CONSUMER DISPUTES REDRESSAL FORUM – X

GOVERNMENT OF N.C.T. OF DELHI

Udyog Sadan, C – 22 & 23, Institutional Area

(Behind Qutub Hotel)

New Delhi – 110 016

Case No.13/2011

SH. UMED SINGH

S/O SH. CHANDGEE,

R/O C-79, C BLOCK, PREM NAGAR,

DELHI-110043

                                             …………. COMPLAINANT                                                                           

Vs

M/S THE ORIENTAL INSURANCE CO. LTD.

(THROUGH ITS BRANCH MANAGER)

8, KRISHNA MARKET, 1^ST FLOOR,

OPP. DESHBANDHU COLLEGE, KALKAJI,

NEW DELHI-110019

                                                          …………..RESPONDENT

Date of Order: 15.01.2019

O R D E R

A.S. Yadav – President

            The complainant herein, Shri Umed Singh has filed the present complaint under Section 12 of the Consumer Protection Act, 1986, against M/s The Oriental Insurance Co. Ltd., stating that he is a self employed person and had booked one Tata Sumo Victa Lx in the second week of November, 2008 under the finance assistance from M/s Tata Motor with M/s Autolink Enterprises India Pvt. Ltd.  The complainant had completed all the formalities to purchase the vehicle with Chassis no.446155IIRZ927536 & Engine No.483DL56GRZ712479 for a sum of Rs.5,44,856/- plus applicable tax, registration etc. which is to be registered for taxi purpose, against Invoice dated 30.11.2008.   The complainant had taken comprehensive policy vide no.782511 dated 5.12.2008, for the period from 5/12/2008 to 4/12/2009 and paid sum of Rs.16,319/- to OP and Policy no.31/09/3828 was issued for the aforesaid vehicle.   

It is submitted that after completing all the formalities, the complainant was admitted on 28.11.2008 at Life Line Hospital with the history of severe headache associated with vomiting, and due to these reasons, his driver Mr. Raju Malik had taken the delivery of the aforesaid vehicle vide delivery note dated 7.12.2008, from the OP which is under the HP/Lease under Tata Motor Finance Ltd. Unfortunately the complainant was again admitted to Apollo Hospital and as per the Discharge Summary, he was diagnosed with Tumour Bleed and for these reasons, the complainant could not complete all other formalities  in relation to the registration of the aforesaid vehicle. 

It is submitted that on the night intervening between 26^th and 27^th December, 2008, the aforesaid vehicle was stolen from the custody of the driver Mr. Raju Malik  from his residence i.e. C-33 Y,  DDA flats, Jahangir puri, Delhi and accordingly FIR NO.681 dated 30.12.2008 u/s 379 IPC at PS Jahangir puri, Delhi was lodged, and later on the claim was filed by the complainant with the OP, which was duly acknowledged  as Claim no.31/9/176 under the Policy no.31/09/3828.  Pursuant to this, an Investigator was appointed.   The Investigator M/s Royal Associates wrote a letter and demanded certain documents/information from the complainant even though the said documents had already been given to the OP at the time of filing the claim.  It is submitted that the complainant was very much shocked to receive the letter dated 6.3.2010 in which the OP demanded Temporary Number certificate and NCRB Report of the lost vehicle  and that if he failed to submit these documents within 7 days the claim would be rejected.   The complainant replied and stated that the vehicle had been stolen before temporary registration  and that the NCRB Report already given but there was no reply to the same from the Investigator.   Thereafter, the complainant was sent a letter dated 5.4.2010 by the OP rejecting the claim of the complainant “on account of the non supply of documents/information aforesaid claim is No Claim.” It is submitted by the complainant that the refusal to pay the claim amounts to deficiency in service on the part of the OP.   The complainant has prayed that the OP be directed to pay the insured amount of Rs.5,50,863/- on account of theft of the insured vehicle and Rs.2,69,811/- on account of deficiency in service on the part of the OP along with mental and physical harassment.

On being issued notice, the OP put in appearance and filed its Written Statement, and submitted that the complaint is not maintainable as the financier M/s Tata Motor Finance Ltd. has not been made a party and the complainant is not the exclusive owner of the vehicle.  It is submitted that as per the Policy of insurance, the complainant was legally and morally bound to give immediate notice upon the occurrence of any accident or loss or damage which he failed to do and intimated the respondents 3 days after the loss which is in violation of the insurance contract.  It is submitted that the claim of the complainant was closed as No Claim on 5.4.2010 after carefully ascertaining the facts on merit by the OP, since the vehicle had been stolen prior to its registration with the Registering Authority and the engine and chassis numbers of the vehicle are different than whatever has been mentioned in the insurance cover and FIR, and that as per the FIR, the engine no.712749 and chassis no. was 927536 of the stolen vehicle.  The OP further submits that after receipt of the investigation report, the OP wrote a number of letters requesting the complainant to provide certain documents/ clarifications but the complainant failed to submit the requisite papers till 25.1.2010 when the OP prepared an official claim note based on the document collected by the deputes surveyor and took a decision to repudiate the claim.  Finally, the OP submits that the complaint is not maintainable at all.

The complainant has filed the rejoinder and his evidence by way of affidavit, denying the contents of the written statement insofar as they have not been admitted and has reaffirmed and reiterated the allegations in the complaint.  The complainant submits that the OP has failed to give or maintain trouble free service to its customers and that the complainant had suffered loss to the dereliction of duty or negligence as mentioned in the complaint. 

Parties have filed their respective evidence by way of affidavits, and also filed written submissions.  

We have gone through the case file carefully.

The claim of the complainant was closed vide letter dated 05.04.2010 stating therein that vide letter dated 23.02.2010, 06.03.2010 and 17.03.2010 certain documents were demanded which were not supplied hence claim is closed.  The complainant has placed on record the letter dated 06.03.2010 whereby only two documents were required i.e. temporary registration number as well as latest report of NCRB. 

The complainant has specifically stated that he fell sick and was admitted on 28.11.2008 at Life Line hospital and even the delivery of car was taken by his driver Mr. Raj Malik on 07.12.2008.  It is not disputed that the delivery of the vehicle was taken on 07.12.2008.  The complainant has specifically stated that he has already supplied the NCRB report of the lost vehicle.  In fact the complainant has supplied all the documents.  He has placed copies of all documents on record.  The complainant has reported the matter regarding the theft of the vehicle at PS Jahangirpur, Delhi for which FIR No.681 dated 30.12.2008 u/s 379 of IPC was lodged, copy of FIR is placed on record.  The untraced reported dated 04.03.2009 submitted by police is also on record.  Orders of Ld. Metropolitan Magistrate dated 07.11.2009 regarding untraced report is also placed on record.  The complainant has placed on record the letter dated 18.11.2009 of the financer stating that they have not taken possession of the vehicle.  Both the keys were given to the investigator.  In fact everything has been supplied to OP.  Here it is relevant to refer to the report of the investigator appointed by OP.  The findings given by the investigator are reproduced as under:-

"1.   Mr. Umed Singh s/o Chandgi Ram is resident of C-79, C-Block Prem Nagar Delhi.  He is having business in partnership with Narinder Yadav in the name of Krishana Tour & Travels.

2.    He purchased two tata sumos on 20/11/08.  Out of these two one tata sumo was purchased vide invoice No.Auto Link – 0809401332 Dt.31/11/08 from Auto Link Enterprises Delhi.  But tata sumo was delivered to him on 7/12/08.  PDI of tata sumo was carried on 7/12/08.

3. This tata sum has to be used for commercial use and insured was in process of getting route permit and Registration of tata sumo as commercial use, but in between tata sumo was stolen on 26/12/08.
4. Mr. Raju Malik r/o DDR Flats Jahangirpuri was working as drive of said tata sumo.  On 26/12/08 night Raju Malik parked said tata sumo outside his house.  Next day morning tata sumo was found stolen.
5. Tata sumo was duly locked at the time of theft.  Insured is having both original keys and all original papers of tata sumo with him.  Keys seems to be new one.
6. FIR No.681 Dt.30/8/08 was lodged at Police Station Jahangirpuri Delhi.  FIR was lodged U/s 379 IPC.  As per Police record they received information of theft on 30/12/08 and FIR was lodged on same day.  Insured could not provide any documentary proof from which it can be proved that Police was immediately informed about theft.  So there was delay of three days in giving information to Police.
7. Eng. And chassis No. mentioned in covernote are different from those mentioned in FIR as well as in copy of invoice.
8. Tata sumo was financed by Tata Motors Finance Ltd.  Financer has not repossessed said tata sumo.
9. As per Police record and our investigation said tata sumo has not been recovered so far.  Police Station has already closed the case and untrace on 4/3/09, but untrace report U/s 173 IPC is still awaited from court.

Opinion

On the basis of above said findings, we are of the opinion that date, time and place of theft seems to be genuine.  Insurer may deal with claim as per terms and conditions of policy, keeping in view above said findings.  This report is issued without prejudice.”

The investigator has specifically stated that this Tata Sumo has to be used for commercial use and insured was in process of getting route permit and registration of Tata Sumo as commercial vehicle. 

It is significant to note that insured was admitted in the Life Line hospital on 28.11.2008.  Thereafter he was admitted in Apollo hospital.  He has not taken the registration certificate and this was mentioned by the investigator in his report.  The investigator has concluded that on the basis of above said findings, we are of the opinion that date, time and place of theft seems to be genuine.  Once the investigator has concluded in findings that date, time and place of theft are genuine, what else was required by OP?  Repudiation of the claim, only on the ground that temporary Registration Certificate was not supplied, is totally irrelevant.  In case of theft, whether the vehicle was registered or not is totally immaterial because at the relevant time the vehicle was parked at the residence of the driver who has taken delivery of the vehicle and it was not being plied. 

Here it is relevant to refer to the judgment of the Hon’ble National Commission in case of National Insurance Co. Ltd. Vs Jaswant Singh – 1(2013) 389 (NC).  Similarly the Hon’ble Supreme Court in case of National Insurance Company Ltd. Vs Nitin Khandelwal – IV(2008) CPJ 1 (SC) – held that in case of theft of vehicle, the breach of condition that the vehicle was used as taxi though it was insured for personal use, was not germane to the main condition of the contract. 

It is also useful to refer to case of Shriram General Insurance Co. Ltd. Vs Manoj – III(2015) CPJ 99 (Har.) – in that case, Hon’ble Court in para 6 held as under:-

“6. The contention raised on behalf of the appellant-opposite party is not acceptable.  The evidence available on the record establishes that it is a genuine claim of the respondent-complaint.  F.I.R.No.327 dated August 31^st, 2011 was recorded and intimation was also given to the Insurance Company.  Thus, it is amply proved that the vehicle was stolen and could not be traced.  It was a genuine claim of the complainant in view of law laid down by this  Commission in Shriram General Insurance Company Limited V. Rajesh Kumar, 2014(2) CLT390, wherein reference of the circular dated September 20^th, 2011 issued by Insurance Regulatory and Development Authority (IRDA) has been given.  It has been specifically mentioned by IRDA that there may be a condition in the policy regarding delay in intimation but that does not mean that the insurer can take the shelter under that condition and repudiate the claim of the claim, which is otherwise proved to be genuine.  The operative part of the circular reads as under:-

The Authority has been receiving several complaints that claims are being rejected on the ground of delayed submission of intimation and documents.

The current contractual obligation imposing the condition that the claims shall be intimated to the insurer with prescribed documents within a specified number of days is necessary for insurers for effecting various post claim activities like investigation, loss assessment, provisioning, claim settlement etc.  However, this condition should not prevent settlement of genuine claims, particularly when there is delay in intimation or in submission of documents due to unavoidable circumstances.”

The closing of the claim of the complainant was totally unjustified.  There is no reason to close the claim in view of the report of Investigator and documents placed on record.  It is a clear cut case of deficiency in service on the part of OP.

OP is directed to pay a sum of Rs.5,50,863/- to the complainant alongwith interest @ 9% p.a. from 01.04.2010.  OP is further directed to pay Rs.20,000/- towards compensation and Rs.5,000/- towards litigation expenses.

Let the order be complied within one month of the receipt thereof.  The complaint stands disposed of accordingly.

Copy of order be sent to the parties, free of cost, and thereafter file be consigned to record room.

        (H.C. SURI)                                                                   (A.S. YADAV)

          MEMBER                                                                    PRESIDENT