Before the District Consumer Dispute Redressal Commission [Central], 5th Floor ISBT Building, Kashmere Gate, Delhi
Complaint Case No.198 /10.08.2017
Sh. Suman Kumar Tyagi, s/o Sh. Munshi Lal Tyagi,
R/o 9/178A, Sector-3, Rajender Nagar, Sahibabad,
Ghaziabad, UP. …Complainant
Versus
OP1 National Insurance Co. Ltd.
(through General Manager),General Claims Hub,
2E/25, 3rd Floor Above HDFC Bank,
Jhandewalan Extension, New Delhi-110055.
OP2 National Insurance Co. Ltd.
(through its Regional Manager),C-6, Krishna Plaza,
Near Sai Baba Mandir Nayay Khand Indrapuram,
Ghaziabad, UP ...Opposite Party
Date of filing 10.08.2017
Date of Order: 01.09.2023
Coram: Shri Inder Jeet Singh, President
Shri Vyas Muni Rai, Member
ORDER
Inder Jeet Singh , President
1.1. (Introduction to case of parties) –The complaint has been filed with grievances of deficiency of services on the part of OPs that complainant’s vehicle bearing registration no. HR51AL1025 having chassis no. 016215, engine no. 049052, Volkswagen Polo Car-colour black (hereinafter referred as 'vehicle' briefly), which met with episode of snatching from his son that too after his kidnapping. later it also revealed to complainant and after that episode, the vehicle had also met with an accident. Moreover, after getting released the vehicle by court order, it was brought to advised assessor by paying towing/crane charges and charges for services for estimates of damages.
But complainant was declined reimbursement of his valid claim by OPs. That is why, this complaint for reimbursement of Rs. 3,25,000/- of sum insured, Rs. 3,500/- crane charges, Rs. 11,450/- as assessment charges besides rent of Rs. 8,500/- for keeping the vehicle in the premises, besides compensation of Rs. 5,00,000/- for mental agony pain and other sufferings & litigation of expenses of Rs. 50,000/- & other appropriate relief.
1.2. The complaint has been opposed that neither there was any deficiency of services on the part of OP, the complaint was filed by concealing the actual facts and the complainant himself is not clear as to what happened with the vehicle or how it met with an accident, since a plea is taken that complainant’s son was kidnapped by some miscreants and vehicle was snatched by using force to him. But an FIR of accident case was registered vide crime no. 128/15 P.S. Rohta, District Meerut against the son of complainant. There was no case registered by the police regarding kidnapping and snatching of the vehicle. There are violation of terms & conditions of the policy. There is no cause of action. The complainant failed to disclose the name of driver or to file DL of person driving the vehicle at the time of accident. Therefore, the complainant himself is responsible for delay in the settlement of claim.
2.1. (Case of complainant) – The complainant is registered owner of the vehicle, which was got insured from OPs vide policy no. 3616008114000008798 w.e.f. 16.03.2015 to 15.03.2016. However, on 02.08.2015 at about 2:30 pm the complainant’s vehicle was snatched from his son Sh. Palash Tyagi, which was reported to IG (Police) Meerut, SSP Meerut and SHO P.S. Kankarkhera, complainant’s son was also injured in the snatching incident. The complainant also informed OPs of such incident on 04.08.2015, apart from information to OP2 on 24.08.2015. It was 28.08.2015, when complainant received information from P.S. Modi Nagar, PP Niwari Road, U.P. that the vehicle had met with an accident and it is lying at P.S. Rohta, Meerut, copy of FIR was procured and it was furnished to OP2.
2.2. OPs deputed Mr. Rajinder Kumar Jain as Surveyor, the complainant accompanied the surveyor to P.S. Rohta where surveyor had taken photographs of accidental vehicle. Since the vehicle was seized by the Police, complainant filed an application for release of the vehicle, release order was passed on 18.01.2016, which was also provided to OP2, however, the Police had alleged that the vehicle was being driven by son of the complainant.
Under the instructions of OP2, the complainant brought the vehicle at M/s Atrica Automobile Ltd., D197, Sector-63, Noida where complainant paid Rs. 3,500/- to the recovery vehicle as towing charges and also Rs. 11,450/- to the said Atrica Automobile Ltd for services for assessing the losses, the tentative estimates provided were also delivered to OP2 by the complainant with letter dated 15.02.2016. The OP2 was not ready to keep the damaged vehicle with it, therefore, complainant had to arrange space/place for keeping the vehicle on a monthly rent of Rs. 500/- till final disposal by the OPs. The complainant spent Rs. 8,500/- till date on that account, which was also informed to OP2 for necessary process of the total loss. Moreover, the complainant received letter dated 25.05.2016 from OP1, consequently, the OP1 talked to officials of OP1 and also dispatched requisite documents along-with reply of the letter. The complainant also received another letter dated 20.07.2016 from OP1 for final settlement of claim, the complainant pursued the same personally and handed over the documents to the concerned officials.
2.3. However, there is dilly-dallying with on the part of OPs to deal the claim and they have not settled the claim. The e-mail sent was neither acknowledged nor replied by them. The complainant had also waited for long time to see the out-come but finding no response, the complainant sent legal notice dated 01.05.2017, it was also not responded by the OPs. On 04.07.2017 complainant rang OP1 and complainant requested them that all required documents have been furnished to OP1 but the claim was declined by OP by stating that there is no FIR on complaint of complainant. The decline of claim in this manner despite various requests communications and visit, amounts to deficiency of services, for which OPs are liable to make good all the efforts apart from compensation for mental agony, pain, etc. & costs. In fact, the OPs have cheated and played fraud upon the complainant, which has caused gross harassment and financial losses.
On 04.07.2017, the complainant was called in the office of OP1, where he was shown copy of charge-sheet against the vehicle in accident case but complainant clarified that Police had not taken action on his complaint. Complainant furnished all required documents and reports available. On 20.07.2017 the complainant received a letter of 07.06.2017 and complainant tried to convince OPs but OP1 was adamant and arrogant by insisting copy of final report u/s 173 Cr.P.C., whereas it was not available with the complainant till date nor he has received notice from the court. The complainant has been running from pillar to post but OPs paid no heed nor replied the legal notice. That is why the complaint for relief claimed.
3.1 (Case of OPs)- The OPs request for dismissal of the complaint. The complaint has been opposed that neither there was any deficiency of services on the part of OPs, the complaint was filed by concealing the actual facts and the complainant himself is not clear as to what happened with the vehicle or how it met with an accident, since the plea taken by the complainant is that his son Sh. Palash Tyagi was kidnapped by some miscreants and vehicle was snatched by using force to his son. But an FIR was registered vide crime no. 128/15 P.S. Rohta, District Meerut, wherein charge-sheet u/s 279/337/338/304A/34 IPC was against the son of complainant, however, till date the complainant had not approached any court for quashing of FIR. Moreover, no case was registered by the police regarding kidnapping and snatching the vehicle by force from the son of complainant. There was a major accident took place, when the insured vehicle hit a scooter and a tempo, the complainant is misrepresenting and concealing the actual facts from this Forum, which is violation of terms & conditions of the policy. There is no cause of action. The complainant failed to disclose the name of driver or to file his DL, therefore, the complainant himself is responsible for delay in the settlement of claim.
3.2. The OP had sought clarification from the complainant by writing letter dated 07.06.2017, its operating part reads as follows:-
“In re the instant claim, kindly refer to the information to the DGP, UP Police dated 03.09.2015, as well as letter dated 24.08.2015 to RM NICL DO Indirapuram, you had mentioned that the vehicle was allegedly snatched from your son, Sh. Palash Tyagi, and was driven away by some acquaintance of your son, who were accompanied your son on 02.08.2015 for some work. Whereas, the Police Station Rohta, District Meerut, had lodged an FIR bearing No. 117/2015 U/s 279/337/338/304A of IPC, against the cause of action of accident dated 02.08.2015. Investigating agency after investigation filed the charge sheet, against Sh. Palash Tyagi. As the investigation agency had filled the charge-sheet against your son, whereas you had intimated that the vehicle was driven by some other person than Sh. Palash Tyagi, at the material time of accident. Both of the same are contradictory in nature, and might prove fatal for your instant claim. Kindly submit the Final Report u/s 173 of Code of Criminal Procedure 1973.”
3.3. As per version of insured, it was friend of son of complainant, who are driving the vehicle at the time of accident but the insured failed to disclose name of driver or to file the driving licence. The vehicle was driving by a person having no driving licence to drive vehicle at the time of accident, therefore, there is no liability of insurance company.
3.4. However, OPs appointed the surveyor after receipt of information, he had submitted the report, that subject to terms & conditions of policy the total loss assessed was of Rs. 3,24,000/- and on salvage basis Rs. 2,64,000/-.
3.5. The OPs also deny other allegations in the complaint that the complainant himself is responsible for delay in the settlement of claim and there is no cause of action to file the complaint nor complainant is entitled for any relief claimed. OPs also deny about legal notice for want of knowledge .
4. (Replication of complainant) –The complainant filed detailed rejoinder to the reply of OPs. The complainant denies allegations mentioned in the reply by OPs. The complainant reaffirms the complaint as correct.
It is also supplemented that complainant’s son was thrown out of moving vehicle, he sustained multiple injuries and he was given first-aid at Dhanwatri Jeevan Raksha Limited, Meerut, UP, from where he was taken to Ghaziabad.
When the application for release of vehicle was filed, the I.O. of the case reported that during preliminary enquiry name complainant's son was surfacing. Neither the complainant nor his son is eye-witness to the accident. OPs’ letter dated 07.06.2017 is a fabricated document and as an afterthought, since complainant had visited the office of OPs on 04.07.2017. The OP had appointed the surveyor, who had furnished the report but the contents of report are not known to the complainant. Moreover, OPs had also settled claim petition no. MAC-156/16, MAC-157/16 and MAC-408/16. But for want of settlement of claim of the complainant, it amounts to deficiency of services.
5.1. (Evidence)- In order to establish the complaint, the complainant Sh. Suman Kumar Tyagi led his evidence by filing detailed affidavit with the support of documents filed with the complaint.
5.2. On the other side, the OP also led evidence by filing affidavit of Sh. Raghunath Pawar, AO (Legal), which is on the lines of reply, coupled with motor interim survey report dated 14.05.2016.
6. (Final hearing)-The complainant as well as the OP filed their respective written arguments followed by oral submissions by complainant Sh. S. K. Tyagi ( himself practicing Advocate) and Sh. S. C. Sharma, Advocate for OPs. The contentions of the both the sides are not being reproduced as the same will be dealt appropriately.
7.1 (Findings) - The contentions of both the sides are considered, keeping in view of the material on record of evidence of the parties, which is narrative as well as documentary record. On perusal of the case of the parties, so far documentary records are concerned, the same are not disputed. The surveyor report dated 14.05.2016 has also been proved by the OPs, the surveyor report also carries the component of investigating aspects with regard to the accident of vehicle taken place, for which the formal FIR was registered and charge-sheet u/s 173 CrPC was filed against son of complainant.
The OPs have raised certain issues but complainant has reservations, therefore, the same are being taken one by one.
7.2.1. The complainant has proved complaint dated 02.08.2015 written to Superintendent of Police, its copy to IG Meerut and SHO about the incident of kidnapping & snatching of vehicle from son of complainant. However, as appearing there is no formal FIR registered in respect of this incident or local police had not acted on this complaint and OPs are taking this an exception to it that for want of registration of FIR of kidnapping and snatching vis-à-vis there was another FIR of accident, the theory of complainant could not be explained.
Whereas, it would not help the OPs, since the complainant had lodged the Police report, he has also explained that he met with the senior police officers but the complainant was not informed of action or the further progress of the case by the Police. There is no contrary evidence by OPs that the complainant's report to Police was out of context. Therefore, this contention of OPs is stand disposed off.
7.2.2. There was registration of crime no. 128/15 P.S. Rohta, District Meerut, wherein charge-sheet u/s 279/337/338/304A/34 IPC was filed against the son of complainant and as per the case of complainant the vehicle was got released since episode of accident came to their notice after kidnapping and snatching of the vehicle. On the other side, OPs plea is if complainant’s son was not driving the vehicle, then the FIR ought to have been got quashed by the complainant, it was not done by the complainant as well as to furnish driving licence of person, who was driving the vehicle.
However, the contentions of OPs are misplaced, since quashing of FIR is subject matter of section 482 Cr.P.C, the power is with the Hon’ble High Court of the State and Hon’ble High Court decides whether or not in a particular case an FIR is to be quashed. Will the complainant Sh. Suman Kumar Tyagi would have locus standi or right to go for quashing of FIR for which his son Shri Palash Tyagi was charge-sheeted? The OPs are asking and blaming the complainant for want of getting quashing order in respect of FIR of accident case. The OPs are forming its own opinion that for the purposes of settlement of the case furnishing the order of quashing of FIR is a condition precedent, that opinion/ conclusion does not sound reasons, it is contrary to law. Accordingly, it does not favour the plea of OPs.
7.2.3. On the one side, the complainant is seeking settlement of claim on the basis of all available record furnished to the OPs but on the other side OPs are asking the complainant that since FIR was registered and charge-sheet was filed against son of the complainant, the plea taken of kidnapping and snatching of vehicle is contradictory and it is fatal to the claim, the complainant is required to furnish final report u/s 173 Cr.P.C. as asked in letter dated 07.06.2017.
It is apparent that there is juxtaposition plea of the parties. Its stand proved that charge-sheet in respect of accident case is pending vide crime no. 128/15 against the son of complainant. The proceedings in the court of Judicial Magistrate in respect of cognizable offences commences after filing of charge-sheet u/s 173 Cr.P.C. The record of charge-sheet was made available to the OPs.
However, the OPs are asking complainant for final report u/s 173 CrPC in a different context but final report happens when no offence is made out or no evidence is discovered after investigation by the Police. Whereas charge-sheet is pending trial in respect of crime no. 128/15 P.S. Rohta, District Meerut u/s 279/337/338/304A/34 IPC vis-à-vis on the other side there was no FIR registered in respect of kidnapping and snatching, how there can be final report u/s 173 Cr.P.C. ? [being sought for by the OPs]. How complainant can produce such final report, when it does not exist or provided, since complainant never received any notice from Court in respect of final report?.
7.2.4. The complainant and his son had provided information and records to the OPs as well as to the surveyor appointed by it. The surveyor has furnished his detailed report dated 14.05.2016 to the OPs, which has also been proved by the OPs. The OPs' letter dated 07.06.2017 is subsequent to surveyor’s report dated 14.05.2016. The OPs had asked the complainant to provide driving licence of person, who was driving the subject vehicle if it was not being driving by the son of complainant at the time of accident. Whereas, the filing of charge-sheet against the son of complainant is not disputed and the surveyor has given certain remarks on page-6 of his report that original RC of vehicle & driving licence of Palash Tyagi were verified. The other remarks also pertains to registration of FIR No. 117/2015 dated 02.08.2015 in P.S. Rohta, District Meerut u/s 279/337/338/304A IPC as well as getting released the said vehicle on superdari, apart from collection of other papers/bills pertaining to genuine parts in respect of subject vehicle. To say, the matter was already investigated by the Police as well as by the surveyor and accordingly data, papers inclusive of valid driving licence of son of complainant and other information inclusive of estimates for repairs and spare parts, etc. were collected by the surveyor.
To say, at the cost of repetition, that the concept of final report being introduced by OPs or seeking driving licence of some other persons, despite having detailed surveyor report and record of charge-sheet, does not sustained. The OPs are also in dilemma to ascertain driving licence of some other person, by ignoring that charge-sheet in accident case was by filed by police against Palash Tyagi after investigation. Moreover, OPs have not disputed settlement of others’ claim petition no. MAC-156/16, MAC-157/16 and MAC-408/16, pertaining to same accident case. Accordingly, this contention is also disposed off.
7.3.1 The complainant has proved his complaint that the vehicle was damaged in accident and it was insured against IDV of Rs. 3,25,000/-, the vehicle was damaged substantially for which estimates were also obtained. The surveyor’s report dated 14.05.2016 mentions all these aspects inclusive of the estimates as well as amount assessed for, which concludes general estimates of Rs.11,53,832/- (inclusive of labour charges of Rs. 66,120/-), the amount assessed for claim was Rs. 3,25,000/- (gross-total loss basis) and after assessment of expected salvage basis (of Rs.60,000/-), the net amount payable was assessed for Rs. 2,64,000/- subject to disclaimer of terms and condition of policy. For the calculation of salvage, the surveyor has also ascertained it for various junk dealer and then assessed it in his report.
7.3.2. There is no evidence either side or any fact to suggest that the report of surveyor is contrary to the norms being followed, therefore, the circumstances proved are that the complainant obtained insurance policy for his vehicle for IDV was Rs.3,25,000/-. He was denied claim under certain if and buts, but the same stand dispelled in view of discussion, analysis and conclusion drawn above. The OPs were under certain perceptions, assumption or believes, however, the same stand crystal clear. The circumstances are leaning towards the complainant and he is entitled for losses suffered, which were denied by OPs under those perception, it amounted to deficiency of services. However, the complainant cannot claim amount more than IDV, being maximum limit of risk cover. The loss assessed by surveyor was Rs. 2,64,000/- and accordingly the complainant is held entitled for claim of Rs. 2,64,000/-. The crane charges, other services and rental cannot be allowed beyond maximum limit of risk covered, these charges cannot be allowed separately to complainant. Thus, the amount of Rs.2,64,000/- includes all substantial claims of insured vehicle.
7.3.2. The complainant also claims compensation of Rs.5,00,000/- and costs of Rs.50,000/-. By looking into the peculiar circumstances of the case and issues involved, it would meet both ends of justice by allowing compensation of Rs.10,000/- & costs of Rs.5,000/- in favour of complainant and against the OPs.
8.1 Accordingly, the complaint is allowed in favour of complainant and against the OPs to pay/reimburse insured amount of Rs.2,64,000/-, compensation of Rs.10,000/- & costs of Rs.5,000/- to complainant.
OPs are also directed to pay the amount within 30 days from the date of receipt of copy of this order. In case amount is not paid within 30 days, then amount of Rs.2,64,000/- will be payable with simple interest @ 6%pa from the date of complaint till realization of amount.
8.2. This Order will remain inconclusive without mentioning that the proceeding of the complaint were under the Consumer Protection Act, 1986, which are summary in nature, therefore, any expression given in this Order would not be construed any opinion or findings on the other cases (criminal and/or civil case or any fact therein) pending or otherwise, pertaining to episodes discussed.
9. Announced on this Ist September 2023 [ भाद्र 10, साका 1945].
10. Copy of this Order be sent/provided forthwith to the parties free of cost as per rules for compliances.
[Vyas Muni Rai] [Inder Jeet Singh]
Member President
