Haryana

Ambala

CC/481/2010

ASHWANI GUPTA - Complainant(s)

Versus

RELIANCE GENERAL INSURANCE COMPANY - Opp.Party(s)

YADVINDER GUPTA

18 Aug 2015

ORDER

       

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, AMBALA.

Complaint Case No.:  481of 2010

Date of Institution:     18.11.2010

Date of Decision  :     18.08.2015

Ashwani Gupta son of Sh. Ram Karan Gupta R/o VPO Shahzadpur-Majra, Tehsil Naraingarh, District Ambala (registered owner of Tavera bearing regn. No. HR37-C-1999).

                                                                                                ……Complainant.

Versus

Reliance General Insurance Company Ltd. 1^st & 2^nd Floor, SCO No.36-37, New Leela Bhawan, Patiala, District Patiala (Punjab) through its Branch Manager.

…..Opposite Party.

Complaint Under Section 12 of the Consumer Protection Act

CORAM:        SH. A.K. SARDANA, PRESIDENT.

                        SH.PUSHPENDER  KUMAR, MEMBER.

                                   

Present:          Sh. Yadwinder Gupta, Adv. counsel for complainant.

                        Sh. Mohinder Bindal, Adv. counsel for Op.

ORDER:

                        Complainant has filed the present complaint alleging therein that he is owner of Tavera Car bearing regn. No.HR-37C-1999 which was duly insured with OP-company vide policy No.2010492311001655  for the period effective from 07.11.2009 to 06.11.2010 and premium of the insurance  was paid  by complainant as per demand of the OP @ insured declared value (IDV) of the vehicle as Rs.7,07,400/-. The complainant further submitted that  on 13.01.2010 at about 8.00 P.M., he parked his vehicle  in the parking of USA Garden Restaurant, Panjokhra, District Ambala after properly locked and under the supervision of security deputed by the owner of the restaurant.  After having finished their dinner at 12.30 A.M. (intervening night of 13.01.2010 &14.01.2010), complainant approached the parking & found that the car was missing from the parking. Matter was reported to the Police Station Panjokhra  at about 2.00 P.M. on 14.01.2010 after searching the vehicle at his own level.  Police registered  a case against unknown person under Section 379 IPC vide FIR No.1 dated 14.01.2010. Intimation regarding theft of vehicle was given to Financer of the vehicle as well as to Op insurer immediately and the OP registered insurance claim vide No.210103840.    Vide letter dated 02.04.2010, Op sought some information from the complainant which was duly furnished to the OP company. Since, the vehicle could not be recovered by the police, hence, a closure report  was submitted by police before the Illaqa Magistrate, Ambala which was duly accepted by the court vide order dated 07.09.2010. The complainant has alleged that despite  completing all the formalities sought by the OP-insurance company, they have failed to settle the claim of complainant.  Hence, the present compliant has been filed seeking relief as mentioned in prayer clause.

2.                     Upon notice, Op appeared through counsel and filed  written statement raising preliminary objections qua non-maintainability of complaint as the vehicle was being plied for commercial use, concealment of material facts &  no cause of action etc. On merits, OP admitted that the vehicle in question was insured with them vide certificate number 2010492311001655 for the period effective from 07.11.2009 to 06.11.2010 against the IDV of Rs.6,82,400/- which was much more than its actual value subject to certain terms & conditions of the insurance policy.  OP further urged that the complainant fraudulently procured the said insurance policy on much higher value by concealing the fact of earlier major accident involving the vehicle in question wherein he availed the claim benefit of Rs.3,10,941/- from the Oriental Insurance Company Ltd. On receiving information of theft from the complainant, M/s Royal Associates was appointed as investigator but the complainant did not cooperate him despite writing of letters by  investigator as well as by insurance company dated 02.04.2010,02.06.2010 and 12.07.2010 requesting the complainant to provide non-traceable report, NCRB letter etc. and no objection certificate from his financer i.e. Magma Finance Corporation and resultantly the claim of complainant was filed as ‘no claim’ as it was clearly mentioned in letter dated 12.07.2010  that the complainant must complete the requirements within 10 days from the receipt of the letter failing which his file shall be closed as “No Claim” without giving any further notice. Thus a prayer for dismissal of the complaint with costs has been made by the OP.

3.                     In evidence, the counsel for complainant tendered affidavit of  complainant as Annexure CW1/A alongwith documents as Annexures C-1 to C-7 and closed the same whereas on the other hand, the counsel for OP has tendered in evidence affidavit of Sh.Suresh C Bishoi, Manager as Annexure RX alongwith documents as Annexures R-1 to R-7 and closed the evidence on behalf of OP.

4.                     We have heard learned counsel for the parties and gone through the record very carefully.  Counsel for complainant reiterated the contents of complaint and contended that since the vehicle could be not be recovered by police, hence, a closure report was submitted by police to the Court which was accepted by the court vide order dated 07.09.2010. Counsel for complainant further argued that despite completing all the formalities sought by the OP-insurance company, Op has failed to settle the claim of complainant.  Counsel for complainant in support of his case has relied upon case law titled as Niharika Maurya Vs. New India Assurance Company Ltd. & Ors. 2011(2)CPC Page 420 (NC) wherein it is held  that-The vehicle was snatched by miscreant from the driver at gun point-Respondent company settled the claim at non-standard basis at Rs.2,36,500/- as full and final settlement-District Forum allowed the complaint and directed  insurer to pay balance claim of  Rs.244105/- with 10% interest –But State Commission reversed the order with observation that vehicle was being used for commercial purpose-Revision filed-held, impugned order is  not sustainable as fact of commercial purpose not proved from facts of the case-No breach of conditions on the part of complainant proved-Mere execution of discharge certificate would not disentitle claimant for compensation-Order of State Commission set aside-Revision allowed. Counsel for complainant further relied upon another case law titled as National Insurance Co. Ltd. Vs. Nitin Khandelwal 2008(3)RCR(Civil) Pg.193 (SC) wherein it is held that “Car insured for personal use, but used as Taxi-Theft of car-Insurance Co. cannot reject the claim on ground  of breach of contract”.  Counsel for the complainant further urged that by not settling the claim of complainant, OP is deficient in providing proper services to the complainant as well as has played unfair trade practice with him.

 5.                    On the other hand, counsel for the Op not disputed the fact that the vehicle in question was insured with them vide certificate number 2010492311001655 for the period effective from 07.11.2009 to 06.11.2010  against IDV of Rs.6,82,400/- subject to certain terms & conditions of the insurance policy but urged that  the complainant fraudulently procured the said insurance policy on much higher value by concealing the fact of occurring of accident of the vehicle in question prior to it whereby complainant has received a claim of Rs.3,10,941/- from the Oriental Insurance Company Ltd. However, on receiving of information of theft from the complainant, M/s Royal Associates was appointed as investigator but the complainant did not cooperate them despite various correspondence by  investigator as well as by OP-insurance company requesting the complainant to provide non-traceable report, NCRB letter etc. and no objection certificate from his financer i.e. Magma Finance Corporation and at last, in the letter dated 12.07.2010, it was clearly mentioned that the complainant must complete the requirements within 10 days from the receipt of the letter failing which his file shall be closed as “No Claim” without giving any further notice. Hence, the complainant cannot take advantage of his own wrong and his claim was rightly closed by OP company.  In support of his arguments, counsel for OP submitted a case law titled as National Insurance Company Ltd. Vs.Meena Aggarwal reported in ACJ 2009 Pg.666 (SC) wherein it is held that “Motor insurance-Damage to vehicle-Repudiation of claim-Van was damaged in accident-an insured claimed damages-claim was rejected by insurance company on the ground that driver was not possessing a valid driving licnece and the van, a private vehicle insured for personal use, was being used as Taxi for hire-owner filed complaint before District Forum under Consumer Protection Act which was rejected-State Commission declared the claim as ‘non-standard’ and held that there was no fundamental breach of terms of policy and directed the insurance company to pay Rs.90,000/-.  National commission held that even though vehicle was being used as commercial purpose and driver had no valid licnece, there was no fundamental breach of terms of policy and dismissed the revision filed by insurance company- Hon’ble Supreme Court of India held that looking from all angles, impugned orders of the State Commission and the National Commission are unsustainable and deserves to be set aside, which we direct and Insurance Co. was justified in repudiating the claim.”

6.                     At the very outset, it is admitted fact on record that a comprehensive policy in question (Annexure C-1) was issued by OP insurance company qua the vehicle in question  against the Insured Declared Value of Rs.6,82,400/- plus Rs.25,000/- against IDV of Non-Electrical Accessories totaling Rs.7,07,400/- and the theft of the vehicle in question took place on midnight of 13.01.2010/14.01.2010 and the FIR regarding theft of vehicle was also lodged by the complainant with police authorities on the same day without any delay.  Further, it is also not in dispute that the Police Authorities have submitted  the untraceable report of the vehicle in question i.e. HR37C-1999 (Annexure C-4) in the court of Illaqua Magistrate  which was duly accepted by the court vide order dated 07.09.2010 (Annexure C-5).

                        The main objection of the Op in not settling the claim of the complainant is that  the complainant has neither completed all the formalities  nor submitted the requisite papers as sought  vide letters  dated 02.04.2010 (annexure R-7), dated 02.06.2010 (Annexure R-2) and dated 12.07.2010 (Annexure R-1) by the OP company due to lack of which, the OP closed the file of complainant as ‘No Claim’.

                        From perusal of documents placed on record by complainant vide application dated 09.07.2013 as Annexures C-8 to C-19, it reveals  that complainant has submitted all  the requisite documents/papers to the OP company.  Besides this, from the report of Surveyor placed on record by the OP vide application  dated 16.07.2013 as Annexure R-8, it  transpires that the complainant has handed over two keys as well as other relevant documents required for settlement of the claim to the Investigator i.e. Royal Associates deputed by OP company to investigate the matter in question. Moreover, the counsel for the OP on 08.07.2015 has also tendered a statement before this Forum that “they are ready to  disburse the claim in question on non-standard basis from inception of the case as well as today and if the said claim ordered on non-standard basis by the Forum, then they have no objection for the same”.  

7.                     From the facts discussed above as well as from the statement tendered by the OP’s counsel, it is clear that the complainant has fulfilled all the required formalities of the OP company for settlement of the claim. Now, the next question arises for consideration before the Forum is that “Whether the complainant is entitled for Comprehensive claim of the vehicle in question or on non-standard basis”.  If we assume the version of the OP that the vehicle in question was being used for commercial purpose in violations of terms of policy, then the complainant is entitled for claim of Insurance on Non-standard basis but said version of OP is devoid of merits as the OP has failed to file any document or affidavit of any independent witness on the file wherefrom it is proved that the vehicle in question was being driven as Taxi by complainant for commercial purpose. Further the Hon’ble Supreme Court of India in case titled as National Insurance Co. Ltd. Vs. Nitin Khandelwal (supra) has specifically held that “In the case of theft of vehicle, breach of conditions is not germane. The appellant insurance company is liable to indemnify the owner of the vehicle when the insurer has obtained comprehensive policy for the loss caused to insurer.” Besides it, in the case titled as Niharika Maurya Vs New India Assurance Co. Ltd. & Ors (supra) Hon,ble National Commission has also held that “the OP cannot settle the claim of the complainant on non-standard basis even as the vehicle is driven for commercial purpose.”

                        Therefore, in view of the discussion and case laws referred above, we are of the confirmed view that the OP company did not settle the claim of the complainant on false & frivolous grounds  and the statement tendered by OP counsel offering the complainant qua settling of  claim of vehicle in question on non-standard basis is not justifiable in the eyes of law.  It is on record that the vehicle in question was financed by Magma Finance Corpn.  Ltd. at the time of Registration of vehicle but from the perusal of documents i.e. photocopy of application Form No.35 as well as No Objection Certificate issued by the said Finance Co., it reveals that the complainant has deposited all the loaned amount and the said company has also issued NOC and Form No.35 etc. to the complainant and on the basis of these documents, HPA has also been cancelled on 10.06.2010 by the Registering Authority (Annexure C-14) and as such, the complainant alone is entitled for insurance claim of vehicle in question as per IDV alongwith compensation/damages etc. for harassment which he suffered for a long time.  Accordingly, we allow the present complaint and direct the Op to comply with the following directions within thirty days from the communication of this order:-

(a)       To release the insurance claim  amounting to Rs.7,07,400/- as per IDV to the complainant alongwith simple interest @ 9% per annum from the date of filing of complaint till its realization.

 

(b)       To pay Rs.10,000/- as compensation on account of harassment & mental agony etc. caused to complainant for a long period of about 5 years ( i.e. from the date of untraceable  report of the theft  of the vehicle to till the date of decision) by the negligent act of insurance company.

(c)       To pay Rs.10,000/- as punitive damages on account of unfair trade practice committed by the OP insurance company by wrongly withholding the claim of the complainant.

(d)       To pay Rs.10,000/- as costs for unwanted litigation including the advocate’s fee etc.

                   Further the award in question/directions issued above must be complied with by the OP  within the stipulated period failing which all the awarded amounts  shall further attract simple interest @ 12% per annum for the period of default. So, the complaint is decided in above terms. Copies of this order be sent to the parties concerned, free of costs. File be consigned to the record room after due compliance.            

                                                                                                                   Sd/-

 Announced: 18.08.2015                                                                (A.K. SARDANA)

                                                                                                            PRESIDENT

 

                                                                                                                        Sd/-                                                                                                                                                                                                   (PUSHPENDER KUMAR)

                                                                                                              MEMBER