Before the District Consumer Disputes Redressal Commission, Rohtak.

Consumer Complaint No. 166

Instituted on             :  28.11.2019

Decided on               :  11.11.2024

Surender (age 40 years) Son of Sh. Hawa Singh R/o VPO Dhamar, Tehsil and District Rohtak.

                                                                                      ….Complainant.

                                                Vs.

The New India Assurance Company Ltd. 313 Model Town, Delhi Road Rohtak through its Divisional Manager.

……Opposite Party

COMPLAINT UNDER CONSUMER PROTECTION ACT.

BEFORE: SH. NAGENDER SINGH KADIAN, PRESIDENT.

                   DR. TRIPTI PANNU, MEMBER.

                   DR. VIJDENER SINGH, MEMBER.

Present:       Sh. SatyawanRanga, Advocate for the complainant.

                   Sh. R.K. Bhardwaj, Advocate for the opposite party.

                                      ORDER

SH. NAGENDER SINGH KADIAN, PRESIDENT:

1.                Brief facts of the present complaint, according to the complainant, are that he is registered owner of a vehicle Eicher Canter Model 2016 bearing registration no. HR-46D-4763 and same was insured with opposite party vide policy no. 35380031170100002003 valid for the period from 18.05.2017 to 18.05.2018. On 19.10.2017 complainant parked his vehicle in the front of his house but on 20.10.2017 when he woke up, he found the vehicle missing. The complainant tried his level best to trace out the vehicle but could not trace the same and as such, he lodged an FIR No.498 dated 20.10.2017 in P.S.Sadar, Rohtak. He immediately informed about the theft of the vehicle to the opposite party and on 26.03.2019 untraced report was submitted. The complainant  immediately informed the opposite party about the theft of vehicle  and submitted all the documents alongwith untraced report to the opposite party and requested the opposite party to pay the claim amount but all in vain. Finally the opposite party refused to pay any heed to the request of complainant. Hence this complaint and it has been prayed that opposite party may kindly be directed to pay the claim amount of Rs.13,00,000/- alongwith interest and also to pay Rs.50,000/- on the account of unnecessary harassment and litigation expenses to the complainant.

2.                After registration of complaint, notice of the present complaint was issued to the opposite party. Opposite party appeared and filed its written statement submitting therein that according to the report of Sh. R.N. Sharma, investigator of opposite party, Mr. Balraj was the driver of the said vehicle and complainant had sold the vehicle in question to Mr. Dharmender about 6/7 months back. Mr.Balraj has informed about the theft of vehicle to Dharmender and to the Police and same statement was given in writing to the opposite party by Mr. Balraj, which shows that at the time of theft, complainant was not owner of the said vehicle and had no insurable interest in the said vehicle. Further on 25.09.2019 the complainant had given his consent letter to the insurance company that he is ready for settlement as full and final payment of Rs.12,08,500/-. The theft took place on 20.10.2017 and insurance company was informed on dated 30.10.2017. Hence there is violation of specially condition no.1 of   terms and condition of the policy. As the complainant had sold the vehicle to Mr. Dharmender, he has no insurable interest in the said vehicle and there is no deficiency in the services on the part of opposite parties. Accordingly, dismissal of the complaint with cost has been sought by the opposite party.

3.                Learned counsel for the complainant has tendered affidavit Ex.CW1/A & Ex. CW2/B, documents Ex. C-1 to Ex. C-7 in his evidence and closed the same on dated 27.08.2021. On the other hand, learned counsel for the opposite party has tendered affidavit Ex.RW1/A to Ex. RW2/A, documents Ex. R1 to Ex.R8 in his evidence and closed the same on 25.02.2022.

4.                We have heard ld. counsel for the parties and have gone through the material aspect of the case very carefully.

5.                In the present case the respondent insurance company took two main objections in his written statement. Firstly, that the complainant had informed the opposite party about the theft belatedly after 10 days on dated 30.10.2017. Secondly, the complainant has no insurable interest in the vehicle in question. As per the insurance company, the complainant has sold the vehicle to one Sh. Dharmender so the complainant has no insurable interest in the vehicle. To prove this fact the insurance company has placed on record an investigation report Ex.R1 and photocopy of statements Ex.R7 & Ex.R8. We have minutely perused the documents Ex.R7 and Ex.R8 i.e. statement of Balraj s/o Ram Kishan and statement of Ram Niwas s/o Zile Singh and Sandeep S/o Raghbir Singh residents of village Dobh, but the insurance company failed to place on record affidavits of Balraj, Ram Niwas and Sandeep to support the alleged statements Ex.R7 & Ex.R8. On the other hand,  complainant has placed on record an affidavit of Balraj as Ex.CW2/B. In this affidavit Balraj has not disclosed anywhere that he gave any statement to the investigator of the insurance company. As per this affidavit,  Surender s/o Hawasingh was the owner of vehicle  at the time of theft and he had not sold the vehicle to anyone. Moreover ,the perusal of investigation report Ex.R1  shows that the theft is genuine. As per document Ex.R3(Claim note),  the insurance company wants to settle the claim of the complainant for an amount of Rs.1208500/- and a written consent was also given by insured and this document  is signed by Sh. P.K.Gupta, Senior Divisional Manager on dated 01.10.2019. After that the claim has not been paid by the insurance company to the complainant. In our opinion, once the insurance company has settled the claim, it cannot go back on its decision, even though it had taken written consent from the complainant. Regarding the delayed intimation to the opposite party, it is observed that the theft had taken place in the intervening night of 19/20.10.2017 and FIR was lodged on 20.10.2017 i.e. just after the accident.  In this regard reliance has been placed upon the judgment of Hon’ble Supreme Court in Civil appeal no. 4758 of2023titled as Ashok Kumar Vs. New India Assurance Co. Ltd.,  whereby Hon’ble Supreme Court has held that : “Theft of Vehicle - Any violation of the condition of the insurance policy should be in thenature of a fundamental breach to deny the claimant insurance coverage.  Mere delay in intimating the insurance company about the occurrence of the theft cannot be a ground to deny the claim of the insured.”. Hence the opposite party is liable to pay the claim amount to the complainant as per IDV of the vehicle and as per policy Ex.C4, the IDV of the vehicle is Rs.1300000/-. The perusal of RC Ex.C3 and insurance policy Ex.C4 shows that the vehicle in question is HPA with HDB financial Services  and complainant has failed to place on record any document to prove the fact that he has repaid the whole loan amount to the finance company. Hence the amount of claim will be paid to the HDB Financial Services. 

6.                In view of the facts and circumstances of the case, we hereby allow the complaint and direct the opposite party to pay the amount of Rs.1300000/-(Rupees thirteen lacs only) alongwith interest @ 9% p.a. from the date of filing the present complaint i.e. 28.11.2019 till its realisation and also to pay Rs.5000/- (Rupees five thousand only) as compensation on account of mental agony and harassment and Rs.5000/-(Rupees five thousand only) as litigation expenses to the HDB Financial Services Ltd. for settlement of loan account of the complainant. It is made clear that after settlement of loan account of the complainant, if any amount remains as surplus, the same shall be paid to the complainant. Order shall be complied within one month from the date of decision. However, complainant is also directedto complete the formalities i.e. to submit the signed form no.29-30, indemnity bond and subrogation letter in favour of the company within 15 days from today and thereafter opposite party shall comply with the order dated 11.11.2024 of this Commission. Complainant is also directed to send a letter to the RTO for cancellation of R.C.

7.                Application(s) pending, if any, stand disposed of in terms of the aforesaid judgment.

8.                Copy of this order be supplied to both the parties free of costs. File be consigned to the record room after due compliance.

Announced in open court:

11.11.2024

                                                          ........................................................

                                                          Nagender Singh Kadian, President

                                                          ..........................................

                                                          TriptiPannu, Member.

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                                                          Vijender Singh, Member.