Delhi

North

CC/20/2019

CHIRANJI LAL - Complainant(s)

Versus

M/S. ORIENTAL INSURANCE CO. LTD. - Opp.Party(s)

02 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.:20/2019

 

Sh. Chiranji Lal

S/o Sh. Ram Niwas,

A/2/785, Phase-I,

JJ Colony, Madanpur Khadar,

Sarita Vihar, New Delhi-110076.            …                                         Complainant

 

                                                          Vs

 

M/s Oriental Insurance Co. Ltd.

Registered office at:

A-25/27, Oriental House,

Asaf Ali Road,

New Delhi-110002.                                       …                                    Opposite Party

 

ORDER

02/04/2024

 

Ashwani Kumar Mehta, Member:

 

1.       The present complaint has been filed under Section 12 of the Consumer Protection Act, 1986. The brief details of facts, as alleged by the Complainant in the Complaint in hand, are that:-

 

1. the Complainant has purchased a car Maruti Celerio (ZXI) bearing registration Number DL-12 CJ-0619 which was duly insured with OP as well as Hypothecated with ICICI Bank, Jhandewalan Extn. New Delhi vide policy No. 272101/31/2016/8157 w.e.f. 28.02.2016 to 27.02.2017.
2. The said vehicle/car of the complainant was stolen on 08.09.2016 and was duly reported to the Police vide NCR dated 09.09.2016 upon which an FIR No. 027296/2016 U/S 379 IPC was registered and after investigation, the police had also filed final report in form of "un-traced" before the concerned Ld. M.M. which was duly accepted by the said court on 04.11.2016. The complainant also informed OP about the theft of the vehicle through Email  dated 09.09.2016 at 8.39 a.m.
3. the complainant filed  claim with the OP and submitted all the documents pertaining to the vehicle to the investigator appointed by the OP. The OP also got the signature of the complainant on the pretext of the formalities of the claim and complainant believing the words of the OP, has done the same as the complainant is uneducated person and daily wages painter.
4. The complainant received a letter dated 19.04.2017 issued by the OP thereby informing the complainant about the status of the claim and after receiving the said letter, the complainant met the employee of the OP at their office and duly lodged his grievance/version orally in response of the letter upon which the complainant was informed by the OP that his claim  has been closed.

 

2.       In view of above facts and circumstances, the Complainant has filed this complaint with the prayer to:

1. Pass an order thereby directing the respondent to pay a sum of Rs.3,06,000/- towards the insurance policy against the above said vehicle to the complainant;
2. Pass an order thereby directing the respondent to pay a sum of Rs. 50,000 towards mental pain and agony suffered by the complainant;
3. Pay the litigation cost to the Complainant;
4. Any other relief, which this Hon'ble forum may deem fit and proper according to the facts and circumstance of the present case may also be passed in favour of the Complainant and against the opposite party.

 

3.       The Complainant has filed copy of RC, copies of Insurance policy, copy of Information report to E-police station about the lost/theft of the vehicle dated 09.09.2016 time 12:24 hrs & copy of FIR dt. 17.09.2016, Copy of email to OP through email dated 09.09.2016 by the son of the Complainant, Copy of untraced report as well as order passed by Ld. MM dated 04.11.2016 through E-court MV theft, copy of letter of Investigator Dt. 26.09.2016, intimation to NCRB/ Police about theft, letter issued by the OP dated 19.04.2017 to the Complainant, in support of the allegations levelled in the complaint.

 

4.       Accordingly, notice was issued to the OP and in response, the OP has filed its reply stating that:

1. An intimation of theft was received through email on 09.09.2016.
2. it is admitted  that the above said vehicle had been stolen but the intimation to Police was given only on 17.09.2016 i.e. after a delay of 8 days as per FIR.
3. After receipt of the written intimation, the respondent deputed an investigator/surveyor for the survey and investigation of the loss as per provisions of insurance act. A copy of intimation letter of Complainant has been filed with the reply as Annexure R-2.
4. the investigator so appointed by the OP visited the complainant on 13.09.2016, 26.09.2016, 04.03.2017 and 18.03.2017 advised the complainant by way of its letter dated 26.09.2016 to provide some documents as well information but the complainant failed to provide the required documents to the deputed investigator.
5. Therefore, the deputed investigator obtained some written statements from the complainant as well as his neighbour. The investigator in his report dated 18.03.2017 has concluded that "the insured is not having the ignition keys of the subject vehicle and lodged FIR with the police on 17.09.2016" i.e. after a delay of 8 days and have breached the condition of policy. It was also found by investigator that the vehicle was got financed by Bank. Copies of statement has been enclosed with reply as Annexure R – 3 (at pages 12-19).
6. After receipt of the report from the surveyor along with other relevant papers/information, the OP sent letter dated 19.04.2017 to the complainant/insured whereby the status of claim of the complainant was intimated to him and he was advised to submit his comments within 5 days failing which the claim will be closed as no claim but no response was received. A copy of the repudiation letter has been filed with the reply  as Annexure-R-4.

5.       The OP has also stated that the present complaint is misconceived, not tenable and is an abuse of the process of law and ought to be rejected as there is no deficiency of service. The present complaint is not maintainable and is liable to be dismissed because this Forum has no territorial jurisdiction to hear the complaint as the policy of insurance of his vehicle was obtained from Kalka Ji office of the OP only and not from the office whose address has been given in the complaint. The OP has also contended in reply on merits with following averments:-

 

1. as per conditions of the Policy/Contract of insurance, the complainant was legally and morally duty bound to give immediate notice upon the occurrence of any accident or loss or damage which he failed to do so and intimated the Police and lodged FIR after 9 days and also failed to provide keys of the stolen car which are violation of the insurance contract as per condition of the Policy. The clause speaks as under:-

"Notice shall be given in writing to the company within 48 hours upon the occurrence of any accident or loss or damage and in the event of any claim and thereafter the insured shall give all such information and assistance as the company shall require......... In case of theft or criminal act which may be the subject of a claim under this policy, the insured shall give immediate notice for the Police and co-operate with the company in securing the conviction of the offender".

 

2. It is well settled law that when the complaint involves complicated and complex question of law and facts on the basis of contentions raised by the complainant and/or respondents for which a detailed investigation is very important when the complicated question of fact is involved in the complaint when the lengthy and detailed enquiry and investigation is necessary, the complaint is not maintainable under Consumer Protection Act. It has been held by the Hon’ble National Commission and by various Hon’ble State Commission including this Forum that proper forum for such a case is a Civil Court. Therefore, this Forum ought to decline to exercise jurisdiction and ought to dismiss the complaint.

 

6.       The Complainant has also filed rejoinder affirming the allegations levelled in the complaint & refuting the contentions of the OP. It has been stated that:-

 

1.  the contents of para No.2 of the preliminary objections are absolutely wrong and denied. It is emphatically denied that the present complaint is not maintainable and is liable to be dismissed as this Commission has no territorial jurisdiction to hear the complaint as the policy of insurance of his vehicle was obtained from Kalkaji office of the OP only and not from the office, whose address has been given in the complaint. The address given in the complaint is head office of the OP and therefore, this Commission has proper territorial jurisdiction to entertain and decide the present complaint.
2. the contents of para No.3 of the preliminary objections are absolutely wrong and denied. It is emphatically denied that as per the conditions of the policy/contract the complainant was legally and morally duty bound to give immediate notice upon the occurrence of any accident or loss or damage which he failed to do so and intimated the police and lodged FIR after 09 days and also failed to provide keys of the stolen car which are violation of the insurance/contract as per the condition of the policy. It is clarified that the complainant intimated the OP with regard to theft /loss of his car within 48 hours by way of email, copy of which was filed with the complaint as well as written statement of the OP. The complainant was advised by the police to lodge his complaint by way of online procedure on Delhi Police Website which he done accordingly.
3. The contents of para No.4 of the preliminary objections are absolutely wrong and denied. It is emphatically denied that it is well settled law when the complaint involve complicated and complex question of law and facts on the basis of contention raised by complainant and/or respondents for which a detailed investigation is very important when the complicated question of fact is involved in the complaint when the lengthy and detailed inquiry and investigation is necessary, the complaint is not maintainable under consumer protection Act. It is also denied that it has been held by the Hon'ble National commission and by various State commission including this Commission, that proper forum such a case is a civil court.
4.  the contents of para No.5 of the preliminary objections are absolutely wrong and denied. It is emphatically denied that under a motor insurance policy there can be no claim for loss of profits and earning such losses are consequential losses which are specifically excluded by the policy clause No. (a) of section 1 under heading Age of vehicle of the contract. It is also denied that there is no provision in the insurance contract for payment of financial harassment.
5. The contents of para No.6 of the preliminary objections are absolutely wrong and denied. It is emphatically denied that he complainant have not come before this Hon'ble commission with clean hands and has supressed the material facts.
6.  the contents of para No.3 of the preliminary submissions made by the OP  are also denied that investigator so appointed by the respondent visited the complainant on 13.9.2016, 26.9.2019. 04.03.2017 and 18.3.2017, advised the complainant by way of its letter dated 26.9.2016 to provide some documents as well information but the complainant failed to provide the required documents to the deputed investigator. It is also denied that the deputed investigator obtained some written statements from the complainant as well as his neighbours. It is emphatically denied that the investigator deputed for the survey /investigation submitted his report dated 18.03.2017 which clearly conclude the insured is not having the ignition key of the subject vehicle and lodged FIR with the police on 17.9.2016 i.e. after a delay of 8 days and have breached the condition of the policy. Rest of the averments of this para are matter of record.
7. The contents of para No.4 of the preliminary submissions made by the OP  are absolutely wrong and denied. It is emphatically denied that after receipt of the report from the surveyor along with other relevant paper/information, the OP sent a letter dated 19.4.2017 to the complainant /insured whereby the status of the claim of the complainant was intimated  and he was advised to submit comments within 5 days failing which the claim will be closed as no claim but no response was received and he chose to file the present complaint with the Commission. In this regard, the complainant has clarified that when the complainant received the letter dated 19.4.2017, he reached to the office of the OP within 5 days and met with the concerned officer and narrated his response but the said officer clearly stated that his claim has already been closed and rejected, so the present complaint was filed before this Commission. Further, the complainant met with the insurance officials at the office of the OP as he got pressure from the bank for payment of EMI with whom the said vehicle was hypothecated.

 

7.       It has further been contended by the complainant that he informed the Police within time on 09.09.2016 online and the said information also conveyed to the OP by way of email by the son of the complainant. The Police after registration of FIR and proper investigation filed untraced report before the concerned court, which was duly accepted by the concerned court, therefore, no malafide act has been pointed out by the local police upon the complainant. It has further been contended that the OP vide letter dated 19.04.2017 asked the complainant that "why the claim of the complainant should not be denied since the complainant have failed to inform the OP within stipulated time schedule" as per terms and conditions of the insurance policy. The complainant duly replied orally that the information of the theft of the vehicle was duly given to the OP through email dated 09.09.2016, despite that the claim of the complainant was rejected by the OP. Copy of the relevant email has been annexed with the complaint. Therefore, the grounds of the OP to repudiate the claim is only that the complainant has not informed the Insurance Company within 24 hours from the time of theft of the vehicle which is totally incorrect and wrong as the complainant proved and filed the copy of the email dated 09.09.2016 sent to the OP with regard to theft of the vehicle. The complainant also relied the judgment dated 04.10.2017 passed by the Hon'ble Supreme Court in case titled as "Om Prakash Vs Reliance General Insurance and Ors."  in appeal No. 15611 of 2017, thereby holding "even if there is a delay in lodging of the claim with the insurance company, then even the insurance company should not reject the claim based upon genuine reason and the claim should not rejected on purely technical ground on mechanical manner". However, in the present case, there was no delay on part of the complainant to inform the insurance company and lodge his claim within insurance company.

 

8.       Accordingly, the complaint has been examined in view of the facts of the case and averments/documents/Evidence put forth by both the parties and it has been observed that in the letter dated 19-04-2017 of repudiation/closure of the claim, the OP has used the following wording:- 

“Re: Theft of Veh. DL 12CJ 0619

covered under Pol. 272101/31/2016/8157

 

We are in receipt of your intimation letter dated 09.09.2016.informing us about the theft of your captioned vehicle. Your letter of intimation reveals that you vehicle was stolen on 08.09.2016 but you have given intimation of loss to police on 17.09.2016.i.e. after 9 days. Also you have not shown keys of stolen vehicle.

 

We request you to kindly let us have your comments as to why your claim should not be denied since you have failed to inform our office within stipulated time schedule as per Terms and conditions of Insurance Policy.

 

If we do not received your response within 5 days from the date of receipt of this letter we shall be compelled to close the file as NO CLAIM.

 

9.       From the perusal of the contents of repudiation letter, it has been found that the OP has repudiated/closed the case for the two reasons:-   

i.  the complainant has not shown keys of stolen vehicle; and

ii.  the complainant failed to inform OP within stipulated time    

     schedule as per Terms and conditions of Insurance Policy.

 

10.     It has also been noticed from the allegations levelled in the complaint and averments made in the rejoinder, the complainant has not defended the finding of the OP made regarding non-availability or submission of keys of stolen vehicle and has remained silent on this fact which raises doubt over the conduct of the complainant. It has also been corroborated from the letter of the investigator given to complainant that the set of keys was demanded from the complainant but the complainant has not given any satisfactory reason for not supplying the keys of stolen vehicle.

 

11.     However, on issue of late intimation of theft of the vehicle, the judgment of Hon’ble Supreme Court in CA No. 1069/2022 passed on 11.02.2022 in the matter of Jaina Construction Company Vs. OICL is relevant wherein it has been held that the insurance company cannot repudiate the claim on the ground of late intimation of theft if the FIR was lodged in time. Besides, the judgment passed by the Hon’ble Supreme Court in CA No.4071/2022 in the matter of Gurmel Singh Vs.  NIC Ltd. passed on 20.5.2022 is also relevant in the matter wherein it has been held that “Insurance Company should not refuse the claim on technical or flimsy grounds. Insurance Company should not ask for the documents which the insured is not in a position to produce due to circumstances beyond his control”. 

 

 12.    The OP has referred a judgment of Hon'ble Supreme Court of India in the matter of “Oriental Insurance Co. Ltd. Vs. Muni Mahesh Patel IV (2016) CPJ 1 (SC)” disputing the competency of this commission to decide this case. In this regard, it is clarified that there is no complication in this matter for which oral or documentary evidences are to be led. The Complainant has filed copies of report to E-police station about the lost/theft of the vehicle dated 09.09.2016 time 12:24 hrs which was followed by FIR dt. 17.09.2016, Copy of email to OP through email dated 09.09.2016 by the son of the Complainant, Copy of untraced report as well as order passed by Ld. MM dated 04.11.2016 through E-court MV theft and intimation to NCRB/ Police about theft. These documents and other documents filed with the reply by the OP are not disputed and therefore, are sufficient to decide the instant consumer dispute for which this commission is fully competent and the dispute is within the jurisdiction of this commission.

 

 

13.     It has also been observed from the documents and replies filed by both the parties that the theft of the vehicle is not disputed and theft is timely intimated to OP and to police also. Untrace report is also available on records. However, the complainant has failed to submit keys of the stolen vehicle to the OP, we are inclined to decide the dispute of claim of the complainant on non-standard basis up to 75% of the IDV of the stolen vehicle, as held in  the judgment  delivered by the Hon’ble  Supreme count of India in the matter of  Ashok Kumar  Versus New India Assurance Co. Ltd.( 2023 INSC 659).   

 

14.     Since the IDV of the vehicle is Rs.3,06,000/- (Rupees Three Lakh Six Thousand only) as per the policy, we feel appropriate to direct the OP (M/s Oriental Insurance Co. Ltd.) to pay Rs.229500/- (Rupees Two Lakh Twenty Nine  Thousand Five Hundred only) i.e.75% of the IDV on non-standard basis, within thirty (30) days from the date of receipt of this order.

15.     It is clarified that if the above said amount is not paid by the OP to the Complainant within the period as directed above, the OP shall be liable to pay interest @9% per annum from the date of expiry of 30 days period.

16.     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                                                 DIVYA JYOTI JAIPURIAR

                                                       Member                                                                                    President

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