Before the District Consumer Disputes Redressal Forum, Rohtak.
Complaint No. : 383.
Instituted on : 13.08.2018.
Decided on : 24.02.2020.
Rohtash son of Hem Chander resident of Vilage Purkhash Rathi, Tehsil Gohana District Sonipat and at present resident of village Bhallout Tehsil and District Rohtak.
………..Complainant.
Vs.
- Royal Sundaram General Insurance Company Limited, Vishratnthi Melarm Towers No.2/319. Rajiv Gandhi Salai(OMR) Karapakkam, Chennai-600097, service be effected through its Divisional Manager, Office at Near Service Club, Civil Road, Rohtak.
- Royal Sundaram General Insurance Company Limited, through its Divisional Manager, Narayana Complex, Rohtak.
- Magma Fincrop Limited, Office at Magma House, 24 Park Street, Kolkara-700016, service be effected through its Divisional Manager, 2nd Floor, Narhana Complex, Civil Road, Rohtak..
……….Opposite parties.
COMPLAINT U/S 12 OF CONSUMER PROTECTION ACT,1986.
BEFORE: SH.NAGENDER SINGH KADIAN, PRESIDENT.
DR. RENU CHAUDHARY, MEMBER.
MS.TRIPTI PANNU, MEMBER.
Present: Sh.Devender Hooda, Advocate for complainant.
Sh.Sameer Ganbhir Advocate for opposite party no.1 & 2.
Sh.Gulshan Chawla, Advocate for opposite party. no.3.
ORDER
NAGENDER SINGH KADIAN, PRESIDENT:
1. Brief facts of the case are that complainant is registered owner of vehicle bearing registration No.HR-69C-6044 which was insured with the respondent vide policy no.VHP1290285000100 for the period 19.08.2016 to 18.08.2017 having IDV Rs.593274/- . The aforesaid vehicle was got financed by the respondent no.3. The alleged vehicle of the complainant was got stolen on 07.02.2017 but the same cannot be traced out by the complainant and he intimated the police and FIR No.65 dated 08.02.2017 was got registered in P.S. Timarpur, Delhi. Complainant also intimated the opposite parties within time in writing as well as verbally about the theft of said vehicle and lodged his claim with the opposite party no.1 & 2. Complainant submitted all the required documents and completed all the formalities as required by the respondents for disbursement of the claim amount of the complainant. But despite his repeated requests, opposite parties did not settle the claim of the complainant. Hence this complaint and it is prayed that opposite party No.1 & 2 be directed to pay the claim amount of Rs.593274/- alongwith interest and opposite party No.3 be directed to adjust the actual due amount of finance of said vehicle and to return the remaining amount to the complainant. Opposite parties be further directed to pay a further amount of Rs.50000/- as compensation on account of deficiency in service and Rs.11000/- as litigation expenses to the complainant..
2. After registration of complaint, notice was issued to the opposite parties. Opposite parties no.1 & 2 in their reply has submitted that complainant has failed to submit both the keys of the vehicle as required to submit to the answering respondent Insurance company. The vehicle of the complainant was unlocked and unattended at the time of alleged theft. The complainant has not provided the requisite documents as requested vide letters dated 09.02.2017, 13.02.2017 & 11.03.2017. The complainant has not taken reasonable care of the vehicle and the same is negligence on his paer and violation of terms and conditions of policy condition No.5. The claim of the complainant is not payable on account of breach of terms and conditions of Insurance policy. Even otherwise also, the vehicle is financed from Magma Fincorp. It is settled law that First charge of payment, if any is payable to the financer of the vehicle. That there is no deficiency in service on the part of opposite party. Opposite party prayed for dismissal of complaint with costs.
3. Opposite party No.3 in its reply has submitted that as per the hire purchase agreement dated 21.09.2016, the complainant was financed an amount of Rs.525548/- and he was to make the refund of the finance amount alongwith interest, totaling Rs.676800/- in total 47 EMI’s from 01.09.2016 to 31.07.2020, It will be pertinent to mention here that the complainant is habitual defaulter and has not paid the entire payment regularly, as per the terms and conditions of the agreement, the timely payment was essence of the contract and which the complainant has failed to comply. As per rule of IRDA, respondent no.1 & 2 are duty bound to pay insurance claim to the answering respondent as the vehicle in question was financed from the answering respondent and huge money of the answering respondent is involved and outstanding against the complainant.
4. Ld. counsel for the complainant in his evidence has tendered affidavit Ex.CW1/A, documents Ex.C1 to Ex.C11 and closed his evidence on 09.05.2019. Ld. counsel for the opposite party No.1 & 2 has tendered affidavit Ex.RW1/A, Ex.RW2/B, documents Annexure-1 to Annexure-15 and has closed his evidence on dated 14.10.2019. Ld. counsel for the opposite party No.3 has tendered affidavit Ex.RW3/A, documents Ex.R3/1 to Ex.R3/5and has closed his evidence on dated 01.08.2019.
5. We have heard learned counsel for the parties and have gone through material aspects of the case very carefully.
6. In the present case insurance and theft of vehicle is not disputed. The claim of the complainant has been repudiated by the opposite party on the ground that complainant has failed to safeguard the vehicle at the time of theft and has violated the terms and condition no.5 of the policy as the complainant has failed to provide the second original ignition key. In this regard we have relied upon a case law of Hon’ble National Commission referred in case of United India Insurance Co. Ltd. Vs. Gian Singh reported in 2006CTJ(CP)(NCDRC), whereby it has been held that: “In a case of violation of conditions of the policy as to the use of the vehicle, the claim ought to be settled on a non standard basis. In paragraph 13 of the judgment in the case of National Insurance Co. Vs. Nitin Khandelwal reported in 2008(7) First appeal No.1169 of 2014 Hon’ble Court held that: “The respondent submitted that even assuming that there was a breach of condition of the insurance policy, the appellant insurance company ought to have settled the claim on non standard basis and the Hon’ble State Commission allowed 75% of the claim of the claimant on non standard basis. The said order was upheld by the Hon’ble National Commission and the Hon’ble Apex Court refused to interfere with the decision of the Hon’ble National Commission.
7. In view of the law referred above, which is fully applicable on the facts and circumstances of the case, it is observed that in case of violation of conditions of the policy, the claim ought to be settled on a non standard basis i.e. 75% of the IDVof the vehicle. As such, complaint is allowed and it is directed that opposite party No.1 & 2 shall pay 75% of IDV(593274/-) i.e. to pay Rs.444956/-(Rupees four lac forty four thousand nine hundred fifty six only) alongwith interest @9% p.a. from the date of filing the present complaint i.e. 13.08.2018 till its realization and shall also pay a sum of Rs.5000/-(Rupees five thousand only) as compensation on account of deficiency in service and litigation expenses in favour of the complainant and it is further directed that the alleged awarded amount shall be disbursed to the financer i.e. respondent no.3 Magma Fincrop Limited for settlement of loan amount of the complainant within one month from the date of decision, as the vehicle in question was got financed through responentno.3. However, opposite party No.3 is directed that after settlement of loan account of complainant, if any amount remains in excess, the same shall be refunded to the complainant.
8. 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:
24.02.2020.
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Nagender Singh Kadian, President
………………………………….
Renu Chaudhary, Member.
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Tripti Pannu, Member.
