Punjab

Ludhiana

CC/20/157

Rakesh Gupta - Complainant(s)

Versus

Bharati Axa General Insurance Co.Ltd - Opp.Party(s)

Rajnish Mahajan

12 Apr 2023

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, LUDHIANA.

                                                Complaint No:157 dated 01.09.2020.                                                        Date of decision: 12.04.2023.

 

1. Rakesh Gupta aged 40 years, Proprietor, M/s. Krishna Industries, Plot No.28, Bhagwan Mahavir, Industrial Complex, Focal Point, Ludhiana.     
2. M/s. Krishna Industries, Plot No.28, Bagwan Mahavir, Industrial Complex, Focal Point, Ludhiana through its Proprietor Shri Rakesh Gupta                                                                                                                                                                                 ..…Complainants

                                                Versus

1. Bharti Axa General Insurance Company Ltd., Mercantile House, 7^th Floor, K.G. Marg, New Delhi-110011, through its Officer Incharge.
2. Bharti Axa General Insurance Company Ltd., 3^rd Floor, Kunal Tower, Mall Road, Ludhiana, through its Manager.
3. M/s. Goyal Automotive Pvt. Ltd., Near Hotel Park Plaza, Ferozepur Road, Ludhiana, through its Director/M.D.

…..Opposite parties 

Complaint Under Section 12 of the Consumer Protection Act.

QUORUM:

SH. SANJEEV BATRA, PRESIDENT

SH. JASWINDER SINGH, MEMBER

MS. MONIKA BHAGAT, MEMBER

 

COUNSEL FOR THE PARTIES:

For complainants           :         Sh. Rajnesh Mahajan, Advocate.

For OP1 and OP2          :         Sh. Rajeev Abhi, Advocate.

For OP3                         :         Sh. M.S. Sethi, Advocate.

 

 

ORDER

PER SANJEEV BATRA, PRESIDENT

1.                In brief, the facts of the case are that the complainants purchased one vehicle i.e. Hyundai Creta bearing registration No.PB-19G-4737 from opposite party No.3 vide invoice No.DBU/LD/19-20/224 dated 19.08.2019 for a sum of Rs.9,99,990/- for personal use of proprietor of the firm Sh. Rakesh Gupta. Opposite partyNo.3 had supplied two keys to the complainant at the time of purchase of the vehicle. The vehicle was got insured from opposite party No.1 and 2 vide insurance policy No.HAX/S6788410 valid from 19.08.2019 to 18.08.2020. The complainants submitted that during the period of insurance, the said vehicle was stolen from Sector 4, Rohini, Delhi on 12.11.2019 between 19:15 to 20:00. The complainants got registered FIR No.39894 dated 12.11.2019 under section 379 IPC at P.S. South Rohini, Crime Branch, Delhi against unknown persons in which untraceable report was submitted by the police on 16.02.2020.  After the theft of the vehicle, the complainants lodged one claim No.ZA066897  with opposite party No.1 and 2 and submitted all the requisite documents including copy of FIR and untraceable report. The complainant submitted keys of the car with opposite party No.1 and 2 on their asking and at that time opposite parties No.1 and 2 did not raise any objection regarding serial number of the keys nor they pleaded that the keys are duplicate. The complainants further submitted that opposite parties No.1 and 2 rejected their claim vide letter dated 22.06.2020 on the pretext that one of the keys of the car submitted with them  is duplicate, whereas the other key is original. At the time of purchase of the car, the complainants were provided with two keys of the car by opposite party No.3 and both the keys in intact condition were submitted with opposite party No.1 and 2. The complainants further stated that they are neither technician nor expert who can distinguish between the original key and duplicate key as complainant No.1 is a simple businessman who submitted both the keys in intact condition as received from opposite party No.3 to opposite parties No.1 and 2 who are the best person who can better tell whether the key is original or duplicate and in both cases, the complainants are not at fault from any angle. Moreover, the vehicle of the complainants was stolen during the subsistence of the insurance policy and they are entitled to the claim from opposite parties. When the vehicle was purchased as brand new vehicle, it was duly insured by the officials of insurance company while sitting in office of opposite party No.3 and as per the Govt. policy, for purchase of new vehicles, the first insurance of the vehicle is being done by selling entity since the vehicle taken out of the showroom only after its insurance. After repudiation of the claim, the complainants approached opposite party No.3 and requested them to do the needful in this regard at the end and to consult & inform to them that the key of the car is original as was supplied by them to the complainants but the officials of opposite party No.3 flatly refused to render any help and openly claimed that they are only concerned with the sale of the vehicle. The acts on the part of the opposite parties amounts to deficiency in service and unfair trade practice due to which the complainants have suffered mental pain, agony, harassment, humiliation and they also remained tensed and under depression for which the opposite parties are liable to compensate the complainants. The complainants got served a legal notice dated 02.07.2020 upon the opposite parties through counsel Sh. Rajnesh Mahajan, Advocate to which the opposite parties sent a false and frivolous reply dated 15.07.2020 raising totally false defence that the complainants would have forgot the key of the car, inside the car whereas if the complainant would have forgot the key inside the car, then the car would not have been locked, which shows that the plea raised by the opposite parties is totally far. In the end, the complainants prayed for issuing direction to the opposite parties to make the payment of claim amount of Rs.9,99,990/- and to pay compensation of Rs.5,00,000/- besides litigations expenses ofRs.22,000/-.

2.                Upon notice, opposite parties No.1 and 2 filed  written statement and by taking preliminary objections, assailed the complaint on the ground of maintainability,  the complainant being estopped by his own act and conduct, concealment of material facts and lack of jurisdiction of this Commission.  Opposite party No.1 and 2 stated that immediately on receipt of the claim it was duly registered, entertained and processed. The complainant has obtained the insurance policy No.HAX/S6788410 in respect of his car Hyundai Creta bearing registration No.PB-91-G-4737 valid from 19.08.2019 to 18.08.2020. The insurance policy is a contract in itself and the parties are bound by the terms and conditions of the policy. It is one of the conditions No.4 and 8 in the private car package policy which is reproduced as under:-

Condition No.4

"The insured shall take all reasonable steps to safeguard the vehicle from loss or damage and to maintain it in efficient condition and company shall have at all times free and full excess to examine the vehicle or any part thereof or any driver or employee of the insured. In the event of any accident or breakdown, the vehicle shall not be left unattended without proper precautions being taken to prevent further damage or loss and if the vehicle being driven before the necessary repairs are affected any extension of the damage or any further damage to the vehicle shall be entirely at the insured's own risk".

Condition No.8

"The due observance and fulfillment of the terms, conditions and endorsements of this policy in so far as they relate to anything to be done or complied with by the insured and the truth of the statements and answers in the said proposal shall be conditions precedent to any liability of the company to make any payment under this policy."

 

M/s Tripple P Associates were appointed as investigators. The said investigator had made thorough investigation, took the photographs, documents, both keys of the vehicle and thereafter prepared his report dated 04.01.2020 and submitted the same with the answering opposite party Bharti Axa General Insurance Co. Ltd. with the observations that "As per insured he had received two original keys from the dealer and he same submitted to your company but we have found both the keys manipulated because there are some unexpected scratches on the keys. But the insured denies the same. I had taken one photograph of the insured with holding of keys which is enclosed with our report."

          Opposite party No.1 and 2 further stated that after the receipt of the report of M/s. Tripple P Associates and the original both the keys and as per the observations of the NOT aforesaid investigator regarding the manipulation of the keys on account of unexpected scratches on the key both the keys were sent to Sherlock Institute of Forensic Science India, a Premier Forensic Examination Laboratory who thoroughly examined both the keys and thereafter prepared their report dated 23.03.2020 and submitted the same with the answering opposite party. As per the report of M/s Sherlock Institute of Forensic Science India dated 23.03.2020 Dr. Ranjeet Kumar Singh, Forensic Expert, SIFS India had observed as under:-

"After considering all the above points which includes different parameters such as Morphological and Visual examination, Metrological examination, Forensic Tool Mark examination and Estimated usages of keys, the following opinion is furnished:-

1.The blade of the key marked as S-1 is Duplicate, while the blade of the key marked as S-2 is Original.

2.The bow of the key marked as S-1 and S-2 are Original and are originally issued by the company.

3.The keys marked as S-1 and S-2 are Unused as the striation marks which are formed by inserting the keys in the ignition lock are absent on the blade region of the keys. Hence the keys marked as S-1 and S-2 are Unused and are Not in-line with the age of the vehicle i.e. 02 months and 24 days.

4.The keys marked as S-1 is Morphological similar from the bow part and blade part as cutting pattern, number of grooves was found similar when compared with the key marked as S-2. Therefore, the blade of the keys marked as S-1 and S-2 are belongs to the same lock, but the blade of the key marked as S-1 is not originally issued by the company.”

After the receipt of M/s Tripple P Associates, Investigator, the report of M/s Sherlock Institute of Forensic Science India dated 23.03.2020 and after scrutinizing the documents placed in the claim file and after due application of the mind by the officials of the opposite party the claim of the complainant was repudiated as no claim vide their letter dated 22.06.2020 on the ground that one key is not in the line of age of vehicle and is manipulated, mis- representation, concealment of material fact, breach of declaration mentioned in the proposal form and violation of condition No.4 and 8 of the policy. Operative part of the said letter is re-produced as under:-

“We solicit reference to your subjective claim, registered with us on 14.12.2019 and regret to note the theft of your side vehicle. Fact finder Tripple P/SIFS (forensic Expert) were appointed to make further verification in this matter:-

 

• As your statement you have submitted both original keys to our fact finder, and we have given both the keys for forensic examination as per forensic examination report it was found that one key is original and another one duplicate.
• The blade of the 1st key marked as is Duplicate, while the blade of the key marked as 2nd key is original.
• The keys marked as S-1 and S-2 are Unused as the striation marks which are formed by inserting the keys in the ignition lock are absent on the blade region of the keys.

Hence, the keys marked as 1 and 2 are Unsued and are Not in-line with the age of the vehicle i.e. 02 months and 24 days.

• It was further concluded that the striation marks due to usage of the keys are absent on the blade region.
•  Intentional and deliberately made marks are observed on the blade region on the keys in order to manipulated the usages. Therefore, one the key is not in line with the age of the vehicle.
• Moreover, the submitted one key is manipulated.
• This act shows willful and intentional misrepresentation, and concealment of material facts. This amounts to 'Breach of Trust' since the contract of insurance is based upon the principle of "Utmost Good Faith".
• With the above action of non-disclosure of material facts, insured had clearly breached the declaration as mentioned in proposal form.

The Condition No.4 states as under:

"The insured shall take all reasonable steps to safeguard the vehicle from loss or damage and to maintain it in efficient condition and company shall have at all times free and full excess to examine the vehicle or any part thereof or any driver or employee of the insured. In the event of any accident or breakdown, the vehicle shall not be left unattended without proper precautions being taken to prevent further damage or loss and if the vehicle being driven before the necessary repairs are affected any extension of the damage or any further damage to the vehicle shall be entirely at the insured's own risk".

The condition No.8 states as under:-

"The due observance and fulfillment of the terms, conditions and endorsements of this policy in so far as they relate to anything to be done or complied with by the insured and the truth of the statements and answers in the said proposal shall be conditions precedent to any liability of the company to make any payment under this policy."

In the circumstances, you are therefore, informed that the above captioned claim as made by you hereby as Rejected/No Claim.”

Opposite partyNo.1 and 2 stated that the claim of the complainant has rightly and legally been repudiated as no claim. The grounds of repudiation are legal, valid and enforceable and there is no deficiency in service and unfair trade practice on their part.

                   On merits, opposite party No.1 and 2 reiterated the crux of averments made in the preliminary objections. Opposite party No.1 and 2 admitted the factum of issuance of insurance policy in question. Opposite party No.1 and 2 have denied that there is any deficiency of service and have also prayed for dismissal of the complaint.

3.                Opposite party No.3 filed separate written statement by taking preliminary objections and assailed the complaint on the ground of maintainability; bad for non-joinder and mis-joinder of proper and necessary parties; suppression of material facts. Opposite party No.3 further stated that the vehicle in question was purchased in the name of the firm i.e. complainant No.2 as well as from the funds of the firm and certainly complainant No.2 also availed deprecation and other income tax benefit for reducing its taxes and profit and further in the complaint, there is no pleading of purchase of vehicle for earning its self-employment and livelihood as such being commercial as well as commercial activities are involved and as such, the complainant cannot be termed consumer under the Consumer Protection Act, 2019. The complainant has not made the manufacturer of the car being a necessary party in the complaint as it was a proper and competent to disclose the distinguish between the duplicate and original key and their use with the said vehicle as opposite party No.3 is only the seller who sold the vehicle along with those keys supplied by manufacturer and duly written in the invoice filed by the complainant. Opposite party No.3 further alleged that as per the contents of repudiation letter dated 22.06.2020, it is disclosed that keys marked as 1 and 2 are unused and are not in line with the age of vehicle i.e. 02 months and 24 days and further there are no pleadings in the complaint that vehicle was not plied or used after purchase of said vehicle and opposite part No.3 has been illegally dragged into litigation. The complainant has not hired or availed any kind of services for consideration against the claim amount of Rs.9,99,990/-. Opposite party No.3 further alleged that in fact, complainant No.2 hired the services of opposite party No.1 and 2 for consideration i.e. premium of Rs.31,959/- for the insurance of its vehicle for Rs.9,99,990/- and the complaint is liable to be dismissed as against opposite party No.3.

                   On merits, opposite party No.3 reiterated the crux of averments made in the preliminary objections. However, opposite party No.3 admitted purchase of vehicle in question on 19.08.2019 for an amount of Rs.9,99,990/-. Opposite party No.3 alleged that it has been illegally arrayed/named in the complaint.   Opposite party No.3 has denied that there is any deficiency of service and has also prayed for dismissal of the complaint.

4.                In support of their claim, complainant No.1 tendered his affidavit Ex. CA in which she reiterated the allegations and the claim of compensation as stated in the complaint. The complainants also tendered documents Ex. C1 is the copy of retail invoice, Ex. C2 is the copy of registration certificate, Ex.  C3 is the copy of insurance policy, Ex. C4 is the copy of FIR, Ex. C5 is the copy of letter dated 14.11.2019, Ex. C6 is the copy of letter dated 22.06.2020, Ex. C7 is the copy of legal notice dated 02.07.2020, Ex. C8 to Ex. C10 are the postal receipts, Ex. C11 is the copy of reply to legal notice, Ex. C12 is the copy of untraceable and closed the evidence.

5.                On the other hand, counsel for opposite parties No.1 and 2 tendered affidavit Ex. RA of Sh. Rishi Kant, Manager (Legal) of opposite parties No.1 and 2, affidavit Ex. RB of Dr. Ranjeet Kumar Singh, Forensic Expert M/s. Sherlock Institute of Forensic Science India, Hudson Lane, Kingsway Camp, Delhi and affidavit Ex. RC of Sh. Pushpender of M/s. Tripple P Associates, Arjun Park, New Delhi along with documents Ex. R1 is the copy of insurance policy, Ex. R2 is the private car insurance policy documents, Ex. R3 is the copy of letter dated 30.11.2019, Ex. R4 is the copy of postal receipt, Ex. R5 is the copy of claim form, Ex. R6 is the copy of letter dated 22.06.2020, Ex. R7 is the copy of postal receipt, Ex. R8 is the copy of examination report dated 23.03.2020, Ex. R9 is the copy of FIR, Ex. R10 is the copy of invoice, Ex. R11 is the copy of policy paper, Ex. R12 is the copy of registration certificate, Ex. R13 is the copy of statement, Ex. R14, Ex. R15 are the copies of sketch of keys, Ex. R16 is the copy of investigation report of Triple P Associates dated 04.01.2020, Ex. R17 to Ex. R19 are the copies of photographs, Ex. R20 is the copy of retail invoice, Ex. R21 is the copy of bank statement, Ex. R22 is the copy of certificate issued by the HDFC bank, Ex. R23 is the copy of Aadhar card of complainant No.1, Ex. R24 is the copy of PAN card of complainant No.1, Ex. R25 is the copy of driving licence of Chirag Garg, Ex. R26 is the copy of statement of Abhishek Gandhi, Ex. R27 and Ex. R28 are the copies of income tax returns,  Ex. R29 is the copy of PAN card of Deepika Singla, Ex. R30 is the copy of PAN card of Rakesh Gupta, Ex. R31 to Ex. R33 are the copies of GST documents, Ex. R34, Ex. R41, Ex. R42 are the copies of  electricity bill, Ex. R35 is the copy of record of RTA department, Ex. R36 is the copy of letter written by complainant to insurance company, Ex. R37 is the copy of verification of particulars of vehicle No.PB91-F-4737, Ex. R38 is the copy of letter written by complainants to RTO, Ludhiana, Ex. R39 is the copy of PAN card of Krishna Gupta, Ex. R40 is the copy of PAN card of Vijay Kumar, Ex. R43 is the copy of letter dated 30.11.2019, Ex. R44 is the copy of postal receipt, Ex. R45 is the copy of  letter dated 30.11.2019, Ex. R46 is the copy of postal receipt, Ex. R47 is the copy of FIR, Ex. R48 is the copy of untraceable report, Ex. R49 is the copy of Aadhar card of Chirag Garg, Ex. R50 is the copy of application entry form, Ex. R52 is the copy of photograph, Ex. R53 is the copy of letter of subrogation, Ex. R54 is the copy of letter dated 30.11.2019, Ex. R55 is the copy of postal receipt, Ex. R56 is the copy of insurance policy and closed the evidence.

                   The counsel for opposite party No.3 tendered affidavit Ex. RA of Sh. Rajesh Kumar, Manager of opposite party No.1 along with documents Ex. R1/1 is the copy of resolution, Ex. R1/2 is the copy of tax invoice and closed the evidence.

5.                 We have heard the arguments of the counsel for the parties and also gone through the complaint, affidavit and annexed documents and written replies along with affidavits and documents produced on record by both the parties.

6.                 In the present case, opposite party no.1 and 2 have invoked the condition No.4 and condition No.8 of the insurance policy Ex. C3=Ex. R1in order to reject the claim of the complainant. The grounds of the repudiation are based upon a single fact that one of the key is not in-line with the age of the vehicle and it is manipulated. It may be noticed that in the present case, theft took place on 12.11.2019 and the FIR No.39894 dated 12.11.2019 Ex. C4=Ex. R9 was promptly registered on the same day under Section 379 IPC at Police Station South Rohini, Crime Branch, Delhi against unknown person. The police after due investigation had submitted untraced report dated 16.02.2020 Ex. C12=Ex. R48. It is evident from this fact that the complainant had suffered a loss of the vehicle due to theft and the occurrence with regard to theft was found to be genuine. The vehicle was purchased from opposite party No.3 who has not specifically denied that keys in question were not handed over to the complainant at the time of the delivery. The approach of the investigator was too technical as he found both keys are manipulated as there are some unexpected scratches on the keys. However, in affidavit Ex. RB of Dr. Ranjeet Kumar Singh, Forensic Expert and in his report Ex. R8 contradicts the opinion of investigator  who had opined that blade of both keys belong to same lock but the blade of the key marked as S-1 is not originally issued by the company. He also observed that the bow of the key marked as S-1 and S-2 are original and are originally issued by the company. When evidence of the investigator and forensic expert are self contradictory and based upon the conjectures and surmises and such like opinions cannot be made basis for repudiation of the claim. There is nothing on record to show that the complainant did not take any reasonable steps to safeguard the vehicle from the loss or damage or he misrepresented opposite party No.1 and 2 at the time of submission of the claim. As such, opposite party No.1 and 2 are not justified in repudiating the claim of the complainant. The insurance companies are required to be more liberal in their approach without being too technical.

7.                In this regard, reference can be made to 2022(2) Apex Court Judgment 281 (SC) in case title Gurmel Singh Vs Branch Manager National Insurance Company Ltd. whereby it has been held by the Hon’ble Supreme Court of India that the insurance company has become too technical while settling the claim and has acted arbitrarily. The appellant has been asked to furnish the documents which were beyond the control of the appellant to procure and furnish. Once, there was a valid insurance on payment of huge sum by way of premium and the Truck was stolen, the insurance company ought not to have become too technical and ought not to have refused to settle the claim on non­submission of the duplicate certified copy of certificate of registration, which the appellant could not produce due to the circumstances beyond his control. In many cases, it is found that the insurance companies are refusing the claim on flimsy grounds and/or technical grounds. While settling the claims, the insurance company should not be too technical and ask for the documents, which the insured is not in a position to produce due to circumstances beyond his control.

It was the duty of opposite party No.1 and 2 to assess the loss even when the documents were submitted to them. In the given circumstances, it would be just and appropriate if opposite party No.1 and 2 are directed to consider and reimburse the claim of the complainant as per terms and conditions of the insurance policy within 30 days from the date of receipt of copy of order along with composite costs of Rs.10,000/-.

8.                As a result of above discussion, the complaint is partly allowed with direction to opposite party No.1 and 2 to consider and reimburse the claim of the complainant as per terms and conditions of the insurance policy within 30 days from the date of receipt of copy of order. Opposite party No.1 and 2 shall further pay a composite costs of Rs.10,000/- (Rupees Ten Thousand only) to the complainant within 30 days from the date of receipt of copy of order. However, the complaint as against opposite party No.3 is dismissed. Copies of the order be supplied to the parties free of costs as per rules. File be indexed and consigned to record room.

 

 

9.                Due to huge pendency of cases, the complaint could not be decided within statutory period.

 

(Monika Bhagat)          (Jaswinder Singh)                      (Sanjeev Batra)                          Member                            Member                                       President

 

Announced in Open Commission.

Dated:12.04.2023.

Gobind Ram.

 

 

Rakesh Gupta Vs Bharti Axa GIC             CC/20/157

Present:       Sh. Rajnesh Mahajan, Advocate for complainant.

                   Sh. Rajeev Abhi, Advocate for OP1 and OP2.

                   Sh. M.S. Sethi, Advocate for OP3.

 

                   Arguments heard. Vide separate detailed order of today, the complaint is partly allowed with direction to opposite party No.1 and 2 to consider and reimburse the claim of the complainant as per terms and conditions of the insurance policy within 30 days from the date of receipt of copy of order. Opposite party No.1 and 2 shall further pay a composite costs of Rs.10,000/- (Rupees Ten Thousand only) to the complainant within 30 days from the date of receipt of copy of order. However, the complaint as against opposite party No.3 is dismissed. Copies of the order be supplied to the parties free of costs as per rules. File be indexed and consigned to record room.

 

(Monika Bhagat)          (Jaswinder Singh)                      (Sanjeev Batra)                       Member                     Member                                       President

 

Announced in Open Commission.

Dated:12.04.2023.

Gobind Ram.