State Consumer Disputes Redressal Commission
Sarvjit Dhanda vs Bharti Axa General Insurance & Ors. on 24 March, 2014
FIRST ADDITIONAL BENCH
STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
PUNJAB,
DAKSHIN MARG, SECTOR 37-A, CHANDIGARH.
Consumer Complaint No.73 of 2012.
Date of Institution: 30.08.2012.
Date of Decision : 24.03.2014.
Sarvjit Dhanda S/o Nam Adhar Dhanda, R/o H.No.29, Green Park, Civil
Lines, Ludhiana.
....Complainant.
Versus
1. Bharti Axa General Insurance, through its General Manager, G-
454, IC Towers, BRS Nagar, Opp. Verka Milk Plant, Ludhiana.
2. Bharti Axa General Insurance Company Limited, 1st Floor, The
Ferns Icon, Survey No.28, next to Ballet, Doddanekundi Village,
KR Puram, Hobli, Bangalore.
3. Bharti Axa General Insurance Co. Ltd., SCO 350-352, First Floor,
Sector 34-A, Chandigarh.
....Opposite Parties.
Consumer Complaint U/s 17 of the
Consumer Protection Act, 1986.
Before:-
Shri Inderjit Kaushik, Presiding Judicial Member.
Shri Jasbir Singh Gill, Member.
.................................................... Present:- Ms. Jasleen Kaur, Advocate, counsel for the complainant.
Sh. P.M. Goyal, Advocate, counsel for the opposite parties. .............................................................................. Consumer Complaint No.73 of 2012 2 INDERJIT KAUSHIK, PRESIDING JUDICIAL MEMBER Sh. Sarvjit Dhanda, complainant (hereinafter called "the complainant") has filed the present complaint U/s 17 of the Consumer Protection Act, 1986 against the opposite parties.
2. Brief facts are that the complainant purchased Audi A4-2.0 TDI car on 31.12.2010 for a sum of Rs.28.17 lacs and it was having registration No.PB-10-CT-2929. The complainant took loan of Rs.19.90 lacs to purchase the said car from Tata Capital Limited and he is paying monthly installments of Rs.41,550/-.
3. The complainant got the said vehicle comprehensively insured with the opposite parties for the period 31.12.2010 to 30.12.2011 and the Insured Value of the car was Rs.26,76,150/- and a premium of Rs.61,116/- was paid.
4. In the night of 3rd September, 2011 at about 10.00 P.M., the complainant took the said car to Hotel Imperial, Ludhiana and parked it near the hotel on the main Pakhowal Road after properly locking the same. When the complainant came out from the said hotel after two hours, he found that the car was missing. The complainant could not locate his car, although he alongwith family members and friends tried his best to search for the car.
5. The complainant intimated to the police at Civil Lines, Division No.5, Ludhiana on 04.09.2011 and made a written application to that effect. The police of P.S. Division No.5 tried to locate the vehicle at various places. The complainant also informed the opposite parties in writing on 5th September, 2011 i.e. Monday which was duly received and stamped by the officials. FIR No.230 dated 10.09.2011 U/s 379 IPC was registered at P.S. Division No.5, Civil Lines, Ludhiana. The complainant lodged the claim with the opposite parties and supplied all Consumer Complaint No.73 of 2012 3 the documents. The complainant also informed the National Crime Record Bureau, New Delhi on 13.09.2011.
6. The opposite parties informed in writing on 13.09.2011 that M/s Glide Investigation and Security Services was appointed to investigate the matter. In the same letter, it was mentioned that the complainant has intimated late to the opposite parties on 12.09.2011 and has violated the policy conditions. The information was given on 05.09.2011 itself. The complainant gave original key and duplicate key at the time of delivery of the said car. The car was not traced and the process for submitting the Non-traceable Report was not yet completed by the police.
7. The opposite parties on 14.02.2012 raised the same issue which was duly replied and the complainant requested the opposite parties, to settle the claim on 07.03.2012, 29.04.2012, 13.06.2012 and 04.07.2012, but the opposite parties instead of settling the claim, repudiated the claim on 20.07.2012 on the ground of delay in intimation which is violation of policy condition No.1 and negligence as third key was left in the car.
8. The Audi dealership provided only two keys at the time of delivery, one original and duplicate as mentioned in the delivery note and the claim was repudiated on flimsy grounds. The complainant suffered lot of mental tension and harassment at the hands of the opposite parties and is entitled to compensation.
9. It was prayed that the complaint may be accepted and the opposite parties may be directed to pay Rs.26,76,150/- i.e. the sum assured of the said car, Rs.5.00 lacs as compensation and Rs.1.00 lac as litigation expenses alongwith interest @ 18% P.A. Consumer Complaint No.73 of 2012 4
10. In the written version filed on behalf of the opposite parties, preliminary objections were taken that the complaint is false, frivolous and malicious. The complainant has not approached this Commission with clean hands and is not entitled to any relief. The detail and voluminous evidence is required and the civil court is competent. No cause of action has arisen in favour of the complainant to file the complaint and the complainant is not a consumer. The claim was rightly repudiated rightly as per terms and conditions of the policy.
11. On merits, purchasing of the car and its price was replied as a matter of record. The opposite parties immediately, upon receipt of intimation of the claim, appointed investigator in the name and style of Glide Investigator, who investigated the matter and gave report dated 09.11.2011. The investigator gave the report that there is delay in intimation and the terms and conditions of the policy were violated. The complainant was issued three keys, whereas he was in possession of only two keys and he left the third key in the car. It was further submitted that the claim was rightly repudiated. Other similar pleas were repeated and denying allegations of the complaint, it was prayed that the complaint may be dismissed with costs.
12. Rejoinder was filed in which averments of the complaint were reiterated and that of the written version were controverted.
13. Learned counsel for the complainant tendered affidavit of the complainant as Ex.CW-1 alongwith documents Ex.C-1 to Ex.C-23.
14. Learned counsel for the opposite parties tendered affidavit of Sh. Ravi Kumar Raizada, Zonal Manager of the opposite parties as Ex.OP-A and affidavit of Investigator Vinod Kumar as Ex.OP-2/A alongwith documents Ex.O-1 to Ex.O-7.
Consumer Complaint No.73 of 2012 5
15. We have heard the arguments advanced by the learned counsel for both the parties and have perused the record carefully.
16. Learned counsel for the complainant argued that the vehicle in question was purchased vide Retail Invoice Ex.C-1 and it was got financed from Tata Capital Limited as per Ex.C-2 and the complainant was paying the installments regularly. The said car was insured vide policy Ex.O-1 with the opposite parties. The said car was stolen in the night of 03.09.2011 and intimation to the police was given immediately on the next day i.e. 04.09.2011. Intimation to the opposite parties was also given vide letter Ex.C-5 dated 04.9.2011 which is duly stamped and signed. FIR is Ex.C-7. Another intimation is Ex.C-8. The opposite party insurance company vide letters Ex.C-11 and Ex.C-12 demanded various documents. Ex.C-14 is the copy of Untraced Report. It has been contended that as per Delivery Note Ex.C-18, duplicate key was issued by Jaycee Automobiles Pvt. Ltd. and there was no third key. The claim was repudiated vide letter Ex.C-23 by the opposite parties.
17. It has been argued that the police was duly informed and the intimation of the incident was also given to the opposite parties immediately, but the claim has been repudiated on flimsy grounds. It has been contended that there was no negligence on the part of the complainant and the story of third key has been concocted by the investigator and the complainant is entitled to the insurance claim as well as compensation and litigation expenses, as lot of harassment was caused by the opposite parties.
18. On behalf of the opposite parties, it was contended that there is delay of 8 days in intimating the opposite parties. The investigation was appointed and the investigator gave the report Ex.O-2 and as per the report of the investigator, the vehicle cannot be Consumer Complaint No.73 of 2012 6 unlocked/started as all the keys are VIN specific. The insured only provided two keys and the third key was not provided. It has been contended that the claim was rightly repudiated and the complaint is liable to be dismissed.
19. We have considered the rival contentions of the parties and have minutely scrutinized the entire record as well as other material placed on the file.
20. The vehicle in question bearing Registration No.PB-10-CT- 2929 was purchased by the complainant for a sum of Rs.28.17 lacs and the same was got comprehensively insured with the opposite parties for the period 31.12.2010 to 20.12.2011 and the Insured Value of the car was Rs.26,76,150/- and premium of Rs.61,116/- was paid. The said car was parked by the complainant on 3rd September, 2011 at about 10.00 P.M. near Hotel Imperial, Ludhiana and the same was stolen by some unknown persons. The complainant immediately moved application Ex.C-4 to Police Station, Divn. No.5, Ludhiana on 04.09.2011 and later on, FIR Ex.C-7 was registered at P.S. Divn. No.5, Civil Lines, Ludhiana. The complainant also moved an application Ex.C-5 on 04.09.2011 to the Manager of opposite party No.1 insurance company at Ludhiana and the same was duly received by the officials of opposite party No.1 on 05.09.2011 under seal and signatures of opposite party No.1. Ex.C6 is the message dated 5th September, 2011 for splashing the details of the stolen vehicle to all dealerships in India.
21. The opposite party insurance company has repudiated the claim vide letter Ex.C-23 on the grounds that there is delay in intimating the insurer and that wallet key was left in the car and the reasonable steps to safeguard the vehicle were not taken.
Consumer Complaint No.73 of 2012 7
22. The opposite party insurance company appointed the investigator and M/s Glide Investigation & Security Services gave the report Ex.O-2 and after detailed discussion, it was concluded that as per the version of the insured, he was provided two keys and third emergency plastic key was not delivered to him. He has taken the impression of the two keys. The FIR is genuine. The invoice of the vehicle is genuine. He further observed as follows:-
"As per the investigation process and verification from the manufacture, they mentioned that the said vehicle cannot be unlocked/started as all the keys of the vehicle are VIN specific. Hence, it is impossible to open the car without the use of actual original VIN specific keys.
I also visited the dealership of audi. As per the verbal confirmation from the authorities, they mentioned that they have submitted all the original keys to the concerned party i.e. Mr. Saravjit Dhanda.
Theft stands genuine. Final decision lies with the underwriter for the above mentioned discrepancies, terms and conditions of the policy."
23. As discussed above, there was neither any delay in intimating to the police station or to the opposite party insurance company, as is clear from the applications Ex.C-4 and Ex.C-5. However, it seems that at the time of recording the FIR, another application was taken from the complainant. The complainant also has moved another application Ex.C-8 and on the basis of this application, the opposite party insurance company has taken the plea that the intimation was given late, but once the opposite party insurance Consumer Complaint No.73 of 2012 8 company was already informed immediately, then submitting of another application does not make any difference and it cannot be considered to be a ground for delay. Lot of correspondence took place between the parties regarding settlement of claim and Untraced Report was later on submitted. Ex.C-18 is the Delivery Note of Jaycee Automobiles Pvt. Ltd., which has delivered the various items, including the duplicate key. There is no mention of emergency plastic key and, as such, there was no question of the delivery of the same to the investigator. The investigator has mentioned that the vehicle cannot be unlocked/started as all the keys of the vehicle are VIN Specific. This observation of the investigator is against the factual position, because as per copy of the newspaper report placed on file, even the sensor locks can be operated by the 'vehicle thieves gangs'. The complainant has parked the vehicle outside Imperial Hotel, Ludhiana at 10.00 P.M. and it cannot be expected, nor there is any such evidence that the keys were left inside the car, or the window was open, as such, there cannot be any negligence on the part of the complainant, nor it can be said that the safeguards which he was required to take, were not taken.
24. The opposite party insurance company has relied upon the affidavit of Sh. Ravi Kumar Raizada, which is attested copy of the written version, investigation report Ex.O-2, repudiation letter Ex.O-3, policy Ex.O-1, another affidavit of Sh. Ravi Kumar Raizada Ex.OP-A, Delivery Note Ex.O-4, wherein again, the duplicate key is mentioned as relied upon by the complainant. Another letter is from Neeraj Bansal to Rohit Khurana regarding delivery of two remote keys and one wallet key, but this letter is dated 6th June, 2012, whereas the Delivery Note is dated 31.12.2010 and this letter seems to have been procured later on Consumer Complaint No.73 of 2012 9 by the opposite party insurance company and is not signed by the complainant. Ex.O-7 is the copies of the Manual.
25. From the above discussion, it is clear that the complainant has intimated the police as well as the opposite party insurance company immediately and there was no negligence on the part of the complainant and he has taken the necessary safeguards, but still the vehicle was stolen. As discussed above, the gangs of thieves, having technical knowledge, can even operate the sensor locks and the repudiation of the claim by the opposite party insurance company was not justified in any manner.
26. Accordingly, the complaint filed by the complainant is allowed and the opposite parties are directed to pay a sum of Rs.26,76,150/- as the sum assured alongwith interest @ 7.5% Per annum from the date of repudiation i.e. 20.07.2012 till realization and to pay Rs.20,000/- as litigation expenses to the complainant.
27. The opposite parties shall pay the entire amount to the complainant within 45 days of the receipt of copy of the order.
28. The arguments in complaint were heard on 10.03.2014 and the order was reserved. Now the order be communicated to the parties.
29. The complaint could not be decided within the stipulated timeframe due to heavy pendency of court cases.
(Inderjit Kaushik) Presiding Judicial Member (Jasbir Singh Gill) Member March 24, 2014.
(Gurmeet S)