Before the District Consumer Disputes Redressal Commission, Rohtak.
Complaint No. : 534
Instituted on : 24.11.2020
Decided on : 03.07.2024
Mr. Avdesh Kumar age 34 years, s/o Sh. Moti Lal R/o VPO-Kassar Bahadurgarh, Distt Jhajjar(Haryana)-124507 presently residing at A-65 Harsukh Block Prem Nagar-1, Kirari, Suleman Nagar, North west, Delhi-110086.
……….………….Complainant.
Vs.
- M/s The New India Assurance Company Ltd. Through its authorized representative Building, 87, MG Road, Fort, Mumbai, Maharashtra 400001.
- M/s The New India Assurance Company Ltd. Through its authorized representative 2nd Floor, Above Sarv Haryana Gramin Bank, Main Bazar, Rohtak Road, Sampla, Rohtak-124501.
...........……Respondents/opposite parties.
COMPLAINT U/S 35 OF CONSUMER PROTECTION ACT 2019.
BEFORE: SH.NAGENDER SINGH KADIAN, PRESIDENT.
DR. TRIPTI PANNU, MEMBER.
DR. VIJENDER SINGH, MEMBER
Present: Sh.Vijay Kaushik, Advocate for the complainant.
Sh.R.K.Bhardwaj Advocate for the opposite party No.1 & 2.
ORDER
NAGENDER SINGH KADIAN, PRESIDENT:
1. Brief facts of the case as per the complainant are that he is owner of vehicle No. HR-13-N-3863-an EICHER Tractor/333 40 HP and the complainant got insured the tractor from the opposite party No.2 vide policy no. 35380631180100001518 from 28-07-2018 to 27-07-2019. The above said tractor was stolen from the residence of the complainant by some unknown persons between 11:00 PM to 03:00AM on the intervening night of 03-02-2019/ 04-02-2019. An FIR No. 4181/04-02-2019 U/S: 379 IPC at P.S Aman Vihar Rohini, in this regard has been registered. The complainant informed the respondent within time about the theft of the said tractor and approached the concerned branch offices of the respondents for the settlement of claim. But the respondents every time avoided the matter on the pretext of filing of closure report by the police. The above said tractor was untraceable and police Investigating Officer gave his closure report and finally submitted report as untraced on dated 22-11-2019. The complainant informed the same to the respondents but the respondents informed the complainant through a letter dated 13-03-2020 that his claim can't be allowed as the said vehicle was used for commercial purpose in carrying building material like bricks, Rori, etc. on hire or reward basis. The complainant also sent a legal notice through his advocate dated 20-03-2020 but the opposite parties refused to pay the claim amount to the complainant. The act of the respondents amounts to deficiency in service on their part. Hence this complaint and it is prayed that respondents may be directed to release the insured amount Rs.4,55,480/- along with interest at the rate 24% p.a. till its actual realization, to pay Rs.100000/- on account of harassment & deficiency in service and Rs.11000/- as litigation expenses to the complainant.
2. After registration of complaint, notices were issued to the respondents/opposite parties. Opposite parties filed their written statement submitting therein that no ‘NO CLAIM’ was passed in this case therefore the case is pre-mature and should be dismissed on this ground alone. It is further submitted that the vehicle in question is on loan with Kotak Mahindra Bank Ltd. and Kotak Mahindra Bank Ltd. is not made a party as respondent. Therefore no proper party has been made in this case and the case should be dismissed on this ground alone. It is further submitted that the vehicle in question is insured only for agriculture purpose but it was used for commercial purpose. This fact was proved by the statement of insured Mr.Avdesh Kumar and our investigator report that the vehicle was used for carrying BAJARPUR in Delhi. Thus there is a violation of terms and condition of the insurance policy and the insurance company is not liable to pay any compensation to the complainant. The vehicle in question was stolen on dated 3/4.2.2019 and information was given to the insurance company on dated 6.2.2019. Thus there is a delay in giving the information to the insurance company and according to terms and condition of the insurance policy the intimation should be given immediately after theft. A lot of letters were given to the insured to clarify the point that the vehicle in question was insured for agriculture purpose and why the complainant was using the vehicle for commercial purpose for carrying the Bajarpur, Rori, Creaser, etc., but the complainant did not give the answer. Thus there is a violation of terms and conditions of the insurance policy and the insurance company is not liable compensation to the complainant. The real facts are that the complainant did not reply the letters wrote to the complainant to clarify some points therefore ‘NO CLAIM’ was passed in this case. All the other contents of the complaint were stated to be wrong and denied. There is no deficiency in service on the part of opposite parties and dismissal of complaint has been sought.
3. Complainant in his evidence has tendered affidavit Ex.CW1/A, documents Ex.C1 to Ex.C13 and has closed his evidence on dated 04.05.2023. On the other hand, ld. counsel for the opposite parties has tendered affidavit Ex.RW1/A, Ex.RW2/A, documents Ex.R1 to Ex.R6 and closed his evidence on dated 21.11.2022.
4. We have heard learned counsel for the parties and have gone through the material aspects of the case very carefully.
5. In this complaint it has been pleaded by the insurance company in preliminary objections of their reply that no ‘No Claim’ has been passed regarding the complaint of the complainant. Hence the present complaint is pre mature. . The insurance company took some more objections as like the vehicle is hypothecated with Kotak Mahindra Insurance Co., the information regarding the theft of the vehicle has been given belatedly in the insurance company etc. The insurance company further pleaded that the vehicle was insured only for agriculture purpose but the complainant was using the vehicle for commercial purpose. As per the investigation report, the vehicle was used for carrying Bajarpur in Delhi. We have minutely perused the documents placed on record by both the parties. The incident took placed on 03/04.02.2019 and intimation was given to the company on 06.02.2019. Hence there is no delayed intimation to the company. The insurance company placed on record two affidavits, one of Sh.Labh Singh Sr.D.M., New India Insurance Co. Ltd. as Ex.RW1/A and second of Sh. D.N.Sharma, investigator New India Insurance Co. Ltd. Ex.RW2/A. Opposite parties have also placed on record document Ex.R1 insurance policy, Ex.R2 R.C, Ex.R3 photocopy of statement of complainant before the investigator, Ex.R4 letter issued by the insurance company dated 13.03.2020 to the complainant and investigation report as Ex.R5, Ex.R6 is the claim intimation letter. The insurance company has placed on record a photocopy of statement of complainant which was allegedly made before the investigator and it has been mentioned in this statement that the complainant was using the vehicle for agriculture purpose to carry bricks & bajarpur, rori etc. We have minutely perused the documents placed on record by both the parties and it has not been established anywhere that the vehicle was used by the complainant for commercial purpose at the time of theft of vehicle. In fact the vehicle was standing before the house of the complainant. No commercial activity was carried out by the complainant at the time of theft and the instant information was given to the police. Merely alleged photocopy of statement cannot be believed. Hence the claim has been wrongly repudiated by the opposite parties and they are liable to pay the claim amount as per IDV of vehicle. NOC of the vehicle has been issued by the Kotak Mahindra Bank Ltd. and the same is placed on record as Ex.C13. As per policy Ex.R1 the IDV of vehicle is Rs.437000/- and the complainant is entitled for the alleged amount.
6. In view of the facts and circumstances of the case we hereby allow the complaint and direct the opposite parties to pay Rs.437000/-(Rupees four lac thirty seven thousand only) alongwith interest @ 9% p.a. from the date of filing the present complaint i.e. 24.11.2020 till its realisation and also to pay a sum of Rs.5000/-(Rupees five thousand only) on account of deficiency in service and Rs.5000/-(Rupees five thousand only) as litigation expenses to the complainant within one month from the date of decision. However complainant is directed to complete the formalities i.e. to submit the signed form no.29-30, indemnity bond and subrogation letter in favour of the company and to send a letter to RTO for cancellation of R.C within 15 days and thereafter opposite parties shall comply with the order dated 03.07.2024 of this Commission.
7. Copy of this order be supplied to both the parties free of costs. File be consigned to the record room after due compliance.
Announced in open court:
03.07.2024.
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Nagender Singh Kadian, President
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Tripti Pannu, Member.
……………………………….
Vijender Singh, Member
