Delhi

North

CC/63/2022

SOURABH - Complainant(s)

Versus

KOTAK GENERAL INSURANCE CO. PVT. LTD - Opp.Party(s)

30 Apr 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 No.:63/2022

 

In the matter of

 

Sh. Sourabh

S/o. Sh. Tilak Raj,

A-84, 3^rd floor, Kamla Nagar,

Near Bombay Bhel House,

Delhi-110007                                                                         …                                   Complainant

 

                                                          Vs

 

Kotak Mahindra General Insurance Co. Ltd.

(Through General Manager/ Authorised Officer)

KC, C-27, G Block, Bandra Kurla Complex,

Bandra East, Mumbai-400051.

Maharashtra.

 

Also at:

H-78, 7^th floor,

23 Himalaya House,

KG Marg, New Delhi-110001.                                           …                                      Opposite Party

 

ORDER

30/04/2024  

 

Ashwani Kumar Mehta, Member:

 

(1)      The brief details of facts, as alleged by the Complainant in the present complaint filed under Section 35 of the Consumer Protection Act, 2019, are that:-

 

(a)     the complainant’s vehicle (bearing no. HR 26BY3986, Toyota Camry) was insured by Opposite Party (OP) - Kotak Mahindra General Insurance C0. Ltd. vide policy no. PBW/000000054066 and endorsement no. 1078258200001. The above said policy along with RC of above said Vehicle is filed with the complaint as Ex: CW-1/2 (colly).

(b)     the said vehicle was stolen on 14.11.2019 and the complainant immediately intimated the opposite party on 14.11.2019 and registered Theft Claim bearing No. 10110047622 of above said vehicle with the OP. A Copy of FIR No. 040154/2019 under section 379 IPC at PS- e-police station Dabri, Dwarka is filed with the complaint as Ex: CW-1/3.

 (C).   the complainant also provided all relevant documents, including Vehicle purchase slips /receipts from previous owner, Demand Drafts Copies, Statement of Accounts, ITR Copies, Income proof, Copy of Aadhar card, Pan card copies, copy of FIR, Copy of Registration Certificate of the vehicle, Dully filled claim form, cancelled Cheque, copy of Driving License, photographs, current policy, Claim Form, RTO Intimation, Indemnity bond, Pollution, Petrol receipt, Vehicle Particulars, Keys of the stolen vehicle, Untraced/final report accepted by Hon'ble court etc.  to the opposite party, through their authorized surveyor Suraksha Enterprises, as demanded.

(d)     the aforesaid surveyor of the opposite parties, raised certain queries through their letter dated 02.08.2020 (received by complainant on 17.08.2020) which was properly replied  by the complainant on 25.08.2020, true copies of above letter and reply thereto are filed with the complaint as Ex: CW-1/4.

(e)     the OP kept pending the claim settlement of the complainant on one pretext or another and in the same series, the complainant received an e-mail dated 22/10/2020 and one letter dated 26/10/2020 (received by complainant on 04/11/2020) signed by one Mr. Ajay Gupta, (RCLM, KGI), on behalf of the OP, regarding their arbitrary decision, (without even considering any fact including IDV etc,) offering the complainant to provide an old vehicle instead of their already sanctioned/approved IDV of Rs. 10,58,000/- of the stolen vehicle (true copies of said correspondence are filed with the complaint as Ex: CW-1/5(colly); and the said offer was not accepted to by the complainant being wrong, illegal and arbitrary, and the complainant requested the OP to consider IDV of Rs.10,58,000/- through complainant's email dated 07/11/2020 as well as letter dated 12/11/2020 (true copies of said reply are  filed with the complaint as Ex: CW-1/6 (colly).

(2)      It has also been alleged that being an approved IDV through settled terms and conditions of the above mentioned policy of the vehicle, it has been a choice of customer to accept or reject any absurd, arbitrary offer but the complainant's claim has been closed as 'NO CLAIM', despite having a registered claim, required documents and continuous correspondences from the complainant, which is not only a deficiency in service but also an act of malafide practice of deceiving the customers by grabbing their money on false promises and assurances, true copies of above mentioned e- mail/ letter of the OPs are filed with the complaint to disclose the arbitrary decision of the OPs as Ex: CW-1/7.

(3)      It has further been alleged that the complainant has objected to the OP through  email dated 18/11/2020 as the said claim could not be closed as 'No claim' as OPs have already sanctioned an IDV amount of Rs.10,58,000/- for said above settled/sanctioned terms complainant's policy for which due premium. The complainant, thereafter, had lodged grievance to authorized Grievance Redressal Officer of the OP, true copy of said Grievance dated 26.11.2020, is filed with the complaint as Ex: CW-1/9. It was intimated to the complainant that an independent agency has been appointed to investigate the matter. The copy of said email dated 11.12.2020 is filed with the complaint as Ex: CW-1/10.

(5)       It is further stated that the complainant has also filed complaint before the Insurance Ombudsman Delhi vide Complaint Ref No. DERL-G-054-2122-0020 which was disposed off vide letter dated 22.06.2021 justifying the OP's averment without even considering any of the evidences, documents and arguments of the complainant.  Copy of said award is filed with the complaint as Ex: CW-1/11. The complainant has also served a legal notice/representation dated 24.01.2022 upon the OP which remains unanswered/ un- responded to by the OP.  Copy of said notice/representation (with postal receipts) is filed with the complaint as Ex: CW-1/12)

(6)      It is further stated that the O.P. did not pay the settled IDV to the complainant qua stolen insured vehicle, for which due premium had been charged, and rejected the claim of the complainant without a sound logic and valid grounds. According to Circular dated 20.09.2011 issued & circulated by the Insurance Regulatory & Development Authority (IRDA), notifying the following that:-

"The insurer's decision to reject a claim shall be based on sound logic and valid grounds. It may be noted that such limitation clause does not work in isolation and is not absolute. One needs to see the merits and good sprit of the clause, without compromising on bad claims. Rejection of claims on purely technical grounds in a mechanical fashion will result in policyholders losing confidence in the insurance industry, giving rise to excessive litigation."

 

Further, as per GR.8 issued by the IRDA, the Insured's Declared Value (IDV) of the vehicle will be deemed to be the “SUM INSURED" for the purpose of this tariff and it will be fixed at the commencement of each policy period for each insured vehicle and also for the purpose of TL/CTL claim settlement, this IDV will not change during the currency of the policy period in question.

 (7)     The Complainant has, therefore, filed the instant complaint praying for:-

1.  Directions to OP to remove the deficiency in service by paying the IDV of vehicle bearing registration no. HR26BY3986 (Toyota Camry) to the tune of Rs.10,58,000/- (Rupees Ten Lakhs Fifty Eight Thousand only) alongwith an interest of 18% of accrual;
2. Directions to OP to pay a sum of Rs. 20,00,000/- to the complainant towards mental agony, physical & social harassment, pain, loss of conveyance, loss of Reputation, exposure to Covid-19 and suffering due to unfair trade practice & deficiency in service rendered by the OP;
3. Directions to OP to pay a further sum of Rs.2.00,000/- towards costs and miscellaneous expenses incurred by the complainant in claiming his legitimate claim; and
4. granting any other relief in favour of the complainant in the interest of justice.

(8).    The Complainant has also filed copies of aadhar card, policy no. PBW/000000054066 alongwith RC, FIR No. 040154/2019 under Section 379 IPC at PS e-police station, Dabri, Dwarka, letter dated 06.08.2020 issued by the OP and reply of the Complainant dated 25.08.2020, email dated 22.10.2020 and letter dated 26.10.2020 issued on behalf of the OPs, Complainant’s email dated 07.11.2020 and letter dated 12.11.2020, email on behalf of OPs vide email/ letters dated 10.11.2020 and 11.11.2020 (signed by Mr. Ajay Gupta (RCLM, KGI), email dated 18.11.2020, grievance to authorised Grievance Redressal Officer of the OPs dated 26.11.2020, Intimation of OP’s Grievance Redressal Officer dated 11.12.2020, award dated 22.06.2021 of Ombudsman alongwith list of documents (with documents) submitted with Ombudsman, legal notice/ representation dated 24.01.2022 alongwith postal receipts, previous Insurance, DD receipts, Account Statement, agreement, Statement of Seller and other receipts/records are annexed, true copies of Medical documents of delivery, medical record, etc., alongwith the complaint.

(9).    Accordingly, notice was issued to the OP and in response, the OP has filed its reply stating that the present complaint filed has been filed on false and frivolous grounds and the Opposite Party is not liable to disburse the Claim Amount as claimed by the complainant because the reports and documents submitted by the complainant are fallacious and fabricated and have been submitted with a motive to extort unnecessary sum. The OP has rebutted the allegations with the following averments:-

(a).    the present commission does not have the jurisdiction to adjudicate the present complaint as neither the opposite party has any registered office nor works for gain within the territorial jurisdiction of  commission.

(b).    No cause of action ever aroused in the territorial jurisdiction of the commission. Hence the present complaint is liable to be dismissed on the grounds of jurisdiction alone. As per section 34 (2) of consumer protection Act 2019, a complaint shall be instituted in a District Commission within the local limits of whose jurisdiction, (a) the opposite party or each of the opposite parties, where there are more than one, at the time of the institution of the complaint, ordinarily resides or carries on business or has a branch office or personally works for gain; or (b) any of the opposite parties, where there are more than one, at the time of the institution of the complaint, actually and voluntarily resides, or carries on business or has a branch office, or personally works for gain, provided that in such case the permission of the District Commission is given; or (c) the cause of action, wholly or in part, arises;

(c).    the opposite party is a reputed insurance company which has attained and maintains its goodwill by resolving the claims of its customers and by providing best services to them. Despite the fact the car was lost/stolen due to negligence of complainant himself, the opposite party with bonafide intents offered the complainant to settle the claim by re-instating the complainant with the car of same age, make and model which is lost by complainant.

(d)     the facts which are presented before the commission are incomplete, and the correct brief facts are as follow:

I.   the complainant purchased a car, Toyota Camry bearing no. HR26BY3986 which was 2005 Model and manufactured car (herein referred as subject car), from one Mr. Sanjay in 2019. The sale deed in this regard is annexed with the complaint as Annexure -13; page No. 67-69 of the complaint. (Policy copy along with terms and conditions are also annexed as Annexure OP/2).

II. the subjected car was insured by the said previous owner Mr. Sanjay by opposite party insurance company and the said policy bearing policy no. PBW/000000054066 was duly transferred by the complainant on his name in stipulated time period. (Copy of endorsed policy is annexed as Annexure OP/3).

III.   the subjected car got stolen on 14.11.19 and the same was Intimated to the opposite party and claim was raised by the complainant in this regard. (Copy of claim form is annexed as Annexure-4)

IV.   as the regular procedure for processing the claim, a 3rd party autonomous investigator, Suraksha Enterprise was appointed by the opposite party to investigate the claim. The report of said Investigation is annexed and attached as ANNEXURE -5.

V.   as per the investigator, the subject vehicle was parked  his vehicle (SIC) almost 10 mins away from his house for a long period of 10 days and the complainant left for his home-town. Also, investigator has given below findings:-

1. The manufacturing year of the insured vehicle is 2005 & the insured vehicle was registered on 04.04.2013.
2. The IDV of insured vehicle is Rs. 10,58,000.00/- which is at higher side while the market value of similar vehicles is only between Rs.1,00,000/- to  2,00,000.

 

VI. Vehicle manufacturing year is 2005 and it is re-registered in 2013 via Vehicle Bearing Number HR26BY3986 with Jind RTO Haryana as new Registration. The Insured vehicle was first registered in 2005 with Ujjain RTO Madhya Pradesh via vehicle Registration no.MP13JG005 with Registration Date 21/03/2005 in the name of MR. Om Prakash Khatri and in 2013, MP RTO Issued NOC to HR RTO ohit to GUDGAV place (SIC). And since then this vehicle re registered as HR26BY3986 via Reg date 04/04/2013. (Copy of NOC, RC copy of MP and RC Copy of Haryana RTO has been attached as Annexure-OP/6, Annexure OP/7 and Annexure OP/8 ).

VII.     Above mentioned policy issued to Insured vehicle through online portal of Policy Bazar. While issuing policy, if the vehicle is already having registration number, then, user has to mention Registration date of the vehicle. In case of new vehicle, user has to mention Manufacturing year and accordingly Premium and IDV will be calculated.

VIII.    In instant case, the actual Registration date of vehicle is 21/03/2005 which was changed by Jind Haryana RTO while re -registering the vehicle in 2013 as a New vehicle. To get the clarification about above mentioned issue, insurance company had written a letter to the concerned Jind RTO. However, In spite of our several reminders, RTO failed to respond with any reason/clarification behind re-registering the old vehicle as New vehicle. Copy of Vehicle service report and Letter sent to RTO has been annexed with reply as Annexure OP/9 and Annexure OP/10.

IX.      The IDV of the vehicle is fixed and calculated by the rules and regulation laid down under Indian Motor Tariff. As per GR8 of Indian Motor Tariff, the IDV of the vehicle is to be fixed on the basis of manufacturer's listed selling price of the brand and model as the vehicle proposed for insurance at the commencement of insurance /renewal and adjusted for depreciation.

X.       In light of the provision laid down under IMT, in the instant case, Insured is stating that he has purchased this vehicle for Rs. 10,50,000 and Rs. 10,58,000 is the IDV of the policy as per Policy certificate. IDV was calculated by considering registration of vehicle dated 04/04/2013, however, IDV ought to had been calculated by considering the registration of vehicle date 21/03/2005.

XI. During the course of claim processing, Insurer also requested complainant to submit remaining one Key, which complainant failed to submit with us. Hence after taking into consideration of all above mentioned facts Insurer offered replacement of the vehicle to the Insured, which is fair and customer centric approach. The same is communicated to the Insured in letter dated 26-10-2020, a copy of which has been annexed as Annexure OP/11. The offer of replacement of vehicle was proposed as per policy terms and conditions. The Relevant condition of the policy wording is repronounced below:-

Condition No. 3

The Company may at its own option repair reinstate or replace the vehicle or part thereof and/or its accessories or may pay in cash the amount of the loss or damage and the liability of the Company shall not exceed:

a. For total loss / constructive total loss of the vehicle -the Insured's Declared Value (IDV) of the vehicle (including accessories thereon) as specified in the Schedule less the value of the wreck.

b. For partial losses, i.e. losses other than Total Loss/Constructive Total Loss of the vehicle actual and reasonable costs of repair and/or Replacement of parts lost/damaged subject to depreciation as per limits specified.

 

XII.     the policy issued by the Insurer is based on the Principle of Indemnification and the principle of indemnity ensures that an insurance contract protects and compensates Insured for any damage, loss, or injury. The purpose of an insurance contract is to make Insured "whole" in the event of a loss, not to allow Insured to make a profit And, putting the insured back to where it was financially prior to the loss without rewarding or penalizing the insured for its loss.

XIII.    by following the principle of Indemnification, Insurer offered replacement of vehicle as per policy terms and conditions with same make and model of the same year. However insured turned down the offer of Insurer, which shows the intention of complainant to get the profit arising of the alleged loss by sticking to the demand of IDV, which is much more than the actual value of vehicle.

XIV.    Complainant did not accept an offer of replacement, hence, there is no deficiency on the part of Insurer. Thus, claim of the complainant has been closed as No claim, due to non-cooperation in settlement of claim by the complainant. (Copy of No claim letter is annexed as Annexure OP/12).

XV.     Complainant has filed complaint before ombudsman also who has given findings in favour of insurer and upheld the contention of the insurance company. Ombudsman has vide its order dated 22-06-2021 held that the subject vehicle which was 2005 model and was registered by RTO Ujjain (MP) as on 21-03- 2005 in the name of Om Prakash Khatri, with registration no. MP13JG005. In 2013 the MP RTO Issued NOC to HR (Gurgaon, Haryana) RTO. Pursuantly, this vehicle was re-registered as HR26BY3986 via registration date 04-04-2013. Thus, year 2013 is actually the date of re-registration of the vehicle while its original registration was in 2005 which was also the year of its manufacturing. RC Issued by SDM, Jind (Haryana) on 04-04-2013 specifically mentioned the manufacturing date of the vehicle as 04/2005. Thus, it is concluded that the subject vehicle was of 2005 model and the insurers are justified as per policy terms and conditions in offering the option of replacing it with a vehicle of same make and model in lieu of IDV in cash. Thus, complaint deserves rejection. (Copy of order of Ombudsman is attached as Annexure OP/13).

XVI.    as per the observation made by the Apex Court, in the matter of Grasim Industries Ltd. & Anr. v. Aggarwal Steel (2010 1 SCC 83), It was stated that: "...6. In our opinion, when a person signs a document, there is a presumption, unless there is proof of force or fraud, that he has read the document properly and understood it and only then he has affixed his signatures thereon, otherwise no signature on a document can ever be accepted. In particular, businessmen, being careful people (since their money is involved) would have ordinarily read and understood a document before signing it..."

Therefore, the Complainants are bound by such clause which is already present in the insurance contract.

(10).   in addition to above discussed preliminary objections/submissions, the OP has submitted parawise reply as under:-

I         the initial contents of para no. 1 are denied for the want of knowledge and that the later part of same are wrong and denied. It is wrong to say that the complainant had suffered any deficiency of service.

II.       the contents of para no. 2 needs no reply as is a matter of record and only states the identity of the opposite party to the present complaint.

III.      the contents of para no. 3 are categorically answered/replied as under:

1.  the contents of this para are vehemently denied.
2.  the contents of this para are wrong and denied.
3.  the contents this para are wrong and denied as the  

Complainant did not hand over some requisite Documents/items which were required by the Investigator.

4.  the contents of this para is wrong and denied.
5.  all the contents of this para are wrong and denied
6.  the contents of this para is matter of record, needs no

reply and the contents goes on to prove the bonafide and that the Opposite party is a customer friendly company and takes care of its customer. The grievances raised by customer is taken very seriously and quick actions are taken on complains and grievances.

7.  the contents of this para are wrong and denied.
8. the contents of this para are wrong and denied that as        

per one of the tracking reports the item was returned to the Addressee. The opposite party is not in receipt of any such legal notice, further, it is stated that the claim raised by complainant was closed stating "no claim" as the complainant did not accepted the settlement proposal of opposite party and therefore the claim was closed in the system of opposite party.

1.  the contents and averments of this whole para   

including sub- clauses (i) to (vi) are completely wrong and vehemently denied. The contents of this para narrate a completely irrelevant and concocted story to hide the negligence of complaint and shift the burden upon opposite party.

IV.      the contents of para 8 are wrong and denied, as the present       commission does not hold the jurisdiction to decide the present case. According to section 34 (2) of consumer protection Act, 2019:

(2) A complaint shall be instituted in a District Commission within the local limits of whose jurisdiction, (a) the opposite party or each of the opposite parties, where there are more than one, at the time of the Institution of the complaint, ordinarily resides or carries on business or has a branch office or personally works for gain; or (b) any of the opposite parties, where there are more than one, at the time of the Institution of the complaint, actually and voluntarily resides, or carries on business or has a branch office, or personally works for gain, provided that in such case the permission of the District Commission is given; or (c) the cause of action, wholly or in part, arises; or (d) the complainant resides or personally works for gain.

The present policy was purchased from opposite party which has its office at KC, C-27, G Block, Bandra kurla Complex, Bandra East Mumbai Maharashtra-400051. The registered office of opposite party where it works for gain is at KG Marg, both the places does not fall under jurisdiction of commission. Further the cause of action also arised Near Dada Dev Hospital. Palam Dabri Marg, Dabri Village, Dabri, New Delhi-110045, which does not fall under the jurisdiction of Hon'ble commission. Therefore, complaint is not maintainable in the present commission and hence is liable to be dismissed.

V.       the contents of the Prayer Clause are false, incorrect and hence denied vehemently as the same are misconceived.  The relief sought by complainant in the present complaint are not maintainable as the present commission does not have the jurisdiction to adjudicate the present case. Further the complainant has not approached with clean hands and the complainant himself at fault and it was negligence of complainant that let the subject vehicle was stolen from mentioned area.

(11)    While filing the reply to rebut the allegations, the OP has also prayed:-

1. To dismiss the present complaint as the present commission lacks the territorial jurisdiction to adjudicate the complaint and therefore same is not tenable in the Hon'ble commission.
2. To dismiss the present complaint with exemplary cost as the complainant has concealed material facts and has concocted the story in order to extort money by quoting higher than reasonable IVD and has mocked the valuable time of Hon'ble commission by approaching to the commission without any cause of action against the opposite party.
3. To pass any such order as the commission deems fit in favour or opposite party and against the complainant.

(12)    The complainant has filed Rejoinder to the reply of the OP wherein the Complainant has refuted the averments of OP and has contested to prove the allegations levelled against OP stating that IDV of subject vehicle was as per policy of the OP and as per policy of the OP, "the insured declared value (IDV) of the vehicle will be deemed to be the 'SUM INSURED' for the purpose of this policy which is fixed at the commencement of each policy period for the insured vehicle".., "IDV shall be treated as "Market Value' throughout the policy period without any depreciation.” The averments of the OP has also been refuted parawise as under:-

a.       The contents of paras 4 (f) to 4(h) are misleading & misconceived, hence, denied.

b.       In response to para 4 (i) it is stated that the IDV has been assessed & sanctioned by the O.P. itself on the basis of all relevant documents.

c.       In response to para 4 (j) it is stated that the complainant has not hidden any fact from the O.P. or any other agency and instead of produced all documents/records as asked by the O.P. and the O.P. himself has assessed and sanctioned/approved the IDV of the vehicle. it is specifically submitted that if the IDV was calculated wrongly by the O.P., as alleged in answering para, then also the O.P. had never intimated/noticed the same to the complainant at any point of time and now when the complainant is preferring his claim then only the O.P. is bringing fabricated facts just to evade their liability to pay the IDV to complainant. The O.P. is not liable to change/withdraw from their policy being applicability of law of estoppels.

d.       The contents of para 4(k) are misleading and misconceived, hence, denied. As per the request of the O.P. a meeting with previous owner of subject vehicle had been arranged wherein it was clearly established that the complainant herein was having only two keys which were given by previous owner to the complainant and further handed over to the O.P. to claim the insurance for subject vehicle and later on no objection was ever raised/received from O.P. at any point of time. The complainant suffered total loss of the vehicle, hence, an IDV of the subject vehicle is liable to be paid to the complainant by the O.P. Accepting the IDV or vehicle in lieu of IDV is the sole right of the consumer/complainant herein and the O.P. cannot compel the complainant to accept any other offer.

e.       In reply of para 4 (l) it is stated that the O.P. has assessed & approved the IDV of subject vehicle to the tune of rs. 10,58,000/- hence, the O.P. is liable to pay the same IDV to complainant to indemnify him.

f.       The contents of para 4 (m) are false, wrong and hence denied. It is submitted that the complainant himself purchased the vehicle at Rs.10,50,000/- and no question of earning any profit arises, moreover, it is specifically submitted that the IDV of Rs. 10,58,000/- has been fixed/assessed/approved by the O.P. only as per prevailing market rates.

g.       The contents of para 4 (n) are false, wrong and hence denied.  Despite raising claim by the complainant for Rs. 10,58,000/- (i.e. the approved IDV), the O.P. has failed to pay the same till date nor there had been any payment to the complainant to this effect till date.

h.       In response to the contents of para 4 (o) it is stated that the complainant also filed his claim before the Insurance Ombudsman Delhi vide Complaint Ref No. DERL-G-054-2122-0020 which was disposed of vide award dated 22.06.2021 justifying the OP's averment without even considering any of the evidences, documents and arguments of the claimant contrary to the principle of natural justice.

i.       the contents of para 5 of above reply clearly impose a duty upon O.P. also to pay the IDV after signings and issuing the insurance policy as per the judgement quoted in the answering para; moreover, the O.P. is not entitled to mislead on the concocted & imaginary facts in the present matter.

j.       the contents of para 6 of reply of the O.P. are matter of record.

(13).   Both the parties have filed evidence and written arguments also. The OP has also filed Evidence by Way Of Affidavit of the Investigator Appointed by the Opposite Party for Investigation of Claim. During written arguments, the OP has raised following new issues:-

A.      WHETHER THE COMPLAINANT TOOK DUE CARE OF THE INSURED VEHICLE:

On this issue, the OP has stated that the Complainant has failed to submit the original keys of the theft/insured vehicles. Also, the complainant had left his vehicle unattended 1.5 Km away from his place of residence for almost 10 days. Moreover, as per the investigation report of the investigating agency, while examining the previous owner i.e. Mr. Sanjay is found to be planted person that is to say that no satisfactory answer has been received which can establish his worthiness. (ANNEXURE-OP/5). Therefore, it is intelligible that the complainant is negligent on his part and all his act is to extort the money from the Opposite party. The Apex court has reiterated in plethora of judgement that once an insurance is availed, it does not imply that the insured can act negligently in taking due care of the Insured vehicle.

B.       WHETHER THE CALCUTAION OF IDV WAS DONE ON CORRECT FACTS: THE INSURED MALAFIDELY CONCEALED THE FACTS TO GET HIGHER IDV

On this point, the OP has contended that the vehicle was registered first time dated 21/03/2005 in the name of Mr. Om Prakash Khatri who later sold it to Mr. Sanjay who finally sold it to the complainant. Mr. Sanjay got the Registration Certificate (hereinafter referred to as 'RC') transferred in his name who later transferred it in the name of the complainant. As per the provisions of the Motor Vehicle Act (hereinafter the MV Act'), if a person transfers the RC then the name is changed not the Registration date. But in this case due to the negligence of Jind Road Transport Authority (hereinafter referred to as the 'authority') the registration date also had been changed to 04/04/2013. Opposite Party had tried various times to get clarification about this error but no positive response has been made by such authority. Also, it is to be noted that as per the MV Act, the vehicle can only be re-registered after the expiration of 15 years of the previous RC which has not been completed in the present case. Hence, the IDV in the present case was calculated as of 04/04/2013 and not 21/03/2005 which is wrong because as per the investigation report of investigating agency the Market value of the same model car in the present time is Rs. 2,00,000 approx. therefore the Opposite Party is not liable to pay any amount for the default made by the such authority because complainant was already aware of this loophole and took undue advantage of the same in order to extort money from OP (ANNEXURE-OP/5).

C.       WHETHER COMPLAINANT HAS ACTED IN GOOD FAITΗ:

           COMPLAINANT HAD MALAFIDE INTENTION TO COMMIT FRAUD:

 

It is germane to mention that after being several reminder made to the complainant regarding the submission of the original keys of the insured vehicles and the clarification regarding the registration date of the vehicle, the complainant deliberately delay the process because the complainant knew that as per the Motor Tariff Act the life of petrol vehicles is 15 years only and the period of 15 years of the insured car is about to be over within few months and then the OP will have no other option left rather to process the amount of IDV value as it is much higher than the actual amount of the car processed by the opposite party.

Also, It is to be noted that the complainant is very well versed about the fact that the said car was registered in 2005 but now it has been registered under 2013, so by taking the undue advantage of this loophole created by the Jind RTO and get the IDV valued at higher rate than the actual market rate of that same model. This same fact has been reiterated by the Investigating agency in his investigation report. (ANNEXURE-OP/5) After being known all the facts, the complainant acts malafide and show as if he is Innocent and didn't knew about anything.

Moreover, his act of leaving car unattended for a long time that to be far away from the place of residence clearly establishes motive of complainant to get it stole by some person in order to claim the amount for the opposite party. Investigating agency in his Investigation report had also stated that we are of the opinion that the vehicle had not actually been stolen. (ANNEXURE-OP/5) Therefore, by referring to the above facts, it is clearly visible that the complainant was acting mala fide and all his acts was Intended to commit fraud to the opposite party.

(14).   The OP has also stated, in the arguments, that the complainant has come before the Commission with unclean hands and without narration of the facts in its true sense and it has been held by the Hon'ble Supreme Court of India in the case of S.P. Chengalvaraya Naida Vs. Jagannath (AIR 1994 SC 853) that one who comes to the court, must come with clean hands. The court observed as follows:

"We are constrained to say that more often than not, process of the court is being abused. Property grabbers, tax-evaders, bank loan dodgers and other unscrupulous persons from all walk of life find the court- process a convenient lever to retain the illegal gains indefinitely. We have no hesitation to say that a person, whose case is based on falsehood, has no right to approach the court, he can be summarily thrown out at any stage of litigation."

(15).   The complainant has also argued that:-

a.       the O.P. has admitted the fact that the above mentioned vehicle was duly insured with a settled I.D.V. (fixed by the O.P. itself) on considering all facts, records of the vehicle, date of registration, purchase of the vehicle, date of manufacturing of the vehicle and then only the O.P. has sanctioned/fixed/ approved the I.D.V.

b.       It is also an admitted fact that the above said vehicle was stolen on 14.11.19 and the same was intimated to the O.P. The details of the vehicle/date of manufacturing of vehicle has been correctly mentioned & also shown in the Insurance Policy in question.

c.       Also at the time of issuing the insurance policy, the RC of the vehicle was inspected/verified by the officials of the O.P. for determination of the IDV.

d.       The registration date of said vehicle remains the same in old (previous owner's RC) and new RC (complainant's RC) and the O.P. never initiated any criminal proceedings against the RTO Jind for his forgery, as alleged by the O.P.

e.       the IDV was calculated by the officials of O.P. himself and if there, as alleged, any discrepancy by the officials of the O.P. then the O.P. is only liable for the same and not the complainant, moreover, no legal/disciplinary action was ever taken against erring officials by the O.P. which itself proves that the calculations of the IDV was correct and was never challenged by the O.P. prior to filing of the above said claim of the complainant and due premium has been paid by the complainant and received by the O.P. on the basis of above said IDV only.

f.       the vehicle of the complainant was with two keys only, as received with RC of the vehicle from the previous owner which was also confirmed by the previous owner's statement before O.P. And there had been no point of time, the vehicle in question was ever having three keys as claimed by the O.P., without any documentary evidence.   

g.       the OP opposed the claim of the complainant without bringing any material facts to the knowledge of the Commission and submitted only concocted, misleading and misconceived facts to avoid  granting claim on the IDV of the vehicle for which the O.P. has already charged due premium.

h.       the O.P. led the evidence of investigator who is neither the party in the present matter nor has been summoned by the Commission. Moreover neither any prior approval of the same from the Commission was sought nor any prior intimation given to the complainant. Therefore, the evidence of investigator of O.P. is not at reliable. The above said Investigator's report has never been supplied/provided to the complainant prior to filing of WS of OP, therefore, the OP cannot produce a new document which was never produced at the time of settlement of grievances of the complainant nor any subsequent proceedings. However, the investigation report produced by the said investigator is based on misconceived, concocted and wrong facts insofar as it concludes that the above said vehicle was never stolen, contrary to investigation of appropriate police authority in FIR no. 040154/2019 under section 379 IPC and also contrary to the Untrace Report accepted by Hon'ble Court of Sh. Arun Kumar Garg, A.C.M.M.-I, South West District, Dwarka Courts, Delhi in above said FIR. the OP through its AR  has admitted vide para 4 of his Affidavit of Evidence that the said vehicle was stolen on 14.11.2019. Thus, it is crystal clear that the above said investigator neither applied his mind in investigation of the above said theft of vehicle nor appreciated any facts & circumstances of the case and just to favour the OP prepared and made a vague investigation report which is not tenable in the eye of law. The above said Investigation report dated 14.09.2020 clearly reflects that the investigator, after considering the above said court order dated 24.12.2019 of Hon'ble Court, police Report and statements of neighbours concluded that the vehicle was not stolen; whereas, in the Investigation report (page 9 of Investigation Report, i.e. part of the affidavit of evidence of investigator) clearly reflects that the neighbours also confirmed that the said vehicle was stolen. Thus, the alleged investigation report is a bunch of false, vague, illegal and wrong averments and the said investigator also submitted false facts before the Commission, through his affidavit of evidence, therefore, the above mentioned Investigator is liable for prosecution for false evidence before the Commission.

 

(16).   The complainant has relied upon following judgements/orders in support of his case and filed copies of the same:-

(a) Dharmendra Goel Vs. Oriental Insurance Co. Ltd. (SLP/14054/2006) decided by Hon'ble Supreme Court of India.

(b) The New India Assurance Co. Ltd. Vs. Devarbhai Mepabhai Bhojani, decided by Hon'ble National Consumer Disputes Redressal Commission.

(c) Sumit Kumar Saha Vs. Reliance General Insurance Co. Ltd. decided by Hon'ble Supreme Court of India.

(d) New India Assurance Company Ltd. Vs. V.K. Rampal and others, decided by Hon'ble High Court of J&K.

 

 

(17)    Accordingly, the complaint has been examined in view of the facts of the case and averments/documents/Evidence/arguments put forth by the parties and it has been observed that:-

a.       the complainant resides within the jurisdiction of this commission i.e. Kamla Nagar, as per the documentary evidence filed with the complaint and the OP has not disputed or countered the same with any documentary evidence. Therefore, the objection of the OP, that this commission has no jurisdiction to decide the complaint, has no force and therefore, rejected. The instant matter/dispute falls within the jurisdiction of this commission.

b.       the claim raised by complainant was closed/repudiated stating "no claim" as the complainant did not accept the offer of OP for replacement of vehicle with same make and model of the same year. The OP claims that the offer was made & communicated as per condition No. 3 of the policy wording which is repronounced below:-

Condition No. 3

“The Company may at its own option repair reinstate or replace the vehicle or part thereof and/or its accessories or may pay in cash the amount of the loss or damage and the liability of the Company shall not exceed:

a. For total loss / constructive total loss of the vehicle -the Insured's Declared Value (IDV) of the vehicle (including accessories thereon) as specified in the Schedule less the value of the wreck.

b. For partial losses, i.e. losses other than Total Loss/Constructive Total Loss of the vehicle actual and reasonable costs of repair and/or Replacement of parts lost/damaged subject to depreciation as per limits specified.”

 

In this matter, the observations of the Hon’ble Supreme Court in the matter of Saurashtra Chemicals Ltd. Vs. National Insurance Co. Ltd. [(2019) 19 SCC 70]  appears relevant wherein it has been held that the Insurance Company cannot travel beyond the grounds mentioned in the letter of repudiation” and this proposition is sacrosanct but it has been seen that the OP-insurance company has not bothered to honour this judgement of honourable Supreme Court, laying down a principal that that the case should not be contested going beyond the reasons of repudiation. While contesting the allegations levelled in the complaint, the OP-2 instead of confining its objections, reply and arguments within the scope of reasons of repudiation communicated to complainant, has tried to create various other irrelevant grounds for objections/arguments etc. with the intention to twist the facts to hide its deficiency in the service. Therefore, the objections/arguments raised by the OP beyond the reasons of repudiation have not been considered and rejected.

c.       The ground  of repudiation is that the complainant has not accepted the offer of providing vehicle to him instead of offering/settling the claim to the tune of IDV settled while Issuing the insurance policy to the complainant and before giving the offer of vehicle of  similar make/model/year, the insurance company has got the matter  investigated from through its surveyor/Investigator to find out the technical flaws in the registration/re-registration of the vehicle in the RTO, Jind which concluded that the vehicle was manufactured in the year 2005. While going through the documents placed on record by both the parties, it has been seen that the copy of the registration certificate of previous owner and the current owner/complainant are available on record to prove that the year of Manufacturing of the vehicle is mentioned as year April 2005. Besides, copy of the insurance policy issued to the previous owner, which has also been endorsed in favour of the current owner/complainant, is also available on record which also indicates the year of manufacturing is April 2005, with the  IDV of the vehicle as Rs.1058000/-. Both these documents are sufficient to substantiate that that the complainant has not concealed any material information with regard to the year of manufacturing of vehicle, from the OP- insurance company while getting the insurance transferred in his name. Moreover, the year of manufacturing and the IDV of the vehicle, reflected in the insurance policy issued in the name of previous owner, have also been issued by the OP-Insurance company which was further endorsed in the name of the complainant by the OP- insurance company itself. Therefore, the complainant cannot be held responsible for hiding any material information while getting insurance from OP.

d.       It has also been found that manufacturing date of vehicle, mentioned on the RC, is April 2005 which means the life of vehicle will come to end on April 2020 as per the government norms of 15 years life for petrol vehicle in Delhi NCR whereas the OP has offered vehicle of same age/make/model vide letter dated 26-10-2020 (Annexure-OP-11) without applying mind. As such, the offer made by the OP has been found ridiculous & absurd and appears to have been made just to complete the formalities of disposal of claim filed by the complainant. 

e.       The OP insurance company became so meticulous to find out technical faults in the registration in the registration with RTO Jind after receipt of claim of theft whereas such kind of investigations would have been carried out by the OP- insurance company at the time of issuing the insurance policy to the previous owner. At this stage, after receipt of claim of theft, it does not appear justified on the part of the OP to hold the complainant/insured responsible for furnishing wrong information or concealing any material information.

f.       The OP insurance company has raised various irrelevant issues while contesting the Complainant’s allegation going beyond the reasons of repudiation/closure of the claim with the obvious intention to mislead this commission to hide its deficiency for which the cost is liable to be imposed upon the OP.

g.       The surveyor/investigator, appointed by the OP, has concluded without any evidence, that the vehicle has actually not been stolen but has not disputed the “untrace report” filed by the complainant. The OP insurance company very cleverly has relied upon the report of surveyor/investigator for offering vehicle to the complainant but has not challenged the “untrace report” before the civil court.  

h.       The OP Insurance company has got the issue of registration of the vehicle deeply investigated and found irregularities in registration of the vehicle with RTO Ujjain/ RTO Jind but has not filed any criminal complaint against the erring officials of RTOs or even reported the same to the appropriate authority.

i.      The OP Insurance company has relied upon its investigators’ report that the previous owner of the vehicle was a planted person whereas the previous owner Mr Sanjay was contacted by the investigator personally and his statements were also recorded. In case, the insurance company was so confident about the investigators findings about Sh. Sanjay, criminal complaint against previous owner should have been filed against him but the OP did not initiate any such action.

 

(18)    We have also gone through the various judgments referred by the parties and has noted that :-

i.       in the matter of Dharmendra Goel Vs. Oriental Insurance Co. Ltd. (2008) 8 SCC 279, the Hon’ble Supreme Court of India has held that “in the light of this stringent provision and being in a dominant position, the insurance companies often act in an unreasonable manner and after having accepted the value of a particular insured good disown that very figure no one pretext or the other when they are called upon to pay compensation. This ‘take it or leave it’ attitude is clearly unwarranted not only as being bad in law but ethically indefensible.”

ii.      In the matter of The New India Assurance Co. Ltd. Vs. Devrajbhai Mepabhai Bhojani in RP No.1571/2002, decided on 07.09.2012, the Hon’ble NCDRC has observed that “the recent judgment of Hon’ble National Commission reported in III (2010) (PJ 445 CNC) New India Assurance Co. Ltd. Vs. Ramesh Rao Bhounsle, wherein the National Commission has relied on Dharmendra Goel Vs. Oriental Insurance Co. (2008) 8 SCC 279. Here, we have similar point in issue and same stands concluded by a judgment of Hon’ble The Supreme Court of India in Dharmendra Goel Vs. Oriental Insurance Company in which it has been held that Insurance Company after having accepted the value of particular insured good, disown that very figure on one pretext or other when they are called to pay compensation. This take it or leave it attitude is unwarranted being bad in law and ethically indefensible.”

iii.     In the matter of Sumit Kumar Saha Vs. Reliance General Insurance Company Ltd. in CA No.1299/2019, decided on 30.01.2019, the Hon’ble Supreme Court of India has held that “it was not open to the Surveyor or to the Insurance Company to disregard the figure stipulated as ‘sum insured’. The loss had to be assessed in the present case, keeping said figure in mind.”

The Paragraphs 5 and 7 of the decision bringing out the principle that the Insurance Company having accepted the value of the vehicle to be Rs.3,54,000/-, was bound by that value reproduced below:-

”5. We have heard the learned counsel for the parties and have gone through the record very carefully. The facts as narrated above remain uncontroverted. Admittedly, the accident had happened on 10.09.2002 during the validity of the insurance policy taken on 13.02.2002 insuring the vehicle for Rs.3,54,000 on a premium of Rs.8498. It is also the admitted position that the vehicle had been declared to be a total loss by the surveyor appointed by the Company though the value of the vehicle on total loss basis had been assessed at Rs 1,80,000. We are, in the circumstances, of the opinion that as the Company itself had accepted the value of the vehicle at Rs 3,54,000 on 13-02-2002, it could not claim that the value of the vehicle on total basis on 10-09-2002 i.e. on the date of the accident was only Rs 1,80,000.

7. It must be borne in mind that Section 146 of the Motor Vehicles Act, 1988 casts an obligation on the owner of a vehicle to take out an insurance policy as provided under Chapter XI of the Act and any vehicle driven without taking such a policy invites a punishment under Section 196 thereof. It is, therefore, obvious that in the light of this stringent provision and being in a dominant position the insurance companies often act in an unreasonable manner and after having accepted the value of a particular insured good disown that very figure on one pretext or the other when they are called upon to pay compensation. This “take it or leave it” attitude is clearly unwarranted not only as being bad in law but ethically indefensible. We are also unable to accept the submission that it was for the appellant to produce evidence to prove that the surveyor’s report was on the lower side in this light of the fact that a price had already been put on the vehicle by the Company itself at the time of renewal of the policy. We accordingly hold that in these circumstances, the Company was bound by the value put on the vehicle while renewing the policy on 13-02-2002.”

 

iv.      In the matter of New India Assurance Company Limited vs. V.K. Rampal and Ors. in OWP No.9900027/2009 and IA No. 990001/2009, decided on 24.11.2022, the Hon’ble High Court of Jammu & Kashmir and Ladakh has observed that “ in a case where insured vehicle suffers total loss, the insured would be entitled to recover the amount of value of the vehicle accepted at the time of insurance and on which insurer has charged premium”.

XXXX

“It is trite that when both the parties to the contract of insurance enter into a contract of insurance with their eyes wide open and accept a particular value of the vehicle, the insurer cannot later on claim that the market value of the vehicle was less than the value it had accepted at the time of insurance and at the time of insurance and at the time of charging of premium.”

 

(18)    In light of the above judgments, it is settled that the insurer can not ignore IDV accepted/settled at the time of issuing insurance policy on receipt of the premium. The judgment of the Hon’ble SC in Civil Appeal No(s). 2769-2770 of 2023 in the matter of Om Prakash Ahuja Versus Reliance General Insurance Co. Ltd. etc. delivered on 4-7-2023 is also relevant in this matter wherein it has been held that “once there is a valid insurance policy available in favour of the appellant, the claim made by him for reimbursement of the expenses incurred is justifiable and deserves to be paid to him”.

 

(19)    In view of the above explained circumstances, we are of the considered opinion that the repudiation of the claim of complainant by the OP (M/s Kotak Mahindra General Insurance Co. Ltd.) is unjustified which amounts to deficiency of service and unfair trade practice on its part. Since the complainant has suffered directly due to deficient service and unfair trade practice of the OP, this has also caused mental pain, agony and harassment to the complainant.

(20)    Therefore, we feel appropriate to direct the OP (M/s Kotak Mahindra General Insurance Co. Ltd.) to:-  

1.      pay  IDV of vehicle i.e. Rs.10,58,000/- (Rupees Ten Lakhs

Fifty Eight Thousand only) within thirty (30) days from the date of receipt of this order, with interest at the rate of 9% p.a. from 14-11-2019 (the date of lodging the claim with OP) till the date of the payment to the complainant;

2.      Pay a sum of Rs.2,00,000/- (Rs. Two Lakh only) to the      

Complainant for causing mental pain, agony & harassment;

3.      Rs.25,000/- ( Rupees twenty five thousand only) for litigation    
4.  

(21)    It is clarified that if the above ordered amount is not paid by the OP to the Complainant within the period of 30 days from the date of receipt of this order, the OP shall be liable to pay interest @12% per annum on the total awarded amount from the date of expiry of 30 days period.

(22)    In addition to above, a cost of Rs.50000/- (Rs. Fifty Thousand only) is also imposed upon the OP for its attempt to mislead the commission, as observed in the para 17 (e) above.  This amount shall be deposited in the “State Consumer Welfare Fund (L/Aid), SBI Account No.10310544717, IFSC No.SBIN0018175” within 30 days from the receipt of this order. It is clarified that if this amount is not deposited in “State Consumer Welfare Fund (L/Aid)” by the OP within the period as directed , the OP shall be liable to pay interest @12% per annum on this amount also from the date of expiry of 30 days period.

 

 (23)   Order be given dasti to the parties in accordance with rules. Order be also uploaded on the website. Thereafter, file be consigned to the record room.

 

ASHWANI KUMAR MEHTA                               HARPREET KAUR CHARYA

                                                                Member                                                                   Member       

                                                      DCDRC-1 (North)                                                    DCDRC-1 (North)        

                                                           

      DIVYA JYOTI JAIPURIAR

                                                                                                         President

     DCDRC-1 (North)