Delhi

East Delhi

CC/279/2020

SH. MANOJ DHAMA - Complainant(s)

Versus

NATIONAL INS. CO. - Opp.Party(s)

26 Jul 2023

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION (EAST)

GOVT. OF NCT OF DELHI

CONVENIENT SHOPPING CENTRE, FIRST FLOOR,

SAINI ENCLAVE, DELHI – 110 092

 

C.C. No. 279/2020

 

	MANOJ DHAMA S/O SH. YADRAM SINGH R/O PATHSALA ROAD, MUNDALA PATTI, KHEKADA, BAGPAT, UTTAR PRADESH – 250101   ALSO AT:- M/S M.S. INDUSTRIES, A-16, GALI NO.5, MILAN GARDEN, MANDOLI, NEAR MELA RAM HOUSE, DELHI - 110093	….Complainant
Versus
	NATIONAL INSURANCE CO LTD. THROUGH ITS CONCERN OFFICIAL/AUTHORIZED SIGNATORY, SCOPRE MINAR, CORE-3, 2ND FLOOR, LAXMI NAGAR, DELHI – 110092   ALSO AT:- HERO MOTO CORP HUB DIVISIONAL OFFICE –IV 101-106, BMC HOUSE, 1ST FLOOR, N-1, CONNAUGHT PLACE, NEW DELHI - 110001	……OP

 

Date of Institution	:	03.12.2020
Judgment Reserved on	:	05.07.2023
Judgment Passed on	:	26.07.2023

QUORUM:

 

Sh. S.S. Malhotra	(President)
Ms. Rashmi Bansal	(Member)
Sh. Ravi Kumar	(Member)

Order By: Ms. Rashmi Bansal (Member)

 

 

JUDGMENT

The present judgment would dispose off the complaint of the complainant alleging deficiency of services on the part of OP in declining his claim against the theft of his vehicle.  .

1. It is the case of the complainant that he purchased a second hand car Maruti Swift, VDI, (O) model 2016, for a total sale consideration of Rs.4,85,000/- financed, with IDFC First Bank Ltd with EMC of Rs.12,989/-. The said vehicle was insured with OP vide insurance policy bearing number 39010231196100024877 valid from 16.11.2019–15.11.2020, with the declared IDV of Rs.4,50,000/-.
2. Complainant submits that since he does not know the driving and also was not having driving license, therefore, the said vehicle was driven by his friend Mr. Gaurav Kumar, who is complainant’s known person as well as also looking after his office work, as per complainant’s requirement. Complainant submits that on 27.01.2020 he went to New Delhi railway station and Mr. Gaurav Kumar dropped him there by aforesaid vehicle and after dropping he (Mr. Gaurav) reached his home and parked the aforesaid vehicle and to his utmost shock he did not find the vehicle in the mid night of 30.01.2020 & 31.01.2020. Mr. Gaurav Kumar called PCR at 100 number and registered an FIR bearing number 003517/2020 dated 31.01.2020 at the e- police station under section 379 IPC and has also informed the OP for the same. 
3. A survey dated 31.01.2020 had taken place by the surveyor appointed by the OP and required some documents which were supplied to him. The RTO was also intimated vide letter dated 08.02.2020. The complainant also informed vide letter dated 07.02.2020 to IDFC, First Bank Ltd for loan statement and non-repo  letter in respect of above stated loan and statement of account dated 02.07.2020 was issued to him. Further by letter dated 29.06.2020, some information was sought by OP for relooking at the claims. The other letter dated 15.07.2020 also issued to the complainant seeking clarification and justified reason qua relooking of the claim which was replied by the complainant vide letter dated 28.07.2020, however, by letter dated 03.09.2020, the OP has closed his claim remarking as ‘No claim’.   
4. Complainant submits that OP has acted with malafide intention, failed in granting service as promised and undertaken, hence, OP indulged into unfair trade practice, committed deficiency in service and thus caused harassment and mental agony to the complainant by rejecting his genuine claim. The legal notice dated 12.10.2020 remained unanswered from OP.
5. OP has filed its reply admitting the issuance of policy in favour of the complainant with respect to the above stated vehicle. It is submitted that the complainant approached OP on 31.01.2020 vide intimation for application of survey, stating that the insured vehicle got stolen on 30.01.2020, and the OP has assigned one investigator to investigate the incident. The investigator has recorded the statements of complainant and of Mr. Gaurav Kumar. As per the statement of Mr. Gaurav Kumar the insured vehicle got stolen from his residence and the same was in his possession since November 2019 and was exclusively being used by him. Mr. Gaurav Kumar also stated that he is into the business of selling of steel beams and have been known to the complainant for past 5 to 6 years and regularly sells steel beams to the complainant. He is neither a business partner nor employee of the complainant. The original RC (Registration Certificate) of the said insured vehicle was in possession of Mr. Gaurav Kumar and at the time of the incidence, Mr. Gaurav Kumar was not in possession of his driving licence as the same was impounded and held by the court concerned for challans under MV Act.
6. The statement of the complainant to the investigator mentioned that the above said insured vehicle had been in possession of Mr. Gaurav Kumar and exclusively been used by him as the complainant does not know how to drive a car nor did he have a driving license for the same. Based on the statements of complainant and Mr. Gaurav Kumar the investigator vide, its report dated 08.08.2020 opined that insured did not have any insurable interest on the date of loss and insured has hidden many material facts to take benefit out of the vehicle theft. OP further submits that not only this, the complainant has also breached the terms and conditions of the insurance policy under Private Car Package of safeguarding insured vehicle from any loss or damage. The said Mr. Gaurav Kumar is neither an employee, business partner, relative nor family friend nor there is any agreement of bailment existed between them under which the said vehicle was handed over to Mr. Gaurav Kumar., Mr. Gaurav Kumar was neither employee nor a driver of the complainant who was given possession of the insured vehicle for a specific purpose. The complainant was unable to provide any satisfactory response to query sought by OP regarding fiduciary relationship under which the said insured vehicle was allegedly entrusted upon Mr. Gaurav Kumar.
7. Further, OP states that as per the statement of Mr. Gaurav Kumar, the said insured vehicle was parked by him on the main road across his home. The car got stolen from the main road which was unattended or not within bounds of supervision, which act itself portrays Mr. Gaurav Kumar’s negligence towards safety of the insured vehicle. Further complainant was also negligent towards safety of the said vehicle. OP further submits that the FIR clearly mention that Mr. Gaurav Kumar stated that the said insured vehicle is in his possession along with the original RC.  OP further submits that from the statements of complainant and of Mr. Gaurav Kumar, the apparent inference could be drawn that complainant had de facto relinquished his interest in the said vehicle and had transferred the same to Mr. Gaurav Kumar.
8. OP also relied upon the general exception of the ‘Private Car Package’, wherein it is mentioned that OP is not liable for any accidental loss or damage and/or liability caused , sustained or incurred while the vehicle is big driven by any person other than the driver as stated in the driver’s clause. Therefore, in view of the said general exception of the said policy, the present complaint is liable to be dismissed.
9. Complainant has filed the rejoinder to the written statement of the OP controverting the contents of the written statement of OP. Both the parties have filed their evidences along with the respective documents in support of their case.
10. In support of his claim, the complainant has filed the following evidences:-

1. Copy of Aadhar Card, Ex.CW-1/1.
2. Copy of Registration Certificate, Ex.CW-1/2
3. Copy of Delivery Letter No.217 issued by West Delhi Car Dealer's Association, Ex.CW-1/3
4. Copy of Insurance Policy vide Certificate No.39010231196100024877 issued by National Insurance Co Ltd., Ex. CW-1/4
5. Copy of FIR No 003517/2020 dated 31 01 2020, Ex.CW-1/5.
6. Copy of Intimation for Application of Surveyor dated 31.01.2020, Ex.CW- 1/6
7. Copy of Letter vide Code No DD/OD-Theft/20 dated 31 01 2020 issued by Delta Defectives, Ex.CW-1/7
8. Copy of letter dated 06.02.2020 addressed to RTO Dwarka Authority. Delhi is Ex.CW-1/8
9. Copy of Letters dated 07.02.2020 addressed to Delta Company, Ex.CW-1/9
10. Copy of Letter dated 07 02.2020 addressed to IDFC Bank Ltd., Ex.CW-1/10.
11. Copy of Account Statement dated on 02.07.2020, Ex.CW-1/11.
12. Copy of Letter dated 29.06.2020, Ex.CW- 1/12
13. Copy of Reply dated 17 07 2020 of Complainant, Ex.CW-1/13
14. Copy of Letter dated 15.07.2020 issued by OP, Ex.CW-1/14
15. Copy of Reply dated 28.07 2020 issued by Complainant, Ex CW-1/15
16. Copy of Letter dated 03.09.2020 of OP, Ex.CW-1/16
17. Copy of Legal Notice dated 12.10.2020, Ex.CW-1/17 and Postal Receipts, Ex.CW-1/18 (Colly)
18. Track Consignment of India Post, Ex.CW-1/19 (Colly)

 

11. This Commission has heard the arguments and perused the documents on record. The issuance of the policy is not in dispute. The factum of theft is also not disputed. The only issue with respect to the vehicle is that whether the same was used by the complainant or the same is transferred to Mr. Gaurav Kumar and weather, the complainant has an insurable interest in the said vehicle or not.
12. Before going into merit of case, the Complainant’s objection that evidence filed by the person who is not having the authorisation letter and it should not be in admissible, has to be addressed first. Documents on record reveal that one power of attorney dated 16.05.1989 filed by OP, whereby the resolution passed in the meeting of board of directors of the company authorised Chairman cum Managing Director to delegate the powers conferred upon him, therefore, the reply and evidence filed by the OP is by authorised person and objection of the complaint bears no force.
13. The documents on record, the statement given by the complainant and Mr. Gaurav Kumar, the clarifications dated 17.07.2020, 28.07.2020 given to the OP by the complainant show that the vehicle has been purchased and insured by the complainant, and neither he knows driving nor he possesses driving license therefore, the vehicle is used by Mr. Gaurav Kumar. However, Mr. Gaurav Kumar, was neither the complainant’s employee nor his partner, but only his known person and often used to look after his office work. He has also mentioned in his statement dated 07.02.2020 to the investigator that the said vehicle driven for him by Mr. Gaurav Kumar. Since on the date of theft, he was not in the town and was out to Vaishno Devi and therefore the FIR lodged by Mr. Gaurav Kumar and the information to the OP has been given by Mr. Gaurav Kumar’s younger brother to the OP. After returning from his journey, the complainant has filed the claim form and original RC along with original keys. The complainant has also placed on record the loan documents that he has taken to purchase the said vehicle. Further, the statement dated 07.02.2020 by Mr. Gaurav Kumar also stated the same facts. In addition, this has also been mentioned by Mr. Gaurav Kumar that his original driving license is lying with the court with respect to the challan.
14. The OP has repudiated the claim of the complainant on the ground that since the said vehicle has been used by Mr. Gaurav Kumar, therefore, the complainant had no insurable interest in the said vehicle, however, has not placed on record any document to establish the same. The OP has relied upon the presumption/ probabilities of the same, keeping in view the circumstances in which the said vehicle has been used by the complainant through Mr. Gaurav Kumar. Admittedly, the complainant was not having any driving licence, and was not knowing driving, therefore, the same was used by him through Mr. Gaurav Kumar. The MV Act nowhere restricts the use of the vehicle by any person other than the purchaser himself, nor it restricts that the said vehicle be driven by a person other than the owner with the permission of the owner. Since, the complainant got his car used for himself through his known, Mr. Gaurav kumar, it is not something which can be treated as violation of any law. The OP has also failed to show that the car is sold to Mr. Gaurav Kumar nor that the said vehicle was always used by Mr. Gaurav, and not by complainant. To the contrary, the complainant is able to show that the car is used by him through Mr. Gaurav Kumar and before theft, Mr. Gaurav Kumar has dropped him to railway station.  Even otherwise there is no exclusion clause in the policy to draw such inferences by OP without any basis.  Further, also there is no clause to this effect in the insurance policy which prohibits the insured to get his vehicle driven by any other person. OP’s objection to the fact that Mr. Gaurav Kumar was not having driving license and it was impounded, is no ground to reject a claim as driving a vehicle without driving license incurs  punishment as per law under MV Act and is not a ground to repudiate the claim, and therefore OP is different in its service.
15. However, this is also a matter of record that the complainant used his vehicle through Mr. Gaurav Kumar, but he is also failed to produce on record any document to show that as to how and why said vehicle was being exclusively used by Mr. Gaurav Kumar. Complainant is also failed to establish in his case in entirety. Therefore, there is certain deficiency on the part of the complainant also.
16. Considering the facts and circumstances of the case, this commission is of the view that repudiation of the claim of the complainant by the OP, in toto, is arbitrary and without any justification and in view of Hon'ble Supreme Court decision in ‘Amalendu Sahu versus Oriental insurance Co Ltd’, II (2010) CPJ 9 (SC),  wherein it was observed that in case of violation of non-intrinsic condition of the policy, the claim can be settled on a non-standard basis up to 75% of the claim. As per Supreme Court judgement, even in case there, there is a breach of warranty/conditions of the policy, and amount up to 75% of the admissible claim can be agreed to. 
17. National Commission in New India Assurances Ltd. V/s Narayan Prasad II (2006) CPJ 144 NC has given guidelines for settling the claim on non standard basis.

Non- standard claims following types of claims shall be considered as non-standard and shall be settled as indicated below after recording the reasons:

Sr. No.		Percentage of Settlement
	Under declaration of licensed carrying capacity.	Deduct 3 years’ difference in premium from the amount of claim or deduct 25% of claim amount, whichever is higher.
	Overloading of vehicles beyond licensed carrying capacity.	Pay claims not exceeding 75% of admissible claim.
	Any other breach of warranty/condition of policy including limitation as to use.	Pay up to 75% of admissible claim.

 

18. Therefore, the OP is directed to pay the complainant 75% of the claim amount i.e. Rs.3,37,000/- (75% of IDV 4,50,000/-) without any interest and Compensation. The same be paid by the OP within 30 days from the date of passing of the order failing which the OP shall be liable to pay an interest @ of 6% per annum from the date of order till the final realisation by the complainant. 
19. The file be consigned to record room after providing the copies of the order to the parties as per CPA rules.
20. The order contains 11 pages, each bears our signatures.
21. Pronounce on 26.07.2023.