DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-II
Udyog Sadan, C-22 & 23, Qutub Institutional Area
(Behind Qutub Hotel), New Delhi-110016
Case No.594/2009
M/s Aquatreat Systems & Engineers
28-B, DDA Flats, Ashok Vihar,
Phase-III, Behind L.B. College,
Delhi-110052
through its partner Sh. Naveen Gupta ….Complainant
Versus
Iffco-Tokio General Insurance Co. Ltd.
UW HUB, FAI Building,
10 Saheed Jeet Singh Marg,
Qutub Institutional Area,
New Delhi-110067
Also at:
34, Nehru Place,
New Delhi-110019 ….Opposite Party
Date of Institution : 28.07.2009 Date of Order : 16.10.2017
Coram:
Sh. N.K. Goel, President
Ms. Naina Bakshi, Member
ORDER
Succinctly stated, the partner of the complainant’s firm namely, Sh. Naveen Gupta had purchased a Ford Ikon Car 1.6 SXI bearing registration No. DL8CL0802 for Rs. 5,90,531/- on 31.07.2004 from the dealer and got it insured from OP by paying a premium of Rs.17,076.59 vide policy No. 33140118 which was valid from 31.07.2005 to 30.07.2006. It is stated that on 14.07.2006 the complainant went to a Farm House in Kapas Hera regarding some work in the car alongwith his driver and when he returned he found that the car and driver were missing. When the complainant failed to locate the car, he lodged an FIR No. 249 dated 15.07.2006 with P.S. Kapas Hera. The officials of P.S. Kapas Hera declared the car as untraced but, however, on 25.07.06 the police officials found the car in completely burnt condition near Kundli, Sonipat near Target Fruit Wear Company, G.T. Road which was seized and deposited at Malkhana P.S. Kapas Hera. Consequently, thereafter the complainant lodged a claim with the OP through dealer Harpreet Ford and the dealer gave estimate No.3024 dated 02.08.06 and placed the car of the complainant under category “total loss”. It is stated that the OP appointed Sh. B. S. Kohli, Surveyor & Loss Assessor for settling the claim of the complainant. In response to letters dated 22.08.06 & 31.08.06 the complainant provided all the necessary documents vide his letter dated 04.09.06 to Sh. B. S. Kohli. Sh. B. S. Kohli sent a letter dated 20.10.06 asking the complainant to produce the invoice and driver of the car. Accordingly, the complainant dispatched the invoice of the car and informed Sh. B.S. Kohli vide his letter dated 25.10.16 that the driver is not working with him; that the area where the driver was residing had been demolished by MCD and so he was not having the idea of his whereabouts; that he also apprised Sh. B. S. Kohli that the statements and enquiry details were available with the investigating officer Sh. A. K. Singh of P.S. Kapas Hera as the driver had been taken into police custody for the purpose of investigation on the day when the car was stolen. Thereafter, OP appointed one Sh. Sonu Bhola, Advocate for re-investigating the claim of the complainant who visited the place of the complainant for investigation and enquiry. Thereafter, Sh. Sonu Bhola, Advocate sent a letter dated 29.12.2006 asking the complainant to produce the driver of the car alongwith the Fire Report which was replied by him vide his letter dated 02.01.2007 and again apprised all the facts. When his phone calls, communications through letters and personal visits did not yield any result he sent a legal notice to the OP on 02.06.08 and called upon the OP to settle the claim but the OP did not give any response. Hence, pleading deficiency in service on the part of the OP, he has filed the present complaint. It is prayed that the OP be directed to pay Rs.9,07,570/- (Rs.5,27,657 towards claim amount + Rs.3,79,913 towards interest @ 18% per annum), Rs.2,50,000/- as compensation for causing mental agony and harassment to the complainant and cost of litigation.
OP in the written statement has inter-alia stated that the present complaint is premature as the complainant did not fulfill the requirements of the OP and even despite several reminders the complainant neither produced the relevant papers nor produced his driver for verification and the complainant was in a hurry to move the court instead of making compliance to the OP. OP has admitted the fact regarding lodging of FIR with P.S. Kaspashera. It is admitted that the OP appointed Sh. B. S. Kohli surveyor for investigating into the claim of the complainant. It is submitted that the surveyor as well as the investigator wrote several letters to the complainant to produce all the necessary documents pertaining to the claim of the complainant and the driver for investigation but the complainant did not do so. It is stated that the complainant wrongly stated that on the day when the vehicle was lost, the driver had come late in evening and immediately he was taken into police custody his statement and his statement was available with I.O. Mr. A. K. Singh of P.S. Kapashera. It is stated that the investigator made several requests to the complainant to provide the statement of the driver from the police record and the complainant finally fixed up time to meet the investigator in the P.S. Kapashera on 06.03.07 at 11 a.m. The investigator reached there on the day at the time fixed but the complainant did not reach there and later when the investigator called him over the phone, the complainant made pretence one after another. Ultimately, the investigator contacted the I.O. and I.O. informed that he did not obtain any statement from the driver which is also mentioned in the letter dated 12.03.07 filed by the complainant himself. It is submitted that the claim of the complainant was not settled due to non-cooperation of the complainant and breach of condition 1 of the policy which states as under:-
“Notice shall be given in writing to the Company….. and thereafter the insured shall give all such information and assistance as the Company shall require….”
The policy also contains condition 8 which is as under:-
“The due observation and fulfillment of the terms, conditions and endorsements of this policy in so far as they relate to anything to be done or complied with by the insured and the truth of the statements and answers in the said proposal shall be condition precedent to any liability of the Company to make any payment under this Policy.”
Other averments made in the complaint have been denied. OP has prayed for dismissal of the complaint.
Complainant has filed a rejoinder. It is stated as under:-
“7.1 …It is denied that the Complainant wrongly stated that the day when the vehicle was lost, the driver came late evening and immediately he was taken into the police custody for his statement and his statement is available with the I.O. In reply to this para, it is submitted that the there is no reason or occasion for the Complainant to tell a lie as all the relevant record of event is with the I.O. of the case as it was concerned area police who investigated the case first. Rest of the Contents are also denied”
7.2 … It is denied that the I.O. has stated to the Surveyor that they have not recorded the statement of the driver. The conduct of the Respondent Company goes on to show that in inspite of having all the relevant information for the processing of the claim, they are turning down the same only for the above stated reason, which has little or no bearing over the case.”
Complainant has filed his own affidavit in evidence. On the other hand, affidavit of Sh. P. J. Pradhan, Vice President and affidavit of Sh. B. S. Kohli, Surveyor and Loss Assessor have been filed in evidence on behalf of the OP.
Written arguments have been filed on behalf of the Complainant.
We have heard the oral arguments on behalf of the OP. None has appeared on behalf of the complainant to advance oral arguments despite opportunity given in this behalf. We have also carefully gone through the material placed before us.
From the pleadings of the parties, their respective evidence and the documents filed on the record, the facts which become either admitted or not in dispute are (1) that the Complainant was the owner of the vehicle in question, (2) that the vehicle in question had been stolen from near a farmhouse in Kapashera on 14.07.06 and the complainant had lodged an FIR No. 249 dated 15.07.06 with P.S. Kapashera (3) that on 25.07.07 the police recovered the vehicle in question in totally burnt condition from near GT Road, Sonipat, (4) that the Complainant lodged a claim with the OP through dealer Harpreet Motors who had given estimate No.3024 dated 02.08.06 and placed the car in question under the category of “total loss”, (5) that the OP had been duly informed about the theft of the vehicle and the complainant lodged a claim with the OP.
The OP first appointed Sh. B. S. Kohli, Surveyor & Loss Assessor to assess the loss who asked the complainant vide his letters dated 22.08.06 and 31.08.06 to provide the necessary documents necessary which were supplied by the complainant vide his letter dated 04.09.06; that thereafter, the surveyor asked the Complainant to produce the invoice and the driver of the car. In response to which the Complainant dispatched the invoice of the car and informed the surveyor vide his letter dated 25.10.06 that the driver was no more working with him and that the place where by the driver was residing had been demolished by the MCD and therefore whereabouts of the driver were not known. Thereafter, the OP appointed Sh. Sonu Bhola, Advocate who also asked the Complainant to file the fire report and to produce the driver but, however, the OP did not pass the claim of the Complainant.
Sh. Sonu Bhola, Advocate vide his letter dated 12.03.07 (Ex. C-15) informed the complainant that a meeting had been fixed with the Complainant to meet at P.S. Kapashera on 06.03.07 at 11 a.m. whereby the Advocate reached in time but the Complainant did not turn up till 11.45 a.m. and thereafter made one excuse or the other; that the said Advocate had a discussion with the IO and the IO informed him that he had not obtained the statement of the driver in writing. When the factum of theft of the car in question was not in dispute and it was brought to the notice of the OP that the car had been completely burn at G.T. Road near Sonipat we do not think it proper that the presence of the driver before the Surveyor or either before the said Advocate was necessary. Moreover, the OP has not filed any document on the record to show that the said Advocate had infact discussed the matter with the I.O. on 06.03.07. In our considered opinion, had the Advocate requested the IO to provide the copy of the police file, the IO must have supplied the same to him or else the OP could have easily obtain the copy of the police record under the provisions of the RTI Act, 2005 in order to prove its bonafide. Non-passing of the claim on a lame excuse that the Complainant had failed to produce the driver before the surveyor and the Advocate was itself no ground when there was sufficient material before the OP to reach to the conclusion that the car in question had infact been stolen and that it was case of total loss to the Complainant. However, it seems that the surveyor and the Advocate of the OP had made it a prestigious issue and had been unnecessarily asking the Complainant to produce the driver inspite of the receipt of the information that the driver was no more in the employment of the Complainant and the place where he was residing had already been demolished by the OP and his present whereabouts were not known. In our considered opinion, rejection of the claim on such false grounds must always be discouraged by the District Forums. Therefore, in our considered opinion, the OP was not at all justified in rejecting or not processing the claim of the Complainant.
As per the invoice (copy Ex. C-1) the total value of the car was Rs.5,90,531/-. The date of purchase was 31.07.04. The same was stolen on 14.07.06 which means that the Complainant had already used the car for about two years. Therefore, during this period of two years the value of the car must have depreciated. The Insured Declared Value of the car in the copy of the insurance policy has been shown as Rs.527657/-.
Therefore, we hold the OP guilty of grave deficiency in service, allow the complaint and direct the OP to pay Rs.5,00,000/- in lumpsum alongwith interest @ 6% per annum to the Complainant within 30 days of receipt of copy of this order failing which OP shall become liable to pay interest @ Rs.6% per annum on the amount of Rs.5,00,000/- from the date of filing of the complaint 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 16.10.17
