Haryana

Karnal

451/12

Rajbir Singh - Complainant(s)

Versus

HDFC ERGO General Insurance Company - Opp.Party(s)

Sh. Rajesh kumar

07 Jan 2016

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM KARNAL.  

                                                          Complaint No.451 of 2012

                                                          Date of instt.: 17.09.2012

                                                          Date of decision: 7.01.2016

 

 

1.Bhirbhan Singh @ Mahabir 2.Karambir sons of  Sh.Mugla and 3. Smt.Roshani daughter of Mugla 4.Smt.Kareshani wife of Sh.Giani 5. Rajbir Singh son of Sh.Giani, residents of village Ahar tehsil Israna ,District Panipat. Complainant no.1 to 4 through their Special Power of Attorney Sh.Rajbir Singh , complainant no.5.

.                                                                               ……..Complainants.        

                                      Vs.

 

1.HDFC ERGO General Insurance Company Ltd.SCO 124-125, Sector 8-C, Chandigarh through its Claim Manager/Authorized Signatory.

2.HDFC ERGO General Insurance Company Ltd. Narain Plalza, SCO No.778-779,Kunjpura Road, Opposite Mahavir Dal Hospital, Karnal through Branch Manager/Authorized Signatory.

 

                                                                           ………  Opposite Parties.

 

                    Complaint u/s 12 of the Consumer

                     Protection Act.

 

Before          Sh.K.C.Sharma……….President.                

                   Sh.Anil Sharma…….Member.

 

Present:-       Sh.Rajesh Dhounchak Advocate for the complainant.

                   Sh.Sanjiv Vohra Advocate for the Opposite parties

ORDER:

 

                        This  complaint has been filed by the complainants u/s 12 of the Consumer Protection Act 1986, on the averments that they got insured their tractor Mahindra & Mahindra 265 DI  bearing registration No. HR-06H-9946  with the Opposite parties, vide cover note No. 002300851894 and policy No.2316200122395800000  valid from 1.9.2011 to 31.8.2012.  On 3.9.2011, the said tractor with trolly was parked at  Petrol Pump, village Mehrana district Panipat and from there the same was stolen by some unknown person. They tried their level best to trace out the tractor and trolly, but of no avail. Thereafter, they informed the police of Police Station, Model Town, Panipat.  First Information Report No.645 dated 7.09.2011 was registered. The Opposite party no.2 was also  informed about the theft of the tractor trolly immediately. The police also could not trace out the tractor trolly despite  best efforts and ultimately submitted untraced report. It has further been alleged that the complainants lodged claim with the Opposite parties and completed all the formalities. Sh.Anurag Midha was appointed as surveyor, who submitted his report.   On the basis of the false report submitted by the surveyor, Opposite parties repudiated the claim vide order dated 20.10.2011 on the ground that the complainants produced  were false and fabricated documents of previous policy in order to  prove continuity of the policy and avoid inspection of the vehicle at the time of issuance of the policy.  The order of the Opposite parties repudiating the claim was wrong and illegal which amounted to deficiency in services.

 

2.                 Notice of the complaint was given to the Opposite parties, who put into appearance and filed written statement disputing the claim of the complainant. Objections have been raised that complaint is not maintainable in the present form; that the complainants have not approached this Forum with clean hands and that complicated questions of law and facts are involved  which cannot be decided by this Forum in summary manner.

 

                   On merits, it has been submitted that at the time of purchasing the insurance policy from the Opposite parties, the complainants had produced the policy no.102018/31/11/002851 issued from the previous insurer i.e. Shri Ram General Insurance Co. Limited. Since the same was in continuity, no physical inspection of the vehicle was carried out by the Opposite parties at the time of issuance of the policy.  During verification of the previous policy, from previous insurer, it was found that no such policy was  issued by the previous insurer in favour of the complainants, rather the said policy was issued to Parveen Kumar resident of village Harshana Kalan district Sonipat. Thus, the complainants produced false and fabricated policy allegedly issued by Shri Ram General Insurance Co. Limited. Such act on the part of the complainants amounted to suppression of material facts and the same was against declaration made by them.  Suppression of material facts and misrepresentation amounted to fundamental breach of contract of insurance, therefore, the Opposite parties were not liable to pay any amount to the complainants and their claim was rightly repudiated on the said ground . The other allegations made in the complaint have not been admitted.

 

3.                 In evidence of the complainants, affidavit of Sh.Rajbir Singh Ex.CW1/A and documents Ex.C1 to Ex.C10 have been tendered.

 

4.                 On the other hand,  in evidence of the Opposite parties, affidavit of Sh.Abhishek Kushwaha  Ex.O1 and documents Ex.O2 to Ex.O6 have been tendered.

 

5.                 We have appraised the evidence on record,  the material circumstances of the case and the arguments advanced by the learned Counsel for the parties.

 

6.                 It is admitted fact that Opposite parties  had insured the tractor  of the  complainants for the period of 1.9.2011 to 31.8.2012. As per the case of the complainants, the said tractor alongwith trolly was stolen  on 3.9.2011 and FIR No.645  dated 7.9.2011  was registered regarding theft of the said tractor trolly in  Police Station Model Town Panipat. The said tractor and trolly could not be traced out by the police despite best efforts and untraced report was submitted. The claim of the complainant was repudiated by the Opposite parties on the ground that the previous insurance policy produced by the complainants allegedly issued by Shri Ram General Insurance Co. Ltd. was found forged, which amounted to fundamental breach of contract of Insurance, therefore, the insurance company cannot be saddled with any liability.

 

7.                 The Learned counsel for the Opposite parties put a great thrust on the contention that in order to show continuity of the policy and to avoid physical inspection of the tractor, the complainants produced previous insurance policy allegedly issued by Shri Ram General Insurance Company Limited, which on verification was found to be forged. The said policy number was issued by Shri Ram General Insurance Co. Ltd. in favour of Parveen Kumar resident of village Harshana Kalan district Sonepat and not in favour of the complainants as is evident from documents Ex.O3 to Ex.O5. In this way, the complainants had played  fraud upon the Opposite parties, misrepresented the facts  and gave false declaration,  which amounted to fundamental breach of contract of insurance. It has further been argued that facts and circumstances indicate that tractor might have been stolen prior to issuance of the insurance policy by the Opposite parties and the complainants obtained the policy from the Opposite parties by misrepresenting the facts and producing forged documents of the previous policy.

 

8.                 A perusal of the documents Ex.O3 and Ex.O4 reveals that the policy No.102018/31/11/00285 was issued by Shri Ram General Insurance Co. Limited in favour of Sh.Parveen Kumar son of Shyam Sunder, resident of village Harshana Kalan district Sonepat for the period of  18.10.2010 to 17.10.2011. The document Ex.O5 shows that policy Number 102018/31/11/00285 was issued by Shri Ram General Insurance Co. Ltd. for the period of 1.9.2010 to 31.8.2011 in favour of complainants.  The said document was purported to have been signed by Anil Kumar and thumb marked by Karambir. However, the Opposite Parties have not produced any evidence to prove as to who was Anil Kumar who had put his signatures and as to whether the complainant Karambir was explained before obtaining his thumb impression on the said document. Therefore, it cannot be accepted that the said document was produced by the complainants before the Opposite Parties in order to show continuity of the previous insurance policy. Moreover, the cover note Ex.C3 and insurance policy Ex.C4 falsifies version of the Opposite Parties because in  these documents there is no reference of any previous policy documents produced by the complainants. Had any document regarding previous policy been produced by the complainants, then certainly, the policy number and name of the previous insurer must have been mentioned in the  cover note as well as policy issued by the Opposite parties. If, there was any previous policy, the complainants could claim benefit of No  claim bonus  also, but Ex.C4 shows that no such benefit was given to the complainants by the Opposite parties. Thus, the Opposite parties have failed to prove that complainants had produced previous policy documents of Shri Ram General Insurance company Limited for getting issued the policy from the Opposite parties in order to show continuity and to avoid physical verification of their vehicle.  In this w ay, no fraud or misrepresentation by the complainants in obtaining the policy from the Opposite parties, is established, therefore, the Opposite parties cannot escape from their liability. Under such circumstances, repudiation of the claim by the Opposite parties amounted to deficiency in services.

 

9.                 As  sequel to the foregoing discussion, we accept the present complaint and direct the Opposite parties to make the payment of the sum insured to the complainant alongwith interest @ 9 per cent per annum from the date of filing of the present complaints i.e. 17.09.2012 till its actual realization. The complainant shall also be entitled for a sum of Rs.5500/- for the mental agony and harassment suffered by them and for the litigation expenses. The Opposite parties shall make the compliance of this order within a period of thirty days from the date of receipt of the copy of this order.  The parties concerned be communicated of the order accordingly and the file be consigned to the record room after due compliance.

 

Announced
dated:07.01.2016

                                                                    (K.C.Sharma)

                                                                   President,

                                                         District Consumer Disputes

                                                          Redressal Forum, Karnal.

    (Anil Sharma ) 

       Member.

 

 

 

 

Present:-       Sh.Rajesh Dhounchak Advocate for the complainant.

                   Sh.Sanjiv Vohra Advocate for the Opposite parties.

 

                  Arguments heard. Vide our separate order of the even date, the present complaint has been accepted.  The parties concerned be communicated of the order accordingly and the file be consigned to the record room after due compliance.

 

Announced
dated:07.01.2016

                                                                    (K.C.Sharma)

                                                                   President,

                                                         District Consumer Disputes

                                                          Redressal Forum, Karnal.

    (Anil Sharma ) 

       Member.

 

 

 

 

 

 

 

 

 

Present:-       Sh.Rajesh Dhounchak Advocate for the complainant.

                   Sh.Sanjiv Vohra Advocate for the Opposite parties

 

                    Arguments heard. Vide our separate order of the even date, the present complaint has been accepted.  The parties concerned be communicated of the order accordingly and the file be consigned to the record room after due compliance.

 

 

Announced
dated:07.01.2016

                                                                    (K.C.Sharma)

                                                                   President,

                                                         District Consumer Disputes

                                                          Redressal Forum, Karnal.

         (Anil Sharma ) 

           Member.