Delhi

North

CC/125/2021

SUNIL JAIN - Complainant(s)

Versus

ICICI LOMBARD GIC LTD. - Opp.Party(s)

ANUJ JAIN

21 Feb 2024

ORDER

District Consumer Disputes Redressal Commission-I (North District)

[Govt. of NCT of Delhi]

Ground Floor, Court Annexe -2 Building, Tis Hazari Court Complex, Delhi- 110054

Consumer Complaint No125/2021

In the matter of

Sunil Jain

S/o Sh. Shyam Lal Jain

r/o 116-A, DDA Flats. MIG

Shivam Enclave, Shahdara, Delhi-110032                                   …Complainant

         

Versus

ICICI Lombard General Insurance Company Limited

Through its Director

Interface Building No.16 

601/602, 6^th floor

New Link Road Malad (West)

Mumbai-400064

Also at

4^th floor, Red Fort Capital

Parsvnath Towers

Bhai Veer Singh Marg

Gole Market, New Delhi

Delhi-110001                                                                    ...Opposite Party

ORDER
21/02/2024

Ms.Harpreet Kaur Charya, Member

The present complaint has been filed by the complainant, Sh.Sunil Jain, against ICICI Lombard General insurance Company Ltd, the insurer as OP with the allegations of deficiency in services.

1. Facts necessary as per the amended complaint are that the complainant purchased a second hand Honda City car bearing Registration No.DL3CAK7653, got the same insured with OP vide policy No.3001/163704386/01/000 for the period from 18/01/2020 to 17/01/2021 with the IDV of Rs.2,14,000/-. Receipt No.1107729013|1107729035 dated 15/01/2020 was issued for the premium of Rs.7263/-.
2. On 22/12/2020, the insured vehicle was stolen and OP as well as police was duly informed. FIR bearing no.033332/2020 dated 22/12/2020 was registered.  Untraced report dated 08/03/2021 was accepted by Ld.ACMM-01, Central District, Tis Hazari Court, Delhi. 
3. The complainant has alleged that despite complying and following all the process, procedure and instructions of the surveyor, his genuine claim was rejected vide letter dated 04/02/2021 on wrong and unjustified reasons without any document. Legal notice dated 07/04/2021 was served upon OP, which was neither replied nor complied with.  Hence, the present complaint with the prayer for directions to OP to reimburse Rs.2,14,000/- with interest @18% p.a. from the date of theft till realization, compensation of Rs.50,000/- on account of mental and physical pain, agony and harassment and Rs.50,000/- on account of litigation expenses.
4. The complainant has annexed the copy of the Risk Assumption Letter dated 29/01/2020 as Annexure-P-1(colly), copy of the FIR dated 22/12/2020 with PS Subzi Mandi as Annexure-P-2 (Colly), copy of the untraced report dated 08/03/2021 as Annexure-P-3, letter dated 08/01/2021 submitting the requisite documents as Annexure-P-4, repudiation letter dated 04/02/2021 as Annexure-P-5.  Legal notice dated 07/04/2021 alongwith postal receipt and tracking report are Annexure-P-6 (Colly).
5. Notice of the present complaint was served upon OP.  Thereafter, written statement was filed on their behalf taking several preliminary objections in their defence.   They have submitted that the complainant is not a consumer under the provisions of Consumer Protection Act, 1986 (sic), there is  suppression of material fact.  It has been submitted that the insured did not take due pre-caution and care as a prudent man would in keeping safe the insured vehicle from theft. The complainant had handed over two keys of the vehicle stating both the keys to be original however, on forensic report it was found that the keys submitted by the complainant were not similar and one of them was duplicate.   Thus, an inference may be drawn that the complainant had left the key in the ignition which led to the theft of the vehicle.
6. Observations as per the forensic investigation report are:-

Based on thorough and in depth study of forensic, physical, visual and stereo microscopic examination of the two keys in opinion.

1. Key-1  and Key-2 are not original manufacturer made. 
2. Both the keys are unused. Key-1 shows manual scratch marks as well Key-2 shows manual fabrication marks.

That the ignition key marked “Key 1” and “Key 2” for examination were subjected to physical examination under high magnification, followed by morphological examination with stereo Microscope (a digital microscope with binocular lenses and built in camera for comparing specimens at higher magnification) and also multiple wavelength radiation studies under Video Spectral Comparator (an imaging device with UV, IR and visual radiation sources to visualize striations and other minute scratches and marks).

That on physical examination of both the keys it was found that the length of Key 1 is 82.56 mm while for Key 2 is 84.64 mm.

7. They have further submitted that the claim was lawfully repudiated vide letter dated 04/02/2021 on the ground as:-

....on perusal of documents and facts it is found that the statement given by you regarding the availability of your keys differs in content & sequence & which contradictory in nature. Please refer to declaration as contained in the claim Form signed by you wherein it is declared “If I have given/made any false or fraudulent statement/information, or suppressed or concealed or in any manner failed to disclose mal information, the policy shall be void & that I shall not be entitled to all/any rights to recover there under in respect of any or all claims, passed present or future...also it state No material information, which is relevant to the processing of the claim which in any matter has a bearing on the claim, has withheld or not disclosed.

In the circumstances, you are, therefore, informed that the above caption claim as made by you hereby stands as “no claim”.

8. Rest of the contents of the complaint have been denied with the prayer for dismissal of the complaint with heavy cost.  OP has annexed the Forensic report dated 19/01/2021 as Annexure-A with the written statement. 
9. Rejoinder to the written statement was filed by the complainant where he has reaffirmed the contents of the complaint and denied those of the written statement.  It has been denied that the complainant was negligent in taking care of the insured vehicle.  He has stated that he had submitted both keys which were in his possession as received from the previous owner. It has also been denied that the keys handed over by the complainant were not same. 
10. The complainant has also submitted that he is not aware as to what keys were submitted to the forensic expert for investigation as no due process and procedure for examination was followed by OP or surveyor or forensic expert as none of those keys were neither sealed nor unsealed in the presence of the complainant or any other independent witnesses.  The complainant has annexed Reminder -1 dated 29/01/2021 seeking certain documents as Ex.PW1/4 with the rejoinder.
11. Evidence by way of affidavit was filed by the both the parties.  The complainant has got himself examined he has repeated the contents of his complaint and rejoinder.  The complainant has got exhibited the copy of the insurance policy and receipt as Ex.PW1/1; copy of FIR as Ex.PW1/2; copy of untraced report as Ex.PW1/3; copy of receiving provided by agent of OP as Ex.PW1/4; copy of repudiation letter as Ex.PW1/5.  He has also got exhibit the copy of legal notice dated 07/04/2021 as Ex.PW1/6.
12. OP has got examined Sh.Rohan Mishra, Manager Legal, ICICI Lombard General Insurance Co.Ltd.  He has also reiterated the submission made in the written statement and got exhibited the copy of Forensic report as Ex.OPW1/1.
13. We have heard the arguments on behalf of Ld. Counsel for the parties and have also gone through the written arguments filed on behalf of both the parties. 
14.  Perusal of the material placed on record shows that the existence of policy, theft and its intimation is not in dispute. The claim of the complainant was rejected vide repudiation letter dated 04/02//2021 (Ex.CW1/5) on the ground that the statement given by the complainant regarding the availability of keys , differs in contents and sequence which is contradictory in nature hence, the claim stood rejected.  The OP has relied upon the forensic report dated 19/01/2021(Ex.OPW1/1). The keys were received by the expert on 12/01/2021, we have carefully gone through the forensic report, nowhere in the report it has been mentioned that the keys were received by the Forensic expert in sealed package. Corresponding to the column description of keys it bears “Two keys with Plastic key holder and metallic blade bearing HONDA logo.” Even, same is substantiated by the photographs in the forensic report that the keys sent for examination were not sealed. Thus, the objection taken by the complainant in para 9-11 of his rejoinder holds valid ground that the complainant is not aware that the keys which were submitted by the complainant to the surveyor were given for examination or not as none of those keys were sealed nor unsealed in the presence of complainant or independent witness.  In rebuttal OP has filed nothing on record to show that due procedure was followed while collection of samples/keys.
15.  The evidentiary value of the 2 keys in a forensic evaluation might be compromised as the said keys were not sealed in the presence of the complainant, there’s a possibility of tampering or substitution before they reached the forensic examiner.  This raises doubt on the handling of the keys. OP in present case has failed to follow proper procedure for collecting, packaging & sealing evidence, especially in the presence of complainant. Thus, the observations/results of the forensic report are questionable and do not inspire confidence.
16. OP has also not placed any statement of the complainant upon which they have relied while rejecting the claim. The complainant is the subsequent purchaser of the insured vehicle and the keys were handed over to him by the previous owner. OP has not disputed this fact. Thus, we are of the opinion that the rejection of the claim is unjustified and amounts to deficiency in services.
17. Hence, the rejection of the claim relying upon the forensic report is unsustainable. Therefore, in the facts and circumstances of the present complaint, we direct OP to pay:
    1. Rs.2,14,000/-  being the IDV of the vehicle.
    2. Interest @7% p.a. on IDV from the date of filing of present complaint (09/08/2021) till realization,
    3. Compensation of Rs.15,000/- on account of mental and physical pain, agony and harassment and,
    4.  Rs.10,000/- on account of litigation expenses.
18. The order be complied with in 30 days from the date of receipt of order. In case of non-compliance with in the stipulated time, the OP shall be liable to pay interest @9% per annum on (a)+(c)+(d), from the date of order till realisation.
19. Office is directed to supply the copy of this order to the parties as per rules. Order be also uploaded on the website.  Thereafter, file be consigned to the record room.

 

 

(Harpreet Kaur Charya)              Member	(Ashwani Kumar Mehta)                          Member   (Divya Jyoti Jaipuriar)           President