Delhi

West Delhi

CC/15/774

SURESH CHAND - Complainant(s)

Versus

HDFC LIFE INSURANCE - Opp.Party(s)

28 Nov 2022

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-III: WEST

GOVT. OF NCT OF DELHI, C-BLOCK, COMMUNITY CENTRE, PANKHA ROAD, JANAK PURI NEW DELHI

 

COMPLAINT CASE NO. 774/2015

In the matter of :

SHRI SURESH CHAND GUPTA

SON OF SHRI LAKHPAT RAM BUPTA,

R/O T-1390, HANGOLURI, DELHI-110083                                     ...... COMPLAINANT

 

VERSUS

M/S.HDFC ERGO GENERAL INSURANCE COMPANY LTD.

UNIT NO.582, 504 & 506, 5TH FLOOR, MAHATTA TOWER,

B-1 BLOCK, COMMUNITY CENTRE,

JANAKPURI, NEW DELHI-110058.

 

ALSO AT

2. REGISTERED & CORPORATE OFFICE:

1ST FLOOR, 165-166 BACKBAY RECLAMATION,

H.T.PAREKH MARG, CHURCHGATE,

MUMBAI-408 020                                                                       .... RESPONDENT.

 

 

DATE OF INSTITUTION:     JUDGMENT RESERVED ON:                DATE OF DECISION:

16.11.2015 09.11.2022 28.11.2022

 

Ms Sonica Mehrotra, President

Ms Richa Jindal, Member (Female)

Mr Anil Kumar Koushal, Member (General)

Order passed by Ms Richa Jindal, Member

 

ORDER

1. That the complainant has filed a present complaint under section 12 of the Consumer Protection Act, 1986. Brief facts of the complaint are as follows:

 

1. The complainant is running his business in Transport. He is the Registered owner of the Tempo Eicher bearing Registration No. DL-1LS-3196 Model 2013. He got the said vehicle insured with the Opposite party under Goods Carrying Vehicle Package Policy vide Policy No.2315200768885500000 for the period from 24.1.2015 to 23.01.2016 after paying a premium of Rs 24,199/- for IDV of Rs. 6,56,500/-. The Original papers R/C and Insurance, Permit, Fitness and Pollution certificate in original were kept in the said vehicle. In fact vehicle was stolen the intervening night of 30/01/2015-31/01/2015.  The Police report of the abovesaid theft of the vehicle was lodged with Mangolpuri, Outer District, Delhi bearing FIR No.227 dated 31.01.2015 under Section 379 IPC. The information about the theft of the said vehicle was also given to the respondent/opposite party through e-mail which was duly acknowledged by the respondent.

 

2. The police could not trace out the said vehicle of the complainant and ultimately issued the untrace report dated 28.4.2015 thereby informing that in spite of their best efforts there is no clue about culprits and the stolen property in the above-noted FIR case No.227/15 dated 31.1.2015 under Sec.379 IPC P.S.Mangolpuri, Delhi.

 

3. The fact of the theft of the vehicle was also intimated by the SHO Police Station Mangolpuri, Delhi on 11.2.2015 to the MLO State Transport Authority, Rajpur Road, Delhi.

 

4. The complainant filed his claim and submitted the documents to the respondent/Opposite party whose claim was registered as reference No.0230014119551. Vide letter dated 26th March 2015 the OP asked the complainant to submit the following documents:

 

1. Service Record
2. Copy of GR/Builty.
3. Original Keys
4. Court CertifiedUntraced Report which was duly submitted on 11.3.2015 to the respondent/OP for investigation. Thereafter vide letter dated 13th July 2015, the OP demanded the Tax Receipt for Permit & Fitness which was also furnished. Thereafter vide letter dated 18th August 2015, the respondent informed the complainant that his claim is under process and further requested to submit all original keys to enable them to process of his claim. In Vide letter dated 29th September 2015 the complainant was informed that M/sSuraksha Enterprises was appointed to investigate of the theft claim thereafter the said Surveyors asked for certain documents from time to time and the complainant complied with and furnished all the documents and information sought by them and also handed over to them the keys of the said vehicle. The complainant also furnished the Deed of Subrogation cum Indemnity dated 11th March 2015 to the respondents.

 

5. Thereafter vide letter dated 26th September 2015, the respondents informed the complainant that their Grievance Officer shall interact with the respective department(s) and will revert to the complainant with the resolution within 2 weeks from the date of receipt of the complaint. Thereafter vide letter dated 28th September 2015, the abovesaid Surveyors M/s. Suraksha Enterprises appointed by the respondents informed the complainant that " The Six keys provided by the complainant are different from each other, and he is requested to kindly provide them with the genuine keys of the insured vehicle. Thereafter vide letter dated 29th September 2015, the respondent/opposite party informed the complainant that during the investigation it was observed that the six keys, provided by the complainant are different from each other and after several reminders, the complainant is unable to provide them with the genuine keys of the insured vehicle and as such in the light of the above, they would not be able to honour their liability for the said loss and are constrained to close the claim as "No claim" their record.

 

6. The respondents vide letter dated 5th October 2015 informed the complainant in reply to his e-mail dated 5th October 2015 that they have forwarded the claim of the complainant to their claim's officer and that they shall revert to the complainant shortly within 3 working days.

 

7. Thereafter vide e-mail letter dated 6th October 2015, the opposite party informed the complainant that this is concerning his e-mail dated October 5, 2015 regarding claim number C2300014119551 and that in this regard the Complainant requested to review his case but OP has upheld its stand on the aforesaid claim as no claim.

 

8. The rejection of the claim of the complainant by the opposite party is illegal on the face of it. The complainant is entitled to the claim as per the Insured’s Declared Value and rejection by the Opposite party is illegal, arbitrary and baseless. The abovesaid act of the Opposite party is illegal, malafide and unjustified and also against the principles of natural justice.

 

1. The complainant is under constant mental tension and agony which has been caused by the respondent/opposite party without any just and sufficient cause whatsoever.

 

10. In view of the submissions made above, the opposite party is guilty of deficient services as provided under the Consumer Protection Act. The complainant has no other efficacious remedy left with him, but to seek his grievances by filing the present complaint. Wherein the complainant prays for the following reliefs :

- to reimburse the IDV amount ofRs.6,56,500/ (Rupees Six lakhs Fifty Six thousand, five hundred only) against the cost of the vehicle

- to pay Rs.1,00,000/- (One Lakhs only) as compensation for illegal harassment and mental agony caused to the complainant by the respondent along with cost of the litigation.

 

2. After hearing the arguments on admission, a court notice was issued to OP’s returnable on 21/01/2014, accordingly OP appeared and took time to file a reply. Accordingly, OP filed a reply on 26/05/2014 taking the following preliminary objection:
   1. The complaint has not come before the Hon'ble Forum with clean hands and has manipulated, concealed and twisted the facts to mislead the Hon'ble Forum for the reason best known to him and has tried to mislead the Hon'ble Forum with false averments.
   2. The complaint is based on false and baseless allegations and the complainant has intentionally and willfully not submitted true facts of the case and further has suppressed the material facts and documents in regard, and in these circumstances, the present complainant is liable to be dismissed.
   3. The Opposite Party has issued a Goods carrying vehicle Package Policy bearing No:- 2315200968805500000 against vehicle bearing No:- DL ILS 3196 in the name of Complainant Sh. Suresh Chand Gupta for the period commencing from 24-01-2015 to 23 01-2016 subject to terms and conditions of the Insurance Policy.
   4. Upon receipt of the intimation of the claim, the Opposite Party has immediately appointed an IRDA-accredited surveyor Suraksha Enterprises to investigate the vehicle for expedited processing of the claim.
   5.  For processing any claim, the Insurance Company requires the necessary documents to refer to and to process the claim. It is submitted that since after the intimation of claim the op causing any deliberate and unnecessary delay appointed the Investigator to investigate the Insurance claim and submit the investigation Report and since there is no proven deficiency in service on the part of the Opposite Party the key elements for the Complaint are not maintainable and are liable to be dismissed.
   6. Upon investigation it was found that the theft has taken place between the intervening nights of 30-01-2015 to 31-01-2015. However, the answering Opposite Party has received intimation for theft, after a considerable delay of 2 days, i.e. on 02-02-2015, which amounts to a violation of Condition 4 of the terms and conditions of the Policy. The terms of Condition 1 are reproduced herein below for ready reference;

"Condition 1. Notice shall be given in writing to the Company immediately upon the occurrence of any accidental loss or damage and in the event of any claim and thereafter the insured shall give all such information and assistance as the Company shall require."

7. Further it was found that the set of six keys of the vehicle submitted by the Complainant, all were different from each other, Opposite Party wrote several letters and consequent reminders to the complainant to submit the originals keys of the vehicle, however the Complainant even after several reminders could not provide the original keys which amounted to a violation of Condition 4 of the terms and conditions of the Insurance Policy. "The Company shall not be liable to make any payment in respect of the insured shall take all reasonable steps to safeguard the vehicle from maintaining it in efficient condition and the company shall have at all times free and full access to examine the vehicle or any part thereof or any driver or employee for loss or damage and to the Insured. In the event of any accident or breakdown, the vehicle shall not be left unattended without proper precaution being taken to prevent further damage or loss and if the vehicle be driven before the necessary repairs are effected any extension of the damage or any further damage to the vehicle shall be entirely at the Insured's own risk."
8. That in light of the above facts and circumstances of the case the claim of the complainant was closed due to violation of terms and conditions of the Insurance Policy vide letter dated 29-09-2015.
9. The said vehicle was on hypothecation with ICICI Bank and the Bank has intimated to the Opposite Party that the Complainant has yet not made the complete payment of the loan, therefore payment if any made against the loss of the aforementioned vehicle should be made in favour of ICICI Bank and not the Owner/ Complainant.
10. The Opposite party immediately after receiving the intimation got the claim of the complainant investigated and only after considering each and every fact of the case has closed the claim after proper application of the law. Hence there is no deficiency in service on the part of the Opposite party.
11. The law regarding, failure to take reasonable safeguards and caution, the Hon'ble National Commission has time and again upheld the repudiation done by the Insurance company.
12. That deficiency in service is one of the key elements for the maintainability of the Compliant. Since there is no proven deficiency in service on the part of the Opposite Party the Complaint is not maintainable and is liable to be dismissed.

 

3. On 20/09/2016, the complainant filed a rejoinder rebutting the defence taken by the OP and as well as complainant’s evidence on the same day.Brief facts of the rejoinder are as follows:  

1. The said Surveyors appointed by the respondents informed the complainant that " The Six keys provided by the complainant are different from each other, and he is requestedto kindly provide them the genuine keys of the insured vehicle and after several reminders, the complainant is unable to provide them the genuine keys of the insured vehicle. The said allegations are false. The keys provided were genuine and the Surveyors have taken a false plea with malafide designs.
2. It is denied that upon investigation it was found that the theft has taken place between the nights of 30.01.2015 to 31.01.2015 and the answering Opposite party received intimation for theft, after a considerable delay of 2 days, i.e. on 02.02.2015, which amount to a violation of condition no.4 of the terms and conditions of the Policy as alleged. The allegations are false. The Police report of the theft of the vehicle was lodged with Mangolpuri, Outer District, Delhi bearing FIR No.227 dated 31.01.2015 under Section 379 IPC. The information of the theft of the said vehicle was also given to the respondent/opposite party through e-mail which was duly acknowledged by the respondent. There is no violation of any kind on the part of the complainant of any such condition No.4 of the Terms and conditions of the Policy. The allegations are false and baseless.
3. It is denied that to rule out the possibility of theft due to negligence of the driver, all the original keys were asked to be submitted so that the fact that no original key was left in the vehicle which resulted in theft as alleged. It is denied that upon observing that the keys were different from each other, the Opposite party wrote several letters and consequent reminders to thecomplainant to submit the original keys of the vehicle as alleged.
4. The respondents acted illegally and their actions in rejecting the claim of the complainant are illegal, unjustified, malafide and unwarranted by law. There was no violation of the terms and conditions of the Insurance Policy on the part of the complainant The alleged repudiation letter dated 29.09.2015 is illegal and baseless.
5. The vehicle was hypothecated with ICICI Bank and information of the theft of the vehicle was also made to the Bank. The complainanthad already paid around 32 instalments through ECS and the abovesaid fact was informed by the complainant to the ICICI Bank he has shown his inability to make the payment of the subsequent instalments till his claim is paid by the OPS/ Insurance company.

 

4. The complainant has filed his evidence by way of an affidavit affirming the facts alleged in the complaint on the same day. The complainant has filed his evidence as CW1/PW1 by way of his affidavit and he has relied on the following documents:

 

1. Copy of the Election I Card No. DL/03/024/270397 dated 25.9.2007 of the deponent is Exh.CW.1/1.
2. Copy of the R.C. of the vehicle bearing no. DL 1 LS 3196 in the name of the deponent is Exh.CW.1/2.
3. The copy of the Authorization Certificate of N.P. (Goods), bearing Regn. Dated 30.01.2013 of Vehicle No. DL 1 LS 3196 is Exh.CW.1/3.
4. Copy of the Insurance Policy No. 2315200968805500000 issued by the HDFC Ergo General Insurance Co. Ltd. is Exh.CW.1/4.
5. Photocopy of the FIR no. 227 dated 31.1.2015 of Police Station Manglopuri, Outer District, under Section 379 IPC is Exh.CW.1/5.
6. Photocopy of the Untrace Report issued by the SHO P.S. Mangolpuri dated 20.04.2015 are Exh.CW 1/6 (colly).
7. Copy of the Order dated 01.06.2015 passed by Shri Ashish Aggarwal, M.M. Rohini Courts, is Exh.CW.1/7.
8. Photo copy of the Vat/Tax Invoice dated 24.01.2013 is Exh.CW.1/8.
9. Copy of the information letter dated 11.02.2015 issued by SHO P.S. Mangolpuri, Delhi to the MLO State Transport Authority, Rajpura Road, Delhi is Exh.CW.1/9.
10. Copy of the certificate of fitness issued by the Transport Department is Exh. PW. 1/10 (colly).
11. Copy of the letter No. F.336/MLO(GQ) TPT/2015 dated 09.08.2015 is Exh.CW.1/11.
12. Copy of the Report dated 9.2.2015 of Suraksha Enterprises, surveyors is Exh.CW.1/12.
13. Copy of Deed of subrogation cum Indemnity dated 11^th March, 2015 is Exh.CW.1/13.
14. Copy of the letter of Suraksha Enterprises dated 26^th March, 2015 is Exh.CW.1/14.
15. Copy of the letter dated 13^th July, 2015 of the surveyors M/s. Suraksha Enterprises issued to the deponent is Exh.CW.1/15.
16. Copy of e-mail letter dated 18^th August, 2015 of the deponent to the Insurance Company is Exh.CW.1/16.
17. Copy of the letter dated 26^th Sep, 2015 of Insurance Company to the deponent is Exh.CW.1/17.
18. Copy of the letter dated 28.09.2015 of the surveyors Suraksha Enterprises issued to the deponent is Exh.CW.1/18.
19. Copy of the letter dated 29^th Sep, 2015 of the Insurance Company to the deponent is Exh.CW.1/19.
20. Copy of the email dated 5^th Oct is Exh.CW.1/20.
21. Copy of the email letter dated 6^th October, Exh.CW.1/21.

 

5. Thereafter when the matter was adjourned for respondent evidence of OP 1 and 2, on 28/07/2017, Sh. Pankaj Kumar, Manager (Legal) of OP has filed his affidavit in evidence on behalf of the respondents affirming the facts alleged in the reply & exhibited policy schedule alongwith terms & conditions and repudiation letter dated 28/09/2015.

 

6. Both parties filed written arguments on 31/05/2016. Oral arguments were heard on 9/11/2022 and finally, order was reserved.

 

7. After going through the material placed on record, a short question arose for consideration as to whether the Complainants were entitled for the claim amount or not.
8. During the oral arguments complainant states that the amount of Rs.6,56,500/ (Rupees Six lakhs Fifty Six thousand, five hundred only) the cost of the vehicle/sum insured covered under the said Policy bearing No.2315 2009 6880 5500 000 due to the theft/total loss of the vehicle which was stolen on 30.1.2015 for which the FIR No.227 dated 31.1.2015 of Mangolpuri P.S. Outer District, under Section has been registered and Untrace Report dated 20.4.2015 has been issued by SHO Police Station Mangolpuri, Delhi and confirmed by the court of Shri Shirish Aggarwal M.M Rohini dated 1.6.2015 against which claim was also filed by the complainant to the OP without any delay.

 

9. During the arguments the OP placed upon reliance of following judgements :-

1. Hon'ble NCDRC in the case of National Insurance Co. Vs Ram Ram Singh Gujjar, decided on, 18 Sept 2015, upheld that there was clear violation of Condition 5 and that "the Complainant was under obligation to take away keys while leaving the vehicle for easing...."
2. That the law regarding, failure to take reasonable safeguard and caution, the Hon'ble Apex Court in Suraj Mal Ram Niwas Oil Mills (P) Ltd. Vs. United India Insurance Co. Ltd. 2011 CTJ (Supreme Court) (CP) held that "in construing the terms of a contract of insurance, the words used therein must be given paramount importance, and it is not open for the court to add, delete or substitute any words. It is also well settled that since upon issuance of an insurance policy, the insurer undertakes to indemnify the loss suffered by the insured on account of risks covered by the policy, its terms have to be strictly construed to determine the extent of liability of the insurer'.
3. Further, that the Hon'ble National Commission finding strength from the Hon'ble Apex Court judgment in Jagdish Prashad Vs. ICICI Lombard General Insurance Co. Ltd. R.P No. 1996 of 2012 decided dated 14.05.2013 held that, "the negligence on the part of the complainant by leaving his vehicle unattended and unlocked, is violations of the terms and conditions of the policy and for that reasons, there was n sufficient to hold that there is deficiency in service in repudiating the claim of the complainant by the opposite party."
4. Hon'ble Apex Court in Ravneet Singh Bagga Vs KML Royal Dutch Airlines &Ors., Appeal Civil No. 8701 of 1999 dated 02.11.1999 has clearly held that;

"If on facts it is found that the person or authority rendering service had taken all precautions and considered all relevant facts and circumstances in the course of the transaction and that their action or the final decision was in good faith, it cannot be said that there had been any deficiency in service."

 

10. Bharti Axa General Insurance ... vs Sarvjit Dhanda decided on 26 May, 2015 by NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI FIRST APPEAL NO. 405 OF 2014 held that “It is nowhere case of the complainant that car was stolen after starting it. The complainant submitted in the complaint that he parked his car, went inside the hotel and returned after some hours and did not find a car. Whether the car has been stolen by starting it or by lifting it, the complainant is not aware and, in such circumstances, merely because the car has been fitted withina specific advanced technology system, it cannot be presumed that car could have been stolen only by leaving the wallet key in the car.

 

11. It is admitted fact the complainant filed his claim with relevant documents to the respondent/Opposite party whose claim was registered as Reference No.C230014119551. Thereafter vide letter dated 26th March 2015, the respondent/OP asked the complainant to submit certain documents, which were duly submitted on 11.3.2015 to the respondent/OP for investigation. Further, vide letter dated 13th July 2015, the respondent/OP demanded the Tax Receipt for Permit & Fitness which was also furnished. Thereafter vide letter dated 18th August 2015, the respondent informed the complainant that his claim is under process and further requested to submit all original keys to enable them to process his claim. In vide letter dated 29th September 2015, the complainant was informed that M/s. Suraksha Enterprises was appointed toinvestigate the theft claim and the said Surveyors asked for certain documents from time to time the complainant complied with and furnished all the documents and information sought by them and also handed over to them the original keys of the said vehicle.

 

12. The complainant also furnished the Deed of Subrogation cum Indemnity dated 11th March 2015 to the respondents. After the collection of all documents, the Surveyors have taken a plea about the genuineness of the keys and recommended the claim be repudiated and the OP as per recommendation repudiates the claim of the complainant. The claim was repudiated for breach of condition no.4 of the insurance policy dealing with the obligation of insured to take all reasonable steps to safeguard the subject vehicle against any loss or damage. On the other hand, the learned advocate of the complainant submitted that the key given by the complainant to the surveyor was the same key which was handed over by the manufacturer of the car to the complainant.But the OP did not file any documents or report of CFSL regarding the duplicity of keys as to whether they are original or tempered in support of the contention raised in their defence. Hence it cannot be said that the complainant did not take proper care to safeguard the loss of the vehicle.As per the settled proposition of law, insurance companies cannot be too technical while settling the claim. Hence, the plea taken by OP in support of their defence and at the time of repudiation of the claim has no footing.

 

13. It is pertinent to note that the report was immediately lodged with the police after the insured vehicle was stolen away by some unknown person. Moreover, it is also not the case of the OP that intimation of the incident of theft was not given immediately to it by the Complainant. It is also the specific allegation of the Opposite party that the insured vehicle was stolen away with the help of the original key which was misplaced from the custody of the Opposite Party. And the onus is on the OP to prove this allegation but they failed to prove their case.

 

14. Moreover, concerned police after making due investigation filed "A" summary report which was granted by the competent Judicial Magistrate, First Class. It, therefore, shows that the report lodged about the theft of the vehicle was true and there was no suspicion or doubt about the theft of the insured vehicle.

 

15. Thus, the only question that survives for our consideration is whether the said vehicle was stolen away due to the negligence of the complainant or not. In our view, as there is no iota of evidence to show that the original key was actually misplaced from the custody of the complainantor not or as per the allegation of the OP the vehicle was stolen with the help of an original key used by the thief for stealing the insured vehicle, even if we accept the contention of the OP for argument’s sake, it cannot be presumed that the vehicle was stolen away with the help of the same misplaced key. Hence it cannot be said that simply because one of the original keys was lost or misplaced from the custody of the complainant, the aforesaid condition No.4 of the policy about taking proper care of the car by the complainant is violated.

 

16. Thus, we are of the considered view that all the aforesaid decisions relied on by the learned advocate of the OP are of no assistance to the OP since the aforesaid issue involved in the present case was not involved in those cases. The facts and circumstances of the present case are thus totally different from those of the said cases relied on by the learned advocate of the OP.

 

17. The OP failed to prove that there was negligence on the part of the complainant in leaving the key in the car. We thus hold that as it is not proved that the insured car was stolen away due to any negligence or failure of the complainant in taking its proper care, the repudiation of the claim by the Opposite Party constitutes a deficiency in service on its part. 

 

18. In the light of the above discussion, no negligence can be attributed to the complainant so as to blame it for not taking reasonable steps for safeguarding the vehicle or for alleging any breach of condition of policy on its part.

 

19. The case of the complainant is not falling into any of the general exceptions mentioned in the policy. The policy also contains general conditions and condition no.4 which has been relied upon by the defendant for rejecting the complainant's claim does not cover the fact situation of the present case. Condition no. 4 envisages that the insured shall take all reasonable steps to safeguard the vehicle from any loss and damage. Whereas in the instant case both the original keys were available with the complainant and the same was handed over to the investigator defendant has mentioned the loss of the original key of the vehicle which is totally contrary to the record as the complainant had duly handed over both the keys to the investigator. In the evidentiary affidavit, Complainant has categorically deposed that the complainant had taken all reasonable steps to safeguard the vehicle in as much as the vehicle was properly parked by the driver outside the residence of the complainant; the vehicle was properly locked at the time of parking of vehicle; all reasonable care was taken by complainant company to keep the vehicle safeguarded from any loss or damage. Considering the fact that both the original keys were available with the complainant there was no question of negligence on the part of the complainant. In view thereof, the plea taken by the defendant in a letter dated 29/09/2015 for repudiating complainant's the claim is totally illegal, arbitrary and contrary to the record thus making it liable to be declared null and void. The issue is accordingly decided in favour of the complainant and against the defendant.

 

20. The Hon’ble Supreme Court in a catena of judgement on a similar issue was of the considered opinion, that the violation of the condition should be such a fundamental breach that the claimant cannot claim any amount whatsoever. As far as the violation is concerned, this has consistently been held not to be a fundamental breach and, on this behalf, we may refer to the judgments of this Court in the case of National Insurance Co. Ltd. v. Swaran Singh, (2004) 3 SCC 297, National Insurance Co. Ltd. v. Nitin Khandelwal, (2008) 11 SCC 259, and B.V. Nagaraju v. Oriental Insurance Co. Ltd., (1996) 4 SCC 647. In Lakhmi Chand v. Reliance General Insurance, (2016) 3 SCC 100, the Hon’ble Supreme Court held that to avoid its liability, the insurance company must not only establish the defence that the policy has been breached but must also show that the breach of the policy is so fundamental in nature that it brings the contract to an end.

 

21. Further Hon’ble Supreme Court in case title “Gurmeet Singh v. National Insurance Co. Ltd.” , decided on 20.05.2022 held that the Hon’ble Court believed that in many cases, it is found that the insurance companies are refusing the claim on flimsy grounds and/or technical grounds. It observed,

“The insurance company has become too technical while settling the claim and has acted arbitrarily. The appellant has been asked to furnish the documents which were beyond the control of the appellant to procure and furnish. Once, there was valid insurance on payment of a huge sum by way of premium and the Truck was stolen, the insurance company ought not to have become too technical and ought not to have refused to settle the claim on non-submission of the duplicate certified copy of the certificate of registration, which the appellant could not produce due to the circumstances beyond his control.”

22. Supreme Court in the case of "Lucknow Development Authority vs. M. K. Gupta" reported in [(1993) CPJ 7 (SC)] and other Judgments wherein it has been held that for deficiency in service in case of statutory duty also proceedings for the damages under the tort is maintainable against the statutory authorities.

 

23. In the case of "Lucknow Development Authority" (supra), the Hon'ble Supreme Court held that the legislative intent is clear to protect a consumer against services rendered even by statutory bodies. Considering the larger issue, the Apex Court held that a Government or Semi-Government body or a local body is as much amenable to the Act as any other private body rendering a similar service. There can be no doubt that the OPs could be proceeded against under the Act.

 

24. The OPs have thus committed an unlawful act by repudiating the genuine claim of the Complainant on time and therefore have failed to discharge their statutory functions. Though there was negligence on the part of the OPs, the negligence was not malafide.

 

25. On the point that the vehicle in question was not kept in terms of the policy concerned, it may be stated here that the purpose of getting the vehicle in question insured by the complainant with the OP i.e. insurance company by paying premium was to feel secure that he would be protected in case of theft of vehicle and when the same was stolen away during the period of insurance, it was obligatory on the part of the insurance company to indemnify the complainant for the loss suffered by him on account of theft of vehicle and repudiation of the claim by the OP insurance company could not be justified.

 

26. Apart from that, it may be stated here that so far as the exclusion clause of which benefit was sought is concerned, that was not part of the contract and the insurance company would not be entitled to get the benefit of that. From that point of view also, the repudiation of the claim could not be justified.

 

27. The Complainant however in the Complaint specifically pleaded that he had suffered a lot of mental tension over the last several years for not getting his genuine claim on time. Even in his affidavit-in-evidence he specifically narrates the whole incidence of his mental agony. Hence in our opinion, the Complainant is entitled to the compensation as prayed for in the complaint from Opposite Party.

 

28. Thus, in light of the above discussion, in the present case. we allow the complaint, and set aside the repudiation order since the rejection of the claim was highly unjustified, unwarranted and unfounded, therefore, it amounted to a deficiency in service on the part of O.P.

 

29. In view of the above, the complaint filed by the complainant is allowed only against the opposite party. Therefore, OP is held liable for deficiency of service and is hereby directed:-

 

1. To pay the IDV of Rs.6,56,500/- (Rupees Six lakh Fifty-SixThousand Five Hundred Only) alongwith interest @ 6% per annum from the date of filing of complaint i.e. 16/11/2015 till realization to the complainant.
2. To pay litigation expenses of Rs.5,000/- to the complainant.
3. To pay a sum of Rs. 15,000/- as compensation to the complainant.Since the subject vehicle is hypothecated with ICICI Bank the financer who has not been made a Performa party to the petition, the award amount shall be payable to the complainant only after the deposit of NOC from the Financer before the Commission by the complainant, and in case the loan of the M/s ICICI Bank has not been repaid then the decretal amount shall first be used to pay M/s ICICI Bank amount and the balance, if any, shall be paid to the Complainant.

 

30. Let the order be complied with by the complainant to procure NOC from the financier i.e. M/s ICICI Bank& submit it to OP & file it in the Commission as well within 15 days of receipt of a copy of this order after which OP is directed to comply with this order within 30 days from the date of receipt of the NOC from the complainant.
31. Let the order be complied with by the complainant within 15 days of receipt of a copy of this order & OP to comply with this order within 30 days of receipt of NOC from the complainant.
32. Let a copy of this order be sent to each party free of cost after receiving the application for the certified copy as per the direction received from the Hon’ble State Commission.
33. File be consigned to record room. Announced on 28/11/2022.

 

 

 

Richa Jindal                              Anil Kumar Koushal           Sonica Mehrotra

(Member)                                            (Member)                (President)