| Final Order / Judgement | DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION PATIALA. Consumer Complaint No. 63 of 21.2.2018 Decided on: 4.3.2021 Hemant Kumar s/o Sh.Mali Ram, aged about 49 years R/o H.No.76-A, Vikas Colony, Patiala. …………...Complainant Versus The Oriental Insurance Company Limited, Sai Market, Patiala through its Senior Divisional Manager. …………Opposite Parties Complaint under Section 12 of the Consumer Protection Act, 1986. QUORUM Sh. Jasjit Singh Bhinder, President Sh.Vinod Kumar Gulati, Member Sh.Y.S.Matta, Member ARGUED BY Sh.Surinder Gupta, counsel for complainant. Sh.D.P.S.Anand, counsel for OP. ORDER JASJIT SINGH BHINDER,PRESIDENT - This is the complaint filed by Hemant Kumar (hereinafter referred to as the complainant) against Oriental Insurance Co. Ltd. (hereinafter referred to as the OP/s) .
Facts of the complaint - Briefly the case of the complainant is that he is the owner of Volkswagen Polo Car bearing registration No.PB-11-AX-3789 and has been getting insured the same from the OPs and lastly he got the vehicle insured for the period from 13.7.2015 to 12.7.2016 vide policy No.231200/31/2016/1521 for the sum insured of Rs.3,15,900/- and he has been using the same personally.
- It is averred that on 6.3.2016 at about 12.30PM, the car in question was taken by two unknown persons forcibly from fountain chowk ,Patiala for going to village Kale Khan District Kaithal and they started journey by driving from Patiala to Narwana. But on the way near village Kheri Lubana at Kalayat both of these unknown persons over powered the complainant on the pretext of urination and took away his vehicle .Complainant lodged the report with P.S.Civil Lines, Patiala vide DDR No.24 dated 7.3.2016 which was later on got converted into FIR No.108 dated 23.5.2017 U/s 356/379/120-B IPC. The complainant also intimated the OP on 7.3.2016 about the incident. It is further averred that on 18.11.2017 the Police Station Civil Lines, Patiala issued untraced report and the same was also supplied to the OP immediately alongwith other relevant documents.
- It is further averred that on 17.1.2018 he received letter from the OP stating therein that according to the investigation report of the surveyor the vehicle was insured as Private car whereas the same was using as taxi, and the OP has repudiated the genuine claim of the complainant, which caused mental torture, trauma, and agony to the complainant. There is thus deficiency in service as well as unfair trade practice on the part of the OP. Hence this complaint with the prayer to accept the same by giving direction to the OP to pay the sum insured value of the car i.e. Rs.3,15,900/- alongwith interest @24% per annum from the date of theft till actual payment; to pay Rs.50,000/- as compensation for causing mental agony and harassment and also to pay Rs.15000/- as costs of litigation.
Reply/written statement - Upon notice OP appeared through counsel and contested the complaint by filing written reply having raised preliminary objections that the complaint is not maintainable as the claim of the complainant has already been repudiated on the ground that the car in question was being used as taxi for commercial purpose though the same was insured under Private Car Package Policy, which amounts to major violation of terms and conditions of the policy and that this Hon’ble Forum has got no territorial jurisdiction to try the present complaint.
- On merits, it is submitted that D.O. Chandigarh had issued Private Car Package Policy of the car in question for the period from 13.7.2015 to 12.7.2016 for a sum of Rs.3,15,900/-in the name of the complainant for personal use. It is further submitted that the complainant was using the car for commercial purpose and not for earning livelihood. Further the complainant got registered DDR No.24 dated 7.3.2016 with Police Station Civil Line Patiala and FIR No.108 dated 23.5.2017 U/s 356/379/120 with the said police station to the effect that he was using the car as taxi and it was hired by two unknown persons and they snatched the car near village Kheri Lubana. It is further submitted that on receipt of intimation of loss on 11.5.2016, the OP deputed authorized investigation M/s Royal Associate Investigations who after investigating the matter submitted report dated 28.8.2017 mentioning therein that the insured was using the car as taxi at the time of theft, which amounts to breach of policy conditions. The complainant had himself made this statement before the Investigator. Thus the claim was repudiated rightly. There is no deficiency in service or unfair trade practice on the part of the OP. After denying all other averments, the OP prayed for the dismissal of the complaint.
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- In support of the complaint, the ld. counsel for the complainant has tendered in evidence Ex.CA affidavit of the complainant alongwith documents Exs.C1 to C11 and closed the evidence.
- On the other hand, the ld. counsel for the OP has tendered in evidence affidavit of Mukesh Malhotra Divisional Manager, Ex.OPA ,affidavit of Kashmir Singh, Investigator, Ex.OPB alongwith documents Exs.OP1 to OP4 and closed the evidence.
- We have heard the ld. counsel for the parties and have also gone through the record of the case, carefully.
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- The ld. counsel for the complainant that the complainant got his vehicle insured from the OP w.e.f.13.7.2015 to 12.7.2016 for the sum of Rs.3,15,900/-.The ld. counsel further argued that on 6.3.2016 at about 12.30PM the car was taken by two unknown persons forcibly from Fountain Chowk, Patiala for going to village Kale Khan District Kaithal and started journey from Patiala to Narwana and at village Kheri Lubana at Kalayat both of these persons over powered the complainant on the pretext of urination and snatched the vehicle .Immediately DDR No.24 dated 7.3.2016 was got registered which was converted into FIR No.108 dated 23.5.2017 under Sections 356, 379, 120 IPC. The ld. counsel further argued that the intimation was sent to the insurance company. Untraced report was also filed but the claim was rejected. The ld. counsel for the complainant has relied upon the judgment of the Hon’ble National Commission, New Delhi passed in the case titled as ICICI Lombard General Insurance Co. Ltd. & Anr. Vs. Chandrakant Ramanlal Panchal 2017(3) CLT 16 and 2017(4)CLT 278 New India Assurance Co. Ltd. Vs. Debi Prasad Doa and others.
- On the other hand the ld. counsel for the OP has argued that the claim was repudiated on the ground that the insured car was used as taxi for commercial purpose whereas the same was insured as Private Car Package Policy, which amounts to major violation of terms and conditions of the policy. The ld. counsel further argued that in the FIR it has been written that the car was being used as taxi. The ld. counsel for the OP has also relied upon the judgment IV(2017)CPJ 436(NC) Rajesh Kumar Vs. National Insurance Company Limited & Ors .
- To prove the case, the complainant has tendered his affidavit, Ex.CA and he has deposed as per the complaint, Ex.C1 is the letter written by Hemant Kumar to the insurance company,Ex.C2 is e-mail,Ex.C3 is claim intimation format, Ex.C4is policy in question,Ex.C5 is e-mail, Ex.C6 is a letter written by insurance company to Hemant Kumar, Ex.C7 is report of FIR and untraced report.
- Ex.C8 is important document in which it is mentioned by the complainant that he was using the car PB 11 AX 3789 under taxi, Ex.C9 is DDR report dated 7.3.2016 at 5.08hrs of P.S.Civil Line,Ex.C10 is copy of RC and Ex. C11 is Driving licence.
- On the other hand Sh.Mukesh Malhotra has tendered his affidavit,Ex.OPA and he has deposed as per the written statement, Ex.OPB is the affidavit of Investigator, Ex.OP1 is the insurance policy,Ex.OP2 is repudiation letter, Ex.OP3 Investigation report,Ex.OP4 letter written by SSP Patiala to S.P.Kaithal.
- In the present case, the complainant has stated that he got his vehicle insured from the OP and the vehicle was stolen on 6.3.2016 regarding which prompt DDR was got recorded and that DDR was changed into FIR and that FIR is on the file. As already stated above, it is mentioned that the complainant was using the car as a taxi. The OP in their written statement has stated that the claim has been repudiated that insured vehicle was being used as taxi for commercial purpose whereas the same was insured as Private Car Package policy, which is great violation of terms and conditions.
- A judgment has been quoted by the complainant of Hon’ble National Commission, New Delhi decided by Justice D.K.Jain,in which the following observations have been held:
“Insurance Claim- Repudiation on the ground that the vehicle in question having been used in violation to the terms of the Policy, namely, that being a private car, it was used for carrying the passengers-Held-Insurance company directed that the claim preferred by the complainant shall be settled on non –standard basis i.e. 75% of the admissible claim” In para No.5 of the judgment it was by the Hon’ble National Commission that they partly allow the appeal; set aside the impugned order and direct that the claim preferred by the complainant shall be settled on non-standard basis i.e. 75% of the admissible claim with interest @6% p.a. The OP has also cited the judgment of Hon’ble National Commission titled as Rajesh Kumar Vs. National Insurance Company Ltd. & Ors.wherein claim was repudiated as the vehicle was using as taxi but this judgment was passed on 20.2.2017 and the judgment cited by the complainant is the latest which was decided on 4th May,2017.So later view will be prevailing. - So taking into consideration all the facts and circumstances of the case, the complaint is allowed partly and insurance company is directed to pay 75% of the admissible claim to the complainant alongwith interest @6% p.a.from the date of repudiation till realization. No order as to costs. Compliance of the order be made by the OP within a period of 45 days from the date of the receipt of the certified copy of this order.
ANNOUNCED DATED:4.3.2021 Y.S.Matta Vinod Kumar Gulati Jasjit Singh Bhinder Member Member President | |
