District Consumer Disputes Redressal Commission ,Faridabad.
Consumer Complaint No.538/2021.
Date of Institution: 13.10.2021.
Date of Order: 09.01.2023.
Suresh Kumar son of Shri Jagdish r/o House NO. 84, Shiv Harijan colony, Near Sector-3, Ballabgarh, District Faridabad.
…….Complainant……..
Versus
M/s. National Insurance Company Ltd., divisional Office: 5-C/1 & 2, BP, Railway road, NIT Faridabad – 121001 through its Divisional Manager/Authorized Signatory.
…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. Kunal Sharma, counsel for the complainant.
Sh. Anuj Gupta, counsel for opposite party.
ORDER:
The facts in brief of the complaint are that the complainant was the registered owner of vehicle Motorcycle (Hero Splendor + Self), bearing its registration No. HR-29-AQ-6887, Engine No. HR10AGHHHF2673, Chassis No. MBLHAR080HHH46443, Model 2017. The above said vehicle got insured with the opposite party vide insurance policy certificate No. 39010231176203055893 which was valid and effective from 18.10.2017 to 17.10.2018 (IDV Rs.47,639/-), at the time of getting insurance, the opposite party assured the complainant, the said vehicle was covering with risk of theft, damage, accident etc. On 31.08.2018 at about 8.00 p.m. the complainant went to the house of his friend namely Sh. Rohit S/o Meharchand, Village Neemka, District Faridabad and parked the said vehicle in front of said housen with proper lock and when in the morning about 5:00 a.m., the complainant came out from the said house and found that the said motorcycle was not at the spot where he parked the said motorcycle and the complainant tried his level best to search the said vehicle, but same was not found and hence, the complainant informed the local police and reported the matter vide FIR No. 436 dated 02.09.2018 u/s 379 IPC, P.S.Sadar Ballabgarh, District Faridabad. The complainant immediately informed the opposite party about the theft of the said vehicle and the complainant also submitted the documents as per demand and required by the opposite party and lodged the claim. At the time of receiving the said documents, the representative of the opposite party assured the complainant, if the police could not search the said vehicle, the opposite party be disbursed the claimed amount to the complainant as per the terms and conditions of the policy and the complainant was advised by the opposite party to await police report u/s 173 Cr.P.C. i.e final report to be submitted by the police and the police of submitted the untraced report before the Ld. Area Magistrate, Faridabad. As per requirement and demands of the opposite party, the complainant submitted all the documents and completed all the formalities and requirements but the opposite party did not disburse the claimed amount till date. The complainant sent legal notice dated 17.09.2021 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 party to:
a) pay the insured amount of Rs.47,639/- alongwith interest @ 18% p.a. from the date till its realization.
b) pay Rs. 1,00,000/- as compensation for causing mental agony and harassment .
c) pay Rs. 21,000 /-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 the present complaint was not maintainable in its present form and the same was bad for non-joinder of necessary party since as per registration certificate the motorcycle in question was HPA with Shri Shri Ram City Union Finance ltd., being so they had first and preferential right to get claim if any payable to the complainant , but the complainant had not impleaded them as party in present complaint as he wants entire claim amount from answering apposite party without paying the due amount of pending loan amount as well as without getting NO.C. from aforesaid financier which was contrary to the settle law. The complainant was stopped by his own acts, conduct, acquiesce, commission and waiver from filing the present complaint. The complainant had suppressed and concealed true and material facts from this Hon’ble Commission. It was submitted that the complainant instead of supplying the above said required documents preferred to file the present complaint with a sole motive to bypass the mandatory requirement asked by the company and to grab the amount more than its insured value had filed the present complaint by abusing process of law and to causing harassment to the answering opposite party. In the present case, as per FIR & claim form the motor cycle of the complainant was allegedly lost due to theft on 31.08.2018, but FIR regarding the alleged theft was lodged on 02.09.2018 i.e. after 2 days, intimation as given to the insurance company after huge delay of 45 days i.e. on 17.10.2018, whereas per conditions No.1 of the insurance policy “Notice shall be given in writing to the Co. immediately upon the occurrence” and “in case of theft the insured shall give immediate notice to the police.” After receiving claim form from the complainant the same was immediately processed and for this purpose answering opposite party appointed M/s. ASAP investigations, investigator to investigate claim and they issued three letters to complainant requiring him to submit certain document detailed in preliminary objection NO.2, complainant did not revert and did not bother to submit aforesaid required document, thereafter answering opposite party issued 3 letters required complainant to submit above documents to enable answering opposite party to finalize claim, but the complainant did not submit any document and filed the present complaint. 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 – National Insurance Company Ltd. with the prayer to: a) pay the insured amount of Rs.47,639/- alongwith interest @ 18% p.a. from the date till its realization. b) pay Rs. 1,00,000/- as compensation for causing mental agony and harassment . c) pay Rs. 21,000 /-as litigation expenses.
To establish his case the complainant has led in his evidence, EX.CW1/A – affidavit of Suresh Kumar, Annexure C1 – RTO Vehicle Information, Annexure C2 – insurance policy, Annexure C-3 – FIR, Ex.C4 – Antim report, Annexure C 5 & 6– legal notice & postal receipt.
On the other hand counsel for the opposite party strongly agitated and
opposed. As per the evidence of the opposite party Ex.RW1/A – affidavit of Mrs. Kavita Yadav, Duly Constituted Attorney of National Insurance Co. Ltd. D.O.-II, NIT, Faridabad, Ex.R1 – Checklist for theft, Ex.R2 – letter to insurance company, Ex.R3 to 5 – reminders regarding required documents, Ex.R6 to R8 – letters regarding non submissions of documents, Ex.R9 – No claim letter dated 08.08.2019, Ex.R10 – insurance policy,
6. After going through the evidence led by the parties, the Commission is of the opinion that the complaint is allowed on non standard basis.
7. 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 10%. 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.
8. 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.47,639.00
Less Excess Clause : Rs. 1,000.00
: Rs.46,639.00
Deduction 10% on non standard basis on total : - Rs. 4,663.90
Total : Rs.41,975.10
9. The opposite party is directed to pay Rs. 41,975.10 alongwith interest @ 6% p.a to the complainant from the date of filing of complaint till its realization., subject to submission of documents. The opposite party is also directed to pay Rs.2200/- 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: 09.01.2023 (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.
