Haryana

Karnal

CC/420/2021

Landmark Infra - Complainant(s)

Versus

Universal Sompo General Insurance Company Limited - Opp.Party(s)

S.S. Moonak

03 Dec 2024

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, KARNAL.

 

                                                        Complaint No.420 of 2021

                                                        Date of instt.21.08.2021

                                                        Date of Decision:03.12.2024

 

Landmark Infra GN-2, Arya Nagar, Arainpura Road, Gharaunda, District Karnal, through its proprietor Shri Nagender Singh son of Shri Gajender Singh.

                                                                        …….Complainant.

                                              Versus

 

1.     Universal Sompo General Insurance Company Limited, through its Branch Manager, SCF 55, 3^rd Floor, Main Market, Sector-6, Karnal.

2.     Universal Sompo General Insurance Company Limited, through its Zonal Manager, SCO 9, First Floor, above Central bank of India, 55, 3^rd Floor, Sector-10, Panchkula (Haryana).  

 

                                                                  …..Opposite Parties

 

Complaint under Section 35 of Consumer Protection Act, 2019.

 

Before   Sh. Jaswant Singh……President.       

      Ms. Neeru Agarwal…….Member

      Ms. Sarvjeet Kaur…..Member

 

 Argued by: Shri Narinder Shandilya, counsel for the complainant.

                  Shri Anuj Gupta, counsel for the OPs.

 

                     (Jaswant Singh, President)

ORDER:   

                

                The complainant has filed the present complaint under Section 35 of the Consumer Protection Act, 2019 against the opposite parties (hereinafter referred to as ‘OPs’) on the averments that complainant is registered owner of a tralla bearing registration No.HR69C-4790, which was got insured with the OPs. The said tralla was being used for earning his livelihood by the complainant. On 16.08.2020, the said tralla was parked in the Truck Union, Sector-4, Karnal and due to corona restrictions, the vehicle was being plied sparingly, since there were many curbs of the State Government as well as Central Government. The vehicle was locked by the complainant. On 17.08.2020, at about 10:30 a.m., when the complainant went Truck Union, Karnal, the vehicle was not there. Even after searching, the complainant did not find the tralla, he immediately informed the police and lodged FIR No.0467 dated 17.08.2020 under Section 379 of IPC with Police Station, City, Karnal. The matter was also reported to the OPs. The OPs appointed a surveyor who conducted the spot survey and prepared the report. Necessary documents alongwith both the original keys were submitted to the office of OPs but despite repeated requests the OPs did not settle the claim of the complainant. On 15.06.2021, the complainant went to the office of OP No.2 at Panchkula and enquired about the claim and there he came to know that his claim has been closed and after persuasion, the official of OPs gave a letter dated 01.01.2021 whereby the claim was closed. The claim of the complainant has been closed wrongly and on the basis of false averments. In this way there is deficiency in service and unfair trade practice on the part of the OPs. Hence complainant filed the present complaint seeking direction to the OPs to pay Rs.22,00,000/- as IDV of the tralla in question alongwith 24% per annum interest from the date of theft till its final realization, to pay Rs.1,00,000/- on account of deficiency in service, mental pain, agony and harassment and towards the litigation expenses.

 2.            On notice, OPs appeared and filed their written version raising preliminary objections with regard to maintainability; jurisdiction; suppression of true and material facts; etc.  On merits, it is pleaded that complainant has got insured commercial vehicle and hence the complainant is not a consumer as defined under Consumer Protection Act. To process the claim, the company wrote registered letters dated 28.10.2020, 05.11.2020, 26.11.2020 21.12.2020, 01.01.2021 by which the following documents were asked :-

1.     Claim form duly filled with signed and stamped.

2.     Original RC and form No.26

3.     Vehicle purchase invoice

4.     NCRB report.

5.     CKYC form

6.     Form No.28, 29 and 30

7.     Form No.35 or NOC

8.     Final untrace report accepted by court.

9.     Loan statement of EMI amount.

but no response was received from the complainant for the reasons best known to the complainant. It is pertinent to mention here that in the letter dated 01.01.2021 that because the complainant had not supplied the necessary document as per reminder letters, therefore, the claim was being filed as ‘no claim’, entirely at risk and responsibility of the complainant. Hence, the present complaint is premature.  There is no deficiency in service and unfair trade practice on the part of the OP. The other allegations made in the complaint have been denied and prayed for dismissal of the complaint.        

3.             Parties then led their respective evidence.

4.             Learned counsel for the complainant has tendered into evidence affidavit of complainant Ex.CW1/A, copy of aadhar card Ex.C1, copy of RC Ex.C2, copy of insurance policy Ex.C3, copy of bank statement Ex.C4, copy of FIR Ex.C5, copy of letter dated 01.01.2021 Ex.C6, copy of untrace report Ex.C7 and Ex.C8, copy of screenshot of mobile phone Ex.C9, copies of toll free phone information Ex.C10 and Ex.C11, copy of email Ex.C12 and closed the evidence on 06.04.2022 by suffering separate statement.

5.             In additional evidence, learned counsel for the complainant has tendered copy of NOC issued by Kotak Mahindera Bank Limited Ex.C13 and closed the additional evidence on 10.08.2023 by suffering separate statement.

6.             On the other hand, learned counsel for the OPs has tendered into evidence affidavit of Miss Ankita Boss Ex.OPW1/A, copy of insurance policy Ex.OP1, copy of POS Goods Carryig package policy Ex.OP2, copy of notice dated 20.10.2020 Ex.OP3, copies of notices dated 05.11.2020, 26.11.2020, 21.12.2021, 01.01.2021, 08.12.2020, 21.12.2020 Ex.OP4 to Ex.OP9, copy of certificate Ex.OP10 and closed the evidence on 12.04.2023 by suffering separate statement.

7.             We have heard the learned counsel for the parties and perused the case file carefully and have also gone through the evidence led by the parties.

8.             Learned counsel for complainant, while reiterating the contents of the complaint, has vehemently argued that complainant purchased the vehicle in question for earning his livelihood and got insured with the OPs from 08.10.2019 to 07.10.2020, for the sum insured of Rs.22,00,000/-. During the intervening night 16/17.08.2020, the vehicle of the complainant was stolen. Intimation regarding theft was given to police as well as to the OPs. Complainant lodged the claim with the OPs and completed all the formalities to settle the claim. Complainant also submitted the untrace report to the OPs and during the pendency of the complaint, complainant cleared all the loan amount and also submits the No Objection Certificate to the OPs but OPs did not consider the same and closed the claim of complainant on the false and frivolous ground and lastly prayed for allowing the complaint.

9.             Per contra, learned counsel for the OPs, while reiterating the contents of written version, has vehemently argued that complainant used the vehicle in question for commercial purpose, hence complainant does not come under the definition of consumer. He further argued that OPs wrote various letters to the complainant to complete the formalities and submitted the required documents but complainant neither completed the required formalities nor submitted the documents. Thus, the claim of complainant has rightly been closed on 01.01.2021 by the OPs and lastly prayed for dismissal of the complaint.

10.             We have duly considered the rival contentions of the parties.

11.             Before going into the merits of the case, firstly we decide whether the complainant falls within the definition of “consumer” as per Consumer Protection Act, 2019 or not?

12.           The OPs have alleged that the vehicle in question was being used for commercial purpose. The onus to prove its version was relied upon the OPs, but OPs have miserably failed to prove its version by leading any cogent and convincing evidence that the vehicle was being used for commercial purpose. Rather, complainant has specifically mentioned in para no.2 of the complaint that the said tralla was being used for earning his livelihood. Only the commercial vehicle insured does not mean that the same is used for commercial purpose. In this regard, we placed reliance upon the case law titled as M/s Prabhu Dayal Trilok Chand Versus Oriental Insurance Company Limited and Anr. in consumer case no.908 of 2016 decided on 24.05.2022 of Hon’ble National Commission wherein the Hon’ble National Commission held that a contract of insurance is a contract of indemnity and, therefore, there is no question of commercial purpose in obtaining insurance coverage. The complainant is a consumer and the complaint is maintainable. Further, in case titled as M/s Paramount Digital Color Lab and Ors etc. Versus M/s Agfa India Pvt. Ltd. and Ors. etc. in civil appeal nos. 2109-2110 of 2018 decided on 15.02.2018 wherein the Hon’ble Supreme Court held that if person purchases goods for commercial purpose and such commercial purpose is for earning livelihood by means of self employment-Such person will come within definition of consumer-Appellant purchased machine for self employment- Quality of ultimate production of machine depends upon skill of person who uses machine-In case of exigencies, if person trains another person to operate machine so as to produce final product based on skill and effort in matter of photography and development, same cannot take such person out of definition of consumer.  In view of the ratio of the law laid down in the aforesaid judgments, facts and circumstances of the case, the present complaint is maintainable before this Commission.  Hence, plea taken by the OPs has no force.

13.           Admittedly, the vehicle in question was stolen during the subsistence of insurance policy. It is also admitted that the insured declared value (IDV) of the vehicle in question is Rs.22,00,000/-. It is also admitted that intimation of theft of vehicle was given to the Police as well as to the OPs without any delay.

14.           The claim of the complainant has been closed, vide letter Ex.C6/Ex.OP7 dated 01.01.2021 on the grounds, which are reproduced as under:-

1.     Claim form duly signed by insured.

2.     Original RC/ form No.26

3.     Vehicle purchase invoice

4.     NCRB report.

5.     CKYC form

6.     Form No.28, 29 and 30

7.     Form No.35 or NOC signed and sealed by financer if vehicle have any loan

                8.     Final untrace report accepted by court.

9.     Loan statement of EMI amount.

15.           Police prepared the untrace report Ex.C7 on 25.09.2020 and same was submitted before the ACJM, Karnal, which was accepted on 02.03.2021, vide order Ex.C8 dated 02.03.2021 by the Court of Harish Goyal, ACJM, Karnal.  The case of the complainant has been closed on 01.01.2021, vide closing letter Ex.C6/Ex.OP7 i.e. before accepting the untrace report by the Court. Thus, question for submitting the untrace report at the time of closing the claim does not arise at all. OPs should have wait the untrace report before closing the claim of the complainant.

16.           During the pendency of the present complaint, complainant has cleared the loan amount and submitted the No Objection Certificate Ex.C13 dated 05.07.2023. Hence, at the time of closing the claim, the loan has not been cleared and complainant was not in position to submit the no dues certificate to the OPs. Further, if the loan was not cleared at that time it is first right of the financer to recover the said loan amount and OPs could have paid the loan amount directly to the financer from the claim amount. Thus, the closing of the claim on the said ground is not justified.

17.           OPs have also alleged that complainant has not submitted the claim form, original RC/Form no.36, vehicle purchase invoice, NCRB report, CKYC form and Form no.28, 29 & 30. Complainant specifically stated that original RC was in the vehicle and same had also been  stolen with the vehicle.  Mostly remaining abovesaid documents are irrelevant and cannot in the way of deciding the claim of the complainant. Hence, the plea taken by the OPs has no force. Moreover, it is also unbelievable an insured whose personal interest is involved for such amount why he will not supply the untrace report to the insurance company for getting his claim amount and will indulge himself in unwanted litigations.

18.           Furthermore, nowadays it has become a trend of insurance companies, they issue the policies by giving false assurances and when insured amount is claimed, they make such type of excuses. Thus, the denial of the claim of complainant is arbitrary and unjustified. In this regard, we place reliance on the judgment of Hon’ble Punjab and Haryana High Court titled as New India Assurance Company Ltd. Versus Smt. Usha Yadav & others 2008 (3) RCR (Civil) 111, wherein the Hon’ble Punjab and Haryana High Court has held as under:-

“It seems that the Insurance Companies are only interested in earning the premiums which are rather too stiff now a days, but are not keen and are found to be evasive to discharge their liability. In large number of cases, the Insurance companies make the effected people to fight for getting their genuine claims. The Insurance Companies in such cases rely upon clauses of the agreements, which a person is generally made to sign on dotted lines at the time of obtaining policy. This is, thus pressed into service to either repudiate the claim or to reject the same. The Insurance Companies normally build their case on such clauses of the policy, but would adopt methods which would not be governed by the strict conditions contained in the policy”.

                Keeping in view that the ratio of the law laid down in aforesaid judgment, facts and circumstances of the present complaint, the act of the OPs while closing the claim of complainant amounts to deficiency in services and unfair trade practice, which is otherwise proved genuine one.

19.  

20.            Thus, as a sequel to abovesaid discussion, allow the present complaint and direct the OPs to pay Rs.22,00,000/- (Rs. twenty two lakhs only)  i.e. the IDV of the vehicle alongwith interest @ 9% per annum from the date of filing the complaint i.e. 21.08.2021 till its realization to the complainant. We further direct the OPs to pay Rs.25,000/- to the complainant on account of mental agony and harassment suffered by him and Rs.11,000/- for the litigation expenses. This order shall be complied within 45 days from the receipt of copy of this order. However, the complainant is also directed to complete all the formalities with regard to transfer/cancel of the RC of the vehicle in question. The parties concerned be communicated of the order accordingly and the file be consigned to the record room after due compliance.

Dated:03.12.2024

 

         President,

      District Consumer Disputes                            

      Redressal Commission, Karnal.

 

 

                   ( Neeru Agarwal)            (Sarvjeet Kaur)

                         Member                         Member