Before the District Consumer Disputes Redressal Commission, Rohtak.
Complaint No. : 315
Instituted on : 03.07.2019
Decided on : 12.03.2024
Rajinder Singh son of Sh. Roop Ram, resident of VPO Bahu Akbarpur, District Rohtak.
……….………….Complainant.
Vs.
- Cholamandalam MS General Insurance Company Ltd., Registered and Head office Dare House, 2nd floor, No.2, NSC Bose Road, Chennai-600001, through its Manager.
- Mahindra and Mahindra Finance Company Ltd., Second Floor, Above Axis Bank, near Ambedkar Chowk, Rohtak, through tis Manager/authorized signatory.
...........……Respondent/opposite party.
COMPLAINT U/S 35 OF CONSUMER PROTECTION ACT.
BEFORE: SH.NAGENDER SINGH KADIAN, PRESIDENT.
DR. TRIPTI PANNU, MEMBER.
DR. VIJENDER SINGH, MEMBER
Present: Sh.Devender Singh Advocate for the complainant.
Sh.Gulshan Chawla, Advocate for the opposite party No.1.
Smt. Ruchi Chawla Advocate for the opposite party No.2.
ORDER
NAGENDER SINGH KADIAN, PRESIDENT:
1. Brief facts of the case as per the complainant are that he is registered owner of the vehicle car bearing registration no.HR12V-1177, which was got financed with the respondent no.2 at Rohtak and also got insured with respondent no.1 insurance company vide certificate no.3362/01333213/000/00 for the period 08.03.2017 to 07.03.2018 and IDV of the vehicle is Rs.550000/-. The aforesaid vehicle of the complainant was got stolen in the area of P.S.Adarsh Nagar, North West Delhi and FIR no.006568 dated 27.02.2018 was got lodged. Complainant intimated to official of opposite party No.1 & 2 within time and lodged his claim. Complainant submitted all the required documents and completed all the required formalities. He visited the office of opposite party No.1 number of times to get his genuine claim but the opposite party No.1 did not pay any claim amount to the complainant despite his repeated requested. The act of opposite parties is illegal and amounts to deficiency in service. . Hence this complaint and it is prayed that opposite parties may kindly be directed to pay the claim amount i.e. IDV Rs.550000/- alongwith interest @ 18% p.a. from the date of its accrual till its realisation, to pay Rs.150000/- as compensation on account of deficiency in service and Rs.11000/- as litigation expenses to the complainant.
2. After registration of complaint, notice was issued to the opposite parties. Opposite party No.1 in its reply has submitted that the claim intimation was received in the office of opposite party No.1 regarding the theft of the vehicle and the opposite party registered the claim of the complainant vide claim no.3362376792 and the same was intimated to the informer for better communication. The opposite party investigated the matter and it was revealed that the vehicle in question was earlier declared as total loss by Bharti AXA General Insurance Company. The complainant affirmed the same and also confirmed the factum regarding the vehicle being repaired from Priya Automobiles. The opposite party asked the complainant to make a written statement as regard to present factum alongwith affidavit and simultaneously wrote a letter to Priya Automobiles confirming the factum regarding repair of the vehicle in question. The Priya Automobile reverted back to the letter stating the factum that the vehicle in question being earlier declared as total loss by Bharti AXA General Insurance Company and later on parked in its garage for the long span of time and later on the car was returned without repair. Hence he was unable to share the bills as the vehicle was not repaired contrary to the statement made by the complainant. Further the Priya Automobiles also disclosed the fact that earlier SBI General Insurance company also served a letter on them regards the vehicle in question. Complainant had made an unsuccessful attempt to get the false enrichment. Hence the claim of the complainant has been rightly repudiated vide letter dated 21.08.2019 on the ground of misrepresentation of the facts. All the other contents of the complaint were stated to be wrong and denied and opposite party prayed for dismissal of complaint with cost.
3. Opposite party No.2 in its reply has submitted that complainant after adjusting the loan amount took No Objection certificate on 31.10.2018. Hence now there does not arise any relation between complainant and answering respondent no.2. No act and conduct on the part of opposite party is illegal and opposite party prayed for dismissal of complaint.
4. Ld. counsel for complainant in his evidence has tendered affidavit Ex.CW1/A, documents Ex.CW1 to Ex.CW6 and closed his evidence on dated 25.08.2021. Ld. Counsel for opposite party No.1 has tendered affidavit Ex.RW1/A, documents Ex.R1 to Ex.R7 and failed to conclude its evidence despite availing sufficient opportunities. Hence the evidence of opposite party No.1 was closed by the order dated 06.10.2023 of this Commission. Ld. Counsel for opposite party No.2 has tendered affidavit Ex.RW2/A and closed his evidence on 09.02.2022.
5. We have heard ld. counsel for the parties and have gone through material aspects of the case very carefully.
6. We have perused the documents placed on record by both the parties. As per the complainant he has already disbursed the loan amount and the respondent no.2 issued NOC on 31.10.2018. So there is no deficiency in service on the part of respondent no.2. As per amended written statement filed by opposite party No.1, the opposite party investigated the matter and it was revealed that the vehicle in question was earlier declared as total loss by Bharti AXA General Insurance Company. The complainant affirmed the same and also confirmed the factum regarding the vehicle being repaired from Priya Automobiles. The opposite party asked the complainant to make a written statement as regard to present factum alongwith affidavit and simultaneously wrote a letter to Priya Automobiles confirming the factum regarding repair of the vehicle in question. The Priya Automobile reverted back to the letter stating the factum that the vehicle in question being earlier declared as total loss by Bharti AXA General Insurance Company and later on parked in its garage for the long span of time and later on the car was returned without repair. We have minutely perused the documents Ex.R2 & Ex.R3. In fact to clear the doubt respondent insurance company enquired from the complainant about the previous status of the vehicle. He submitted an affidavit with the respondent officials and the form of the affidavit is Ex.R4. It has been mentioned in Ex.R4 affidavit that the complainant repaired his vehicle from Priya automobile. To confirm this fact the respondent wrote a letter to Priya automobile on two addresses i.e. Rohtak and Gohana. The reply from Priya Automobile workshop near Khanpur Mor, Gohana has been received in the office of respondent which has been placed on record by the respondent as Ex.R6. No reply was given by the Rohtak office. They have replied that the car was parked in their garage for long time after the claim and the same was returned without any repairs. Hence there is apprehension that the complainant has got repaired the vehicle from Priya Automobile Rohtak. It has not been clearly proved that the same was not repaired from Priya Automobile Rohtak. Moreover at the time of argument, the previous insurance policy ‘Annexure JN-A’ and other documents “Annexure JNB to Annexure JNC” are also placed on record which itself shows that this document/policy has been issued by Bharti AXA Gen. Insurance Co. for the period 08.05.2015 to 07.05.2016 and the IDV of the vehicle at that time was Rs.630000/-. As per respondent the vehicle was total damaged in an accident and the whole amount has been paid by the previous insurance company i.e. Bharti Axa to the complainant. It has further submitted that a claim has been raised by the complainant from the respondent insurance company. As per ‘Annexure JN-C’ an amount of Rs.419000/- has been paid by Bharti AXA Gen. Insurance company to the bank in the loan account of complainant. Meaning thereby the amount of Rs.419000/- is less than 75% of IDV. The IDV value of vehicle in 2015-16 was Rs.630000/- and 75% of the same comes to Rs.472500/- and the insurance company has given the claim of Rs.419000/- which is less than 75% of IDV. Meaning thereby vehicle was not considered as total loss and the amount was paid on repair basis after settling the claim on repair basis. Hence it is proved that the claim was paid for the period 08.05.2015 to 07.05.2016 and the present insurance policy was issued by the respondent from 08.03.2017 to 07.03.2018. Meaning thereby the vehicle was not insured by any insurance company from 08.05.2016 to 07.03.2017. The insurance policy was issued by the respondent no.1 after due verification or after obtaining photographs of the vehicle in question. If any fraud has been committed by the complainant, in that situation what steps have been taken by the insurance company against the agent of the company who issued the cover note, took photographs or issued policy to the complainant. Without any evidence, it cannot be presumed that the vehicle was total loss at the time of previous accident and was not repaired by the complainant from any workshop. Hence there is deficiency in service on the part of opposite party No.1 and opposite pasty No.1 is liable to pay the IDV of vehicle to the complainant.
7. In view of the facts and circumstances of the case, we hereby allow the complaint and direct the opposite party No.1 to pay the amount of Rs.550000/-(Rupees five lac fifty thousand only) alongwith interest @ 9% p.a. from the date of filing the present complaint i.e. 03.07.2019 till its realisation and shall also pay Rs.5000/-(Rupees five thousand only) as compensation on account of deficiency in service and Rs.5000/-(Rupees five thousand only) as litigation expenses to the complainant within one month from the date of decision. However, complainant is directed to complete the formalities i.e. to submit the signed form no.29-30, indemnity bond and subrogation letter in favour of the company within 15 days from today and thereafter opposite party shall comply with the order dated 12.03.2024 of this Commission. Complainant is also directed to send a letter to the RTO for cancellation of R.C.
8. Copy of this order be supplied to both the parties free of costs. File be consigned to the record room after due compliance.
Announced in open court:
12.03.2024.
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Nagender Singh Kadian, President
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Tripti Pannu, Member.
……………………………….
Vijender Singh, Member
