District Consumer Disputes Redressal Commission ,Faridabad.
Consumer Complaint No. 673/2021.
Date of Institution:28.12.2021.
Date of Order:03.03.2023.
Lekhraj aged about 36 years son of Rattan Singh, R/o House No. DL-106, Village Sihi, Sector-8, District Faridabad.
…….Complainant……..
Versus
The New India Assurance Company Limited, Branch office (312701) Akash Cinema Complex, Mohna Road, Ballabgarh, District Faridabad through its Branch Manager/Principal Officer.
…Opposite party.
Complaint under section-12 of Consumer Protection Act, 1986
Now amended Section 34 of Consumer protection Act 2019.
BEFORE: Amit Arora……………..President
Mukesh Sharma…………Member.
Indira Bhadana………….Member.
PRESENT: Sh. Abdul Waheed, counsel for the complainant.
Sh.D.K.Gosoain, counsel for opposite party.
ORDER:
The facts in brief of the complaint are that the complainant was the registered owner of vehicle (Mahindra 265 DI tractor) bearing its registration No. HR-51-BP-0491,having its engine No. JEBB03172, Model 2016 insured with the opposite party vide insurance policy No. 3127011190100010983 which was valid from 19.03.2020 to 18.03.2021 for the sum assured of Rs.3,99,990/-. The said vehicle was the only source of livelihood of the complainant and his family members. On 24.09.2020 at about 9:30p.m, the driver of said vehicle/tractor parked the said vehicle in front of plot No. 41 BP, Neelam Bata Road, NIT, Faridabad with proper lock and in the morning of 25.09.2020 at about 10:00a.m. when the said driver, reached at the spot (where he parked the said vehicle), the said vehicle was not present at the spot and he searched here and there but the said vehicle could not be found and hence, he informed the complainant as well as also to the police of P.S.Kotwali and on which the matter was reported on the statement of said driver vide FIR No. 376 dated 27.09.2020 u/s 379 IPC at police station Kotwali. The complainant immediately informed the opposite party about the theft of the said vehicle and the complainant also submitted the documents as per demand and required by the opposite party. At the time of receiving the said documents, the representative of the opposite party assured the complainant, if the police could not search the said vehicle, the opposite party be disbursed the claimed amount to the complainant as per the terms and conditions of the policy and the complainant was advised by the opposite party to await police report u/s 173 Cr.P.C. i.e. final report to be submitted by the police of P.S. Kotwali, Faridabad. The police of P.S. Kotwali could not recover the said vehicle and filed a final report in the court and the complainant approached the opposite party for payment of insurance amount and submitted the requisite documents with the opposite party i.e. final report u/s 173 Cr.P.C. etc. The complainant contacted the concerned officials of the office of the opposite party and requested several times telephonically, by written requests, as well as personnel visits, but there was no satisfactory response from the opposite party and the concerned official avoided to accede to the request of the complainant on one pretext or the other and at last the opposite party repudiated the claim of the complainant verbally with false pretext. Even the complainant obtained NOC from finance company “Mahindra Finance” and from No. 35 and other required documents submitted with the opposite party. The aforesaid act of opposite party amounts to deficiency of service and hence the complaint. The complainant has prayed for directions to the opposite party to:
a) pay the above said vehicle insured amount of Rs.3,99,990/- alongwith interest @ 18% p.a. from the date its theft till its realization.
b) pay Rs.15000/- per day as loss of income.
c) pay Rs. 50,000/- as compensation for causing mental agony and harassment .
d) pay Rs. 11,000 /-as litigation expenses.
2. Opposite party put in appearance through counsel and filed written statement wherein Opposite party refuted claim of the complainant and submitted that upon intimation of reported theft of tractor NO. HR31-BP-0491, the opposite party appointed independent IRDA Licensed surveyor and loss assessor M/s. Active Claim Consultant to investigate the claim of the complainant, who conducted the investigation and submitted their investigation report alongwith the statement of complainant and Mr Virender (Driver of said vehicle) and as per the investigation report vehicle No. HR-51-BP-0491 after uloading material of a private company was parked at plot NO. 41 B.P. Neelam Bata Road, NIT Faridabad on 23.09.2020, the said vehicle was not in use on 24.09.2020. On 25.09.2020, the vehicle was found missing by the driver Virender s/o Shiv Ram, who lodged FIR with P.S.Kotwali bearing FIR No. 376 dated 27.09l2020. The complainant obtained insurance policy No. 31270131190100010983 for vehicle NO. HR-51-BP-0491 agriculture tractor and as per the registration certificate it was also registered at agriculture tractor but the same was being used for commercial purpose i.e. for carrying material of different company at different place on hire basis as admitted by the complainant and the driver Virender. The vehicle was left near plot NO. 41 B.P. Neelam Bata Road, NIT, Faridabad in an attended manner without taking care and safeguard of the insured tractor. Further the complainant was resident of village Sihi, Sector-8, Faridabad and driver Virender S/o Shiv Ram was resident of Sarurpur which were far off from the place where the tractor was left unattended. Opposite party denied rest of the allegations leveled in the complaint and prayed for dismissal of the complaint.
3. The parties led evidence in support of their respective versions.
4. We have heard learned counsel for the parties and have gone through the record on the file.
5. In this case the complaint was filed by the complainant against opposite party– The New India Assurance Co. Ltd. with the prayer to: a) pay the above said vehicle insured amount of Rs.3,99,990/- alongwith interest @ 18% p.a. from the date its theft till its realization. b)pay Rs.15000/- per day as loss of income. c) pay Rs. 50,000/- as compensation for causing mental agony and harassment . d) pay Rs. 11,000 /-as litigation expenses.
To establish his case the complainant has led in his evidence, Ex.C-1/A - affidavit of Lekhraj, Ex.C-1 –RC,, Ex.C-2 – Commercial Vehicle Package Policy, Ex.C-3 – FIR, Ex.C-4 – Antim report, Ex.C-5 - NOC, Ex.C-6 – Form-35, Ex.C-7 – repudiation letter,
On the other hand counsel for the opposite party strongly agitated and opposed. As per the evidence of the opposite party Ex.RW1/A – affidavit of Sh. Shashi Parkash, Senior Divisional Manager, The New India Assurance Company Limited, NH-5-R/2 NIT, Faridabad, Ex.R-1 – Commercial Vehicle Package Policy, Ex.R-2 – Repudiation letter dated 15.09.2021, Ex.R-3 – receipt.
6. In this case, the complainant was the registered owner of vehicle (Mahindra 265 DI tractor) bearing its registration No. HR-51-BP-0491,having its engine No. JEBB03172, Model 2016 insured with the opposite party bearing insurance policy No. 3127011190100010983 valid from 19.03.2020 to 18.03.2021 for the sum assured of Rs.3,99,990/-. On 24.09.2020 at about 9:30p.m, the driver of said vehicle/tractor parked the said vehicle in front of plot No. 41 BP, Neelam Bata Road, NIT, Faridabad with proper lock and in the morning of 25.09.2020 at about 10:00a.m. when the said driver, reached at the spot (where he parked the said vehicle), the said vehicle was not present at the spot and he searched here and there but the said vehicle could not be found and informed the complainant as well as also to the police of P.S.Kotwali and on which the matter was reported on the statement of said driver vide FIR No. 376 dated 27.09.2020 u/s 379 IPC at police station Kotwali. Opposite party has repudiated the letter vide Ex.C-7 on the ground that “as per investigation report vehicle No. HR51BP0491 after unloading material of a private company was parked at plot No.41, BP – Neelam Bata Road, NIT, Faridabad on 23.09.2020. The said vehicle was not in use on 24.09.2020 and on 25.09.2020 the vehicle was found missing. You have obtained insurance of your vehicle No. HR51BP0491 under the above mentioned policy 31270131190100010983 as Agriculture Tractor. The above tractor No. HR51BP0491 as per Registration certificate was also an agriculture tractor but it was being used for the commercial purpose (i.e. for carrying materials of different companies at different places on hire basis) as also admitted by you as well as the driver. In addition, the vehicle was left near plot NO. 41 BP, Neelam Bata road, NIT, Faridabad in an unattended manner without taking care and safeguard of the insured tractor.
7. After going through the evidence led by the parties, the Commission is of the opinion that the complaint is allowed on non standard basis.
8. For the adjudication of the present complaint and the issue therein, we place reliance on the Supreme Court Authority Amalendu Sahoo Vs. Oriental Insurance Company in Civil Appeal NO. 2703/2010 decided on 25.3.2010.
In Amalendu Sahoo’s case, there was violations of the Terms & conditions of the policy and the insurance benefits were denied by the insurance company. In the above mentioned case, further reliance was placed by the Supreme Court on:
a). New India Assurance Co. Ltd. Vs. Narayan Prasad Appa Prasad Pathak, and
b). National Insurance Company Vs. Nitin Khandelwal
Wherein it was observed by the Apex Court that the claim could have been settled on non standard basis in the event of any breach of condition upto 50%. Once the Insurance Company has insured the vehicle for the loss caused to the insured, the insurance company is liable to indemnify the owner. When there is breach of the condition of the policy, the insurance company ought to have settled the claim on non standard basis.
9. Following the aforesaid guidelines, this Commission is of the opinion that the insurance company cannot repudiate the claim in toto. The complaint is allowed for claim to be settled on non standard basis.
IDV value of vehicle Tractor/Trolly (3 lac plus 99,900) : Rs.3,99,990.00
Trolly : (-) Rs. 99,990.00
Less Excess Clause : Rs. 1,000.00
: Rs.2,99,000.00
Deduction 25% on non standard basis on total : (-) Rs. 74,750.00
Total : Rs.2,24,250.00
10 The opposite party is directed to pay Rs.2,24,250/- alongwith interest @ 6% p.a to the complainant from the date of filing of complaint till its realization. The opposite party is also directed to pay Rs.2200/- as compensation on account of mental tension, agony and harassment and Rs.2200/- as litigation expenses to the complainant. This payment will be subject to the condition that the complainant will furnish the subrogation letter, cancellation of RC, affidavit, Form 29,30 and Form 35. Compliance of this order be made within 30 days from the date of receipt of copy of order. File be consigned to the record room. Copy of this order be sent to the parties concerned free of costs.
Announced on: 03.03.2023 (Amit Arora)
President
District Consumer Disputes
Redressal Commission, Faridabad.
(Mukesh Sharma)
Member
District Consumer Disputes
Redressal Commission, Faridabad.
(Indira Bhadana)
Member
District Consumer Disputes
Redressal Commission, Faridabad.
