District Consumer Disputes Redressal Commission ,Faridabad.
Consumer Complaint No. 128/2020.
Date of Institution:05.03.2020.
Date of Order: 06.03.2023.
Jumme Khan S/o Khal Singh R/o village Kot, Tehsil Hathin, Distt. Palwal, Haryana.
…….Complainant……..
Versus
IFFCO Tokio General Insurance Co. Ltd., regd. Office: “IFFCO Sadan” C-1, District Centre, Saket, New Delhi – 110 017, having its Branch Office, at SCO – 11, Ist floor, Sector-19, Special HUDA Mkt near Badkhal Chowk, Sector-19, Faridabad, Haryana – 121002 through its Branch Manager.
…Opposite party.
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.
Indira Bhadana………….Member.
PRESENT: Sh. Amjad Khan, counsel for the complainant.
Sh. N.K.Garg, counsel for opposite party.
ORDER:
The facts in brief of the complaint are that the applicant was the registered owner of the vehicle bearing No. HR74-6258 Model 2010 Engine No. 49188 Chassis No. 36919 and that vehicle was insured from 25.11.2015 to 24.11.2016 with the opposite party vide cover note/policy No. 95204679. On 22.11.2016 the driver of the vehicle namely Javed s/o Khurshid r/o village F.P. Namak, Tehsil and Distt. Nuh, loaded buffalos in the above said transport vehicle and on dated 23.11.2016 reached at Muradabad (U.P) at about 10:00a.m. After unloading the animals, said driver Javed went to Bareli (U.P) at about 7.00p.m. for reloading the said vehicle after asking the transporter, but unluckily some problem had occurred to the same vehicle in the way and the said driver parked the vehicle in the side of the road and went to call the motor-mechanic at Sahjanpur road, but motor mechanic was not available there, when the said driver came back at the police where the said vehicle was parked by him, he found that his vehicle was not there (the place where he parked it). Driver of the vehicle searched and inquired about the said vehicle here and there but all in vain. Thereafter, he informed the police and the owner of the same vehicle i.e. complainant by telephonic message and tried their best to find the vehicle but could not found it. After this the FIR was lodged on the statement of the driver Javed bearing FIR No. 776 dated 24.11.2016 in PS – Ijjat Nagar, Distt. Bareli (U.P). The applicant/complainant had informed the office of opposite party as well as its agent within time and surveyor reached there. The applicant informed the opposite party about the said theft and applicant completed all the formalities of documents required by the opposite party but the opposite party linger on the matter on one pretext to the other. The local police tried their best level to trace out the said vehicle as well as culprits but all in vain. The local police filed untraced report before the Hon’ble court of Illaqa Magistrate. The applicant several times visited the office of opposite party and requested to
settle the claim of his above said theft vehicle but opposite party did not bother at all. The complainant sent legal notice dated 27.03.2017 to the opposite party but all in vain. The aforesaid act of opposite party amounts to deficiency of service and hence the complaint. The complainant has prayed for directions to the opposite parties to:
a) make the compensation amount of Rs.12,50,000/- for his above said theft vehicle, alongwith costs and interest @ 24% per annum from the date of steal/theft of vehicle in question mentioned in para No.1 of the application/complaint till realization of the amount to the applicant/complainant.
b) pay Rs. 3,00,000/- as compensation for causing mental agony and harassment .
c) pay Rs. 14,000 /-as litigation expenses.
2. Opposite party put in appearance through counsel and filed written statement wherein Opposite party refuted claim of the complainant and submitted that this Hon’ble Forum had no jurisdiction to entertain and try the present complaint as the claim in question to the knowledge of the complainant itself was not admissible because the same was based on concealment and manipulation of true facts and the answering opposite party after due application of mind, going through the record, The perusal of surveyor report taking into consideration terms & conditions of policy and guidelines mentioned in the policy repudiated the claim of the complainant vide its letter dated 16.03.2018 endorsed to the complainant which reveals as under:
On careful perusal of the report of surveyor and other documents on record, opposite party have notice as under:
“Please refer to your above mentioned claim lodged with us for theft of your vehicle, wherein we had deputed M/s. supreme Investigators Independent Investigator for investigation and verifiction of facts. Investigation report has been received. We have noticed as under:-
50% No Claim bonus has been availed by him which he was not entitle since there was one own damage claim was registered in previous year policy form M/s. Shri Ram General Insurance Co. Ltd. At the time of renewal the same, fact has not been disclosed and facts have been misrepresented while taking insurance policy with us”.
As per routine practice, the case was investigated by Supreme Investigators for verification of the facts & accordingly by the opposite party company as per facts submitted as under (in short):
i. at the time of insurance insured took 50% NCB (no claim bonus) and previously the vehicle was insured form M/s. Sri Ram General Insurance Co. Limited vide policy NO. 10003/31/15/388196 w.e.f. 25.11.2014 to 24.11.2015 and in this policy insured took OD claims.
ii. The insured knowingly and intentionally by misrepresentation wrongly taken 50% of NCB on this policy bearing No. 95204679 effective from
25.11.2015 to 24.11.2016 with respect of vehicle in question No. HR-74-6258. Thus it was clear that the complainant by misrepresentation intentionally procured No. Claim Bonus under the policy in question from the answering opposite party.
iii. Even in the motor claim form submitted by the complainant, the complainant was silent about this fact of claim taken by him earlier, as he did not disclose about the said OD claim & this was again a concealment of true facts and even in the present complaint he failed to justify this concealment which in legal form was a fraud upon the Hon’ble Forum and answering opposite party.
As per the information collected by the answering opposite party previously the vehicle was insured from Sri Ram General Insurance Co. Limited vide policy No. 10003/31/15/388196 w.e.f. 25.11.2014 to 24.11.2015 and on this policy the insured took OD claim amounting to Rs.44,202/- before taking policy in question bearing No. 95204679 w.e.f. 25.11.2015 to 24.11.2016 from the answering opposite party. The facts of taking of claim in the earlier policy period has not been disclosed & was concealed in order to take the benefit of 50% No claim bonus from the answering opposite party a such taking of NO Claim Bonus in the current policy was thus in the legal terms was a fraud knowingly and intentionally resulting deserves dismissal of his claim. Opposite party 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 party– Iffco Tokio Gen. Insurance co. Ltd. with the prayer to: a) make the compensation amount of Rs.12,50,000/- for his above said theft vehicle, alongwith costs and interest @ 24% per annum from the date of steal/theft of vehicle in question mentioned in para No.1 of the application/complaint till realization of the amount to the applicant/complainant. b) pay Rs. 3,00,000/- as compensation for causing mental agony and harassment . c) pay Rs. 14,000 /-as litigation expenses.
To establish his case the complainant has led in his evidence, Ex.P1 – affidavit of Jumme Khan, Ex.P2 – repudiation letter dated 16.03.2018, Ex.P3 - insurance policy for the period, Ex.P4 &P5– legal notice, Ex.P6 – Adhar card,, Ex.P7 – not readable, Ex.P-8 – PAN card, Ex.P9 - driving licence,, Ex.P-10 – FIR, Ex.P-11 Final report, Ex.P-12 – Certificate of Registration,, Ex.P-13 – Form N.P. Pu.C – Part A, Ex.P-14 – Farm-H, Ex.P-15 - Print National Permit Authorization,
On the other hand counsel for the opposite party strongly agitated and opposed. As per the evidence of the opposite party Ex.RW-1/A – affidavit of Shri Alok Gupta, general Manager Claims, M/s. IFFCO Tokio General Insurance Co. Ltd. Having its office at 2nd floor, FAI Building , Shaheed Jeet Singh Marg, Qutab Intuitional Area, New Delhi, Ex.R-1 – repudiation letter, dated 16.3.2018, Ex.R-2 – insurance policy, Ex.R-3 – motor claim form,, Ex.R-4 – statement of Jumme Khan, Ex.R-5 – Iffco Tokio Reports Portal.
6. In this case, the applicant was the registered owner of the vehicle bearing No. HR74-6258 Model 2010 Engine No. 49188 Chassis No. 36919 insured with opposite party valid from 25.11.2015 to 24.11.2016 vide cover note/policy No. 95204679. On 22.11.2016 the driver of the vehicle namely Javed s/o Khurshid r/o village F.P. Namak, Tehsil and Distt. Nuh, loaded buffalos in the above said transport vehicle and on dated 23.11.2016 reached at Muradabad (U.P) at about 10:00a.m. After unloading the animals, said driver Javed went to Bareli (U.P) at about 7.00p.m. for reloading the said vehicle after asking the transporter, but unluckily some problem had occurred to the same vehicle in the way and the said driver parked the vehicle in the side of the road and went to call the motor-mechanic at Sahjanpur road, but motor mechanic was not available there, when the said driver came back at the police where the said vehicle was parked by him, he found that his vehicle was not there (the place where he parked it). FIR was lodged on the statement of the driver Javed bearing FIR No. 776 dated 24.11.2016 in PS – Ijjat Nagar, Distt. Bareli (U.P). As per Ex.R1 opposite party repudiated the claim of the complainant on the ground that “50% No claim Bonus had been availed by you, which you were not entitled since there was one Own Damage Claim was registered in previous year policy from Shriram General Insurance co. Ltd.”
Counsel for the opposite party has placed on reliance the following authorities:
i) Tata Aig General Insurance Compan7 Ltd., Vs. Gulzari Singh in Revision petition No. 155 of 2009 from order dated 16.12.2008 in Appeal No. 389 of 2007 of State Commission, Delhi, D/d 26.2.2010 passed by Hon’ble National Consumer Disputes Redressal Commission, New Delhi.
ii) Brij Bhushan Vs. National Insurance Company Ltd. In Revision petition No. 33 of 2012 against order dated 24.82011 in First appeal No.1453 of 2006 of State Commission, Punjab, D/d. 22.8.2012 passed by the Hon’ble Consumer Disputes Redressal Commission, New Delhi.
iii) Shri Inder Pal Rana Vs. National Insurance Co. Ltd. In Revision Peition NO. 4470 of 2014, D/d 2.1.2015 passed by Hon’ble National Consumer Disputes Redressal Commission.
iv) Rashpal Singh Bahia and Others Versus Surinder Kaur and Others passed by the Hon’ble Punjab and Haryana High Court in R.S.A No. 4043 of 2005, D/d. 6.11.2007
Ratio of these authorities are not applicable to the facts of the present case.
7. After going through the evidence led by both the parties, the Commission is of the opinion that the complaint is allowed on non standard basis after deduction of 50% of the total amount.
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 50%. 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 the vehicle : Rs.12,50,000/-
Less Excess Clause : Rs. 1,000/-
: Rs.12,49,000/-
50% on non standard basis on total : Rs. 6,24,500/-
Total : Rs. 6,24,500/-
10. The opposite party is directed to pay Rs.6,24,500/- alongwith interest @ 6% p.a from the date of filing of complaint till its realization along with Rs. 2200/- as compensation for causing harassment and mental agony and also to pay Rs. 2200/- as litigation charges 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. 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: 06.03.2023 (Amit Arora)
President
District Consumer Disputes
Redressal Commission, Faridabad.
(Mukesh Sharma)
Member
District Consumer Disputes
Redressal Commission, Faridabad.
(Indira Bhadana)
Member
District Consumer Disputes
Redressal Commission, Faridabad.
