DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-II

Udyog Sadan, C-22 & 23, Qutub Institutional Area

(Behind Qutub Hotel), New Delhi-110016

Case No. 380/2013

Shri Narottam Das,

RZ-108, Gali No.10, Kailash Puri Extn.,

New Delhi-110045                                                          ….Complainant

Versus

1.      ICICI Lombard General Insurance Co. Ltd.

S-13, 2^nd Floor, Green Park Extn.,

Near Upahar Cinema, New Delhi-110016       

2.      The General Manager,

          Sikka Hyundai, Mayapuri Industrial Area,

          Phase-1, Delhi                                            ….Opposite Parties

                                                  Date of Institution      :         01.07.13      Date of Order     :        13.06.19

Coram:

Sh. A.S. Yadav, President

Ms. Kiran Kaushal, Member

ORDER

Member - Kiran Kaushal

1. Briefly put the complainant Narottam Das got his vehicle insured from ICICI Lombard General Insurance Co. Ltd. (OP-1) for a period from 19.09.2012 to 18.09.2013. It is averred that the complainant purchased the Santro Car to run it as a Taxi for his livelihood. Accordingly, the complainant informed OP-1 that the vehicle in question should be insured as commercial vehicle but OP-1 had mistakenly insured the vehicle under Private category. The complainant raised his objection regarding the same and asked OP-1 to rectify the mistake.
   1. In the meantime, on 21.05.2013 the said vehicle met with an accident and got badly damaged. The complainant took his vehicle to the authorized workshop i.e. Sikka Hyundai Mayapuri Industrial Area (OP-2) and subsequently raised the claim of the vehicle with OP-1.
   2. The complainant had got his vehicle financed from Shriram Transport Finance Co. Ltd. (OP-3). OP-1 appointed a surveyor to survey the accidental vehicle in question. But despite the surveyor’s report OP-1 refused to give the insurance claim on the ground that the vehicle in question was being used for the commercial purpose whereas it was insured under the private category.
   3. Despite several requests by the complainant, OP-1 refused to repudiate the claim or give anything in writing regarding the same.
   4.  Aggrieved by the circumstances above, the complainant approached this forum with following prayers :-

1. Direct the OP-1 to pass the claim of the complainant and pay the required bill against the said repair.
2. Direct the OP-1 to pay the insured value of Rs.3,50,000/- along with interest @ 12% till the realization of the payment.
3. Direct the OP-3 not to demand the installments till the pendency of the case.
4. Direct the OP-1 and OP-2 to pay the compensation of Rs.1,00,000/- to the complainant towards mental agony, mental torture, harassment, financial loss etc.
5. Direct the OPs to pay Rs.35,000/- to the complainant towards the litigation and miscellaneous expenses.
   1. OP-1 filed its written statement resisting the complaint and raised preliminary objection stating that the complainant himself has submitted that the vehicle was being used for commercial purpose as such the compliant is not maintainable. It is submitted that during the pendency of the complaint, OP-1 made the payment of Rs.1,90,000/- to the financer (OP-3) who after deducting the charges gave a cheque of the remaining amount of Rs.1,01,400/- to the complainant.
   2. Pursuant to the withdrawal of the said amount, OP-1 amended its reply by moving an application. OP-1 in its amended reply inter-alia stated that the complaint is liable to be dismissed on the ground that the complainant has received Rs.1,90,000/- as per policy terms and conditions which was acceptable to him and he has taken the said amount towards full and final payment.

3. None appeared on behalf of OP-2 despite service. Therefore, OP-2 was proceeded exparte vide order dated 21.04.2014.
4. Rejoinder to the written statement of OP-1 is filed by the complainant wherein facts of the complaint are reiterated. Evidence by way of affidavit is filed by the complainant. Evidence of Shri Vikash Goyal Manager Legal has been filed on behalf OP-1.
5.  Written arguments have been filed by the complainant and OP-1.
6. Arguments on behalf of the complainant are heard. Proxy cl. of OP-1 was present and despite providing opportunity to OP-1 none appeared on its behalf to advance oral arguments.
7. The fact that the complainant during the pendency of the complaint had consented to receive Rs.1,90,000/- towards full and final settlement cannot be ignored while deciding the case. Though before encashing the amount of Rs.1,01,400/- the complainant has sought the permission of the Forum and stated that the complainant is not satisfied with the amount paid by OP-1 but had accepted the same under protest and without prejudice to his rights to claim the balance amount. Copy of the settlement letter duly signed by the complainant giving his consent for settling the claim is exhibited as Exhibit RW-1/A. Having given the consent after being explained the final assessment of the loss of the vehicle now the complainant cannot state that he did so under protest. Further it is noticed that no detailed report of the estimated bill of repairs of the vehicle or surveyors report has been provided. Hence, in the absence of any cogent evidence whether the vehicle has actually been repaired or not or what was the bill paid by the complainant it is not possible to form any opinion whether the complainant was not paid the full value of repairs of the vehicle. Therefore, we cannot ascertain any deficiency on this account.
8. The complainant has filed the slips of parking charges paid for the said vehicle. The parking slips are beyond pleadings and with no context. Merely, placing on record the parking slips does not establish that the vehicle is not roadworthy and is lying parked in disused condition.
9. However, we are of the opinion that OP-1 was deficient in service by not rectifying their mistake as regards to the policy in question which was admittedly later on corrected and the claim was disbursed. Therefore, by not providing the rightful claim of the complainant stating that the policy was a private vehicle policy whereas the complainant had declared that he was running the vehicle as a commercial cab, led the complainant to initiate the complaint. Had OP-1 rectified the policy initially and given the rightful claim of the complainant, the complainant would not have filed the present complaint. Hence, this Forum is of the opinion that OP-1 is deficient in service in this regard and is therefore liable to compensate the complainant for harassment.
10. Therefore, we partly allow the complaint and direct OP-1 to pay Rs.10,000/- @ 6% per annum from the date of filing of the complaint till realization.
11. OP-1 is directed to pay the complainant within a period of two months from the date of receipt of the copy of this order failing which the OP-1 shall become liable to pay interest @ 9% p.a. on the aforesaid amount from the date of complaint made to OP-1 till realization.

Let a copy of this order be sent to the parties as per regulation 21 of the Consumer Protection Regulations. Thereafter file be consigned to record room.

Announced on 13.06.19.