District Consumer Disputes Redressal Commission ,Faridabad.
Consumer Complaint No.64/2021.
Date of Institution: 04.02.2021.
Date of Order: 08.08.2022.
Pawan Kumar son of Shri Singhasan Mehto, resident of house No. 1581, Gali No. 47, 22feet Road, Sanjay Colony, Sector-23, Faridabad.
…….Complainant……..
Versus
1. M/s. ICICI Lombard General Insurance Co. Ltd., Neelam Bata Road, Near Subham Tower, NIT, Faridabad through its authorized person.
2. ICICI Lombard General Insurance Company Limited registered office 414, Veer Savarkar Marg, near Siddhi Vinayak Temple Prabhadevi Mumbai 400 025 through its authorized person.
3. ICICI Lombard General Insurance Company Limited Mailing address: Building No. 16,601/602, 6th floor, New Link road, Malad (West) Mumbai – 400 064.
…Opposite parties……
Complaint under section-12 of Consumer Protection Act, 1986
Now amended Section 34 of Consumer protection Act 2019.
BEFORE: Amit Arora……………..President
Mukesh Sharma…………Member.
PRESENT: Sh. Rajesh Ahlawat, counsel for the Complainant.
Sh. Rakesh Dabaas, counsel for opposite party.
ORDER:
The facts in brief of the complaint are that the complainant was the registered owner of the vehicle motor cycle No. HR-29-AM-7488 bearing engine No. HA10ERGHE57655 which was insured with the opposite party bearing policy No. 3005/174323118/00/000 w.e.f. 28.06.2019 to 27.6.2020 . During the insurance period the said vehicle the complainant had been stolen on 5.12.2019 and the complainant searched out the said vehicle but could not succeed to search out the same then the complainant intimated to the police then an FIR NO. 843 dated 05.12.2019 u/s 379 IPC P.S.Sector-7, Faridabad was registered in P.S.Sector-7, Faridabad and later on the police had investigate the matter and after long period the police given the untraced report before the court of Shri Vivek Chaudhary, JMIC, Faridabad. All the documents were supplied by the complainant to the opposite parties within the stipulated time regarding stolen of the vehicle but the opposite parties had not reimburse the claim of the complainant without any reason, till today, whereas the complainant repeatedly visited to the opposite parties, but the officials of the opposite parties were avoiding legitimate request of the complainant on one pretext to the another. The complainant sent the legal notice to opposite parties on 18.10.2020 through registered post 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:
a) pay the insured amount of relating to the theft of the vehicle of the complainant during the insurance period to the complainant.
b) pay Rs. 50,000/- as compensation for causing mental agony and harassment .
c) pay Rs. 11,000 /-as litigation expenses.
2. Opposite parties Nos.1 to 3 put in appearance through counsel and filed written statement wherein Opposite parties Nos.1 to 3 refuted claim of the complainant and submitted that at the very threshold of the allegations contained in the complaint, the intimation of occurrence was firstly received by the insurance company on 31.12.2019 & FIR was lodged on 05.12.2019, wherein, alleging theft of Motor Cycle No. HR-29AM-7488 on 03.12.2019, which amply prove on record that the complainant had failed to intimae the insurance company immediately on the alleged occurrence of theft and not only this, the complainant-insured was using the insured vehicle without taking any precautionary measure to safe guard and submitted two different keys, so proved form forensic expert report, pertaining to insured vehicle thus there was strong possibility that the insured had left the key in the ignition of insured motor cycle at the relevant time of alleged theft, hence, a great degree of negligence had been established at the end of the complainant-insured of the said motor cycle, resultantly, violation of condition Nos.1,4 & 8 of the insurance policy. As such, the issue under the present complaint does not under the peri-pheri of the provisions and more particularly the word “deficiency” as defined under section 2(11) & word “service” as defined section 2(42) and the word “unfair trade practice” as defined section 2(47) of the Consumer Protection Act, 2019. The complainant neither had any cause of action nor locus standi in lodging of the present complaint before this Forum, reason being, there had been inordinate delay of 28 days in intimating the insurance & 2 days intimating the police with regards to the alleged theft of motor cycle No. HR-29AM-7488, which intimation was firstly received by the insurance company on 31.122019, wherein, alleging theft of motor cycle on 05.12.2019 and not only this, the complainant –insured was using the insured vehicle without taking any precautionary measure to safe guard and submitted two different keys, so proved form forensic expert report, pertaining to insured vehicle thus there was strong possibility that the insured had left the key in the ignition of injured motor cycle at the relevant time of alleged theft, hence a great degree of negligence had been established at the end of the complainant-insured of the said motor cycle, resultantly, violation of condition Nos.1,4 & 8 of the insurance policy. Since, such intimation constitute violation of terms & conditions of the insurance policy, hence, the insurance company had arrived at the decision in treating such claim as “No Claim vide letter of intimation which decision cannot be termed unconscionable at all. Opposite parties Nos.1 to 3 denied rest of the allegations leveled in the complaint and prayed for dismissal of the complaint.
3. The parties led evidence in support of their respective versions.
4. We have heard learned counsel for the parties and have gone through the record on the file.
5. In this case the complaint was filed by the complainant against opposite parties – M/s. ICICI Lombard General Insurance Co. Ltd. with the prayer to : a) pay the insured amount of relating to the theft of the vehicle of the complainant during the insurance period to the complainant. b) pay Rs. 50,000/- as compensation for causing mental agony and harassment . c) pay Rs. 11,000 /-as litigation expenses.
To establish his case the complainant has led in his evidence, Ex.CW1/A – affidavit of Shri Pawan Kumar, Ex.C-1 – insurance policy, Ex.C-2 – RC, Ex.C-3 – FIR.
On the other hand counsel for the opposite party strongly agitated and
opposed. As per the evidence of the opposite parties Ex.RW1/ A – affidavit of Shri Deepak Bansal, Manager (Legal), M/s. ICICI Lombard General Insurance Co. Ltd. 4th floor, Red Fort Capital Parsvnath Tower, Bhai Veer Singh Marg, Gole Market, New Delhi – 110 001, Ex.R-1 – RC, Ex.R-2 – insurance policy, Ex.R-3 – FIR, Ex.R-4 – Intimation sheet, Ex/R-5 – Motor Theft Claim Form,, Ex.R-6 – statement of Pawan Kumar, Exx.R-7 – photographs, Exs.R-8 – Forensic Examination report of automobile keys, Ex.R-9 – repudiation letter dated 02.05.2020.
6. It is evident from Ex.C-1,the complainant was the registered owner of the vehicle motor cycle No. HR-29-AM-7488 bearing engine No. HA10ERGHE57655 which was insured with the opposite party bearing policy No. 3005/174323118/00/000 w.e.f. 28.06.2019 to 27.6.2020 vide Ex.C-2. The said vehicle the complainant had been stolen on 5.12.2019 and the complainant searched out the said vehicle but could not succeed to search out the same then the complainant intimated to the police then an FIR NO. 843 dated 05.12.2019 u/s 379 IPC P.S.Sector-7, Faridabad was registered in P.S.Sector-7, Faridabad vide Ex.C-3 and later on the police had investigate the matter and after long period the police given the untraced report before the court of Shri Vivek Chaudhary, JMIC, Faridabad. Opposite parties had repudiated the claim of the complainant vide Ex.R-9 on the ground that ”the statements given by you regarding the availability of your keys differs in contents & sequence which is contradictory in nature. Please refer to declaration as contained in the claim form signed by you wherein it is declared “If I have give/made any false or fraudulent statement/information, or suppressed or concealed or in any manner failed to disclose mal information, the policy shall be void and that I shall not be entitled to all/any rights to recover there under in respect of any or all claims, past, present or future.” Also it states “material information, which is relevant to the processing of the claim, which in any matter has a bearing on the claim, has been withheld or not disclosed”. In the circumstance, you are therefore informed that the above captioned claim as made by you hereby stands as “Rejected”.
7. After going through the evidence led by the parties, the Commission is of the opinion that the complaint is allowed on non standard basis.
8. 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 any 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.
9. 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 motor cycle : Rs. 29,385.00
Less Excess Clause : Rs. 1,000.00
: Rs. 28,385.00
25% deduction on non standard basis on total : Rs. 7,096.25
Total : Rs. 21,288.75
10. The opposite parties are directed to pay Rs.21,288.75 alongwith interest @ 6% p.a from the date of filing of complaint till its realization. Opposite parties are also directed to pay Rs.2200/- as compensation for causing mental agony & harassment alongwith Rs.2200/- as litigation expenses. 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 35A. 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: 08.08.2022 (Amit Arora)
President
District Consumer Disputes
Redressal Commission, Faridabad.
(Mukesh Sharma)
Member
District Consumer Disputes
Redressal Commission, Faridabad.
