Haryana

Karnal

CC/355/2018

Sanjha Ram - Complainant(s)

Versus

Kotak Mahindra G Insurance Company Limited - Opp.Party(s)

Suresh Goel

12 Mar 2020

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM KARNAL.

 

                                                          Complaint No. 355 of 2018

                                                          Date of instt. 17.12.2018

                                                          Date of Decision 12.03.2020

 

Sanjha Ram, aged 35 years, son of Shri Jati Ram, resident of village Subhri, Tehsil and District Karnal.  

 

                                                                        …….Complainant

                                        Versus

 

1. Kotak Mahindra G. Insurance Company Ltd., 8^th floor Zone, IV Kotak Infinity Building no.21, Infinity IT Park, opposite Western Express Highway AK Vaidya Marg, Dindoshi Malad (E), Mumbai-400097 through its Manager/authorized signatory.

2. Kotak Mahindra Bank Ltd., Branch opposite Mini Secretariat, Sector-12, Karnal through its Branch Manager.

 

                                                                        …..Opposite Parties.

 

           Complaint u/s 12 of the Consumer Protection Act. 

 

Before    Sh. Jaswant Singh……President. 

      Sh.Vineet Kaushik ………..Member

                Dr. Rekha Chaudhary…….Member

 

 Present:  Shri Suresh Goel Advocate for complainant.

                   Shri Sanjeev Vohra Advocate for opposite party no.1.

                   Shri G.S. Khillan Advocate for opposite party no.2.

 

                   (Jaswant Singh President)

ORDER:                    

 

                        This complaint has been filed by the complainant u/s 12 of the Consumer Protection Act 1986 on the averments that on 18.10.2016 the complainant has purchased a Eicher-242 Tractor bearing Engine no.524629178106, chasis no.924710285344 from M/s V.K. Traders, authorized dealer of Eicher Tractor, Namestay Chowk, Karnal for an amount of Rs.3,67,000/-, vide invoice no.1976 dated 18.10.2016. The said tractor was purchased by complainant with the financial assistance of OP no.2 and the said tractor was hypothecated by OP no.2 and insured by OP no.1, vide policy/certificate no.1003559800 dated 28.10.2016, valid from 28.10.2016 to 27.10.2017. On 29.04.2017 in the night, the complainant parked his tractor with trolley at the site of one Nettarpal in the safe parking, where a Chowkidar was on duty for safeguard to the tractor of the complainant as well as other material of the said Netterpal. In the morning of 30.04.2017 when complainant went to the abovesaid site, then he did not found his abovesaid tractor there and he searched his tractor with his best efforts upto 4-5 days, but his tractor did not found, then the complainant moved an application to the S.H.O., Police Station, Gharaunda for lodging a FIR with regard to the theft of his tractor against the unknown accused, on which a FIR no.239 dated 04.05.2017 under section 379, 201 IPC was registered in Police Station, Gharaunda and in the abovesaid FIR in investigation, the police of Police Station Gharaunda arrested the accused Ram Niwas and a case in abovesaid FIR was pending against the accused Ram Niwas before the court of Shri Vikramjeet Singh, learned J.M.I.C. Karnal, in which the accused Ram Niwas has been convicted by the court of Shri Vikramjeet Singh, learned JMIC, Karnal vide order dated 13.07.2018 and the copy of the order dated 13.07.2018 will be produced at the time of evidence and the police has not recovered the tractor of the complainant from the accused. Just after lodging the FIR in question, the complainant informed the OP no.1 with regard to the theft of his tractor with trolley and applied for insurance claim to the OP no.1 and all the required formalities were completed and all the documents required by the OP no.1, were submitted to OP no.1 with the insurance claim form of abovesaid tractor, but OP no.1 repudiated the claim of the complainant, vide repudiation letter dated 18.10.2017 wrongly and illegally as at the time of theft of abovesaid tractor, the said tractor was not being used for any purpose, which will violate the condition of insurance policy and the said tractor was standing in the night. After receiving the repudiation letter, the complainant approached to the OP no.1 so many times and made requests to give his insurance claim, but the OP no.1 did not bother to the genuine request of the complainant and flatly refused to accede the genuine request of the complainant.

2.             The said tractor was hypothecated with the OP no.2 and at the time of advancing loan for the abovesaid tractor, the OP no.2 got signed of the complainant on various printed as well as blank papers and also received ten blank signed cheques of the complainant and now the OP no.2 is making undue pressure upon the complainant for the payment of installments of the loan of the abovesaid tractor whereas complainant is facing great financial difficulties in paying the installment of abovesaid loan to the OP no.2 as his only mode of livelihood i.e. the abovesaid tractor has been stolen. In this way there was deficiency in service on the part of the OPs. Hence complainant filed the present complaint.

3.             Notice of the complaint was given to the OPs, OP no.1 appeared and filed written version raising preliminary objections with regard to maintainability; territorial jurisdiction and concealment of true and material facts. On merits, it is pleaded that on receiving the intimation, OP deputed Mr. S.K. Chhillar Investigator to investigate the matter to thoroughly investigate and submitted his detailed investigation report. After going  through all documents, it has been noted that insured vehicle was being used for commercial purpose and it is clear violation of policy, terms and conditions. As per condition of the policy “The company shall not be liable under this policy in respect of any accidental loss damage and/or liability caused sustained or incurred whilst the vehicle insured herein is

a. Being used otherwise than in accordance with the “Limitation as to use.” Moreover, on going through the documents and contents of the complaint, it is clear that tractor in question was purchased on 18.10.2016 and theft of the vehicle was taken place on 30.04.2017 and tractor in question was not registered with registering authority and RC of the tractor was not got prepared at the time of theft. So, it is clear violation of Motor Vehicle Act and policy terms and conditions. So, claim of the complainant was rightly repudiated and duly conveyed the same to the complainant through letter dated 18.10.2017. It is further pleaded that as per the contents of the complaint, police had arrested an accused qua the theft of tractor in question and trial was initiated against the accused. No such record has ever been supplied to the OP nor any information has been given and moreover no untraceable report has been submitted till date. So, in such circumstances detailed evidence is to be required and complaint cannot be decided in summary procedure. There is no deficiency in service on the part of the OP no.1. The other allegations made in the complaint have been denied and prayed for dismissal of the complaint.

4.             OP no.2 filed its separate written version raising preliminary objections with regard to locus standi; maintainability; jurisdiction and concealment of true and material facts. On merits, it is pleaded that the complainant has entered into a Loan-cum-Guarantee Agreement no.TFE-4704445 dated 24.10.2016 for an amount of Rs.3,03,348/- for a period of 48 months at a quarterly installment of Rs.27,125/-. The said agreement was signed by the complainant and co-borrower Shri Deepak voluntarily with his consent after reading and understanding the contents of the agreement in his full senses. The applicant is bound by the terms and conditions of the said agreement. As the applicant has violated the terms and conditions of the abovesaid loan agreement and has defaulted in making the loan installment to the bank on time as such the bank has got every right to repossess the vehicle financed. It is denied that the OP no.2 has obtained the signature of the complainant on various blank papers and cheque. The complainant has defaulted n paying the loan installment to the bank as per schedule and the complainant is liable to pay the same as per agreement dated 24.10.2016. It is incorrect that the income of the complainant has Nil and is unable to pay the installments. There is no deficiency in service on the part of the OP no.2. The other allegations made in the complaint have been denied and prayed for dismissal of the complaint.

5.             Complainant tendered into evidence his affidavit Ex.CW1/A and documents Ex.C1 to Ex.C8 and closed the evidence on 08.08.2019.

6.             On the other hand, OP no.1 tendered into evidence affidavit Ex.RW1/A and documents Ex.R1 to Ex.R8.

7.              OP no.2 tendered into evidence affidavit of Deepak Yadav Ex.OP2/A and documents Ex.OP1 to Ex.OP3 and closed the evidence on 19.02.2020.

8.             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.

9.             The case of the complainant, in brief,  is that he got insured his tractor with the OP no.1, vide policy no.1003559800 dated 28.10.2016, valid from 28.10.2016 to 27.10.2017. On 29.04.2017 the said vehicle was stolen by some unknown person in area of Netterpal  quo which an FIR no.239 dated 04.05.2017 under section 379, 201 IPC was registered in Police Station, Gharaunda. Complainant also sent the intimation in this regard to the OP no.1 and completed all the required formalities and all the documents required by the OP no.1, were submitted to OP no.1 with the insurance claim form  but OP no.1 repudiated the claim of the complainant, vide repudiation letter dated 18.10.2017 wrongly and illegally. Learned counsel of complainant relied upon the following judgments:

1. Civil Appeal no.6296 of 1995 date of decision 20.05.1996 case titled as B.V. Nagaraju Versus M/s Oriental Insurance Co. Ltd. Hassan (Hon’ble Supreme Court).

2. Civil Appeal No.21552 of 2017 (@ Special Leave Petition © no.34605 of 2015), date of decision 08.12.2017 case titled as Manjeet Singh Versus National Insurance Company Ltd. & Anr. (Hon’ble Supreme Court).

3. Civil Appeal Nos. 49-50 of 2016 (Arising Out of SLP © Nos. 37534-37535 of 2013), date of decision 07.01.2016 case titled as Lakhmi Chand Versus Reliance General Insurance (Hon’ble Supreme Court).

4. Civil Appeal no.3409 of 2008 (Arising out of SLP(Civil) no.20902 of 2006) date of decision 08.05.2008 case titled as National Insurance Co. Ltd. Versus Nitin Khandewal (Hon’ble Supreme Court)

5. Revision Petition no.3937 of 2013, decided on 05.12.2014 case titled as Oriental Insurance Co. Ltd. Versus Vidya Bai (Hon’ble National Commission).

10.            On the other hand, the case of the OP no.1, in brief, is that insured vehicle was being used for commercial purpose and it is clear violation of policy, terms and conditions. Further, the tractor in question was purchased on 18.10.2016 and theft of the vehicle was taken place on 30.04.2017 and tractor in question was not registered with registering authority and RC of the tractor was not got prepared at the time of theft. So, it is clear violation of Motor Vehicle Act and policy terms and conditions. So, claim of the complainant was rightly repudiated.

11.            The case of the OP no.2, in brief, is that the complainant has entered into a Loan-cum-Guarantee Agreement no.TFE-4704445 dated 24.10.2016 for an amount of Rs.3,03,348/- for a period of 48 months at a quarterly installment of Rs.27,125/-. The said agreement was signed by the complainant and co-borrower Shri Deepak voluntarily with his consent after reading and understanding the contents of the agreement in his full senses. The applicant is bound by the terms and conditions of the said agreement. As the applicant has violated the terms and conditions of the abovesaid loan agreement and has defaulted in making the loan installment to the bank on time as such the bank has got every right to repossess the vehicle financed.

12.            Admittedly, the vehicle in question has been stolen during the subsistence of the insurance policy. The claim of the complainant has been repudiated by the OP no.1, vide letter Ex.R1 on the grounds that

“As per the documents made available with us, it is been noted that at the time of accident insured vehicle was used for commercial purpose. This act tantamount to breach of policy terms and condition laid down under the insurance Contract.”

13.            As per the contents of the repudiation letter Ex.R1, at the time of accident, insured vehicle was used for commercial purpose.

14.            The insured vehicle has been stolen and not met with an accident. Thus, the OP is himself not sure whether the vehicle has been stolen or met with accident.

15.            Except Ex.R2 i.e. report of investigator of the OP no.1, there is nothing on the file, to prove that the vehicle in question was being used for the commercial purpose. The onus was upon the OP no.1 to prove his version but in the present case OP no.1 has failed to prove his version by leading the cogent, concrete and convincing evidence.

16.            Keeping in view the ratio of the law laid down above, facts and circumstances of the case, we are of the considered view that the act of the OP amounts to deficiency in service and unfair trade practice.

17.            As per the insurance policy Ex.C4 (Ex.R8) the IDV of the vehicle in question was Rs.3,48,560/-. Thus, the complainant is entitled for the same alongwith compensation for harassment and litigation expenses.

18.            The tractor in question had got finance by the complainant from OP no.2 and the tractor was hypothecated with the OP no.2 at the time of incident. As per hypothecation clause under the policy, the financer has got the first right to get the insurance claim.

19.            Thus, as a sequel to abovesaid discussion, we allow the present complaint and direct the OP no.1 to pay Rs.3,48,560/- i.e. the IDV of the vehicle in question to the OP no.2 (being financer) with interest @ 9% per annum from the date repudiation of the claim till its realization. We further direct the OP no.1 to pay Rs.20,000/- to the complainant as compensation for harassment, mental agony as suffered by him and  Rs.5500/- towards litigation expenses. We further direct the OP no.2 if there is any excess amount than his dues then in that situation this excess amount to be paid to the complainant. This order shall be complied within 30 days from the receipt of copy of this order. The parties concerned be communicated of the order accordingly and the file be consigned to the record room after due compliance.

Announced

Dated:12.03.2020       

                                                                                                                                                                           President,

                                                              District Consumer Disputes                                                            Redressal Forum, Karnal.       

 

 

         ((Vineet Kaushik)                (Dr. Rekha Chaudhary)

            Member                         Member