District Consumer Disputes Redressal Commission ,Faridabad.
Consumer Complaint No. 255/2022.
Date of Institution:11.05.2022.
Date of Order:17.05.2023,
Pankaj Kumar aged 23 years son of Shri Sharwan Dass, resident of House No. 610, Housing Board Colony, Sector-10, Faridabad at present R/o village Sihi Tehsil Ballabgarh District, Faridabad. Aadhar card No. 7012 3491 2730, mobile No. 9953223739.
…….Complainant……..
Versus
1. Bharti Axa General Insurance Co. Ltd., Mercantitle House, 7th floor, 15, Kasturba Gandhi Marg Connaught Place, New Delhi – 110 001 through its authorized person.
2. IDFC First Bank Ltd., situated at Ground floor Nirman Chambers, C-32, G Blockm Bandra Kurla Complex, Bandra East, Mumbai – 400 051 through its authorized person.
…Opposite parties
Complaint under section-12 of Consumer Protection Act, 1986
Now amended Section 34 of Consumer protection Act 2019.
BEFORE: Amit Arora……………..President
Mukesh Sharma…………Member.
Indira Bhadana………….Member.
PRESENT: Sh. Muneesh Parmar , counsel for the complainant.
Sh. Vikas Bhadana , counsel for opposite party No.1.
Sh. Kapil Dev, counsel for opposite party No.2
ORDER:
The facts in brief of the complaint are that the complainant was the owner and in possession of the Splendor Motor Cycle No. HR-29-AW-5865 chasis No. MBLHAW111LHL5534, model 2020 which was insured with opposite party NO.1 bearing policy No. HRO/ST716299 w.e.f.12.11.2020 to midnight 11.11.2025. During the insurance period the said vehicle of the complainant had been stolen on 25.12.2020. The complainant searched out the said vehicle but could not succeed to search out the same. In this regard the complainant informed to the police who registered an FIR bearing No.. 0597 dated 28.12.2020 under section 379 IPC, P.S.Sector-58, Faridabad against unknown person and the complainant had also informed regarding theft of the above said vehicle in time to the opposite parties and also submitted the claim application against the claim of the opposite parties. The complainant several times requested to the opposite parties to pay the insured amount to the complainant relating to the theft of the vehicle of the complainant but the opposite party had not made the insured amount to the complainant upto now for which the complainant was legally entitled to receive the said amount but the opposite party was with holding the insured amount and had not made the same to the complainant deliberately and intentionally and also harassing mentally as physically to the complainant. The aforesaid act of opposite party amounts to deficiency of service and hence the complaint. The complainant has prayed for directions to the opposite party to:
a) pay the insured amount of relating to the theft of the vehicle No. HR-29-AW-5865 of theft of the complainant during the insurance period to the complainant.
b) pay Rs. 50,000/- as compensation for causing mental agony and harassment .
c) pay Rs. 11,000 /-as litigation expenses.
2. Opposite party No.1 put in appearance through counsel and filed written statement wherein Opposite party No.1 refuted claim of the complainant and submitted that opposite party No.1 was a General Insurance Company and it had issued a two wheeler insurance policy No. HRO/ST716299 for the vehicle (i.e Splendor Motor Cycle) of the complainant bearing NO. HR-29-AW-5865 valid from 12.11.2020 to 11.11.2025 and the liability of the opposite parties for own damage covered for the period of one year and strictly as per the terms and conditions of the policy. During the tenure of the said policy the said vehicle of the complainant was stolen on 25.12.2020 from the parking lot of Oswal Casting Pvt. Ltd. At Ballabagarh, Faridabad. The intimation of the said theft was given by the complainant on dated 28.12.2020 to the police station 58, Faridabad after the delay of 3 days and the opposite party No.1 on dated 29.12.2020 an inordinate delay of 4 days. Opposite party No.1 immediately appointed an investigator & surveyors, for investigation of the said loss. During the investigation of the claim, it was revealed that the FIR of the incident was lodged after the delay of 3 days and the intimation of the said incident given to the opposite party insurance company, after the inordinate unexplained delay of 4 days. The answering opposite party while taking into consider, the claim had sought some document from the complainant, the answering opposite party sent a letter dated 04.02.2021 to the complainant. However, the complainant had not given any heeds to the request of the answering opposite party. Despite a number of requests the complainant failed to submit the document sand the claim was not considered on merit, therefore, the claim was closed due to non submission of the documents & as per the terms & conditions No.8 of the policy. Opposite party No.1 denied rest of the allegations leveled in the complaint and prayed for dismissal of the complaint.
3 Opposite party No.2 put in appearance through counsel and filed written statement wherein Opposite party No.2 refuted claim of the complainant and submitted that opposite party No.2 was a banking organization, governed by Reserve Bank of India, providing financial services to its customer and had got nothing to do with the OP-1 i.e. Bharti Axa General Insurance Company, which was a General Insurance Company, being governed by Insurance Regulatory and Development Authority of India. Being a banking organization, the role of opposite party No.2 was limited ot the extent of sanctioning of the loan and its disbursement only and in any which way had nothing to do with alleged insurance claim against theft of alleged vehicle; rather that was a subject matter between the complainant and opposite party No.1. In view of the above stated position, the opposite party No.2 was neither a necessary nor property party for the adjudication of the resent complaint and had been falsely and unnecessarily made a party to the present complaint and hence its name was required to be struck out from the array of parties as its presence before this Hon’ble Court was neither necessary nor proper in order to enable this Hon’ble Court effectually and completely to adjudicate upon an d settle all the questions involved in the present complaint, hence the present complaint was liable to be rejected under order 1 Rule 10 CPC. It was submitted that opposite party No.2 herein was also filing a separate application U/o 1 Rule 10 CPC for deletion its name from the array of parties. The alleged vehicle was hypothecated in the name of OP No.2 – being the financer of the alleged vehicle, having first charge over the said vehicle; and thus, in cse of settlement of the claim by OP No.1 of the claim being filed by the complainant, the insurance company might be directed to release the claim amount to the credit of opposite party No.2 to satisfy the total outstanding of the loan account, which as on03.08.2022 was Rs.76,642.78 and balance (if any) might be directed to the complainant herein accordingly. Opposite party No. 2 denied rest of the allegations leveled in the complaint and prayed for dismissal of the complaint.
4. The parties led evidence in support of their respective versions.
5. We have heard learned counsel for the parties and have gone through the record on the file.
6. In this case the complaint was filed by the complainant against opposite parties–Bharti AXA General Insurance Company with the prayer to: a) pay the insured amount of relating to the theft of the vehicle No. HR-29-AW-5865 of theft of the complainant during the insurance period to the complainant. b) pay Rs. 50,000/- as compensation for causing mental agony and harassment . c) pay Rs. 11,000 /-as litigation expenses.
To establish his case the complainant has led in his evidence, Ex.CW1.A – affidavit of Pankaj Kumar,, Ex.P-1 – FIR, Ex.P-2 – untraced report, Ex.P-3 – photocopy of key, Ex.P-4 – Vehicle particulars (for internal use), Ex.P-5 – letter dated 22.11.2021, Ex.P-6 – RTGS/NEFT Details, Ex.P-7 – Foreclosue letter, Ex.P-8 – certificate,, Ex.P-9 – Adhar card,, Ex.CP-9 – RC, Ex.P-11 – insurance policy, Ex.P-12 – Tax invoice,
On the other hand counsel for the opposite party No. 1strongly agitated and opposed. As per the evidence of the opposite party No.1 Ex. RW1/A – affidavit of Deepak Bansal, Annx.R1/A – policy, Annx.A1-B & A1-C- letters.
Shri Kapil dev, counsel for opposite party No.2 has made a statement that the written statement already filed on behalf of opposite party No.2, the same might be read as evidence on behalf of opposite party No.2 and closed the evidence on behalf of the opposite party No.2. Therefore, evidence on behalf of opposite party No.2 has been closed vide order dated 20.03.2023.
7. After going through the evidence led by the parties, the Commission is of the opinion that the complaint is allowed on non standard basis.
8. For the adjudication of the present complaint and the issue therein, we place reliance on the Supreme Court Authority Amalendu Sahoo Vs. Oriental Insurance Company in Civil Appeal NO. 2703/2010 decided on 25.3.2010.
In Amalendu Sahoo’s case, there was violations of the Terms & conditions of the policy and the insurance benefits were denied by the insurance company. In the above mentioned case, further reliance was placed by the Supreme Court on:
a). New India Assurance Co. Ltd. Vs. Narayan Prasad Appa Prasad Pathak, and
b). National Insurance Company Vs. Nitin Khandelwal
Wherein it was observed by the Apex Court that the claim could have been settled on non standard basis in the event of any breach of condition upto 10
%. Once the Insurance Company has insured the vehicle for the loss caused to the insured, the insurance company is liable to indemnify the owner. When there is breach of the condition of the policy, the insurance company ought to have settled the claim on non standard basis.
9. Following the aforesaid guidelines, this Commission is of the opinion that the insurance company cannot repudiate the claim in toto. The complaint is allowed for claim to be settled on non standard basis.
IDV value of vehicle : Rs.60,097.00
Less Excess Clause : Rs. 1,000.00
: Rs.59,097.00
Deduction 10% on non standard basis on total : - Rs. 5,909.00
Total : Rs. 53,188.00
10. The opposite party No.1 is directed to pay Rs. 53,188/- alongwith interest @ 6% p.a to the complainant from the date of filing of complaint till its realization, subject to submission of documents. The opposite party No.1 is also directed to pay Rs.2200/- as compensation on account of mental tension, agony and harassment and Rs.2200/- as litigation expenses to the complainant. This payment will be subject to the condition that the complainant will furnish the subrogation letter, cancellation of RC, affidavit, Form 29,30 and Form 35. Compliance of this order be made within 30 days from the date of receipt of copy of order. File be consigned to the record room. Copy of this order be sent to the parties concerned free of costs.
Announced on: 17.05.2023 (Amit Arora)
President
District Consumer Disputes
Redressal Commission, Faridabad.
(Mukesh Sharma)
Member
District Consumer Disputes
Redressal Commission, Faridabad.
(Indira Bhadana)
Member
District Consumer Disputes
Redressal Commission, Faridabad.
