DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION (CENTRAL)ISBT KASHMERE GATE DELHI

COMPLAINT CASE NO. 133/2017

No. DCDRC/ Central/

vs.

Coram:       Ms. Rekha Rani, President

                    Shri Vyas Muni Rai, Member

                   Ms. Shahina, Member (Female)

ORDER

Shri Vyas Muni Rai, Member

1. Mrs. B.S. Molly (in short the complainant) filed the instant complaint under section 12 of the Consumer Protection Act, 1986 against National Insurance Company Limited (in short OP) pleading therein that she was owning vehicle/ car having vehicle No. DL 3C AS 2216 and the same got insured with OP vide Insurance Policy No. 362000/31/14/61-4334. She has further stated that the said vehicle of the complainant met with fire due to short circuit when it was standing at Sallan Road, Old Post Office, Tanda on 11.05.2015 at around 4 pm. It has been further stated that the said insurance policy taken by the complainant was valid during the relevant period i.e. between 23.10.2014 to 22.10.2015.
2. The complainant informed to the concerned Police Station about the said incident and also lodged a complaint. The said incident was also informed to the respondent’s office and complainant also lodged its motor vehicle claim no. 362000/31/15/619-25 with the office of the OP/ respondent along with all the relevant documents. The said claim was filed for an amount of Rs. 2,53,000/- (Two Lakh Fifty Three Thousand Rupees only) and was pending till the date of filing this complaint. She has further stated that despite of numerous correspondence entered by the complainant, her claim has not been settled by the OP. Perusal of the complaint reveals that the claim of the complainant was neither honoured nor rejected. The complainant has filed the present complaint with the following prayer:-

1. Admit the complaint and issue notice to the respondent;
2. Award the insurance claim of the complainant with 12% p.a. interest on the claim amount from the date of filing insurance claim and till the filing of this complaint and also future pendent-lite interest;
3. Award an exemplary compensation of Rs. 2,00,000/- for mental agony, torture, harassment and fatigue;
4. Award the cost of this complaint in favour of the complainant and against the respondents;
5. Any other or further orders as may be deemed fit and proper in the interest of justice.
   3. Record further reflects that series of correspondence were exchanged between the parties and instead of processing the claim and settling finally, OP had raised different queries at different points of time and did not proceed with the claim of complainant on the following grounds:-

1. Non-submission of requisite documents.

2. Violation of condition no. 8 of the Insurance Policy.

3. Driver of the burned vehicle did not possess the valid driving license.

          All the above three points would be discussed and deliberated in ongoing Paras.

4. In the written statement filed by the OP, it has been stated that OP very promptly and diligently appointed M.L. Mehta and Company a Government approved and licenced Surveyor and Loss Assessor to assess the loss and the said Surveyor and Loss Assessor assessed the net loss for a sum of Rs. 2,53,000/- (Two Lakh Fifty Three Thousand Rupees Only) and submitted its report dated 30.05.2015 with the OP and recommended to consider the loss assessed by them subject to terms and conditions of the insurance policy.
5. In its written statement, OP has further stated that it appointed a Government approved and licenced investigator, namely, S.A. Investigating and Consulting Agency to investigate into the matter. The said investigator, namely, S.A. Investigating and Consulting Agency thoroughly investigated in the matter and submitted its report dated 19.12.2015 and found that

“in the light of the findings of investigation which come to light we conclude that the insured vehicle number DL-3C-AS-2216 had caught accidental fire on the reported date of loss and at the said place of loss. The above loss has taken place within the currency of the insurance policy. The insured has not come out with clean hands because the burn damage to the vehicle is the only damage caused in this loss and the damage being shown due to collision with the nearby wall are the damage caused to the vehicle during the wear and tear under use of the vehicle before the instant fire to the vehicle. In the light of the analysis given above the insurers may proceed for the settlement of the claim file.”

6. OP has further submitted in its written statement that as per the Claim Form the complainant stated that Sh. Sukhjit Singh is her friend whereas in the statement before the police Sh. Sukhjit Singh said that he was the driver of the complainant which itself is contradictory. OP in its written statement has quoted Condition No. 8 of the Insurance Policy which is reproduced as under;-

“The due observance and fulfillment of the terms conditions and endorsements of this policy in so far as they relate to anything to be done or complied with by the insured and the truth of the statements and answers in the said proposal shall be conditions precedent to any liability of the Company to make any payment under this policy”.

          And OP has further stated that complainant, therefore, has violated the Condition No. 8 of the Insurance Policy and has not disclosed the true facts to the OP and has furnished wrong and false information, though, there appears to be not correct. In its written statement, OP has also relied on some judgements in support of its case. OP has also relied upon one of the judgments of the Hon. National Commission in New India Insurance Company Limited vs. Shri Pradeep being Revision Petition No. 2494 of 2008 decided on 20.04.2010 where it has been held that claim is not maintainable as the non-submissions of documents is fatal. But complainant has stated to have submitted all relevant documents which is clear from various mails/ correspondence entered by complainant with OP.

7.   The complainant in her rejoinder has, inter alia, stated that Mr. Sukhjit Singh is a friend and not a paid driver and the same was also clarified during the investigation of the investigator( S.A. Investigating and Consulting Agency) appointed by the respondent. She has further stated that the judgements quoted by the OP is totally unrelated to the case. She has further stated in her rejoinder that the very issue of holding a driving licence should not arise as the vehicle under reference got damaged due to fire while it was parked and was not being driven at the time of accident as also mentioned in the FIR. Rest of the contentions of the written statement of OP have been denied by the complainant.

8. We have carefully gone through the documents on record and written arguments, evidence by way of affidavits of both the parties. As per the available record, the complainant had also filed the complaint before Insurance Ombudsman and Insurance Ombudsman issued notice to the complainant but the complainant in the both personal hearings i.e. 19.10.2016 and 08.12.2016 did not appear. Accordingly, the case was dismissed in default on 13.12.2016 by Insurance Ombudsman without going into the merits. The reason for her non-appearance before the Insurance Ombudsman, the complainant has stated that she being bank officer was transferred from Delhi to Kerala and because of demonetization pressure, it was not possible for the complainant to appear personally before the ombudsman. However, as per hearing notice, the complainant had filed her written submission which was not considered by the Insurance Ombudsman while dismissing the complaint in default.
9. As per the submission of the complainant, she also filed RTI, its appeal and complaint before the Insurance Regulatory and Development Authority of India (in short IRDA) but she heard nothing from them. It is also the case of the complainant that in different mails/ correspondence different queries were raised by OP in piecemeal manner.
10. Bare reading of the documents available on record it comes to our notice that the main contention of the OP/ Respondent in non-processing and settling the claim finally has been non-submission of the documents demanded by the OP as alleged. However, in this regard We would like to focus on certain documents requisitioned by the OP/ Respondent and they are:-

1. To clarify whether driver was a paid driver or a friend;
2. The purpose of taking the vehicle to Hoshiyarpur, whereas the vehicle is registered with the Delhi Authority;
3. The details of the persons travelled in the vehicle and relation with  complainant;
4. Copy of the log book of the vehicle;
5. Record of the money paid for the refueling of the vehicle;
6. Record of the money paid for the running cost of maintenance of the vehicle.

If we go carefully with the nomenclature of above documents requisitioned by the OP/ Respondents, it appears ridiculous and farcical by a common prudence and it can be generalized that how the aforesaid documents demanded by the OP/ Respondent are material and relevant in settling the insurance claim if the vehicle is used for the personal purpose. It is not expected from a personal vehicle user/ owner to maintain and keep track of these documents in routine as demanded by the OP. Bare reading of the aforesaid documents demanded by the OP/ Respondent reveal that insurer to its wisdom did not demand from the insured her horoscope to proceed further in the matter.

11. M.L. Mehta and Company Automobile and Mechanical Engineers, surveyor and Loss Assessor as stated in foregoing para was appointed by OP/Respondent to assess the claim of the complainant and the report of this said Surveyor and Loss Assessor dated 30.05.2015 is available on record wherein Rs. 2,53,000/- (Two Lakh Fifty Three Thousand Rupees Only) was net of salvage/ finding of the surveyor and Loss Assessor and the said Surveyor and Loss Assessor recommended the above loss to the underwritten for their consideration subject to the terms and conditions of the policy. If that was so what was the need to appoint further another investigator to S.A. Investigating and Consulting Agency, Investigator and Consultants and in its report dated 19.12.2015. M/s S.A. Investigating and Consulting Agency, investigator and consultant concluded and opined, inter alia, that the damage caused to the vehicle was due to coalition with the nearby wall. The said investigator and consultant has further stated in its report that in light of the analysis given the insurer may proceed for settlement of the claim filed. The said report further stated that the same is submitted without prejudice subject to the terms, conditions, limitations and exceptions of the insurance policy. From the above, it transpires that OP/ Respondent appointed the said another investigator and is relying upon the same as it suits to the OP while report of M.L. Mehta and Company dated 30.05.2015 (supra) has not been given credence and OP overlooked the same
12. Subsequent appointment of another investigator by OP to assess the damage in itself creates a cloud of doubt to give a motivated twist and turn in getting the claim of the complainant settled.
13. We have also seen the contents of the written argument with citations filed on record by the OP/ Respondent but the facts of the same does not match completely with the facts of the case in hand.
14. So far the objection raised by the OP to the effect that driver of the vehicle was not having a valid and effective driving license, we would like to refer judgement of Hon. Supreme Court in case titled Jitendra Kumar vs. Oriental Insurance Co. Ltd. & Anr. in Appeal (Civil) 4647 of 2003 and the brief facts of the case as decided by the Hon. Supreme Court:-

“…….Brief facts giving rise to this appeal are as follows: The appellant was the owner of the Maruti Van bearing Registration No. BR-2/5667 which was insured with the respondent-Insurance Company. It is the case of the appellant that on 25.04.1996 at about 9:30 p.m. while returning from Gaya to Jehanabad the vehicle in question caught fire due to mechanical reasons and due to the said fire the said vehicle was burnt beyond repair. An intimation of this accidental fire was made to the respondent-Insurance Company on 14.05.1996. With the said intimation, the appellant also lodged a claim with the respondent for payment of damages. The Insurance Company as per its letter dated 10^th of December, 1996 repudiated the said claim of the appellant solely on the ground that the driver did not have a valid licence at the time of the incident in question. The District Forum after hearing the parties came to the conclusion that the accidental fire due to which the appellant’s vehicle got damaged was not caused due to any act of the appellant’s driver but was due to mechanical fault, therefore, it held the contention of the Insurance Company that the appellant’s driver did not hold a valid licence could not be a ground to repudiate the claim, accordingly, ordered the payment of damage, compensation and cost as stated herein above.”

To add further, Hon. Supreme Court in the aforesaid case have, inter alia, opined as under:-

“….We have heard learned counsel for the respondents who has supported the orders of the State Commission as well as that of the National Commission. So far as the facts of this case are concerned, there is hardly any dispute, therefore, we can safely proceed on the basis that the vehicle in question was damaged due to a mechanical fault and no fault of the driver. For the purpose of argument, we may also proceed on the basis that the driver of the car did not have a valid driving licence. Question then is: can the Insurance Company repudiate a claim made by the owner of the vehicle which is duly insured with the Company, solely on the ground the driver of the vehicle who had nothing to do with the accident did not hold a valid licence? Answer to this question, in our opinion, should be in the negative. Section 149 of the Motor Vehicles Act, 1988 on which reliance was placed by the State Commission, in our opinion, does not come to the aid of the Insurance Company in repudiating a claim where driver of the vehicle had not contributed in any manner to the accident. Section 149(2)(a)(ii) of the Motor Vehicles Act empowers the Insurance Company to repudiate a claim wherein the vehicle in question is damaged due to an accident to which driver of the vehicle who does not hold a valid driving licence is responsible in any manner. It does not empower the Insurance Company to repudiate a claim for damages which has occurred due to acts to which the driver has not, in any manner, contributed i.e. damages incurred due to reasons other than the act of the driver.

We notice that in the impugned order National Commission has placed reliance on the judgement of this Court in the case of New India Assurance Company(supra) which, in our opinion, has no bearing on this aspect of the case in hand. This court in the said case held that the fake driving licence when renewed genuinely, does not acquire the validity of a genuine licence. There can be no dispute on this proposition of law. But then the judgment of this Court in the case of New India Assurance Company(supra) does not go to the extent of laying down a law which empowers the Insurance Company to repudiate any and every claim of the insured (appellant) merely because he had engaged a driver who did not have a valid licence. In the instant case, it is the case of the parties that fire in question which caused damage to the vehicle occurred due to mechanical failure and not due to any fault or act, or omission of the driver. Therefore, in our considered opinion Insurance Company could not have repudiated the claim of the appellant.

For the reasons stated above, this appeal succeeds, the impugned judgments of the National Commission and the State Commission are set aside and that of the District Forum is restored.”

15. Further the facts of the instant case and of the Jitender Kumar vs. Oriental Insurance Co. Ltd. as decided by the Hon. Supreme Court (supra) are identical and on the similar footing. Not only this, even in the case of Jitender Kumar, the vehicle caught fire due to mechanical reasons while the driver was driving the vehicle. But in the instant case, vehicle which caught fire was parked and was in stationary condition which tilts in favour of the complainant.
16. From the aforesaid discussions and documents available on record, we hold that OP/ Respondent has been deficient in providing the service to the complainant as mandated by the Act. It seems that OP willingly, brazingly and reluctantly has not processed and settled the claim of the complainant while taking shelter and shadow of some documents demanded by it which, in our opinion were not material documents in processing and settling the case of the complainant.
17. In view of the above, OP is directed to pay to the complainant the insurance claim i.e. Rs. 2,53,000/- ( Two Lakh Fifty Three Thousands Only) with 6% simple interest per annum on the claim from the date of filing this complaint till its realization. OP is further directed to pay the complainant Rs. 5,000/-(Five Thousand Rupees Only) as compensatory damage.
18. Copy of this order be sent to the parties as per rules. File be consigned to record room.

Announced on this 17^th May of 2022.