District Consumer Disputes Redressal Commission ,Faridabad.
Consumer Complaint No. 79/2021.
Date of Institution:08.02.2021.
Date of Order: 29.05.2024.
Shri Dushyant Kumar Shringrishi s/o shri Alakh Prakash Shringrishi r/o FCA- 106, East Chawla Colony, Ballabgargh, Near Gyatri Mandir Wali Gali, Faridabad – 121004.
…….Complainant……..
Versus
1. M/s. Bharti AXA General Insurance Co. td., First floor, Hosto Centre, No. 43, Millers road, Vasanth Nagar, Bangalore – 560052 through its Regional Manager.
Servicing Officer of Insurer:-
M/s. Bharti AXA General Insurance Co. Ltd., 2nd & 3rd floor, SCO-20, Above ICICI Bank, Sectpr-14, Gurgaon – 122002 through its Branch Manager.
2. Om Motors, Ground floor 1/B. 198, NIT, Neelam Bata Road, Faridabad- 121001 through its Manager.
…Opposite parties……
Complaint under section-12 of Consumer Protection Act, 1986
Now amended Section 34 of Consumer protection Act 2019.
BEFORE: Amit Arora……………..President
Indira Bhadana………….Member.
PRESENT: Sh. Sudhir Chauhan, counsel for the complainant.
Sh. Rakesh Dabaas, counsel for opposite party No.1.
Shri K.P.Khatana, counsel for opposite party No.2.
ORDER:
The facts in brief of the complaint are that the complainant purchased a TVS Apache RTA 160 ABS Engine no. ce4ek2712179 & Chassis No. MD634CR48K2E12944 motor cycle from the opposite party No.2 vide invoice No. VS/FBD19-20/632 dated 22.06.2020, who was the authorized dealer of the TVS Apache motor cycle. The opposite party No.2 got duly covered the above said vehicle from the General Insurance through opposite party No.2 prior to delivery of the vehicle vide Insurance policy No. TVS/SS762157 and the same was valid from 19.06.2019 to 18.06.2020. beside this the opposite party No.2 allotted the temporary certificate of registration No. HR-29 TMP/2019/11850. On 19.06.2019 the complainant had taken the delivery of the above said vehicle from the opposite party NO2. Thereafter the complainant had taken the delivery of the above said vehicle from opposite party No.2 . Thereafter the complainant had applied for permanent registration certification with the concern registration authority with the valid period of temporary certificate through opposite party No.2. Accordingly the complainant got the permanent RC No. HR 29 AU 3667 on 18.07.2019 from the office of opposite party No.2. On 07.07.2019 the complainant went to attend their duty at M/s. Polymedicure Limited Plot NO.34, sEctor-68, IMT Ballabgarh, Faridabad and parked his above mentioned vehicle in the free parking of the company, which was provide by the employer to their employees during the duty hours. The complainant after completing his duty at about 5PM, when the complainant went to pick up his motor cycle from the parking, then he got surprised that his above mentioned vehicle was not available there. Thereafter the complainant searched his vehicle in the parking area and enquired from the surrounding area persons but the complainant could not found the same. When the complainant could not find out his vehicle, thereafter the complainant approached to the PS Sector-58 on the same day. Accordingly the concern police lodge an FIR No. 300 dated 07.07.2019 u/s 379 of IPC. Thereafter concern police also made the several efforts to search out the complainant’s vehicle but could not trace out the same. Ultimately the concern police submitted his untraced report on 15.01.2020. On 15.01.2020 the concerned IO submitted the untraced report in the court of Illaqua Magistrate. Accordingly, the Illaqua Magistrate accepted the untraced report vide order dated 15.01.2020. On 11.07.2020 the complainant filed a claim before the opposite party No.1 against the theft vehicle as per the insurance policy. Accordingly, opposite party No.1 appointed the surveyor in the matter and surveyor had collected the relevant documents from the complainant and submitted the report to the opposite party No.1. On 13.2.2020 the opposite party No.1 had rejected the claim of the complainant vide their rejection order dated 13.02.2020 on the basis of vague and factious ground and contrary to the facts. It was pertinent to pointed out that the policy No. as well as date of theft were mentioned in the rejection order were different and no concern with the complainant vehicle. Despite that the opposite party No.1 had rejected the claim of the complainant by mentioning the reference of policy as mentioned at serial No.8, however, there was no clause at serial No.8 of the policy which was given to the complainant by the opposite party No.1 at that time. The complainant sent legal notice dated 16.10.2020 to the opposite party but all in vain. The aforesaid act of opposite parties amounts to deficiency of service and hence the complaint. The complainant has prayed for directions to the opposite parties to:
I) Cost of the motor cycle Rs.83,156/-.
ii) interest @ 30500/-
III) Fair charges Rs.66,800/- (16.02.2020 to 12.01.2021) @200 per day since the rejection of the claim of the complainant till the date of actual realization of the payment.
iv) pay Rs.50,000/- as compensation for causing mental agony and harassment .
v) pay Rs. 21,000 /-as litigation expenses.
2. Opposite party No.1 put in appearance through counsel and filed written statement wherein Opposite party No.1 refuted claim of the complainant and submitted that motor cycle No. HR-29AU-3667 in question was purchased by the complainant from opposite party No.2 for which delivery receipt was executed on 19.06.2019 & invoice was issued on 22.06.2019 but in this regard temporary registration number was applied vide application No. HR19070835386433 alongwith requisite fee vide challan No. HR29D19070000360 dated 08.07.2019 & then issued/allotted as HR/29/TEMP/2019/11850 w.e.f. 08.07.2019 to 07.08.2019 i.e. after the date of alleged theft i.e.07.07.2019 and permanent registration NO. was issued on 18.07.2019, thus, the said motor cycle No. HR-29AU-3667 was being plied as an unregistered intentionally & deliberately on the relevant date, at time and place at the end of the complainant in violation of Section 39 read with section 192 of the Motor Vehicle Act. It was submitted that as per the registration certificate & motor insurance policy, motor cycle No. HR=20AU-3667 was hypothecated with ICICI bank but the said financer had not been impaleded in the present proceedings at the end of the complainant. It was further submitted that as per the provisions of the law in force, the terms & conditions of the insurance policy as well as the statutory guidelines laid down by the insurance Regularly development Authority (IRDA), the claim amount, if payable, should be released to the financer. The complainant neither had any cause of action nor locus standi to file the present complaint. It was submitted that the motor cycle NO HR-29AU-3667 in question was purchased by the complainant form opposite party No.2 for which delivery receipt was executed on 19.06.2019 & invoice was issued on 22.06.2019 but in this regard temporary registration number was applied vide application No. HR-19070835386433 alongwith the requisite fee vide challan NO. HR29D19070000360 dated 08.07.2019 & then issued/allotted as HR/29/TMP/2019/11850 w.e.f. 08.07.2019 to 07.08.2019 i.e. after the day of alleged theft i.e.07.07.2019 and permanent registration No. was issued on 18.07.2019, thus, the said motor cycle No. HR-29AU-3667 was being plied as an unregistered intentionally & deliberately on the relevant date, at time and place at the end of the complainant in violation of Section 39 read with Section 192 of the Motor Vehicle Act, 1988 as well as Rule 42 of the Central Motor Vehicle Rules, 1989 & rule 43 of the Haryana Motor vehicle Rules, 1993, hence the insurance company had arrived at the decision in treating such claim as “No Claim” vide letter of intimation dated 13.02.2020 which decision could not be termed unconscionable at all. Opposite party No. 1 denied rest of the allegations leveled in the complaint and prayed for dismissal of the complaint.
3. Opposite party No.2 put in appearance through counsel and filed written statement wherein Opposite party No.2 refuted claim of the complainant and submitted that the complainant does not fall within the ambit of the provisions and more particularly the words “Consumer”. As the dispute between the claimant and insurance company regarding theft claim of the vehicle in question, but the complainant unnecessarily dragged the answering opposite party. Opposite party No. 2 denied rest of the allegations leveled in the complaint and prayed for dismissal of the complaint.
4. The parties led evidence in support of their respective versions.
5. We have heard learned counsel for the parties and have gone through the record on the file.
6. In this case the complaint was filed by the complainant against opposite parties– M/s. Bharti AXA General Insurance Co. Ltd. with the prayer to: I) Cost of the motor cycle Rs.83,156/-., ii) interest @ 30500/-, III) Fair charges Rs.66,800/- (16.02.2020 to 12.01.2021) @200 per day since the rejection of the claim of the complainant till the date of actual realization of the payment. v) pay Rs.50,000/- as compensation for causing mental agony and harassment . v) pay Rs. 21,000 /-as litigation expenses.
To establish his case the complainant has led in his evidence, Ex.CW1/A – affidavit of Dushyant Kumar Shringrishi,, Ex.C-1 – letter , Ex.C-2 – tax invoice,, Ex.C-3 - insurance policy, Exs.C4 – Temporary certificate of registration,, Ex.C-5 – RC,,Ex.C-6 – FIR,, Ex.C-7 – untrace report, Ex.C-8 – order dated 15.01.2020 passed by Judicial Magistrate Ist Class, Faridabad, Ex.C-9 – letter dated 11.07.2019, Ex.C-10 – letter dated 13.02.2020, Ex.C-11 – legal notice dated 16.10.2020, Ex.C-12 to C-14 – postal receipts, Ex, C-15 – track report.
On the other hand counsel for the opposite party No.1strongly agitated and opposed. As per the evidence of the opposite party Ex.RW1/A – affidavit of Shri Rohan Mishra, Manager (Legal), M/s. ICICI Lombard General Insurance Co. Ltd., 4th floor, Red Fport Capital Parsvnath Tower, Bhai Veer Singh Marg, Gole Market, New Deli, Ex.r-1 – Delivery receipt, Ex.R-2 – Loan account statement for LTFDB00039623573, Ex.R-3 - insurance policy, Ex.R-4 –tax invoice, Ex.R-5 – FIR, Ex.R-6 – Temporary Certificate of Registration, Ex.R-7 - motor insurance –claim form, Ex.R-8 – letter to Bharti AXA General Insurance Company Ltd., Ex.R-9 - Vehicle details showing in Registering Authority, Ex.R-10 - letter dated 17.10.2019, Ex.R-11 – Rejection letter dated 13.02.2020,
As per evidence on behalf of opposite party No.2 Ex.R2/B – affidavit of Kapil, Showroom Manager, M/s. Om Motors, Ground floor, I/B, 198, Neelam-Bata Road, NIT, Faridabad, Ex.R2/A – authorization letter.
7. As per affidavit filed by Shri Rohan Mishra (Legal), M/s. ICICI Lombard General Insurance Co. Ltd. In para No.5 stating that “It is evident/established that the Motor Cycle No. HR-29AU-3667 in question was purchased by the complainant from O.P.No.2 for which delivery receipt was executed on 19.06.2019 & invoice was issued on 22.06.2019 but in this regard temporary registration number was applied vide application NO. HR19070835386433 alongwith requisite fee vide challan No. HR29D19070000360 dated 08.07.2019 & then issued/allotted as HR/29/TMP/2019/11850 w.e.f. 08.07.2019 to 07.08.2019 i.e. after the day of alleged theft i.e. 07.07.2019 and permanent registration No. was issued on 18.07.2019, thus, the said Motor Cycle No. HR-29AU-3667 was being plied as an un registered intentionally & deliberately on the relevant date, at time and place at the end of the complainant in violation of Section 39 read with section 192 of the Motor Vehicle Act, 1988 as well as Rule 42 of the Central Motor Vehicle Rules, 1989 & Rule 43 of the Haryana Motor Vehicle Rules, 1993, hence, the insurance company have arrived at the decision in treating such claim as “No claim” vide letter of intimation dated 13.02.2020 which decision cannot be termed unconscionable at all.”
On the other hand, the counsel for the complainant argued at length and also stated at Bar that there is no fault on behalf of the complainant. Motor Cycle was purchased on 19.06.2019 vide Ex.R1 and the insurance policy was issued by the opposite party valid from 19.6.2019 to 18.6.2020 vide Ex.R-3. As per Ex. R-10 investigation report in which the date of loss is 07.07.2019 and date of start of policy is mentioned 19.06.2019 when the investigator visited to the insured. Ex.R-6 is the temporary certificate which was issued on 8th July 2019 to 7th August 2019.. As per FIR vide Ex.C6, the date of occurrence is 07.07.2019 and Ex.C4 & C5 are the temporary registration and the regular registration which was issued on 18.07.2019. Ex.C3 is the insurance policy which was issued by the insurance company which shows the certificate issued on 19.06.2019 and period of own damage start on 1906.2019 to 18.06.2020 at 12.00p.m. for the vehicle bearing registration on the basis of engine no. CE4EK2712179 & Chassis No. MD634CR48K2E12944 Ex.C3 in the name of the complainant. The claim was repudiated on the ground that temporary certificate was issued on 8th July 2019 but as per certificate vide Ex.C3, the insurance was issued on 19.06.2019 and the claim of the complainant was repudiated on this ground that at the time of occurrence the complainant had no registration certificate or any temporary No. of the vehicle.
8. After going through the evidence led by both the parties, the Commission is of the opinion that the vehicle in question was insured on dated 19.6.2019 to 18.06.2020. Undoubtedly, as per the Motor Vehicle Act Section 39 read with section 192 of the Motor Vehicle Act, 1988 as well as Rule 42 of the Central Motor Vehicle Rules, 1989 & Rule 43 of the Haryana Motor Vehicle Rules, 1993. Repudiation was done on Section 39 read with section 192 of the Motor Vehicle Act, 1988 as well as Rule 42 of the Central Motor Vehicle Rules, 1989 & Rule 43 of the Haryana Motor Vehicle Rules, 1993. As per the above Act, the complainant has 30 days time to issue the registration certificate . In this case, the temporary certificate was issued on dated 8th July 2019 to 7th August 2019 i.e within 30days which falls under the Act. Even in case the complainant has applied for the temporary registration within 30 days then the insurance company is liable also. In this case the temporary registration certificate is issued within 15 days, there is no question of repudiation on this ground because this is not a fundamental violations of term & condition of the policy. The date of sale at the time of occurrence the vehicle in question was insured by opposite party from 19.06.2019 to 18.6.2020 and the date of occurrence is 07.07.2019. The date of sale of the vehicle in question is 19.06.2019 as per Ex.R-1which comes within one month. As per claim form filled by the complainant in sl. No.2 loss details the date of loss details is 07.07.2017 that is a typical mistake which are the minor violations.
9. After going through the other documents submitted by both of the parties as well as Ex.R-10 the investigator also filed the documents 1 to 20 enclosures. As per Ex. R-10 investigation report in which the date of loss is 07.07.2019 and the date of start of policy is mentioned 19.06.2019 when the investigator visited to the insured. There is no ground to repudiate this and we allow this complaint in on non standard basis.
10. For the adjudication of the present complaint and the issue therein, we place reliance on the Supreme Court Authority Amalendu Sahoo Vs. Oriental Insurance Company in Civil Appeal NO. 2703/2010 decided on 25.3.2010.
In Amalendu Sahoo’s case, there was violations of the Terms & conditions of the policy and the insurance benefits were denied by the insurance company. In the above mentioned case, further reliance was placed by the Supreme Court on:
a). New India Assurance Co. Ltd. Vs. Narayan Prasad Appa Prasad Pathak, and
b). National Insurance Company Vs. Nitin Khandelwal
Wherein it was observed by the Apex Court that the claim could have been settled on non standard basis in the event of minor breach of condition upto 25%. Once the Insurance Company has insured the vehicle for the loss caused to the insured, the insurance company is liable to indemnify the owner. When there is breach of the condition of the policy, the insurance company ought to have settled the claim on non standard basis.
11. Following the aforesaid guidelines, this Commission is of the opinion that the insurance company cannot repudiate the claim in toto. The complaint is allowed for claim to be settled on non standard basis.
IDV value of vehicle : Rs.83,156.00
Less Excess Clause : Rs. 1,000.00
: Rs.82,156.00
Deduction 25% on non standard basis on total : - Rs. 20,539.00
Total : Rs. 61,617.00
12. The opposite party No.1 is directed to pay Rs. 61,617/- alongwith interest @ 6% p.a to the complainant from the date of filing of complaint till its realization,. The opposite party is also directed to pay Rs.3300/- as compensation on account of mental tension, agony and harassment and Rs.2200/- as litigation expenses to the complainant. This payment will be subject to the condition that the complainant will furnish the subrogation letter, cancellation of RC, affidavit, Form 29,30 and Form 35. Compliance of this order be made within 30 days from the date of receipt of copy of order. File be consigned to the record room. Copy of this order be sent to the parties concerned free of costs.
Announced on: 29.05.2024 (Amit Arora)
President
District Consumer Disputes
Redressal Commission, Faridabad.
(Indira Bhadana)
Member
District Consumer Disputes
Redressal Commission, Faridabad.
