Haryana

Sonipat

445/2013

RAVINDER - Complainant(s)

Versus

TATA AIS GEN. INS. - Opp.Party(s)

RAJESH KR.

21 Sep 2015

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM,

SONEPAT.

             

 

                             Complaint No.445 of 2013

                             Instituted on:24.09.2013

                             Date of order:01.10.2015.

 

Ravinder son of Dharam Pal, resident of village Sisana, tehsil Kharkhoda, Distt. Sonepat.

…Complainant.       

Versus

 

1.The Divisional Manager, Tata AIG General Insurance Co. Ltd. Ist Floor Lotus Tower, Community Centre, New Friends Colony, New Delhi-110025.

2.The Managing Director, TATA AIG General Insurance Co. Ltd., A-501, 5^th Floor, Building no.4, Infinity Park, Dindoshi Malad(E) Mumbai, Maharashtra-400097.

3.Indusind Bank Ltd, 2^nd Floor, B Block, Community Centre, Janakpuri, New Delhi through its Manager.

                                                …Respondents.

 

COMPLAINT UNDER SECTION 12 OF

THE CONSUMER PROTECTION ACT,1986

 

Argued by: Sh. Rajesh Dhull, Advocate for Complainant

 Sh. H.C. Jain, Advocate for respondent no.1 and 2.

           Sh. Ashish Garg, Advocate for respondent no.3.

 

Before-    Nagender Singh-President. 

          Prabha Wati-Member.

          D.V. Rathi-Member.

 

O R D E R

 

          Briefly stated the facts of the present complaint as per complainant are that the complainant had purchased a Tata Magic with temporary registration no.HR-99PD-Temp.6690 and the same was financed with respondent no.3 and was got insured with the respondent no.1 and 2 for the period w.e.f. 20.3.2013 to 19.3.2014 and unfortunately, on 5.4.2013 the said vehicle met with an accident and was totally damaged.  FIR no.84 dated 5.4.2013 u/s 279/337 IPC with PS Kharkhoda was registered.  The complainant made so many requests to the respondents to pay the insured sum of Rs.358017/- alongwith interest, but of no use whereas the complainant has submitted all the relevant documents and has completed all the required formalities of the respondents no.1 and 2.  The respondent no.3 has filed a civil suit against the complainant and one Jaipal who stood as a guarantor in the said loan taken by the complainant from respondent no.3 and the Arbitrator has pronounced his ex-parte judgment against the complainant to pay Rs.203337/- alongwith interest at the rate of 18% per annum to respondent no.3.  The non-payment of the claim amount by the respondents no.1 and 2 to the complainant amounts to a grave deficiency in service on their part and this wrongful act of the respondents no.1 and 2 have caused unnecessary mental agony and harassment to the complainant. So, he has come to this Forum and has filed the present complaint.

2.        The respondents no.1,2 and 3 have appeared through their respective counsel and have filed their separate written statement.

          The respondent no.1 and 2 in their written statement has submitted that surveyor M/s Uppal and Associates were appointed to inspect the vehicle and to assess the loss.  The surveyor has assessed the loss to the tune of Rs.1,42,481/-.  Further Suraksa Enterprises were appointed to verify the facts and during investigation, it was observed that the said vehicle was used for hire and reward and Jai Pal who was driving the said vehicle was carrying passengers.  The claim was rightly repudiated as there was violation of terms and conditions of the policy and thus, prayed for the dismissal of the present complaint.

          In reply, the respondent no.3 has submitted that the complainant has taken a loan of Rs.2,90,000/- from the respondent no.3 which was to be repaid in 47 monthly installments from 25.3.2013 to 25.1.2017.   The complainant approached the respondent no.3 and surrendered his totally damaged vehicle and stated that he is unable to deposit the installments and he has no objection if the respondent no.3 transferred the said vehicle in their name and adjust the sale proceed in the loan amount.  The respondent no.3, thus, has sold the said damaged vehicle for Rs.85000/- and the same was adjusted in the loan amount.  The respondent no.3 has initiated the arbitration proceedings against the complainant and the Arbitrator has passed an award dated 15.7.2014 of Rs.203337/- with cost of Rs.5000/-.  Thus, the respondent no.3 has prayed  that the present complaint may kindly be dismissed and if the same is allowed against respondents no.1 and 2, then the respondent no.1 and 2 be directed to first pay the insurance claim amount to respondent no.3 for settlement of financed outstanding amount as per the arbitration award dated 15.7.2014.

3.        We have heard the arguments advanced by both the learned counsel for the parties at length and have also gone through the entire relevant records available on the case file very carefully.

4.        Ld. Counsel for the respondent no.3 has submitted that the complainant has taken a loan of Rs.2,90,000/- from the respondent no.3 which was to be repaid in 47 monthly installments from 25.3.2013 to 25.1.2017.   The complainant approached the respondent no.3 and surrendered his totally damaged vehicle and stated that he is unable to deposit the installments and he has no objection if the respondent no.3 transferred the said vehicle in their name and adjust the sale proceed in the loan amount.  The respondent no.3, thus, has sold the said damaged vehicle for Rs.85000/- and the same was adjusted in the loan amount.  The respondent no.3 has initiated the arbitration proceedings against the complainant and the Arbitrator has passed an award dated 15.7.2014 of Rs.203337/- with cost of Rs.5000/-.  Thus, the respondent no.3 has prayed  that the present complaint may kindly be dismissed and if the same is allowed against respondents no.1 and 2, then the respondent no.1 and 2 be directed to first pay the insurance claim amount to respondent no.3 for settlement of financed outstanding amount as per the arbitration award dated 15.7.2014.

          Ld. Counsel for the respondents no.1 and 2 has argued that the claim was rightly repudiated by the insurance company since there was violation of the terms and conditions on the part of the complainant and the said vehicle was being used for hire and reward.

          On the other hand, ld. Counsel for the complainant has submitted that the vehicle in question has met with an accident during the validity of the insurance policy.  The complainant made so many requests to the respondents no.1 and 2 to pay the insured sum of Rs.358017/- alongwith interest, but of no use whereas the complainant has submitted all the relevant documents and has completed all the required formalities of the respondents no.1 and 2.  The respondent no.3 has filed a civil suit against the complainant and one Jaipal who stood as a guarantor in the said loan taken by the complainant from respondent no.3 and the Arbitrator has pronounced his ex-parte judgment against the complainant to pay Rs.203337/- alongwith interest at the rate of 18% per annum to respondent no.3.  The non-payment of the claim amount by the respondents no.1 and 2 to the complainant amounts to a grave deficiency in service on their part and this wrongful act of the respondents no.1 and 2 have caused unnecessary mental agony and harassment to the complainant.

          From the above arguments, it is gathered that the Arbitration proceedings were initiated by the respondent no.3 against the complainant and the Arbitration has passed the award dated 15.7.2014 of Rs.203337/- with cost of Rs.5000/- against the complainant.  It is also gathered that on the request of the complainant, the respondent no.3 has sold the vehicle in question to the tune of Rs.85000/- and the said amount was adjusted towards the account of the complainant.

          Now coming to the merits of the case, whether the complainant is entitled to get any relief against the respondents or not and if so for what amount?

          In the present case, one thing is clear that the vehicle was total loss, that’s why the respondent no.3 has sold the vehicle for Rs.85000/-.  The contention of respondents no.1 and 2 for repudiation of the claim of the complainant is that the vehicle was being used for carrying passengers on the basis of hire and reward.  Ld. Counsel for the respondents no.1 and 2 has argued on this point while relying on the statement of Kavita wife of Jai Bhagwan (R-4/A), Satyawan son of Anoop Singh(R-4B).

          But on the contrary, Kavita wife of Jai Bhagwan  and Satyawan son of Anoop Singh has tendered their affidavit as Ex.CW2/A and Ex.CW3/A and both the above persons in their affidavits have specifically deposed that Ravinder son of Dharam Pal and Jai Pal son of Sarup Singh did not receive any fair from the occupants of TATA Magic as they are attending their personal function of the said Jai Pal and Ravinder, both residents of village Sisana, tehsil Kharkhoda.  One agent of the insurance company came at our house and obtained signatures on some blank papers for the purpose of settling the claim.

          In our view, the evidence of Kavita wife of Jai Bhagwan and Satyawan son of Anoop Singh fully supports the case of the complainant and from the contents of these affidavits, it is no where proved that the vehicle in question at the time of accident was carrying passengers or it was being used for hire and reward by the complainant.  Rather it is specifically deposed by both these persons that One agent of the insurance company came at our house and obtained signatures on some blank papers for the purpose of settling the claim.

          So, in our view, the respondents no.1 and 2 cannot get any benefit of the statements which were recorded by their surveyor.

          In the present case, the surveyor has assessed the loss to the tune of Rs.1,42,481/-.  But this Forum failed to understand that when the vehicle was totally damaged and it was sold by the respondent no.3 for Rs.85000/-, then as to in what manner, the surveyor of the respondents no.1 and 2 has assessed the loss to the tune of Rs.1,42,481/-.  In our view, the assessment of loss made by the surveyor to the tune of Rs.1,42,481/- is wrong and justified. 

          In the present case, the vehicle was insured for Rs.358017/- with the respondents no.1 and 2 for the period w.e.f. 20.3.2013 to 19.3.2014 and the said vehicle has met with an accident on 5.4.2013 i.e. during the validity of the insurance policy.  So, in our view, the entitlement of the claim of the complainant towards the respondents no.1 and 2, has come to the tune of Rs.273017/- after deducting Rs.85000/- from the insured sum of Rs.358017/-.  So, definitely the respondents no.1 and 2 are liable to make the payment of Rs.273017/- towards the loss of the vehicle.

          Now the question arises before this Forum is, who is entitled to get the said amount from the respondents no.1 and 2?

          In the present case, the vehicle was financed with the respondent no.3, who has already sold the vehicle for Rs.85000/- and has adjusted the said amount towards the loan account of the complainant.  So, in our view, first entitlement to receive the amount is of the respondent no.3.   Thus, we hereby direct the respondent no.1 and 2 to make the payment of Rs.273017/- alongwith interest at the rate of 09% per annum from the date of filing the present complaint till its realization and further to compensate the complainant to the tune of Rs.5000/-(Rs.five thousands) for rendering deficient services, for causing unnecessary mental agony, harassment and under the head of litigation expenses.  We also hereby direct the respondents no.1 and 2 first to clear the loan liability of the respondent no.3 and after doing so, if any excess amount is found, the same be paid to the complainant.  However, after the above adjustment, if any amount is found due towards the complainant, then he will clear the loan liability of the respondent no.3 by paying the aforesaid amount, if any, towards the financed vehicle in question.

          With these observations, findings and directions, the present complaint stands allowed.        

          Certified copy  of this order be provided to both the parties free of costs.

          File be consigned after due compliance.

 

 

(Prabha Wati)        (DV Rathi)           (Nagender Singh)                    Member, DCDRF,             Member, DCDRF        President, DCDRF,

Sonepat.             Sonepat.             Sonepat.

 

ANNOUNCED 01.10.2015.