BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, PANCHKULA
Consumer Complaint No | : | 40 of 2021 |
Date of Institution | : | 27.01.2021 |
Date of Decision | : | 02.02.2022 |
Pankaj Mehta S/o Sh. Dharam Pal, Aged 36 years, R/o House No. 1286, Sector-4, Panchkula.
…….Complainant
Versus
1. HDFC Ergo General Insurance through its Chairman-cum-Managing Director, Ist floor, HDFC House, 165-66, Back Bay Reclamation, Parkash Marg, Church Gate, Mumbai-400020.
2. HDFC Ergo General Insurance through its Manager, 13A/15, Ground Floor, Gali No. 2, Brahmpuri, W.E.A., Karol Bagh, New Delhi-110005.
….Opposite Parties
COMPLAINT UNDER SECTION 35 OF THE CONSUMER PROTECTION ACT, 2019(AS AMENDED UPTO DATE).
Before: Sh.Satpal, President.
Dr. Pawan Kumar Saini, Member.
For the Parties: Shri Sikander Bakshi, Advocate, Counsel for the Complainant.
Shri Nitesh Singhi, Advocate, Counsel for the OPs No. 1 and 2.
ORDER
(Sh. Satpal, President)
1. The brief facts of the present complaint are that the Complainant is the registered owner of Truck(Tipper) bearing No. HR-55-Q-8153 which is insured from the OPs vide Insurance Policy No. 2315202439653100000 effective from 03.10.2018 to 02.10.2019 by paying an Insurance Premium of Rs. 53,286/- and the IDV under the policy is Rs. 11,70,000/-. That on 30.08.2019 at about 8:45 P.M., the driver of the said vehicle, namely, Shri Raj Kumar S/o Shri Pat Ram, duly locked the said vehicle in the parking area of Vikas Petrol Pump, Khanak but the said vehicle was found missing on 31.08.2019 at about 4:00 A.M. when the driver came back to see the vehicle. The matter was immediately reported to the police and accordingly, an FIR No. 412 dated 31.08.2019 was registered under 379 IPC in the Police Station Tosham. The Complainant further immediately informed about the same to the OPs and accordingly a claim No. C230019240415 was registered by the OPs. All the requisite documents as demanded were handed over to the Investigators and the OPs. Also, an untraceable report under section 173 Cr.P.C. accepted by the Learned SDJM, Tosham was also furnished to the OPs. Thereafter, vide letters dated 27.12.2019, 13.01.2020, 13.02.2020 and 29.02.2020, the Complainant requested the OPs to liquidate his claim but the claim was repudiated by the OPs vide their repudiation letter dated 03.03.2020 on the erroneous ground that the Complainant supplied four keys (two cabin keys and two ignition keys) and two keys of the cabin found unused, on the basis of Forensic report which has been obtained by the OPs without any prior notice and in the absence of the Complainant at the time of examination. That the cabin of the vehicle in question was replaced in a previous claim in the month of November 2018, so, the keys were not old one. One of the keys was in use which worn out in the normal usage. The OPs did not raise any such objections at the time of receiving the keys. Due to the deficiency in service and unfair trade practices on the part of the OPs, the complainant has suffered financial loss, mental agony and harassment. Hence, the present complaint.
2. Upon notice, OPs No. 1 and 2 appeared through counsel and filed written statement raising preliminary objections qua the complainant has suppressed true and material facts and the complaint is not maintainable on grounds of no jurisdiction and no cause of action. On merits, it is stated that after getting the intimation about the incident of theft, the OPs got the claim processed and, therefore, appointed the independent Investigator who submitted his report alongwith documents. Based on the declaration made by the Complainant to the effect that all the four keys were original, the keys were sent for forensic analysis. As per forensic examination report, it has been revealed that two keys submitted claiming to be cabin keys were found the one key being unused and the other having physical/unnatural striated marks to pretend it as original used key; that by not submitting original keys by the Complainant, it is established that one original key might have been left in the vehicle at the time of loss or the key might have lost/misplaced against which the Complainant had not taken any safeguard of the vehicle or the key nor changed the lockset of the vehicle which amounts to gross negligence on the part of the Complainant and is therefore not covered under the terms and conditions of the Insurance policy. Thus, there is no deficiency in service and unfair trade practices on the part of the OPs; hence the present complaint is liable to be dismissed against the OPs.
3. The Complainant has tendered his affidavit as Annexure C-A along with documents as Annexures C-1 to C-12 in evidence, and closed the evidence, by making a separate statement. On the other hand, the Ld. Counsel for the OPs No.1 & 2 has tendered affidavit as Annexures R-A and R-B alongwith documents as Annexures R-1 to R-6 in their defence and closed the evidence, by making a separate statement. The Ld. Counsel for the Complainant has filed the written arguments alongwith objections against the Key Forensic Examination report (Annexure R-3) in support of the contention of the Complainant.
4. We have heard the learned counsels for both the parties and gone through the entire record available on the file, minutely and carefully.
The question, that falls for consideration, before the Commission, is, whether the repudiation of the claim, lodged by the Complainant pertaining to the incident of theft of vehicle Truck(Tipper) bearing No. HR-55-Q-8153, during the validity period of the Insurance policy, on 30.08.2019, is legally valid and justifiable.
The incident of theft of the said vehicle during the validity period of Insurance policy on 30.08.2019 is not disputed. Further, the intimation about the incident of theft to the police as well as the OPs immediately after the occurrence without any delay is also not disputed. The claim has been repudiated vide repudiation letter dated 03.03.2020(Annexure R-6) which reads as under:-
“Kindly note that in respect of your above mentioned theft claim we have deputed independent agency for verification of the facts related to the incidence.
On perusal of the report submitted by the fact finder and the documents submitted, following has been observed:
- This is to bring to your kind notice as per information & documents furnished during the fact findings of the mentioned loss it was observed that you have submitted two cabin keys & two ignition keys to process the claim.
- Based on your declaration the key was sent for forensic analysis, as per forensic examination report it has been revealed that cabin keys are unused & one key having physical/unnatural striated marks to pretend it as original used keys, which is a clear case of misrepresentation of facts.
We would like to inform you that there are violations of the policy term & condition and also Act & rules of applicable laws.
In furtherance to, we would like to draw your attention to the condition no. 8 of the insurance policy, which states:
“The due observance and fulfillment of the terms, conditions and endorsements of this policy is so far as they relate to anything to be done or complied with by the insured and truth of the statements and answers in the said proposal shall be conditions precedent to any liability of the company to make any payment under this policy.”
From above, it is evident that violation of the terms and conditions of the policy has been alleged on the basis of examination of two cabin keys and two ignition keys, which were sent for Forensic analysis and as per Forensic examination, it has been alleged that the cabin keys were unused and one key was found having physical/unnatural striated marks on it. On the basis of findings of Forensic report (Annexure R-3), it has been alleged in Para No. 4 of the written statement that the Complainant did not submit the original keys to the investigator, which clearly established that one original key might have been left in the vehicle at the time of incident or the key might have been lost/misplaced against which Complainant had not taken any safeguard of the vehicle, which amounts to gross negligence on the part of the Complainant. It is contended that the Complainant by not providing the original keys has violated the condition no. 8 of the terms and conditions of the insurance policy.
5. We have perused the investigation report (Annexure R-2), which has been prepared by the authorized investigation agency of the OPs. As per said investigation report, nothing wrong was found on the part of the Complainant. As per inspection of the site, vehicle was found stolen, the relevant part of the report is reproduced as under:-
“Inspection of Loss site
The insured vehicle was stolen from nearby Vikash Petro Tosham, Hisar Road, Khanak, Haryana and during investigation we inquired with distinct peoples who confirmed us that the Tata Tipper LPK-2518 of Mr. Pankaj Mehta has been stolen.
The Photographs of the spot of theft were also taken”
The untrace report of the vehicle was also perused by the investigator and was found true in all respects. About the cabin keys, the investigator has specifically remarked that the vehicle in question had earlier met with an accident, wherein cabin alongwith door lock set was changed. The investigation report (Annexure R-2) clearly negates the assertions of the OPs with regard to the submission of original cabin keys to the investigator. The OPs have closed the claim vide repudiation letter (Annexure C-9/R-6) merely on the basis of surmises and conjectures. As mentioned above, the OPs have expressed the suspicions in Para No. 4 of the preliminary objections of the written statement with regard to the negligence of the Complainant. As per well settled legal proposition, the suspicion howsoever strong is not a substitute for the proof.
6. At this stage, it is pertinent to mention here that the police during its investigation found nothing wrong on the part of the Complainant. Had there been any involvement of the Complainant in the incident of theft, the police would have definitely pointed out the same in its investigation report. On the other hand, it has been found that the Complainant without any delay brought the incident of theft into the notice of the police as well as the OPs.
7. Apart from above, it is relevant to mention here that Shri Vikas Kumar, Sherlock Institute of Forensic Science India Pvt. Ltd., R/o Village Kavirampur, P.O. Badagaon, Distt. Varanasi, Uttar Pradesh has stated vide his affidavit (Annexure R-B) that he had conducted the investigation and submitted the report dated 25.02.2020. We have perused the alleged Key Forensic examination report (Annexure R-3) but did not find the name of said Shri Vikas Kumar in the said report. Moreover, in the result of examination, at Sr. No. 2 at Page no. 10 of the said report, it has been pointed out that the striation marks, which are formed due to inserting the key in the ignition lock are absent on the blade region of the key. It is pertinent to mention here that the repudiation letter (Annexure C-9/R-6) speaks about the striation marks on one key of the cabin whereas the FSL report speaks about the ignition lock and thus, we found major deviation between the repudiation letter and the FSL Report. Furthermore, the cabin of the vehicle alongwith its keys was changed after the accident of the vehicle just 8-9 months prior to the present incident. Therefore, the repudiation letter of the claim solely on the basis of the FSL report (Annexure R-2) is neither correct nor legally valid and thus, we conclude that there has been lapse and deficiency on the part of OPs No. 1 and 2 while repudiating the genuine claim of the Complainant; hence, the Complainant is entitled to relief.
8. Coming to the relief, we find that the IDV of the vehicle in question was Rs. 11,70,000/- and compulsory deductible is Rs. 1500/-, thus, the Complainant is entitled to a sum of Rs. 11,68,500/-.
9. As a sequel to above discussion, we partly allow the present complaint with the following directions to the OPs:-
(i) To refund a sum of Rs. 11,68,500/- alongwith interest at the rate of 9% from the date of filing of the present complaint till its realization subject to submission of following papers/ documents by the complainant with OPs:-
- Letter of subrogation (on non-judicial stamp paper of Rs.100/- duly notarized.
- Letter of indemnity.
- Form No.29 & 30 of M.V.Act duly signed by the owner.
- Form No.35/No Due Certificate duly signed from the financier if the vehicle was financed.
- Discharge voucher, consent letter and cancel cheque duly signed by the owner/complainant if not already given to OPs.
(ii) To pay an amount of Rs.30,000/- to the complainant on account of mental agony and harassment.
(iii) To pay an amount of Rs.7,500/- as litigation charges.
10. The OPs shall comply with the order within a period of 45 days from the date of communication of copy of this order failing which the awarded amount vide Para 9(i) above shall carry an interest at the rate of 12% per annum from the date on which the Complainant completes the formalities as directed above in Para no. 9 above. Further, the Complainant shall be at liberty to approach this Commission for initiation of proceedings under Section 71/72 of CP Act, against the OPs. A copy of this order shall be forwarded, free of cost, to the parties to the complaint and file be consigned to record room after due compliance.
Announced on: 02.02.2022
Dr. Pawan Kumar Saini Satpal
Member President
Note: Each and every page of this order has been duly signed by me.
Satpal
President
