Haryana

Bhiwani

CC/63/2023

Bijender Kumar - Complainant(s)

Versus

ICICI - Opp.Party(s)

Sanjay Sharma

07 May 2024

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSASL COMMISSION, BHIWANI.

                                                                   Complaint Case No. : 63 of 2023

                                                                   Date of Institution    : 24.03.2023

                                                                   Date of decision:      : 07.05.2024

 

Bijender Kumar son of Sh. Dayanand, R/o village Khaparwas, Tehsil Tosham, District Bhiwani.

                                                            ...Complainant. 

 

                                                    Versus.

1. The Manager, ICICI Lombard General Insurance Co. Ltd., 1^st Floor, Triloki Chambers,SCO-4307, 4/21, Punjabi Mohalla, Sadar Bazar, Ambala Cantt, Ambala.

 

2. Mahindra & Mahindra Financial Services Ltd. 2^nd Floor, Opp. B.D. Gupta, R/o near K.M. Public School, Hansi Road, Bhiwani. (Financer).

 

...Opposite parties.

 

COMPLAINT U/S 35 OF CONSUMER PROTECTION ACT, 2019.

Before: -       Mrs. Saroj Bala Bohra, Presiding Member.

                    Ms. Shashi Kiran Panwar, Member.

Present:        Sh. Sanjay Sharma, Advocate for complainant.

Sh. Rajender Verma, Advocate for OPs.

  

                                                  ORDER

 

SAROJ BALA BOHRA, PRESIDING MEMBER:

1.                 Brief facts of this case are that complainant is registered owner of vehicle Mahindra Bolero Maxi Truck PLU having No.HR-61D-1245 insured with OP No.1 under commercial package policy from 17.10.2021 to 16.10.2022 and financed through OP No.2. It is submitted that complainant was earning his livelihood by using this vehicle having no other source of income.  It is stated that the vehicle was attached with TCI Express Ltd. in village Naharpur, Gurugram and usually the vehicle was being parked in a vacant plot in from of the company. It is stated 29.01.2022 at about 11:15 p.m. complainant parked the vehicle  at the place  and on 30.01.2022, he did not find the vehicle at the place of parking and the vehicle was stolen by someone. Matter was reported to police, it take four day to lodge FIR. During investigation of police vehicle was not found and untraced report was submitted before the Court.  It is stated that OP insurance company was informed well in time and submitted all necessary documents for claim of the vehicle but it was repudiated vide letter dated 04.04.2022. Hence the present complaint has been preferred seeking directions against the OPs to pay the insured amount Rs.3,80,000/- alongwith interest @ 18% per annum and Rs.1.00 lac as compensation for harassment and loss of earning besides Rs.50,000/- qua litigation expenses. He has also submitted for Rs.50,000/- per month on account of loss of income from the date of theft till realization of loss amount. He has also sought for waiver of the financed amount and interest, penal interest and surcharge levied by financer-OP No.2. Any other relief to which this Commission deems fit has also been sought.

2.                 Upon notice, OPs appeared through counsel. OP No.1 filed written statement raising preliminary objections qua maintainability of complaint, locus standi, jurisdiction and suppression of material facts.  On merits, it is admitted that the vehicle in question was insured with it from 17.10.2021 to 16.10.2022 for an IDV of Rs.3,80,000/-.  Intimation of theft was received on 30.01.2022, on the same day. Survey was got conducted from Malik Consultancy who submitted report dated 25.02.2022 alleging misrepresentation of fact on the part of complainant.  Further the matter was handover the ICS assure to carry out the forensic examination report of automobile keys. It also reported misrepresentation of fact on the part insured regarding the theft and also willful violation of terms and conditions of insurance policy on the part of insured. Hence, the claim of complainant was rightly repudiated.  In the end, prayer has been made for dismissal of complaint with costs.

3.                 OP No.2 filed its written statement raising preliminary objections qua maintainability of complaint, the vehicle was being used for commercial purpose, locus standi and suppression of material facts.  On merits, it is submitted a loan of Rs.3,70,500/- was sanctioned to the OP  which was to be repaid in 36 installments each of Rs.13,500/- commencing from 20.07.2021 to 20.05.2024.  Now, a sum of Rs.2,97,133/- is pending against complainant as on April 2023, complainant is legally liable to pay the same to the answering OP.  It is submitted that as per terms and conditions of agreement and insurance policy, any amount is ordered to be paid to insured, the same may kindly be paid to the answering OP being financer.  In the end, denied for any deficiency in service and prayed for dismissal of complaint with costs.

4.                 In evidence of complainant, documents Annexure C-1 to Annexure C-10 were tendered and closed the evidence on 13.09.2023.

5.                 On the other side, affidavit Ex. RW1/A of Mr. Sonu Rathi, authorized signatory of OP No.1 alongwith documents Annexure R-1 to Annexure R-5 were tendered in evidence of OPs and closed the same on 22.04.2024.

6.                 We have heard learned counsels for the parties and perused the record carefully.

7.                 Perusal of repudiation letter (Annexure R-4) reveals main ground for repudiate of claim of complainant was that “the statements given by you (insured) regarding the availability of your keys differs in content and sequence which is contradictory in nature.” We have gone through the investigation report (Annexure R-2) wherein it reveals that “Insured provided us two different keys out of which one key had scratches marks, by stating that both keys are original and he used them 86120 km in the said vehicle.”  So, the keys of the vehicle were sent for forensic report.  In Forensic Examination report of Automobile keys (Annexure R-3) reported that “a) key-1 is original manufacturer made and Key-2 is not original manufacturer made. b) Key-1 is used for 2000 strokes i.e. 1000 times. Key-2 is unused and shows manual scratch marks. c) As per Dimensional Analysis of Key-1 & Key-2, side gear profile of both the keys are different. Both the keys cannot be used in the same lock-set.  Hence, insured is misrepresenting the fact regarding originality and usage of the submitted keys.”

8. Learned counsel for complainant has argued that the OP insurance company has arbitrarily and illegally rejected the claim of complainant whereas complainant is fully entitled the IDV of the vehicle under the circumstances of the case. The counsel vehemently denied the factum of any misrepresentation of facts of the case. In order to strengthen his case, learned counsel for complainant relied upon a case law delivered by the Hon’ble Supreme Court of India in Civil Appeal No.3253 of 2002 case titled New India Assurance Company Ltd. Vs. Pradeep Kumar decided on 09.04.2009 wherein it is observed that“……….although the assessment of loss by the surveyor is a pre-requisite for payment or settlement of claim of twenty thousand rupees or more by insured, but surveyor’s report is not the last and final word.  It is not that sacrosanct that it cannot be departed from; it is not conclusive. The approved surveyor’s report may be basis or foundation for settlement of a claim by the insurer in respect of the loss suffered by the insured but surely such report is neither binding upon the insured nor insured.”

9.                 On perusing the evidence produced on record, we have observed that it is not a dispute that on the day of theft, the vehicle was under insurance cover given by OP; that IDV of the vehicle was Rs.3,80,000/- and that complainant was owner of the vehicle at the time of theft.  It is further observed that during the course of investigation by police, the vehicle in question could not be traced out.  As per document (Annexure C-9) the police submitted untraced report qua the vehicle in question before the Court concerned and it was accepted vide order dated 18.11.2022.  

10.               After hearing learned counsel for the parties and going through the record, we are of the considered view that on the day of theft, the vehicle was under insurance cover and despite best efforts by police, it has not been traced out and the Court concerned accepted such report by the police and that OP insurance company has illegally repudiated the claim of complainant for which he has to suffer monetary loss as well as mental and physical harassment. Therefore, the complainant being owner of the vehicle is entitled to get IDV of the vehicle. Accordingly the complaint is allowed and OP No.1 is directed to comply with the following directions within forty days from the communication of this order:-

(i)       To pay a sum of Rs.3,80,000/- (Rs. Three lac eighty thousand) as IDV of the vehicle in question, to the complainant alongwith simple interest @ 9% per annum from the date of institution of complaint to till its realization subject to execution of letter of Subrogation in favour of OP Company and furnishing of affidavit & all other relevant documents qua transfer of vehicle in question in favour of OP Insurance Company by the complainant within 15 days from the date of communication of this order.

(ii)      Since, the vehicle was under HPA, therefore, the OP No.2-financier has first right to recover the financed amount from the awarded amount. Thereafter, remaining amount be disbursed to complainant.  

(ii)      Also to pay a sum of Rs.10,000/- (Rs. Ten thousand) on account of harassment  caused to the complainant at the hands of OP No.1.

(iii)     Also to pay a sum of Rs.5500/- (Rs. Eleven thousand five hundred) on account of litigation expenses.

                    In case of default, all the aforementioned awarded amounts shall attract simple interest @ 12% per annum for the period of default.  If this order is not complied with, then the complainant shall be entitled to the execution petition under section 71 of Consumer Protection Act, 2019 and in that eventuality, the opposite party may also be liable for prosecution under Section 72 of the said Act which envisages punishment of imprisonment, which may extend to three years or fine upto rupees one lac or with both.  Copies of this order be sent to the parties concerned, free of costs.  File be consigned to the record room after due compliance. 

Announced.

Dated:07.05.2024.