CONSUMER DISPUTES REDRESSAL COMMISSION – X

                       GOVERNMENT OF N.C.T. OF DELHI

                                UdyogSadan, C – 22 & 23, Institutional Area

                                  (Behind Qutub Hotel)

                       New Delhi – 110016

    Case No.534/2011

DELHI UP MADHYA PRADESH TRANSPORT CO.

(KHURANAS)

THROUGH ITS PARTNER

SHRI JOBIAS KHURANA

C-3/11, PHASE-II, ASHOK VIHAR,

GROND FLOOR, DELHI- 110052…..COMPLAINANT

Vs.

1. MAGMA FINCORP LTD.

THROUGH ITS DIRECTOR/COMPETENT PERSON

AT A-193, OKHLA INDUSTRIAL AREA,

PHASE-I, NEW DELHI-110020

ALSO AT:

24, PARK STREET,

KOLKATA

2. NATIONAL INSURANCE CO. LTD.

THROUGH ITS DIRECTOR/COMPETENT PERSON,

4^TH FLOOR, JEEVAN BHARTI BUILDING,

CONNAUGHT PLACE, NEW DELHI.

ALSO AT:

AT 3, MIDDLETON STREET,

KOLKATA-700071                               …..RESPONDENTS

Date of Institution-28.02.2011

            Date of Order-28.07.2023

         O R D E R

RITU GARODIA-MEMBER

1. The complaint pertains to deficiency in service on the part of OP1 and OP2 in repudiating the claim of the complainant.

2. The facts of the complaint are that he was approached by OP1 for vehicle finance with the assurance that they have a tie up with insurance company. The complainant further alleges that OP1 assured that the insurance of vehicle will be done by OP1 and all claims will be settled by OP1. The complainant got his vehicle bearing registration no. UP-17-D-2971, Make- Tata Truck LPT 2515, Chasis No.426023QZ003320, Engine No.90062737712 financed by OP1 and insured by OP2, insurance company, through OP1.

3. The said vehicle was allegedly taken away by some unknown people. A FIR bearing No. 291 was lodged in PS Hazrat Nizzamuddin on 11.07.2009. OP was duly informed telephonically and also vide letter dated 13.07.2009. The complainant had submitted all necessary documents to both the parties. The complainant has paid installments upto 25.07.2011.

4. The complainant alleges that neither his claim nor his loan was settled by both the parties. He further alleges that he was suffering from a loss of Rs.30,000/- per month due to non-settlement of the complaint. A legal notice dated 15.01.2011 was sent to OP.

5. Complainant has relied on clause 04(e) of Hire-Purchase Agreement. Complainant has submitted the certified copies of the following documents with OPs:-

1. A report under section 173 CrPC for FIR No. 291 in the court of ACMM.
2. Final untraceable report.
3. Copy of FIR No. 291.
4. Copy of tax payment certificate dated 02.04.2009.
5. Registration certificate.
6. Insurance policy and other documents.

6. The complainant prays for complete settlement of claim; a sum of Rs.30,000/- per month as compensation and damages since the date of incident i.e. 11.07.2009; Rs.1,00,000/- as compensation for causing mental tension, pain and agony and litigation expenses.

7. OP1, the financer, filed its reply stating that there is no deficiency in service. OP1 admits that it had financed the vehicle and further got the vehicle insured with OP2, the insurance company. OP1 further admits that it is an agent of OP2. OP1 denied that the claims can be settled by OP1 without considering the insurance in any manner.

8. OP1 admits that the matter was intimated to insurance company regarding the incident on 13.07.2009 and an investigator, Mr. L.D. Arora, was sent to enquire about the incident. Investigations were still pending at the time of filing the written statement. OP1 submits that it is trying to facilitate the settlement process of the claim but the discretionary authority rests entirely with the insurer. OP1 further alleges that complainant has yet to submit all original documents.

9. OP1 denies that it has assured the complainant that no amount is payable to the insurance. A legal notice dated 15.01.2011 was issued to the complainant as he defaulted in the payment of monthly installment. According to the hire purchase agreement, OP1 are entitled to claim the insurance amount as it has lien on the vehicle in dispute.  

10. OP1 has admitted that the submission of certified copy of the aforementioned documents such as certified copy of FIR, insurance policy, registration certificate, tax payment certificate etc. is a matter of record. OP1 prays for dismissal of the complaint.

11. OP2, the insurance company, in its reply has admitted that it is carrying on the business of insuring vehicles. OP2 submits that the liability to pay arises only when the event gives rise to actual loss. In this case, OP2 states that the figure claimed is based on whims and fancies of the complainant without any basis.

12. OP2 is silent on insurance taken by the complainant and intimation of the theft. OP2 states that complainant has failed to provide required documents. OP2 has also not denied the submissions of aforementioned documents by complainant by stating the submission of document to be a matter of record. OP2 prays for dismissal of complaint.

13. The complainant in its rejoinder to OP has reaffirmed the contents of the complaint and denied the averments of OP.

14. The complainant has filed evidence by way of affidavit and exhibited the following documents:-

1. Photocopy of Election Identity Card is exhibited as EX.CW-1/1(OSR).
2. Internet print out of the assurance and commitments of OPs are exhibited as EX.CW-1/2(Colly).
3. Copy of FIR is exhibited as EX.CW-1/3.
4. Copy of letter is exhibited as EX.CW-1/4.
5. Reply of legal notice along with postal slips are exhibited as EX.CW-1/5(Colly),
6. Copy of report U/s 173 of Cr.P.C. is exhibited as EX.CW-1/6.
7. Copy of order is exhibited as EX.CW-1/7.
8. Copy of Tax Payment Certificate is exhibited as EX.CW-1/8.
9. Copy of registration certificate of truck is exhibited as Ex.CW-1/9.
10. Copy of Insurance Policy and other documents are exhibited as EX.CW-1/10(Colly).

15. OP1 has filed evidence by way of affidavit of Shri Griwan, authorized representative of OP1, and has repeated the averments made in the complaint.

16. OP2 has filed evidence by way of affidavit of Shri Raghunath Pawar, Administrative officer legal, and exhibited the following documents:-

1. Copy of letter is exhibited as Exhibit A.

17. He states in his affidavit that a policy bearing no. 150100/31/08/6300035747 was issued to the complainant.  OP2 had repeatedly asked the complainant for documents from the complainant who has not provided the same. OP2 vide letter dated 7.6.2018 has categorically asked the complainant to submit original documents like registration documents, route permit, fitness certificate, tax token etc. These documents have never been submitted, OP2 officer further relies on that letter dated 7.6.2013 and states that the letter has been annexed and marked however, no such document has been placed on record.

18. An affidavit of Shri Jobis Singh Khurana, partner in complainant firm has been filed. The said affidavit states that the truck bearing no. UP-17-D-2971 was stolen on 11.07.2009 and an FIR was registered at PS Hazrat Nizzamuddin. Following documents has been annexed with the affidavit:-

1. Copy of claim form submitted to the Insurance Company.
2. Copy of letter dated 13.07.2009 from the complainant to OP2 informing it about theft along with the Copy of FIR and Insurance cover note.
3. Letter dated 22.12.2010 sent by the Claims officer Magma Fincorp Ltd asking the complaint to submit certain documents.
4. The complainant submitted Subrogation cum Indemnity letter dated 03.03.2022 to the Opposite party no 2.
5. Letter dated 04.03.2011 sent by the complainant to the claims officer in response to the letter dated 22.12.2010.
6. Letter dated 17.08.2011 sent by the complainant to opposite party no 2 to request them for settlement of claim.
7. Letter dated 22.09.2011 sent by the complainant to opposite party no 1 and opposite party no 2 seeking settlement of the claim.
8. NOC by opposite party no 1.

19. OP1 has filed written arguments dated 24.08.2016 that the investigation by L.D. Arora is still pending and the complainant is yet to file all the documents that are required.

20. Order dated 27.10.2022 is as follows:-
21. :- Adv. Dharmendra Prasad for complainant.

                None for OP1 and OP2.

Complainant counsel states that a negotiated settlement has taken place between the complainant and OP1 however, OP2 is yet to respond.

Let notice be issued to OP2. Matter be listed on 23.01.2023.

The process may also be given Dasti.

21. Perusal of the file shows that OP1 and complainant were exploring the possibility of settlement.

22. Order dated 10.05.2023 is as follows:-
23. :- Adv. Zakir Hussain for complainant.

                None for OP1 and OP2.

Complainant has filed NOC from OP1 along with form 35. Issue notice to OP2 for F/A on 02.06.2023.

23. The Commission has considered the pleadings and documents by both the parties. It is admitted that the vehicle bearing no. UP-17-D-2971 was financed by OP1 and insured by OP2 The policy annexed with complaint shows that vehicle was insured for IDV of 12,82,500 valid from 20.03.2009 to 19.03.2010. It is also admitted that the said vehicle went missing on 10.07.2009. An FIR no. 291 dated 11.07.2009 was lodged with PS Hazrat Nizammudin. Final report dated 26.03.2010 and Order dated 30.09.2010 passed by MM South East shows that the vehicle bearing No. UP-17-D-2971 cannot be recovered.

24. It is also admitted that the claim was lodged with OPs. OP1 states that an investigator, Mr. L.D. Arora, was appointed and the investigation report is still pending. A letter from complainant to OP2 informing about the theft of the vehicle has been placed on record. A letter dated 22.12.2010 from Mr. Jayant Thakur, claims officer of OP1 was sent to the complainant requiring the following documents. The relevant portion is reproduced as follows:-

1. Original Policy require
2. All original vehicular related does require.i.e. RC,Permit, Fitness, Road Tax
3. Indemnity & subrogation require.
4. NOC in favor of Magma.

You are requested to submit the above required papers within the next 7 days for consolidation at our end failing which we shall be compelled to forward the entire claim papers as available with us to your insurer for their final decision.

Please note that Magma Fincorp Ltd. as your broker is only trying to facilitate the settlement process of your claim. However as per IRDA rule the discretionary authority in this regard rests entirely with your insurers who will decide on your claim as per policy terms & conditions.

Yours sincerely,

Jaynath Thakur

Claims Officer,

Magma Fincorp Ltd.

Delhi Office

25. Complainant has also filed a copy of subrogation cum indemnity letter sent to OP and duly received by them on 08.03.2011. Complainant has also filed a reply letter dated 04.03.2011 to Mr. Jayant Thakur, claims officer of OP1. The said letter is as follows:-

In response to your letter dt. 22.12.10, please note that when the vehicle is stole and R T O is intimated, it is impossible to obtain the duplicate documents from concerned authority due to security reason but you can verify the documents from the concerned authority. However, to serve your purpose we have got the photocopy of permit attested by concerned Authority as well as original particulars of the vehicle available with the date of fitness also mentioned as well as the original RC of the vehicle. These certificates are as good as original documents.

Complainant has also filed reminder letter dated 17.08.2011 to OP2 which is as follows:

Please refer to our earlier letter dt. 13.07.2009, in which theft information of above vehicle was informed to you and all necessary documents were send to you but regret to note that after passing the huge time neither the claim has been settled nor any intimation has been sent to you. Moreover till date you have not informed us claim number regarding this claim.

26. A No Objection Certificate from OP1 addressed to the registering authority Motor Vehicles Department has also been placed on record. The relevant portion is as follows:-

This is to confirm that we have no objection for deletion of our lien on the vehicle having following particulars:-

Regd. Owner:DELHI UP MADHYA PRADESH    

                      TRANSPORT CO (KHURANAS)

27.  A similar letter from OP1 addressed to complainant is as follows:

This is to inform you that your proposal no.PG/0031/V/07/000191 with us has been closed. We would like to inform you that your unutilized cheques submitted by you relating to the above loan and favoring the Company have been cancelled and shredded (details mentioned below) by us.

28. Thus, it can be concluded from the above discussion that the vehicle was insured from 20.03.2009 to 19.03.2010. The said vehicle was stolen on 10.07.2009. It is also admitted that a claim was filed with OPs. FIR was registered on 11.07.2009 An untraced report was prepared and accepted by court of competent jurisdiction.

29. Perusal of the correspondence shows that the claim was dealt by one Mr. Jayant Thakur, who was claims officer of OP1. OP1 has also admitted to a tie up with OP2 insurance company. OP1 in all its pleadings from the stage of reply to the written argument has stated that the investigation is pending and an investigator named Mr. L.D. Arora is conducting the investigation. The said claims officer of OP1 also required documents like original policy, RC permit, fitness, indemnity and NOC in favour of OP1.

30. The complainant in its reply has clearly stated that the original papers were stolen along with the vehicle. The complainant has got the photocopy of permit attested by the concerned authority along with the original particulars of vehicle. The complainant has also stated in the same reply that these documents can be verified from the concerned authority as the duplicate documents cannot be obtained from the said authority due to security reasons.

31. OP2, the insurance company in its reply merely states that the complainant has failed to provide required documents. However, no details of any such documents or correspondence with the complainant requesting the submission of the said documents have been placed on record. OP2 has also not given any details of the investigator appointed or any investigation report.

32. OP2 admits, in its evidence by way of affidavit of Shri Raghunath Pawar, Administrative Officer Legal, that the policy was issued to the complainant. He relied on letter dated 07.06.2013 wherein the complainant was asked to submit original documents. No such letter has been placed on record.

33. It appears that OP2 has not repudiated the claim till date for a vehicle that went missing in the year 2009. It also appeared that the matter has been settled between the complainant and OP1 and NOC has been issued by OP1.

34. Hon’ble Supreme Court in Gurmel Singh vs Branch Manage AIR2022 SC2486 has observed: In the present case, the insurance company has become too technical while settling the claim and has acted arbitrarily. The appellant has been asked to furnish the documents which were beyond the control of the appellant to procure and furnish. Once, there was a valid insurance on payment of huge sum by way of premium and the Truck was stolen, the insurance company ought not to have become too technical and ought not to have refused to settle the claim on non­ submission of the duplicate certified copy of certificate of registration, which the appellant could not produce due to the circumstances beyond his control. In many cases, it is found that the insurance companies are refusing the claim on flimsy grounds and/or technical grounds. While settling the claims, the insurance company should not be too technical and ask for the documents, which the insured is not in a position to produce due to circumstances beyond his control.

35. OP1 has admitted to tie-up with OP2. OP1’s officer Mr. Jayant was dealing with the claim. The submission of documents in the complaint was also made to the said officer. Nonetheless, no effort was made by OP1 for forwarding the documents on enquiring about the status of the claim to OP2. Even in the reply, affidavit and argument filed by OP1, a bald submission about the investigation still pending has been made. No endeavour on of to pressure the matter with insurance has been undertaken.

36. OP1 and OP2 are asking for the original documents which have been stolen along with the vehicle. The complainant has submitted duly attested photocopy with the statement that these documents can be verified from the concerned authority. 

37. OP1 has admitted to tie up with OP2, and its claim officer was corresponding with complainant and OP2 regarding processing of claim. However, OP1 did not provide any reason for not processing of claim by OP2 to the complainant and continued asking for original documents which has been stolen with a vehicle hence, we hold OP1 guilty of deficiency in service and direct it to pay Rs.25,000/- as compensation for mental harassment, physical inconveniences.

38. Thus, we find OP2 guilty of deficiency in service in neither repudiating nor allowing the claim of the complainant. We direct OP2 to pay:-

1. Rs.12,82,500/- (IDV) with 7% interest from date of theft till payment.
2. Rs.25,000/- as compensation for mental harassment, physical inconveniences inclusive of litigation expenses.

39. This order be complied with within 90 days from the date of the order.  This entire amount is payable to the complainant within a period of 90 days from the date of order failing which the entire amount will further carry an interest @9% per annum till it is paid to the complainant.

40. File be consigned to record room.