, ManagerLegal of OP filed his affidavit in evidence which is on the basis of the written statement of OP. OP also filed copy of Private Car Package Policy Schedule, copy of Private Car Package Policy alongwith terms & conditions, copies of Certificate Cum Policy Schedules, copy of Transcript of Proposal for Private Car-Package Policy, copies of repudiation letters dated 26.12.2017, 08.01.2018 & 19.01.2018 and copy of R.C. OP has also filed written arguments.
7. This forum has considered the case of the parties in the lightof evidence of both the parties and documents placed on record by the parties. The case of the complainant has remainedconsistent and undoubted. There is nothing on record to disbelieve the case of the complainant. On the other hand, there seems no merits in the defence of OP. OP has not disputed the factum of theft of the vehicle of the complainant and has also not disputed the fact that the untraced report filed by the police before the Court of Magistrate was accepted vide order dated 13.11.2017. OP has simply taken the
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defence that the complainant has taken the policy in respect of stolen vehicle while declaring as a Private Car Package Policy whereas in fact the vehicle was used by the complainant for commercial purposes and the complainant has paid the lesserpremium amount.
8. With regard to the point of issue as taken by OP, the complainant has clearly established that he has a commercial driving license, the registration certificate in respect of the stolen vehicle was issued by the transport department for using the vehicle for tourist i.e. commercial purpose and further the complainant has taken insurance policy from Oriental Ins. Co. Ltd. for Passenger Carrying Package Policy. The complainant has further established that copy of these documents were handed over to OP at the time of taking insurance policy from OP which fact is not disputed by OP.
9. On the other hand, OP has failed to specify as to in what manner the complainant has paid the lesser premium amount and has failed to prove that the complainant has given wrong declaration. Thus, the exclusion clause is not attracted and OP ought not tohave repudiated the claim of the complainant. Accordingly, OP is held guilty of unfair trade practice and deficiency in service.
10. Accordingly, OP is directed as under:
i) To pay to the complainant an amount of Rs.4,94,180/- being the IDV of the vehicle and the complainant to execute transfer papers in the name of OP.
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ii) To pay to the complainant an amount of Rs.70,000/- ascompensation towards mental agony and harassment caused to the complainant.
iii) To pay to the complainant an amount of Rs.10,000/- as cost of litigation.
11. The above amount shall be paid by OP to the complainant within 30 days from the date of receiving copy of this order failing which OP shall be liable to pay interest on the entire awardedamount @ 10% per annum from the date of receiving copy of this order till the date of payment. If OP fails to comply with the order within 30 days from the date of receiving copy of this order, thecomplainant may approach this Forum u/s 25/27 of the Consumer Protection Act, 1986.
12. Let a copy of this order be sent to each party free of cost as per regulation 21 of the Consumer Protection Regulations, 2005. Thereafter file be consigned to record room.
Announced on this 26th day of May, 2020.
BARIQ AHMED USHA KHANNA M.K. GUPTA
(MEMBER) (MEMBER) (PRESIDENT)
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UPLOADED BY : SATYENDRA JEET
