Delhi

New Delhi

CC/695/2011

Raj Kumar Aggarwal - Complainant(s)

Versus

M/S. Bharti Axa General Insurance Company Ltd. - Opp.Party(s)

14 Oct 2022

ORDER

 

                          DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, VI,

                              DISTT.NEW DELHI, M-BLOCK, VIKAS BHAWAN, NEW DELHI-110002.

 

CC/695/2011

 

IN THE MATTER OF:

 

Sh. Raj Kumar Aggarwal

S/O Sh. D.D. Aggarwal,

H. No.220, First Floor,

Sant Nagar,

East of Kailash

New Delhi-110065

                                                                                 COMPLAINANT

 

VERSUS

 

Bharti Axa General Insurance Co. Ltd.

7^th Floor, Prakashdeep Building,

7, Tolstoy Marg,

New Delhi.                                                                OPPOSITE PARTIY  

 

 

                                                                            

Quorum:

Ms. PoonamChaudhry, President

          Sh. Bariq Ahmad , Member

          Ms. Adarsh Nain, Member

                                                                   Dated of Institution: 01.07.2011

                                                                   Date of Order         :   14.10.2022

 

O R D E R

ADARSH NAIN, MEMBER

1. The present complaint has been filed under Section 12 of the Consumer Protection Act, 1986 (in brief CP Act). Briefly stated facts of the case are that the complainant is the owner of the vehicle bearing No. DL3CAP 6130 i.e. Hyundai Santro XING and insured the said vehicle with Bharti Axa General Insurance Co. Ltd., Opposite party (in short OP).
2.  It is further stated that the above said vehicle was again insured with the respondent on the basis of previous policy, vide certificate/policy bearing No. FPV/10188175/11/01/D51111 for the period from 01.02.2010 to 31.01.2011 for a sum insured of Rs. 2,22,300/- i.e. IDV. It is alleged that the terms and condition of the policy have not been supplied to the complainant along with policy till date.
3. It is stated that the above said vehicle was parked near House No. 220, Sant Nagar, East of Kailash, New Delhi on 07.02.2010 in morning after proper lock. Thereafter the complainant went along with his family member to attend the ceremony of cousin sister at Agra, Uttar Pradesh. He returned with his family member in the midnight of 9^th and 10^th February, 2010. When he searched his vehicle at about 9 am on 10.02.2011, it was not found where it is parked. The complainant allegedly immediately informed to the police on 100 number and accordingly police has lodged an FIR bearing No. 69/2010 under Section 379 against the unknown person.
4. It is further stated that the complainant informed to the insurance company along with the FIR and accordingly lodged the claim with the OP company. The Police submitted the final report Untrace with the concerned Metropolitan Magistrate which was accepted by the concerned Metropolitan Magistrate.
5. It is alleged by the complainant that inspite of several requests made for the payment of theft claim, the OP failed to do so and committed deficiency in service.
6. It is prayed that OP be directed to make the payment of Rs. 2, 22,300/- with interest @ 18%, to pay compensation of Rs.1, 00,000/- towards mental harassment and litigation charges.
7. OP contested the case, reply was filed taking objection that the complaint is liable to be dismissed as there has been no deficiency on the part of OP. On merits, the OP took objection that as per the Investigation report of the investigator deputed by them, the claim of the complainant is not genuine as there is misrepresentation of facts and circumstances of loss. Hence, there is no deficiency of service in repudiating the complainant’s claim. It was prayed that the complaint be dismissed.
8.  Thereafter, the complainant was given several opportunities to file rejoinder and evidence. The complainant filed the rejoinder to the reply of OP but failed to file his affidavit in evidence.
9. It is to be noted that vide order dated 10.01.2014, the opportunity to file CE was closed as the complainant failed to file the same despite several opportunities being granted. The evidence of complainant by way of affidavit cannot be read since the order dated 10.01.2014 has not been set aside.
10.  The Complainant has filed the present complaint alleging deficiency in service but evidence has not been led by complainant in support of his contentions. The onus of proof that there was deficiency in service was on the complainant. The burden of proof shifts to the OP only after the complainant discharges its initial onus. In the present matter, the complainant has failed to discharge the initial onus to prove his case.
11. It is to be noted that Hon’ble Supreme Court in Civil appeal no. 5759/2009 SGS India Ltd. Vs. Dolphin international decided on 06.10.2021 has held that the initial burden of proof of deficiency in service was on complainant. The burden would not shift on OP.

It is also to be noted that Hon’ble State Commission also held in Indigo Airlines Vs. Kalpana Rani Debbarma and others (2020) 9 SCC 424 that the initial onus to substantiate the factum of deficiency in service committed by the opposite party was primarily on the compliant. Further heed:-

“28. In our opinion, the approach of the Consumer For a is in complete disregard of the principles of pleadings and burden of proof. First, the material facts constituting deficiency in service are blissfully absent in the complaint as filed. Second, the initial onus to substantiate the factum of deficiency in service committed by the ground staff of the Airlines at the airport after issuing boarding passes was primarily on the respondent. That has not been discharged by them. The Consumer For a, however, went on to unjustly shift the onus on the appellants because of their failure to producedany evidence. in law, the burden of proof would shift on the appellants only after the respondents/complainants had discharged their initial burden in establishing the factum of deficiency in service.”

For the foregoing reasons we are of the view that as complainant failed to prove that there was deficiency of service on part of OP. the complaint stands dismissed. No order as to costs.

The copy of order be uploaded on the website of the Commission.

File be consigned to record room along with a copy of the order.

 

 

 

POONAM CHAUDHRY

                                                                                               PRESIDENT

                            BARIQ AHMAD                                                                ADARSH NAIN

          MEMBER                                                                                 MEMBER