District Consumer Disputes Redressal Commission ,Faridabad.
Consumer Complaint No. 463/2022.
Date of Institution:26.08.2022.
Date of Order:. 16.8.2023.
Bharat Lal S/o Shri Ram Kumar R/o Near Rawal School, Kureshipur, Fatehpur Taga, District Faridabad, Haryana – 121004.
…….Complainant……..
Versus
Bharti AXA General Insurance Company Ltd., Service office at ICICI Lombard, 7th floor, Connaught Place, Mercantile House, New Delhi through its Branch Manager.
…Opposite party
BEFORE: Amit Arora……………..President
Mukesh Sharma…………Member.
Indira Bhadana………….Member.
PRESENT: Sh. P.K.Sharma, counsel for the complainant.
Sh. Rakaesh Dabaas, counsel for opposite party.
ORDER:
The facts in brief of the complaint are that the complainant was registered owner of Apache Motor Cycle bearing registration NO. HR-51BW-9346, Engine No. CE4CK2906241, Chassis No. MD634CE46K2C06571, Model 2019. The aforesaid apache Motor cycle bearing registration No. HR-51BW-9346, Engine NO. CE4CK2906241, Chassis No. MD634CE46K2C06571, Model 2019, white colour of the complainant had been insured vide policy NO. TVS/SS713814 issued by the opposite party valid form 27.03.2019 to 26.03.2020. On 04.12.2019 the servant of the complainant namely Surya Prasad Awasthi S/o Shri Ramesh Chandra R/o village Tiwaripur, Distt. Barabanki U.P) at present R/o House No. 1366, Sector-15, Faridabd who had worked on the shop of vegetable at Market Sector-15, Faridabad at about 10:30 p.m had gone after close the vegetable shop by riding the said Apache Motor Cycle bearing registration NO. HR-51BW-9346 of the complainant to his house at House No. 1366, Sector-15, Faridabad and he had stand the said motor cycle of the complainant after locked it in front of gate of house NO. 1366, Sector-15, Faridabad and when the servant of the complainant had risen on the next morning and saw the motor cycle but it was not found there and after that he searched the same from his level and he also informed the complainant about the theft of said motor cycle of the complainant. The complainant also searched the same but it was not found anywhere, hence the motor cycle of the complainant was stolen from there by any known person. On the next day i.e 05.12.2-19 the servant of the complainant alongwith the complainant visited the Police Station Central, Faridabad with the written complaint and on the complaint of servant of the complainant a FIR No. 714 u/s 379 IPC was lodged on 05.12.2019 with the Police Station central, Faridabad about the stolen of the motor cycle of the complainant. The complainant got intimated to the opposite party about the stolen of the motor cycle in question form said place but the officials of the opposite party did not accept the claim of the complainant and linger the matter from one pretext to another. In the month of June 2022 the complainant visited in aforesaid office of the opposite party at ICICI Lombard, 7th floor, Connaught Place, Mercantile House, New Delhi wherein the officials/employees of the opposite party told the complainant that the claim of the complainant was closed. But no notice or prior intimation was sent to the complainant regarding the close of claim. The complainant sent legal notice dated 22.07.2022 to the opposite party through registered post but all in vain. 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) pass an award of Rs.85,338/- alongwith intrest @ 24% p.a. in favour of the complainant and against the opposite party towards the claim insured amount of vehicle of the complainant.
b) pay Rs. 1,00,000/- 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, it was established form the relied upon documents including investigation report & forensic report that the complainant had misrepresented, suppressed & concealed the true & material facts with regards to the availability of keys of insured vehicle as the same were differ in content & sequence as well as were contradictory in nature thus 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 proved at the end of the complainant –insured, resultantly, violation of condition Nos.4 & 8 of the insurance policy. It was submitted that as per the motor insurance policy, motor cycle in question was hypothecated with ICICI Bank Ltd. The complainant had neither any cause of action nor locus standi in lodging of the present complaint before this Hon’ble Commission, reason being, it was established from the relied upon documents including investigation report dated 29.02.2020 conducted by Professional Investigator & Forensic report dated 12.10.2020 conducted by S.I.F.S India that the complainant had misrepresented suppressed& concealed the true & material facts with regards to the availability of keys of insured vehicle as the same were differ in content & sequence as well as were contradictory in nature thus there was strong possibility that the insured had 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 proved at the end of the complainant insured, resultantly, violation of condition Nos.4 & 8 of the insurance policy hence the insurance company had arrived at the decision in closing the file by treating such claim as No Claim vide letter of intimation dated 26.10.2020 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 co. Ltd. with the prayer to: a) pass an award of Rs.85,338/- alongwith interest @ 24% p.a. in favour of the complainant and against the opposite party towards the claim insured amount of vehicle of the complainant. b) pay Rs. 1,00,000/- 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 Bharat Lal, Ex.C-1 – RC, Ex.C-2 – insurance policy,, Ex.C-3 – FIR, Ex.C-4 – untraced report, Ex.C-5 – letter dated 11.12.2019, Ex.C-6 – certificate, Ex.C-7 – legal notice, Ex.C-8 – postal receipt,
On the other hand counsel for the opposite party strongly agitated and opposed. As per the evidence of the opposite party - affidavit of Sh. Rohan Mishra, Manager (Legal), Ms. 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 – Antim report, Ex.R-4 - letter dated 29.02.2020 regarding investigation report, Ex.R-5 – statement of Bharat Lal,, Ex.R-6 - letter dated 12.10.2020, Ex.R-7 - NO claim letter dated 26.10.2020.
6. After going through the evidence led by the parties, the Commission is of the opinion that the complaint is allowed on non standard basis.
7. 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.
8. 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.85,338.00
Less Excess Clause : Rs. 1,000.00
: Rs.,84,338.00
Deduction 25% on non standard basis on total : - Rs. 21,084.00
Total : Rs. 63,254.00
9. The opposite party is directed to pay Rs. 63,254/- 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 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: 16.08.2023 (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.
