Haryana

Karnal

CC/130/2021

Subhash Singh - Complainant(s)

Versus

HDFC Ergo General Finance Company Limited - Opp.Party(s)

Deepak Saini

26 Jul 2024

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, KARNAL.

 

                                                        Complaint No.130 of 2021

                                                        Date of instt.01.03.2021

                                                        Date of Decision 26.07.2024

 

Subhash Singh son of Shri Baldev Singh, resident of house no.195, village Thal, tehsil Assandh, District Karnal.

                                                 …….Complainant.

                                              Versus

 

HDFC Ergo General Finance Company Limited, SCO no.237, 2^nd floor, sector-12, Karnal through its Branch Manager (insurer of tractor bearing registered no.HR-40G-3099, bearing chasis no.MBNAAALEEHJF00640, engine no.NHF2MDE2489, vide policy no.2316 2020 0315 8300 00, valid since 15.11.2017 to 14.11.2018.

Head office Address: 1^st floor, HDFC House, House Backbay Reclamation, H.T. Parekh Marg Churchgate, Mumbai-400020.

 

                                                              …..Opposite Party.

 

Complaint Under Section 35 of Consumer Protection Act, 2019.

 

Before   Shri Jaswant Singh……President.     

      Shri Vineet Kaushik…….Member

      Ms. Sarvjeet Kaur…..Member

            

Argued by: Shri Deepak Saini, counsel for the complainant.

                   Shri Sanjeev Vohra, counsel for the OP.

 

                     (Jaswant Singh, President)

ORDER:   

                

                The complainant has filed the present complaint under Section 35 of the Consumer Protection Act, 2019 against the opposite party (hereinafter referred to as ‘OP’) on the averments that complainant purchased on tractor bearing registration no.HR-40G-3099 from M/s Om Tractor, Karnal Road, Assandh, vide invoice no.530 dated 14.11.2017 and got it insured with OP for a sum of Rs.5,60,000/-, vide policy no.2316202003158300000, valid from 15.11.2017 to 14.11.2018 and paid a sum of Rs.13243/- as premium amount. On 08.07.2018, some unknown person had stolen the abovesaid tractor and thereafter, the complainant lodged an FIR no.0581 dt. 12.07.2018 under section 379 IPC, with Police Station, Assandh (Karnal). On the next day, complainant went to the local office of OP and informed about the theft of vehicle and requested them to get the formalities completed for payment of compensation of vehicle, but official of the OP stated that as and when the untrace report will submitted by the police in the court, the claim of the complainant will be settled. The complainant visited the police station several times and to enquire about the untrace report. The untrace report was accepted by the learned Illaqa Magistrate, vide order dated 10.12.2019. Complainant submitted certified copy of order to the OP. The officials of the OP got signed the claim form and stated that all the documents are complete and no other formalities is require and asked to come in the office in the last week of March, 2020. In the last week of March, 2020 the lockdown was imposed throughout the country and the offices were lying closed and nobody was allowed to go out of their houses. After waiting sufficient time, complainant again went to the office of OP on 18.02.2021 and requested to pay the claim amount but official of the OP did not pay any heed to the request of complainant and lingered the matter on one pretext or the other and lastly repudiated the claim of complainant on the false and frivolous ground. Due to this act and conduct of the OP, complainant has suffered mental pain, agony and harassment as well as financial loss. In this way there is deficiency in service and unfair trade practice on the part of the OP. Hence this complaint.

2.             On notice, OP appeared and filed its written version raising preliminary objections with regard to maintainability; cause of action; locus standi and concealment of true and material facts. On merits, it is pleaded that the vehicle in question was insured with OP. During the validity of the policy, on 16.07.2018 a claim was lodged by the complainant stating that his vehicle was stolen at the night of 08.07.2018 when the driver parked the vehicle in the fields and went for sleep. Upon intimation of the claim investigation was duly conducted and claim was processed. The insured vehicle was allegedly stolen in the night of 08.07.2018.  However, the intimation of the theft was given to OP on 16.07.2018 i.e. with the delay of nine days and that too without any justification. The FIR was lodged of the alleged theft on 12.07.2018 i.e. after delay of four days, which constitute gross violation of the terms and conditions of the insurance policy. It is further pleaded that on receipt of claim intimation, OP appointed an independent investigator to investigate the theft claim and assess the loss. On investigation, being conducted by investigator, it was observed that:

i)      One original key was left in the vehicle itself at the time of alleged theft. The second key submitted was found fresh and unused.

        Also the statement given by the insured himself mention the fact that the driver left the key in the vehicle, as he was intoxicated.

ii)     There is delay on nine days in intimation of claim to HDFC ERGO and this has not been justified.

The FIR lodged by the complainant also categorically states that one key was left in the vehicle. The insurance policy warrants that due reasonable care be taken to safeguard the vehicle. On the basis of investigator report and due to violation of condition no.1 and 4 of the policy, the claim of the complainant was rightly repudiated by the OP, vide letter dated 08.04.2019. There is no deficiency in service and unfair trade practice on the part of the OP. The other allegations made in the complaint have been denied and prayed for dismissal of the complaint.

3.             Parties then led their respective evidence.

4.             Learned counsel for the complainant has tendered into evidence affidavit of complainant Ex.CW1/A, copy of insurance policy Ex.C1, copy of untrace report Ex.C2, copy of order dated 10.12.2019 Ex.C3, copy of bill invoice Ex.C4 and closed the evidence on 30.08.2022.

5.             In additional evidence, learned counsel for the complainant has tendered into evidence copy of closure letter dated 13.09.2023 Ex.C5, copy of No Objection Certificate Ex.C6, copy of Form no.35 Ex.C7 and closed the additional evidence on 24.05.2024 by suffering separate statement.

6.             On the other hand, learned counsel for the OP has tendered into evidence affidavit of Manoj Kumar Prajapati, manager Ex.OP1/A, copy of insurance policy Ex.O1, copy of claim form Ex.O2, copy of statement of complainant Ex.O3, photograph of key Ex.O4, copy of FIR Ex.O5, copy of investigation report Ex.O6, copy of letter dated 08.04.2019 Ex.O7 and closed the evidence on 20.03.2023 by suffering separate statement.

7.             We have heard the learned counsel of the parties and perused the case file carefully and have also gone through the evidence led by the parties.

8.             Learned counsel for complainant, while reiterating the contents of the complaint, has vehemently argued that the complainant got insured his tractor with the OP. On 08.07.2018, the said tractor was stolen by unknown person and in this regard complainant intimated the police without any delay but police has got lodged an FIR no.0581 dated 12.07.2018, under section 379 of IPC with Police Station, Assandh, Karnal. Intimation regarding theft was also given to the OP. Complainant lodged the claim with the OP and completed all the formalities for releasing of the claim. Complainant requested the OP for releasing of his genuine claim but OP did not pay the claim and repudiated the same on the false and frivolous ground and lastly prayed for allowing the complaint.

9.             Per contra, learned counsel of the OP, while reiterating the contents of written version, has vehemently argued the vehicle in question was stolen on 08.07.2018 but the intimation of the theft was given to the OP on 16.07.2018 after delay of nine days. The FIR

was also lodged on 12.07.2018 after the delay of four days. He further argued that the insured has not taken any reasonable steps to safeguard the vehicle as the key was in the vehicle at the time of theft. Thus, the claim of the complainant has rightly been repudiated by the OP and lastly prayed for dismissal of the complaint.

10.           We have duly considered the rival contentions of the parties.

11.           Admittedly, the vehicle in question was stolen during the subsistence of insurance policy. It is also admitted that the insured declared value (IDV) of the vehicle in question is Rs.5,60,000/-. It is also admitted that as per closure letter Ex.C5 dated 13.09.2023 complainant cleared the entire loan amount.

 12.          The claim of the complainant has been repudiated by the OP, vide repudiation letter Ex.O7 dated 08.04.2019 on the grounds, which are reproduced as under:-

                “On perusal of the report submitted by the fact finder and the documents submitted, following discrepancy has been observed:

.       This is to bring to your kind notice that, as per the intimation furnished by you during verification of facts in the reported loss, we have been given an understanding that you have left the insured vehicle unattended with the original key in ignition at the time of theft of the insured vehicle, it is gross negligence on your part and is not covered under the terms and conditions of the subject policy.

.       Further, it was observed that the theft occurred on 08.07.2018 wherein the intimation to the insurer was given on 16.07.2018 i.e. after a delay of 08 days, further the FIR against the mentioned theft was lodged on 12.07.2018 i.e. after a delay of 4 days.

        We would like to inform you that, there are violations of the policy terms and conditions no.1 and 4.

        In the light of the above, we regret to inform you that we would not be able to honor our liability for the abovesaid loss and we are repudiating the your claim and closed the claim as “No Claim.”

 

13.             The claim of the complainant has been repudiated by the OP on the abovesaid ground. There is delay in lodging the FIR regarding the theft of the vehicle in question.  In the present case, the vehicle in question was stolen on 08.07.2018 and complainant intimated to the police on the same day as alleged by him but police has lodged the First Information Report on 12.07.2018. It is also a matter of common knowledge that the police does not register the FIR immediately after getting information of theft of any vehicle, either the complainant is asked to trace out the vehicle at his own level or efforts are made by the police for searching the vehicle, but when the vehicle is not traced out, then only the FIR is registered. Therefore, it cannot be said that there was any unreasonable delay on the part of the complainant in lodging the FIR and intimation to OP.  In this regard we have placed reliance upon the case titled as Om Parkash Versus Reliance General Insurance and anr. in Civil Appeal no.15611 of 2017 decided on 4.10.2017 whereby Hon’ble Supreme Court of India held in para no.11 of the said judgment, that it is a common knowledge that a person who has lost his vehicle may not straightway go to the Insurance Company to claim compensation. At first, he will make efforts to trace the vehicle. It is true that the owner has to intimate the insurer immediately after the theft of the vehicle. However, this condition should not bar settlement of genuine claims particularly when the delay in intimation or submission of documents is due to unavoidable circumstances. The decision of the insurer to reject the claim has to be based on valid grounds. Rejection of the claims on purely technical grounds in a mechanical manner will result in loss of confidence of policy holder in the insurance industry. If the reason for delay in making a claim is satisfactory explained, such a claim cannot be rejected on the ground of delay. We also placed reliance upon the judgment in case titled as Gurshinder Singh Versus Shri Ram General Insurance Co. in Civil Appeal no.653 of 2020 decided on 24.01.2020 wherein Hon’ble Supreme Court in para no.20 of the said judgment has held that when an insured has lodged the FIR immediately after the theft of a vehicle occurred and when the police after investigation have lodged a final report after the vehicle was not traced and when the surveyors/investigators appointed by the insurance company have found the claim of the theft to be genuine, then mere delay in intimating the insurance company about the occurrence of the theft cannot be a ground to deny the claim of the insured. The similar view was taken by Hon’ble Supreme Court of India in case titled as Dharamnder Versus United India Insurance Co. Ltd. and others in civil Appeal no.5705 of 2021 date of decision 13.09.2021 and Jatin Construction Company Versus Oriental Insurance Company Limited and Anr. in Civil Apeal no.1069 of 2022 date of decision 11.02.2022.   In view of the ratio of the law laid down in the aforesaid judgments, facts and circumstances of the case, the plea taken by the OP has no force.

14.           As per version of the OP, the complainant had not taken all reasonable steps to safeguard his vehicle from loss or damaged. Admittedly, as per statement of complainant Ex.O3 and version of FIR Ex.C2/Ex.C5, the driver had left the key in the vehicle. In this regard, we are of the considered opinion that a common person never wants to left his vehicle for damages or to be stolen. Moreover, if for the sake of arguments, if it is presumed that complainant has violated the terms and conditions of the insurance policy, in that eventuality, the claim of the complainant cannot be repudiated in toto.  In this regard, we can relied upon the case laws  titled as Amalendu Sahu Vs. Oriental Insurance Company Limited, in Civil appeal no.2703 of 2010, decided on 25.03.2010 of Hon’ble Supreme Court of India; New India Assurance Co. Ltd. Versus Thirath Singh Brar in Revision Petition no.1870 of 2015(NC) decided on 14.08.2018 titled as of Hon’ble National Commission and authority of our own Hon’ble State Commission in First Appeal no.717 of 2016 decided on 6.4.2017 titled as United India Insurance Company Limited and others Versus Anshul Bansal.  In all the judgments it was held that in case of any breach of warranty/condition of the policy the insurer is liable to pay 75% of admissible claim on non-standard basis.

15.           Further,  Hon’ble Punjab and Haryana High Court in case titled as New India Assurance Company Ltd. Versus Smt. Usha Yadav & others 2008 (3) RCR (Civil) 111, has held as under:-

“It seems that the Insurance Companies are only interested in earning the premiums which are rather too stiff now a days, but are not keen and are found to be evasive to discharge their liability. In large number of cases, the Insurance companies make the effected people to fight for getting their genuine claims. The Insurance Companies in such cases rely upon clauses of the agreements, which a person is generally made to sign on dotted lines at the time of obtaining policy. This is, thus pressed into service to either repudiate the claim or to reject the same. The Insurance Companies normally build their case on such clauses of the policy, but would adopt methods which would not be governed by the strict conditions contained in the policy”.

16.           Keeping in view the ratio of the law laid down in the abovesaid authorities and the facts and circumstances of the present complaint, we are of the considered view that the act of the OP amounts to deficiency in service and unfair trade practice while repudiating the claim of the complainant in toto. Hence, complainant is entitled to get 75% only of the admissible claim on non-standard basis.

17.           As per insurance policy Ex.C1/Ex.O1, the insured declared value(IDV) of the vehicle in question is Rs.5,60,000/-.   Hence the complainant is entitled for Rs.4,20,000/- i.e. 75% of the insured amount alongwith interest, compensation and litigation expenses etc.

19.           In view of the above discussion, we partly allow the present complaint and direct the OP to pay Rs.4,20,000/- (Rs.four lakhs twenty thousand only) i.e. 75% of the insured amount alongwith interest @ 9% per annum from the date of filing the complaint i.e. 01.03.2021 till its realization to the complainant. We further direct the OP to pay Rs.25,000/- to the complainant on account of mental agony and harassment suffered by him and Rs.11,000/- for the litigation expenses. This order shall be complied with within 45 days from the receipt of copy of this order. Complainant is also directed to complete all the formalities with regard to transfer/cancel of the RC of the vehicle in question. The parties concerned be communicated of the order accordingly and the file be consigned to the record room after due compliance.

Announced
Dated:26.07.2024

  President,       

District Consumer Disputes

Redressal Commission, Karnal.

 

                  (Vineet Kaushik)              (Sarvjeet Kaur)

                        Member                         Member