DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-II
Udyog Sadan, C-22 & 23, Qutub Institutional Area
(Behind Qutub Hotel), New Delhi-110016
Case No.325/2011
Sh. Rakesh Kumar Sharma
15, Krishan Kunj Extension, Part-II,
Laxmi Nagar,
New Delhi-110092 ….Complainant
Versus
TATA AIG General Insurance Co. Ltd.
Lotus Towers, 1st Floor, Community Centre,
New Friends Colony,
New Delhi-110025 ….Opposite Party
Date of Institution : 07.09.2011 Date of Order : 28.04.2018
Coram:
Sh. N.K. Goel, President
Ms. Naina Bakshi, Member
ORDER
The complaint was filed against the present OP and ICICI Bank Ltd. as OP No.2. However, the complainant gave up OP No.2 on 21.12.11 as unnecessary party. Therefore, the complaint is against the present OP only.
Facts of the case which are material for the purposes of deciding the present against are that the complainant is the owner of the vehicle No. DL3CBD0374 make Toyota Innova and had got the said car insured with the OP under Comprehensive Car Policy No.015104348300 for the period 07.11.10 to 06.11.11 for Rs.5 lacs; that on 16.01.2011 his other colleagues had taken the car in question to Khurja (U.P.) for attending a wedding ceremony and when the car being driven by Mr. Amit Kr., a friend of the complainant, reached at Bulandshehar (U.P.) it met with an accident while negotiating a sharp turn on the narrow road as Mr. Amit Kr. had suddenly spotted a funeral with gathering coming from the road side and in order to avoid any causality he lost the balance of the car and the car immediately fell down in the adjoining Canal; that all the occupants were pulled immediately from the car by the local residents and the car was pulled out with the help of the Crane and since there was no causality in the accident no FIR was lodged; that the matter was immediately brought to the notice of the OP who asked the complainant to take the vehicle to their authorized service station at Moti Nagar, New Delhi; that the complainant immediately took the car at authorized service station of OP at Moti Nagar for which he incurred expenses of Rs.5100/- (Rs.4800/- for transportation of the car plus Rs.300/- as parking charges) and left the car there. The complainant received a letter from the OP whereby he was informed about the repudiation of his claim on the false ground and by presuming that the vehicle probably had been hired for about Rs.8 to Rs.9 per km. and this was in breach of the terms and conditions of the policy. According to the complainant, the occupant Mr. Amit Kr. was his friend and other three were his colleagues and the car had been taken by Mr. Amit Kr. on account of his personal relationship with the complainant. Correspondence took place between the parties but to no effect. The car in question is in complete los and is parked in a parking near his house and he is paying parking charges of Rs.1,000/- per month w.e.f. 10.02.11. Hence, the complainant has filed the present complaint for issuing the following directions to the OP:-
“(a) The opposite Party No.1 be directed to pay the claim of sum insured of Rs.5,00,000/- under the policy and;
(b) The opposite Party No.1 be directed to pay the transportation and charges of Rs.5,100/- incurred in brining the car from Bulandshehar to Moti Nagar, New Delhi and;
(c) The opposite Party No.1 be directed to pay the parking charges of Rs.5,000/- (till date) paid by the complainant and;
(d) The opposite Party No.1 be further directed to pay a sum of Rs.50,000/- to the complainant for giving undue mental tension and harassment because of their refusal to pay the insured sum to the complainant within time.
(e) The opposite Party No.1 be further directed to pay the interest @ 18% p.a. from the date of accident on the principal amount of Rs.5 lakhs due from them till date of its re-payment to the complainant.
(f) To award the cost of proceedings of Rs.22,000/- as litigation charges.”
In the reply OP has inter-alia stated that the claim of the complainant was repudiated on the ground that the vehicle was insured under Private Vehicle Package Policy while the same was being used for commercial purpose which was in breach of the terms and conditions of the insurance policy i.e. “limitation to use”. It is stated that it was found that the vehicle was being used for hire and reward; that on further investigations by M/s Shailja Insurance Services a written statement was given by one Sh. Amit Kr. that three more persons were sitting in the vehicle at the time of accident; that to confirm it further the investigator met one Sh. Parveen Kr., a co-occupant at the time of accident who confirmed that the insured vehicle was hired by them to attend a marriage at the rate of Rs.8 - Rs.9 per km.; that also the investigator procured a visiting card which showed that the complainant was running a travelling agency in the name of M/s Monika Travels; that a letter dated 21.03.11 was sent to the complainant seeking his comments on the above violation of the policy terms and conditions; that, however, the reply dated 15.04.11 received from the complainant was not convincing enough and, hence, the claim of the complainant was repudiated vide letter dated 30.04.11. It is prayed that the complaint be dismissed.
Complainant has filed a rejoinder and has denied that the subject vehicle was being used for commercial purpose.
Complainant has filed his own affidavit in evidence. He has also filed the affidavits of Sh. Amit Kr., Sh. Praveen Kr. and Sh. Anurag Verma in evidence. On the other hand, affidavit of Sh. Mohd. Azhar Wasi, Head, North Zone Claims has been filed in evidence on behalf of the OP
OP has relied on the documents Ex. R1/1 (copy of the policy terms and conditions), Ex. R1/2 (copy of the investigator’s report) and Ex. R1/3 (copy of the repudiation letter).
However, we state here that on 24.08.15 while going through the file we found that the complainant had not marked Ex. Nos. on the documents. We also could not lay our hands on the documents of OP. Sh. P. Acharya Adv. of the OP sough an adjournment so that he may trace out the documents and the case was adjourned to 26.03.16. The documents are marked as annexure nos., by the complainant. After 24.08.15 none appeared on behalf of the OP. On 10.10.17, we heard the arguments on behalf of the complainant with liberty to the OP to advance the arguments within 3 days and reserved the case for orders. However, on 17.10.17 while going through the file for the purposes of dictating order we found that the documents relied on behalf of the OP are not on the record. The facts recorded in the order sheet dated 24.08.15 were also mentioned in the order sheet dated 17.10.17. However, with a view to afford an opportunity to the OP to file the documents on the record and to render justice between the parties we directed issuance of notice to the parties and also to their advocates for 20.11.17. Notice of pairavi issued to the OP herein for 20.11.17 was received back with the postal report “left”.
In view of these circumstances the OP has failed to file the documents on the record. We have again heard the arguments on behalf of the complainant and have also gone through the written arguments filed on behalf of the parties.
From the perusal of the affidavits filed on behalf of the complainant it becomes crystal clear that the vehicle in question was not hired by Mr. Praveen Kr. or the other occupants of the car and that the car had been taken on the basis of personal relationship of Praveen Kr. with the complainant. The onus to rebut this fact was on the OP. However, we do not have any hesitation in saying that the OP has failed to file any document or statement of any witness in this regard. The documents filed on the record on behalf of the complainant prove the averments made in the complaint. Therefore, we hold that the repudiation of the claim lodged by the complainant on the ground that the vehicle was being used for commercial purpose and the same was in violation of terms and conditions of the policy in question was not correct or justified. Hence, the OP committed deficiency in service in repudiating the claim of the complainant. Annexure C-1 is the copy of the insurance policy in question in which the IDV of the vehicle has been shown as Rs.5 lacs.
Even despite holding the OP guilty of deficiency in service we are unable to take the case to a logical conclusion, since from the pleadings of either of the parties we do not know whether it is a case of total loss or the claim had been lodged for cost of repairs. Neither the complainant nor the OP has filed the copy of estimate and/or repair cost of the vehicle in question of the authorized service station of Moti Nagar, New Delhi. The complainant has also not filed any document/ report to prove that it is a case of total loss. Therefore, we direct the OP to decide the claim lodged by the complainant on account of the above stated accident within 30 days from the date of receipt of copy of this order. In case the claim is for total loss the OP shall pay the amount of Rs.5 lacs or in case the claim is for the cost of repairs the OP shall pay the amount of the cost of repairs to the complainant.
In view of the facts and circumstances of the case we do not award any amount towards compensation and litigation cost to the complainant. The complaint is disposed off accordingly.
Let a copy of this order be sent to the parties as per regulation 21 of the Consumer Protection Regulations. Thereafter file be consigned to record room.
Announced on 28.04.18.
