Delhi

New Delhi

CC/834/2015

Surya Roshni Ltd - Complainant(s)

Versus

National Insurance Co Ltd. - Opp.Party(s)

24 May 2023

ORDER

 

 

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION-VI

(NEW DELHI), ‘M’ BLOCK, 1^STFLOOR, VIKAS BHAWAN,

I.P.ESTATE, NEW DELHI-110002

Case No.CC-834/2015

IN THE MATTER OF:

Surya Roshni Ltd.

Through its  Sr. V.P. (Taxation),

Sh. Rajeev Kothari,

Padam Tower-1, Rajendra Place,

New Delhi – 110008.

....Complainant

Versus

 

1. National Insurance Company Ltd.

A Govt. of India Undertaking,

Through its Chairman and Managing Director

Corporate Off.:

3, Middleton Street, Prafulla Chandra Sen Sarani,

Kolkata, West Bengal – 700071.

2. Regional Manager

National Insurance Company Ltd.,

A Govt. of India Undertaking,

Having its Regional Office at

124, Level 4, Jeevan Bharti Building Tower-2,

Connaught Place, Near Connaught Circus,

New Delhi – 110001.

3. Branch Manager

National Insurance Company Ltd.,

A Govt. of India Undertaking,

Having its Divion Office at

101-106, 1^st Floor, N-1,

BMC House, Connaught Place, Near Connaught Circus,

New Delhi – 110001.

4. The Divisional Manager

National Insurance Company Ltd.,

A Govt. of India Undertaking,

Having its Delhi Division Office at

DO-2 (SAATH) 141-142, Navyug Market,

Ghaziabad (UP)

 

5. Branch Manager

National Insurance Company Ltd.,

A Govt. of India Undertaking,

Technical Department,

Delhi Regional Office – III,

Connaught Place, Near Connaught Circus,

New Delhi – 110001.

...Opposite Parties

 

Quorum:

 

Ms. Poonam Chaudhry, President

Mr. Bariq Ahmad, Member

Mr. Shekhar Chandra, Member

                                                          Date of Institution:07.12.2015

 Date of Order     : 24.05.2023

 

ORDER

 

SHEKHAR CHANDRA, MEMBER

1. The present complaint has been filed under Section 12 of the Consumer Protection Act, 1986 (in short CP Act) against OPs (in short OP) alleging deficiency of services.

2. Briefly stated facts of the case as narrated by the complainant are that the complainant took a car insurance policy for its vehicle bearing registration no. DL6CJ8027 make/model HONDA CITY 2009  through SMC Insurance Brokers Pvt having Broker Code 289 for which OP No.3 issued a Policy on 22.02.2010 which was valid from 22.02.2010 to 21.02.2011. It was mentioned in the policy bond issued by the OP No. 3 that the OPs no. 4 & 5 are the claim settlement agencies. Needless to say that the complainant paid a sum of Rs.16,566/- toward premium for the above policy.
3. The complainant states that on 18.02.2011, the above said vehicle was lost and the complainant duly informed the police on dialing @ 100 nos and to this effect, an FIR bearing no. 67/11 in the police station- Paschim Vihar, Delhi was also registered. The complainant also informed the OPs about the lost of above said vehicle and registration of FIR bearing no. 67/11 in the police station- Paschim Vihar, Delhi. At the time of spot survey, the complainant had shown both original keys to the surveyor appointed by OPs. The surveyor also clicked photographs of both original keys of the above said vehicle.
4. The complainant further states that untraced vehicle report filed by the concerned IO of Police was also accepted by the Court of Shri Rajnder Kumar, learned MM vide his order dated 10.10.2021. However, the grievance of the complainant is that despite the acceptance of the untraceable report by the Court of lerned MM and fulfilling all the  requisites formalities by the complainant, the OPs have not accepted the insurance claim.
5. It is submitted by the complainant  all affairs concerning the issurance claim was being looked after by one Mr. Anil Bansal (V.P. Commercial) and since Mr. Anil Bansal left his job on 16.07.2013 with the complainant therefore the complainant could not follow up the insurance claim. The complainant further states that  the complainant has also  informed OPs about the resignation of Mr. Anil Bansal and also supplied all the requisite documents vide letter dated 19.05.2015 and email dated 20.05.2015 which were duly acknowledged by the OPs. However, despite all, OPs had rejected claim on the ground that it is time barred.
6. It is stated by the complainant that the claim of the complainant was reconsidered by the OPs in view of the directions issued by the IRDA in grievance no. GR1140115353 dated 07.10.2014. But despite all, the OPs vide letter dated 14.07.2015 again repudiated claim of the complainant on the following grounds:

a. There was a dispute regarding the date, time regarding the registration of FIR.

b. Since my client had not provided both original keys to you, the notices. Etc.

 

7. It is further submitted by the complainant that the complainant has already informed the OPs regarding the lost of both original keys and in this regards, the complainant had lodged a complaint (No. LR No. 0070/2015) on 19.08.2015 in Police Station Prasad Nagar, Central Delhi and copy of the same was provided to the OPs vide email dated 28.08.2015 and letter dated 2.09.2015. It is a matter of record that despite all, the OPs have not sanction/pass the insurance claim of the complainant till date.
8. The complainant alleges that despite repeated reminders and requests the OPs did not pay any heed to the legitimate request of the complainant and substantial amount has been withheld by the OPs without any reasonable and justifiable cause. The aforesaid conduct of the OPs is nothing but a clear breach of trust and contract which goes to show their cheating and malafide intention just to grab the claim amount of the complainant and not to pay for the same despite being a legitimate case of the complainant and thus, the OPs have rendered themselves liable to be prosecuted under appropriate provisions of law.
9. It is submitted by the complainant that the Complainant got sent a legal notice dated 18.09.2015 which was dispatched on 19.09.2015 through his counsel to the OPs through speed post and courier and the same were duly served upon the OP but despite proper service of legal notice no response whatsoever was received from the OPs.
10. Thus the complainant states that it is a clear case that the OPs are guilty of unfair trade practice and has committed the offence of deficiency in services. The OPs have breached the trust of the Complainant and cheated by illegally withholding the legitimate insurance claim of the complainant and causing pain and harassment to the complainant and thus, the above named OPs have rendered themselves liable to be prosecuted under the appropriate provisions of CP Act being the guilty of deficiency in service and mal-practice.
11. It is submitted by the complainant that due to the above failure of OPs to pay the claim amount, the Complainant had to suffer a lot of financial loss as well as great mental pain and agony and hence, the Complainant also prays for compensation of Rs.11,98,950/- along with interest @ 12% p.a. till the realization of the amount to be received from OPs and a sum of Rs. 51,000/- on account of litigation charges.
12. As regard the the cause of action, the complainant submits that the casue of action accrued in favour of the Complainant and against the OPs in Delhi and parties to the complaint are having their addresses and offices at Delhi and notice was also issued from Delhi. Further, the office of the claim settlement agency of the OPs is also in Delhi. The insured vehicle was in Delhi and FIR was registered in Delhi and the untraced report was also accepted by a competent Court having jurisdiction at Delhi. The complaint regarding the loss of the original keys was lodged by the Complainant is situated under the jurisdiction of Police Station Prasad Nagar, New Delhi-110015 and as such, this Commission has jurisdiction to entertain and try the present complaint.
13. Thus, the present complaint case filed by the complainant against the OPs with the prayers to direct the OPs to pay claim amount of Rs. 11,98,950/-  along with interest @ 12% p.a. till the realization of the amount. Further, the complainant prays for a direction to the OPs to pay a compensation of Rs. 2,50,000/- for harassment, mental tension, agony, expenses incurred by the Complainant  with costs of the litigation.
14. On receipt of the notice of this complaint case by the OPs, the OPs have filed reply submitting that the present complaint in its present form is not maintainable before the Forum, as it does not discloses any deficiency of service on the part of the OPs. Further, it is stated that the complaint is misconceived and vexatious and the same may be dismissed with the heavy cost.
15. It is pleaded by the OPs that the OPs have granted the complainant one Private Car Package Policy vide policy no. HNC/00001717 from 22.02.2010 TO 21.02.2011 with the IDV of Rs.7,98,950/-. Insurance was granted strictly as per terms and conditions in the name of M/S Surya Roshni Ltd. As per FIR lodged by the complainant, the theft of the said vehicle occurred on 17.02.2011 to 18.02.2011, whereas the FIR was registered on 20.02.2011, with the delay of 2 days. No 100 no. call detail had been filed by the complainant.
16. As a preliminary objection, the OPs submit that as per condition no.7  (reproduced below) of the Private Vehicle Package Policy, the claim stand time barred:-

“It is also hereby further expressly agreed and declared that if the Company shall disclaim liability to the insured for any claim hereunder and such claim shall not, within 12 calendar months from the date of such disclaimer have been made the subject matter of a suit in a court of law then the claim shall for all purposes be deemed to have been abandoned and shall not be thereafter be recoverable hereunder.”

 

17. The OPs therefore, strongly assert that the complainant did not turn up for a long time after the occurrence of the theft. It is further stated that the  OPs vide their email dated 22nd May 2015 even asked to clarify as to why that Mr. Anil Kumar Bansal who left the job on 16.07.2013 did not take any action when the vehicle was stolen on 18.02.2011. In his clarification the Complainant vide email dated 22.05.2015 stated that it may be his carelessness without any bad intention. The OPs, therefore, submit that this shows the intention of the complainant and on very short ground prays for dismissal of the present complaint with heavy cost. It is further submitted by the OPs that the matter pertains to indemnification of loss, which is stated to have occurred in the year 2011 (17.02.2011 - 18.02.2011), almost 5 years have elapsed. Thus the complaint is barred by limitation within the meaning of Section 24A of the CP Act and hence should be dismissed on this ground alone. The complainant have not filed any application for condonation in delay of filing the complaint and the complainant's claim any relief under Section - 24 A [2] of the Act. The law does not support those who are indolent. So, the terms and conditions of the Policy cannot be challenged at this stage.
18. In the rejoinder affidavit filed by the complainant, the complainant has denied all the allegations and reiterated his stand taken in the complaint. However, as regard the limitation or the claim being barred by time, in paragraph 4 of his rejoinder affidavit, the complainant submits as under:-

“4.    That the contents of para no. A91-2) of preliminary objections on the ground of limitation are specifically wrong and denied and it is submitted that the last cause of action arose in favour of complainant was on dated 14.07.2015, when the respondent rejected the claim of complainant vide its letter dated 14.07.2015 which is under limitation. It is further submitted that the present complaint is not barred by limitation as the claim of complainant was reopened and rejected on 14.07.2015.” 

 

19.  We have heard the arguments and perused the record of the case. The OPs’s main arguments are – (1) there is unexplained delay in lodging the FIR as also in lodging the claim and (2) the original keys of the vehicle were not submitted to the OPs inspite of repeated reminders. In reply to the arguments of OPs as above, the complainant submits that the vehicle was stoned on 18.02.2011; Police was informed on dialing @ 100 no. and FIR was lodged on 20.02.2011. Within next five days, a claim was raised before the OPs. As regard keys, the complainant submits that the keys were shown to the Surveyor and he also clicked photographs of both the original keys. Since Mr. Anil Bansal, Vice President (Commercial) of the complainant/company who was following all the affairs concerning the insurance claim of the company left the job, the matter could not be perused seriously. It is further submitted by the complainant that it lost the original keys during the pendency claim before the OPs. An FIR to this effect was lodged and the same was also communicated to the OPs vide communication dated 02.09.2015.
20. To strengthen their arguments, the OPs cited a judgment dated 10.07.2009 of the Hon'ble Supreme Court in Civil Appeal No. 4962 of 2002, in Kandimalla Raghavaiah Vs. National Insurance Co. Ltd.  And submit that the Hon’ble Apex Court has upheld the sanctity of the limitation. Further, the OPs have referred to another judgment of the Hon'ble National Commission dated 09.10.2009 in the Revision Petition No. 3186 of 2009 in the case titled as U.P. Awas Evam Vikas Parishad versus Brij Kishore Pandey & another and submit that the Revision Petition was dismissed on the ground that the same is filed with a delay of 111 days and the complainant/Petitioner did not explain the day-to-day delay.
21. Two more decisions have been referred by the OPs - Civil Appeal No. 2067/2002, SBI Vs. M/s. Agricultural Industries where the Hon’ble Supreme Court has held [vide their judgment dated 20.03.2009] that "If the complaint is barred by time and yet, the consumer forum decides the complaint on merits, the forum would be committing an illegality and therefore the aggrieved party would be entitled to have such order set aside.”  It is further argued that the Hon'ble National Commission in Revision Petition No. 2945/2010, Rajinder Singh Vs. State of Haryana, vide their judgment dated 05.10.2010, has dismissed the Petition on account of delay of 49 days in filing the Revision Petition.
22. In contrast the arguments of the complainant are that there is no delay as the vehicle was stolen on 18.02.2011; Police complaint was made on dialing no. @100 and FIR was lodged on 20.02.2011 and complainant informed the OPs on 22.02.2011. This fact has also been admitted by the OPs in their reply to the complaint, which is being reproduced below:

“5. That the contents of para 5 are matter of record. The complainant filed the FIR on 20.02.2011 whereas the subject vehicle was stolen on 17.02.2011-18.02.2011 i.e. with the delay of two days and the answering insurance company was informed on 22.02.2011 again with the delay of 5 days. This delay can be fatal in the matter and it is vey well explained in the above para.  The complainant is submitting that he showed the two original keys to the investigator but not supplied. After several reminders by the respondents, till date the keys are not submitted to the answering respondent.”

23. To further their arguments that there is huge delay in presenting the present complaint, the complainant submits that there is no delay in filing the present complaint as the OPs repudiated the claim on 14.05.2015 (Exhibit CW1/4) and the present complaint was filed before this Commission on 07.12.2015. It is argued that there is hardly delay of two days in lodging the FIR and further the OP was informed within five days of the occurrence of the incident. The complainant argues that the claim cannot be rejected on technical ground such as delay in intimating the OP or filing FIR. To strengthen the arguments of the complainant, we find that a 3 Judge Bench of the Hon’ble Supreme Court of India in ‘CIVIL APPEAL No.653 (Arising out of S.L.P.(C) No. 24370 of 2015) GURSHINDER SINGH VERSUS SHRIRAM GENERAL INSURANCE CO. LTD. & ANR.’ has held that claim cannot be denied on technical ground. The relevant paragraphs of the said judgments are quoted below:-

“18. We concur with the view taken in the case of Om Prakash (supra), that in such a situation if the claimant is denied the claim merely on the ground that there is some delay in intimating the insurance company about the occurrence of the theft, it would be taking a hyper technical view. We find, that this Court in Om Prakash (supra) has rightly held that it would not be fair and reasonable to reject genuine claims which had already been verified and found to be correct by the investigator.

 19. We find, that this Court in Om Prakash (supra) has rightly held that the Consumer Protection Act aims at protecting the interest of the consumers and it being a beneficial legislation deserves pragmatic construction. We find, that in Om Prakash (supra) this Court has rightly held that mere delay in intimating the insurance company about the theft of the vehicle should not be a shelter to repudiate the insurance claim which has been otherwise proved to be genuine.

20. We, therefore, hold that when an insured has lodged the FIR immediately after the theft of a vehicle occurred and when the police after investigation have lodged a final report after the vehicle was not traced and when the surveyors/investigators appointed by the insurance company have found the claim of the theft to be genuine, then mere delay in intimating the insurance company about the occurrence of the theft cannot be a ground to deny the claim of the insured”.

24.   We are, therefore, of the view that the complainant is entitled to claim amount of Rs. 11,98,950/- with interest @ 9% per annum from the date of accrual till realization. The amount must be paid to the complainant within six weeks from the date of receipt of this order. The complainant shall also be entitled to cost of litigation which is quantified to Rs. 25,000/-. If the amount is not paid within the time stipulated above, the complainant shall be entitled to interest at the enhanced rate of 12% per annum.

A copy of order be sent to all the parties free of cost. The order be also uploaded in the website of the Commission (www.confonet.nic.in).

File be consigned to the record room along with a copy of the order.

 

[Poonam Chaudhry]

President

 

[Bariq Ahmad]                                                                                                   [Shekhar Chandra]

    Member                                                                                                                   Member