Date: 05.09.2017

ORDER                                     

Sh. K.S.Mohi, President

1. The complainant has filed the present complaint on 10.02.2016 against the O.P under section 12 of Consumer Protection Act, 1986.  The facts as alleged in the complaint are that the complainant had taken an insurance policy bearing no.
360501/31/14/6300001468 valid for the period from 
07/12/2014 to 06/12/2015 for his Eicher Truck Bearing No.DL-lGB-759l for an IDV of Rs. 850000/- and  paid a sum of Rs. 22,700/- as premium for the same. It is alleged that on 13.02.2015 the said truck was stolen by some unknown person from Main Road, Kolkata Gohati Fright Carrier, 66 Foota Road , Bhagat Singh Park , Samaipur Badli, Delhi and he  informed the theft to the police immediately and an FIR no. 197 dated 13.02.2015 was lodged at PS. Samaipur Badli. Complainant also informed OP and lodged claim with it.  It is further alleged that the as per the demand & direction , he furnished all the required documents to the surveyor  along with Untrace report  and Vehicle Enquiry Report but despite completion of all the requirements raised by OP the claim of the complainant has not been settled.  Accordingly he sent a legal notice to OP and in reply OP submitted that the claim is pending only because of non submission of full and final payment discharge voucher and the correct IDV of the  vehicle should have been Rs. 6,68,153/-.  It is alleged by the complainant that instead of  making payment of claim of Rs. 8,50,000/- (IDV)  OP is making false allegations   the complainant against that the correct IDV of the vehicle should have been Rs. 6,68,153/-.  Pleading deficiency in service on the part of OP complainant prayed that O.P be directed to pay a sum of Rs.8,50,000/- along with interest @ 18% p.a. and also to pay cost and compensation as claimed.  

2. O.P appeared and filed its written statement.  In its written statement OP has not disputed that complainant had taken policy referred to above.  It is alleged that  the complainant has failed  to provide the key of the stolen  vehicle which was being used prior to the theft of the vehicle as both the keys provided to the OP differ from each other and complainant has failed to provide the facts regarding the keys of the vehicle despite its letter dated 14.03.2016 issued to him.  It is further alleged that the complainant failed to provide the key of the vehicle which clearly shows that the ignition key was left in the unattended vehicle which facilitated the thieves in stealing the vehicle. Hence claim is rejected under condition No.5 of the policy.  Dismissal of the complaint has been prayed for.

3.   Complainant has filed his own affidavit affirming the facts alleged in the complaint. On the other hand, Sh. J.S. Aulakh, Divisional Manager,  has filed affidavit in evidence on behalf of O.P. testifying all the facts as stated in the written statement. Parties have also filed their respective written submissions.

4. We have carefully gone through the record of the case as well as written arguments filed by both the parties and have also heard the arguments of Ld. Counsel  for the parties.

5.  The main controversy is that whether complainant is entitled for  Rs. 8,50,000/- along with compensation or not?  The OP has rejected the claim of complainant on two counts namely that both the keys provided by complainant differed with each other  and also the insured was guilty of violation of term and condition no. 5 of the insurance policy because the vehicle in question was left unattended and the same was stolen while its original key was left inside the ignition key switch. The OP appears to have committed deficiency on both the counts stated above. Firstly it is no body’s case that one key of the vehicle was left inside the ignition key because it has been admitted that the keys though differed with each other were furnished to OP.  Secondly OP cannot have shelter under the umbrella of so called ‘terms and conditions’ to thwart the legitimate claim of the complainant because OP has not placed on record any documentary evidence as to how and when the terms and conditions were supplied to the insured. Needless to say the terms and conditions of the insurance policy cannot be permitted to be relied upon which were not supplied to the complainant (insured) at the time of inception of policy or any time subsequent thereto.  The OP has not filed on record evidence of any person who check the keys and found different to each other. Therefore, the plea of the OP that both keys supplied by OP differed with each other appears to be an oral claim.   Another interesting aspect which has come on record is that on one side OP  refuted claim of the complainant on technical grounds and at the same time admitted vide reply to legal notice dated 16-12-2015 (Annexure C-16)  that OP was willing to settle the IDV of Rs. 6,68,153/- instead of IDV of Rs. 8,50,000/- which according to OP was got wrongly insured by complainant. This appears to be ridiculous because the IDV is always ascertained / settled by the insurance company looking into the model / condition of the vehicle in question.  The conduct of the OP inviting deficiency in this matter is bit large.

6. Keeping in  view the facts  and circumstances discussed above, we direct the OP to pay a sum of Rs. 8,50,000/- with interest @ 9% from the date of filing of this complaint till realization and  Rs. 10,000/- as compensation for pain and agony which also includes litigation cost to the complainant .

7. This order shall be complied with by the OP within a period of 30 days from the date of receipt of this order failing which interest @ 9% shall be payable on the entire above mentioned amount from the date of this order till realization.  

8. Copy of this order be sent to all the parties free of cost.   File be consigned to Record Room.              

                 Announced this ___________day of __________2017.

      (K.S.MOHI)                     (VIKRAM KR DABAS)        (MANJU BALA SHARMA)

     PRESIDENT                   MEMBER                   MEMBER