Order by:
Sh.Amrinder Singh Sidhu, President
1. The complainant has filed the instant complaint under section 35 of the Consumer Protection Act, 2019 on the allegations that the complainant is owner of vehicle Maruti Swift Dsire VDI having Chassis No.389328 and Engine No. 1649125, Year of Manufacture: 2011 bearing Registration Certificate No.PB-28E-9798, with registration date: 26.07.2011 and the said vehicle is registered in the name of the complainant. Further alleges that the aforesaid vehicle of the complainant was insured with the Opposite Parties vide policy No.36110031190100001439 which was valid for the period w.e.f. 20.06.2019 to 19.06.2020 having Insured Declared Value of Rs.3,35,000/- and for this insurance the complainant has paid the premium of Rs.7700/- with the Opposite Parties, On 23.06.2019 i.e. at about 10.10 PM when the Complainant was going to Baba Budha Sahib (Tarn Taran) to drop the passengers and in the way, near Petrol Pump, Zira, the Complainant stopped his insured vehicle for passing urine at road side, then the passengers sitting in the insured car ran away by taking the vehicle in question and the Complainant shouted loudly. The Complainant in this regard lodged FIR No. 0059 dated 24.06.2019 with P.S.City Zira, The Complainant also immediately informed regarding the theft of the vehicle to the Opposite Parties. Thereafter, the Complainant searched the insured vehicle here and there, but could not succeed. The Complainant thereafter, lodged claim with the Opposite Parties vide Claim Intimation Letter dated 21.10.2019, copy of which is Annx.C6 and completed all the formalities as required by the officials of the Opposite Parties from time to time. Not only this, the Complainant also submitted to the Opposite Parties, the Non Traceable Report as required under section 173 CRPC regarding the vehicle in question on 02.03.2020 after collecting the same from SHO, P.S.Zira. The Complainant now surprised to receive a repudiation letter after a lapse of more than 1½ year from the date of lodging the claim i.e. letter dated July 27, 2020 which is just received by the Complainant in Second Week of January, 2021 in which the Opposite Parties have repudiated the genuine and rightful claim of the Complainant on the false and frivolous ground. The complainant approached the Opposite Parties time and again for making his genuine claim, but the Opposite Parties flatly refused to admit the rightful claim of the complainant. In this way, said conduct of the Opposite Parties clearly amounts to deficiency in service and as such, the Complainant is left with no other alternative but to file the present complaint. Vide instant complaint, the complainant has sought the following reliefs.
- The Opposite Parties may be directed to make the IDV value of the vehicle in question to the tune of Rs.3,35,000/- .
- The amount of Rs.50,000/- be allowed to be paid by the opposite parties on account of compensation due to mental tension and harassment caused to the complainant.
- The cost of complaint amounting to Rs.31,000/- may please be allowed.
- Opposite Parties be also directed to pay the damages on account of daily expenses to the tune of Rs.1000/- per day from the date of theft which comes to amounting to Rs.6 lakhs.
And any other relief to which this Hon’ble Consumer Commission, Moga may deem fit be granted in the interest of justice and equity.
2. Opposite Parties appeared through counsel and contested the complaint by filing the written version on the ground inter alia that the complaint is not maintainable; that there is no deficiency in service on the part of the Opposite Parties and that the complaint is absolutely false and frivolous. The claim of the complainant was immediately entertained, and investigated and after due application of mind, the same has been repudiated as per terms and conditions of the insurance contract and on the basis of investigation report of an independent surveyor M/s.Hexa Investigation & Auxiliary Insurance Services and n the basis of FIR lodged by the complainant after giving opportunity of being heard to the complainant. The complainant has himself breached the terms and conditions of the policy in question as the vehicle was being used as a taxi whereas the vehicle of the complainant is registered as a private car which amounts to gross violation of the condition of the insurance policy as to the limitation of use of vehicle for the purpose other than hire or reward. As the vehicle was being used as taxi and the passengers themselves have stolen the vehicle of the complainant, therefore, there is a nexus between the fact of the incident that the vehicle was used as a taxi and the taxi was stolen at the same time by its boarded passengers. Thus had the said vehicle not used as taxi then it would have not stolen. Moreover, the complainant himself left the vehicle with ignition keys on and lights off with four unknown passengers in the vehicle which amounts to gross negligence on the part of the complainant of the insured vehicle. On merits, the Opposite Parties took up almost the same and similar pleas as taken up by them in the preliminary objections. Remaining facts mentioned in the complaint are also denied and a prayer for dismissal of the complaint was made.
3. In order to prove his case, the complainant has tendered into evidence his affidavit Ex.C1 alongwith copies of documents Ex.C2 to Ex.C8 and closed his evidence.
4. On the other hand, to rebut the evidence of the complainant, Opposite Parties tendered into evidence affidavit of Smt.Sunita Mahajan Ex.OP1,2/1 alongwith copies of documents Ex.OP1 & 2/2 to Ex.OP1 to 2/8 and closed the evidence on behalf of the Opposite Parties.
5. We have heard the ld.counsel for the parties and gone through the documents placed on record.
6. During the course of arguments, ld.counsel for the Complainant as well as Opposite Parties have mainly reiterated the facts as narrated in the complaint as well as in the written statements respectively. We have perused the rival contentions of the parties and also gone through the record on file. The main contention of the ld.counsel for the complainant is that the insured vehicle of the complainant was stolen during the policy period and in this regard, the complainant immediate informed the Opposite Parties and thereafter, lodged the claim with the Opposite Parties, but the Opposite Parties repudiated the claim of the complainant on the false and frivolous grounds. On the other hand, ld.counsel for the Opposite Parties has repelled the aforesaid contention of the complainant and contended that the claim of the complainant was immediately entertained, and investigated and after due application of mind, the same has been repudiated as per terms and conditions of the insurance contract and on the basis of investigation report of an independent surveyor M/s.Hexa Investigation & Auxiliary Insurance Services and on the basis of FIR lodged by the complainant after giving opportunity of being heard to the complainant. The complainant has himself breached the terms and conditions of the policy in question as the vehicle was being used as a taxi whereas the vehicle of the complainant is registered as a private car which amounts to gross violation of the condition of the insurance policy as to the limitation of use of vehicle for the purpose other than hire or reward. However, we are of the view that even if the complainant has breached the terms and conditions of the policy in question by being plying the vehicle in question as taxi and breached the terms and conditions of the policy, even then the Insurance Company ought to have settled the claim of the complainant on “non standard basis” even if some of the conditions of the insurance policy are not adhered by the insured. In this regard, we are supported with judgment in case titled National Insurance Company Limited versus Kamal Singhal IV (2010)CPJ297 (NC) wherein the Hon'ble National Consumer Disputes Redressal Commission, New Delhi relying upon various decisions of the National Consumer Disputes Redressal Commission in the matter of (1) National Insurance Company Ltd. v. J. P. Leasing & Finance Pvt. Ltd. (RP No. 643/2005), (2) Punjab Chemical Agency v. National Insurance Company Ltd. (RP No. 2097/2009), (3) New India Assurance Co. Ltd. v. Bahrati Rajiv Bankar, (RP) No. 3294/2009) and (4) National Insurance Company Ltd. v. Jeetmal, (RP No.3366/2009) and also judgment of the Hon'ble Apex Court in the matter of Insurance Company Versus Nitin Khandewal IV (2008) CPJ 1(SC), held the breach of condition of the policy was not germane and also held further that : “the appellant Insurance Company is liable to indemnify the owner of the vehicle when the insurer has obtained comprehensive policy to the loss caused to the insurer”. The Hon'ble Supreme Court has further held that; “even assuming that there was a breach of policy, the appellant Insurance Company ought to have settled the claim on “non-standard basis.” Hon'ble Apex Court in back drop of these features, in these cases, allowed 70% of the claim of the claimant on the “non-standard basis”. This view was again reiterated by the Hon'ble Apex Court in the matter of Amalendu Sahoo versus Oriental Insurance Company Limited. II(2010) CPJ 9(SC)=II (2010)SLT 672. Hon'ble National Commission in the case National Insurance Company Limited versus Kamal Singhal referred to above relying upon the law laid down by the Hon'ble Supreme Court has held that;
“there being a long line of decisions on this score, we have no option but to uphold the finding of Fora below with modification that the claim be settled on 'non-standard' basis”, in terms of the guidelines issued by the Insurance Company. In case petitioner company fails to carry out the direction contained therein, the amount payable on 'non-standard' basis, shall carry interest @ 6% p.a from the date of expiry of six weeks till the date of actual payment”.
11. In such a situation the repudiation made by Opposite Parties regarding genuine claim of the complainant appears to have been made without application of mind. It is usual with the insurance company to show all types of green pesters to the customer at the time of selling insurance policies, and when it comes to payment of the insurance claim, they invent all sort of excuses to deny the claim. In the facts of this case, ratio of the decision of Hon’ble Apex Court in case of Dharmendra Goel Vs. Oriental Insurance Co. Ltd., III (2008) CPJ 63 (SC) is fully attracted, wherein it was held that, Insurance Company being in a dominant position, often acts in an unreasonable manner and after having accepted the value of a particular insured goods, disowns that very figure on one pretext or the other, when they are called upon to pay compensation. This ‘take it or leave it’, attitude is clearly unwarranted not only as being bad in law, but ethically indefensible. It is generally seen that the insurance companies are only interested in earning the premiums and find ways and means to decline claims. In similar set of facts the Hon’ble Punjab & Haryana High Court in case titled as New India Assurance Company Limited Vs. Smt.Usha Yadav & Others 2008(3) RCR (Civil) Page 111 went on to hold as under:-
“It seems that the insurance companies are only interested in earning the premiums and find ways and means to decline claims. All conditions which generally are hidden, need to be simplified so that these are easily understood by a person at the time of buying any policy.The Insurance Companies in such cases rely upon clauses of the agreement, which a person is generally made to sign on dotted lines at the time of obtaining policy. Insurance Company also directed to pay costs of Rs.5000/- for luxury litigation, being rich.
12. Now come to the quantum of compensation. Undisputedly, the IDV of the insured vehicle was Rs.3,35,000/- copy of the insurance policy is placed on record as Ex.C3. Hence, having regard to the position of the law, as has been laid down, by the Hon'ble Apex Court in the various decisions referred to here-in-above and also the view expressed by the Hon'ble National Commission, we are of the considered view that in the present case the complainant, if not entitled for the entire amount of IDV, the Insurance Company definitely ought to have settled the complainant's claim on 'non-standard basis”, which in the facts and circumstances taking the assistance of the view expressed by the Hon'ble Apex Court and also by the Hon'ble National Commission, we allow 70% of the assessed amount on 'non-standard' basis” of the IDV.
13. In view of the aforesaid facts and circumstances of the case, we allow the complaint of the Complainant partly and direct the Opposite Parties to make the payment of Rs.2,34,500/- (Rupees two lakh thirty four thousands five hundred only) i.e. 70% of the IDV of the insured vehicle of Rs.3,35,000/- to the Complainant alongwith interest @ 8% per annum from the date of filing the present complaint i.e. 23.02.2021 till its actual realization. The compliance of this order be made by the Opposite Parties within 45 days from the date of receipt of this order, failing which the complainant shall be at liberty to get the order enforced through the indulgence of this District Commission. Copies of the order be furnished to the parties free of cost. File be consigned to record room after compliance.
Announced in Open Commission.
Dated:15.06.2021.
