Haryana

Bhiwani

CC/5/2018

Manish Kumar - Complainant(s)

Versus

Cholamandlam - Opp.Party(s)

mahesh bhardwaj

09 Jul 2024

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSASL COMMISSION, BHIWANI.

                                                                Complaint Case No. : 05 of 2018

                                                                Date of Institution    :  03.01.2018

                                                                Date of decision:      : 09.07.2024

 

Manish Kumar son of Sh. Ram Bhagat R/o Nehru Colony, Near City Railway Station, Bhiwani, Tehsil and District Bhiwani.

                                        ...Complainant. 

 

                                                    Versus.

1.       Cholamandalam MS General Insurance Co. Ltd., Office at Karnal Branch Office, through its Manager/authorized person.

2.       INDUSIND Bank Ltd., Bhiwani branch IBL VFD Bhiwani branch, Code No.200184755907 through its Branch Manager/authorized person.

 

...Opposite parties

 

COMPLAINT U/S 12 OF CONSUMER PROTECTION ACT, 1986.

Before: -       Mrs. Saroj Bala Bohra, Presiding Member.

                    Ms. Shashi Kiran Panwar, Member.

Present:        Sh. Mahesh Bhardwaj, Advocate for complainant.

Sh. Avinash Sardana, Advocate for OP No.1.

Sh. Rajender Verma, Advocate for OP No.2.

  

                                                  ORDER

 

SAROJ BALA BOHRA, PRESIDING MEMBER:

1.                 Brief facts of this complaint are that complainant being registered owner of a Maruti Car A-Star got it insured from OP No.1 for a period from 15.10.2011 to 14.10.2012 and the vehicle was financed from OP No.2.  It is averred that on 22.09.2012, the vehicle was stolen from the parking of Shelter Home (Anath Ashram) village Kaimri, District Hisar. Upon complaint, FIR No.761 dated 22.09.2012 U/s 379 IPC was registered at P.S. Sadar, Hisar.  Thereafter, claim was lodged with OP insurance company submitting all necessary documents. The vehicle remained untraced and report to this effect submitted by police before the Court concerned which accepted by the Court. Such report was also submitted to the OP insurance company but they did not settle the claim without assigning any reason. Hence, the present complaint has been preferred by complainant alleging deficiency in service resulting into monetary loss as well as mental and physical harassment.  In the end, prayer has been made to direct the OPs to pay Rs.3,30,000/- alongwith interest @ 18% per annum from the date of theft till actual realization. Further to pay Rs.50,000/- as compensation for harassment besides Rs.5500/- as cost of litigation.  Any other relief to which this Commission deems fit has also been sought.

                    It has been averred in the complaint that earlier complaint filed in this cause of action before Public Utility Court, Bhiwani was withdrawn with permission to file afresh, vide order dated 16.02.2016.

2.                 Upon notice, OP No.1-insurance company filed written statement raising preliminary objections qua territorial jurisdiction, complaint being time barred, maintainability of complaint, cause of action and suppression of material facts.   On merits, it is submitted that on receiving information on 04.10.2012 qua theft of the insured vehicle, matter was got investigated by answering OP who vide his report dated 11.01.2023 recommended repudiation of the claim of complainant as  father of complainant while going to Hisar on 22.09.2012 stopped the car in front of the said Ashram and left ignition key inside the vehicle; on return, the vehicle was missing; such act on the part of insured constitutes breach of conditions No.4 & 8 of the insurance policy.  The answering OP has also alleged 12 days delay in intimating qua loss of the vehicle to it. So, the claim was repudiated vide letter dated 30.05.2013.  In the end, denied for any deficiency in service and prayed for dismissal of the complaint with costs.

3.                 OP No.2 –Bank filed written statement raising preliminary objections qua maintainability of complaint, locus standi, misjoinder of necessary parties and suppression of material facts. On merits, it is stated that a loan of Rs.2,80,000/- was sanctioned to the complainant for purchase of the said car and total loan agreement value of the amount was Rs.3,50,980/-.  It is submitted that no intimation qua theft of the vehicle was given to it. However, as per insurance policy, answering OP being a financer of the vehicle, is entitled to receive the claim amount from OP No.1. It is added that the claim liability towards complainant, if any, on the OP No.1 insurance company. However, it is submitted that entire outstanding loan amount has already cleared by complainant on 12.07.2013 and NOC to this effect has already issued. In the end, prayed for dismissal of complaint qua the answering OP.

4.                 In evidence of complainant, documents Annexure-1 to Annexure-4 were tendered and closed the evidence on 03.07.2023.

5.                 On the other side, documents Annexure R-1 to Annexure R-8 were tendered in evidence of OP NO.1 and closed the same on 09.05.2024.

6.                 Affidavit Ex. RW2/A of Sh. Pawan Yadav, authorized signatory and document Annexure R-9 filed in evidence of OP No.2 and closed the evidence on 09.05.2024.

7.                 We have heard learned counsels for the parties and gone through the record carefully.

8.                 Perusal of Investigation report (Annexure R-6) got conducted by OP insurance company  and receipt Annexure-3 reveal that the complainant is registered owner of the vehicle in question bearing registration no.HR-16L-1421.  Annexure R-1 is the insurance policy wherefrom it is evident that on the day of theft, the vehicle was under insurance cover and was having IDV of Rs.3,33,000/-. Copy of FIR is Annexure-1 reveals that the vehicle in question was theft on 22.09.2012 and FIR No.761 dated 22.09.2012 under Section 379 IPC was registered at PS Sadar Hisar in this  regard. Annexure-1 is the untraced report accepted by the Court of LD. ACJM, Hisar vide order dated 11.07.2013.

9.                 Learned counsel for complainant has argued that OP insurance company has wrongly and illegal repudiated the claim of complainant whereas the vehicle was duly covered under the policy period. Ld. counsel for complainant has argued that the vehicle was being used within the terms and conditions of the insurance policy and there was no breach of any condition at any point of time and prayed for acceptance of the complaint.   

10.               On the other side, learned counsel for OP has argued that the vehicle was being driven in violation of terms and conditions of insurance policy as it was parked without any lock and ignition key was within the vehicle at the time of theft and thus it was rightly repudiated by it and prayed for dismissal of the complaint with exemplary costs.

11.               From the version of FIR, claim form and report of investigator, it is evident that driver of the vehicle had left the key in the vehicle which is violation of terms and condition no.4 of the insurance policy. However, it is pertinent to mention here that as per law laid down by Hon’ble Supreme Court of India in case titled National Insurance Co. Ltd. Vs. Nitin Khandelwal  Civil Appeal No.3409 of 2008, decided on 08.05.2008, the repudiation was not justified, wherein it is observed that “Consumer Protection Act, 1986-Section 14(1)(d)-Insurance Claim-Insured vehicle stolen-Claim was repudiated on the ground that terms and condition of policy were violated –State Commission settled claim on non-standard basis directing insurance company to pay 75% of claim amount which was upheld by National Commission giving rise to present civil appeal-Held, Claim cannot be repudiated for breach of policy condition as nature of used of vehicle cannot be taken into consideration-Order passed by Consumer Fora upheld.”

12.               After hearing rival contentions of learned counsels for the parties and going through the entire evidence produced on record, we have come to conclusion that end of justice, would be met if claim of complainant is decided on non-standard basis, at 75% of IDV of the vehicle. As, IDV of the vehicle was Rs.3,33,000/-, hence, the complainant is entitled to Rs.2,49,750/-. As per averments of OP No.2-financer, it has already received full and final payment of the loan amount from complainant, therefore, now no amount is payable to it.  It is further observed that repudiation of the claim by OP insurance company was not reasonable and justified in the circumstances of the present case. This conduct of OP No.1 must have caused mental and physical harassment to the complainant besides monetary loss. Hence, the complainant is also entitled to compensation for harassment. Accordingly the complaint is partly allowed and OP No.1 is directed to comply with the following directions within forty days from the communication of this order:-

(i)       To pay a sum of Rs.2,49,750/- (Rs. Two lac forty nine thousand seven hundred fifty) to the complainant alongwith simple interest @ 9% per annum from the date of institution of complaint till its realization subject to execution of letter of Subrogation in favour of OP No.1 insurance company and furnishing of affidavit & all other relevant documents qua transfer of vehicle in question in favour of the OP insurance company by the complainant within 15 days from the date of communication of this order.

(ii)      Also to pay a sum of Rs.10,000/- (Rs. Ten thousand) on account of harassment  caused to the complainant at the hands of OP insurance company.

(iii)     Also to pay a sum of Rs.5500/- (Rs. Five thousand five hundred) on account of litigation expenses.

                    In case of default, all the aforementioned awarded amounts shall attract simple interest @ 12% per annum for the period of default.  If this order is not complied with, then the complainant shall be entitled to the execution petition under section 71 of Consumer Protection Act, 2019 and in that eventuality, the opposite party No.1 may also be liable for prosecution under Section 72 of the said Act which envisages punishment of imprisonment, which may extend to three years or fine upto rupees one lac or with both.  Copies of this order be sent to the parties concerned, free of costs.  File be consigned to the record room after due compliance. 

Announced.

Dated:09.07.2024.