::BEFORE THE DISTRICT CONSUMER DISPUTES  REDRESSAL COMMISSION AT BIDAR::

                                                                C.C. No.14/2024.

                                                                                                                               Date of filing: 05.02.2024.

                                                              Date of disposal:11.09.2024.

P R E S E N Ts:-    

                                (1) Shri. Mabu Saheb H.Chabbi,                                                                                                               B.Com.,LL.B.,(Spl.),

                                                                               President.,  

                                (2) Kum. Kavita,

                                                               M.A.,LL.B.,(Spl.),  

                                                                         Member.

COMPLAINANT/S                     Mr.Subhash Hudage S/o Basavaraj Hudage,                                                   
                                                      Age:  about  years,Occ:Ariculture & Business,

                                                        R/o at #1-21, Dadagi, Near Hanuman Temple,
                                                      Dadagi village, Tq:Bhalki, Dist:Bidar.                                                  

                                                  (By.Sri.Gundreddy and

                                                   Sri.Bandeppa Advocate.)                             

V/s

OPPONENT/S                          1. The Manager/Authorized Person

                                                    HDFC ERGO GENERAL INSURANCE
                                                    COMPANY LIMITED, 1^ST FLOOR,

                                                    HDFC HOUSE, 165/166, BACKBAY
                                                    REDAMTION, H.T.PAREKH MARG,
                                                    CHURCHGATE, MUMBAI-400020.

                                             2.    The Manager/Authorized,

                                                    M/s Cholamandalm Investment and
                                                    Finance Company Limited, No.45,

                                                    Justice Basheer Ahmed  

                                                    Sayeed Building 2^nd Floor,

                                                    2^nd Line Beach, Moore Street, Parrys,

                                                    Chennai-60001.                                                                                     

                                                   (OP No.1 By Sri.V.M.Prakash and

                                                   OP No.2 Sri. S.M.Shetkar Advocate).
                                                             

                                                                 ::  J U D G M E N T  ::

By. Kum.Kavita Member.

The complaint is filed by the complainant under section 35 of the Consumer Protection Act 2019, against the opponents for the deficiency in service caused by not settling the claim of insurance of the complainant.  Hence, passed the following judgement. 

Brief facts of the complaint.

The brief facts of the complaint are as follows: -

2.         The complainant had purchased the vehicle Mahindra Goods Carrier bearing its Reg.No.KA.39/A-1540 and got insured with OP No.1.  The Op No.2 is the financier to the complainant for the said vehicle.  On 23.02.2022 the driver of the said vehicle parked in the complainant’s water plant area.  After completion of the work the complainant locked the main gate and went his house, on 23.02.2022 the complainant came to his water plant at about 8.00 am, then he saw that, some unknown persons broken the gate key and stolen the said vehicle Mahindra Goods Carrier, thereafter he searched for the vehicle and he found in CC Camera that, some unknown persons broken the main gate key and stolen the said vehicle.  The complainant has given complaint at Khatak Chincholi Police Station and case was registered in Cr.No.14/2022, against unknown persons, the police visited the spot and conducted investigation.  During the course of investigation the vehicle was not traced by the police and submitted “C” report before the court.  The complainant and his family members were depending upon the income the said vehicle and sustained loss due to theft of said vehicle.  The complainant approached the OP No.1 and requested to pay the insured amount to him as per the terms of the policy.  The complainant obtained huge loan from OP No.2 finance and now they are demanding to repay the entire loan amount.  The OP No.1 is liable to pay an assured amount based on the policy No.2315204332305300000, valid from 11.10.2021 to 10.10.2022, but the OP No.1 denied to pay the same based on untenable reasons.  The complainant got issued legal notice to the OP No.1 on28.01.2023 to pay the insured ID value of Rs.15,60,041/- to the complainant along with interest.  The OP No.1 has received the legal notice but, has not given any reply to the said notice, Hence, this complaint against the OPs for claiming the insurance amount based on the policy.   

3.         The notice issued by this commission to the OPs were served upon them and the OPs appeared through their counsels before this commission and filed their respective W.V., and the gist of the W.V. of OPs is as below.

Written Version of OP. NO.1

4.         The OP NO.1 has contended that, the complainant is not the consumer and there is no unfair trade practice played by the OP NO.1.  The policy was issued by the OP No.1 under policy No.2315204332305300 to the complainant relying upon the information provided in the proposal form.  The contents of Para No.3,4 and 5 of the complaint are all false and the same is denied by the OP No.1.  The OP No.1 admitted the fact that,   he has issued repudiation letter by intimating the denial of claim.  The theft of the vehicle of the complainant caused due to the negligent act of complaint, as the key was left in the insured vehicle at the time of theft and hence the complainant violated the condition NO.4 and 8 of the policy.  The complainant has not taken any steps to safe guard the insured vehicle from the loss or damage.  The complainant has not submitted the original keys before the OP No.1 or before the Hon’ble Commission  for the reason that, the key was let inside the insured vehicle while the same was stolen from the insured.  After receipt of the claim application from the complainant the OP No.1 asking for the documents and also appointed the investigator to look into the cause of loss.  Accordingly after investigation the investigator has produced the report and there is no cause of action for the complaint hence, prayed to dismiss the complaint. 

Written Version of OP. No.2.

5.         It is true that, the complainant has availed the loan from the OP No.2 for the purchase of vehicle and it is still hypothecated with the OP No.2.  It is unaware that, the vehicle of the complainant was stolen by someone on 23.02.2022.  It is duty of the complainant to inform the same to the OP No.2 soon after the theft.  The complainant has arrayed this OP No.2 only to escape from the liability of EMI’s of the vehicle.  Hence, the complaint is liable to be dismissed.  The repudiation of the claim of the complainant by the OP No.1 is illegal and is liable to be set aside.  The complainant has barrowed the loan of Rs.14,00,000/- from the OP No.2 to purchase the said vehicle and agreed to pay in 47 monthly installments, as on today the complainant is due for Rs.12,66,004/- to the OP NO.2 with interest and other charges.  The complainant executed a loan come hypothecation agreement in favour of OP NO.2.  As per the loan agreement the complainant become a defaulter.  If the Hon’ble Commission finds it judicious to allow the complaint, this OP No.2 would be entitled to the said claim money proportionate to the outstanding loan amount. 

Evidence of complainant.

6.         The complainant himself got examined as P.W.1 and got marked documents Ex.P.1 to Ex.P.6 which are as follows,

1. Ex.P.1-Copy of final report in Cr.No.14/2022 issued by Khatak Chincholi police.
2. Ex.P.2-Copy of legal notice issued by the advocate of the complainant to the OP No.1 dt:07.02.2023.
3. Ex.P.2(a)-Postal receipt.
4. Ex.P.3-Copy of policy schedule.
5. Ex.P.4-Copy of theft intimation letter to the ARTO Bhalki dt:02.03.2022.
6. Ex.P.5-Copy of permit issued by transport authority.
7. Ex.P.6-Copy of vehicle registration certificate.

Evidence of Opponents.

7.         One, Sri.Vishwanath S/o Revanna  Byakod, Executive legal of OP No.2 has been examined as R.W.1 by filing his evidence affidavit on behalf of OP No.2 and One Sri.Amal Josh Varghese S/o Varghese of M.O. of OP NO.1 has been examined  as R.W. 2 by filing his evidence affidavit,  and One Sri.Shakeer S/o Bashu D., the investigator of OP NO.1 has been examined  as R.W. 3 by filing his evidence affidavit and got marked 09 documents, those are as below. 

1. Ex.R.1-Copy of loan application.(4 pages)
2. Ex.R.2-Copy of loan agreement.(8 pages)
3. Ex.R.3-copy of schedule agreement.
4. Ex.R.4-Copy of insurance policy.(20 pages)
5. Ex.R.5- Copy of claim form.
6. Ex.P.6-Copy of letter issued by OP No.1 to the complainant on 01.03.2022.(2 pages)
7. Ex.R.7-Copy of reminder letter issued by OP No.1 to the complainant.
8. Ex.R.8-Copy of repudiation letter issued by OP No.1 to the complainant on 19.12.2022.
9. Ex.R.9-Copy of investigation report dt:07.04.2022.

Points/Issues.

8.         Heard the argument advanced by the parties.  On perusal of the pleadings and the documents of the parties, this commission raised the points for consideration as below;

1. Whether the complainant proves that, he is consumer to the OP No.1 and further proves the deficiency of service caused by not settling the claim of insurance?
2. Whether the complainant is entitled for any relief as sought in his complaint?
3. Whether the OP No.2 proved for the reimbursement of insurance amount in liu of loan due by the complainant?
4. What orders? 

9.         Our answers to the points raised above are as follows: -

1. In the affirmative.
2. In the affirmative.
3. In the affirmative.
4. As per the final order.

Points No 1 and 2.

10.       In order to decide the complaint issues, this commission discussed points/issues No.1 and 2 together, as each points are inter related to each other- as follows.

11.       In order to prove the case of the complainant the complainant has lead his evidence as P.W.1 by way of reiterating the complaint facts and got marked Ex.P.1 to Ex.P.06 documents on his behalf.  One,
Sri. Vishwanath S/o Revanna  Byakod, Executive legal of OP No.2 has been examined as R.W.1 by filing his evidence affidavit on behalf of OP No.2 and One Sri.Amal Josh Varghese S/o Varghese of M.O. of OP NO.1 has been examined  as R.W. 2 by filing his evidence affidavit inconsonance with their respective pleadings.  One Sri.Shakeer S/o Bshu D., the investigator of OP NO.1 has been examined as R.W. 3 by filing his evidence affidavit and got reiterated the contents of survey report and the Ops  got marked 09 documents to establish the defence. 

12.       The case of the complainant is that, The complainant had purchased the vehicle Mahindra Goods Carrier bearing its Reg.No.KA.39/A-1540 and got insured with OP No.1.  The Op No.2 is the financier to the complainant for the said vehicle.  On 23.02.2022 the driver of the said vehicle parked in the complainant’s water plant area.  After completion of the work the complainant locked the main gate and went his house, on 23.02.2022 the complainant came to his water plant at about 8.00 am, then he saw that, some unknown persons broken the gate key and stolen the said vehicle Mahindra Goods Carrier, thereafter he searched for the vehicle and he found in CC Camera that, some unknown persons broken the main gate key and stolen the said vehicle.  The complainant has given complaint at Khatak Chincholi Police Station and case was registered in Cr.No.14/2022, against unknown persons, the police visited the spot and conducted investigation.  During the course of investigation the vehicle was not traced by the police and submitted “C” report before the court.  The complainant and his family members were depending upon the income the said vehicle and sustained loss due to theft of said vehicle.  The complainant approached the OP No.1 and requested to pay the insured amount to him as per the terms of the policy.  The complainant obtained huge loan from OP No.2 finance and now they are demanding to repay the entire loan amount.  The OP No.1 is liable to pay an assured amount based on the policy No.2315204332305300000, valid from 11.10.2021 to 10.10.2022, but the OP No.1 denied to pay the same based on untenable reasons.  The complainant got issued legal notice to the OP No.1 on28.01.2023 to pay the insured ID value of Rs.15,60,041/- to the complainant along with interest. 

13.       The complainant has produced Ex.P.1 the copy of final report issued by Khatak chincholi police in Cr.No.14/2022 for the offence punishable u/s 379 of IPC  and submitted ”C” final report on 12.12.2022 before Addl. Civil Judge (Jr.Dn) and JMFC Bhalki, form the contents of Ex.P.1 we can see that the complainant has filed the complaint on 24.02.2022, regarding the theft of his vehicle committed by unknown person on 23.02.2022 while the said vehicle was parked in the premises of the property of complainant.  Further it is stated that, the unknown persons have break open the lock of the main gate and committed theft of vehicle of the complainant. 

14.       The OP No.1 contended in his W.V. that, the complainant left the key of the vehicle in the said vehicle and allowed the miscreants to take away his vehicle without any hurdle, thereby he has violated the terms of the policy, as the complainant has not taken any safe guards to protect his vehicle from the theft.  The contention of the OP cannot be accepted by this commission.  On going through the contents of Ex.P.1 it is revealed that, the complainant has taken much care to protect his vehicle by locking the main gate of the premises of his property and in the routine course it was parked in the said premises of the complainant.  However, the stealers have break open the lock of the main gate and entered in to the premises of the complainant. On going through the investigation made by the police in the Cr.No.14/2022, the complainant had taken much care to protect the vehicle in his premises by locking the main gate.  Hence, this commission cannot considered the contention of OP No.1 that, he has violated the terms and conditions of the policy.  

15.       The complainant has produced Ex.P.3 the copy of policy schedule, the OP No.1 also has produced the copy of policy as per Ex.R.4 with terms and condition of the policy, as per Ex.P.3=Ex.R.4 the ID value of the vehicle as on the date of policy i.e., on 11.10.2021 is Rs.15,60,041/-.  The complainant has submitted the claim form to the OP No.1 as per Ex.R.5 for settlement of his claim but, the claim was repudiated by the OP on 19.12.2022 as per Ex.R.8.  The OP No.1 has produced Ex.R.6 and Ex.R.7 the copy of letters issued to the complainant to produce the documents pertaining to the vehicle and the keys of the vehicle, but the OP No.1 has not produced any such document to show that, those letter Ex.R.6 and Ex.R.7 were served to the complainant.  Hence, it cannot be considered that, those letters have been served to the complainant. 

16.       The OP No.1 has produced Ex.R.9 the copy of investigation report and the OP No.1 also examined the investigator as R.W.3 and he has given evidence that the contents of investigation report are true and correct.  On going through Ex.R.9 investigation report it was reported that, on cross verification with the neighbours it was confirmed the theft of vehicle.  Further the investigator has opined that, the case of the complainant can be considered as per the provisions of insurance on the basis of records and report submitted by him.  On going through this Ex.R.9 there was no such impediment to the OP No.1 to settled the claim of insurance to the complainant.  But, the OP No.1 has repudiated the claim of the complainant without there being any proper reason and hence, the complainant is entitled for the insurance amount. 

17.       The OP No.1 has contended that, the complainant has not surrendered the keys of the vehicle.  but, as per the report of investigator under Ex.R.9 it was revealed that, one key of the vehicle was surrendered to the investigator at the time of investigation and another key was said to be left in the vehicle at the time of theft and it was further observed that, the main gate lock of the premises of the complainant was break open by the miscreants.  In view of this observation the contentions of the complainant have been supported with the investigator report as per Ex.R.9. 

Point No.3.

18.       The OP No.2 financier to the vehicle of the complainant produced Ex.R.1 the loan application of the complainant, Ex.R.2 copy of the loan agreement and Ex.R.3 the copy of schedule of agreement which is not denied by the complainant and hence, the complainant is in arrears of loan with OP.No.2.  The OP No.2 has also submitted his evidence affidavit as per R.W.1 and affirmed that, the complainant is having due with OP No.2 financier for Rs.12,66,004/- and with interest.  The complainant has to pay the loan due amount to the OP No.2, as the OP No.2 has produced Ex.R.1 to Ex.R.3 documents to substantiate its claim from the complainant.  The OP No.2 is entitled to recover his loan through the insurance amount as per the terms and conditions of agreement at Ex.R.2 and Ex.R.3 and the remaining amount of insurance has to be paid by OP No.1 to the complainant after adjusting the loan amount to the OP No.2.  In view of the above said discussion made in this Para, the OP No.2 has proved that, the complainant is having loan due amount to the OP No.2.  Accordingly we answered the point No.3 in favour OP No.2.

19.       In view of the above said discussion made by this commission we are of the considered opinion that, the complainant has proved his case as against OP No.1.  Accordingly we answered point No.1 and 2 in the affirmative in favour of complainant and answered point No.3 in the affirmative in favour of OP No.2 and proceed to pass the fallowing order. 

                                                                                                        ::ORDER::

        The complaint u/s 35 of CP Act 2019, filed by the complainant is hereby allowed in part along with costs and compensation.

            The OP No.1 is hereby directed to pay an assured amount of Rs.15,60,041/- (Rupees fifteen lakh sixty thousand forty-one only) based on policy No.2315204332305300000 with interest at the rate of 9% P.A. from the date of Ex.R.8 dt:19.12.2022 till the realisation of entire amount within 45 days from the date of this order to the complainant after adjusting the loan due amount to the OP No.2.

The OP No.1 is further directed to pay compensation of Rs.10,000/- for the sufferance and inconvenience caused to the complainant and Rs.5,000/- as litigation expense to the complainant.

In the event of insured vehicle traced by the complainant or at the instance of police, the said vehicle is hereby directed to hand over to the OP No.1.

            Intimate the parties accordingly.  

 (Typed to our dictation then corrected, signed by us and then pronounced in the open Commission on this 11^th day of September-2024).

Documents produced by the complainant.

1. Ex.P.1-Copy of final report in Cr.No.14/2022 issued by Khatak Chincholi police.
2. Ex.P.2-Copy of legal notice issued by the advocate of the complainant to the OP No.1 dt:07.02.2023.
3. Ex.P.2(a)-Postal receipt.
4. Ex.P.3-Copy of policy schedule.
5. Ex.P.4-Copy of theft intimation letter to the ARTO Bhalki dt:02.03.2022.
6. Ex.P.5-Copy of permit issued by transport authority.
7. Ex.P.6-Copy of vehicle registration certificate.

Document produced by the Opponent.

1. Ex.R.1-Copy of loan application.(4 pages)
2. Ex.R.2-Copy of loan agreement.(8 pages)
3. Ex.R.3-copy of schedule agreement.
4. Ex.R.4-Copy of insurance policy.(20 pages)
5. Ex.R.5- Copy of claim form.
6. Ex.P.6-Copy of letter issued by OP No.1 to the complainant on 01.03.2022.(2 pages)
7. Ex.R.7-Copy of reminder letter issued by OP No.1 to the complainant.
8. Ex.R.8-Copy of repudiation letter issued by OP No.1 to the complainant on 19.12.2022.
9. Ex.R.9-Copy of investigation report dt:07.04.2022.

Witness examined.

Complainant.:-

P.W.1- Mr.Subhash Hudage S/o Basavaraj Hudage,   (complainant).  

Opponent:- 

R.W.1- Sri.Vishwanath S/o Revanna  Byakod, Executive legal of OP No.2.

R.W.2- Sri.Amal Josh Varghese S/o Varghese of M.O. of OP No.1.

R.W.3- Sri.Shakeer S/o Bshu D., the investigator of OP No.1.