District Consumer Disputes Redressal Commission ,Faridabad.
Consumer Complaint No.440/2020.
Date of Institution: 23.11.2020.
Date of Order: 24.08.2022.
Purshottam aged about 43 years S/o Shri Mool Chand R/o House No. 335-A, Block-F, SGM Nagar, Near Patel Chowk, NIT, Faridabad.
…….Complainant……..
Versus
Bharti AXA General Insurance Co. Ltd., Registered office : RMZ Infinity, Tower-B, 2nd floor No.3, Old Madras Road, Bangalore – 560016 (Karnataka) through its Director/Principal Officer.
Service effected through its Divisional/Branch Office.
Bharti AXA General Insurance Co. Ltd., SCF-33, 2nd floor, Sector-16, Faridabad through its Divisional/Branch Manager.
Service effected at:
Bharti AXA General Insurance Co. Ltd., 2nd & 3rd floor, SCO-20, Above ICICI Bank Sector-14, Gurugram, Haryana through its Divisional/Branch Manager.
…Opposite party……
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
PRESENT: Sh. Bhim Chandila, counsel for the complainant.
Sh. Rakesh Dabaas, counsel for opposite party.
ORDER:
The facts in brief of the complaint are that the complainant was registered owner of vehicle (motorcycle hero splendor) bearing its registration No. HR-87-6714, having its engine No. HA10AGHHHH6216. The above said vehicle was insured with the opposite party vide insurance policy cert. No. HRO/SH005788 which was valid form 14.10.019 to 13.10.2019 for the insured value of Rs.35,855/-. On 10.12.2019 at 06:30 am, the complainant went to drop his son at his coaching class “Aldine CA Institute, Opp. Nehru College, Sector-16A, Faridabad” and he parked the said motorcycle with proper lock in front of said coaching centre and the complainant went to walk (time pass) and when he reached at the spot i.e. in front of Aldine CA Institute, he found that the said motorcycle was not present at the spot and the complainant searched his said motorcycle here and thee but could not be found and he immediately dialed 100 number of PCT on 10.12.2019 i.e. on same day and hence, he reported the matter to police of P.S.Sector-17, Faridabad and FIR NO. 356 dated 11.12.2019 u/s 379 IPC was registered at P.S. Sector-17, Faridabad. Thereafter, the complainant also intimated to the opposite party about theft of his motorcycle on 11.12.2019 through phone call on the telephone number of the opposite party and lodged his claim bearing No. ZA086603 and submitted all the documents including original both keys of the said motorcycle as demanded by the opposite party and its representative obtained signatures of the complainant on various blank forms, papers under the garb of procedure of the insurance company. The executive of the opposite party assured that when the police would file the untraced report, the company shall disburse the claimed amount in favour of the complainant. The police filed the challan/report u/s 173 Cr.P.C before the court of Shri Vivek Chaudhary, JMIC, Faridabad on 10.08.2020 and the complainant also submitted that untraced report to the opposite party. The opposite party had completed all requisite documents for the disbursement of the claimed amount i.e letter of subrogation on 100/- stamp paper, affidavit of undertaking from th complainant that he was the registered ownerof the said vehicle and the complainant ahd no objection if the above said vehicle transferred in the name of Bharti AXA General Insurance Company Ltd. Thereafter, the opposite party instead of disbursing the claimed amount, repudiated the claim of the complainant vide its letter dated 29.01.2020 on flimsy ground that the key of the said vehicle was different lock set and delay in information. The complainant sent legal notice dated 15.09.2020 through registered post to the opposite party but all in vain. The aforesaid act of opposite parties amounts to deficiency of service and hence the complaint. The complainant has prayed for directions to the opposite parties to:
a) pay an amount of Rs.35,855/- alongwith interest @ 24% p.a. from the date of its loss till actual payment.
b) pay Rs. 50,000/- as compensation for causing mental agony and harassment .
c) pay Rs. 21,000 /-as litigation expenses.
2. Opposite party put in appearance through counsel and filed written statement wherein Opposite party refuted claim of the complainant and submitted that at the very threshold of the allegations contained in the complaint, the intimation of occurrence was firstly received by the insurance company on 13.12.2019 & FIR was lodged on 11.12.2019, wherein, alleging theft of motor cycle No. HR-87-6714 on 10.12.2019, which amply prove on record that the complainant had failed to intimate the insurance company immediately on the alleged occurrence of theft and not only this, the complainant-insured was using the insured vehicle without taking any precautionary measure to safe guard and submitted two different keys, so proved form forensic expert report, pertaining to insured vehicle so there was strong possibility that the insured had left the key in the ignition of insured motor cycle at the relevant time of alleged theft, hence, a great degree of negligence had been established at the end of the complainant-insured of the said motor cycle, resultantly, violation of condition Nos.`,4 & 8 of the insurance policy. The complainant neither had any cause of action nor locus standi in lodging of the present complaint before this Forum, reason being, there had been inordinate delay of 3 days in intimating the insurance company & 1 day in intimating the police with regards to the alleged theft of motor cycle No. HR-87-6714, which intimation as firstly received by the insurance company on 13.12.2019, wherein, alleging theft of motor cycle on 11.12.2019 and not only this, the complainant insured was using the insured vehicle without taking any precautionary measure to safe guard and submitted two different keys, so proved from forensic expert report, pertaining to insured vehicle so there was strong possibility that the insured had left the key in the ignition of insured motor cycle at the relevant time of alleged theft, hence a great degree of negligence had been established at the end of the complainant-insured of the said motor cycle , resultantly, violation of condition Nos.1,4 & 8 of the insurance policy, hence, the insurance company had arrived at the decision in treating such claim as “No claim “ vide letter of intimation dated 29.01.2020 which decision cannot be termed unconscionable at all.Opposite party denied rest of the allegations leveled in the complaint and prayed for dismissal of the complaint.
3. The parties led evidence in support of their respective versions.
4. We have heard learned counsel for the parties and have gone through the record on the file.
5. In this case the complaint was filed by the complainant against opposite party– M/s. Bharti AXA General Insurance Company Ltd. with the prayer to: a) pay an amount of Rs.35,855/- alongwith interest @ 24% p.a. from the date of its loss till actual payment. b) pay Rs. 50,000/- as compensation for causing mental agony and harassment . c) pay Rs. 21,000 /-as litigation expenses.
To establish his case the complainant has led in his evidence, Ex.CW1/A – affidavit of Purushottam, Ex.C-1 – RC, Ex.C-2 – insurance policy, Ex.C-3 – FIR, Ex.C-4 – letter dated 15.12.2019, Ex.C-5 – untraced report,, Ex.C-6 – letter of subrogation, Ex.C-7 – affidavit,, Ex.C-8 – repudiation letter,, Ex.C-9 – legal notice, Ex.C-10 & 11 – postal receipts, Ex.C-12 – RTI letter dated1.12.2020.
On the other hand counsel for the opposite party strongly agitated and
opposed. As per the evidence of the opposite party Ex.RW1/A – affidavit of Shri Rohan Mishra, Manager (Legal), ICICI Lombard General Insurance co. Ltd., 4th floor, red Fort Capital Parsvnath Tower, Bhai Veer Singh Marg, Gole Market, New Delhi, Ex.R-1 – RC, Ex.R-2 – insurance policy, Ex.R-3 – FIR, Ex.R-4 – cash details, Ex.R-5 – claim form, Ex.R-6 – surveyor report, Ex.R-7 – statement of Shri Purushottam, Ex.R-8 - statement of Dhreej Swami, Ex.R-9 – photocopy of key, Ex.R-10 letter dated 27.01.2020, Ex.R-11 – Key Forensci Examination report, Ex.R-12 – 29.01.2020.
6. In this case, the complainant was registered owner of vehicle (motorcycle hero splendor) bearing its registration No. HR-87-6714, having its engine No. HA10AGHHHH6216 and the above said vehicle was insured with the opposite party bearing insurance policy cert. No. HRO/SH005788 valid form 14.10.019 to 13.10.2019 for the insured value of Rs.35,855/-. On 10.12.2019 at 06:30 am, the complainant went to drop his son at his coaching class “Aldine CA Institute, Opp. Nehru College, Sector-16A, Faridabad” and he parked the said motorcycle with proper lock in front of said coaching centre and the complainant went to walk (time pass) and when he reached at the spot i.e. in front of Aldine CA Institute, he found that the said motorcycle was not present at the spot and the complainant searched his said motorcycle here and thee but could not be found and he immediately dialed 100 number of PCT on 10.12.2019 i.e. on same day and hence, he reported the matter to police of P.S.Sector-17, Faridabad and FIR NO. 356 dated 11.12.2019 u/s 379 IPC was registered at P.S. Sector-17, Faridabad. Thereafter, the complainant also intimated to the opposite party about theft of his motorcycle on 11.12.2019 through phone call on the telephone number of the opposite party. Opposie party repudiated the claim of the complainant on the ground of violation of terms & conditions Nos.1, 4 & 8 of the insurance policy.
7. After going through the evidence led by the parties, the Commission is of the opinion that repudiation is based on the ground of violation of terms & conditions Nos.1,4 & 8 of the insurance policy. During the course of argtuments, counsel for the complainant argued at length and he has stated at Bar that he has given the original keys of the motor cycle to the surveyor not the duplicate, These are minior violations. In the interest of justice, the complainant 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 25%. 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.33,855.00
Less Excess Clause : Rs. 1,000.00
: Rs. 32,855.00
Deduction 25% on non standard basis on total : - Rs. 8,213.00
Total : Rs. 24,642.00
9. The opposite party is directed to pay Rs. 24,642/- alongwith interest @ 6% p.a to the complainant from the date of filing of complaint till its realization. The opposite party 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 35A. 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.Compliance of this order be made within 30 days from the date of receipt of copy of this order. Copy of this order be sent to the parties concerned free of costs. File be consigned to the record room.
Announced on: 24.08.2022 (Amit Arora)
President
District Consumer Disputes
Redressal Commission, Faridabad.
(Mukesh Sharma)
Member
District Consumer Disputes
Redressal Commission, Faridabad.
