Haryana

Ambala

RBT/CC/365/2020

KARAN CHAWLA. - Complainant(s)

Versus

BAJAJ ALLIANZ GENERAL INSURANCE COMPANY. - Opp.Party(s)

ABHNIEET TANEJA.

01 May 2023

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, AMBALA.

Complaint case no.	:	RBT/CC/365/2020
Date of Institution	:	02.12.2020
Date of decision	:	01.05.2023

 

Karan Chawla son of Shri Amir Chand Chawla resident of Flat no.703, 7th Floor, Tower no. 2A, Suncity Parikrama, Sector-20, Panchkula.

                                                                             ……. Complainant.

                                                Versus

1. Bajaj Allianz General Insurance Company Ltd. through its Managing Director, Head Office: GE Plaza, Airport Road, Yerawada, Pune-411006.
2. The Divisional Manager, Bajaj Allianz General Insurance Company Ltd. 2^nd Floor, Satnam Complex, BMC Chowk, GT Road, Jalandhar (PB).
3. Bajaj Allianz General Insurance Company Ltd. through its Claim Manager, Claims Department, SCO 156-159, 2nd Floor, Sector 9C, Chandigarh.

 ….…. Opposite Parties

Before:        Smt. Neena Sandhu, President.

                    Smt. Ruby Sharma, Member,

          Shri Vinod Kumar Sharma, Member.           

 

Present:       Shri Abhineet Taneja, Advocate, counsel for the complainant.

                    Shri R.K. Vig, Advocate, counsel for the OPs.    

Order:        Smt. Neena Sandhu, President.

1.           Complainant has filed this complaint under Section 35 of the Consumer Protection Act, 2019 (hereinafter referred to as ‘the Act’) against the Opposite Parties (hereinafter referred to as ‘OPs’) praying for issuance of following directions to them:-
   1. To pay Rs.34,18,512/- i.e. the insured value of the vehicle as per policy along with interest at the rate of 18% per annum w.e.f. 01- 03-2019 i.e. the date of accident till its realization;
   2. To pay compensation of Rs.10 lacs for mental harassment and inconvenience caused to the complainant.
   3. To pay Rs.1 Lac on account of expenses incurred by the complainant for pursuing his legitimate right;
   4. To pay Rs.20 Lac as punitive damages to the complainant;
   5. To pay Rs. 1 Lac as litigation expenses to the complainant;

OR

Grant any other relief which this Hon’ble Commission may deems fit.

 

2.             Brief facts of the case are that the complainant had purchased a Fortuner vehicle make Toyota bearing Engine No. IGDA264798 and Chassis No. MBJAA3GS600539063 on 31-12-2018. At the time of purchase of vehicle, the same was insured by OP No.1 against policy No.TBA/50011823 having validity w.e.f. 31-12-2018 to 30-12-2019. The total insured declared Value of the vehicle was Rs.34,18,512/-. Unfortunately on 01-03-2019 at about 11:15 pm, when the complainant along with his family friend was driving the vehicle from B-Block Sirsa to Barnala Road, Sirsa, the vehicle was snatched by some unknown persons near PWD Rest House, Barnala Road, Sirsa. The incidence was reported to the police and the FIR No.0046 dated 02-03-2019 was lodged at PS Civil Lines Sirsa under sections 25 of Arms Act and section 392 IPC. The police started searching for the vehicle and at Sangaria Check Post, the vehicle was seen to be plied on road by some unknown person coming from Dabwali side and when the police tried to stop the vehicle, the persons sitting in the vehicle started firing on the police. Resultantly, on being fired by the police, the driver of the vehicle lost its control and the vehicle hit into the Kikar Trees nearby the road. In this incident, one person was shot dead by the police and another person escaped from there. The vehicle was badly damaged because of this accident. In this manner, the vehicle so stolen was recovered by the police in a fully damaged condition on 02-03-2019 at around 4:00 am. Another FIR bearing No.46 dated 02-03-2019 was registered at PS Sadar Dabwali under sections 25 Arms Act and 307/34 IPC in this regard. The complainant informed about the loss to the OPs being the insurer immediately thereafter. The OPs allotted a claim reference No.OC-19-1203-1825-00000240 for claim of the complainant and Shri N.K. Gupta, Surveyor was deputed to assess the loss. The spot survey was also got conducted by the OPs through their surveyor. In the accident, the vehicle had damaged totally beyond repairs. As per the policy conditions, the OPs have asked the complainant to compensate him for the total loss of the vehicle. Various documents were collected by the OPs from the complainant time and again. However, on 19-06-2019, the OPs asked the complainant as to why the claim should not be repudiated on the ground that the vehicle was not registered at the time of accident and other letter with same contents was also issued on 28-06-2019. The complainant through his father replied the same vide letter dated 28-06-2019. The OPs again issued letter dated 11-07-2019 which was replied by the complainant on 19-07-2019. Ultimately, the OPs informed the complainant that he shall be paid a sum of Rs.21,93,444/- i.e. 65% (approx.) of the IDV. In this regard, the complainant was asked by the OPs to submit an indemnity bond, undertaking certificate, form for electronic transfer of claim payment, a cancelled cheque, self declaration KYC Form and certain other forms in this regard. Believing upon the words of the OPs and also due to the reason that the complainant did not want to get into litigation, he had handed over all the aforesaid documents in blank duly signed by the complainant. Surprisingly, all of a sudden, the OPs repudiated the claim of the complainant vide letter dated 18-11-2019 stating that the vehicle was unregistered at the time of accident and thus the insurance company is not liable to indemnify the claim. Before the expiration of the temporary number, some complications arose in the pregnancy of the wife of the complainant due to which he had shifted to Chandigarh from Sirsa. Then, the complainant remained there up to the last week of February, 2019. Thus, the complainant was busy in the treatment of his pregnant wife and for the above said reasons, he could not follow the matter. Thus, in case, there was any delay in registration of the vehicle, then it was only because of the above mentioned unavoidable circumstances. The complainant requested the OPs number of times to disburse the claim. However, the OPs did not pay any heed to the request of the complainant. In this manner, the complainant has been harassed and victimized at the hands of the opposite parties which really caused mental agony and pain to the complainant and his family members. The complainant had filed the complaint before Hon'ble SCDRC, Haryana but the same was withdrawn vide order dated 29.07.2020, Annexure C-14, with the liberty to file fresh on the same cause of action as there were some defects in the complaint. Hence this complaint.
3.           Upon notice, the OPs appeared and filed written version and raised preliminary objections to the effect that the present complaint is not maintainable as no cause of action has arisen in favour of the complainant to file the present complaint; the complaint as made out does not fall within the meaning of the Consumer Protection Act; complicated questions are involved in the present complaint, which cannot be decided under the summary proceedings etc. On merits, while admitting the factual matrix of the case regarding insurance of the vehicle in question, it has been stated that the claim of the complainant has been rightly repudiated vide letter dated 18.11.2019 on the ground that the vehicle was not having registration certificate at the time of incident. On receipt of claim, claim reference was registered and surveyor of the company was deputed as per normal procedure of the Company rules and regulations under the terms of the policy. On the receipt of the claim, report of the surveyor, scrutiny of documents, it revealed that the vehicle in question was not registered with the registering authority validly and was on temporary registration certificate issued on 31.12.2018 which was valid for 30 days and the vehicle was not registered by the complainant till 01.03.2019 when the vehicle was snatched by miscreants on 02.03.2019 and suffered damages. The insurance company has acted as per law and under the provisions of Motor Vehicle Act and insurance policy conditions and have not done any act which may amount to unfair trade practice. Rest of the averments of the complainant were denied by the OPs and prayed for dismissal of the present complaint with exemplary costs.
4.           Learned counsel for the complainant tendered affidavit of the complainant as Annexure CA alongwith documents as Annexure C-1 and C-15 and closed the evidence on behalf of the complainant. Learned counsel for the OPs tendered affidavit of Saurav Khullar, Senior Executive Legal of the OPs-Company, Bajaj Allianz General Insurance Ltd. and Shri N.K. Gupta, Surveyor and Loss Assessor, Suvidha Marg, Opp. Surkhab Complex, Sirsa as Annexure R-A and R-B respectively alongwith documents Annexure R-1 to R-9 and closed the evidence on behalf of OPs.
5.           We have heard the learned counsel for the parties and have also carefully gone through the case file and also gone through the written arguments filed by the learned counsel for the complainant.
6.           Learned counsel for the complainant submitted that the insurer after taking the premium insured the vehicle in question for three years. During the subsistence of the policy, some unknown person snatched the vehicle in question, thereafter, it met with an accident and there was a total loss. Complainant lodged the claim with the OPs but they repudiated the claim on the ground that the vehicle in question was not having registration certificate at time when it was snatched by unknown persons. There was no violation of terms and conditions of the policy and violation of provision of Section 192 of Motor Vehicle Act, punishes the defaulter with fine of Rs.5,000/-, whereas the repudiating the entire claim on this ground would amount of imposing much higher punishment than punishment prescribed under Section 192, Motor Vehicle Act, 1988. In support of his contention, the learned counsel for the complainant has placed reliance upon the judgment dated 17.07.2003 passed by the Hon’ble Supreme Court of India, New Delhi, in the case of Jitendra Kumar Vs. Oriental Insurance Company Limited & others and also the judgment dated 08.05.2008 passed by the Hon’ble Supreme Court, in the case of National Insurance Company Limited Vs. Nitin Khandelwal.
7.           On the other hand, learned counsel for the OPs submitted that since there was breach of terms and  conditions of the policy in question and also the provisions of Motor Vehicles Act, as the insured failed to obtain valid registration certificate of the vehicle in question, after expiry of temporary registration, as such,  his claim was rightly rejected by the OPs.  The learned counsel for the OPs has placed reliance upon the judgment dated 04.09.2014, passed by the Hon’ble Supreme Court of India, New Delhi in the case of Narinder Singh Vs. New India Assurance Company Limited and Others and also upon the judgment dated 30.09.2021 of the Hon’ble Supreme Court of India, New Delhi, in the case of United India Insurance Company Limited Vs. Sushil Kumar Godara.
8.           The moot question which falls for consideration in this case is, as to whether, the OPs were right in repudiating the claim of the complainant vide letter dated 18.11.2019, Annexure C-13, on the ground that the vehicle in question was not having registration certificate at the time when it was snatched by unknown persons and on the other hand, the complainant was plying it with temporary registration only, even after expiry of the said temporary registration on 30.01.2019, or not.  It may be stated here that admittedly,  in the present case,  during subsistence of the insurance policy in question, the vehicle in question had been snatched by some unknown persons on 01.03.2019 and later on, when it was recovered, it was found to be in a total damaged condition, on  account of the reasons referred to above. This fact has also not been disputed by the OPs. Under these circumstances, it can easily be said that it is a proven fact that the non obtaining of valid registration certificate was not the main or contributory cause of snatching of the vehicle in question and its damage thereof. In other words, the snatching of the vehicle in question and damage caused thereto, was not having any nexus with the fact that the vehicle in question was being plied by the complainant without a valid registration certificate. A similar question fell before the Hon’ble Supreme Court in the case National Insurance Co. Ltd. vs. Swaran Singh [2004(3) SCC 297] wherein it was clearly held that the liability of the Insurance Company vis-à-vis the owner would depend upon several factors. It was also further held in this case that  to repudiate the claim, the insurance company has to prove the nexus with the incident, failing which, it cannot be allowed to avoid its liability merely for technical breach of conditions. Not only as above, in National Insurance Company Ltd. Vs. Nitin Khandelwal,  (supra) also the vehicle was snatched by some unknown persons and when claim was filed by the insured on 2.10.2003, the insurance company repudiated the same on the ground that the vehicle though registered and insured as a private vehicle, at the time of theft, was being used as a taxi for carrying passengers on payment and as such, the said vehicle was being used contrary to the terms and conditions of the insurance policy. However, the Hon’ble Supreme Court in this case clearly held that since the vehicle in question had been snatched by unknown persons and as such, in the case of theft of vehicle, the breach of the said condition is not germane to repudiate the insurance claim arising out of the said incident. Relevant part of National Insurance Co. Ltd vs Nitin Khandelwal’s case (supra) is reproduced hereunder:-

“………13. In the case in hand, the vehicle has been snatched or stolen. In the case of theft of vehicle breach of condition is not germane. The appellant Insurance Company is liable to indemnify the owner of the vehicle when the insurer has obtained comprehensive policy for the loss caused to the insurer. The respondent submitted that even assuming that there was a breach of condition of the insurance policy, the appellant Insurance Company ought to have settled the claim on non-standard basis. The Insurance Company cannot repudiate the claim in toto in case of loss of vehicle due to theft.

14. In the instant case, the State Commission allowed the claim only on non-standard basis, which has been upheld by the National Commission. On consideration of the totality of the facts and circumstance in the case, the law seems to be well settled that in case of theft of vehicle, nature of use of the vehicle cannot be looked into and the Insurance Company cannot repudiate the claim on that basis…”

9.           As far as reliance placed by learned counsel for the OPs on Narinder Singh Vs New India Assurance Company Ltd., (supra) is concerned, it may be stated here that the facts of this case are distinguishable to that of the present case. In this case, the vehicle  met with an accident and got damaged and at the same time it was also found that the driver who was driving the said vehicle was not holding a valid and effective driving licence and also valid registration of the vehicle was not there. Thus, Narinder Singh’s case (supra), relates to the accident where the main or contributory cause of accident can be said to be non holding of valid and effective driving licence by the driver at the relevant time of the accident.

                   On the other hand, the instant case relates to the theft/snatching of the vehicle in question, which had been recovered in a damaged condition and as such, under these circumstances, the breach of condition qua not holding a valid registration certificate is not germane, which fact also finds support from the law laid down by the Hon’ble Supreme Court in National Insurance Co. Ltd vs Nitin Khandelwal’s case (supra).  As far as reliance placed by learned counsel for the OPs on United Insurance Company Limited Vs. Sushil Kumar Godara (CA-5887-2021) is concerned, it may be stated here that in this case, theft took place on account of negligence of the  insured as he left it unattended and as such it was only under those circumstances held by the Hon’ble Supreme Court that the said case was not only the case of theft but there were other breaches of the insurance policy also. Under these circumstances, reliance placed by learned counsel for the OPs on Narinder Singh’s and United Insurance Company Limited Vs. Sushil Kumar Godara’s cases (supra)  is misplaced, especially, in the light of the law laid down by the Hon’ble Supreme Court in National Insurance Co. Ltd vs Nitin Khandelwal’s case (supra). 

10.           Thus, the OPs have wrongly repudiated the claim of the complainant on the ground that the vehicle in question was not having registration certificate at the time when it was snatched by unknown persons. It is significant to mention here that the Hon’ble Supreme Court of India in  National Insurance Co. Ltd vs Nitin Khandelwal’s case (supra) has upheld the findings of the Lower Consumer Commission whereby the claim of the insured was passed on non-standard basis i.e. to the extent of 75%.. In the present case, the surveyor vide his report dated 21.05.2019, Annexure R-3 has assessed the loss to the tune of Rs.27,33,453/- qua (parts and Labour), meaning thereby that it comes under the total loss value being more than 70% of the IDV of Rs.34,18,512/- as is evident from Policy document Annexure C-1.  Thus, in our considered view, if we allow the claim of the complainant on non standard basis i.e. to the extent of 75% of the IDV of  Rs.34,18,512/- considering total loss case, that will meet the ends of justice. The complainant is therefore held entitled to get an amount of Rs.25,63,884/-.
11.           In view of the aforesaid discussion, we hereby partly allow the present complaint against OPs and direct them in the following manner:-  
    1. To pay Rs.25,63,884/- i.e. 75% of the IDV of the vehicle (non standard basis) to the complainant alongwith interest @4% p.a. from the date of repudiation of the claim i.e. from 18.11.2019,  onwards till realization.
    2. To pay Rs.5,000/- as compensation for the mental agony and physical harassment suffered by the complainant.
    3. To pay Rs.3,000/- as litigation expenses.  

                   The OPs are further directed to comply with the aforesaid directions within the period of 45 days, from the date of receipt of the certified copy of the order, failing which the aforesaid amount shall entail interest @ 6% per annum, from the date of default, till realization. Certified copy of this order be supplied to the parties concerned, forthwith, free of cost as permissible under Rules. File be indexed and consigned to the Record Room. 

Announced:- 01.05.2023

 

(Vinod Kumar Sharma)	(Ruby Sharma)	(Neena Sandhu)
Member	Member	President