Haryana

Karnal

CC/385/2021

M/s Kamra Construction Company - Complainant(s)

Versus

National Insurance Company - Opp.Party(s)

Kanav Deep Singh

21 Feb 2022

ORDER

 

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, KARNAL.

 

                                                       Complaint No. 385 of 2021

                                                        Date of instt.06.08.2021

                                                        Date of Decision: 21.02.2022

 

M/s Kamra Construction Company, 2146, Sector-13, Urban Estate, Karnal through its partner and authorized person Shri Yogesh Kamra son of Shri Prem Parkash Kamra resident of house no.2146, Sector-13, Urban Estate, Karnal (Aadhaar no.8266 0651 7813)

 

                                               ……Complainant.

                                              Versus

 

1.     National Insurance Company, Taraori Business Centre opposite Mahavir Rice Mill, near Shiv Shakti Petrol Pump, Taraori, District Karnal.

2.     National Insurance Company, Santokh Market, Railway Road, Karnal though its authorized Signatory/Person.

 

                                                                      …..Opposite Parties.

 

Complaint under Section 35 of Consumer Protection Act, 2019.

 

Before   Sh. Jaswant Singh……President.       

      Sh. Vineet Kaushik…….Member

            

          

 Argued by: Shri Kanav Deep Singh, counsel for complainant.

Smt. Shakuntla Dagar, counsel for opposite parties.

 

                    (Jaswant Singh President)

ORDER:   

 

                           The complainant has filed the present complaint under Section 35 of Consumer Protection Act, 2019 against the opposite parties (hereinafter referred to as ‘OPs’) on the averments that complainant has purchased a second hand car i.e. Toyota Fortuner 3.2 4x2mt, white colour, bearing registration no. HR81-7774 from seller Rajbir on 25.02.2018 for Rs.18,40,000/- for that purpose, complainant has also taken a loan from Tata Capital Finance Ltd., Karnal. Complainant got insured the abovesaid vehicle from the OPs, vide policy no.426013311810001696, valid from 26.11.2018 to 25.11.2019 having IDV of Rs.14,44,2100/-. On the intervening night of 04/05.06.2019, the abovesaid vehicle was standing outside the flat of Shri Priyank Bajaj, who is the cousin of the complainant in Janakpuri Delhi, where the abovesaid vehicle got stolen and FIR was registered bearing FIR no.019566 dated 05.06.2019 under section 379 of IPC in E-Police Station Janakpuri, New Delhi, regarding the theft of the abovesaid vehicle. Complainant has informed the OPs regarding the theft of abovesaid vehicle and submitted all the documents for the purpose of claim. Complainant has waited for few months but neither car was found nor thieves of the car were ever arrested. Complainant visited the office of OPs several times, regarding the claim of the abovesaid vehicle but OPs failed to settle the claim and lingered the matter on one pretext or the other. In the month of October to December, 2019, complainant had received the letters from the investigator of the OPs, in which investigator requested the complainant to submit some documents related to the abovesaid vehicle, after which complainant has duly submitted all documents required by the investigator of OPs. Even after waiting for one year, OPs have not made any payment to the complainant regarding the claim of the abovesaid vehicle. Complainants with his own funds, have also foreclosed the hypothecation of Tata Capital Finance Ltd. Karnal, on the abovesaid vehicle. On 26.07.2021, when complainant visited Karnal office of OPs, he was informed that his claim was cancelled. When complainant asked for the reason then official of the OPs, has said to complainant to go to court that they will submit their reply in the court only. In this way there was deficiency in service and unfair trade practice on the part of the OPs. Hence, complainant filed the present complaint, seeking direction to the OPs to pay Rs.14,44,200/- i.e. Insured Declared Value (IDV) of the vehicle with interest @12% per annum and also to pay Rs.5,00,000/- as compensation for mental agony and Rs.25,000/- as litigation costs.

2.             On notice, OPs appeared and filed their written version, raising preliminary objections with regard to maintainability and concealment of true and material facts. On merits, it is pleaded that complainant has failed to give written intimation of the theft of his vehicle in question to the OPs immediately upon occurrence i.e. on 05.06.2019. As a matter of fact, OPs have informed about the theft of the said car on 27.06.2019 i.e. after 22 days of the occurrence, which is in violation of condition no.1 of the insurance policy. Due to which the OPs have lost their valuable right to investigate the matter early for tracing of the said vehicle with the help of area police. It is further pleaded that on receipt of intimation, OPs appointed an investigator Shri Lakshman Dass Arora, who investigated the matter and submitted his report dated 27.12.2019. It is further pleaded that the claim of the complainant could not be settled due to the act and conduct of the complainant himself, as he has not complied with the formalities/clarifications of the queries. Due to this reason, his claim has been closed as ‘No Claim’ as intimated to the complainant, vide letter dated 23.03.2020. It is further pleaded that abovesaid car was in the name of the company i.e. Kamra Construction Company through its partner Shri Yogesh Kamra which clearly means that the car was to be used for the company work for its business by its partner i.e. Shri Yogesh Kamra and Shri Sanjay Kumar. In the present case, said car was borrowed by Shri Priyank Bajaj (as per his own statement) who was one of the friends of Shri Deepak Kamra -brother of Mr. Yogesh Kamra. Neither Deepak Kamra nor Priyank Bajaj are the partners of the firm M/s Kamra Construction and they have nothing to do with the business of the said company. It appears that said car was sold to Mr. Priyank Bajaj unauthorizedly without getting the registration of the car and insurance was transferred in his name, a false story has been manipulated, just to claim compensation from the insurance company, which is not tenable as per law. It is further pleaded that insured has not taken all reasonable steps to safeguard the vehicle from loss/damage as per terms and conditions of insurance policy. The car in question left un-attended. Thus, the OPs have rightly repudiated the claim of the complainant and there is no deficiency in service on the part of the OPs. The other allegations made in the complaint have been denied by the OPs and prayed for dismissal of the complaint.

3.             Parties then led their respective evidence.

4.             Complainant tendered into evidence his affidavit Ex.CW1/A, Aadhar card of Yogesh Kumar Ex.C1, PAN card of Yogesh Kumar Ex.C2, PAN card of company Ex.C3, copy of registration certificate Ex.C4, copy of First Information Report Ex.C5, authority letter Ex.C6, delivery cum receipt Ex.C7, partnership deed Ex.C8, Rent agreement Ex.C9, application to SDM Ex.C10, investigation report dated 15.10.2019 Ex.C11, investigation report dated 14.12.2019 Ex.C12, loan closed letter Ex.C13, from 35 Ex.C14, insurance policy Ex.C15 and closed the evidence on 17.11.2021 by suffering separate statement.

5.             On the other hand, OPs tendered into evidence affidavit of Reena Basak, Administrative Officer Ex.OP1/A, insurance policy Ex.OP1, terms and conditions of the insurance policy Ex.OP2, investigator report dated 27.12.2019 Ex.OP3, statement of Jaspreet Duggal Ex.OP4, statement of Vikas Anand Ex.OP5, statement of Priyansh Bajaj Ex.OP6, letter from Kamra construction from Yogesh Kamra Ex.OP7, partnership deed dated 26.12.2016 Ex.OP8, claim note sheet Ex.OP9, letter dated 23.03.2020 Ex.OP10, letter dated 17.03.2020 Ex.OP11, letter dated 11.03.2020 Ex.OP12, letter dated 03.03.2020 Ex.OP13 and closed the evidence on 24.01.2022 by suffering separate statement.

6.             We have heard the learned counsels for the parties and have perused the case file carefully.

7.             Learned counsel for complainant, while reiterating the contents of the complaint, has vehemently argued that complainant’s firm is registered owner of the vehicle in question and the same was insured with the OPs. On 04/05.06.2019, the said vehicle was stolen in the area of Janakpuri, Delhi. Intimation was given to the Police and police lodged the FIR on the same day i.e. 05.06.2019. The complainant has also informed the OPs with regard to the said theft and submitted all the documents as required by the OPs. Thereafter, several requests were made to the OPs for releasing of the claim but OPs failed to settle the claim. Hence, prayed for allowing the present complaint. Learned counsel of complainant placed reliance upon the case titled as Om Parkash Versus Reliance General Insurance and anr. in Civil Appeal no.15611 of 2017 decided on 4.10.2017 and Gurshinder Singh versus Shri Ram General Insurance Co. in Civil Appeal no.653 of 2020 decided on 24.01.2020

8.             Per-contra, learned counsel for OPs, while reiterating the contents of the written version, has vehemently argued that the intimation with regard to the theft of the vehicle in question was given to the OPs after delay of twenty two days and OPs had deprived the legitimate right to investigate the matter properly. She further argued that complainant has sold the vehicle in question to one Shri Priyank Bajaj, so at the time of the accident, complainant has no insurable interest in the insured vehicle. Further, the vehicle was left unattended at the time of incident. As per partnership deed, neither Deepak Karma nor Priyank Bajaj were the partners of the firm M/s Karma Construction Company. Also, the vehicle in question was being used for the commercial purpose at that time. Hence, OPs had rightly repudiated the claim of the complainant. Lastly, prayed for dismissal of the complaint with heavy costs. Learned counsel of OPs placed reliance upon the case titled as M/s Suraj Mal Ram Niwas Oil Mills (P) Ltd. Vs. United India Insurance Co. in Civil Appeal no.1375 of 2003 decided on 8.10.2010; National Insurance Co.Ltd. Versus Shravan Singh Revision Petition no.4374 of 2010 decided on 04.12.2015 and National Bulk Handling Corporation Ltd. Versus Oriental Insurance Co. Ltd. CC no.2 of 2010 decided on 22.06.2016.

9.             Admittedly, the vehicle in question was stolen during the subsistence of the insurance policy. The claim of the complainant has been closed by the OPs, vide letter Ex.OP9, on the ground that due to non-compliance of the formalities by the insured, claim file of the complainant was closed.

10.           The OPs have taken a plea that there is delay of twenty two days, in intimation regarding theft of the vehicle in question by the complainant. In the present case, vehicle in question was stolen on 05.06.2019 and FIR was lodged on the same day. In this regard, we place reliance upon the case titled as Om Parkash’s case (supra) whereby Hon’ble Supreme Court of India held in para no.11 of the said judgment, that it is a common knowledge that a person who has lost his vehicle may not straightway go to the Insurance Company to claim compensation. At first, he will make efforts to trace the vehicle. It is true that the owner has to intimate the insurer immediately after the theft of the vehicle. However, this condition should not bar settlement of genuine claims particularly when the delay in intimation or submission of documents is due to unavoidable circumstances. The decision of the insurer to reject the claim has to be based on valid grounds. Rejection of the claims on purely technical grounds in a mechanical manner will result in loss of confidence of policy holder in the insurance industry. If the reason for delay in making a claim is satisfactory explained, such a claim cannot be rejected on the ground of delay. We also placed reliance upon the judgment in case titled as Gurshinder Singh Versus Shri Ram General Insurance Co. in Civil Appeal no.653 of 2020 decided on 24.01.2020 wherein Hon’ble Supreme Court in para no.20 of the said judgment has held that when an insured has lodged the FIR immediately after the theft of a vehicle occurred and when the police after investigation have lodged a final report after the vehicle was not traced and when the surveyors/investigators appointed by the insurance company have found the claim of the theft to be genuine, then mere delay in intimating the insurance company about the occurrence of the theft cannot be a ground to deny the claim of the insured. The similar view was taken by Hon’ble Supreme Court of India in case titled as Dharamender versus United India Insurance Co. Ltd. and others in civil Appeal no.5705 of 2021 date of decision 13.09.2021.

11.           The next plea taken by the OPs is that the vehicle was left unattended at the time of incident. The onus to prove the same lies upon the OPs but OPs have failed to prove the same by leading any cogent and convincing evidence.  Hence, plea taken by the OPs is having no force.

12.           The next plea taken by the OPs, is that complainant has no insurable interest as the complainant has sold the vehicle in question to Mr. Priyank Bajaj as he was owner of the insured vehicle on the day of incident. The onus is lies upon the OPs but OPs have miserably failed to prove the same, as OPs have not placed on record any sale letter or any affidavit to prove that complainant has sold the vehicle in question to Priyank Bajaj. The best evidence with the OPs to prove its version to examine Mr. Priyank Bajaj but OPs failed to examine or tendering his affidavit regarding purchasing of the said vehicle. Moreover, as per Registration Certificate of the vehicle in question, the complainant’s firm is owner of the said vehicle in question at the time of incident. Hence, plea taken by the OPs has no force.

13.           The next plea taken by the OPs, is that vehicle in question was being used for commercial purpose at the time of accident. The onus to prove is lies upon the OPs. But, OPs have miserably failed to prove their case by leading any cogent and convincing evidence. Hence, plea taken by OPs has no force.

14.           The last plea taken by the OPs is that claim of the complainant has been closed by the OPs due to non-compliance of formalities by the insured. In the present complaint, the complainant has claimed an amount of Rs.14,44,200/- and thus his personal interest is involved, then, as to why, he would not be supplied the requisite documents to the insurance company. Hence, plea taken by the OPs  for non-compliance of the formalities by the complainant is having no force.

15.           Further,  Hon’ble Punjab and Haryana High Court in case titled as New India Assurance Company Ltd. Versus Smt. Usha Yadav & others 2008 (3) RCR (Civil) 111, has held as under:-

                It seems that the Insurance Companies are only interested in earning the premiums which are rather too stiff now a days, but are not keen and are found to be evasive to discharge their liability. In large number of cases, the Insurance companies make the effected people to fight for getting their genuine claims. The Insurance Companies in such cases rely upon clauses of the agreements, which a person is generally made to sign on dotted lines at the time of obtaining policy. This is, thus pressed into service to either repudiate the claim or to reject the same. The Insurance Companies normally build their case on such clauses of the policy, but would adopt methods which would not be governed by the strict conditions contained in the policy.

16.           The laws laid down by the learned counsel for the OPs are not applicable on the facts of the present case.

17.           Keeping in view the ratio of the law laid down in the abovesaid judgments, facts and circumstances of the complaint, we are of the considered view that acts of the OPs while repudiating/closing the claim of the complainant amounts to deficiency in service and unfair trade practice. 

18.           As per insurance policy Ex.C15(OP1), the Insured Declared Value (IDV) of the vehicle in question is Rs.14,44,200/-. Hence, the complainant is entitled for the same alongwith compensation and litigation expenses etc.

19.           Thus, as a sequel to abovesaid discussion, we allow the present complaint and direct the OPs to pay Rs.14, 44,200/- insured declared value (IDV) to the complainant alongwith interest @9% per annum from the date of repudiation/closing of the claim till its realization. We further direct the OP to pay Rs.25,000/- to the complainant on account of mental agony and harassment and Rs.11,000/- towards the litigation expenses. This order shall be complied with within 45 days from the receipt of copy of this order. However, the complainant is also directed to get all the formalities completed with regard to transfer of vehicle as and when the OPs desire. The parties concerned be communicated the order accordingly and the file be consigned to the record room after due compliance.

Dated: 21.02.2022

                                                                       

                                                                  President,

                                                     District Consumer Disputes

                                                     Redressal Commission, Karnal.

 

(Vineet Kaushik)       

                           Member