District Consumer Disputes Redressal Commission ,Faridabad.
Consumer Complaint No.51/2019.
Date of Institution: 25.01.2019.
Date of Order: 23.12.2022.
Sunil Kumar S/o Shri Prahlad Radm R/o H.No. 57, Ward No.6, Kapda Colony, Block-AB, Saran, NIT, Faridabad – 121001. …….Complainant……..
Versus
1. M/s. Universal Sompo General Insurance Co. Ltd., Regd. Office : Unit NO. 401, 4th floor, Sangam Complex, 127, Andheri Kurla Road, Andhari (East), Membai – 400 059.
Presently branch:- R/o 152, Power House Road, Ashoka Enclave-1, Sector-34, Faridabad.
2. M/s. Cholamandlam Investment & Finance Company Limited, Regd. Office at Dare House-2, B.S.C. Bose Road, Parrys, Chennai – 600 001.
Also office at Plot NO. 5E/22BP, 2nd floor, Near B.K.Chowk, NIT, Faridabad – 121001.
…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. J.S.Jangu, counsel for the complainant.
Sh. O.P.Gaur, counsel for opposite party No.1.
Sh. Rajiv Rana, counsel for opposite party No.2.
ORDER:
The facts in brief of the complaint are that the complainant was owner of Eicher Canter Pro 1114 bearing its Regn. No. HR-38-Y/6592. The said vehicle was insured with Universal Sompo General Insurance Co. Ltd. bearing No. 2374/58776226/00/000 valid from 31.07.2018 to 30.07.2019. The alleged Eicher Canter Pro 1114 had been theft by unknown person on dated 16.08.2018 when the driver of the complainant namely DeepakKumar S/o Shri Laxmi Prasad R/o Shankar Vihar, Kohda Colony, Distt. Ghaziabad had parked the same at labour chowk, near Baba Transport and went away to his house to take meal, When he came back at the spot in the night at 2.00a.m. he did not find the alleged Eicher Canter Pro 1114 at the spot. Thereafter, the complainant and his colleague tried their level best to trace out the same but they could not succeed. Thereafter, the complainant lodged a FIR No. 505 dated 18.08.2018 u/s 379 IPC in P.S.Noida, Sector-58, Distt. Gautambudh Nagar (U.P) in this regard. After the theft of the said vehicle, the complainant immediately intimated to the insurance company in this regard and lodged a claim with them vide complaint NO. CLI80578000. Thereafter complainant several times approached ot the said insurance company to make the payment of claim amount of the said Eicher Canter Pro 1114 as the said Eicher Canter Pro 1114 was financed from M/s. Cholamandlam Investment & Finance Co. ltd. But they were also not giving any heed to the legitimate requests and reminders of complainant and did not make a single penny to the complainant regarding insured amount of the said vehicle. Rather, on the other hand, the said finance company was raising the demand of their finance amount of the said vehicle from the complainant continuously. The alleged Eicher Canter Pro 1114 was only one source of income of complainant. Due to theft of said tractor, the complainant had no other source of income to earn the livelihood of himself as well as for his family members and also earn the amount to make the installments of the above said finance company for the financed amount. 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) insured amount of Rs.17,00,000/- of the above said Eicher Canter Pro-1114.
b) Expenses spent by the complainant for making several requests and reminders to the opposite party for releasing the insured amount.
c) pay Rs. 2,00,000/- as compensation for causing mental agony and harassment .
d) pay Rs. 21,000 /-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 was closed for want of requisite mandatory claim documents vide No claim letter dated 12.12.2018. Hence, the present complaint was not maintainable, The present complaint was bad for non-joinder of the necessary parties. It was submitted that as per insurance policy No. 2374/58776226/00/000, for the period 31.07.2018 to 30.07.2019, Canter No. HR-38Y-6592 was hypothecated with M/s. Cholamandalam Investment & Finance Co. Ltd., under hire purchase agreement and duly endorsed in the registration certificate pertaining to Canter NO. HR-38Y-6592. It was further submitted that as per the provisions of the law in force, the terms & conditions of the insurance policy in the form of IMT clause therein as well as the statutory guidelines laid down by the Insurance Regularly Development Authority (IRDA), in case, total loss the claim amount should be released to the financier. The complainant neither had any cause of action nor locus standi in lodging the present complaint before this Forum. It was submitted that the complainant had suppressed and concealed the true, vital and material facts and information from this Hon’ble Forum in lodging the present complaint. It was submitted that the insurance company received an Intimation of Occurrence alleging theft of Canter NO. HR-38Y-6592 on 17.08.2018, while noticed at about 2.00a.m. whereas, parked on 16.08.2018 at about 5.30p.m. near water tank, baba transport, sector-62, Noida (U.P) and further claiming its driver – Deepak Kumar. As a result, the insurance company deputed a qualified and independent investigator-cum-surveyor, so as to investigate into the alleged occurrence. It was further submitted that the investigator carried out its investigation and during the course of investigation sent a letter dated 29.08.2018 to the complainant and sought the documents listed therein, which letter was duly acknowledged and received by the complainant against his proper signature. It was also submitted that the complainant furnished and tendered certain selective documents to the investigator against the listed documents. In terms of the statement in writing, the complainant disclosed the facts leading to occurrence of the alleged theft of Caner NO. HR-38Y-6592 as under:-
- On 13.2018, driver – Deepak Kumar loaded Canter NO. HR-38Y-6592 from Sector-55, Sohna Road, Faridabad so as to transport the goods to Mawana Road, Meerut (U.P).
- On 14.08.2018 at about 4.00am, the driver left with loaded Canter NO. HR-38Y-6592 from Sector-55. Sohna road, Faridabad to Meerut (U.P).
- On 14.08.2018, the Canter reached at Mawana road, Meerut (U.P) at about 8.30a.m. Since, the goods could not be unloaded, hence the driver waited to next day i.e.15.08.2018 so as to upload the goods.
- After unloading the goods on 15.08.2018, the driver again loaded the Canter with consignment from Meerut and left at about 9.00 PM to M/s. Paper Mill, D-44,Sector-63, Noida (U.P).
- On 16.08.2018, the driver reached at M/s. paper Mill, D-44, Sector-63, NOIDA(U.P) with loaded Canter No. HR-38Y-6592 at about 12:30 A.M.(Night).
- The driver, unloaded the Canter at M/s. Paper Mill, D-44, Sector-63, Noida (U.P) on 16.08.2018. After unloading the canter, the driver- Deepak started from Sector-63, Noida (U.P), so as to go to his house at Shanker Vihar, Khoda colony, Noida (U.P). As a result, the driver reached at about 5.30 p.m. and parked the Canter by the side of the road near Water Tanki No.21, Sector-62, Noida (U.P.). Thereafter, the driver left on foot to his house at Shanker Vihar, Khoda colony, Noida (U.P).
- At about 2.00a.m. on 17.08.2018, when the driver came back at the spot, so as to go to Faridabad, he found that canter was missing. At his, the driver made a telephonic call to the complainant. As a result, the complainant reached at the spot on 17.08.2018 at about 11:pp a.m. And then got made a telephonic call to the police over phone No. 100 through the driver – Deepak Kumar at about 1:10 p.m. The police reached at the spot and advised us to lodge FIR with P.s. Sector-58, Noida (U.P). however, they loaded the FIR on 18.08.2018 accompanying with his father viz. Pralad Ram, brother Vinay Kumar and the driver – Deepak Kumar. It was further submitted that since the complainant had failed to supply and furnish the remaining requisite mandatory claim documents either to the insurance company or to the investigator during the course of investigation, so no other option was left with the investigator except to furnish his investigation report dated 11.03.2019 to the insurance company inter-alia observing that the insured did not co-operate and had not provided with the following remaining documents, despite the demand raised by the investigator in this behalf:-
i) Original RC
ii) Original Insurance policy
iii) RC particulars verification
iv) Non repossession letter (Canter No. HR-38Y-6592) from the financier
v) Court certified copy of final report u/s 173 Cr.P.C. accepted by the Illaqa Magistrate.
vi) Last Kanta Parchi
vii) CR call confirmation report from police.
viii) Service record of canter
ix) Toll tax receipts for last trip from Faridabad to Meerut.
x) Claim form
xi) Passport size photograph
x) Claim form
xi) Passport size photograph
xii) Fitness certificate.
xiii) Call details of mobile No. 8939937509 and mobile NO. 8700213774.
As a matter of fact, the investigator vide its letter dated 23.10.2018 followed with last final reminder dated 20.11.2018 under registered post, sought the listed documents from the complainant. But the complainant had miserably failed to co-operated with the investigator and the insurance company in not furnishing and supplying the requisite mandatory claim documents. In furtherance of process of the subject claim on the basis of claim documents furnished & tendered by the complainant coupled with the investigation report dated 11.03.2019, the insurance company observed that the complainant had not extended co-operation either to the insurance company or to the investigator, so as to enable the insurance company to dispose off the subject claim on its merit. As a result, no other option was left with the insurance company except to close the subject claim as NO claim vide its letter dated 12.12.2018 for want of the requisite mandatory claim documents. Opposite party No. 1 denied rest of the allegations leveled in the complaint and prayed for dismissal of the complaint.
3. Opposite party No.2 put in appearance through counsel and filed written statement wherein Opposite party No.2 refuted claim of the complainant and submitted that the complainant availed a funds facility as vehicle loan for vehicle make Eicher Canter PRO 1114XP/LCV bearing its registration NO. HR-38Y-6592 to the tune of Rs.16,66,000/- from the answering opposite party for which a loan agreement NO. XVFPFBD00002479962 was duly signed and executed between the complainant and the answering opposite party. As per terms and conditions of the said loan agreement, the complainant was to repay the above said loan amount to the answering opposite party, in 48 equal monthly installments. After availing the funds facility the complainant always remained irregular in making the repayment of the loan amount to the answering opposite parties and defaulted in installments form the very beginning. The officers of the opposite party also visited personally to the complainant and requested him to make the payment of the outstanding amount to the opposite parties, but the complainant always made excuses on one pretext or the other. There was a huge outstanding amount of Rs.24,86,832/- was due against the complainant as on date on account of monthly installments and other overdue charges but the complainant avoided his legal liability on one pretext or the other with a view to cause huge losses to the to the answering opposite party. It was submitted that the vehicle in question had been hypothecated in favour of the answering opposite party and the answering opposite party was the absolute owner of the vehicle in question unless and until entire dues of loan amount were not paid to the answering opposite party and NOC had not been issued in favour of the complainant, hence the complainant was not the absolute owner of the vehicle n question and the answering opposite party was legally entitled for the claim of the insurance in respect of the vehicle in question. Opposite party No. 2 denied rest of the allegations leveled in the complaint and prayed for dismissal of the complaint.
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– Universal Somo General Insurance co. td. & Ors. with the prayer to: a) insured amount of Rs.17,00,000/- of the above said Eicher Canter Pro-1114.b) Expenses spent by the complainant for making several requests and reminders to the opposite party for releasing the insured amount. c) pay Rs. 2,00,000/- as compensation for causing mental agony and harassment . d) pay Rs. 21,000 /-as litigation expenses.
To establish his case the complainant has led in his evidence, Ex.CW1/A – affidavit of Sunil Kumar, Ex.CW-1 – FIR, Ex.CW-1/2 - RC,,Ex.CW1/3 – identity card, Ex.CW1/4 –PAN card,, Ex.CW1/5 (colly) & CW1/6 – not readable, Ex.CW1/7 (colly) – Permit in respect of National Permitheavy Goods Vehicle PART-A, Ex.CW-1/8 (colly) – Authorization certificate of N.P.(Goods), Ex.CW-1/9 Form N.P.PU.C – Part A,, Ex.CW1/10 – policy for the period 31.07.2018 to 30.07.2019, Ex.CW1/11(colly) - letter dated November 21,2018, Ex.CW1/12 – Form 24 (Motor Vehicle Register), Ex.CW1/13 (colly) - Final reminder letter dated 23.10.2018,
On the other hand counsel for the opposite party No.1strongly
agitated and opposed. As per the evidence of the opposite party No.1 Ex.O/1 – insurance policy with terms & conditions, Ex.O/2 - investigation report, Ex.02/A – letter dated 29.08.2018 to Sunil Kumar, Ex.O/3 – FIR,, Ex.O/4 – Retail invoice/Tax invoice, Ex.O/5 & 6 – Permit in respect of National Premitheavy Goods Vehicles, Ex.O/7 – Authorization certificate of N.P.(Goods), Ex.O/8 – driving licence, Ex.O/9 – Adhar card with photocopy keys, Ex O/10 – GR, Ex.O/11 – GR,, Ex.O/12 – Statement of Sunil Kumar, Ex.O/14 – statement of account from13.07.2018 to 05.09.2018, Ex.O/15 – Final reminder letter dated 23.10.2018 regarding following documents, Ex.O/17 - NO claim letter dated 12.12.2018 regarding on submission of documents.
Opposite party No.2 led in his evidence Ex.RW2/A affidavit of Shri Sudhir Kumar, Legal Manager and authorized representative of M/s. Cholamandlam Investment and Finance Company Ltd., having its office at 5E/22, 2nd floor, BP, B.K.Chowk, NIT, Faridabad, Ex.R2/1 - application form, Ex.R-2/2 - statement of account from 23.11.2000 to 23.11.2021.
7. In this case, the complainant is the registered owner of of Eicher Canter Pro 1114 bearing its Regn. No. HR-38-Y/6592 insured with Universal Sompo General Insurance Co. Ltd. bearing No. 2374/58776226/00/000 valid from 31.07.2018 to 30.07.2019 vide Ex.C-2.. The theft of vehicle No. HR-38Y-6592 took place on 16.08.2018 when the driver viz. Deepak Kumar parked the same at labour Chowk, Near Baba Transport, Ghaziabad and went to his house to take his meal. But when the driver came back at the spot in night at about 2.00 a.m. he did not find the same for which the driver tried his best. FIR No. 505 dated 18.08.2018 u/s 379 IPC P.S.Noida, Sector-59, Gautambudh Nagar (U.P) was lodged vide Ex.C-4. Opposite party has repudiated the claim of the complainant on the ground of non submission of documents. Vide Ex.O/17.
8. After going through the evidence led by the parties, the Commission is of the opinion that the complaint is allowed on non standard basis.
9. 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 4
0%. 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.17,00,000.00
Less Excess Clause : Rs. 1,000.00
: Rs.16,99,000.00
Deduction 40% on non standard basis on total : - Rs. 6,79,600.00
Total : Rs. 10,19,400.00
10 The opposite party No.1 is directed to pay Rs.10,19,400/- 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 No.1 is also directed to pay Rs3300/- as compensation on account of mental tension, agony and harassment and Rs.3300/- 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: 23.12.2022 (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.
