Delhi

North West

CC/526/2015

SANJAY KUMAR - Complainant(s)

Versus

HDFC ERGO GENERAL INS.CO.LTD. & ORS - Opp.Party(s)

04 Dec 2017

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, NORTH-WEST

                                      GOVT. OF NCT OF DELHI

CSC-BLOCK-C, POCKET-C, SHALIMAR BAGH, DELHI-110088.

 

CC No: 526/2015

D.No._______________________                   Dated: _______­­­­­­­­­­­­_________ 

IN THE MATTER OF:

 

 

SANJAY KUMAR S/o SH. PREM SINGH,

R/o H. No. 82,

VILLAGE-NITHARI,DELHI.… COMPLAINANT

 

 

Versus

 

1. HDFC ERGO GENERAL INS. CO. LTD.,

    (THROUGH ITS CHAIRMAN),    

    REGD. OFFICE AT: 6^th FLOOR,

    LEELA BUSINESS PARK, ANDHERI KURLA ROAD,

    ANDHERI (EAST), MUMBAI-400059.

 

    BRANCH OFFICE: PLOT No. C-9, 3^rd FLOOR,

    PEARL BEST HEIGHTS-II, NETAJI SUBHASH PLACE,

    PITAM PURA, NEW DELHI-110034.

 

2.VIJAYA BANK,

    BRANCH MUNDKA, DELHI-110041.… OPPOSITE PARTY(IES)

 

 

CORAM :SH. M.K. GUPTA, PRESIDENT

                SH. BARIQ AHMED, MEMBER

      MS. USHA KHANNA, MEMBER

                                                           Date of Institution: 11.05.2015

         

                                                            Date of decision:09.02.2018

 

 

 

 

CC No. 526/2015                                                              Page 1 of 8

 

SH. M.K. GUPTA, PRESIDENT

ORDER

 

1.       The complainant has filed the present complaint against the OP under Section 12 of the Consumer Protection Act, 1986 thereby alleging that the complainant is owner of the vehicle Renault Duster-110PS RxZ diesel bearing Registration No. DL-4C-NA-7878, chassis no. MEEHSRA36C8003935, engine no. D002234 & colour-white and the same was fully insured from OP-1vide policy no. 2311200817814500001 dated 01.08.2014 for the period starting from 07.09.2014 to 06.09.2015 (mid-night). On 14.01.2015, the vehicle of the complainant was stolen from Main Kanjhawala Road, in front of Nexus Jim, Mange Ram Park, Pooth Kalan, Delhi between 8:30 PM to 9:30 PM and the complainant immediately informed the police and lodged a FIR vide no. 79/15 dated 14.01.2015 u/s 379 IPC was registered at Vijay Vihar Police Station and the complainant informed OP-1 about the theft of the vehicle and the complainant also gave written information to the Transport Authority, Rajouri Garden, Delhi on 15.01.2015 itself. The complainant further alleged that the vehicle was hypothecated to OP-2 who is the proforma party in the present complaint and the complainant also obtained certificate mentioning thereby that the vehicle has not been seized by OP-2 and the complainant has paid

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          all the due installments till date the vehicle was stolen. The complainant further alleged that the police filed untraced report in the aforesaid FIR no. 79/15 on 09.02.2015 and the same was accepted by the Court of Sh. Viplav Dabas, M.M., Delhi vide order dated 13.02.2015 and the complainant also lodged a claim before OP-1 and submitted all necessary documents and OP-1 registered the claim of the complainant as claim no. C230014112508. Thereafter OP-1 has repudiated the claim of the complainant on the ground that the complainant has failed to submit the second original key and there is a violation of policy condition no. 4 and one key of the vehicle was lost when the complainant has gone to attend a marriage at village Mundka on 03.12.2014 and the complainant gave a written information about the same to the police on 05.12.2014 and the complainant also gave the copy of the same to OP-1 at the time when the documents were submitted by the complainant to OP-1 for consideration. The complainant further alleged that OP-1 has repudiated the valid claim of the complainant on flimsy grounds without any valid reason/ground and thus amounting to deficiency in service on the part of OP-1.

2.       On these allegations the complainant has filed the complaint praying for direction to OP -1 to pay a sum of Rs.8,04,000/- being insured value of the vehicle alongwith interest @ 24% p.a. from the

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          date of payment till the date of realization as well as compensation of Rs.1,00,000/- for causing mental, physical pain, agony and harassment and has also sought of Rs.25,000/- as litigation cost.

3.       OP-1& OP-2 have been contesting the case and filed reply/written statement and OP-1 submitted that there is no deficiency in service on the part of OP-1,the complaint is not maintainable and is liable to be dismissed. OP-1 further submitted that the policy bearing no. 2311200817814500001 valid from 07.09.2014 to 06.09.2015 for vehicle no. DL-04CNA-7878 insured in the name of Sh. Sanjay Kumar was issued for a sum of Rs.8,04,000/-. However, the liability of the company, if any, is subject to terms & conditions of the policy and an intimation of theft of the vehicle was received by OP on 14.01.2015 and on receiving information M/s Suraksha Enterprises were appointed to investigate the matter who submitted the report dated 03.03.2015 and as per report the complainant has provided only one key of the vehicle and has given an affidavit that the second key of the vehicle had stolen in the marriage and the competent authority after going through the facts of the case found that the explanation given regarding not submitting of the second key does not rule out the fact that the lost key would have been misused for alleged theft. OP-1 further submitted that after the lost of one key no reasonable steps were taken by the complainant to

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          safe guard the vehicle from theft by way of misuse of missing key including without limitation replacement of lock set and therefore the complainant has not taken the reasonable care to safeguard the vehicle which is a violation of condition no. of the policy terms & conditions. OP-1 further submitted that during the investigation as per manufacturer record vehicle is fitted with immobilizer hence cannot be stolen without original key and hence in all probabilities the theft is attributed to the lost key after the loss of which the complainant has failed to change the lock. OP-1 further submitted that the competent authority applied its mind and repudiated the claim and was duly informed to the complainant vide letter wrongly dated as 23.01.2015 whereas it was 17.03.2015 and the OP-1 accordingly submitted that the complaint is liable to be dismissed.

4.       OP-2 in its written statement submitted that the complaint is not maintainable and thus is liable to be dismissed. OP-2 further submitted that OP-2 is the mortgager and had an outstanding of Rs.2,11,704/- towards the complainant as on 31.12.2015 and the OP-2 accordingly submitted that the complaint is liable to be dismissed.

5.       The complainant did not file rejoinder.

6.       In order to prove his case the complainant filed his affidavit in evidence and the complainant also filed written arguments. The

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          complainant placed on record copy of election ID card, copy of Registration Certificate, original copy of Private Car Package Policy issued by OP-1, copy of FIR dated 14.01.2015, copy of letter dated 15.01.2015 sent by the complainant to the Transport Authority, copy of certificate dated 15.01.2015 issued by OP-2, copy of order dated 13.02.2015 of M.M., copy of untraced report date 09.02.2015, copy of letter dated 23.01.2015 sent by OP-1 to the complainant and copy of complaint dated 05.12.2014 to the SHO, P.S. Aman Vihar regarding lost of key of the vehicle.

7.       On the other hand on behalf of OP-1 Sh. Pankaj Kumar, Legal& Authorized Representative of OP-1, filed his affidavit which is on the basis of the reply/written statement of OP-1 and Sh. A.K. Sinha, Senior Manager for OP-2 also filed his affidavit in evidence which is on the basis of reply/written statement of OP-2. Both the OPs have also filed their written arguments.

8.       This forum has considered the case of the complainant in the light of evidence of both the parties and documents placed on record by the complainant. The testimony of the complainant has remained consistent and there is nothing on record to disbelieve the case of the complainant. The complainant has proved the fact that after first key of the vehicle was lost in a marriage, he lodged an FIR with the police. Thus, it cannot be said that the complainant was

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negligent and as such the claim should not have been repudiated on the ground of violation of terms & conditions of the policy. Thus, it appears that OP-1 has unlawfully repudiated the claim of the complainant. Accordingly, we hold the OP-1 guilty of deficiency in service.

9.       Accordingly, OP-1 is directed as under:

i)        To re-imburse the IDV of the vehicle i.e. Rs.8,04,000/- and of which an amount of Rs.1,35,686/- be paid to Vijaya bank i.e. OP-2 and an amount of Rs.6,68,314/- be paid to the complainant.

ii)       To pay to the complainant an amount of Rs.40,000/- as compensation towards mental agony and  harassment caused to the complainant which includes cost of litigation.

10.     The above amount shall be paid by the OP-1 to the complainant within 30 days from the date of receiving copy of this order failing which OP-1 shall be liable to pay interest on the entire awarded amount @10% per annum from the date of receiving copy of this order till the date of payment. If OP-1 fails to comply with the order within 30 days from the date of receiving copy of this order, the complainant may approach this Forum u/s 25 of the Consumer Protection Act, 1986.

CC No. 526/2015                                                                          Page 7 of 8

11.     Let a copy of this order be sent to each party free of cost as per regulation 21 of the Consumer Protection Regulations, 2005. Thereafter file be consigned to record room.

Announced on this 9^th day of February, 2018

 

BARIQ AHMED                            USHA KHANNA                      M.K. GUPTA

   (MEMBER)                              (MEMBER)                                  (PRESIDENT)