Haryana

Karnal

CC/20/2024

Smt. Pushpa Arora - Complainant(s)

Versus

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

Randhir Singh

04 Nov 2024

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, KARNAL.

 

                                                        Complaint No.20 of 2024

                                                        Date of instt.10.01.2024

                                                        Date of Decision: 04.11.2024

 

Smt. Pushpa Arora, aged 61 years wife of Shri Ashok Kumar Arora, resident of house no.262, Subhash Gate, Karnal. Mobile no.87084 15859. Aadhar card no.4717 1011 9276.

 

                                                                        …….Complainant.

                                              Versus

 

1. Iffco-Tokio General insurance Company Limited through its authorized officer/authorized representative, Iffco Bhawan, plot no.2 b & c, Sector 28A, 3^rd floor Madhya Marg, Chandigarh-160002.
2. Iffco-Tokio General Insurance Company Limited, through its authorized officer/authorized representative, sector-12, HUDA, Karnal-132001.

 

…..Opposite Parties.

 

Complaint under Section 35 of Consumer Protection Act, 2019.

 

Before   Shri Jaswant Singh……President.     

              Ms. Neeru Agarwal…….Member

      Ms. Sarvjeet Kaur…..Member

 

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

                    Shri Mohit Goyal, counsel for the OPs.

 

                     (Jaswant Singh, President)

ORDER:   

                

                The complainant has filed the present complaint under Section 35 of the Consumer Protection Act, 2019 against the opposite parties (hereinafter referred to as ‘OPs’) on the averments that complainant had purchased vehicle (Honda Activa 125 STD) bearing registration no.HR-05AY-0318 and got insured the said vehicle with the OPs, vide policy no.MQ 187659 w.e.f. 06.08.2022 to 05.08.2023, for the sum of Rs.33,700/-. On 03.01.2023 at about 12.45 (noon), husband of the complainant, who is practicing Advocate in the District Courts, Karnal had gone to pay obeisance at Nirmal Kutia, Karnal while parking the same in the Nirmal Kutia premises itself after locking the said vehicle but at about 1.00 p.m., however, when he came back, he found the aforesaid vehicle missing from the said place. In the front cabinet of the Activa, a jute bag containing court related papers and bank pass book of the husband of the complainant was also kept. The husband of the complainant searched the vehicle but could not find the same. Immediately, the husband of complainant moved an application in the police post sector 13, Karnal and accordingly an FIR no.10 dated 03.01.2023 under section 379 IPC was registered in Police Station Civil Lines, Karnal. Intimation was also sent to the OPs, vide letter dated 06.01.2023. After receipt of the untrace report from the police concerned, complainant submitted the same alongwith required documents with the OPs. Vide letter dated 21.10.2023, the OP informed the complainant that it was observed by the OPs that both keys sent by the complainant are different and unused and asked the complainant to clarify why different and unused keys were submitted, within 10 days on receipt of the said letter. In response of the said letter, complainant sent a reply dated 01.11.2023 submitting therein that complainant searched her almirah in the house but could not find any other key despite of her best efforts. It was also submitted in said letter that the complainant had visited her daughter residing in Perth (Australia) and she remained there for a long period from 08.01.2023 to 29.09.2023. The keys already sent to the OPs were the original keys which were being used by the complainant before theft of the vehicle in question. Vide letter dated 08.11.2023, the OPs asked the complainant that she should submit the used key of the insured vehicle which was using before theft of insured vehicle and further stated that in case of non-compliance of which reluctantly force the OPs to close the claim. In reply to the said letter, the complainant again requested to the OPs, vide letter dated 18.11.2023 that she does not possess any other key in respect of the vehicle in question and after receipt of letter of the OPs, she again searched her almirah in the house very carefully but failed to find out any key. Complainant honestly submitted that she does not possess any other key of the aforesaid insured vehicle in her possession as she has already submitted the original keys which were being used before theft of the vehicle in question but the OPs in order to escape from its legal liability is legally and malafidely prolonging the matter without any right. In the compelling circumstances, complainant sent a legal notice dated 14.12.2023 to the OPs but it also did not yield any result. 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 appeared and filed its written version raising preliminary objections with regard to maintainability; cause of action; locus standi and concealment of true and material facts. On merits, it is pleaded that the theft of the vehicle occurred on 03.01.2023 and as the intimation as given to OPs on 06.01.2023 i.e. after 3 days of the loss/theft. Thus, it is breach of the condition no.1 of the policy. Secondly, the complainant had submitted two ignition keys allegedly belonging to the stolen vehicle. Based on the detailed forensic examination of the keys, it is found that the keys are unused and striation marks on the keys are not in line with age of the vehicle i.e. four years four months and three days. The keys were unused and noted to be not in co-relation with age of vehicle. Based on the detailed forensic examination of the keys, it is found that both the keys are showing differences in the shape and size of the bow, logo, number of grooves and its cutting pattern when both the keys are compared with each other, therefore, the submitted keys were made to operate different locks. As per statement of complainant the original keys were lost and complainant not filed any complaint for lost keys i.e. she did not take proper safeguards to make any efforts to find the keys, thus increasing the probability of vehicle being stolen. It is violation of principal of utmost good faith, undertaking of insured given in the claim from and violation of policy conditions no.4 & 8. It is further pleaded that the original key might have left in the vehicle when the vehicle was parked and left unattended by its driver and the vehicle was stolen due to gross negligence of the driver which is not covered under the insurance policy. Therefore, OPs have rightly repudiated the claim of complainant, vide its letter dated 02.02.2024 and communicated the same to the complainant. It is further pleaded that Forensic investigation agency examined the submitted keys and submitted their report dated 10.01.2024 to the OPs whereby a clear fact has emerged that the keys submitted by the complainant are not the keys issued by the manufacturer of the vehicle further the keys are unused and even not matching with each other. According to the report the following facts were ascertained:-

a)     The received keys marked as S-1 and S2 are not a company  issued keys.

b)    Striation marks which are formed due to the insertion of the blade part of the key in ignition lock are absent on the blade part of both keys. Further, some yellow colour metal is seen on the edges of the blade of the key S-1 which are intentionally created by any sharp object to manipulate it usages while these marks are absent on the key S-2. Therefore, the keys are unused.

c)     As per age of the vehicle i.e. four years four months three days, the keys are unused and noted to be not in line.

d)     The keys marks as S-1 and S-2 are showing similarities from the bow part like shape and colour of the bow, position of logo and hole present on the bow while showing dissimilarities from the blade part like number of grooves and their cutting pattern when both the keys are compared with each other. Further, the key are made to operate different locks as number of grooves their cutting pattern are showing differences with each other.

Thus, in view of the above, it was concluded that the keys submitted by the insured do not belong to the stolen vehicle and insured knowingly provided the wrong keys and misrepresented loss particulars in support of this reported claim. 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.             Parties then led their respective evidence.

4.             Learned counsel for the complainant has tendered into evidence affidavit of complainant Ex.CW1/A, copy of aadhar card of complainant Ex.C1, copy of letter dated 13.09.2023 Ex.C2, copy of courier receipt dated 16.10.2023 Ex.C3, copy of letter dated 16.10.2023 Ex.C4, coy of claim form Ex.C5, copy of letter dated 03.11.2023 Ex.C6, copy of untrace report Ex.C7, copy of self statement dated 16.10.2023 Ex.C8, copy of insurance premium receipt Ex.C9, copy of insurance policy Ex.C10, copy of RC Ex.C11, copy of cancelled cheque Ex.C12, copy of driving licence Ex.C13, copy of letter dated 21.10.2023 Ex.C14, courier receipt Ex.C15, copy of letter dated 01.11.2023 Ex.C16, copy of letter dated 08.11.2023 Ex.C17, copy of legal notice Ex.C18, postal receipts Ex.C19 and Ex.C20, copy of receipt of Nirmal Kutia Ex.C21, copy of letter dated 06.01.2022 Ex.C22 and closed the evidence on 13.06.2024 by suffering separate statement.

5.             On the other hand, learned counsel for the OPs has tendered into evidence affidavit of Sumant Raj Singh Ex.OPW1/A, affidavit of Laishram Rosciline Devi, Scientific Officer Ex.OPW2/A, copy of insurance policy Ex.OP1, copy of Forensic Report Ex.OP2, copy of letter dated 01.11.2023 Ex.OP3, copy of letter dated 08.11.2023 Ex.OP4, copy of claim form Ex.OP5, copy of letter dated 02.02.2024 Ex.OP6 and closed the evidence on 26.09.2024 by suffering separate statement.

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

7.             Learned counsel for complainant, while reiterating the contents of the complaint, has vehemently argued that complainant 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 OPs. A FIR no.10 dated 03.01.2023 was registered with the Police Station, Civil Line, Karnal. Complainant submitted the claim with the OPs and completed all the required formalities for settlement of the claim but OPs did not pay the claim amount and rejected the claim of complainant on the false and frivolous ground and lastly prayed for allowing the complaint.

8.             Per contra, learned counsel for the OPs, while reiterating the contents of written version, has vehemently argued that the vehicle in question was stolen on 03.01.2023 and intimation in this regard sent to the OPs on 06.01.2023 i.e. after 3 days of the loss/theft. He further argued that the keys submitted by the complainant were unused and not in co-relation with age of vehicle and therefore the keys deposited by the complainant do not belong to the stolen vehicle. Thus, the claim of complainant has rightly  been repudiated by the OPs, vide letter dated 02.02.2024 and lastly prayed for dismissal of the complaint.

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

10.           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.33,700/-.

11.           The claim of the complainant has been repudiated by the OPs, vide repudiation letter Ex.OP6 dated 02.02.2024 on the ground of misrepresentation of loss particulars and violation of terms and conditions of the policy.

12.           OPs have alleged that complainant did not cooperate the investigator to provide the keys and lateron provided two keys on 06.10.2023. Both the keys were sent to Forensic Examination and as per Forensic Report, both the keys were found unused and different in shape. The onus to prove its version was relied upon the OPs but OPs have miserably failed to prove the same by leading any cogent and convincing evidence. The case of the OPs are based upon the Forensic Report Ex.OP2 dated 10.01.2024.  The said report is a photocopy and same is not admissible in the eyes of law.

 13.          Moreover, if for the sake of arguments, if it be presumed that complainant has violated the terms and conditions of the insurance policy, in that eventuality, the claim of the complainant cannot be repudiated in toto.  In this regard, we can relied upon the case laws  titled as Amalendu Sahu Vs. Oriental Insurance Company Limited, in Civil appeal no.2703 of 2010, decided on 25.03.2010 of Hon’ble Supreme Court of India; New India Assurance Co. Ltd. Versus Thirath Singh Brar in Revision Petition no.1870 of 2015(NC) decided on 14.08.2018 titled as of Hon’ble National Commission and authority of our own Hon’ble State Commission in First Appeal no.717 of 2016 decided on 6.4.2017 titled as United India Insurance Company Limited and others Versus Anshul Bansal.  In all the judgments it was held that in case of any breach of warranty/condition of the policy the insurer is liable to pay 75% of admissible claim on non-standard basis.

14.  

“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”.

15.           Keeping in view the ratio of the law laid down in the abovesaid authorities and the facts and circumstances of the present complaint, we are of the considered view that the act of the OPs amounts to deficiency in service and unfair trade practice while repudiating the claim of the complainant in toto. Hence, complainant is entitled to get 75% only of the admissible claim on non-standard basis.

16.           As per insurance policy Ex.C10, the insured declared value(IDV) of the vehicle in question is Rs.33,700/-.   Hence the complainant is entitled for Rs.25,275/- i.e. 75% of the insured amount alongwith interest, compensation and litigation expenses etc.

17.           In view of the above discussion, we partly allow the present complaint and direct the OP to pay Rs.25,275/- (Rs.twenty two thousand two hundred seventy five only) i.e. 75% of the insured amount alongwith interest @ 9% per annum from the date of filing the complaint i.e. 02.02.2024 till its realization to the complainant. We further direct the OP to pay Rs.10,000/- to the complainant on account of mental agony and harassment suffered by her and Rs.5500/- for the litigation expenses. This order shall be complied with within 45 days from the receipt of copy of this order. 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.

Dated:04.11.2024

         President,

      District Consumer Disputes                           

      Redressal Commission, Karnal.

 

                   ( Neeru Agarwal)            (Sarvjeet Kaur)

                           Member                        Member