Delhi

North

CC/65/2020

PAWAN KUMAR - Complainant(s)

Versus

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

TARIQUE NASEEM

17 Sep 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. 65/2020

In the matter of

Sh.Pawan Kumar

S/o Sh.Zile Singh

R/o H.No.35, Chirag Delhi

New Delhi-110017

Also at:

H.No.154, Garhibala

Sonipat, Haryana

                                                                                                    …Complainant

Versus

Oriental Insurance Company Ltd.

Through its Chief Manager

(Customer Service Department)

4^th Floor, Aggarwal House

Asaf Ali Road, New Delhi-110002      

Also at

Shop Zone, 5^th floor, MF Road

Ghatkopar (West), Mumbai

Maharasthra-400086                                                                      ...Opposite Party

                                                                                                                             

ORDER

17/09/2024

Ms.Harpreet Kaur Charya, Member

The present complaint has been filed by Sh.Pawan Kumar, the complainant against Oriental Insurance Company Ltd, the insure (OP) with the allegations of deficiency in services and unfair trade practice.

1. Facts as per the complaint are, the complainant got his second hand car Chevrolet Cruze 1998CLT2AT ,bearing registration No.DL-03CBV-9841 insured from OP vide policy No.131300/31/2019/55268 for the period from 13/12/2018 to 12/12/2019 by paying gross premium of Rs.28,538/- through Coverfox Insurance Broking Pvt. Ltd.( broking agent company). The complainant has stated that the insured vehicle was purchased after taking loan from Kisan Card. He also got the registration transferred in his name.
2. On 16/02/2019, at about 8.00 pm the complainant parked the insured vehicle at the back/rear parking of Unity One Mall, Rohini as there was no parking space inside the Mall. The complainant has further stated that around 11:00 pm on 16/12/2019(seems to be a typographical error should be 16/02/2019) he was shocked to find that the insured vehicle had been stolen by someone. 
3. The complainant and his friend tried to search the insured vehicle but could not find the same.  Immediately a complaint was lodged vide DD No.23A which was later on converted into FIR number 005806 dated 16/12/2019 with PS: Prashant Vihar, Rohini (again seems to be a typographical error should be 16/02/2019). 
4. A claim for theft of vehicle was lodged. It has been stated by the complainant that he had sent an email to the above-named broking company on 19/02/2019 which was replied by them asking for certain details. 
5. The complainant has alleged that despite telephonic calls and requests the claim was not passed and ultimately on his visit to Delhi Office he was asked to contact through e-mail.  The complainant has further submitted that he had sent all the required documents and both keys to the OP but the claim was delayed by them on one pretext or the other. 
6. Untraced report was allowed vide order date 09/03/2019 by Ms. Jasjeet Kaur, Ld.ACMM-01, North District, Rohini and same was submitted to OP. Surveyor, M/s. Manoj Kukreja sent his report dated 14/01/2020 through an email assessing the market value of the stolen vehicle between Rs.3,50,000/- to Rs.4,25,000/- raising an objection that proof of purchase and previous insurance policy has not been provided.
7. On 25/02/2020, the complainant received a mail from Ms. Sneha Sawant, Administrative Office, Regional Office, Mumbai allowing the claim of Rs.3,50,000/- only instead of the Insured Declared Value (IDV)of Rs.8,58,000/- with the objection that the proof of purchase and previous insurance policy have not been provided.
8. The complainant has further alleged that he has the statement of account to show the proof of purchase but the previous insurance policy documents were with his friend, through whom he had purchased the vehicle, has expired.  
9. Feeling aggrieved by the non-settlement of his claim as per IDV, the complainant has prayed for directions to OP to pay Rs.8,58,000/- (IDV) alongwith interest @24% p.a. from the date of theft of the vehicle till realisation; compensation of Rs.2,00,000/- on account  of mental and physical harassment due to deficiency,  unfair and malpractice and Rs.25,000/- as cost of litigation. 
10. The complainant has annexed the copy of the FIR number 005806 with PS: Prashant Vihar, Rohini, Certificate cum policy schedule, Jamabandi of land in which Kisan loan was taken, copy of Adhaar card, copy of RC of the insured vehicle, RTO documents, emails dated 04/09/2020, vehicle in query report, undertaking/indemnity bond, statement of account, Subrogation letter, Surveyor Report dated 14/01/2020, emails for the period dated 25/02/2020 to 27/02/2020.
11. An application was also moved by the complainant that the untraced report dated 29/07/2019 may be taken on record.  The same was allowed vide order dated 29/10/2020 and thereafter notice of the present complaint was issued to OP.
12.   Written statement was filed by OP taking several preliminary objections such as: the complaint is without any verification hence not maintainable; the contract of insurance is based on declaration of the proposal on good faith.  The complainant has misrepresented the material fact by not declaring the market value of the vehicle and existence of previous policy; hence the contract is void ab-initio.
13. The claim was assessed as per market value of vehicle in question and certain documents such as discharge voucher duly stamped and signed.  The value of the 2^nd hand Cruze model is much below the IDV chosen by the complainant. It was informed to the complainant to submit NOC from the Income Tax Department, New Delhi certifying the cash purchase of vehicle with proof of purchase and previous policy of the insured vehicle as the market value of the vehicle in question was less than Rs.5,00,000/-as per the surveyor report. 
14. It has been further submitted that the complainant failed to provide the           above-mentioned documents and stated in his complaint/claim that he had purchased the vehicle in cash however, as per Income Tax Act the cash transaction of Rs.8,58,000/- is not permissible and further the complainant failed to provide any proof of withdrawal of the said amount from his bank. Hence, the claim was closed as “No claim”.
15. The complainant had got the insured vehicle transferred in his name on 20/04/2018 after obtaining or with existing insurance policy at that time but has failed to provide the same to OP in order to declare the value of the vehicle in question at a higher amount.  The complainant got benefit of No Claim Bonus (NCB) @50%. It has been further submitted that the complainant has increased the value of the vehicle which was less than 5,00,000/- to Rs.8,58,000/- with the intention to grab more claim from OP.  It has been denied that there is any deficiency on part of OP with the prayer for dismissing the complaint with cost.  The complainant is guilty of suppression the material fact that is previous policy.
16. It has been stated by OP that one Sh. Pradeep Gupta S/o Sh. Zile Singh had lodged an e-FIR with PS: Prashant Vihar and not by the complainant himself as he was not present at that time.  Rest of the contents of the complaint have been denied.
17. Rejoinder to the written statement was filed by the complainant.  It has been denied that the value of the second hand Cruze Model is much below the IDV chosen by the complainant  and the market value of the insured vehicle was less that Rs.5,00,000/- . It has been denied that the complainant failed to show the proof of purchase.  The previous owner of the vehicle in question did not provide the copy of the policy of the vehicle in question and the person though whom the complainant had purchased the vehicle has expired.  Hence the complainant has no contact with the previous owner.
18. The OP had accepted the premium for the selected IDV and at the time of issuing policy did not raise any objection, hence they cannot evade from their legal liability by raising falls and frivolous objections. As far as the objections regarding lodging of FIR, Sh. Pradeep Kumar S/o Sh. Zile Singh is concerned, it has been stated that Sh. Pradeep Kumar is his brother who was accompanying the complainant on the day of incidence.   Rest of the contents of the written statement have also been denied. 
19. Evidence by way of affidavit has been filed by the complainant reiterating the facts of this complaint. 
20. He has got exhibited copy of FIR No.005806 dated 16/02/2019 as Ex.CW1/1, copy of Insurance policy dated 13/12/2018 as Ex.CW1/2, copy of  Jamabandi of land as Ex.CW1/3, copy of Aadhaar Card of the complainant as Ex.CW1/4, RC of Vehicle as Ex.CW1/5, RTO documents as Ex.CW1/6, untraced report as Ex.CW1/7, copy of letter of undertaking/indemnity bond as Ex.CW1/8, bank statement as Ex.CW1/9, copy of Surveyor Report dated 14/01/2020 as Ex.CW1/10, copy of mail of last value of claim as Ex.CW1/11, copy of mails as Ex.CW1/12 (Colly)
21. OP has got examined Sh. Prasanna Kumar Patnaik, Divisional Manager as RW-1.  He has got exhibited the original authorisation letter as Ex.RW1/1; the attested copy of Insurance Policy with terms and conditions as Ex.RW1/2; the certificate under section 65B of Evidence Act and copy of the Surveyor Report dated 14/01/2020 by Mr. Manoj Kukreja as Ex.RW1/3 and Ex.RW1/4 respectively.  Copy of email dated 25/02/2020 as Ex.RW1/5 approving the claim for Rs.3,48,000/- after deducting compulsory excess of Rs.2,000/-. 
22. Letter dated 22/10/2020 by Sh. Manoj Kukreja, the Surveyor intimating that the market value of the vehicle in question as on the date of theft i.e. 16/02/2019 was Rs.4,75,000/- to Rs.5,00,000/- depending upon the condition of the vehicle and the same is Ex.RW1/6.
23. It has been further submitted that upon receipt of Report dated 22/10/2020 the OP had re-assess the claim amount to Rs.4,85,500/- subject to providing the previous policy, proof of purchase, NOC from Income Tax Department etc. and same was intimated to complainant through email dated 26/10/2020. 
24. A reminder dated 29/10/2020 was again sent through email for providing the documents within seven days to enable the settlement of the claim. The complainant failed to submit the said documents.  Thereafter, on 05/11/2020 the claim was closed as no claim and same was intimated to the complainant vide email. Copy of the email is Ex.RW1/7 (Colly).  They have also got the written statement exhibited as Ex.RW1/8.
25. OP has also got examined Sh. Manoj Kukreja, the Surveyor as RW-2.  He has deposed that he is an independent surveyor/ loss assessor and has got the copy of license as Ex.RW2/1 and ID proof as Ex.RW2/2.  He has deposed that OP through telephonic call dated 07/01/2020 requested him to ascertain the market value of the vehicle in question.  He had submitted his report on 14/01/2020 assessing the value of the said car as Rs.3,50,000/- to Rs.4,25,000/- and the copy of the report dated 14/01/2020 is Ex.RW2/3. 
26. OP again through an email dated 12/10/2020 requested to assess the value of the insured vehicle as on the date of the theft i.e. 16/02/2019 while the previous value of the stolen vehicle was given as per on the date of request i.e. Jan 2020.  The copy of email is Ex.RW2/4. 
27. The second report dated 22/10/2020 intimating the market value as per the make and model of the car Chevrolet Cruze, Diesel March 2013 as on the date of theft i.e. 16/02/2019 was Rs.4,75.000/- to Rs.5,00,000/- depending on the condition of the vehicle  and same is Ex.RW2/5.
28. We have heard the arguments on behalf of both the parties and have also perused the material placed on record. The complainant is aggrieved by the non-settlement of claim of theft by OP as per IDV of Rs.8,58,000/-.  On the other hand OP has stated that as the complainant failed to submit the required documents, thus, the claim was closed as no claim vide letter dated 05/11/2020 (Ex.RW1/7). 
29. It is pertinent to note that the date of institution of present complaint is 15/09/2020  and the claim has been closed vide letter dated 05/11/2020, after the notice of the present complaint was issued to OP. As per the said letter the claim is closed on the ground of non-submission of following documents :

1. Discharge voucher
2. Latest NCRB Report
3.  The value of 2^nd hand Cruze Model is much below the IDV chosen by you.  Hence it was informed to you to submit NOC from the Income Tax Dept., New Delhi certifying the cash purchase of their vehicle.  

30. The factum of insurance cover, theft of the insured vehicle during the subsistence of policy and lodging of claim are not in dispute. As per policy certificate (Ex.CW1/2), it is seen that the OP has accepted a premium of Rs.28,538/- with the insurance cover period from  15:57 hrs. 13/12/2018 to midnight of 12/12/2019, with the IDV of Rs.8,58,000/-. 
31. Sh. Manoj Kukreja, surveyor RW-2 in his evidence by way of affidavit, has stated that in his first report he had assessed the market value of the insured vehicle as Rs. 3,50,000/- to Rs. 4,25,000/- as on the January 2020, and not the date of theft.
32. In his 2^nd report dated 22/10/2020 (Ex.RW1/6 & RW2/5) he reassessed the market value of the insured vehicle between Rs.4,75,000/- to Rs.5,00,000/- as on the date of theft ; which again is after the filing of the present complaint. 
33. OP vide email dated 07/01/2020 asked the complainant to submit the original RC and purchase proof of the vehicle. On 25/02/2020 , through an email the complainant has been informed that since the complainant has not provided the previous insurance policy and purchase proof of the insured vehicle , thus, as per the surveyor’s opinion the market value of the vehicle is Rs.3,50,000/-, therefore a claim of Rs.3,48,000/- after deduction of compulsory excess of Rs.2,000/- had been approved.
34. Hon’ble Supreme Court in the matter of “Dharmendra Goel Versus Oriental Insurance Co. Ltd. IV (2008) ACC 750 (SC) held that:

15.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 11 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 the 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 13th February, 2002.

35. The above principle was reiterated in Sumit Kumar Saha Vs. Reliance General Insurance Company Ltd. II (2019) SLT 296

15.It is precisely in this set of facts that the question in the present matter arises. If both the sides, with their eyes open, had arrived at a particular figure to be the real value of the subject matter of insurance, is it open to any party to dispute said sum and contend that the real value was something different from what was declared by the parties to be the sum insured. One may understand cases where there is non-disclosure of material facts which may go to the root of the matter and as such the sanctity of the agreement itself may get affected. But if both the parties had agreed and arrived at an understanding, which understanding was otherwise not vitiated by any misrepresentation, fraud or coercion, the parties must be held bound by stipulation of such figure.

36. Relying upon the above judgements even Hon’ble High Court of Jammu and Kashmir and Ladakh in matter of New India Assurance Company Ltd. vs. V.K.Rampal and Ors. 2022 SCC Online J&K 1028 observed as under:-

12.From the legal position adumbrated above, 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 charging of premium. Unless the contract of insurance and understanding between the insurer and the insured is vitiated by any mis-representation, fraud or coercion, the parties must be held bound by the stipulation in the policy.

37.     Once, OP has accepted the premium with IDV of Rs.8,58,000/- and issued a policy it  implies that the IDV was acceptable to OP and pursuant to that the policy was issued.  At the stage of claim asking for proof of purchase is just to avoid their liability. As the “sum insured” has been agreed upon by the complainant and OP, disputing the market value of the insured vehicle to be less than the agreed sum insured tantamount to harassment  of the complainant. 

38.     The demand of proof of purchase/NOC from the Income Tax Department at the time of claim settlement in order to dispute the IDV is uncalled for; this verification   should have been done at the time of issuing policy not at the time of settlement of claim. There is delay in settlement of the claim by OP on the ground of requirement of irrelevant documents .Pursuant to the filing of the instant complaint, OP closed the claim on the pretext of failure on the part of the complainant to provide above documents this is a mere tactic to harass the complainant and avoid its liability. These acts amount to deficiency in services and unfair trade practice.

39.     Therefore, in the facts and circumstances of the present complaint and in the interest of justice, we direct as follows:-

(a)      OP to pay Rs.8,58,000/- being the IDV to the complainant alongwith interest @6% p.a. from the date of filing of present complaint i.e. 15/09/2020 till realization.

(b)     OP to pay compensation of Rs.25,000/- on account of mental harassment and agony.

(c)      We also award Rs. 11,000/- as cost of litigation to be paid by the OP to the complainant.

The order be complied with in 30 days from the date of receipt of order.   Office is directed to supply the copy of this order to the parties as per rules. Order be also uploaded on the website.  Thereafter, file be consigned to the record room.

 

(Harpreet Kaur Charya)              Member	(Divya Jyoti Jaipuriar)                         President