Before the District Consumer Dispute Redressal Commission [Central], 5th Floor ISBT Building, Kashmere Gate, Delhi
Complaint Case No.-51/21.04.2022
M/s Print Marking,
8892/14B, Second Floor, Sidipura Market
Karol Bagh, Delhi-110005
Through its Partner Shri Daman Singh Tevatia ...Complainant
Versus
M/s Cholamandalam MS General Insurance Co. Ltd.
Through its Managing Director/ Authorised Representative
Regd. Off. Dare House, 2nd Floor no. 2,
N.S.C. Bose Road, Chennai-600001.
Also at:
Plot no. 39, Second Floor, Samyak Tower,
Pusa Road, Near Metro Pillar No. 120,
Karol Bagh, New Delhi-110005 ...Opposite Party
Order Reserved on: 22.03.2023
Date of Order: 28.04.2023
Coram: Shri Inder Jeet Singh, President
Shri Vyas Muni Rai, Member
Ms. Shahina, Member -Female
Vyas Muni Rai
ORDER
1.1. The present complaint has been filed by M/s Print Marking, Karol Bagh, Delhi through its partner Sh. Daman Singh Tevatia (in short the complainant) against M/s Cholamandala MS Gen. Insurance Company Ltd. through its Managing Director/ Authorised Representative (in short OP) u/s 35 of the Consumer Protection Act, 2019. The complainant is unregistered partner firm carrying on its business of laser printing and sublimation printing from its business establishment at Karol Bagh, Mr. Daman Singh Tevatia and Sh. Sachin Singh Kaushik are partners (photocopy of the partnership deed has been annexed at page 16 to 19 and authorization letter in favour of Mr. Daman Singh Tevatia on behalf of firm is annexed at page no. 20 of the complaint).
1.2. Complainant is the owner of motorcycle/ bike having registration no. DL 3 SES 4680, the registration certificate of the motorcycle is in possession of the OP (tax invoice and registration certificate have been placed on page no. 21 and 25 with the complaint). The complainant got the vehicle insured with effect from 14.11.2020 to 13.11.2021 vide policy no. 3397/01830412/000/00, IDV of Rs. 87,970/- (policy at page no. 25A and 26 of the complaint).
1.3. On 24.01.2021, Mr. Daman Singh Tevatia, one of the partners of the complainant parked his motorcycle in front of complainant office at Karol Bagh and also kept the key and the original papers of the vehicle with him, however, at evening around 04:00pm when the complainant came to the parked site of the vehicle, the same was not there; immediately he made a PCR call at 100 number from his mobile- phone informing the police about the theft of the vehicle; on 25.01.2021 Sh. Daman Singh Tevatia lodged a FIR no. 002366 u/s 379 IPC with police station, D.B.G. Road (copy of FIR has been kept at page no. 56 with the complaint).
1.4. Complainant vide email dated 25.01.2021 informed OP of the incident; OP vide its email dated 29.01.2021 acknowledging the email dated 25.01.2021 of the complainant and further stated that a service request #5611784 has been logged and also stated that request team of the OP will get back to the complainant within next 3 working days (copy of the emails of the parties dated 25.01.2021 and 29.01.2021 have been annexed at page no. 58-59 of the complaint); in the email dated 29.01.2021 (at page no. 59), OP has mentioned that, “we acknowledges receipt of your email, and a service request has been logged for the same- request number is mentioned on the subject of this email, our customer service will get back to you within next three working days.”
1.5. OP in furtherance of its email dated 29.01.2021, sent an email dated 05.03.2021 (page no. 60 of the complaint) “with reference to your claim query, we request you to note that your claim has been intimated vide claim registration no. 3397052843; you may contact our regional claims team on 011-39813122 for any further assistance on claim accordingly”, and “ we deeply apologized for delay in response”.
1.6. OP appointed Real Claims Investigators to investigate into the incident and the investigators submitted its motor theft investigation report dated 31.03.2021 (page no. 61 to 65 of the complaint) and in the column of observations at point no. 1 that the theft claim of the bike is found genuine, however, at serial no. 5 of the observation, the investigator has observed “that as per intimation sheet date of intimation to insurer on 05.03.2021, DOL is 24.01.2021, hence 40 days delay in intimation to insured; next day of the theft on 25.01.2021, Mr. Daman Singh had intimated to insurer through email and got confirmation from insurer on 29.01.2021 print out of the email enclosed herewith.
1.7. Police, after completion of its investigation in respect of FIR no. 002366/21 filed its final “untraced report” which was accepted by the Court of ACMM, Tiz Hazari Courts vide order dated 14.06.2021 (copy of the untraced report generated from system is at page no. 66 of the complaint). The complainant vide email dated 15.06.2021 informed OP as well as investigators about the fact of acceptance of Final Report as “untraced” (copy of email dated 15.06.2021 at page 67 of complaint).
1.8. Complainant also enquired about the status of the motor insurance claim which was submitted along with all the necessary documents as required by the OP (copy of the claim form on page no. 68-71 of the complaint).
1.9. However, the complainant received a shocking letter dated 10.08.2021 from the OP of rejecting/ refusing the claim of the complainant, wherein, inter alai, it is mentioned that theft of vehicle took place on 24.01.2021 and the claim was intimated on 05.03.2021 belatedly by 40 days (copy of repudiation letter dated 10.08.2021 is at page no. 72 of the complaint) which constitutes serious breach of the conditions of the insurance policy, however, the case of the complainant is that vide email dated 25.01.2021, he had informed the OP about the theft of the motorcycle and by email dated 29.01.2021, OP had also acknowledged the receipt of email dated 25.01.2021(supra). In fact, OP by its email dated 05.03.2021 apologized for delay in response and also provided claim registration no. 3397052843 to the complainant (page no. 60 of paper-book).
1.10. Complainant also served legal notice dated 04.09.2021(page no. 72-73) to OP to pay the claim amount within 15 days but in vain.
1.11. The complainant complains deficiency of service on the part of the OP in not releasing his lawful claims and has further alleged that the same was rejected on false and frivolous ground with mala fide intention.
1.12. In view of the above, the complainant has prayed for Rs. 99,176/- [i.e. Rs. 87,970/- being insured claim amount and Rs. 11,206/- being interest at the rate of 18% pa to effect from 10.08.2021 to 25.04.2022 to the complainant]; he has also claimed from OP amount of Rs. 2,00,000/- as compensation for mental harassment; apart from Rs. 21,000/- as litigation cost.
2. OP has filed reply under the signature of its authorized signatory ( without disclosing name and designation of the signatory). In its reply, under the head preliminary Objections, OP has denied each and every allegations as levied by the complainant against the OP being false and frivolous. OP has also submitted that case by unregistered partnership firms is barred u/s 69(2) of the Partnership Act, as the claimant firm was not registered, as such present case needs to be dismissed, the complaint is not maintainable as the vehicle was purchased by the partnership firm which is engaged in commercial business and is not used for earning livelihood; the complainant is not a consumer as defined in the Consumer Protection Act. OP has also pleaded that there is no deficiency in services and complainant is bound by the policy condition, hence, complaint is not maintainable and is liable to be dismissed, the alleged theft took place on 24.01.2021, whereas intimation about theft was given after the delay of 40 days i.e. on 05.03.2021.
3. OP has also cited many decided cases in its written reply, which are not material in the facts and circumstances of the present case; in its reply on merit, there is repetition of the stand taken and new facts are given. OP has also cited a case in the matter of Oriental Insurance Co. Ltd Vs Muni Mahesh Patel IV (2006) CPJ I(SC) has submitted that Civil Court is the appropriate forum to decide the case which are complicated in nature in which oral and documentary evidences are required to be led.
4. The complainant has filed a detailed rejoinder to reply under the signature of its authorized signatory and has denied the stand of OP. The rejoinder filed by complainant is reiteration of its stand taken in the complaint and has also denied the applicability of the case law given in the reply of the OP.
5. Both the parties have filed their affidavits of evidence, wherein, stands/ pleadings of the complaint and written reply have been reiterated. Both the parties also filed their written arguments and perusal of the same reveals that the pleadings of the complaints and reply have been repeated.
6. We have considered rival contentions of the parties, documents on record with affidavit for evidence, submissions in their reply and written arguments of the parties.
7. At the outset, the plea of the OP that complainant is not the consumer is not sustainable in law as complainant is covered under the definition of consumer given in Sec. 2(7) of CP Act, 2019. Further, OP’s stand that the vehicle was used for the commercial purpose is also not sustainable, since in rejoinder, the complainant has pleaded & discussed the expression “commercial purpose” that the vehicle in question was purchased in the name of the complainant firm and it is personally used by the partners of the complainant solely for the purpose of running business and for earning their livelihood. It is never the case of parties that vehicle is being used as means of transport for profit purpose, since business of complainant is a laser printing therefore, the complainant is duly covered under the definition of the ‘consumer’ as per Section 2(7) of the Act, wherein, it excludes by expressing, “but does not include a person who avails of such service for any commercial purpose”.
However, the explanation in Section 2(7) (ii)(a) read as-
“(a). the expression ‘commercial purpose’ does not include use by a person of goods bought and used by him exclusively for the purpose of earning his livelihood, by means of self-employment”.
In this regard, the Hon’ble Supreme Court of India in case National Insurance Company Ltd. vs. Harsolia Motors and others (Civil Appeal no. 5352-5353 of 2007 has held that:-
“Transaction in reference to which the insurance claim has been raised by the respondent has no direct nexus with the profit generated activity and the insurance cover was obtained only to cover the loss, if any, being supplied on account of theft or by natural calamity.”
8. OP took strong objection that complainant is an unregistered partnership firm and complaint is barred by Sec. 69(2) of Partnership Act, 1932. However, the reasons are misplaced. Firstly- ‘consumer’ is defined u/s 2(7) of Act 2019, it means any ‘person’. Section 2(31) defines ‘person’ and as per sub-clause 2(31)(ii), ‘person’ includes ‘a firm (whether registered or not)’. Secondly Section 69(2) a Partnership Act 1932, is in respect of effect of non-registration of firm that no suit lies to enforce right under contract before civil court, whereas complaint under C.P. Act, 2019 before Consumer Fora is neither a ‘suit’ nor ‘ Consumer Fora is civil court’. Thirdly, as per Section 100 of C.P. Act, 2019, the provisions of this special law are in addition to & not in derogation of other law in force. Thus, it is held that complaint by unregistered partnership firm is a “competent complaint”.
9. As we have gathered, letter dated 10.08.2021 (Annexure- N Page 72) of the OP repudiating the claim of the complainant is solely based on the fact that there was delay of intimation by complainant of 40 days to the OP vide letter dated 05.03.2021 of the complainant, however, throughout in the pleadings, and in evidence the complainant proved email that the complainant reported the incident on 25.01.2021 to the OP and OP also acknowledged the same vide its email dated 29.01.2021(supra). Complainant has never sent any delayed email dated 05.03.2021 to the insurer as claimed by the OP. In fact, this email dated 05.03.2021 is OP, wherein, at the outset, OP has deeply apologized for the delay in response and requested the complainant to note that his claim has been intimated vide claim Registration no. 3397052843.
10. We have perused and gone through the citation/ judgments mentioned in reply by OP , however, those judgments are not applicable to the facts and circumstances of the case, hence, it needs not to refer them.
11. The entire case of OP revolves around allegation of 40 days delay to inform OP by the complainant. However, OP’s own letter dated 05.03.2021 demolishes its stand. The objection of OP does not sustain.
12. On the issue of delay in informing the OP about the incident by the complainant, we would like to refer that in Om Prakash vs Reliance General Insurance [(2017) 9SCC 724] Hon’ble Supreme Court has held that delay in informing about the theft to the Insurance Company would not debar the insured from getting the claim. However, Hon’ble Supreme Court in the matter of Oriental Insurance Co. Ltd vs Parvesh Chander Chadha [(2018) 9 SCC 798], while accepting the contention of the insurance company, in that case held that in case of delay of intimation about the theft to the Insurance Company, the Insurance Company has a valid ground for repudiating the claim. Both the judgments were also referred in Gurshinder Singh vs Shriram General Insurance Company Ltd & Anr [(2020) 11 Supreme Court Cases 621], which was referred to a larger bench for answering the reference that which judgment from Om Prakash (supra) and (Pravesh Chander Chadha (supra) would prevail. Thereafter, this issue was examined by the Hon’ble Supreme Court in Gurshinder Singh vs Shriram General Insurance Company Ltd. & Anr [(2020) 11 SCC 612] (three Bench) and concurred with the view taken in the Om Prakash case (supra) and held as under:-
“ 20. We, therefore, hold that when an insured has lodged the FIR immediately after the theft of a vehicle occurred and when the police after investigation have lodged a final report after the vehicle was not traced and when the surveyor/ investigator appointed by the insurance company have found the claim of the theft to be genuine, then mere delay in intimating the insurance company about the occurrence of the theft cannot be a ground to deny the claim of the insured.”
In view ratio of law in Gurshinder Singh case (supra), it is very clear that in case the FIR is lodged in time, the delay in lodging the claim with OP has no relevance, in repudiating the claim.”
13. From the analytical discussion, it is clear that complainant had valid claim of theft of vehicle, but OP denied on non-existent and non- sustainable grounds. Moreover, a frivolous plea of delayed information is also taken as a devise to deny claim. It is not fair on the part of OP. It is also deficiency in services. The complainant is held entitled for valid claim of total loss of theft of sum insured of Rs. 87,970/-.
14. Accordingly, we direct the OP to pay to complainant Rs. 87,970/- being insured claimed amount. Since complainant was put to unnecessary inconvenience & harassment, amount of Rs. 15,000/- is assessed as compensation for mental harassment, apart from Rs. 10,000/- as litigation cost to be paid to the complainant within 30 days from the date of receipt of this order.
However, if the aforesaid amount is not paid by the OP within 30 days from the receipt of the copy of this order, then claim amount of Rs. 87,970/- would be payable to the complainant with interest at the rate of 6% pa from the date of filing of the complaint till its realization.
15. Copy of this Order be sent/provided forthwith to the parties free of cost as per rules for necessary compliance.
16: Announced on this 28th April, 2023.
[Vyas Muni Rai] [ Shahina] [Inder Jeet Singh]
Member Member (Female) President
