Delhi

New Delhi

CC/32/2018

Naveen Mahajan - Complainant(s)

Versus

M/S. HDFC Ergo General Insurance Company Ltd - Opp.Party(s)

08 Apr 2022

ORDER

 

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, VI,

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

 

CC/32/2018

 

IN THE MATTER OF:

 

NAVEEN MAHAJAN

DIRECTOR OF M/S A.N. POLYMERS PVT. LTD.

HAVING ITS OFFICE AT A-54, NARIANA INDUSTRIAL AREA

PHASE-1 NEW DELHI 110028                                                     COMPLAINANT

VERSUS

HDFC ERGO GENERAL INSURANCE COMPANY LIMITED

14, AMBADEEP BUILDING

KASTURBA GANDHI MARG,

NEW DELHI 110001                                                                   OPPOSITY PARTY No. 1    

 

HDFC ERGO GENERAL INSURANCE COMPANY LIMITED

REGISTERED AND CORPORATE OFFICE

1^ST FLOOR, 165-166, BACKBAY RECLMATION

H T PAREKH MARG CHURCH GATE

MUMBAI 400020                                                               OPPOSITY PARTY No. 2

 

THE BRANCH MANAGER

HDFC BANK, KAROL BAGH BRANCH

2901-2902, ARYA SAMAJ ROAD

BEDANPURA, KAROL BAGH, DELHI                                     OPPOSITY PARTY No. 3                                          

Quorum:

Ms. Poonam Chaudhry, President

          Shri Bariq Ahmad , Member

          Ms. Adarsh Nain, Member

                                                                             Dated of Institution :30.01.2018

                                                                             Date of Order         :08.04.2022

O R D E R

POONAM CHAUDHRY, PRESIDENT

1. The present complaint has been filed under section 12 of the Consumer Protection Act, 1986 (in short CP Act.). The facts of the case in brief are that complainant is the policy holder of the opposite party no. 1 to 3. The opposite party no. 3 is the co-operative agent of the insurance company and introduced and advised the complainant for the said policy and also used to pay the premium to the insurance company.
2. It is also alleged that the complainant is policy holder vide claim no. C230017096378 (Policy No. 2311201675158300000) of opposite party no. 1 & 2 through opposite party no. 3 regarding Creta Car no. DL8CAQ0592 registered in the name of complainant M/s A.N. Polymers Pvt Ltd and has been regularly paying the installments of the above said vehicle from time to time without any delay.
3. It is further stated that on 23/04/2017 at about 08:30 — 09:00, the above said vehicle had been stolen and, complainant immediately got FIR registered bearing no. 012083/2017 dated 23/04/2017 PS Crime Branch, New Delhi ( e-police station : Greater Kailash, South East ) and also informed the opposite party no. 3 (The concerned bank etc), The opposite party appointed a surveyor, the complainant furnished all the information alongwith documents with the surveyor as and when called upon to do so.
4. It is also stated to his utter shock, complainant received a letter dated 05/09/2017 from opposite party no. 1 & 2, rejecting the claim, the complainant is legally entitled to the claim and other charges from opposite party no. 1 to 3. The rejection is highly unjustified and in utter violation of the provisions of law and of rules of Natural Justice.
5. It is also alleged that the complainant lodged his protest with opposite party no. 1 to 3 with regard to the rejection of his claim but no satisfactory response was received, despite various representations and correspondence sent by complainant to opposite parties they failed to consider his case. It is further alleged that the opposite party no. 1 to 3 are guilty of deficiency of services and other provisions of CA Act 1986 and other laws.
6. It is alleged the cause of action firstly arose when the complainant had taken the insurance policy and thereafter, when the said vehicle was stolen and further, when the opposite party rejected the claim of the complainant. The cause of action is still continuing. It is alleged that this Forum has territorial jurisdiction to adjudicate the complaint as the opposite parties have their office within its jurisdiction. It is alleged that the complaint is within the limitation.

1. It is prayed that opposite party no. 1 to 3 be directed to pay insurance claim bearing no. C230017096378 ( Policy No. 2311201675158300000 ) of Creta Car no. DL8CAQ0592 in the name of M/s A. N. Polymers Pvt. Ltd. to the complainant.

7. OP contested the claim, Written Statement was filed taking preliminary objections. That the Complainant is not the consumer as defined under the provisions of the CP Act. It was also stated that the Opposite Party no. 1 and 2 have not signed or executed any Agreement or issued any policy to the Complainant. The Complainant has failed to produce even a single document in support of his contentions that he had purchased a Policy from the Opposite Party no. 1. It was further alleged that the insurance policy under which the claim has been filed was issued in favor of A N Polymers Pvt. Ltd. which is a legal entity and the privity of contract was between OP-1 and 2 and A.N Polymers Pvt. Ltd. As such the complaint is not maintainable and liable to be dismissed for want of any locus of the Complainant.
8. It was further alleged that no cause of action has ever accrued in favor of the complainant against the Opposite Party No. 1 & 2. The insured was asked to justify the delay of 100 days in lodging the claim which he failed to do. The present complaint is abuse of process of law. It was also stated that the Complainant has failed to establish any deficiency on the part of the Opposite Party No. 1 & 2.
9. It was also alleged that the insured vehicle was hypothecated with OP-3 and if at all any benefits under the policy is found payable, the same cannot be released to the Complainant or insured as the vehicle was hypothecated.
10. On merits it was stated that M/s A.N. Polymers was purchased the aforesaid policy which was valid from 16.02.2017 to 15.02.2018. It was further stated that on 31.07.2017, Ms. Rajni Mahajan on behalf of the M/s A.N. Polymers Pvt. Ltd. (the "insured") had informed the Opposite Party No. 1 & 2 that the vehicle had been stolen on 23.04.2017. The information was given to the Opposite Party no. 1 and 2, after a delay of 100 days from the date of loss, thus, depriving the Opposite Party no. 1 and 2 to investigate the alleged loss of the vehicle and start recovery process through its channels and networks. However, without prejudice to the right of the insured, the Opposite party no. 1 and 2 had appointed an investigator to assess the claim of the Complainant. It is submitted that on enquiry for the reason of the delay, Ms. Rajni Mahajan had given a vague reason.
11. It was also alleged that during investigation Ms. Rajni Mahajan on behalf of the insured had deposited only one original key of the insured vehicle. On enquiry from her it was found that the second original key was left on the dashboard of the vehicle at the time of alleged loss.
12. It was also alleged that the insured at the time of the purchase of the Policy was provided with the terms and condition of the Policy, and is bound by the same. The insured had delayed the intimation of the loss to the Opposite Party no. 1 and 2 thus, violating the terms and condition of the Policy. Due to the said above mentioned reason, the Opposite Party no. 1 and 2 is not liable to pay any amounts to the insured.
13. It was stated Ms. Rajni Mahajan had also given a hand written statement informing that the second original key of the vehicle was kept on the dash board of the vehicle. The said conduct amounts to gross negligence and violation of Condition No. 4 of the Policy. According to Condition No. 4 of the Policy, insured was to take all reasonable steps to safeguard the vehicle from loss or damage. Condition No. 4 is reproduced as under:-
    1. The insured shall take all reasonable steps to safeguard the vehicle from loss or damage and to maintain it in efficient condition and the Company shall have at all times free and full access to examine the vehicle or any part thereof or ay driver or employee of the insured....."

It was stated that leaving of the key on the dashboard had given an easy access to the thief to get into the vehicle and run away.

14. It was also alleged the claim of the Complainant was repudiated vide letter dated 05.09.2017 and 28.11.2017. The repudiation letter stated as under:-

"We wish to hereby inform you that the claim is rejected for the following reason[s]:

"Loss to the vehicle not reported within a reasonable time period."

It was also alleged that condition No. 1 of the policy required that loss was to be reported immediately, the same is as under:-

Notice shall be given in writing to the Company immediately upon the occurrence of any accidental loss or damage in the event of any claim and thereafter the insured shall give all such information and assistance as the company shall require."

15. It was denied that Complainant was entitled to claim any amount from           OP-1 and 2. It was also alleged that there was no deficiency of service on part of OP No. 1 and 2. It was prayed that the complaint be dismissed.
16. Complainant filed rejoinder reiterating therein the contents of the complaint. Both the parties thereafter filed their evidences by affidavit. The Complainant reiterated the contents of his complaint in his affidavit. Complainant rebutted the allegation of delay and stated that Complainant tried to lodge his claim but official of OP No. 1 told him that the claim was to be accompanied with untraced report. The Complainant believed the statement of OP and did not lodge the claim, till he obtained the untraced report.
17. OP No. 1 and 2 on the other hand relied upon the policy, investigation report of surveyor statement of Rajni Mahajan. Ld. Counsel for OP in support of his contentions that there was delay in informing the loss to insurer and Insurer was thus liable to pay 75% of the IDV. Placed reliance on a decision of Hon’ble Supreme Court passed in the case titled Jaina Construction Company vs. Oriental Insurance Company limited and Another 2022 SCC Online SC 175, The relevant extract of the same is as under:-
3.  
6. .The District Forum allowed the said claim of the complainant by holding that the complainant was entitled to the insured amount on non-standard basis, i.e., Rs. 12,79,399/- as 75% of the IDV i.e., Rs. 17,05,865/- with interest @ 6% p.a. from the date of filing of the complaint till realization from the Insurance Company. The District Forum also awarded compensation of Rs.10,000/- and litigation expenses of Rs.5,000/- to the complainant. The aggrieved Insurance Company preferred an appeal being Appeal No. 612 of 2015 before the State Consumer Disputes Redressal Commission (Haryana), Panchkula. The complainant also preferred an appeal being Appeal No. 537 of 2015 seeking enhancement of compensation. The State Commission dismissed the appeal filed by the Insurance Company and partly allowed the appeal filed by the complainant by increasing rate of interest awarded by the District Forum from 6% to 9% vide the Judgment and Order dated 16.12.2015. The aggrieved Insurance Company preferred the Revision Petition before the NCDRC, which set aside the order of Hon’ble State Commission and District Commission. The appellant had thereafter preferred an appeal before Hon’ble Supreme Court. The Hon’ble Supreme Court set aside the order of the Hon’ble National Commission and affirmed the order of Hon’ble State Commission.
18. It is to be noted that in the present case condition No. 1 of the contract for Insurance provides that notice shall be given in writing to the company  immediately upon the occurrence of accidental loss on damage in the event of any claim and thereafter insured shall give all such information as company shall refund. Complainant had got FIR registered immediately after the theft on 23.04.2017 and also informed OP-1 and 3. There is admittedly delay of about 100 days in lodging the claim before the Insurance Company. However Insurance Company did not repudiate it on the ground that it was not genuine; it had repudiated it on the ground of delay. Thus in view of the above judgment of Hon’ble Supreme Court, Complainant is entitled to insured amount on non-standard basis i.e. 75% of the IDV i.e. Rs. 1,233,080/- with interest @ 9% from the date of filing of complaint till realization OP is liable to pay the same within a period of 4 weeks from the date of receipt of order. In case of delay in the payment beyond 4 weeks OP will be liable to pay interest @ 12% p.a. for the delayed period. A sum of Rs. 10,000/- is awarded as compensation and 5,000/- as litigation expenses.
19. A copy of this order be provided to all parties free of cost. The order be uploaded on the website of this Commission.

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

 

 

(POONAM CHAUDHRY)

President

 

        (BARIQ AHMAD)                                                                           (ADARSH NAIN)          

             MEMBER                                                                                             MEMBER