Haryana

Kurukshetra

CC/172/2019

Ishwar chand - Complainant(s)

Versus

NIA - Opp.Party(s)

Suresh Kashyap

12 Dec 2019

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, KURUKSHETRA.

 

                                                     Complaint Case No172 of 2019.

                                                     Date of institution: 09.05.2019.

                                                     Date of decision:12.12.2019.
 

Ishwar Chand (Aged about 53 years) s/o Shri Sundu Ram, r/o village Sunderpur, Tehsil Thanesar, District Kurukshetra.

                                                                        .…Complainant.

                                           Versus

 

1. The New India Assurance Co. Ltd., Branch Office – II, Kurukshetra (353602) Dr. Sahni Nursing Home Building, Pipli Road, Kurukshetra, through its Branch Manager.
2. The New India Assurance Co. Ltd., New India Assurance Building, 87 M.G. Road, Fort, Mumbai-400001, through its Managing Director.

 

….Respondents.

Before:      Smt. Neelam Kashyap, President.

                   Ms. Neelam, Member.

                   Sh. Issam Singh Sagwal, Member.

         

Present:     Shri Suresh Kashyap, Advocate, for the complainant.   

                Shri R.K. Sachdeva, Advocate for the OPs.

               

ORDER

                This is a complaint under Section 12 of the Consumer Protection Act, 1986 moved by complainant Ishwar Chand against The New India Assurance Co. Ltd., the opposite parties.

2.             Brief facts of the present complaint are that alluring with the advertisement of the OPs, the complainant purchased one policy bearing No.35360231180100000124 dated 11.04.2018 for the period from 11.4.2018 to 10.4.2019 for TATA Motor/LPK2518TC (FBV/Box/6S) bearing Registration No.HR65-5695 for a sum assured of Rs.15,00,000/- and paid a premium of Rs.23,631/- through OP No.1 at Kurukshetra, District Kurukshetra. In the night of 01.11.2018, the said truck was parked under the railway bridge Haryana Tiber Store, near Sunderpur and when his driver came in the morning to take the truck, then they found that two pairs of tyres of marka MRF and four rims and nut bolts which were put in the truck about some days ago, were missing. One pair of tyre marka JK of another truck bearing No.HR65-4216 of five days old were missing and glasses of said truck were also broken. The information in this regard was given to the police by his driver on 100 number at 08:45 AM. The OPs were also informed on the same day. An FIR bearing No.1141 dated 02.12.2018 u/s 379 of IPC was registered in PS City Thanesar. The Ops vide their letter dated 15.3.2019 refused to give the claim on the ground that as per tariff, partial loss in case of commercial vehicle is not payable. Since the OPs insured the vehicle in question, therefore, they are legally bound to pay the loss/damage to the part of the vehicle of Rs.98,840/-. By not paying his genuine claim, the OPs are deficient in providing the services. Hence this complaint.

 3.          Upon notice, the OPs appeared before this Forum and contested the complaint by filing reply stating therein that the case of the complainant was got investigated promptly from the Dynamic Associates, Kurukshetra and same was dealt with as per terms & conditions of the insurance policy. It is the negligence on the part of the complainant himself as the truck in question was parked in a lonely deserted and secluded place, which facilitated the thieves to steal away only the accessories of the truck, which is not covered as per the terms & conditions of standard forms for commercial vehicles packages (Policy). The claim of the complainant was got investigated to the Dynamic Associates, Kurukshetra who submitted the report dated 07.2.2019. In investigation, it was found that the partial loss in case of commercial vehicle is not covered and as such the claim was rightly repudiated vide letter dated 15.5.2019. The investigator assessed the total loss to the extent of Rs.51,400/-. If whole truck/dumper had been stolen, then the complainant could have been entitled to payment as per report of Dynamic Associates, Kurukshetra. There is no question of any deficiency on the part of the OPs and the present complaint may kindly be dismissed.

4.             The complainant has tendered into evidence affidavit Ex.CW1/A and documents Ex.C-1 to Ex.C-8 and closed the evidence. On the other hand, the OPs has tendered into evidence affidavit Ex.RW1/A and documents Ex.R-1 to Ex.R-4 and closed the evidence.

5.             We have heard the learned counsel for the parties and perused all the record carefully.

6.             The learned counsel for the complainant has reiterated all the averments mentioned in the complaint. He argued that the complainant purchased one policy for a sum assured of Rs.15,00,000/- from the OPs. He further argued that in the night of 01.11.2018, the said truck was parked under the railway bridge Haryana Tiber Store, near Sunderpur and when his driver came in the morning, then they found that two pairs of tyres of marka MRF and four rims and nut bolts which were put in the truck about some days ago, were missing. One pair of tyre marka JK of another truck bearing No.HR65-4216 were also missing. The OPs were also informed on the same day, but the OPs vide their letter dated 15.3.2019 refused to give the claim on the ground that as per tariff, partial loss in case of commercial vehicle is not payable. By not paying his genuine claim, the OPs are deficient in services.

7.             Contrary to it, the learned counsel for the OPs has reiterated all the averments mentioned in the reply. He argued that the claim of the complainant was got investigated by the Dynamic Associates, Kurukshetra who submitted report dated 07.2.2019, who found that the partial loss in case of commercial vehicle is not covered and as such the claim was rightly repudiated vide letter dated 15.5.2019. There is no deficiency on the part of the OPs.

8.             There is no dispute that the vehicle in question was insured with the Ops for the period from 11.4.2018 to 10.4.2019 for IDV value of Rs.15,00,000/- vide policy Ex.C-8. There is also no dispute that tyres and four rims/nut bolts of said vehicle were stolen by some unknown thieves. In this regard, the complainant lodged FIR bearing No.1141 dated 02.12.2018 in PS Thanesar City Ex.C-1. The grievance of the complainant is that after theft, he intimated the OPs about the same vide application Ex.C-2, but the OPs closed/repudiated his claim vide letter dated 15.3.2019 Ex.C-5 on the ground that “As per tariff, partial loss in case of commercial vehicle is not payable”. As the OPs repudiated the claim of the complainant, therefore, the onus to prove the grounds on which the claim was repudiated, was upon the OPs. In this regard, the OPs firstly contended that “damage to accessories by burglary” is not payable and drawn attention of this Forum towards sub-para (a) of Para No.2 of STANDARD FORM FOR COMMERCIAL VEHICLES PACKAGE POLICY Ex.R-2. However, ‘accessories’ means “articles relating to non-essential automotive parts, which embellish the look and feel of an automobile or add functionality”. However, it is pertinent to mention here that the complainant is not claiming for the loss of accessories, rather he is claiming for the loss/theft of tyres, rim, nut-bolts, which cannot be termed as accessories and without tyre/rim, a vehicle cannot ply on the road. So, from above, it is clear that the OPs committed deficiency in repudiating the claim of the complainant on the ground of “damage to accessories by burglary”. So, this contention of the OPs has no force,

9.             Now coming to other contention of the OPs that as per tariff, partial loss in case of commercial vehicle is not payable. But it is pertinent to mention here that when a vehicle was insured, then the IDV value was calculated of the whole vehicle including all the essential parts whole vehicle, and when any parts of the said vehicle was damaged/stolen, then the OPs cannot refuse to pay the claim for the same by saying that partial claim of vehicle is not payable, because every parts of the vehicle comes within the domain of IDV value. Moreover, the OPs have failed to produce any terms & conditions on the case file to support this contention that partial loss in case of commercial vehicle is not payable, so, this contention of the Ops has also no force. Keeping in view the above facts & circumstances of the present case, we are of the considered opinion that the OPs have wrongly closed/refused to pay the claim of the complainant. Hence, the OPs are deficient in providing the services to the complainant.

10.            Now the question which arises for consideration is what should be the quantum of indemnification. From the perusal of Surveyor report Ex.R-3, it is evident that the surveyor has assessed the loss to the tune of Rs.51,400/-. In the case of United India Insurance Co. Ltd. Vs. Deen Dayal, II (2009) CPJ, 45 (NC), the Hon’ble National Commission has held that the surveyor’s report being important document cannot be brushed aside lightly without any material to contrary on record. Since in the present case, the report of the surveyor is well explained and detailed one, therefore, we are of the view that the OPs are liable to indemnify the complainant for the loss as assessed by the surveyor to the tune of Rs.51,400/- and not Rs.98,840/- ‘as claimed by the complainant. The OPs are also liable to compensate the complainant for the mental agony and physical harassment suffered by him alongwith litigations expenses. 

11.            In view of the aforesaid discussion, we hereby allow the present complaint and direct the OPs in the following manner:-

1. To pay Rs.51,400/- alongwith interest @6% per annum w.e.f. 09.5.2019 i.e. the date of filing the present complaint, till its realization.
2. To pay Rs.10,000/- as compensation for mental agony and physical harassment suffered by the complainant
3. To pay Rs.5,000/- as litigation expenses.

 

                The OPs are further directed to comply with the aforesaid directions jointly and severally within the period of 30 days from the date of preparation of certified copy of this order, failing which, penal action under Section 27 of the Consumer Protection Act, 1986, would be initiated against the OPs. Certified copy of this order be supplied to the parties, forthwith, free of cost, as permissible under Rules. File be indexed and consigned to the record-room.

Announced in open Forum:

Dt.:12.12.2019.                                                   (Neelam Kashyap)

                                                                        President.

 

       (Issam Singh Sagwal),  (Neelam)

        Member                     Member.