DISTRICT CONSUMER DISPUTES REDRESSAL FORUM,

BATHINDA

C.C. No. 284 of 26-09-2017

Decided on : 06-11-2019

Surinder Kumar aged about 48 years S/o Janak Raj, R/o H. No. 67, Ward No. 8, village Kotfatta, Tehsil Talwandi Sabo, District Bathinda. …...Complainant

Versus

1. Magma HDI General Insurance Company Limited/ Magma Fincorp Limited, Commercial Vehicle Class (GCV) Package Policy, Resident Magma House 24, Park Street, Kolkata 700016, West Bengal through its Managing Director

2. Magma HDI General Insurance Company Limited, R/o 1^st Floor, City Centre, G.T. Road, Tinkoni, Near Sepal Hotel, Bathinda 151 001 through its Branch Manager

.......Opposite parties

Complaint under Section 12 of the Consumer Protection Act, 1986.

Quorum :

Sh. M.P.Singh Pahwa, President

Smt. Manisha Member

Present :

For the complainant : Sh. H S Dhanoa, Advocate.

For the opposite parties : Sh. Varun Gupta, Advocate.

O R D E R

M. P. Singh Pahwa, President

1. Surinder Kumar, complainant (here-in-after referred to as 'complainant') has filed this complaint under Section 12 of the Consumer Protection Act, 1986 (here-in-after referred to as 'Act') against Magma HDI General Insurance Company, Kolkata and another (here-in-after referred to as opposite parties').

2. Briefly stated, the case of the complainant is that he purchased a Truck TATA LPT-2515 bearing Registration Number PB-03-W-47I7 in the year 2013. The vehicle was financed by opposite party No. 1 on 06-09-2013 for a sum of Rs. 7,45,550/-. Re-payment of schedule was monthly, which started from 20-09-2013 and was to stop on 20-08-2017. Thereafter complainant paid regular monthly installments of financed amount as per schedule of re-payment to the opposite party.

3. It is alleged that vehicle was comprehensively insured by the opposite parties from the date of its finance. The complainant, has been regularly taking this yearly insurance policy of the vehicle from the opposite parties. The said vehicle was firstly insured through policy Cover Note No. 121120040010012 for the period of 19-08-2013 to 18-08-2014, then it was insured through policy No. P0015400002/4103/113160 for the period 19-08-2014 to 18-08-2015 and thereafter policy No. P001641110002/4103/107054 for the period 19-03-2015 to 18-08-2516 by the opposite parties.

4. It is alleged that on 04-08-2016 the Truck of the complainant was stolen from Bathinda. The complainant lodged criminal complaint vide FIR No. 117 dated 07-08-2016 u/s 379, 201 IPC P.S. Canal Colony Bathinda. When the investigation of the above said FIR No. 117 was going on, this fact came to the knowledge of the police that in the FIR No. 210 dated 16-09-2016 u/s 379, 411, 413 IPC P.S. Kotwali Bathinda accused person Ajit Kumar @ Bobby, Sandeep Singh, Bablu, Bohr Singh and Gurtej Singh admitted the fact that they, in connivance with each other, stolen Truck No. PB-03-W-4717 from Bathinda and the same had been destroyed after dismantle of its part. The concerned police officers apprehended the accused person and presented before the Ilaka magistrate. As such, a criminal case is pending before Judicial Magistrate, Bathinda regarding theft of vehicle of complainant.

5. It is further pleaded that complainant orally given intimation to the officers of opposite party No. 2 immediately, but the officers of opposite party No. 2 did not hear any intimation regarding theft of vehicle of the complainant. The matter was postponed under one pretext and other. Ultimately complainant submitted his written claim through Claim Form to the opposite parties along with Surveyor Valuation report of the stolen vehicle. Other documents required by the opposite parties for issuing the claim amount to the complainant were also submitted. The opposite parties neither repudiated nor accepted the claim without any sufficient cause and reason.

6. It is alleged that opposite parties have adopted unfair trade practice. The opposite parties prior to 18-08-2016 through registered post sent insurance policy Cover Note 15-07-2016 for the period from 19-08-20I6 to 18-08-2017 of "The oriental Insurance Company limited, Broker's Business Cell, KolIkatta, to the complainant regarding Truck No. PB -03-W-4717. The opposite parties have received intimation regarding theft previously, before sending Cover Note but the opposite parties sent the said policy note with malafide intention and the opposite parties received the amount Rs. 41,776/- from the complainant. against this Insurance policy. On 20-09-2016, complainant sent registered letter to opposite party No. 2 and demanded Rs. 41,776/- back, but the opposite party No. 2 did not respond regarding same to the complainant.

7. It is pleaded that complainant approached the opposite parties to receive the claim of the Truck in question many times and ultimately got issued legal notice on 08-08-2017 through counsel, but to no response.

8. On this backdrop of facts, the complainant has pleaded that he has suffered from great mental tension, agony, botheration and financial loss. For these sufferings, he has claimed compensation to the tune of Rs. 80,000/-, litigation expenses 11,000/- and refund of Rs. 41,776/- in addition to Insurance claim amount.

9. Upon notice, opposite parties appeared through counsel and contested the complaint by filing joint written reply. In written reply, the opposite parties raised legal objections that the complaint is not maintainable. That the complainant has no cause of action to file the complaint. That the complainant does not fall within the Insurance granted by the opposite parties. That intricate questions of law and facts are involved in this case. The parties have to lead evidence by examining witnesses which are to be cross examined by the other party. The procedure under the 'Act' is summary in nature. The complainant, if so advised, may file civil suit seeking alleged relief. That the complainant is estopped from filing the present complaint by his own acts, conduct, omissions and acquiescence. That the complaint is false, frivolous and vexatious. It has been filed to cause undue harassment to the opposite parties. That the complaint is not maintainable. The complainant has attempted to misguide and mislead this Forum. The complainant has suppressed material facts from this Forum. That there is neither deficiency in service nor unfair trade practice on the part of the opposite parties. That the complainant himself violated terms and conditions of the policy. Hence, he is not entitled to any relief.

10. On merits, it is amditted that opposite parties issued the policy alongwith terms and conditions.

    As per opposite parties, they have received claim from the complainant. Accordingly, as per terms and conditions of the policy and provisions of Insurance Law, the opposite parties appointed Investigator to investigate the claim and verify facts which are neecessary for adjudicating the claim under the policy. After receiving Investigation report, the opposite parties found that insured himself has violated the provisions of Insurance Law and never bother to retain the vehicle in safe custody. He remained totally negligent for parking the vehicle with its starting keys. The complainant violated the terms and conditions of the policy. Accordingly opposite parties repudiated the claim under the policy. Letter to this effect was issued to the complainant on 25-9-2017 through registered post. The opposite parties have also reproduced relevant portion of letter.

    Regarding issuance of Cover Note for the period from 19-8-2016 to 18-8-2017, it is denied for want of knowledge. It is also mentioned that this relates to opposite party No. 1 and Oriental Insurance Company Limited. After controverting all other averments, the opposite parties prayed for dismissal of complaint.

11. In support of his complaint, the complainant has tendered into evidence photocopy of proposal form (Ex. C-1), photocopy of re-payment schedule (Ex. C-2), photocopy of policies (Ex. C-3 to Ex. C-5), photocopy of FIR (Ex. C-6 & Ex. C-7), photocopy of affidavit of Darshan Singh (Ex. C-8), photocopy of repudiation letter (Ex. C-9), photocopy of policy (Ex. C-10), photocopy of letters (Ex. C-11 & Ex. C-13), postal receipts (Ex. C-12 & Ex. C-14), photocopy of legal notice (Ex. C-15), postal receipts (Ex. C-16 & Ex. C-17), photocopy of account statement (Ex. C-18), photocopy of award (Ex. C-19), photocopy of verification of RC particulars (Ex. C-20), affidavit dated 19-2-2018 of complainant (Ex. C-21) and closed the evidence.

12. In order to rebut this evidence, the opposite parties have tendered into evidence photocopy of claim file (Ex. OP-1/1), affidavit dated 25-6-2018 of Sunil Gupta, Assistant Manager (Legal) and closed the evidence.

13. We have heard learned counsel for the parties and gone through the record.

14. The learned counsel for the complainant, after reitertating his stand as taken in the complaint, has further submitted that although the opposite parties have pleaded that claim has been repudiated vide letter dated 25-9-2017, but the complainant has prayed for directions to the opposite parties to honour the claim. Therefore, even if, the opposite parties have repudiated the claim, the complaint will not become infructuous. On the basis of pleadings and evidence of the parties, this Forum can examine that if repudiation is justified or not. The opposite parties have repudiated the claim vide letter dated 25-9-2017 (Ex. OP-1/1) on the ground that vehicle was left unattended which is breach of policy condition No. 5 of the policy. Admittedly, the opposite parties have got the matter investigated from the Investigator. The report of the Investigator is also on the file. The Investigator has concluded that 'theft stands established', the underwriters may process the claim of the stolen vehicle under policy terms and conditions.” The Investigator has nowhere concluded that theft is only due to negligence of the complainant or breach of any terms and conditions. The opposite parties have concluded breach of condition on the basis of FIR and charge sheet. Copy of FIR is also on the file as Ex. C-6. This FIR was recorded on 7-8-2016. It was registered on the basis of statement of complainant Surinder Kumar. In this FIR, complainant has categorically stated that on 3-8-2016 Darshan Singh, driver parked the truck at Dhingar Cement Store near Link Road, after locking it and keys of engine was kept at dashboard. The outside key of cabin, after locking it, was kept under the footmat of truck. It is nowhere mentioned by complainant that ignition keys were kept inside of the truck or that the truck was unlocked. Therefore, conclusion of the opposite parties that there was breach of condition is without any evidence. It is based on conjunctures and surmises. The repudiation of claim is not sustainable. IDV of the vehicle as per Cover Note (Ex. C-5) was 8,77,500/-. The complainant is entitled to claim for this amount.

15. It is further submitted by learned counsel for the complainant that Ex. C-3, Ex. C-4 & Ex. C-5 are the policies (Cover Notes) qua truck in question. These are issued by opposite party No. 1. The premium was always below Rs. 40,000/- per year. The truck was stolen on 4-8-2016. The opposite party No. 1 was within this knowledge. Despite this fact, opposite party No. 1 got insured truck from 19-8-2016 to 18-8-2017 from another Insurance Compay i.e. Oriental Insurance Company Limited, without any authorization or intimation to the complainant. As the truck was already stolen, complainant was having no reason to get the vehicle insured for subsequent year. The opposite party No. 1 allegedly paid Rs. 41,776/- for this insurance and wants to claim this amount from the complainant. This act of opposite party No. 1 is also totally illegal and amounts to unfair trade practice. There was no request/proposal by the complainant to Oriental Insurance Company Limited for getting the vehicle insured for further period.

16. In support of this submissions, learned counsel for the complainant has relied upon :-

    (i) National Insurance company Limited Vs. Super Build Tech. Pvt. Ltd., III (2019) CPJ 100 (NC)

    (ii) New India Assurance Co. Ltd., Vs. Pravin Krushna Takri I(2018)CPJ 80 (NC).

17. On the other hand, learned counsel for the opposite parties has submitted that claim is based on Insurance. It is well settled that Insurance policy is like other ordinary contracts. The parties are bound by terms and condition of the policy. The complainant was under obligation to take proper care for the safety of the vehicle in question. The first version regafrding occurence was mentioned by complainant in FIR (Ex. C-6). It is admitted by complainant that keys of the engine were kept on Dashboard. Of course cabin was also locked but the key of the cabin was kept under footrest. The vehicle was parked on roadside and not at any covered place. This fact itself proves that complainant was negligent in parking/taking proper care of the vehicle. As such, there was clear cut breach of the terms and conditions of the policy. In these circumstances, repudiation of claim by the opposite parties is justified.

18. It is further submitted by learned counsel for the opposite parties that opposite parties have already repudiated the claim. This fact is mentioned in the written version. Copy of repudiation letter is also brought on record as Ex. C-9. The complainant has not challenged repudiation. In these circumstances, complaint is not maintainable and is liable to be dismissed for this reason also.

19. In support of his submissions, learned counsel for the opposite parties has relied upon :-

    (i) Decision of Hon'ble National Commission rendered in TataAIG General Insurance Co. Ltd., Vs. Mahendra Singh & Anr in RP No. 1239 of 2018 decided on 21-6-2019.

    (ii) Decision of Hon'ble National Commission rendered in L & T General Insurance Co. Ltd., Vs. Umesh & Anr in RP/2732/2016 decided on 9-11-2016.

    (iii) Decision of Hon'ble National Commission rendered in Saleem Vs. IFFCO Tokio General Insurance Co. Ltd., in FA No. 74 of 2017 decided on 1-5-2017.

    (iv) II (2016) CPJ 385 (NC) Shamsur Alam Vs. Reliance General Insurance Co. Ltd.,

    (v) Decision of Hon'ble National Commission rendered in Dilbagh Singh Vs. OIC in RP No. 474 of 2017 decided on 29-5-2017.

    (vi) Decision of Hon'ble National Commission rendered in Mahavir Prasad Gupta Vs. OIC in FA No. 1060 of 2016 decided on 19-1-2017.

    (vii) Decision of Hon'ble National Commission rendered in Bachhu Singh Vs. NIC in FA No. 36 of 2017 decided on 27-4-2017.

    (viii) Decision of hon'ble State Commission rendered in Rajeev Kumar Bansal Vs. Bajaj Allianz General Insurance Co. Ltd., in A/312/2019 decided on 18-8-2019.

20. We have carefully gone through the record, case law cited by learned counsel for the parties and have considered the rival contentions.

21. Since the opposite parties have repudiated the claim vide letter dated 25-9-2017, therefore, it is to be seen whether complaint is maintainable as the complainant has not impugned the repudiation letter.

22. In complaint, the prayer of the complainant is that opposite parties be directed to honour the lawful claim as per terms and conditions of the policy. It is not the case of the complainant that opposite parties be directed to settle the claim. Of course the opposite parties have repudiated the claim but when the complainant has claimed claim under the Insurance policy, the fact can be examined whether the repudiation is justified or not. Therefore, the complaint has not become infructuous.

23. Now coming to the main point. Admittedly, the vehicle was insured by opposite party No. 2 for the period from 19-8-2016 to 18-8-2016 and the vehicle was stolen on 3-8-2016 which was covered under the policy issued by opposite party No. 2. The opposite party No. 2 repudiated the claim vide letter dated 25-9-2017. A perusal of this letter reveals that opposite party No. 2 has repudiated the claim on the ground that at the time of theft, the ignition keys were kept in the vehicle and cabin key put under the footmat and the vehicle was left unattended, leaving it in the drivable condition, which is breach of policy condition.

24. Of course the opposite parties have not brought on record complete policy containing terms and conditions. Despite this fact, it is being examined whether there was any breach of condition as alleged by the opposite parties. Admittedly, the opposite parties got the matter investigated from the Investigator. Report of the Investigator is also part of the documents relied upon by the opposite parties. The Investigator has concluded that theft stands established after investigation and as per police report. He has recommended to process the claim of the stolen vehicle under policy terms and conditions. The opposite parties have not based the repudiation on the Investigation report but the opposite parties have mentioned that it is noticed that as per FIR, at the time of theft, the ignition keys were kept in the vehicle and cabin key put under the foot mat and the vehicle left unattended. Copy of FIR is Ex. C-6. As per this FIR, the complainant reported that on 3-8-2016, his driver Darshan Singh, driver parked the truck at Dhingar Cement Store near Link Road after locking it and key of engine was kept at dashboard. The outside key of cabin after locking it, was kept under the footmat of truck.

25. Now the point is whether, in such circumstances, reputation of claim in toto is sustainable.

26. In the case of Pravin Krushna Takari (supra), the Hon'ble National Commission has observed that :-

    “Term reasonable care' cannot be construed to the advantage of the Insurance Company and it was observed that there is no fundamental breach of any of the conditions stipulated in the contract and the claim was allowed on non-standard basis with interest”

    Similarly in the case of Super Built Tech (supra), the decision of the concerned State Commission granting claim on Non Standard Basis i.e. 75% of the insured amount was upheld.

27. Observations in both the cited cases relied upon the complainant, are fully applicable to the fact of the case in hand.In this case also ignition key was taken out and kept at dash board .the cabin was also locked. Therefore, the result is that the repudiation of claim in toto is not sustainable. Complainant is entitled to claim on 'Non Standard Basis' i.e. 75% of the IDV, which is worked out as Rs. 6,58,125/-.

28. The complainant has also claimed refund of Rs. 41,776/- which is allegedly paid by opposite party No. 1 for insurance of the vehicle. The certificate of Insurance (Ex. C-10) proves that opposite party No. 1 has got the vehicle insured from Oriental Insurance Co. Ltd., for the period from 19-8-2016 to 18-8-2017. The opposite party No. 1 has nowhere pleaded that this insurance was at the instance of or on the instructions of complainant. The written version has been jointly filed by opposite parties No. 1 & 2. In reply to para No. 5 of complaint, it is simply denied for want of knowledge and mentioned that contents mentioned in this para are related with opposite party No. 1 and other company nemely Oriental Insurance Company.

29. It is also noticed that earlier Insurance of the vehicle in question was always through opposite party No. 2 but after theft of vehicle, the insurance was from another company i.e. Oriental Insurance Company Limited by by spending more premium than premium received by opposite party No. 2 for earlier periods. This reflects some malafide on the part of the opposite parties. Therefore, the complainant is not liable to pay this amount of Rs. 41,776/- to opposite parties.

30. Resultantly, complaint is partly accepted with costs of Rs. 10,000/-. i) The opposite parties are directed to pay Rs. 6,58,125/- being claim amount. The opposite parties have repudiated the claim without any justification. Therefore, the complainant is also entitled to compensation on this amount by way of interest @9% p.a. from the date of repudiation i.e. 25-9-2017 till date of payment.

    ii) The opposite party No. 1 will not claim Rs. 41,776/- from complainant on the basis of premium for insurance for the period from 19-8-2015 to 18-8-2016.

31. The complainant will be under obligation to execute required documents enabling the opposite parties to get the ownership of the vehicle transfered in their name at their own costs.

32. The compliance of this order be made by the opposite parties jointly and severally within 45 days from the date of receipt of copy of this order.

33. The complaint could not be decided within the statutory period due to heavy pendency of cases.

34. Copy of order be sent to the parties concerned free of cost. File be consigned to the record room.

    Announced :

    06-11-2019

    (M.P.Singh Pahwa )

    President

     

     

    (Manisha)

    Member