Before the District Consumer Dispute Redressal Commission [Central], 5th Floor ISBT Building, Kashmere Gate, Delhi
Complaint Case No.-246/2017
Sh. Naurang s/o Sh. Dharm Singh
r/o C-14, Block-C, Yadav Park,
Rohtak Road, Nangloi, Delhi-110041 ...Complainant
Versus
National Insurance Co. Ltd.,
General Claim Hub, 2E/25, Jhandewalan Extn.
New Delhi-110055 ...Opposite Party
Date of filing: 17.10.2017
Order Reserved on: 04.01.2023
Date of Order: 06.03.2023
Coram: Shri Inder Jeet Singh, President
Shri Vyas Muni Rai, Member
Ms. Shahina, Member -Female
Vyas Muni Rai
ORDER
1. The instant complaint has been filed by the complainant u/s 12 of the Consumer Protection Act, 1986 impleading National Insurance Company Ltd. (in short OP). It is the case of the complainant that he is the registered owner of Eicher truck bearing registration no. DL 1LR 4965 and the said vehicle was insured with the OP vide policy/ certificate no. 360501/31/14/6300002099 for the period of 19.03.2015 to 18.03.2016 having IDV value of Rs. 7,50,000/- [policy document has been placed on the record].
1.2. On 09.06.2015, the said vehicle was parked in front of the residence of the complainant in the night at about 09:00 pm but in the morning the said vehicle was not there and the same was stolen. The complainant lodged an FIR bearing no. 4091 dated 10.06.2015 u/s 379 IPC [photocopy of the FIR has been filed on record].
1.3. It is further the case of the complainant that after the theft, he immediately intimated the insurance company and its agent about the theft of the vehicle under reference telephonically. Later on, a written complaint was also given by the complainant to the insurance company/OP.
1.4. The OP appointed Shri L.D. Arora as investigator and investigator vide his letter dated 17.06.2015 addressed to the complainant requested to submit the documents related to the vehicle as mentioned in the said letter. It is also the case of the complainant that he replied the letter dated 17.06.2015 and also submitted essential documents to the agent of the OP but inadvertently the complainant had not taken any receipt thereof either from the agent or from the investigator of the OP.
1.5. The complainant has further alleged in his pleadings that after many requests, reminders and visits of the complainant and its representation with the OP, OP has not settled the claim of the complainant.
1.6. Complainant has further pleaded that vide letter dated 23.11.2016 of OP, the claim of the complainant declined without reasonable ground. The repudiation letter dated 23.11.2016 has mentioned mainly two grounds i.e. “(1). in spite of letters/ reminders sent to you, you have not complied with the required papers/ documents. (2). we are closing your claim file as you have not sent the clarification of pre-repudiation letter dated 29.09.2016 sent to you and if we receive no explanation, we will presume that you have no comment to offer and your claim will be closed due to misrepresentation” and subsequently claim of the complainant was repudiated on 23.11.2016 [copy of the repudiation letter dated 23.11.2016 has been placed on record as Annexure-R/2].
1.7. It is also the case of the complainant that, thereafter, he also visited office of the OP with the agent of the OP and gave written request for the settlement of his claim on 30.01.2017 but no heed was paid on the part of the OP despite requests and reminders by the complainant. The complainant has alleged deficiency in service and unfair trade practices on the part of the OP.
1.8. Complainant has further pleaded that due to repudiation of the genuine claim, he has suffered loss on income and became totally unemployed after the incident of theft as the vehicle was purchased by him for the self-employment and to earn his livelihood.
1.9. In the facts and circumstances as discussed above, the complainant has prayed for issuing direction to the OP to pay him a sum of Rs. 7,50,000/- against the IDV value of said vehicle for which the premium was paid to the OP, Rs. 5,00,000/- towards the loss of income as the complainant become totally unemployed after the theft of vehicle, Rs. 1,00,000/-for mental agony and harassment suffered and entire amount has been prayed to be paid with interest of at the rate of 18% pa from the date of theft till the date of payment. In addition, a sum of Rs. 1,50,000/- towards the cost of the present litigation and its proceedings has also been claimed.
2. OP has filed its written statement under the signature of Shri Raghunath Pawar, Administrative Officer (legal). In the preliminary objections of the written statement, OP has taken the stand that as per the terms and conditions of the contract of insurance entered between the complainant and the OP, the complainant was duty bound to provide all the requisite information to the OP and the surveyor appointed by the insurance company despite ample opportunities given to the complainant. OP has also pleaded in the written statement that complainant did not provide the bills of the new lock and used key to the investigator. Misrepresentation of facts regarding keys and bills, bills of keys of the alleged vehicle which was the reason for repudiation of the claim as have also been alleged OP has also referred its letter dated 29.09.2016 which is a pre-repudiation letter for submission of requisite document but it was not done so by the complainant. In the pre-repudiation letter dated 29.09.2016, inter alia, it has been mentioned to explain why your claim should not be repudiated for using fraudulent means by submitting the keys not related to the vehicle then the keys used immediately prior to the theft. If no response is received within 7 days it will be presumed that you have no comments to offer and your claim file will be closed [ pre-repudiation letter dated 29.09.2016 has been filed on record as Annexure R-1]. In the said pre-repudiation letter dated 29.09.2016 OP has mentioned that investigator requested the complainant to provide the bill of the changed lock but the same was not provided.
3. OP has also pleaded in its written reply that as per the information of the complainant lock of the vehicle was replaced as the old locks were damaged. It has also been alleged that as per the complainant the second key was misplaced at his residence and also he did not provide any bill with regard to the second lock which was changed by Chadda Auto Store. The violation of terms and conditions of the policy has been alleged. Reply dated 17.06.2015 by the complainant to the investigator has also been denied by the OP, therefore, OP is not liable for any damage or loss or any kind of claim and has further pleaded no deficiency of service or negligence on its part, rest of the contents of the complaint has been denied by the OP in a stereotype manner. OP has also pleaded in its written statement about misrepresentation on the part of the complainant and no cause of action has arisen against OP for filing the present complaint.
4. Both the parties have filed their affidavits of evidence on record. Complainant in his affidavit, inter alia, has narrated that he immediately intimated the insurance company about the theft of the vehicle telephonically and later on in writing to the insurance policy, he has further stated in his affidavit that letter dated 17.06.2015 which was received from investigator/ OP was duly replied by him with the essential documents as demanded by the OP and its investigator. Required documents were handed over to them but inadvertently the complainant did not take any receipt thereof either from the agent or from the investigator of the OP. Complainant has also stated in his affidavit about the submission of written request dated 30.01.2017 for the settlement of his claim but of no consequence [copy of letter dated 30.01.2017 is on record]. Rest of the contents of the affidavit are replica of the contents of the complaint.
5. OP has also filed affidavit of evidence under the signature of Shri Raghunath Pawar, Administrative Officer (legal) which is more or less reproduction of reply of the OP.
6. Both the parties have submitted written arguments in support of their case, the complainant in his written argument has further reiterated that he duly replied the letter of the investigator appointed by the OP and submitted all the documents and key required by the OP/ investigator but he is illiterate person, the complainant had not taken receipt from the investigator because he has no knowledge of technicality of the insurance policy. Complainant has also addressed in the written argument that he got the lock of the vehicle changed but could not provide the keys and its bill at initial stage but later on he had submitted the bill of Chadda and Company but if the Chadda and Company decline to verify the same how the complainant is responsible [ though complainant in his written arguments mentions that bill of chadda and company is also in court file but the same was not filed on record]. However, regarding the dispute between the parties about the bill of Chhada and company which has not been filed on record, it would be material to refer letter dated 13.09.2016 from the investigator addressed to the Manager of OP under the subject/ title investigation into theft claim of vehicle no. DL1LR4965 make Eicher Truck, 2012 A/c of Sh. Naurang vide Policy No. 360501/31/14/6300002099, wherein, inter alia, it has been stated as under:-
“xxxx Insured has earlier stated to me that he has received only one key at the time of purchase of the new lock. But after enquiring the same, insured stated that his second key has been misplaced at his residence. Insured has not submitted me any documentary proof that he has purchased the new lock of the vehicle. So both the statement are differ & insured is misrepresenting the actual facts of the case. I have also enquired the same from Chaddha Auto Store from where he told me that he has purchased the new lock but they had also not provided me any proof that he has sold the above said lock. They had not shown me the purchase detail.”
From the above contents of the letter dated 13.09.2016, it is crystal clear that the new lock was purchased from Chaddha Auto Store but they did not provide to the investigator any proof that he had sold the above said lock. If that is so, it is not the complainant to suffer on this account if the Chaddha Auto Store did not supply any details of purchase of the new lock to the investigator of the OP.
7. In the written argument filed by OP it has been argued that complainant did not provide the bill of new locks and used keys with the investigator and also did not provide any bill of the changed lock by Chadda Auto Store which is manifestly a negligence on the part of the complainant, however, no new facts/ features have been argued by the OP which are in addition to written reply filed by it.
8: We have analyzed, considered the documents filed on record by both the parties, affidavits of evidence led by OP and complainant, written arguments, oral submissions and contents and rival contention of both the sides.
9. Perusal of the case file also depicts that complainant has filed several documents addressed to the OP giving narration of the incident followed by requests to settle the claim, which in common prudence, cannot be said that complainant has been indolent in perusing and settling his claim with the OP. There is also record of registration certificate of the vehicle under reference issued by Transport Department, Delhi [ Form 47 having validity of the N.P. authorization up to 19.02.2016 and validity of basic goods permit up to 20.02.2020] in addition to the copy of national permit for goods having registration dated 30.03.2012. We also find on record untraced report of the vehicle under reference issued from the court of Shri Deepak Dabas, ACMM-01 West District, Tis Hazari Court, Delhi in FIR no. 00491/2015 u/s 379 having the details of the vehicle stolen. Not only this, certificate of fitness issued by Transport Department, GNCT of Delhi has also been filed on record by the complainant. Letter dated 30.01.2017 on the part of the complainant addressed to the OP has also been filed on record, wherein, in addition to the narration of events of stolen vehicle under reference, inter alia, it is also mentioned that “after having discussion with you, I came to know that my claim is not being processed due to change of lock, thereafter I searched the bill in my house and was able to trace the bill and other documents and I am submitting the same before you to expedite my claim earliest as the bill was misplaced due to renovation of my house and my busy schedule due to my daughter during that time [letter dated 30.01.2017 of the complainant is in hindi version and relevant parts of the same has been translated].” However, copy of the bill of replaced key has not been submitted by the complainant on record but this can not be the ground to deny his claim by OP.
10. The complainant has also submitted in his written argument that insurer never supplied with terms and conditions of the policies to the complainant and same has also not been submitted on record by the OP. If that is so, it goes in support of the complainant, more so, the contents of the evidence by way of affidavit filed by the complainant to the effect that he had submitted to the OP and its investigator all the required documents demanded by the investigator but inadvertently he did not take the receipt of the same either from the agent or from the investigator of the OP which is the main allegation of the OP; cannot be sidelined and kept in straight jacket as this affidavit of complainant is on oath.
11. The allegation of OP that no cause of action arose against it has no legs to stand of its own, as it is admitted case of both sides that stolen vehicle was insured with the OP with specific IDV for which regular premium was paid by the complainant, FIR for the stolen vehicle was lodged, complainant registered his claim with OP and it got repudiated by OP and, more so, vehicle was stolen during the continuance of valid policy. Instant complaint was filed within limitation period (OP has not disputed the filing of complaint beyond statutory period), therefore, submission of OP about no cause of action arose against it is decided against it.
12. The complainant has also cited the judgment of State Consumer Disputes Redressal Commission, Chandigarh decided on 25.08.2021 in Appeal No. 138/2019 in case titled National Insurance Company Ltd. vs. Randeep Singh, in his support and the relevant findings of the Hon’ble State Commission, Chandigarh is as under:-
“(ii) Consumer Protection Act, 1986 – Sections 2(1)(g), 14(1)(d), 15 – Insurance – Theft of vehicle – Alleged failure to take reasonable care – Repudiation of claim – Deficiency in service - District Forum allowed complaint – Hence Appeal - Ground that complainant did not take due care of his vehicle and he left the keys as well as all documents, which were taken away by thief along with vehicle and that theft was not informed by complainant to Registering Authority, being also not very relevant – Same is rejected – On basis of documentary evidence, genuineness of claim lodged by complainant on account of theft of his insured vehicle, could not be questioned and opposite party could not escape its liability to pay claim under policy – Repudiation of claim amounted to deficiency in rendering service on part of the opposite parte – Directions issued to Opposite parte to pay amount of insured value (IDV) on of vehicle, along with litigation cost of Rs. 5,000 justified.
9. xxx If the insurance companies keep on doing like this, then it would be detrimental to the rights of the consumers and there would be no meaning of taking comprehensive insurance policies by paying hefty premiums by such consumers. It may also be stated here that there has been a landmark judgment of Hon’ble Apex Court in the matter of National Insurance Company Ltd. v Nitin Khandewal, IV (2008) CPJ I (SC), where the Hon’ble Apex Court held that in the matter of theft of vehicle, breach of conditions of policy was not germane and also held further the appellant Insurance Company is liable to indemnify the owner of the vehicle when the insured has obtained comprehensive policy to the loss caused to the insured. Similar question came up for consideration before the National Commission in the matter of United India Insurance Company Limited v. Gian Sing, (2006) 2 CPJ 83 (NC), wherein it has been held that in case violation of conditions of the policy so as to nature of use of the vehicle, the claim ought to be settled on a non-standard basis. Similar view was taken by Hon’ble National Commission in the case of Baljeet v. United India Insurance Company Limited., 2014 (1) CPR 61 (NC). Therefore, we do not find any substance, in this submission of the appellant.
10. The other grounds taken by the appellant that the complainant did not take due care of his vehicle and he left the keys as well as all the documents, which were taken way by the thief along with the vehicle and that the theft was not informed by the complainant to the Registering Authority, being also not very relevant in the light of aforesaid settled law, also stand rejected.
11. In our considered opinion, the District Commission, on the basis of documentary evidence on record, rightly observed that the genuineness of claim lodged by the complainant on account of theft of his insured vehicle, could not be questioned and the opposite party could not escape its liability to pay the claim under the policy. To our view also, the repudiation of the claim definitely amounted to deficiency in rendering service on the part of the opposite party. The District Commission, in our considered view, rightly directed the opposite party to pay the amount of the insured value (IDV) on of the vehicle, in question, along with litigation cost of Rs. 5,000. As such, no interference is called for in the impugned order being legal and valid in the eyes of law.”
13. Apart, plea of OP about violation of terms and conditions by the complainant as pleaded in its reply have no force as OP has neither categorically referred this specific para/ point of the terms and conditions of policy alleged to have been violated nor copy of the policy having terms and conditions has been filed on record by OP; and complainant has also contended in his written arguments that policy having terms and conditions was never supplied to him. As has been discussed in para no. 2, the pre-repudiation letter dated 29.09.2016 sent by OP is reproduced as under:-
“ On perusal of the claim file, we noted that you have submitted one key of the vehicle& when Investigator enquired from you then you have stated that you have changed the lock of the vehicle 3 months back. The investigator has requested you to provide the bill of the same but you have not given the bill. However, you have submitted ignition key which seems unused and not submitted the ignition key use prior to the theft which tent amount to misrepresentation and concealment of the circumstances of the incident of theft.
In view of the above kindly explain why your claim should not be repudiated for using fraudulent means by submitting the keys not related to the vehicle other than the keys used immediately prior to the theft.
We would therefore, like to have you comments within seven days from the receipt of this letter to enable us to take further necessary action in respect of your claim, failing the same we will presume that you have no comments to offer and your claim file will be closed.”
However, aforesaid allegation has already been discussed in letter of investigator dated 13.09.2016 sent to OP in para no. 6 above.
14. Based on submissions/ counter submissions and documents available on record, complaint of the complainant is decided in his favour of the complainant and against the OP.
15. In view of above discussions/ deliberations, facts and features of the case having citation of case law, the preponderance of probabilities are in favour of complainant and against the OP, therefore, we direct the OP to pay the complainant Rs. 7,50,000/- against the IDV value of the vehicle, apart from Rs. 10,000/- towards mental agony and harassment suffered by him and Rs. 10,000/- towards litigation cost. The aforesaid amount is directed to be paid by OP to complainant within 30 days from the receipt of the order.
16. If OP fails to pay Rs. 7,50,000/- against the IDV value within 30 days, then this amount will carry the interest at rate of 6% pa from the date of filing of complaint till the date of its realization, apart from Rs. 10,000/- towards mental agony and harassment suffered by the complainant and Rs. 10,000/- as litigation cost.
17. Announced on 9th March, 2023. Copy of this order be sent/provided to the parties free of cost as per Regulations.
[Vyas Muni Rai] [ Shahina] [Inder Jeet Singh]
Member Member (Female) President
