Haryana

Kaithal

150/20

Surender - Complainant(s)

Versus

Kotak Mahindra Finance Ltd - Opp.Party(s)

Sh.D.S. Chahal

02 May 2024

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, KAITHAL

 

                                                               Complaint Case No. 150 of 2020.

                                                               Date of institution:   17.06.2020.

                                                               Date of decision:      02.05.2024.

 

Surender s/o Shri Churiya Ram, r/o village Chandana, District Kaithal.

 

                                                                                      …Complainant.

                                                     Versus

 

1. Kotak Mahindra Bank Ltd., SCO 153-154-155, Basement Sector-9C, Madhya Marg, Chandigarh, through its Branch Manager.
2. United India Insurance Company Ltd., Karnal Road, Opposite I.G. College, Kaithal, through its Branch Manager.

...Opposite Parties.

 

          Complaint under Section 35 of the Consumer Protection Act

 

 

CORAM:   SMT. NEELAM KASHYAP, PRESIDENT.

                   SMT. SUMAN RANA, MEMBER.

                   SHRI SUNIL MOHAN TRIKHA, MEMBER.

                  

Present:       Shri D.S. Chahal, Advocate for the complainant.   

                   Shri M.R. Miglani, Advocate for Opposite Party No.2.

                   Opposite Party No.1 ex-parte.

                  

ORDER  -  NEELAM KASHYAP, PRESIDENT:

          Complainant has filed this complaint under Section 12 of Consumer Protection Act, 1986, against the OPs.

2.                In the complaint, complainant alleged that he is owner of a Bolero Maxi Truck Plus bearing Registration No.HR-65-8839 Model No.2014, which was under hypothecation/HPA from OP No.1, vide APAC No.LCV-791376 with agreement dated 14.11.2017. That the said vehicle has been insured with OP No.2 vide policy No.1107053117P109907426 valid from 12.10.2017 to 11.10.2018. That the said vehicle has been stolen in the midnight of 18/19.11.2017 by some unknown persons and thereafter, he reported the matter to the concerned police station i.e. Titram, wherein, FIR bearing No.137 dated 19.11.2017 u/s 379 of IPC was registered. That he also informed the OPs by submitting all the requisite documents. That he was regularly paying the installments of OP No.1 and never defaulted. That he requested the OPs to pay the claim amount, but they wrongly and illegally repudiated his claim vide letter Ref. No.BOK/PK/2019-20/585 dated 25.02.2020. The above act of OPs, amounts to gross deficiency in service, on their part, due to which, he suffered huge physical harassment, mental agony as well as financial loss, constraining him, to file the present complaint, against the OPs, before this Commission.

3.             Upon notice of complaint, initially both OPs appeared through counsel and filed their respective written statements, but on 04.10.2022, when the case was fixed for evidence of OPs, on that date, no one appeared on behalf of OP No.1, then Court notice was issued to OP No.1 for various dates, but no one appeared on behalf of OP No.1 and ultimately, on 15.12.2022, OP No.1 was proceeded against ex-parte, by this Commission.

4.                OP No.1, in its written statement stating therein that a loan vide loan cum Agreement No.LCV-791376 dated 14.11.2017 with loan amount of Rs.288265/- was entered with the complainant and till August 2021, Rs.753064/- will be outstanding towards the complainant and OP No.1 is legally entitled to recover the same.

5.                OP No.2, in its written statement stated that after receiving intimation from insured, OP appointed Mr. Shamsher Singh as independent investigator, duly approved by GIC for investigation the matter in dispute. That during investigation, investigator found that there is gross negligence on the part of complainant himself as lock of vehicle on conductor side of window was out of order. This fact was admitted by complainant before the investigator in written, which was main cause of theft of vehicle and it is gross violation of terms and conditions of insurance policy. That said investigator also found during his investigation that Kapil Sharma s/o Shamsher Singh, r/o village Hajwana is farmer and doing agriculture work at his village and he never employed as driver on the vehicle in question, so complainant has violated the term and condition No.5 of the Insurance Policy, as such, his claim was rightly repudiated. Hence, there is no deficiency in service on the part of OP No.2 and prayed for dismissal the present complaint.

6.                To prove the case, complainant tendered into evidence affidavit Ex.CW1/A alongwith documents Annexure-C1 to Annexure-C8.

7.                On the other hand, OP No.2, in its evidence tendered affidavits Ex.RW1/A, Ex.RW2/A and documents Annexure R-1 to Annexure R-3.

8.                We have heard the learned counsel for the parties and perused the record carefully.

9.                Learned counsel for the complainant has argued that the complainant is owner of a Bolero Maxi Truck Plus, which was under hypothecation/HPA from OP No.1 vide agreement dated 14.11.2017. He further argued that the said vehicle has been insured with OP No.2. He further argued that the said vehicle has been stolen in the midnight of 18/19.11.2017 by some unknown persons and thereafter, the complainant reported the matter to the concerned police station i.e. Titram, wherein, FIR bearing No.137 dated 19.11.2017 u/s 379 of IPC was registered. He further argued that the complainant also informed the OPs, by submitting all the requisite documents and requested the OPs to pay the claim amount, but they wrongly and illegally repudiated his claim, which amounts to gross deficiency in service, on their part.

10.              On the other hand, learned counsel for OP No.2 has argued that after receiving intimation from insured, OP appointed Mr. Shamsher Singh as independent investigator for investigation the matter in dispute, who during investigation found that there is gross negligence on the part of complainant himself, as lock of vehicle on conductor side of window was out of order and this fact was admitted by complainant before the investigator in written, which was main cause of theft of vehicle and it is gross violation of terms and conditions of insurance policy. He further argued that said investigator also found during his investigation that Kapil Sharma s/o Shamsher Singh, r/o village Hajwana is farmer and doing agriculture work at his village and he never employed as driver on the vehicle in question, so complainant has violated the term and condition No.5 of the Insurance Policy, as such, claim of complainant was rightly repudiated. Hence, there is no deficiency in service on the part of OP No.2 and prayed for dismissal the present complaint. In order to support his above contentions, he placed reliance upon case laws titled Amit Shukla Vs. Deputy GM, United India Insurance Co. Ltd. and others, 2019(1) CLT, 618 (MP State Commission, Bhopal); Oriental Insurance Co. Ltd. Vs. Sabbir, Revision Petition No.618-619 of 2018, DOD 13.04.2018 (NC) and Shiv Villas Resorts Pvt. Ltd. Vs. United India Insurance Co. Ltd. and others, 2018(1) CLT, 508 (NC).  

11.              Undisputedly the complainant is the owner of Bolero Maxi Truck Plus bearing registration No.HR-65-8839, which was hypothecation/HPA from OP No.1 Annexure C-1, and the said vehicle was insured, with OP No.2, vide policy No.1107053117P109907426, valid from 12.10.2017 to 11.10.2018, with insured value of Rs.3,15,000/-, vide policy document Annexure C-3. The said vehicle has been stolen and in this regard, FIR No.0137 dated 19.11.2017 was lodged in PS Titram Annexure C-6, upon which, police has presented Untraced Report, which was accepted by the learned JMIC, Kaithal, vide its order dated 02.02.2019 Annexure C-4. The complainant lodged his claim with OP No.2, who repudiated the same, vide letter dated 25.02.2020 Annexure C-2.

12.              The grievance of the complainant is that the OPs illegally and wrongly repudiated his claim. Contrary to it, learned counsel for OP No.2 has contended that the complainant failed to take all reasonable steps to safeguard the vehicle from loss or damaged in violation of Condition No.5 of the Insurance Policy.

13.              In order to support his above contentions, learned counsel for OP No.2 has drawn attention of this Commission towards statement of complainant Annexure R-3, wherein, he (complainant) has specifically stated that “the conductor side window lock of the vehicle was faulty”. Learned counsel for OP No.2 has further contended that from statement of complainant Annexure R-3, it is crystal clear that the left side window lock of the vehicle was faulty, which is invitation for the unscrupulous person to drive away the vehicle, hence, the complainant (insured) himself failed to take reasonable steps to safeguard the vehicle from loss or damage, which is violation of Condition No.5 of the policy in question Annexure R-2 (at page No.7). But it is pertinent to mention here that there would have been no justification for OP No.2 for repudiating the claim of complainant, in its entirety, only for violation of term and condition on this ground. In this regard, reliance can be made to authority titled as United India Insurance Co. Ltd. Vs. Gian Singh reported in II (2006) CPJ page 83 (NC), wherein it has been held by Hon’ble National Commission that in case of violation of condition of policy as to nature of use of the vehicle, the claim ought to be settled on non-standard basis. The above authority is fully applicable to the instant case. Hence, we are of the considered view that the claim in respect of vehicle in question should have been settled by OP No.2, on the basis of the guidelines of non-standard settlement i.e. 75% of the insured value. Thus, OP No.2 has wrongly repudiated the claim of complainant in toto, which amounts to deficiency in service, on the part of OP No.2. From policy document Annexure C-3, it is evident that the Insured Value of the vehicle in question was Rs.3,15,000/- and 75% of that amount comes to Rs.2,36,250/- (3,15,000 x 75%). So, the complainant is entitled to Rs.2,36,250/- on non-standard settlement basis. Since there is no specific allegations is proved against OP No.1, hence complaint qua OP No.1 is liable to be dismissed. The case laws, produced by OP No.2 are not applicable to the case in hand, being rested on different footings.

14.              In view of our above discussion, we accept the present complaint against OP No.2 and dismiss the same against OP No.1. We direct OP No.2, to make the payment of Rs.2,36,250/- along with compensation amount of Rs.10,000/- + litigation expenses of Rs.5,000/-, to the complainant, subject to the condition that the complainant shall submit requisite documents, with OP No.2 insurance company regarding cancellation of Registration Certificate of vehicle in question and thereafter, OP No.2 shall make the payment of total award amount to the complainant. OP No.2 is further directed to comply with the order of this Commission within 45 days positively, failing which, the total award amount shall carry interest @6% per annum, from the date of filing the present complaint, till its actual realization.

15.              In default of compliance of this order, proceedings shall be initiated under Section 72 of Consumer Protection Act, 2019, as non-compliance of Court order shall be punishable with imprisonment for a term which shall not be less than one month, but which may extend to three years, or with fine, which shall not be less than twenty five thousand rupees, but which may extend to one lakh rupees, or with both. A copy of this order be sent to the parties free of cost. File be consigned to the records, after due compliance.     

Announced in open Commission:

Dt.:02.05.2024.

                                                                                      (Neelam Kashyap)

                                                                                      President.

 

(Sunil Mohan Trikha).             (Suman Rana).              

Member.                                  Member.

 

 

 

 

Typed by: Sham Kalra, SSS.