Haryana

Karnal

CC/226/2022

Balwan Singh - Complainant(s)

Versus

Iffco Tokio General Insurance Company Limited - Opp.Party(s)

S.S. Moonak

14 May 2024

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, KARNAL.

                                                        Complaint No. 226 of 2022

                                                        Date of instt.19.04.2022

                                                        Date of Decision:14.05.2024

 

Balwan Singh, aged 30 years, son of Shri Om Parkash, resident  of village Barthal, District Karnal (Aadhar no.9700 9463 8334).

 

                                                                        …….Complainant.

                                              Versus

 

Iffco Tokio General Insurance Company Limited, through its Branch Manager, Hafed Building, Sector-12, Karnal.

 

                                                                  …..Opposite Party.

 

Complaint under Section 35 of Consumer Protection Act, 2019.

 

Before   Sh. Jaswant Singh……President.       

      Sh. Vineet Kaushik…….Member

      Dr.  Suman Singh…..Member

 

 Argued by: Shri S.S. Moonak, counsel for the complainant.

                    Shri Rohit Gupta, counsel for the OP.

 

                     (Jaswant Singh, President)

ORDER:   

                

                The complainant has filed the present complaint under Section 35 of the Consumer Protection Act, 2019 against the opposite party (hereinafter referred to as ‘OP’) on the averments that complainant was the registered owner of the Truck bearing no.HR-61-A-6679. The same was insured with the OP, vide its policy no.P400-91797242, valid from 31.03.2015 to 30.03.2016. The Insured Declared Value of the truck was Rs.14,00,000/-. The    policy was package/comprehensive. The complainant was using the said truck for earning his livelihood. The said truck was stolen in the intervening night of 08/09.11.2015 within the area of village Agondh, Police Station Nissing, District Karnal. The matter was reported to the local police and in this regard an FIR no.336 dated 09.11.2015, under section 379 IPC was registered with the police of Police Station Nissing, District Karnal. Thereafter, the matter was reported to the office of OP, an investigator/surveyor was appointed by the OP, who investigated the matter and all the formalities were duly complied with. Thereafter, the complainant alongwith his uncle Shiv Kumar son of Shri Arjun Lal, resident of village Agondh, District Karnal visited the office of OP again and again and submitted all the relevant documents including untrace report as demanded by the officials of the OP, the certified copy of the same was received by the complainant on 19.01.2018. The official of the OP assured that the matter will be settled as early as possible. Despite submitted all the documents, the OP neither settled the claim nor repudiated the mater and prolonged unnecessarily on one pretext or the other. Then complainant sent a legal notice dated 24.02.2022 to the OP but it also did not yield any result. It is further alleged that the alleged truck was financed with HDB Finance Company Limited and the complainant was paying the installments of said truck under the compelled circumstances. Since the truck was financed with HDB Financial Services Ltd. Karnal, the complainant was compelled to pay the balance loan installments as the official of the sad finance company had initiated the recovery proceedings against the complainant, his guarantor and the property of the complainant and his guarantor were attached. The complainant settled the matter with the finance company under the compelled circumstances after borrowing money from his friends and relatives. Till today OP neither settled the claim nor repudiated the claim of complainant. In this way there is deficiency in service and unfair trade practice on the part of the OP. Hence this complaint.

 2.            On notice, OP appeared and filed its written version raising preliminary objections with regard to maintainability; jurisdiction; cause of action; mis-joinder and non-joinder of necessary parties and concealment of true and material facts. On merits, it is pleaded that the present complaint is hopelessly barred by limitation. The vehicle in question was insured for the period from 31.03.2015 to 30.03.2016. The alleged theft of the vehicle took place in the intervening night of 08/09.11.2015, the claim file of the complainant was closed by the OP, vide letter dated 08.11.2016 due to non-submission of requested documents/articles after giving ample opportunities to the complainant, vide letters dated 26.07.2016, 24.08.2016, 06.09.2016 and 13.09.2016. The last communication letter was also issued to the complainant on 01.02.2018. The Section 24A of the Consumer Protection Act very clearly puts the bar of limitation two years for filing a consumer complaint. The limitation in the case of complaint runs from 01.02.2018 when the final communication letter was dispatched to the complainant, so the complaint must be filed prior 31.01.2020 i.e. within two years from the last communication letter, while the complaint has filed in the month of April, 2022 i.e. after lapse of more than four years. It is further pleaded that the vehicle of the complainant was a commercial vehicle being used for commercial activities and commercial policy was availed for the same, indicating the clear commercial purpose the vehicle was involved. Hence, the complaint is beyond the scope of Consumer Protection Act and complainant is not entitled to any relief. It is further pleaded that complainant not arrayed HDB Financial Services Limited as financer of vehicle as there is no loan termination letter or any NOC is submitted by the complainant to OP. The financer of the vehicle has first right on the insurance claim, if admissible under the terms and conditions of the policy. It is further pleaded that on receipt of intimation regarding theft of the vehicle in question, the claim of complainant has been duly processed by the OP and the claim of the complainant stands closed by the OP, vide letter dated 08.11.2016 since the complainant has failed to respond and submit any reply/document/response to the queries as mentioned in the letters dated 26.07.2016, 24.08.2016, 06.09.2016 and 13.09.2016 send by OP. Thereafter, OP had again send a letter dated 01.02.2018 to the complainant to submit the pending documents i.e. Original NOC and form 35 from financer of the vehicle, second cabin key and original RC within 10 days. The complainant failed to submit any reply/response or documents as mentioned in the said letter. It is further pleaded that only one cabin key of the alleged  stolen vehicle and failed to submit second cabin key despite of various request. The keys of stolen vehicle play major role in settlement and admissibility of the motor theft claim. If a vehicle owner or driver leaves any key in the vehicle itself while parking and the vehicle is stolen during that time, the theft is viewed as the individual’s negligence. The owner/insured is expected to take all reasonable measures to ensure the safety of insured vehicle. Providing all the keys of the stolen vehicle ensures that neither there is any negligence on the part of the owner nor any attempt to hoodwink the insurer. The act of the insured not submitting the original second cabin key of the stolen vehicle raises deep suspicion regarding the genuineness of the alleged theft or negligence on the part of the insured/driver by leaving the key in the vehicle itself which facilitate theft of the vehicle. There is no deficiency in service and unfair trade practice on the part of the OP. The other allegations made in the complaint have been denied and prayed for dismissal of the complaint.        

3.             Parties then led their respective evidence.

4.             Learned counsel for the complainant has tendered into evidence affidavit of complainant Ex.CW1/A, copy of RC Ex.C1, copy of insurance policy Ex.C2, copy of FIR Ex.C3, copy of legal notice Ex.C4, postal receipt Ex.C5, copy of order dated 12.03.2022 Ex.C6, copy of statement dated 12.03.2022 of Amit Kumar authorized representative of HDB Financial Ex.C7, copy of statement of Balwan Singh dated 12.03.2022 Ex.C8, copy of untrace report Ex.C9 and closed the evidence on 30.08.2022 by suffering separate statement.

5.             In additional evidence, learned counsel for the complainant has tendered closure letter of loan dated 16.05.2022 Ex.C10, copy of NOC Ex.C11, copy of form no.35 Ex.C12 and closed the additional evidence on 10.10.2023 by suffering separate statement.

6.             On the other hand, learned counsel for the OP has tendered into evidence affidavit of Gurvinder Kaur, General Manager-Legal Ex.OP1/A, copy of closure letter dated 08.11.2016 Ex.OP1, copy of letters dated 26.07.2016, 24.08.2016, 06.09.2016, 13.09.2016, 01.02.2018 Ex.OP2 to Ex.OP6, copy of insurance policy Ex.OP7, copy of investigation report Ex.OP8 and closed the evidence on 10.07.2018 by suffering separate statement.

7.             We have heard the learned counsel for the parties and perused the case file carefully and have also gone through the evidence led by the parties.

8.             Learned counsel for complainant, while reiterating the contents of the complaint, has vehemently argued that during the subsistence of insurance policy, the vehicle of the complainant was stolen. Intimation regarding theft was given to police as well as to the OP. The OP asked the complainant to completed the formalities and complainant completed all the formalities as per desire of the OP.  Complainant also handed over ignition and cabin keys to the surveyor of the OP.  Complainant requested the OP for releasing of his genuine claim but OP did not pay the claim and lastly prayed for allowing the complaint.

9.             Per contra, learned counsel for the OP, while reiterating the contents of written version, has vehemently argued that the present complaint is barred by limitation. OP asked the complainant through various letters to complete the formalities and submitted the required documents but complainant has failed to complete the formalities. Thus, the claim of complainant has rightly been closed by the OP and lastly prayed for dismissal of the complaint.

10.             We have duly considered the rival contentions of the parties. 

11.           Admittedly, the vehicle in question was stolen during the subsistence of insurance policy. It is also admitted that the insured declared value (IDV) of the vehicle in question is Rs.14,00,000/-.

12.           OP has alleged that the incident took place on 08/09.11.2015 and last letter Ex.OP6 dated 01.02.2018 was sent to the complainant and present the complaint has been filed on 19.04.2022, which is barred by limitation as prescribed under section 69 of the Consumer Protection Act, 2019.

 13.          At the time of filing the present complaint, complainant also filed the application for condonation of delay with the averments that as per the guidelines of Hon’ble Supreme Court of India the limitation of filing the case/complaint has been extended, even otherwise the cause of action of the present complaint is still continuous one, as the claim of the complainant has neither been settled nor repudiated by the OP. Said application has been allowed and condonation of delay for filing the present complaint has been condoned, vide order dated 20.04.2022 by the Commission. Moreover, as per the letter Ex.OP6 dated 01.02.2018, the claim has not been repudiated on the said date as alleged by the OP.  Hence, plea taken by the OP has no force.

14.           Initially, the claim of the complainant has been closed by the OP, vide closure letter Ex.OP1 dated 08.11.2016 on the grounds that:-

.        Complainant has not submitted the untrace report accepted by the court.

.       original keys of the lost vehicle (one ignition key and one cabin key)

        and

.       Original purchase invoice.

 

15.           The vehicle in question was stolen during the intervening night of 08/09.11.2015.  The untrace report has been accepted by the learned Illaqua Magistrate on 16.01.2018. The OP closed the claim on 08.11.2016 and at that time, untrace report was neither submitted by the police nor accepted by the court, thus the same was beyond the control of complainant. Complainant has alleged that he has submitted both the keys to the surveyor of the OP. The OP in his closure letter also demanded the purchase invoice, which is not required to settle the claim of the complainant. Hence, the said closure letter is not justified in the eyes of law.

16.           On receipt of the untrace report, complainant submitted the untrace report to the OP, this fact has been proved from the additional letter Ex.OP6 dated 01.02.2018 and OP in said letter demanded  Original NOC and form 35, Second Cabin Key and Original RC.

17.           HDB Financial Services Limited filed the execution application bearing no.176/21 before the Civil Court against the complainant as vehicle in question was financed with the HDB Financial Services Limited. The matter was compromised between the parties in National Lok Adalat held on 12.03.2022 and as per order Ex.C6 dated 12.03.2022 passed by Presiding Officer of National Lok Adalat, complainant has cleared the entire loan amount and HDB Financial Services Limited has issued a closure letter of loan Ex.C10 dated 16.05.2022, NOC Ex.C11 and form no.35 Ex.C12. Hence, it has been proved on record that complainant cleared entire loan amount.

18.           As per the complainant, at the time of theft, the original registration certificate of the vehicle was lying in the vehicle and keys of the vehicle have already been handed over to the surveyor of the OP. Complainant has already cleared the entire loan amount and submitted original NOC and form no.35 to the OP. As per last letter Ex.OP6 dated 01.02.2018 complainant has already submitted the original untrace report and original key to the OP. Thus, now, nothing is pending towards the complainant as all the formalities have already been completed by the complainant.        

19.  

“It seems that the Insurance Companies are only interested in earning the premiums which are rather too stiff now a days, but are not keen and are found to be evasive to discharge their liability. In large number of cases, the Insurance companies make the effected people to fight for getting their genuine claims. The Insurance Companies in such cases rely upon clauses of the agreements, which a person is generally made to sign on dotted lines at the time of obtaining policy. This is, thus pressed into service to either repudiate the claim or to reject the same. The Insurance Companies normally build their case on such clauses of the policy, but would adopt methods which would not be governed by the strict conditions contained in the policy”.    

20.           Keeping in view the ratio of the law laid down in aforesaid judgment, facts and circumstances of the present complaint, the act of the OP while not releasing the claim of the complainant amounts to deficiency of service and unfair trade practice, which is otherwise proved as genuine one. 

21.           As per insurance policy Ex.C2/Ex.OP7, the insured declared value of the vehicle in question is Rs.14,00,000/-. Hence the complainant is entitled for the insured amount alongwith interest, compensation for mental pain and agony and litigation expenses etc.

22.           In view of the above discussion, allow the present complaint and direct the OP to pay Rs.14,00,000/- (Rs. fourteen lakhs only) the IDV of the vehicle to the complainant alongwith interest @ 9% per annum from the date of filing the complaint i.e. 19.04.2022 till its realization. We further direct the OP to pay Rs.50,000/- to the complainant on account of mental agony and harassment suffered by him and Rs.11,000/- for the litigation expenses. This order shall be complied within 45 days from the receipt of copy of this order. However, the complainant is also directed to complete all the formalities with regard to transfer/cancel of the RC of the vehicle in question. The parties concerned be communicated of the order accordingly and the file be consigned to the record room after due compliance.

Announced
Dated:14.05.2024

  President,       

District Consumer Disputes                          

Redressal Commission, Karnal.

 

 

                  (Vineet Kaushik)              (Dr. Suman Singh)

                       Member                             Member