District Consumer Disputes Redressal Commission ,Faridabad.
Consumer Complaint No.011/2020.
Date of Institution: 06.01.2020.
Date of Order: 28.2.2022
Shabuddin S/o Deen Mohd. R/o Village Silakhri, Post Office Dhauj, District Faridabad.
…….Complainant……..
Versus
1. M/s. IFFCO Tokio General Insurance Co. Ltd., SCO-II, Ist floor, Sector-19, Special HUDA Market, Near Badkhal Chowk, Faridabad.
2. Manager, M/s. IFFCO Tokio General Insurance Co. Ltd., SCO-11, Ist floor, Sector-19, Special HUDA Market, Near Badkhal Chowk, Faridabad.
3. M/s. IFFCO Tokio General Insurance Co. Ltd., Registered Office: IFFCO Sadan, C-1, District Centre, Saket, New Delhi – 110 017.
…Opposite parties……
Complaint under section-12 of Consumer Protection Act, 1986
Now amended Section 34 of Consumer protection Act 2019.
BEFORE: Amit Arora……………..President
Sujata Pruthi ……………Member.
Mukesh Sharma…………Member.
PRESENT: Sh. Jatinder Singh , counsel for the complainant.
Sh. P.L.Garg , counsel for opposite parties Nos.1 to 3.
ORDER:
The facts in brief of the complaint are that the complainant was the registered owner of the truck bearing registration NO. HR-38T-0635 having its Engine No. 31J63343570 & Chassis No. MAT479118D3J17876. The Tata LPK 2523 HYWA Dumper truck mentioned above was got comprehensively insured for an amount of Rs.18,31,500/- from the opposite parties vide insurance policy No.1-AQGQFED P400 68195400 covering the insurance risk from 21.11.2016 to 20.11.2017. The complainant used to earn his livelihood by running the above mentioned insured HTWA Tata LPK 2523 Dumper truck bearing registration NO. HR-38T-0635, engaged for transportation of rori, Bajri, earth and crusher stone. The complainant purchased the HYWA Tata Dumper from M/s. Tata Motors ltd., Gazipur, Delhi vide vehicles Sales –Cum-Delivery Challan A/986512608 dated 21.11.2013 and was got financed from Axis Bank Ltd., Unfortunately on the intervening night of 29.01.2017 and 30.01.2017, the insured HYWA Tata Dumper Truck No. HR-38T-0635 was stolen away by some unknown person when the same way lying parked on Ring road, Gupta Market, Near Bus Stand Lajpat Nagar, New Delhi. A phone call was made to police on phone No. 100 and in response thereto, the police rider came at the spot and accordingly the driver Samim, reported the theft incident. Accordingly the police authorities registered DD No. 6A dated 30.01.2017 at 2.20 A.M. Thereafter the police authorities searched the stolen HYWA truck but failed to locate the stolen HYWA truck and as such the police authorities registered the FIR No. 003348 dated 03.02.2017 in e-police station, Crime Branch Delhi. Thereafter the complainant filed the theft claim with the opposite party insurer whereby the opposite parties registered the theft claim of the complainant as Claim No. 369310 and appointed the Investigator, who visited the complainant and enquired about the manner of theft. The driver of the complainant gave the true version of the incident. After the theft of HYWA truck, there was pressure upon the complainant for making the payment of financed installments to Axis Bank Ltd., as such the complainant settled the loan account with the Axis Bank Ltd., for which M/s. Axis Bank Ltd., issued No Objection certificate to the complainant on 03.11.2017. The concerned police authorities of crime Branch Delhi failed to locate the insured vehicle which was gone in theft on the intervening night of 29/30.01.2017 and as such the Un-traced Report was submitted by Crime Branch Delhi with the court of Hon’ble Twinkle Wadhwa, ACMM-01, South East District, Saket Courts, Delhi and thereafter the Un-traced Report was accepted by the court and the order dated 01.07.2017 in case FIR No. 003348/2017 under Section 379 IPC Police Station, e-police station-MV Act, District Crime Branch Delhi. The opposite parties sent a letter dated 28.07.2017 to the complainant whereby the complainant was requested to supply the documents mentioned in their letter dated 28.07.2017. It was further being brought on record that the investigator of M/s. Bhola & Associates asked the complainant to handover certain documents and also asked the complainant to handover certain blank signed documents after obtaining the signatures of the complainant upon blank papers on the pretext of disbursing the claim amount of the complainant swiftly. It was further submitted that there was an apprehension that the opposite parties had misused the blank signed papers of the complainant in order to frustrate the genuine claim of the complainant. Thereafter the complainant chased the opposite parties for making the payment of the insured amount towards the theft claim, but all the times, the opposite parties put of the matter with one excuse or the other. The complainant mentioned the opposite parties that either the theft claim of the complainant be released, failing which the complainant would approach the court of law. Upon hearing the above words, the opposite parties again issued a letter dated nil r the opposite parties again raised the demand of some documents mentioning therein that in case the opposite parties would not respond by the complainant within 7/15 days, the claim of the complainant would be recommend for “NO Claim”. Accordingly upon receipt of the above mentioned letter, the complainant again supplied all the available documents to the opposite parties by making a personal visit on 20.04.2018 whereby the opposite parties received the documents under their seal and signatures. Under the law and the rules, Regulations & Guidelines framed by the Insurance Regulatory Development Authority (IRDA), the insurance claims were required to be settled within a period of three months. The opposite parties failed to settle the settle the theft claim of the complainant within three months of the lodging of the theft claim. It was worth mentioning that the Investigator Shri Vikas Kumar visited the complainant and mentioned that his theft claim would be released shortly incase the complainant gives him in writing that the insured vehicle used to get start through Start Switch and not by the ignition keys. Since the complainant was not highly qualified person and as such could not suspect the investigator and believing him to be true wrote down the same as was being wanted by the investigator. The complainant was surprised to receive a letter dated 08.06.2018 sent by the opposite parties whereby the opposite party repudiated the theft claim of the complainant mentioning that there was a violation of condition No.4 of the insurance policy and thus treated the theft claim of the complainant as “NO claim”. 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) make the payment of Rs.18,31,500/- to the complainant as Insured Value alongwith interest @ 12% p.a. from the dte of theft of the insured HYWA Tata Dumper truck till its actual payment.
b) pay Rs.1,00,000/- 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 the Hon’ble Forum had no jurisdiction to entertain and try the present complaint as the opposite party company had right repudiated the claim of the complainant after due application of mind, going through the records, in good faith and after complying with the terms & conditions of policy bearing No. 68195400 w.e.f. 2.11.2016 to 20.11.2017 insuring the Tata Dumper bearing N. HR-38T/0635. The claim of the complainant was not admissible and decision to repudiate the liability had been conveyed by the opposite party company to the complainant vide letter dated 8.6.2018 which reads as under:
With reference to the above mentioned claim lodged with them for theft of their vehicle, wherein they had deputed M/s. Vikas Kumar & Associates for investigation and verification of the facts. The report of the investigator had been received.
Based on the investigation report and as per their written statement they observed that the vehicle was fitted with start switch start the engine and lockset was not replaced after it got damaged. This had aided the miscreants in their act of stealing the vehicle. This was an act of gross negligence and a failure to take reasonable care to prevent and protect the vehicle form loss or damage.” Hence, there was a violation of condition No.5 of the policy which provides as under(inadvertently in no claim letter it is written condition NO.4).
The insured shall take all reasonable steps to safeguard the vehicle form loss or damage and to maintain it in efficient condition and the co. shall have at all times free and full access to examine the vehicle insured or any part thereof or any driver or employee of the insured. In the event of any accident or breakdown, the vehicle insured shall not be left unattended without proper precautions being taken to prevent further damage or loss and if the vehicle insured be driven before the necessary repairs are effected any extension of the damage or any further damage to the vehicle shall be entirely at the insured’s own risk..”
In view of the foregoing, they regret to inform him that the subject claim was not admissible under the policy and they were filing the papers as “No Claims.” As per routine practice and legal process of the insurance Co.s. an IRDA approved independent surveyor & loss assessor M/s. Vikas Kumar & Associates was appointed who in his conclusion submitted that:
During the course of investigations, the insured had categorically confirmed in his statement that during the usage period his vehicle got engaged in transportation of building material. Due to heavy running in dust and sand the lockset of his vehicle got damaged and he got a start switch fitted in the vehicle for starting the engine and did not get the old lockset replaced. He had further confirmed that there was no provision for locking the door of the cabin and on the date of incident the driver left the vehicle unattended knowing fully about the vulnerable condition.
Moreover as per own admission of insured/complainant and its driver and investigation it was revealed that vehicle was parked in the night at about 2 p.m. at unsafe place on the road i.e. Deserted place when there was no movement of public on the road and shops were closed and was parked without any safety or attendant and further the complainant had admitted that original keys were not used as Jugad/arrangement was made in the vehicle from local mistri for starting the vehicle by putting automatic starting switch in the vehicle and on taking alleged plea did not provide original keys saying that they were not for his use as such he did not kept them and produce duplicate keys and further stated that vehicle was not in a position to lock from outside and all above clearly shows gross negligence of the company/insured who did not take care or any precaution to prevent loss of vehicle in question and left the vehicle at the mercy of god and in all it was clear that complainant himself instrument and responsible for stated loss and he himself violated the terms and conditions of the policy. From the above facts it was a case of gross negligence on the part of insured and his paid driver Samim since the insured did not get the damage lock set replaced and handed over the vehicle Vulnerable condition to driver Samim who left the vehicle unattended on the date of accident knowingly fully about its vulnerable condition and went away to search tea and refreshment call. This all was also gross negligence on the part of insured and was a failure to take reasonable care to protect the vehicle from loss or damage. The above facts were admitted fact duly in the knowledge of complainant who willfully violated the terms and conditions of the policy.
In the claim form submitted by the complainant as well as in the
WS given by complainant and driver he admitted all the above facts mentioned in the foregoing paras of POs of this reply.The complainant had failed to give any reason or to clarify that how the repudiation letter dated 8.6.2018 was not legal. 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 – IFFCO Tokio General Insurance co. Ltd. with the prayer to :a) make the payment of Rs.18,31,500/- to the complainant as Insured Value alongwith interest @ 12% p.a. from the date of theft of the insured HYWA Tata Dumper truck till its actual payment. b) pay Rs.1,00,000/- 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 Shabuddin, Ex.C1 – RC, Ex.C-2 – Insurance policy, Ex.C-3 – Invoice-Cum-Delivery Challan, Ex.C4 -DD No.6A dated 30.01.2017 reported to the IO Sub Inspector Shri Deepak Kumar, Ex.C-5 – FIR, Ex.C-6 (colly) - No Objection Certificate, Ex.C-7 – Order dated 01.07.2017, Ex.C-8 - letter dated 28.07.2017 regarding supply of documents, Ex.C-9 – documents received under their seal and signatures, Ex.C-10 – No Claim letter dated 8.6.2018.
On the other hand counsel for the opposite parties strongly agitated and opposed. As per the evidence of the opposite parties, Ex.R-1 – Policy with terms & conditions, Ex. R-2 – No Claim letter dated 8.6.2018, Ex.R-3 - Investigation report of Vikas Kumar Associates dated April 30,2018, Ex.R-4 (colly) – letter written by Shabuddin to M/s. IFFCO Tokio alongwith photograph, Ex.R-5 – claim Form.
6. In this case, the complainant is asking for the IDV value of the HYWA Tata LPK 2523 i.e. Rs. 18,31,500/- with the case of theft. In this regard the evidence led by the complainant i.e. the Most Important Document is Ex.C4. This is the DD No. 6A which was reported at 2.20A.M in the morning to I.O. SI Deepak Kumar which shows the bonafidy of the complainant or the driver of the complainant and the other documents the HYWA Tata LPK 2523 was financed by the financier which was paid later on and got No Objection Certificate, Form 35A from the financier. It also shows the bonafidy of the complainant. The complainant have paid the whole amount of loan and got Form 35A from the financier. On the other hand, the counsel for the opposite parties led in their evidence vide Ex.R-3 i.e the surveryor report dated April 30, 2018 of the insurance company which was deputed by the insurance company. As per surveyor report, no doubt the occurrence was held on the same day and the same time as narrated by the complainant. Ex.R-4 is the statement of Shabuddin. Ex.R-5 is the Motor Claim Form which is duly filled by the complainant. After going through the statement of Shabuddin- complainant vide Ex.R-4, the counsel for opposite parties argued at length and stated that they had admitted this fact that the vehicle was not locked due to damage of the lock and he left the vehicle in question on the road side in place of occurrence. As per the statement given by the Shabuddin vide Ex.R4 that Lajpat Nagar, Delhi is very congested place. There are lot of people and the busy place even in the night time and the matter was reported within hour to the police. Counsel for the opposite parties also argued that the Motor Claim Form was duly filled by the complainant. He is not a illiterate person and he has signed the Motor Claim form in English. He cannot say that the surveyor took the signatures on the plain paper. Counsel for the opposite parties have given lot of citations which are as under:
i) Ved Prakash Versus Rajneesh Kumar and another in C.R No. 96 of 2019, Decided on 09.12.2019 passed by the Hon’ble Himachal Pradesh High Court.
ii) Bajaj Allianz General Insurance Co. Ltd., Versus Astha Cement Pvt. Ltd in Revision petition No. 2765 of 2015 Decided on 18.08.2020 passed by Hon’ble National Consumer Disputes Redressal commission, New Delhi.
iii) Tata Aig General Insurance co. ..Vs. Mahendra Singh & Anr. On 21 May, 2019 Passed by Hon’ble National Consumer Disputes Redressal Commission, New Delhi .
iv) M/s. Sunil General Agencies Vs. New India Assurance Co. Ltd., & Anr. In First Appeal NO. 44 of 2012 decided on 07.07.2020.
v) Monga Traders Through its Prop Sh. Amarjit Singh Monga Vs. United India Insurance Co. Ltd. and Anr. In Revision petition No.2475 of 2014 decided on 17.07.2019.
In the above said citations, the Hon’ble Supreme Court has given their opinion on different cases. The counsel for opposite parties have also filed the affidavit of Shri Vikas Kumar, Proprietor M/s. Vikas Kumar & Associates Insurance Investigators and Consultants vide Ex.RW2/A.
7. After going through the above citations given by the opposite parties and the evidence led by the complainant, the Commission is of the opinion that there are violations of terms & conditions of the insurance policy but these violations are not the fundamental violations. It seems minor violation. Only on these violations, the Commission can not dismiss this complaint. The Commission is of the opinion that the complaint is allowed on non standard basis after deducting 25% of the claimed 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 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.
Claimed amount : Rs.18,31,500/-
Less Excess Clause : Rs. 1,000/-
: Rs. 18,30,500/-
25% deduction on non standard basis on total : - Rs. 4,57,625/-
Total : Rs. 13,72,875/-
10. The opposite parties, jointly & severally, are directed to pay 13,72,875/- 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 . 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: 28.02.2022 (Amit Arora)
President
District Consumer Disputes
Redressal Commission, Faridabad.
( Sujata Pruthi)
Member
District Consumer Disputes
Redressal Commission, Faridabad.
(Mukesh Sharma)
Member
District Consumer Disputes
Redressal Commission, Faridabad.
