State Consumer Disputes Redressal Commission
Gaurav Singh vs Hdfc Bank & Anr. on 14 March, 2023
C-834/2018 MR. GAURAV SINGH VS HDFC BANK & ANR. D.O.D.: 14.03.2023
IN THE DELHI STATE CONSUMER DISPUTES REDRESSAL
COMMISSION
Date of Institution: 06.07.2018
Date of hearing: 14.09.2022
Date of Decision: 14.03.2023
COMPLAINT CASE NO.- 834/2018
IN THE MATTER OF
MR. GAURAV SINGH,
S/O MR. DURGA PRASAD SINGH,
R/O 771/A, CIVIL LINES, NEAR
S.P. RESIDENCE, GONDA, U.P. 271001.
ALSO AT:
E-2/11, VASANT VIHAR, NEW DELHI-110051.
THROUGH MR. ROHAN SHARMA,
S/O MR. C.L. SHARMA,
R/O 4-Y/803, AWHO SOCIETY,
GREATER NOIDA.
(Through: Allied Law Partners)
...Complainant
VERSUS
1. HDFC BANK,
THROUGH DIRECTOR/MANAGERS,
8-A, MILAP NIKETAN BSZ MARG,
ITO, NEW DELHI-110002.
ALSO AT: 1ST FLOOR, C.S. NO. 6/242,
SENAPATI BAPAT MARG, LOWER PAREL,
MUMBAI-400013.
(Deleted from the array of parties)
2. HDFC ERGO GEN. INSURANCE CO. LTD.,
THROUGH: DIRECTOR/MANAGERS
6TH FLOOR, LEELA BUSINESS PARK,
ANDHERI KURLA ROAD,
ANDHERI EAST, MUMBAI - 400059
ALSO AT: GROUND FLOOR,
EROS CORPORATE TOWER, NEHRU PLACE,
NEW DELHI - 110019.
(Through: Mr. Anuj Kumar Chauhan, Advocate)
...Respondent
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C-834/2018 MR. GAURAV SINGH VS HDFC BANK & ANR. D.O.D.: 14.03.2023
CORAM:
HON'BLE JUSTICE SANGITA DHINGRA SEHGAL (PRESIDENT)
HON'BLE MS. PINKI, MEMBER (JUDICIAL)
Present: Ms. Esha Verma, Counsel for Complainant.
Opposite Party No.1 has already deleted from the array of parties
vide order dated 22.08.2022.
None for the Opposite Party No.2.
PER: HON'BLE JUSTICE SANGITA DHINGRA SEHGAL
(PRESIDENT)
JUDGMENT
1. The present complaint has been filed under Section 17 of Consumer Protection Act, 1986 by the Complainant before this Commission alleging deficiency of service and unfair trade practice by the Opposite Parties and has prayed the following reliefs:-
A. "Direct the respondent No.2 to release the claim amount for sum of Rupees 75,57,712 (Seventy Five Lakhs Fifty Seven Thousand Seven Hundred and Twelve Only ) alongwith interest @ 12.50 percent till the realisation of amount. B. Direct the respondent No. 1 to stop the monthly installments against the loan amount paid by the complainant till the pendency of complaint;
C. Direct the respondents to pay sum of Rs. 5,00,000/- (Rupees Five lakh only) towards compensation for the financial loss suffered by the complainant;
D. Direct the respondents to pay sum of Rs. 2,00,000/- (Rupees one lakh only) towards mental agony, harassment, inconvenience etc. to the complainant;
E. Award the cost of litigation in favour of the complainant.
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F. Any other order or relief in favour of the complainant and against the respondents which this Hon'ble Forum deem fit and proper under the facts and circumstances of the case."
2. Brief facts necessary for the adjudication of the present complaint are that on 15.1.2016, the Complainant purchased a vehicle bearing registration no. DL NC AB 9000, model Range Rover Sport from Mr.Naim for a due consideration of Rs.75,00,000/- out of which Rs.41,00,000/- has been paid as cash and Rs.4,00,000/- has been paid by cheque and further got possession of the subject vehicle. The Complainant took a loan for the remaining payment of Rs.30,00,000/- from the Respondent No.1. Thereafter, the Complainant took an Insurance Policy from Respondent No.2 on being assured about the services of the Respondent no.2 by Respondent no.1. Unfortunately, on 09.01.2018, the subject car suddenly caught fire and turned into scrap within a short span of time. The Complainant, accordingly, intimated the Opposite Party about the said loss on 10.01.2018 and subsequently, filed the loss claim with all relevant documents. The Opposite Party appointed surveyor, and assured the Complainant about the visit of the surveyor on 17,18.01.2018, for the investigation at the spot of loss and further inspection of insured vehicle. However, no report was filed by the surveyor on the pretext of requisite documents not being supplied till 07.05.2018. On 10.5.2018, Respondent No.1 repudiated the claim of the Complainant. Aggrieved by the repudiation, the Complainant through his A.R. Mr. Rohan Sharma, sent an email to the Opposite Party No.2 and its various authorities on 21.05.2018. On 05.06.2018, the Opposite Party No.2 alongwith Grievance authorities denied to settle the claim. Aggrieved by the repudiation, the Complainant has filed the present complaint.
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3. The Opposite Party No.2 has contested the present case and has raised preliminary objection that no cause of action has arisen against the Opposite Party No.2. The counsel for the Opposite Party No.2 further contended that the present complaint involves larger issues, which cannot be adjudicated in a summary procedure before this Commission. Lastly, he contended that during the survey it was revealed that the Complainant is the third owner of the vehicle. Moreover, the Complainant declared the value of the vehicle at Rs.75,57,712 whereas actual value as per purchase price was found out to be Rs.34,00,000 however, the report submitted by two investigators and the survey report it was found out that the incident was not accidental in nature. Pressing the aforesaid objections, the counsel appearing on behalf of the Opposite Party No.2 prayed for dismissal of the present Complaint.
4. The Complainant has filed the Rejoinder rebutting the written statement filed by the Opposite Party. Both the parties have filed their Evidence by way of Affidavit in order to prove their averments on record.
5. We have perused the material available on record and heard the counsel for the parties.
6. The fact that the Complainant had had taken a loan of Rs. 30,00,000 is not disputed by either party. Also, the Complainant adhered to his financial discipline and didn't default in making payments of loan installments (Annexure R1-R4) is also admitted by both the parties.
7. The first question of consideration before us is whether the present complaint involves complicated questions of facts, which cannot be decided by summary procedure adopted by this commission.
8. The Consumer Protection Act, 1986, came into being in order to protect the interest of Consumers who are affected by the acts of the PARTLY ALLOWED PAGE 4 OF 11 C-834/2018 MR. GAURAV SINGH VS HDFC BANK & ANR. D.O.D.: 14.03.2023 service providers, who in order to attract the Consumers, tend to make lucrative offers but when it comes to actually providing the offered services, they take a step back.
9. The Consumer Protection Act, 1986 defines 'Consumer' as follows:
"(2)
(d) "consumer" means any person who--
(i) buys any goods for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any user of such goods other than the person who buys such goods for consideration paid or promised or partly paid or partly promised, or under any system of deferred payment when such use is made with the approval of such person, but does not include a person who obtains such goods for resale or for any commercial purpose; or
(ii) hires or avails of any services for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any beneficiary of such services other than the person who 'hires or avails of the services for consideration paid or promised, or partly paid and partly promised, or under any system of deferred payment, when such services are availed of with the approval of the first mentioned person but does not include a person who avails of such services for any commercial purposes;
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Explanation. -- For the purposes of this clause, "commercial purpose" does not include use by a person of goods bought and used by him and services availed by him exclusively for the purposes of earning his livelihood by means of self-employment;"
10. Deficiency has been defined under Section 2 sub-clause (g) of the Consumer Protection Act, 1986 which reads as follows:
"(2) (g)"deficiency" means any fault, imperfection, shortcoming or inadequacy in the quality, nature and manner of performance which is required to be maintained by or under any law for the time being in force or has been undertaken to be performed by a person in pursuance of a contract or otherwise in relation to any service;"
11. Returning to the facts of the present complaint, the perusal of the record shows that the Complainant had taken an insurance policy to safeguard their future losses and availed the services of the Opposite Party. However, the Complainant alleged in the complaint that the Opposite Party has failed to honour the terms of the insurance policy and failed to provide the claim for the losses suffered by him, due to which the present complaint was filed before this Commission. There is nothing available on record which would reflect that there are such complicated questions involved which could not be settled based on the pleadings filed on behalf of the contesting parties.
12. Consequently, we are of the view that the present complaint falls within the four corners of the jurisdiction of this Commission and there is no bar with respect to the jurisdiction of this Commission to PARTLY ALLOWED PAGE 6 OF 11 C-834/2018 MR. GAURAV SINGH VS HDFC BANK & ANR. D.O.D.: 14.03.2023 entertain cases related to the deficiency in service on the part of insurance company in releasing the claim of the insured.
13. The main question of consideration before us is whether the Opposite Party is deficient in providing its services to the Complainant by repudiating the claim of the Complainant
14. The Opposite Party No.2 has contended that the premium was decided as per the information given by the Complainant. It is the case of the Opposite Party No.2 that it was only during the Investigation that the surveyor found out that the Complainant had given wrong information about the price of the Vehicle. Here, it is pertinent to reproduce the Standard Form for private car package policy attached in the terms and conditions of the policy opted by the Complainant (Annexure OP 2-2 with the written statement of Opposite Party No.2)
15. As per the Indian Motor Tarriff, IDV of vehicles beyond 5 years of age and of obsolete models of the vehicle i.e. models which the manufacturers have discontinued to manufacture is to be determined on the basis of an understanding between the insurer and the insured. IDV shall be treated as the Market Value throughout the policy period PARTLY ALLOWED PAGE 7 OF 11 C-834/2018 MR. GAURAV SINGH VS HDFC BANK & ANR. D.O.D.: 14.03.2023 without any further depreciation for the purpose of total loss/constructive total loss claims. The insured private car shall be treated as Constructive Total Loss (CTL) if the aggregate cost of retrieval and/ or repair of the private car, subject to terms and conditions of the policy, exceeds 75% of the IDV of the private car. It is to be noted that calculating the IDV is one of the foremost important duties of the insurer company. The Company cannot shift the onus of calculating the IDV on the insured, since the premium charged is decided proportionately by the insurance company. Here, it is an admitted fact by the Opposite Party No.2 itself that it came to know about the actual market value of the car only after the Complainant filed for his claim. It is to be noted that at the of purchasing the policy, the vehicle was more than 5 years old and the Opposite Party No.2 would have scrutinised the vehicle and carried out the necessary verifications pertaining to the market value of the said vehicle before finalising the IDV. It is not plausible as to why the Opposite Party No.2 didn't make thorough prior inspections as to the market value of the Vehicle and why it was only at the time of settlement of the claim and not before that the surveyor report was resorted to. Furthermore, it is alleged that by the Complainant that Opposite Party No.2 collected the premium amount twice from the Complainant once in the year 2016-17 for a sum of Rs 1,47,000 and 2017-18 for a sum of Rs 1,14,301 (Annexure OP2-2). The Opposite Party No.2 has further claimed that as per the report of the Fire Technician, Shyam & Co. and JMD survey report, the nature of the fire is non-accidental. Here, we deem it necessary to refer to the Section 1 of the Standard Form for Private Car Package Policy which is reproduced below:
"SECTION 1. LOSS OR DAMAGE TO THE VEHICLE INSURED PARTLY ALLOWED PAGE 8 OF 11 C-834/2018 MR. GAURAV SINGH VS HDFC BANK & ANR. D.O.D.: 14.03.2023 The Company will indemnify the insured against the loss or damage to the vehicle insured hereunder and/or its accessories whilst thereon I. by fire, explosion, self ignition or lightning....."
16. As per Section 1 of the Terms and Conditions and the Frequently Asked Questions (Annexure OP2-2 with the written statement of Opposite Party No.2 ) listed by the Opposite Party No.2 , loss of or damage to the vehicle insured, Clause 1 clearly covers loss by fire, explosion, self-ignition or lightning. More so, the survey report doesn't disclose any definite cause as to how the vehicle caught fire. At the outset, we deem it appropriate to refer to the dicta of the Hon'ble Apex Court in the case titled National Insurance Co. Ltd. v. Nitin Khandelwal, reported at (2008) 11 SCC 259, wherein it has been held as under:
"13. ..... The respondent submitted that even assuming that there was a breach of condition of the insurance policy, the appellant Insurance Company ought to have settled the claim on 'non- standard' basis..."
17. The Hon'ble National Commission, while following the dicta in dicta in Nitin Khandelwal (supra) in Royal Sundaram General Insurance Company Limited vs. Ashok Kumar Somani and Ors. reported at II (2019) CPJ 451 (NC), has held as under:
".....Hon'ble Supreme Court in the matter of Amalendu Sahoo Vs. Oriental Insurance Co. Ltd., II (2010) CPJ 9 (SC) has opined that even in cases where there is any breach of warranty/conditions of policy, an amount upto 75% of the admissible claim can be agreed to. In the case of New India Assurance Company Ltd. vs. Girish Gupta (supra) the vehicle was an Indica car whereas in the present case a truck PARTLY ALLOWED PAGE 9 OF 11 C-834/2018 MR. GAURAV SINGH VS HDFC BANK & ANR. D.O.D.: 14.03.2023 is involved which would have required more care and precaution as the value of IDV was much higher. In these circumstances, we deem it appropriate to partly allow the revision petition and to order that 60% (sixty percent) of the IDV along with interest at the rate of 6% p.a. from the date of order of the District Forum i.e. 02.06.2010 be paid as settlement of the claim by the Insurance Company.
Accordingly, the order dated 19.10.2012 of the State Commission is set aside and the order dated 02.06.2010 of the District Forum stands modified accordingly."
18. The facts of the present case are also similar to the aforesaid cases discussed, since in the present case, the Complainant breached the Condition. It is clear from the record that there was negligence on part of the Complainant by not providing with the required information to the Opposite Party. Further, it is noted that the Insurance Company has not denied anywhere that the car was not totally damaged in the accident. Therefore, repudiating the claim in totality amounts to deficiency in service on the part of Opposite Party No.2 so we award this point in favour of the Complainant and against Opposite Party No.2.
19. The Complainant is entitled for 65% of the Insured Declared Value, on non-standard basis, i.e. an amount of Rs. 49,12,512/- (65% of Rs. 75,57,712/-). The Opposite Party is directed to pay the aforesaid amount to the Complainant within one month from this Judgment, failing which, the Opposite Party shall be liable to pay an interest on the aforesaid amount calculated @ 9% p.a. from the date of filing of the Complaint Case before this Commission i.e. 06.07.2018 till the actual realization of the amount.
20. In addition to the aforesaid and taking into consideration the facts of the present case, the Opposite Party is directed to pay a sum of:
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C-834/2018 MR. GAURAV SINGH VS HDFC BANK & ANR. D.O.D.: 14.03.2023
A. Rs. 2,00,000/- as compensation for mental agony and
harassment caused to the Complainant; and
B. The litigation cost to the extent of Rs. 50,000/-.
21. Applications pending, if any, stands disposed of in terms of the aforesaid Judgment.
22. A copy of this Judgment be provided to all the parties free of cost as mandated by the Consumer Protection Regulations, 2005. The Judgment be uploaded forthwith on the website of the Commission for the perusal of the parties.
23. File be consigned to record room along with a copy of this Judgment.
(JUSTICE SANGITA DHINGRA SEHGAL) PRESIDENT (PINKI) MEMBER (JUDICIAL) Pronounced On:
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