Haryana

Karnal

CC/128/2020

Jasmer - Complainant(s)

Versus

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

Deepak Singh Dhull

03 Mar 2023

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, KARNAL.

 

                                                        Complaint No. 128 of 2020

                                                        Date of instt.28.02.2020

                                                        Date of Decision:03.03.2023

 

Jasmer son of Shri Kali Ram, resident of village Padha, District Karnal.

 

                                               …….Complainant.

                                              Versus

 

1.     Iffco Tokio General Insurance Company Limited, SCO no.19-20, HAFED Building, Sector-12, Karnal, through its Branch Manager.

 

2.     Iffco Tokio General Insurance Company Limited, Iffco Sadan C-1, District Centre, Saket New Delhi. 110017, through its Senior Manager/CEO/Authorized Signatory.

 

3.     M/s Om Tractors, Karnal Road, Assandh, District Karnal, Authorized Dealers Mahindra & Mahindra Ltd. Sales, Services, Spares, through its prop/partner/authorized signatory.

 

                                                                      …..Opposite Parties.

 

Complaint Under Section 12 of the Consumer Protection Act, 1986 and after amendment Under Section 35 of Consumer Protection Act, 2019.

 

Before   Sh. Jaswant Singh……President.

              Sh. Vineet Kaushik…….Member

      Dr. Rekha Chaudhary…….Member

                   

 Argued by: Shri Deepak Singh, counsel for the complainant.

                    Shri Ashok Vohra, counsel for the OPs no.1 & 2.

    OP no.3 exparte.

 

                    (Jaswant Singh President)

 

ORDER:   

                

                   The complainant has filed the present complaint Under Section 12 of the Consumer Protection Act, 1986 as after amendment under Section 35 of Consumer Protection Act, 2019 against the opposite parties (hereinafter referred to as ‘OPs’) on the averments that complainant got insured his tractor bearing registration no.HR-40-G-1304 from the OPs no.1 and 2, vide policy no.28772557 and on such policy the complainant had lodged a claim no.37314267 to OPs no.1 and 2, by furnishing required documents under the instruction of the company. After lodging the claim in the company of OPs no.1 and 2, complainant visited the office of OPs several times and requested for the disbursement of the claim amount but OPs lingered the matter on one pretext or the other and lastly OPs had sent an Approval Letter dated 19.12.2019, vide which the company of OPs no.1 and 2 had intimated the complainant that “subject claim has been approved by the competent authority for Rs.3,89,263/- subject to submission of requisite documents”. Further, in the said approval letter, OPs had intimated the complainant that claim has been approved after a deduction of 25% for non-submission of one set of original key of the vehicle which is required for the settlement of claim and delay registration of vehicle. The alleged deduction of 25% of claim amount is an illegal and unlawful act on the part of the company, because complainant has already submitted a DDR regarding lost of original key but OPs has considered the said DDR as in an illegal manner. It is further averred that now in these days to get the registration of the vehicle is the duty of the authorized dealer while complainant on his part has already paid the registration expenses and requisite documents to OP no.3 against proper receipt at the time of purchasing the abovesaid vehicle, so there is no fault on the part of the complainant regarding delay in registration of vehicle if any. During survey on the part of the OPs, the complainant had provided said RC to the company within time after receipt of same from OP no.2. These facts were duly informed by the complainant to the concerned surveyor of the company. The OP no.3 will be responsible for delay in registration of vehicle if any, so OPs no.1 and 2 are not liable to deprive the complainant regarding 25% deduction of claim amount, whereas OPs no.1 and 2 reserve their right to recover the same from OP no.3 on account of his negligence in delay in registration of vehicle, if any, because OP no.3 is authorized agent/service provides on the part of the OPs no.1 and 2 after disbursement of complete amount to the complainant. Then complainant sent a legal notice dated 15.01.2020 to the OPs but it also did not yield any result. OPs no.1 and 2 again sent a letter dated 20.01.2020 to the complainant by stated that 75% claim amount has been settled in favour of the complainant by OPs no.1 and 2 that shows that even after receipt of legal notice, the OPs are adamant not to pay 100% amount of claim to the complainant and have also not replied to the legal notice. In this way there is deficiency in service and unfair trade practice on the part of the OPs. Hence this complaint.

2.             On notice, OPs no.1 and 2 appeared and filed its written version, raising preliminary objections with regard to maintainability; cause of action; locus standi; jurisdiction; non-joinder of M/s ICICI Bank Limited as necessary party being financer of the vehicle in question and concealment of true and material facts. On merits, it is pleaded that the claim of the complainant was duly processed and the same was approved vide letter dated 19.12.2019 to the extent of 75% i.e. Rs.3,89,263/- of Insured Declared Value i.e. Rs.5,22,500/- of the stolen tractor due to the fact that the complainant failed to comply with the requirement of Motor Vehicle Act as well as terms and conditions of the insurance policy. It is further pleaded that a claim intimated dated 06.12.2017 was received by the OP, vide which it was informed that a tractor bearing registration no.HR40G1304 insured with the OPs for an IDV of Rs. Rs.5,22,500/-. On receipt of intimation, OP appointed an independent investigator M/s Active Claims Consultants and thereafter M/s Vikas Kumar Associates for reinvestigation into the reported theft. On his investigation report 22.11.2019, the investigator concluded that, the tractor was unregistered at the time of loss and further it was emerged that the complainant had only submitted one set of key i.e. one ignition and one diesel tank key and the another set of key reportedly lost post theft of tractor.  It is further pleaded that complainant purchased the vehicle in question on 30.08.2017. However, as per the registration certificate, the vehicle was registered only on 11.12.2017 i.e. after its reported theft on 06.12.2017 and after around more than three months of its purchase. Getting the permanent registration certificate was the legal responsibility of the complainant before plying the vehicle at the public place as required under section 39 of the Motor Vehicles Act, 1988. As per rule 47 (1) of the Motor Vehicles Rules, 1989, an application for registration of a vehicle shall be made in Form 20 to the registering authority within a period of seven days from the date of taking delivery of such vehicle. There was a considerable delay on the part of the complainant while approaching to the concerned registration authority for registering his tractor. Further, the second set of key was reportedly stolen subsequently of theft of tractor and the fact cannot  be ignored here that the complainant left the keys in the tractor itself while it was parked and left unattended, which had help to thief/thieves on their act of staling the vehicle. The complainant should have kept the second set of keys in safe to prove that the vehicle was left duly locked at the time of incident of theft. The complainant himself is negligent and careless as the complainant left the tractor trolly unattended at its parked place and had gone with a stranger who might have stolen the tractor of the complainant. It is further pleaded that the trolley was recovered but no clue about the tractor. As per the terms and conditions of the insurance policy it is obligatory on the part of the insured to take all reasonable steps to safeguard the insured vehicle from any loss or damage. It is further pleaded that on receipt of investigation reports and documents on record, the claim in question was further processed by the insurance company considering the aforesaid facts, the OPs approved the claim to the extent of 75% of the stolen tractor on account of non-submission of second set of key and further Rs.2612/- deducted towards compulsory excess being 5% of IDV as per the policy compulsory excess/deduction clause. The approval of claim was duly conveyed to the complainant, vide letter dated 19.12.2019 and requested to complainant to submit the necessary post approval documents but complainant failed to submit the documents till today as detailed below:-

i.      Registration Certificate duly freezed/Blocked by RTA

ii.     Letter of Subrogation.

iii.     Discharge Voucher duly singed by insured and financer.

iv.     NOC, form 35 and Cancel cheque of insured bank account (in case of loan closed)

v.     NEFT detail of financer for payment.

vi.     Set of form 29 and 30 duly signed by insured/registered owner

vii.    Indemnity Bond.

viii.   Consent letter.

When the abovesaid documents not received by the OPs, OPs sent reminders dated 27.01.2020 and 19.02.2020 but complainant has not submitted the desired documents, the OPs left with no other option but to close the claim of the complainant as non-compliance and intimation to this effect was duly sent to the complainant, vide letter dated 16.03.2020. There is no deficiency in service and unfair trade practice on the part of the OPs. The other allegations made in the complaint have been denied and prayed for dismissal of the complaint.

3.             OP no.3 did not appear despite service and opted to be proceeded against exparte, vide order dated 02.12.2021 of the Commission.

4.             Parties then led their respective evidence.

5.             Complainant has tendered into evidence his affidavit Ex.CW1/A, copy of legal notice dated 15.01.2020 Ex.C1, postal receipts Ex.C2, copy of registration certificate Ex.C3, copy of insurance policy Ex.C4, copy of FIR Ex.C5,  copy of final report of 173Cr.P.C. Ex.C6, copy of DDR Ex.C7, copy of receipt issued by Rohit Ex.C8, copy of insurance policy of old tractor Ex.C9, copy of form 21 Ex.C10, copy of temporary certificate Ex.C11, copy of high security registration slip Ex.C12, copy of certificate of inspection by dealer Ex.C13, copy of form-22 Ex.C14, copy of receipt issued by Transport Authority Assandh Ex.C15, copy of bill dated 30.08.2017 Ex.C16, copy of job card Ex.C17, copy of gate pass Ex.C18, copy of cash bill invoice Ex.C19, copy of letter regarding repossessed by ICICI Bank Ex.C20, copy of account details of ICICI bank Ex.C21, copy of letter of insurance company dated 19.12.2019 Ex.C22, copy of approval letter dated 19.12.2019 Ex.C23, copy of letter dated 18.12.2019 Ex.C24, copy of reminder dated 27.01.2020 Ex.C25, copy of Aadhar card Ex.C26, copy of settlement letter of ICICI  Bank Ex.C27, copy of certificate for removal of HP of ICICI Bank dated 12.10.2020 and closed the evidence on 06.04.2020 by suffering separate statement.

6.             On the other hand, learned counsel for the OPs has tendered into evidence affidavit of Sameer Gupta Ex.OP1/A, copy of approval letter dated 19.12.2019 Ex.O1, copy of investigation report Ex.O2, copy of letter dated 22.11.2019 of Vikas Associates Ex.O3, copy of bill of M/s Om Tractor Ex.O4, copy of registration certificate Ex.O5, copy of statement of Jasmer i.e. complainant Ex.O6, copy of reminders and letters dated 27.01.2020, 11.02.2020, 19.02.2020 Ex.O7 to Ex.O9, copy of closure letter dated 26.03.2020 Ex.O10, copy of insurance policy Ex.O11 and closed the evidence on 04.10.2022 by suffering separate statement.

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

8.             Learned counsel of complainant, while reiterating the contents of complainant, has vehemently argued that complainant  got insured his tractor from the OPs no.1 and 2. The vehicle of complainant was stolen during the subsistence of the insurance policy. Complainant had lodged the claim with OPs no.1 and 2 and completed all the formalities. After lodging the claim, complainant requested the OPs for the disbursement of the claim but did not pay any heed to the request of complainant lastly OPs had sent an Approval Letter dated 19.12.2019, vide which OPs no.1 and 2 had intimated the complainant that competent authority has approved  the claim on non-standard basis i.e. 75% amounting to Rs.3,89,263/- subject to submission of requisite documents and 25%  amount be deducted for non-submission of one set of original key of the vehicle. The alleged deduction of 25% of claim amount is an illegal and unlawful act on the part of the company, because complainant has already submitted a DDR regarding lost of original key but OPs has considered the said DDR and lastly prayed for allowing the complaint.

9.             Per contra, learned counsel for the OPs no.1 and 2, while reiterating the contents of written version, has vehemently argued that the claim of the complainant was duly processed and the same was approved vide letter dated 19.12.2019 to the extent of 75% i.e. Rs.3,89,263/- of Insured Declared Value i.e. Rs.5,22,500/- of the stolen tractor due to the fact that the complainant failed to comply with the requirement of Motor Vehicle Act as well as terms and conditions of the insurance policy. He further argued that the second set of key was reportedly stolen subsequently of theft of tractor and the fact cannot  be ignored here that the complainant left the keys in the tractor itself while it was parked and left unattended 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 has been stolen during the subsistence of the insurance policy. It is also admitted that complainant had intimated the OPs and the police without any delay.

12.           The claim of the complainant has been repudiated by the OPs, vide repudiation letter Ex.O10, which reproduced as under:-

        “This has reference to out letter dated 19.12.2019 regarding approval of theft claim lodged by you for a amount of Rs.3,89,263/- subject to compliance of below mentioned formalities:

        You are requested to submit the following to enable us to process the payment:

i.      Registration Certificate duly freezed/Blocked by RTA

ii.     Letter of Subrogation(non-judicial stamp paper of Rs.100/- duly notarized in the format.

iii.     Discharge Voucher duly singed by insured and financer, if applicable.

iv.     Cancel cheque of insured name should be print on cheque/NEFT format filled by bank for the payment.

v.    Set of form 29 and 30 duly signed by insured and financer, if applicable.

vi.     Indemnity Bond.

vii.    Consent letter.

viii.   NEFT detail of financer for payment or NOC & Form 35 form the financer.

        Inspite of regular reminders from us (Request letter 12/12/2018, reminder letter 27.01.2020, final letter 11.02.2020) we have not received the abovementioned documents. Under the circumstances we presume that you are not interested in pursuing your claim and we are therefore closing it as “No Claim”.

 

13.           On receipt of investigation reports and document, the claim in question was further processed by the OPs, approved the claim to the extent of 75% i.e. Rs.3,89,263/- of IDV i.e. Rs.5,22,500/- of the stolen tractor on account of non-submission of second set of key and violation of terms and conditions of the insurance policy as well as Motor Vehicle Act.

14.           The second set of key alongwith other articles  i.e. Aadhar card, PAN card, EMI tractor receipt, Forest work receipt, tractor key etc. and cash Rs.2500/- had been misplaced and in this regard complainant had lodged the DDR Ex.C7 dated 27.12.2017. When the second set of key has already been misplaced alongwith other articles, the question for submitting the same to the OPs does not arise at all. Hence the plea taken by the OPs has no force.

15.           OPs want to settle the claim on non-standard basis but complainant is not ready for that and has not submitted the required documents including consent letter. While as the complainant has already lodged the DDR in connection with the missing of second set of key, the submission of the consent letter on non-standard basis does not arise at all. Therefore, OPs are not justified for deductions in the claim amount.

16.               Further,  Hon’ble Punjab and Haryana High Court in case titled as New India Assurance Company Ltd. Versus Smt. Usha Yadav & others 2008 (3) RCR (Civil) 111, has held as under:-

                “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”.    

17.           Keeping in view that the ratio of the law laid down in aforesaid judgments, facts and circumstances of the present complaint, we are of the considered view that acts of the OPs while repudiating the claim of the complainant amounts to deficiency in service and unfair trade practice, which is otherwise proved genuine one. 

18.           As per insurance policy Ex.C4/Ex.O11, the Insured Declared Value (IDV) of the vehicle in question is Rs.5,22,500/-. Hence, the complainant is entitled for the same alongwith interest, compensation and litigation expenses etc.

19.           Thus, as a sequel to abovesaid discussion, we allow the present complaint and direct the OPs to pay Rs.5,22,500/- (Rs. five lakhs twenty two thousand five hundred only) insured declared value (IDV)  to the complainant alongwith interest @ 9% per annum from the date of repudiation/closing of the claim till its realization. We further direct the OPs to pay Rs.20,000/- to the complainant on account of mental agony and harassment and Rs.11,000/- towards the litigation expenses. This order shall be complied with within 45 days from the receipt of copy of this order. The complainant is also directed to get all the formalities completed with regard to transfer of vehicle as and when the OPs desire. The parties concerned be communicated of the order accordingly and the file be consigned to the record room after due compliance.

Announced

Dated:03.03.2023                                                                       

                                                        President,

                                                   District Consumer Disputes

                                                   Redressal Commission, Karnal.

 

                (Vineet Kaushik)        (Dr. Rekha Chaudhary)      

                      Member                        Member