District Consumer Disputes Redressal Commission ,Faridabad.
Consumer Complaint No.69/2023.
Date of Institution:31.01.2023.
Date of Order: 29.05.2024.
Mrs. Reena W/o Shri Harish Kumar, R/o H.No. A-45A, Sainik Colony, Sector-49, Faridabad.
…….Complainant……..
Versus
1. IFFCO Tokio General Insurance Co. Ltd., Iffco Sadan, C-1, District Centre, Saket, New Delhi – 110 017 through Branch Manager (Service be effected) Branch Manager, IFFCO Tokio General Insurance Co. Ltd., 2nd floor, FAI Building, 10 Shaheed Jeet Singh Marg, Qutub Institutional Area, New Delhi – 110 067.
2. Kiran Kalra, Agent code 27000075, Insurance Agent, Below Neelam Flyover, Opposite Maruti Courier, Faridabad.
…Opposite parties……
Complaint under section-12 of Consumer Protection Act, 1986
Now amended Section 34 of Consumer protection Act 2019.
BEFORE: Amit Arora……………..President
Indira Bhadana………….Member.
PRESENT: Sh.M.K.Gupta, counsel for the complainant.
Sh, O.P.Gaur, counsel for the opposite party No.1.
Sh. Parmod Bhardwaj, counsel for opposite party No.2
ORDER:
The facts in brief of the complaint are that the complainant purchased Maruti Swift VDI bearing chassis No. MA3EHEBIS00599728, engine No. D13A2313324 from M/s. Vipul Motors in the month of February, 2014 having regn. No. HR-51AZ 7778. Opposite party No.2 had been working as agent of various insurance companies. Opposite party No.2 got insured above said vehicle from opposite party No.1. At the time of getting insurance it was assured by opposite parties that opposite party No.1 would give best available service to the complainant, relying upon representation of opposite parties, the complainant got his vehicle insured from opposite party No.1 under policy NO.I-P400 Policy # MP6365942FWUVUDS on 21.06.2022. The said insurance was valid w.e.f 22.06.2022 to 21.06.2023. On 08.09.2022, the brother in law of complainant visited Metro Hospital, sEctor-16A, Faridabad to meet mother of his friend who was admitted to said hospital at about 6:00p.m. The said vehicle was parked outside the boundary wall of said hospital. When brother in law of the complainant namely Shri Satinder came back at about 10:50 p.m. he was shocked to know that above said car was not there and said car had been stolen by someone. Shri Satinder immediately gave call on PCR at 112 No. and he also lodged complaint with police on same day i.e 08.09.2022 with PS, Sector-17, Faridabad. The said complaint culminated into FIR by police only on 10.09.2022 bearing No. 0237 u/s 379, PS, sector-17, Faridabad. Inspite of best efforts made by the complainant, vehicle could not be traced. The complainant also informed opposite party No.1 on 10.09.2017 about lost of vehicle. Opposite party No.1 deputed investigation agency namely N.K.Singhal investigator. The investigator of said agency visited the premises of complainant, made enquiry about the lost of above said vehicle and obtained necessary documents from the complainant. The documents obtained by representative of opposite party No.1 were as under:
i) original claim form duly stamped and signed;
ii) Vehicle particulars stamped by registration authority, Faridabad.
iii) Original FIR No. 237 dated 10.09.2022.
iv) Copy of cover note of insurance policy,
v) Statement of occurrence
vi) Driving licence, copy of user (sh. Satinder)
vii) Copy of letter to RTO to keep the vehicle particulars in safe custody
viii) Original invoice
ix) all keys and photo of impression of keys
x) last one year bank statement
xi) Form Nos. 26,28,29, 30 (4 each) duly signed
xii) Discharge voucher
xiii) Two nos. current photographs address proof and ID proof.
xiv) NEFT form alongwith cancel cheque pass book copy and bank statement.
All the documents were taken by the representative of said opposite party agency on/or about 13.09.2022 Thereafter again said agency demanded other documents vide their letter and demanded following documents from complainant:
- Original untraced report signed by SHO
- Untraced report u/s 173 Cr.P.C.
The complainant collected documents detailed at Sr. Nos.1 and 2. The representative of said M/s. JMD Insurance Services agency informed complainant to send documents mentioned at sr. Nos.1 & 2 immediately and further submitted that other documents would take time and complainant should send on receiving the said documents. All of a sudden, the complainant was shocked and dismayed when letter dated 28.11.2022 was received by her on 8.12.2022 from opposite party No.1 whereby claim of the complainant was rejected. The aforesaid act of opposite parties amounts to deficiency of service and hence the complaint. The complainant has prayed for directions to the opposite parties to:
a) pay compensation to the tune of Rs.2,11,000/-, the cost of vehicle.
b) pay Rs.1,00,000/- as compensation for causing mental agony and harassment .
c) any other relief which this Hon’ble Forum deems fit and proper.
2. Opposite party No.1 put in appearance through counsel and filed written statement wherein Opposite party No.1 refuted claim of the complainant and submitted that the complainant neither had any cause of action nor locus standi to file the present complaint. It was submitted that the insurance company received an intimation of occurrence on 12.09.2022 in respect of theft of Maruti Swift car bearing its registration NO HR-51-AZ-7778 allegedly on 08.09.2022 outside (front road) of the Metro heart and Multi Specialty Hospital, Sector-16, Faridabad within the jurisdiction of P.S.Sector-17, Faridabad between the time 6:00p.m. to 10:45p.M. As a result, the insurance company deputed an independent, qualified, competent and experienced investigator, so as to investigate into the alleged occurrence. Accordingly, the investigator carried out its investigation and during course of investigation, the insured furnished claim form alongwith FIR No. 237 dated 10.09.2022 u/s 379 IPC, Sector-17, fAridabad and also haned over 2 set of keys. In furtherance of the ivnestiation, the driver – Satinder of Maruti car NO. HR-51-AZ-7778 tendered his statement in writing dated 13.09.2022 inter alia admitting as under:
“Mai 08.09.2022 ko ghadi ko Metro Hospital key gate ke bahar khadi karke andar challa gaya. Baad mai 10:45 p.m. vapis ghar aane ke liye gate se bahar aya to gadi apne sthan par khadi nahi the”
Therefore, the investigator submitted its investigation report received by the insurance company on 29.09.2022 and observed as under:
Findings: “But on seeing at these keys the fact was that one key was original and second key was manual scratches “Key” forensic test was essential in this case”.
In furtherance of the process of the subject claim, the insurance company also carefully examined the investigation report as well as the related claim documents and deemed it appropriate to get Forensic lab examination expert opinion in respect of use and genuineness of both the keys. Hence, the insurance company deputed an expert, skilled, qualified and competent Forensic Expert. For the purpose of conducting Forensic test and examination, the expert have also examined the statement in writing dated 13.09.2022 of the insured – Smt. Reena.In order to further process of the subject claim, on the basis of Forensic Scientific Expert Report dated 01.11.2022 coupled with the related claim documents supplied by the insured, the insurance company again thoroughly and carefully investigated into the subject claim. As a matter and admission, pursuant to statement in writing dated 13.09.2022 of the insured as well as the driver, it was observed by the insurance company that:
a) the insured car left to park unauthorizedly outside the gate of Metro Hospital in open, instead authorized parking attached with the hospital which remain unattended and without any further safety for about 4 hours (6.30p.m. to 10.45p.m).
b) Apart that, the insured car was being used, driven and plied with (a) duplicate key which facilitated the cause of occurrence by operating any general key by the culprits
c) Admittedly, as per statement in writing dated 13.09.2022 of the insured, the car dealer had provided two set of keys of remote, facilitating safe guard and security of the insured vehicle but at the relevant time and place of occurrence, such mode of operation of lock and key was not in use.
d) Since both the keys submitted by the complainant were different form each other and was made to operate different locks, it was evident that the lockset of the subject vehicle was damaged and free and operable with any keys which indicates gross negligence and misrepresentation of fact by the complainant.
e) There was clear delay of 2 days in lodging the FIR, which was lodged on 10.09.2022 against the date of alleged theft on 08.09.2022. Further there was also delay in intimation to the answering opposite party by 4 days to the answering opposite party by 4 days to the answering opposite party as claim was only intimated on 12.09.2022.
f) The fact cannot be loss sight that admission of the fact was best evidence for which no further documentary proof or any mode of proof was required.
By consolidating the facts on record on the basis of claim documents as well as Forensic Science Expert report, it was observed that the insured had violated infringed and breached the terms & conditions of the insurance policy inter-alia Clause Nos.4 & 8 of the insurance policy by not safe guarding the insured vehicle from loss and damages in the form of parking the insured car unauthorizedly and the non-observance of terms & conditions of the insurance policy. Further breach of the undertaking clause under the claim form. As a net result. The insured had intentionally, willfully, infringed and breached the terms & conditions, exclusions and warrantees contained in the insurance policy. In consideration of the material facts available on record, the insurance company arrived at its irresistible conclusion in treating the subject claim as “repudiate” vide its letter dated 28.11.2022 which decision could not be termed as unconscionable at all.Opposite party No. 1 denied rest of the allegations leveled in the complaint and prayed for dismissal of the complaint.
3. Opposite party No.2 put in appearance through counsel and filed written statement wherein Opposite party No.2 refuted claim of the complainant and submitted that opposite party No.2 was working as an agent of opposite party No.1 and the opposite party No.2 got insured the above said vehicle of the complainant. The terms and conditions of the insurance policy were read over to the complainant at the time of issuance of insurance policy. Opposite party No. 2 denied rest of the allegations leveled in the complaint and prayed for dismissal of the complaint.
4. The parties led evidence in support of their respective versions.
5. We have heard learned counsel for the parties and have gone through the record on the file.
6. In this case the complaint was filed by the complainant against opposite parties– Iffco Tokio General Insurance Co.with the prayer to: a) pay compensation to the tune of Rs.2,11,000/-, the cost of vehicle. b)pay Rs.1,00,000/- as compensation for causing mental agony and harassment . c) any other relief which this Hon’ble Forum deems fit and proper.
To establish his case, the complainant has led in his evidence Ex.CW1/A –affidavit of Smt. Reena,, Ex.C-1 – driving licence, Ex.C- 2 – insurance policy, Ex.C-3 – FIR, Ex.C-4 – investigator letter dated 13.09.2022. Ex.C-5 – repudiation letter dated 28.11.2022.
On the other hand counsel for the opposite party NO.1 strongly agitated and opposed. As per the evidence of the opposite party No.1 Ex.RW1/A – affidavit of Shri Alik Gupta,( General Manager, Claims), M/s. Iffco Tokio General Insurance Company Ltd., FAI Building, 2nd floor, 10 Shaheed Jeet Singh Marg, Qutub Institutional Area, New Delhi,, Annx.R/1 – insurance policy alongwith terms & conditions, Ex.R-2 – investigation report, Annx.R/3 –motor claim form, Annx.R/4 – FIR, Annx.R/5 – RC, Annx.R/6 – statement of Reena, Annx.R/7 – statement of Satinder, Annx.R/8 – Forensic examination report, Annx. R/9 – statement of Smt. Reena, Annx.R/10- repudiation letter dated 28.11.2022.
7. In this case, the complainant is the owner of Maruti Car bearing NO. HR-51AZ-7778 which was insured with opposite party No.1 vide insurance policy No. MP6365942 valid from 22.06.2022 to 21.06.2023 vide Ex.C2. On 08.09.2022 the brother-in=law of the complainant visited Metro Hospital, Sector-17, Faridabad and parked the car outside the boundary wall of the hospital at about 6.00p.m. When he come back at about 10.50p.m. then he noticed that someone had stolen his car. The driver immediately informed the police on PCR NO. 112 and then lodged complaint on 08.09.2022 with P.S.Sector-17, Faridabad but FIR was lodged on 10.09.2022 bearing FIR No. 237 u/s 379 IPC, P.S.Sector-17, Faridabad vide Ex.C-3. As per letter dated 13.09.2022 all the documents were taken by the representative of opposite party agency on 13.09.2022 vide Ex/C-4. On the other hand, opposite party has repudiated the claim of the complainant vide letter dated 28.11.2022 Annx.R-10 on the ground that “specifically admitting to have submitted the original keys of the vehicle, it becomes apparently clear that the lockset of the subject vehicle was damaged and free and operate with any keys which clearly indicates gross misrepresentation and suppression of material facts amounting to fundamental violation of policy terms & conditions for breach of the doctrine of utmost good faith.
8. During the course of arguments, counsel for the complainant has placed on record the vehicle history dated10.03.2021 vide Annx. X
9. After going through the evidence led by the parties, the Commission is of the opinion that the complaint is allowed on non standard basis.
9. For the adjudication of the present complaint and the issue therein, we place reliance on the Supreme Court Authority Amalendu Sahoo Vs. Oriental Insurance Company in Civil Appeal NO. 2703/2010 decided on 25.3.2010.
In Amalendu Sahoo’s case, there was violations of the Terms & conditions of the policy and the insurance benefits were denied by the insurance company. In the above mentioned case, further reliance was placed by the Supreme Court on:
a). New India Assurance Co. Ltd. Vs. Narayan Prasad Appa Prasad Pathak, and
b). National Insurance Company Vs. Nitin Khandelwal
Wherein it was observed by the Apex Court that the claim could have been settled on non standard basis in the event of minor breach of condition upto 20%. Once the Insurance Company has insured the vehicle for the loss caused to the insured, the insurance company is liable to indemnify the owner. When there is breach of the condition of the policy, the insurance company ought to have settled the claim on non standard basis.
10. Following the aforesaid guidelines, this Commission is of the opinion that the insurance company cannot repudiate the claim in toto. The complaint is allowed for claim to be settled on non standard basis.
IDV value of vehicle : Rs.2,11.000.00
Less Excess Clause : Rs. 1,000.00
: Rs.2,10,000.00
Deduction 20% on non standard basis on total : - Rs. 42,000.00
Total : Rs. 1,68,000.00
11. The opposite party No. 1 is directed to pay Rs. 1,,68,000/- alongwith interest @ 6% p.a to the complainant from the date of filing of complaint till its realization. The opposite party No.1 is also directed to pay Rs.5500/- as compensation on account of mental tension, agony and harassment and Rs.3300/- as litigation expenses to the complainant. This payment will be subject to the condition that the complainant will furnish the subrogation letter, cancellation of RC, affidavit, Form 29,30 and Form 35. Compliance of this order be made within 30 days from the date of receipt of copy of order. File be consigned to the record room. Copy of this order be sent to the parties concerned free of costs.
Announced on: 29.05.2024. (Amit Arora)
President
District Consumer Disputes
Redressal Commission, Faridabad.
(Indira Bhadana)
Member
District Consumer Disputes
Redressal Commission, Faridabad.
