Delhi

North

RBT/CC/263/2022

SANTOSH PASWAN - Complainant(s)

Versus

IFFCO TOKIO GENERAL INSURANCE CO LTD - Opp.Party(s)

25 Nov 2023

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

RBT/CC No/263/2022

                                                                                    [DCDRC-V CC No.511/2018]

In the matter of

Sh. Santosh Paswan

S/o Sh. Nakhhedi Paswan

H. No. B-277, JJ Colony

Sector-4, Rohini,                                                                        ...Complainant

 

Versus

M/s Iffco-Tokio General Insurance Co. Ltd.

Unit No.23-24, Ist floor,

Pearls-Omaxe Mall, Netaji Subhash Place,

Pitam Pura, Delhi-110034.

Regd. Office:

Iffco Sadan, C1,

District Centre, Saket,

New Delhi-110017.                                                                   ...Opposite party

           

                                                                                   ORDER
                                                                                 25/11/2023

Ms.Harpreet Kaur Charya, Member

The present complaint has been received by way of transfer vide order No.F.1/SCDRC/Admn./Transfer/2022/330 dated 16/04/2022 of Hon’ble Delhi State Consumer Dispute Redressal Commission, where the matter was transferred from DCDRC-V (North West) to this Commission. 

1. The Complainant, Sh. Santosh Paswan has alleged deficiency in services and unfair trade practice against M/s Iffco Tokio General Insurance Co. Ltd., OP. Facts necessary for the disposal of the present complaint are that the Complainant got his e-rickshaw, bearing Registration No.DL-11-ER-1499, model June, 2016, Chasis No.MP41PJJ110B1L00007, Engine No.48B850WY14081422837 insured from OP vide Policy No.68363815 by paying a premium of Rs.4,536/-. The policy period being 02.12.2016 to 01.12.2017 with IDV of Rs.90,500/-.
2. It has been stated by the Complainant that he was plying the said e-rickshaw for earning his livelihood and maintaining his family comprising of him, his wife and three minor daughters. On 03.04.2017 at about 09:45 AM the Complainant took passengers from Madhuban Chowk to Kohat Enclave Metro Station and was waiting for new passengers at Kohat Enclave Metro Station, where two persons hired the Complainant for going to NSP, Pitampura and then back to Pitampura market. The Complainant has further stated that they gave him a drink appearing to be a ‘Frooti’. After consuming the said drink, the Complainant become un-conscious and giddy and thereafter he was taken by the PCR to Mahavir Hospital, Pitampura, Delhi.
3. On 04.04.2017, the Complainant was discharged from the hospital and upon his statement, an F.I.R. bearing No.137/2017 dated 04.04.2017 was registered under Section 379/328 and 34, IPC at P.S. Subhash Place. The Complainant has alleged that the police failed to recover the said e-rickshaw till date and OP failed to settle the claim despite the fact that they were informed immediately regarding the theft of the insured e-rickshaw.
4. It has been further stated by the Complainant that, the OP delayed the  settlement and rejected the claim without any just and sufficient reason and vide letter dated 28.04.2018 asked the Complainant to submit the Original Final Report under Section 173 Cr.PC (duly signed by Judicial Magistrate), which was submitted by the Complainant.
5. Finally, the OP repudiated the claim vide letter dated 07.06.2018 on the ground that the insured vehicle was snatched/ robbed by some unidentified miscreants at the material time of loss and the insured was not having a valid Driving License to drive the vehicle. The said claim was repudiated under General Exception No.3(b) which stated that the company shall not be liable for any accidental loss/ damage while the insured vehicle is being driven by any person other than a driver as stated in the Drivers’ Clause. Hence, the claim was not tenable and closed the file as ‘NO CLAIM’.
6. The Complainant has submitted that the rejection of the claim is arbitrary, unconstitutional and unjustified as the Complainant is having a Learner’s License DL-11/LL/42689/16-17 which was issued vide Application No.8362931611 dated 26.11.2016 issued by Transport Department of Govt. Of NCT of Delhi, Zonal Office, North West-2, Rohini, Delhi, with validity from 26.11.2016 to 25.05.2017, thus the same was valid at the time of incident of theft i.e. 03.04.2017.
7. It has been alleged by the Complainant that as per the Learner’s License a person/holder of Learner’s License is licensed to drive a motor vehicle of the following description throughout India and, in case of e-rickshaw or e-cart throughout NCT of Delhi except the prohibit roads, as a learner, subject to the Provision of Rule 3 of the Central Motor Vehicle’s Rules, 1989 “E-rickshaw”.
8. As OP did not settle the claim for 1-1/4 years, the Complainant has suffered a loss of earning of Rs.300/- to Rs.350/- per day and is unable to maintain his family. Feeling aggrieved by the rejection of the claim, the Complainant has prayed for direction to OP to pay the claim amount of Rs.1,08,000/- along with interest at the rate of 18% p.a.; compensation of Rs.1,00,000/- for mental agony and physical harassment; directions to OP to pay Rs.300/ from 03.04.2017 for loss of earning and livelihood by the Complainant and Rs.11,000/- as cost of litigation.
9. The Complainant has annexed the photocopy of the RC of the insured vehicle, Form-3 of Learner’s License, vehicle particulars issued by Transport Department receipt dated 19.12.2016, Disclaimer issued by Transport Department dated 19.12.2016, Form-38 (Certificate of Fitness dated 19.12.2016), Invoice dated 02.12.2016 issued by Nanya Motors Pvt. Ltd., Insurance Policy 02.12.2016, FIR No.137/2017 dated 04.04.2017 P.S. Subhash Place, letter to RTO, Transport Department received on 10.04.2017, Status Report 30.07.2017, Untrace report dated 17.08.2017, Surveyor report dated 21.08.2017, letter dated 28.04.2018 and 09.01.2018 seeking original final report (duly signed by Judicial Court Magistrate), Order dated 26.04.2018 of Ld. CMM (NW) Rohini, Affidavit submitted by the Complainant along with the list of documents submitted by the Complainant and claim repudiation dated 07.06.2018 along with envelope have been annexed with the complainant.
10. Notice of the present complaint was issued to the OP.
11. Written Statement was filed on behalf of the OP where they have taken objections such as the Complainant has created a false story of theft/ robbery; Complainant was not co-operative in processing of his claim and delayed the requirements for settlement of the claim.
12. They have submitted that at the time of theft/ robbery, the Complainant was not having any valid Driving License thereby he had violated the General Exception Clause No.3 (b) of the policy which states that the company shall not be liable for any accidental loss/ damage while the vehicle insured is being driven by any person other than a driver as stated in the Drivers’ Clause. As per Rule(3) of Central Motor Vehicle Rules, 1989 ,in case a the vehicle is being driven by the learner’s license holder when he has besides him a person duly licensed to drive the vehicle and in every case the vehicle carries ‘L’ plates both in the front and in rear of the vehicle, as the Complainant has nowhere stated that he was accompanied by any expert driver at the time of incident thus, the Complainant was in violation of condition no. of 3(b) of Policy terms & conditions.
13. They have further submitted that the Complainant himself taken liquor and got unconscious and if the insured vehicle was standing there, the Police ‘might’ have taken the e-rickshaw in the possession and ‘might’ have taken the said    e-rickshaw to the Police Station. It has also been submitted that why the Complainant had taken anything from a stranger and why he had handed over the keys to the miscreants, thus ,the conduct of the Complainant was of        gross-negligence.
14. Another objection taken by the OP is the violation of the condition no.7of policy terms & conditions, wherein the Complainant had to put his claim through arbitration of any other alternate mode of dispute resolution mechanism.
15. Rejoinder to the Written Statement was filed by the Complainant where the contents of the complainant have been reiterated and those of the written statement have been denied. It has been submitted that the vehicle carried ‘L’ plates both in the front and in the rear of the e-rickshaw and the Complainant had complied with the Rule (3) of the Central Motor Vehicle Rules, 1989. Violation of policy terms and conditions has also been denied.
16. Evidence by way of Affidavit was filed by the parties. Complainant has reiterated the contents of the complaint. He has relied upon the documents annexed with the complaint and has got exhibited Registration Certificate of e-rickshaw as Ex.CW-1/1, Policy Certificate/ Cover Note as Ex.CW-1/2, Certificate of fitness as Ex.CW-1/3, Insurance Policy/cover note as Ex.CW-1/4, Invoice dated 02.12.2016 as Ex.CW-1/5, FIR as Ex.CW-1/6, untraced report by the police as EX.CW-1/7, letter dated 28.04.2018 as Ex.CW-1/8, letter dated 09.01.2018 as EX.CW-1/9, order dated 26.04.2018 of the Ld. CMM as Ex.CW-1/10, Repudiation letter dated 07.06.2018 as Ex.CW-1/11.
17. Sh. Neeraj Verma, General Manager Claims, has been examined on behalf of the OP. He has also re-affirmed the contents of the Written Statement and has filed the investigator report as Annexure R-1, Repudiation letter dated 07.06.2018 as Annexure R-2 and policy cover note as Annexure R-3 (however they have written in the Affidavit as the policy with terms & conditions).
18. We have heard the argument of Ld. Counsel for the Complainant and Ld. Counsel for the OP and have gone through the written arguments.Factum of existence of insurance cover; claim and theft are not in dispute.
19. It is pertinent to note that in the Ex.CW-1/11, the repudiation letter dated 07/06/2018, OP has stated that “Mr. A. P. Taneja” has been appointed as Investigator, however, letter dated 21/08/2017 has been filed by  the complainant, and investigation report filed by OP, the investigator is “Baljeet Associates” as Annexure-R-1. Thus, there is discrepancy in the name of the investigator.
20. The investigator has confirmed the loss of insured vehicle due to theft .OP has filed the Investigator’s Report; however they have not filed the statement of the complainant enclosed with it. 
21. OP has rejected the claim of the complainant on the ground that there was breach of general condition 3(b) of the policy, which states that the insured vehicle was being driven by person not having a valid license to drive.  The complainant has rebutted the same by placing on record the Learner’s Licence issued by Transport Department of Government of NCT of Delhi, Zonal office, North West-2, Rohini, which  was valid at the time of incident of theft of the insured vehicle.
22. Though, in the repudiation letter OP has relied upon the General Exception No.3 (b) of the policy however, the same has not been filed by OP.  As per the

Driver Clause in the policy cover note any person including insured: provided that the person driving holds and effective driving license at the time of accident and is not disqualified from holding or obtaining such a license.Provided also that the person holding an effective learner’s license may also drive the vehicle and that such a person satisfies the requirements of Rule 3 of the Central Motor Vehicle Rules, 1989.The said defence has been rebutted by the complainant in his rejoinder.

23. It is clear that as per the FIR and the pleadings, though the complainant was possessing a Learner’s License but at the same time he, was not accompanied by a person having effective driving license, which is in contravention of the requirement of the Central Motor Vehicle Rules, 1989.  At the same time this fact cannot be ignored that it is the claim for “Theft” and not accident.
24. In the matter of National Insurance Company Ltd. v. Nitin Khandelwal, IV (2008) CPJ 1 (SC), the insurance claim filed by the insured in relation to theft of his vehicle was repudiated on the ground that the vehicle was being plied in violation of the terms and conditions of the insurance policy as a taxi. In the said case, Hon’ble Supreme Court held thus:

“In the case in hand, the vehicle has been snatched or stolen. In the case of theft of vehicle breach of condition is not germane. The appellant Insurance Company is liable to indemnify the owner of the vehicle when the insurer has obtained comprehensive policy for the loss caused to the insurer. The respondent submitted that even assuming that there was a breach of condition of the insurance policy, the appellant Insurance Company ought to have settled the claim on non-standard basis. The Insurance Company cannot repudiate the claim in toto in case of loss of vehicle due to theft.”

 

25. Similarly, Hon’ble Supreme Court  in the case of “Amalendu Sahoo vs. Oriental Insurance Company Ltd., (2010) 4 SCC 536”, has held that in case of any variation from the policy document/any breach of the policy document, the Insurance company cannot repudiate the claim in toto and the claim of the complainant ought to be settled on non-standard basis.
26. Same view has been reiterated by Hon’ble Apex Court in “Ashok Kumar vs New India Insurance Co. Ltd.” III (2023) CPJ 58 (SC), therefore, in the light of the above judgments the rejection of the theft claim in toto by OP is unsustainable and it amounts to deficiency in service, which has caused financial hardship and mental agony to the complainant, who was solely dependent on earning from the insured vehicle. The OP should have settled the claim on non- standard basis.
27. Therefore, in the facts and circumstance of the present complaint and in the interest of justice, we direct OP to pay:-

1.  Rs.67,875/- being the 75% of the IDV of Rs.90,500/-.
2. Interest @7% p.a. on Rs.67,875/- from the date of filing of claim till realization.
3. Compensation of Rs. 15,000/- on account of mental agony and harassment.
4. Rs.7,500/- as cost of litigation.

28. The order be complied with in 30 days from the date of receipt of order. In case of non-compliance, the OP shall be liable to pay interest @9% per annum on (a)+(b)+(c)+(d) from the date of order till realisation.

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