Delhi

North East

CC/59/2019

Sh. Agya Singh - Complainant(s)

Versus

ICICI Lombard, General Insurance Co. Ltd. - Opp.Party(s)

31 Mar 2023

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION: NORTH-EAST

GOVT. OF NCT OF DELHI

D.C. OFFICE COMPLEX, BUNKAR VIHAR, NAND NAGRI, DELHI-93

 

Complaint Case No. 59/19

 

 

 

In the matter of:

 

	Sh. Agya Singh S/o Sh. Shobha Singh R/o V-243, First Floor, Rajouri Garden, New Delhi-110027	Complainant
	Versus
	ICICI Lombard General Insurance Co. Ltd. Through its Authorized Representative DDA Market, 1st Floor, 101, J & K Market, Dilshad Garden, Delhi-110095   Also At:- Registered Office: ICICI Lombard House, 414, Veer Savarkar Marg, Near Siddhi Vinayak Temple, Prabhadevi, Mumbai-400025   Also At:- 401 & 402, 4th Floor, Interface-11,New Linking Road, Malad(West), Mumbai-400064	Opposite Party

 

 

DATE OF INSTITUTION:       JUDGMENT RESERVED ON:                           DATE OF ORDER:

07.05.19 16.12.22 31.03.23

 

CORAM:

Surinder Kumar Sharma, President

Adarsh Nain, Member

ORDER

    Ms. Adarsh Nain, Member

The Complainant has filed the present complaint under Section 12 of the Consumer protection Act, 1986.

Case of the Complainant

1. The case of the Complainant as revealed from the record is that the Complainant is the registered owner of the vehicle bearing No. DL8CJ-5353, Model 2003, Vide chassis No. MAK3A355F3N207936, Engine No. B15B90026617 and the same was insured with ICICI Lombard General Insurance Co. Ltd., the Opposite Party vide Policy No. 301/120714734/01/000 valid from 11.08.17 to 10.08.18. It is stated that the vehicle in question was purchased by the Complainant from a dealer in 2005. It is submitted that after purchasing the said vehicle, the Complainant applied for transfer of the insurance of the said vehicle in his name and the Opposite party completed and verified all the formalities for transferring of insurance of vehicle to his name including the verification/checking of the keys of the vehicle. After complete verification, the Opposite party transferred the insurance of vehicle to the name of Complainant. The Complainant further submitted that on 02.05.18, the vehicle in question got stolen and the Complainant had lodged an e-FIR bearing no.014611 dated 02.05.18. The Complainant further stated that on 07.05.18 the Complainant filed the claim for the vehicle in question with the Opposite party and the Complainant received a reply from Opposite Party on 03.09.18 that the availability of keys differs in content and sequence which is contradictory in nature. The Complainant stated that he had sent a legal notice to Opposite Party dated 07.05.18 raising his concern as to insufficient and deficient services of the Opposite Party company. Hence, this shows deficiency on the part of Opposite Party. Complainant has prayed for claim amount of Rs. 2,36,358 and Rs.50,000/- as compensation for mental agony and litigation expenses.

Case of the Opposite Party

2. The Opposite Party contested the case and filed written statement. While taking preliminary objections, it is stated by the Opposite Party the complainant has not disclosed the material information and filed the present complaint based on incomplete facts. There is no cause of action favour of the Complainant as there is no deficiency in service or any unfair trade practice on the part of the Opposite Party. Hence the present complaint is liable to be dismissed. On merits, it has been submitted that as per the report of the investigator, both the keys submitted by the Complainant as original keys are different from each other and mismatched. The forensic expert report also found the keys submitted by the Complainant had different chemical compositions. It is contended that since the Complainant failed to submit both the original keys of the vehicle and also failed to give the satisfactory explanation for the same, the claim of the Complainant was repudiated. It is alleged that the policy becomes void and the Complainant is not entitled to any claim as he had given false statement amounting to wilful and fraudulent misrepresentation. It is further submitted that due to non-submission of both the keys, the inference can be drawn that original key was used in the theft of the vehicle and vehicle was stolen due to the own fault and negligence of the Complainant. Hence, the complaint is liable to be dismissed.

Rejoinder to the written statement of Opposite Party

3. The Complainant filed rejoinder to the written statement of Opposite Party wherein the Complainant has denied the pleas raised by the Opposite Party and has reiterated the assertions made in the complaint.

Evidence of the Complainant

4. The Complainant in support of his complaint filed his affidavit wherein he has supported the averments made in the complaint.

Evidence of the Opposite Party

5. In order to prove its case, Opposite Party has filed affidavit of Atalanta Chakrabarti, Manager Legal in Opposite Party, 4^th Floor, Parasvnath Tower, Red Fort Capital, Gole Market, New Delhi, wherein the averments made in the written statement of Opposite Party have been supported. The Opposite Party has also filed the affidavit of the investigator and affidavit of the key forensic examiner in support of their contentions.

Arguments & Conclusion

6. We have heard the Ld. Counsels for the Parties. We have also perused the file and the written arguments filed by Parties.
7. The case of the Complainant is that the Complainant insured the subject vehicle with the Opposite Party company which was valid from 11.08.17 to 10.08.18. The contention of the Complainant is that the vehicle was stolen 02.05.18 and the theft was intimated to the police immediately. The Information of theft was also given to the Opposite Party insurance company and the Complainant received a reply from Opposite Party that the availability of keys differs in content and sequence which is contradictory in nature. It is alleged that the conduct of the Opposite Party amounts to deficiency in services as they have rejected his claim under a valid policy.
8. On the other hand, the case of the Opposite Party is that as per the report of the investigator deputed by them, both the keys submitted by the Complainant as original keys were different from each other and mismatched. The forensic expert report also found the keys submitted by the Complainant had different chemical compositions. It is contended by the Opposite Party that since the Complainant failed to submit both the original keys of the vehicle and also failed to give the satisfactory explanation for the same, the claim of the Complainant was repudiated on the ground of wilful and fraudulent misrepresentation leading to breach of the terms and conditions of the policy. It is contended that due to non-submission of both the keys, the inference can be drawn that original key was used in the theft of the vehicle and vehicle was stolen due to the own fault and negligence of the Complainant.
9. On perusal of the record, it is revealed that it is undisputed that the Complainant had taken an insurance policy for the vehicle in question. It is also not disputed that the theft took place during subsistence of the policy which was valid on the date of the incident and the intimation was given immediately to the police as well the Opposite Party insurance company.
10.  It is also evident from the FIR and untrace report duly accepted by the Hon’ble Court that the incident of theft of the subject vehicle was genuine. This fact of genuineness of the incident is further corroborated by the Investigator’s report which mentions as follows:-

“In our opinion, from the theft place, police report and other circumstantial evidence, we came to conclusion that the subject vehicle was stolen from 24X7 Rajouri Garden, new delhi on 02.05.2018”.

11. It is to be noted that Hon’ble Supreme Court in the matter titled Om Prakash Vs. Reliance General Insurance and Anr. dated Oct 4,2017 held : “ It is also necessary to state here that it would not be fair and reasonable to reject a genuine claim which has already been verified and found to be correct by the investigator. The condition regarding delay shall not be a shelter to repudiate the insurance claims which have been otherwise proved to be genuine”
12.  In this context, the reliance may very well be placed on a decision of Hon’ble Supreme Court passed in the case titled Jaina Construction Company vs. Oriental Insurance Company limited and Another 2022 SCC Online SC 175, The relevant extract of the same is as under:-

“The District Forum allowed the said claim of the complainant by holding that the

complainant was entitled to the insured amount on non-standard basis, i.e., Rs. 12,79,399/- as 75% of the IDV i.e., Rs. 17,05,865/- with interest @ 6% p.a. from the date of filing of the complaint till realization from the Insurance Company. The District Forum also awarded compensation of Rs.10,000/- and litigation expenses of Rs.5,000/- to the complainant. The aggrieved Insurance Company preferred an appeal being Appeal No. 612 of 2015 before theState Consumer Disputes Redressal Commission (Haryana), Panchkula. The complainant also preferred an appeal being Appeal No. 537 of 2015 seeking enhancement of compensation. The State Commission dismissed the appeal filed by the Insurance Company and partly allowed the appeal filed by the complainant by increasing rate of interest awarded by the District Forum from 6% to 9% vide the Judgment and Order dated 16.12.2015. The aggrieved Insurance Company preferred the Revision Petition before the NCDRC, which set aside the order of Hon’ble State Commission and District Commission. The appellant had thereafter preferred an appeal before Hon’ble Supreme Court. The Hon’ble Supreme Court set aside the order of the Hon’ble National Commission and affirmed the order of Hon’ble State Commission.

13. It is to be noted that the claim has been repudiated on the ground of wilful misrepresentation since Complainant failed to submit the original keys of the stolen vehicle and gave the false statement as to originality of the keys. At the same time, it is also evident that the claim has not been repudiated on the ground that it was not genuine. The said fact has been confirmed by the investigator also who was deputed by the Opposite Party.  At the same time, the contention of the Opposite Party has to be believed that failure to submit original keys suggests towards the negligence of the Complainant in taking due care of the insured vehicle. However, we are of the considered view that the breach alleged is not so fundamental in nature as to render a policy void. Therefore, the Opposite Party was liable to indemnify the Complainant and settle the claim on non-standard basis. Hence, the Opposite Party has committed deficiency in services by rejecting a genuine claim in toto.
14.  Keeping in view the above cited judgments of Hon’ble Supreme Court as well as the discussion held, we are of the considered view that the Complainant is entitled to insured amount on non-standard basis at 75% of the IDV and also the excess under the policy, if any, requires to be deducted.
15. Thus, we allow the present complaint on non-standard basis and direct the Opposite Party ICICI Lombard General Insurance Co. Ltd to pay the complainant 75% of the IDV Rs. 2,36,358/- (Two lakhs, thirty six thousand, three hundred and fifty eight only) less excess, if any with interest @ 6 % from the date of filing of complaint till realization. Opposite Party is liable to pay the same within a period of 4 weeks from the date of receipt of order. In case of delay in the payment beyond 4 weeks Opposite Party will be liable to pay interest @ 6% p.a. for the delayed period.
16. No order as to costs.
17. Order announced on 31.03.23

Copy of this order be given to the parties free of cost.

File be consigned to Record Room. 

(Adarsh Nain)		(Surinder Kumar Sharma)
(Member)		(President)