District Consumer Disputes Redressal Commission ,Faridabad.
Consumer Complaint No. .199/2021.
Date of Institution:06.04.2021.
Date of Order:14.07.2023.
Mayank Saxena aged about 24 years, Son of Shri Mahesh Chander Saxena, resident of Village and P.O. Naithua, P.S.Mujriya, Tehsil Bilsi, District Badaun (U,P) At present tenant in House No. 284, Sarai Khawaja, Faridabad (Haryana), Aadhar card No. 8570 7532 1482.
…….Complainant……..
Versus
1. M/s. Tata AIG General Insurance Company Limited, 301-308, 3rd floor, Aggarwal Prestige Mall, Plot NO. 2, Road NO. 44, Near M2K Cinema, Rani Bagh, Pitampura, New Delhi – 110 034 through its Manager/Principal Officer.
2. Tarun Singhal, Authorised Surveyor/Investigator (Global Claims) C/o M/s. Tata AIG General Insurance Company Limited, 301-308, 3rd floor, Aggrawal Prestige Mall, Plot No.2, Road No.44, Near M2K Cinema, Rani Bagh, Pitampura, New Delhi – 110 034.
…Opposite parties
BEFORE: Amit Arora……………..President
Mukesh Sharma…………Member.
Indira Bhadana………….Member.
PRESENT: Sh. Narender Sharma, counsel for the complainant.
Sh. O.P.Gaur, counsel for opposite party No.1
Opposite party No.2 exparte vide order dated 9.2.2022.
ORDER:
The facts in brief of the complaint are that the complainant was regd. Owner of Royal Enfield Classic 350 Motorcycle bearing its registration No. HR-51-BV-9687, having its engine No. U3S5C2JH239189, Model 2019, colour – Black who got insured his above said vehicle with opposite party No.1 vide insurance certificate/policy No. 0146786681 valid from 24.10.2018 to midnight of 23.10.2019 for a total sum of Rs.1,39,775/- covering the risk of theft etc. and for which the complainant paid a sum of Rs.9617/- as premium to the opposite party No.1. On 04.03.2019 at about 10:30 p.m. the complainant came to his house on his above said motorcycle. He parked his said motorcycle in front of gate of his house, with proper lock and key and he went inside his house. Then on the next day in morning hours, when the complainant came out from his house, then he found that his abovesaid motorcycle was not lying there. The complainant tried his level best to trace out his above said motorcycle, but he could not find out the same. Thereafter the complainant moved an application regarding theft of his above said motorcycle to the police of P.S. Sarai Khawaja, Faridabad and on the basis of which the case bearing FIR No. 261 dated 09.09.2019 under section 379 of IPC was registered at Police Station Sarai Khawaja, Faridabad on the statement of the complainant regarding theft of his above said motorcycle. The complainant informed the opposite party No.1 immediately at that time regarding missing of his motorcycle and submitted his claim with the opposite party. Besides this, the complainant completed each and every formality with the opposite parties and requested them to release the payment of insured amount in lieu of theft of his vehicle. The police submitted its untraced report in concerned court in the abovesaid FIR. The complainant sent legal notice dated 26.2.2021 to the opposite
parties 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 to the complainant the claimed amount of Rs.1,39,775/- alongwith interest @ 18% p.a. from the date of its due till realization of whole amount, in lieu of theft of Royal Enfield Classic 350 Motorcycle bearing its registration No. HR-51-BV-9687, having its engine No. U3S5C2JH239189, Model 2019, colour black immediately.
b) pay Rs. 50,000/- as compensation for causing mental agony and harassment .
c) pay Rs. 11,000 /-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 the subject claim repudiated by the insurance company vide its letter dated 06.02.2020, pursuant to the “show-cause-notice” dated 07.01.2020 was justified, valid, legal, enforceable and sustainable within the scope of insurance policy No. 0146786681 for the period 24.10.2018 to 23.10.2019. It was submitted that the claim had been reported with delay of 7 days to the insurance company, whereas, lodging of FIR with delay of 5 days with the police, thus, denying the insurance company of opportunity to check the veracity of the claim of the complainant. It was submitted that the insurance company received an intimation of occurrence lodged first time with the insurance company on 12.09.2019 alleging theft of motorcycle Royal Enfield bearing its registration NO. HR-51BV-9867 on the intervening night of 04-5/09/2019 outside the residence: H.No. 284, Village Sarai Khawaja, Faridabad within the jurisdiction of police station: Sarai Khawaja, Faridabad. As a result, the insurance company deputed an independent and qualified investigator to verify the veracity of the alleged occurrence. It was submitted that the investigator carried out its investigation and furnished its investigation report dated 21.12.2019 to the insurance company inter alia arriving at its findings that there was delay of 07 days in intimating the alleged occurrence to the insurance company and lodging FIR No. 261 dated 09.09.2019 with delay of 05 days. Apart from it, the investigator had gathered the documents and information from the police to the effect that there was no call on 100 number of the alleged occurrence by the insured on 05.09.2019. In furtherance of process of the subject claim, the insurance company thoroughly and carefully investigated into the subject claim and observed that the insured had violated General condition No.1 of the insurance policy by not intimating the insurance company immediately on occurrence of theft of motorcycle No. HR-51BV-9867 and had also violated condition No.8 to the effect that the insured had failed to observe and fulfillment the terms & conditions contained in the insurance company . it was submitted that the insurance company caused a show cause notice dated 07.01.2020, whereby seeking the explanation from the complainant I regards to the delay in intimating the insurance company as well as lodging FIR with the police. But the complainant had failed to forward any such explanation. As a result, the insurance company arrived at its decision in treating the subject claim as “Repudiated” vide its letter dated 06.02.2020, which decision cannot 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. Registered notice issued to opposite No.2 on 07.01.2022 not received back either served or unserved. Tracking details filed in which it had been mentioned that “Item Delivery Confirmed”. Case called several times since morning but none appeared on behalf of opposite party No.2. One month period had already been expired. Hence, opposite party No.2 was hereby proceeded against ex-parte.
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. Tata AIG General Insurance Company Ltd. & Others with the prayer to pay to the complainant the claimed amount of Rs.1,39,775/- alongwith interest @ 18% p.a. from the date of its due till realization of whole amount, in lieu of theft of Royal Enfield Classic 350 Motorcycle bearing its registration No. HR-51-BV-9687, having its engine No. U3S5C2JH239189, Model 2019, colour black immediately.
To establish his case the complainant has led in his evidence, Ex.CW1/A – affidavit of Mayank Saxena, Ex.C-1 – insurance policy, Ex.C-2 -
RC, Ex.C-3 – FIR, Ex.C-4 - letter to SHO, Sarai Khawaja, Faridabad, Ex.C-5 – untraced report,, Ex.C-6 – Antim report, Ex.C-7 - letter to RTA, Ex.C-8 – letter to complainant , Ex.C-9 – repudiation letter, Ex.C-10 – computer generated copies of mail conversation for claim, Ex.C-11 – legal notice, Ex.C-12 – postal receipt, Ex.C-13 – track report, Ex.C-14 – repayment schedule, Ex.C-15 – Adhaar card.
On the other hand, counsel for the opposite party No 1.strongly agitated and opposed. As per the evidence of the opposite party No.1 Ex.RW1/A – affidavit of Shri Amit Chawla, Authorized Signatory, Tata AIG General Insurance co. Ltd., Plot NO. E-Ist and 2nd floor, Sector-8, Noida, Annx.R/1 – Insurance policy, Annx.R-2 – Claim intimation, Annx.R/3 – investigation report, Annx.R-4 – claim form, Annx.R-5- FIR, Annx.R-6 – RC etc.(colly), Annx.R-7 – statement of Mayank Saxena, Annx.R-8 – Declaration for KYC (know your customer) document submission individuals), Annx.R-9 – account statement, Annx.R-10 – Co.’s show –cause-notice dated 07.01.2020, Annx.R-11 – letter dated 06.02.2020.
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 vehicle : Rs.1,39,775.00
Less Excess Clause : Rs. 1,000.00
: Rs.,1,38,775.00
Deduction 25% on non standard basis on total : - Rs. 34,693.75
Total : Rs. 1,04,081.25
10. The opposite party No.1 is directed to pay Rs. 1,04,081.25 alongwith interest @ 6% p.a to the complainant from the date of filing of complaint till its realization. The opposite party No.1 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:14.06..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.
