District Consumer Disputes Redressal Commission ,Faridabad.
Consumer Complaint No. 235/2020
Date of Institution:05.08.2020
Date of Order:07.08.2023.
Jaspal Singh Negi, S/o Shri Balram Singh Negi, R/o House NO. B-13, Dabua Colony, NIT, Faridabad. (Through LRs namely)
i. Smt. Seema negi W/o late Shri Jaspal Singh Negi
ii. Aditi Negi W/o Late Shri Jaspal Singh Negi
iii. Master Aditya Negi S/o late Shri Jaspal Singh Negi.
(All r/o House NO. B-13, Dabua Colony, NIT, Faridabad)
…….Complainants……..
Versus
1. United India Insurance Company Limited, Branch Office: Champa Bhawan, GT Road, Palwal – 121102.
2. Branch Manager, United Insurance Company Limited, Branch Office: Champa Bhawan, GT Road, Palwal – 121102.
…Opposite parties
BEFORE: Amit Arora……………..President
Mukesh Sharma…………Member.
Indira Bhadana………….Member.
PRESENT: Sh. G.L.Rawat, counsel for the complainants.
Sh. Sachinder Bhatia, counsel for opposite parties.
ORDER:
The facts in brief of the complaint are that the complainant purchased a Brand New Mahindra Tractor, having engine No. RHF2DBN7602 and chassis NO. MBNAAACFAHRG00366 from M/s. Dev Tractor, Delhi Mathura Bypass Road, Palwal – 121102 vide Tax Invoice No. 1501 dated 28.03.2018 for an amount of Rs.4,50,000/-. The above mentioned tractor was got financed form Mahindra & Mahindra Financial Services Ltd. (Mahindra Finance). Upon the purchase of the above mentioned tractor, the same was got registered with the Registration Authority, Faridabad whereby6 the Registration No. HR-51BS-7139was allotted and the registration certificate was issued mentioning the registration number and the engine and chassis numbers therein. The above mentioned tractor was insured from the opposite party M/s. United India Insurance Company Limited vide its Motor Insurance Miscellaneous Package Policy No.2221023117P118956064 covering the insurance risk from 28.03.2018 to 27.03.2019. Unfortunately on the intervening night of 06/07.03.2019, the above mentioned insured tractor No. HR-51BS-7139 make Mahindra was stolen away by some unknown person, when the tractor was parked near Om Sai Service Station, Opposite Magpie Tourist Complex, 17/6, Mathura Road, Sarpanch colony, Sector-20A, Faridabad which fact came to the knowledge of complainant at about 5.00a.m. The complainant intimated the police authorities regarding the theft of insured tractor at 5.00a.m. on 07.03.2019 itself by making a phone call at 100 to police control room (PCR). The complainant went to police post, Sector-15A, Faridabad to report the theft, whereby the police authorities flashed VT message and thereafter the police authorities registered the FIR No. 0133 date d07.03.2019 under section 379 IPC. The complainant intimated the opposite party insurer regarding the theft of the insured tractor upon which the opposite party registered the theft claim of the complainant. The complainant also intimated the theft of the insured tractor to the Regional Transport Authority requesting to not to issue NOC and or transfer of the tractor in the name of any other person. The opposite party appointed Shri B.P.Mehta, Investigator & Loss Assessor, resident of 417A, Hamilton Court, DLF-4, Gurugram, to investigate and assess the loss. Accordingly, one Mr. Sandeep, for and on behalf of Shri B.P.Mehra mentioned above visited the complainant and asked to complete the required formalities, for processing of the theft claim. Shri Sandeep mentioned above, handed over a form under the head of theft asking complainant to arrange the required documents. As per the requirement, the complainant handed over all the required documents to Shri Sandeep mentioned above. It was worth mentioning that Shri Sandeep also collected 2 original keys, VPR & FIR from the complainant against receipt dated 03.04.2019. As per the requirement of the opposite parties, the complainant also obtained report u/s 173 Cr.P.C submitted by the police authorities of police station Central, Faridabad The complainant also supplied the copy of letter issued by Mahindra Finance in the name of complainant regarding the removal of the hypothecation of the tractor in the record of the Regional Transport Authority and the insurer. To the utter surprise of complainant, despite completing all the required formalities at the end of the complainant, the opposite party No.2 sent a letter dated 12.06.2019 to the complainant mentioning that the theft claim file of the complainant regarding the theft of the insured tractor having claim No. 2221023118C050543001 undo policy NO.2221023117P118956064 stands closed on account of Serial No.1 & 3. Under going through the serial numbers 1 to 3, the complainant noted that the letter dated 12.06.2019 mentioned above was nothing but just frivolous and bogus letter issued for the repudiation of the theft claim. The complainant sent legal notice dated 05.07.2019 to the opposite party through registered post but all in vain. 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) make the payment of Rs.4,27,500/- to the complainant as insured amount of the insured tractor with interest @ 18% p.a. from the date of theft loss till its actual payment..
b) pay Rs. 50,000/- as compensation for causing mental agony and harassment .
c) pay Rs. 22,000 /-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 at the threshold of the allegations contained in the complaint that the FIR No. 0133 u/s 379 IPC dated 07.03.2019 lodged for the theft of insured vehicle and the same was being used for commercial purpose but the policy issued for agricultural use which clearly violates under the provisions of terms and conditions of the insurance policy as it covers towards only for agricultural for Misc. Package policy, as such the issue under the present complaint did not fall under the peri pheri of the provision of the Consumer Protection Act, 2019. The complainant had neither any cause of action nor locus standi to file the present complaint. The complainant filed the complaint for the theft of tractor bearing registration NO. HR-51-BS-7139 and the same was insured with the opposite party and on the investigating report of 06/07.03.2019 the said tractor was stolen by some unknown person when the trctor was parked and in this regard the complainant informed to the insurance company and the insurance company had deputed the investigator who was appointed through IDRA and after investigating the matter it came to know that at the time of alleged theft the complainant was using the said tractor for the commercial purpose for transportation of Submersible Pumps as per the statement and admission of the complainant given on03.04.2019 by the investigator wherein he admitted that he was running the business for loading and unloading the submersible pumps on this tractor. At the same time as per the insurance policy and the registration certificate of insured tractor was registered for the use of agricultural purpose and the insurance company issued the policy NO. 2221023117P118956064 valid from 28.03.2018 to 27.03.2019 under Misc. and Special type of vehicle-package policy which did not cover the commercial use of the insured vehicle. Further as per the investigation report and statement of the complainant the Insurance company issued the letter dated 04.07.2019 to the complainant by repudiating the claim stating that the said tractor was used for transportation purposes therefore as per the terms and condition No.8 of the insurance policy it had caused a breach of insurance policy’s condition, accordingly the above said claim had been closed as repudiated, hence in view of the above said claim had been closed as repudiated, hence in view of the above the complainant was not entitled for any claim and compensation from the insurance company and he insurance company had rightly repudiated the claim of the complainant as per the terms and conditions of the insurance policy. 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–United India Insurance Company with the prayer to: a) make the payment of Rs.4,27,500/- to the complainant as insured amount of the insured tractor with interest @ 18% p.a. from the date of theft loss till its actual payment. b) pay Rs. 50,000/- as compensation for causing mental agony and harassment . c) pay Rs. 22,000 /-as litigation expenses.
To establish his case the complainant has led in his evidence, Ex.CW1/A –affidavit of Ms. Seema Nwfi Wd/o Late Jaspal Singh Negi S/o Shri Balram Singh Negi R/o House No. B-13, Dabua Colony, NIT Faridabad, Ex.C1 – Tax invoice, Ex.C2 – RC.Ex.C3 – insurance company,, Ex.C-4 – FIR, Ex.C-5 - letter to Regional Transport Authority, Ex.C-7 – letter dated 03.04.2019,, Ex.C8 – photocopy of keys, Ex.C-9 – Antim report,Ex.C-10 –No Objection Certificate letter, Ex.C-11 – Form 35, Ex.C-12 – NO claim letter dated 12.06.2019, Ex.C-13 – legal notice,, Ex.C-14 & 15 – postal receipts.
On the other hand counsel for the opposite party strongly agitated and opposed. As per the evidence of the opposite party Ex.EW1/A – affidavit of Kailash Taneja, Deputy Manager, United India Insurance Company Ltd. DO-21, Faridabad, Ex.R-1 – FIR,, Ex.R-3 – Investigation report,, Ex.R-3 - letter dated 03.04.2019 to Legal Investigator, Ex.R-4 – insurance policy,, Ex.R-5 – repudiation letter dated 04.07.2019.
6. It is evident from letter dated 04.07.2019 in which it has been mentioned that “we are in receipt of investigator’s report and on perusal of investigator’s report it is observed that:
As per your statement dated 03.04.2019 you were using the said tractor for transportation of submersible pump i.e for commercial purpose.
Also the policy condition NO.8 also states that “the due observances and fulfillment of the terms, conditions and endorsements of this policy in so far as they relate to anything to be done or complied with by the insured and the truth of statements and answers in the said proposal shall be conditions precedent to any liability of the company to make any payment under this policy6”
Since the vehicle was being used for commercial, it has caused a breach of policy conditions. Accordingly, it has been decided by the competent authority to close he above claim as repudiated. We absolve ourselves from any further liabilities, arising out of this claim, which please note.”
As per the statement dated 03.04.2019 vide Ex.R3, the complainant was using the tractor for loading and un-loading the motor (submersible items) for his own work. It is meant for agricultural purposes not to loading and unloading purpose. Opposite party has failed to prove that the complainant was using the tractor in question for commercial purpose. In the interest of justice 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 33%. 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 : Rs.4,27,500.00
Less Excess Clause : Rs. 1,000.00
: Rs.4,26,500.00
Deduction 33% on non standard basis on total : - Rs. 1,40,745.00
Total : Rs. 2,85,755.00
10
. The opposite party is directed to pay Rs. 2,85,755/- 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.5500/- as compensation on account of mental tension, agony and harassment and Rs.5500/- 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:07.08.2023 (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.
