BEFORE THE PRESIDENT, DISTRICT CONSUMER DISPUTES REDRESSAL FORUM: NUH.
Consumer complaint No.12
Date of Institution: 27.05.2016
Date of Order: 28/07/2017
Tayyub Hussain son of Ayub Khan, resident of village Meoli Tehsil Nuh, District Nuh.
….Complainant.
Versus
- HDFC ERGO General Insurance Company Ltd., Mehroli Road, Sector-14, Gurgaon.
- Mohd.Irfan insurance point, near Balaji Patrol Pump, Nuh Mewat.
…. Opposite parties.
Complaint under section 12 of Consumer Protection Act, 1986.
BEFORE Mr.Rajbir Singh Dahiya, President.
Mrs.Keeran Bala, Member.
Present: Sh.Sazid Hussain, Advocate for the complainant.
Mr.Sandeep Mittal, Advocate for the opposite party No.1.
Opposite party No.2 already ex-parte.
ORDER R.S. DAHIYA, PRESIDENT.
Brief facts of the complaint are that the complainant is a registered owner of the vehicle No. HR-74-9146 Model-2011. The aforesaid vehicle was insured with the opposite party vide policy number 2315200585977100000 commencing w.e.f. 19.09.2013 to 18.09.2014. On 17.04.2014, the vehicle of the complainant was stolen by some unknown person when the driver after unloading the vehicle was going to Palwal and went to Dhabha for taking some food. The complainant made his best efforts to find out his vehicle but could not succeed. Thereafter, the complainant moved an application to the local police Nohjhil on the same day and an FIR bearing No.4 of 2015 u/s 379 IPC has been registered. Information in this regard has also been given to the Insurance Company on the same day and lodged his claim regarding theft of vehicle. The complainant completed all the formalities for getting the OD claim on account of theft of his vehicle. The investigator of the opposite party also visited with the spot. Thereafter, the complainant requested many times to the opposite party to release his OD claim but the opposite party evading the matter on one pretext or the other. Hence, this complaint and by way of this complaint, the opposite party may please be directed to pay Rs.18,00,000/- alongwith cost and interest @ 18% p.a.
3. On notice, the opposite party No.1 put his appearance by way of filing his written reply taking the preliminary objections that on 21.04.2014, the claim was lodged by the complainant alleging theft of the insured vehicle on 17.04.2014, however, the date of alleged theft as per statement given by the complainant is 20.04.2014. Further stated that the intimation of the occurrence was firstly received by the insurance company on 21.04.2014, however the FIR was lodged on 07.01.2015 i.e. after the delay of 260 days whereas the theft was occurred on 17.04.2014 which amply prove on record that the complainant has failed to intimate the insurance company as well as the police immediately which amounts to gross violation of condition No.1 of the insurance policy conditions. Further stated that the present complaint is misconceived, misrepresented, travesty of truth. Further it is also stated that the present complaint of the complainant is not maintainable being the jurisdiction before the Hon’ble Forum as no any branch and other office is located in jurisdiction of District Mewat. Further stated that as per the statement provide by the complainant, the vehicle had been left unattended with the original key in it which is gross negligence on the part of the complainant and is not covered under the terms and conditions of the policy. The complaint of the complainant is false, bogus, concocted one and does not disclosed any cause of action against the answering respondent. Other facts have been denied. On merits, it is stated that vehicle is insured in the name of Mr.Tayyub Hussain vide policy number 2315200585977100000 valid for the period of 19.09.2013 to 18.09.2014. It is submitted that the insurance company never undertaken to indemnity or to provide insurance service to the insured, in case, violation of the terms & conditions of the insurance policy. Further denied that any theft of vehicle took place on 17.04.2014 at about 10.00 P.M. near Maharamgari Mode at Mangari Road, the driver went to Dhabha for taking food and when he came, he found the vehicle in question missing and the same has been stolen by some unknown persons. On the contrary, it is submitted that the complainant has been procured the FIR in connivance with the police and interested persons as well in order to present false and unsustainable claim and to fleece the compensation from the insurance company being a Private Sector Undertaking. Further submitted that company had received intimation on behalf of the complainant on 21.04.2014 being first time after a gap of an inordinate delay of 4 days and FIR was lodged on 7.1.15 i.e. after a gap of 260 days wherein alleging theft of vehicle No.HR 74/9146 on 17.04.2014, hence, the insurance company have arrived at the decision in treating such claim as “NO CLAIM” vide letter dated 02.04.2016. In the end, dismissal of the complaint has been prayed for with costs.
4. In evidence the complainant has produced his own affidavit Ex.CW1/A, copy of RC mark-C1, copy of fee receipt mark-C2, Certificate of insurance mark-C3, copy of FIR mark-C4, copy of final survey report mark-C5, copy of Cash Memo mark-C6 and copy of order dated 20.11.2015 mark-C7 and closed the evidence. On the other hand, opposite party has produced the affidavit of Dushyant Kumar Meena, Senior Executive which marked as Ex.R-1, copy of private car package policy Ex.R-2, copy of private car package policy schedule Ex.R-3, copies of inspection report Ex.R-4 & R-14, copy of application Ex.R-5, copy of final survey report Ex.R-6, copy of parts report Ex.R-7, copy of photographs Ex.R-8 to Ex.R-13 and copy of final survey and pre inspection photo Ex.R-15 and closed the evidence.
5. We have heard the counsels for the parties and have gone through the records placed on file. The main objection raised by the opposite party is that the complainant had produced a different vehicle at the time of pre inspection than the vehicle in question and further the opposite party raised the objection about the reading of speedometer which stood at 13538 KMs on 20.12.2013 ( the date on which the vehicle was insured) as well as on 09.01.2014 ( the date of survey after the accident). Both the grounds are untenable; firstly in inspection report Exhibit R-4 dated 20.12.2013 which is a document of the opposite party wherein the chassis number and registration number are of the same vehicle which was duly inspected by the surveyor of the opposite party. Further the report of surveyor which are Exhibits R-6 and R-7 dated 09.01.2014 also reflects the same chassis number and registration number. The surveyor of the opposite party has given the registration number as well as the embossed chassis number from the vehicle which was inspected by him. So this objection is of no help to the opposite party and the same is disallowed. So far as the second objection of the opposite party which is to the effect that the speedometer was giving the same reading on 20.12.2013 as well as on 09.01.2014 i.e. pre inspection and survey after the accident. First of all reading of the vehicle to be the same on both occasions may be due to several reasons and technical defects which might have stopped the running of speedometer while driving the car like disconnection of speedometer wire or any other technical defects, so this cannot be the reason of disallowing the claim.
6. The surveyor of the opposite party has agreed to the spare parts to be repaired and this claim amount almost concur with the amount actually spent by the complainant on the repairing the vehicle from M/s Javed Motors, Alwar Road, Nuh. So the objection of no damage to the rear bumper and dickey is not tenable. Further the opposite party has taken the objection that the vehicle was got repaired from an unapproved workshop as well as an objection that no mechanic report was prepared by the police. These objections are of no consequence when the surveyor of the opposite party has given a report of estimated loss to the tune of Rs.1,58,076/- and the actual cost of repairing is 1,58,552/-. The counsel for the opposite party has relied upon a case of Hon’ble National Commission in case titled as New India Assurance Company Ltd. Vs. Roshan Lal Oil Mills (2010) 10 SSC 19 but the same is not applicable to the facts of the case is hand.
7. In view of the above discussions, we hold that there is deficiency in service on the part of the opposite party, resultantly the complaint is allowed and the opposite party is directed to pay a sum of Rs.1,58,076/-(as per the surveyor report after deduction of depreciation and compulsory excess amount) alongwith interest at the rate of 10% p.a. from the date of filing of complaint i.e. 13.01.2016 till its realization. The opposite party is further directed to pay a sum of Rs.2000/- as compensation and Rs.5000/- as litigation expenses. Compliance of this order be made within 30 days from the date of receiving the copy of this order. Copy of this order be given to the parties free of costs. File be consigned to record room.
This order of the Forum is running into 5 pages in total and each and every page of this order has been checked & signed.
Announced in open Court.
28/07/2017
(Urmil Beniwal) (Keeran Bala) (Rajbir Singh Dahiya)
Member Member President,
District Consumer Disputes
Redressal Forum, Nuh
