DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-II

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

(Behind Qutub Hotel), New Delhi- 110016

Case No.108/19

Mrs. Sarita Mann

W/o Manish Dabas

R/o Arya Mohalla

Nangloi, New Delhi-110041.                                       .…Complainant

                                                           VERSUS

The Branch Manager

The IFFCO TOKIO

General Insurance Co. Ltd.

C-1, IFFCO Sadan, District Centre Saket

New Delhi-110017.                                                      ….Opposite Party

Coram:

Ms. Monika A Srivastava, President

Ms. Kiran Kaushal, Member

Present:    Adv. Varun Yadav for complainant.

Present:    None for OP.

ORDER

Date of Institution:18.04.2019

Date of Order       :07.08.2024

President: Ms. Monika A Srivastava

Complainant has filed the present complaint seeking direction to OP to pay Rs.6,50,000/- with 12% interest; compensation of Rs.2,00,000/- towards mental agony etc. and Rs.55,000/- towards litigation.

1. It is the case of the complainant that the complainant had taken an insurance from OP for her car policy bearing No.69721905 and paid Rs.2699.76 as premium. The insurance certificate issued by the OP is annexed as annexure CW/1 (colly).

2. It is stated that the complainant’s vehicle was stolen from Mianwali Nagar, Delhi on 20.09.2017.  It is stated that on the next day when the complainant went to the Police Station to report about the theft, it was told to her that the way of reporting of the vehicle has been changed and the complainant will have to lodge the complaint online.  It is further stated that despite several attempts she was not able to lodge the complaint as the system was not accepting the entries about the vehicle. It is further stated that the complainant again visited the Police Station and told them about the difficulty that she was facing in lodging the complaint but she was told to continue to try as that was the only process to lodge the complaint.  Complainant again tried but failed as the said site was not accepting the details of the stolen vehicle.

3. It is further stated that on 23.09.2018 she wrote a letter to the concerned Police Station and mentioned the problem she was facing in lodging the complaint online.  By way of an inquiry by the Police Department it was revealed that the same vehicle got stolen few months back and was recovered but its details were not modified regarding superdari.  The duty officer told the complainant to visit the headquarter to get the details rectified and finally on 30.09.2018, she was able to lodge the complaint.  Claim of theft, letter written to the SHO Police Station-Mianwali dated 23.09.2017 and to Nangloi Police Station dated 23.09.2017 are attached at CW/3.

4. It is further stated that the complainant had informed the agent of the OP regarding the theft of the vehicle, who had advised her to wait as earlier also the vehicle was recovered after span of almost 90 days.

5. It is stated that the police could not recover the vehicle, the complainant approached the OP and lodged claimed therein no.37276994.  OP then appointed an investigating agency to look into the matter.  The complainant told him about all the facts about the incident in detail, the representative of the OP collected all the documents and told the complainant to send the relevant documents to OP.

6. It is stated that complainant did not hear anything from the OP and approached them several times but was told that the claim is under process and she will be intimated as and when the claim gets cleared. OP then sent a letter dated 23.05.2018 rejecting the claim of the complainant that the OP was informed after 50 days and that the complainant had concealed the fact of taking claim during previous policy period and have wrongly claimed the No Claim Bonus while taking the present insurance cover. 

7. It is further stated that though the complainant explained to the OP, the reason for not filing the claim earlier. The complainant denied the allegation of taking the claims during previous policy period yet the OP did not pay any heed and refused to reconsider the claim of the complainant.

8. It is the case of the complainant that since the OP has not fulfilled its commitment undertaken in the policy it constitutes deficiency in service on the part of the OP.  It is further stated that the complainant has already paid the loan amount to the bank against the said car.

9. In their reply, OP has stated that complainant was robbed by three people on the main road side of Mianwali Nagar, New Delhi as per letter dated 16.11.2017 of Manish Dabas, the victim.  It is further stated that the FIR was lodged for theft and not for robbery thereby giving incomplete information to the police.  It is stated that in such a case authenticity of the FIR is questionable.

10. It is stated that the complainant had taken fake NCB discount whereas the previous insurer Reliance General Insurance Co. confirmed that there were two own damage claims registered against previous year policy year from 27.10.2015 to 26.10.2016 out of which only one claim was allowed.  It is stated that this act of the complainant is a violation of policy condition.

11. It is further stated that the vehicle was stolen on 20.09.2017 but FIR was lodged on 30.09.2017 after ten days which is a violation of condition No.1 of the policy. It is further stated that there is a delay of 50 days in providing the information to the OP depriving the OP from obtaining accurate results from investigation. Lapse of 50 days divested the OP of any circumstantial evidence to ascertain the veracity of the incident thereby placing the OP in an extremely disadvantageous position. It is further stated that both the complainant and her husband are educated and are aware of the necessity of giving information without any delay as they have earlier made two claims with the previous policy company.

12. Complainant in his rejoinder, has stated that complainant is a layman and does not understand the technicalities of law and lodged the FIR as per the directions of the Police Officers. Complainant has further denied the declaration relating to No Claim Bonus.

13. It is seen from the FIR filed on record that the theft took place on 20.09.2017 whereas the FIR was lodged on 30.09.2017 and it has been stated that along with the car, car keys were stolen.  This is corroborated by the affidavit of the complainant wherein it is stated that the key was snatched along with the car. In her letter to the OP dated 16.11.2017 it is written that the complainant had lost the second key 4-5 months prior to the incident of snatching. It is also corroborated in the letter that the complainant could not register the FIR online.

14. Both the complainant as well as OP have filed their evidence affidavits as well as written arguments. OP has also  placed on record letter dated 23.05.2018 wherein it is stated that

“In the instant case intimation of the theft has been inordinately delayed and the same has been reported to ITGI after a delay of more than 50 days and FIR was lodged after ten days depriving us of the timely opportunity to investigate the loss and having the vehicle traced. 
 

As per the written statement furnished by you we understand that vehicle was actually snatched/robbed by the unidentified miscreants however, FIR was lodged by your under section 379 i.e. for theft of the vehicle.

We further observe that you were not entitled to NCB @20%, as there were two Own Damage Claim registered against previous year policy (Reliance General Insurance)”.

15. It is seen that OP asked the complainant to deposit the amount for No Claim Bonus (NCB) within ten days of that letter.  There is a ten days delay in filing the FIR. There is 50 days delay in intimating the OP.  It is further reported in the said report that complainant had informed that one key was lost/misplaced on 18.04.2017 and the matter was reported to police vide FIR No.582540 on 19.04.2017 but the copy of the FIR was not provided to the investigator and the second key along with the car was snatched by the robbers.

1. The argument of the complainant that she is a layman and did not understand the technicalities of law and lodged the FIR as per the directions of the Police Officers, is ill founded. As per complainant’s own statement her car got lost few months prior to the incident in question so there is very strong presumption that the complainant was aware of the process regarding reporting of theft.  Complainant has neither placed on record the superdari order regarding the earlier theft nor the FIR regarding loss of earlier key of the car. The law relating to ‘No Claim Bonus’ is clear. The Hon’ble NCDRC in Anjani Gupta vs Future Generali Insurance Company Limited R.P No. 1051/2017 on 12.12.2017 has held

1. “The cases in which it is established that the insured by making wrongful declaration has taken benefit of no claim bonus and the insurer had means to verify the correctness of the declaration of the insured seeking no claim bonus by exercising ordinary diligence of verifying the truthfulness of the claim from the insurer’s own record, exception to 19 of the Indian contract act come into play and the insurer would not be justified in repudiating the insurance claim on the ground of misrepresentation or concealment of fact. However because the insured had taken benefit of no claim bonus and paid less premium, the insurance claim would be reduced proportionately.

Therefore, the objection taken by OP relating to NCB is not fatal but the Complainant has not been able to explain the wrong reporting regarding NCB.

16. As far as delay in reporting to the Insurance Co. is concerned, it has been held by the Hon’ble Supreme Court in Gurshinder vs Shriram General Insurance Co. “We concur with the view taken in the case of Om Prakash vs. Reliance General Insurance & Anr that in such a situation if the claimant is denied the claim merely on the ground that there is some delay in intimating the insurance company about the occurrence of the theft, it would be taking a hyper technical view ” , therefore the objection of the OP regarding late intimation to the OP cannot be sustained.

However, as per the judgment in Trilochan Jane’s case there is delay in filing of the FIR and no cogent explanation has been forthcoming from the complainant in this regard. 

The Hon’ble Supreme Court in the matter of SGS India Limited vs Dolphin International AIR 2021 SC 4849 has held the following

“The onus of proof that there was deficiency in service is on the complainant. If the complainant is able to discharge its initial onus, the burden would then shift to the Respondent in the complaint.”

It is therefore, upon the complainant to initially discharge its onus to prove that there was deficiency in service on the part of OP.  This Commission has gone through the pleadings and documents filed by the complainant and find that complainant has not been able to discharge this onus. Therefore, the present complaint is dismissed being devoid of any merits.

Copy of the order be given to the parties as per rules. File be consigned to the record room. order be uploaded on the website.