Before the District Consumer Dispute Redressal Commission [Central], 5th Floor ISBT Building, Kashmere Gate, Delhi
Complaint Case No.-221/07.08.2019
Rup Kishor s/o Sh. Madan Lal
r/o T-huts No. N-77B/525, Sawan Park,
Ashok Vihar-3, Delhi-110052 ...Complainant
Versus
OP1. National Insurance Company Ltd.
At: 3, Middleton Street, Kolkata-700071
Through its Managing Director/ Auth.
Signatory/ C.E.O.
OP2. The Manager General (Claim)
Hub Hua NIC Ltd.
At: 2E/25, 3rd Floor, above HDFC Bank,
Jhandewalan Extension, New Delhi ...Opposite Parties
Order Reserved on: 16.02.2023
Date of Order: 29.03.2023
Coram: Shri Inder Jeet Singh, President
Shri Vyas Muni Rai, Member
Ms. Shahina, Member -Female
Inder Jeet Singh
ORDER
1.1. (Introduction to case of parties) : Succinctly, complainant/ insured’s vehicle DL 1ER A 6585, E-rikshaw-2016 was stolen, for which FIR was also lodged and OP/ Insurer was requested to reimburse the insurance amount of vehicle, which was subject matter of insurance. The OPs failed to do so, there was negligence and deficiency of services on the part of OPs.
1.2: The OPs remained absent for want of appearance, they were proceeded ex-parte vide order dated 22.11.2019.
2.1 ( Matrix of complainant’s case ) : Complainant Shri Rup Kishor, registered owner of E-vehicle bearing registration no. DL 1ER A 6585 (its RC is now Exh. CW-1/1), got it insured from OPs, who issued insurance policy cover note no. 350503080743 valid from 17.08.2016 to 16.08.2017 (now Exh. CW-1/4, of IDV of Rs. 97,456/-). However, on 12.08.2017, during the period of insurance, the said vehicle was stolen for which formal FIR no. 025671/17 u/s 379 IPC was registered in P.S. Ashok Vihar on 12.08.2017 (copy of FIR is now Exh. CW-1/2), and police filed untraced report in the court of Ld. ACMM, Rohini, Delhi (now Exh. CW-1/3), as the vehicle could not be traced. The complainant approached the OPs for settlement of his theft vehicle, he furnished his all documentary record but OPs failed to release the amount. Moreover, when he made telephonic calls and personal visits to the office of OPs; not only claim was refused but also he was treated roughly and disrespectfully, which caused him mental pain and agony, the acts of OP are even punishable under the law. The OPs were bound to reimburse the claim of complainant. Finding no other way, he sent legal notice (now Exh. CW-1/6, along with postal receipt (now Exh. CW-1/7). However, the claim was not paid, that is why, complaint was filed seeking reimbursement of claim amount, apart from compensation of Rs. 1,00,000/- and litigation expenses of Rs. 21,000/-.
2.2: The complaint was accompanied with documents, which are already mentioned and also it was accompanied with original insurance cover note. Later, copies of retail invoice dated 17.08.2016 of Rs. 1,02,535/- and show-cause letter dated 27.10.2017 issued by OPs were also placed on record.
During the pending of complaint, the complainant was asked his stand in respect of contents of show-cause letter of OPs, it was replied that the said vehicle was in a parked condition when theft took place, it was parked by driver Sh. Suresh s/o Sh. Ram Assre having driving license as well as badge, the copies of same were filed with the response. It has also been explained that at the time of theft of the original/genuine lock was installed in the vehicle and two original keys were handed over to the OPs.
3. (Status and case of OPs): As already stated, OPs failed to cause their appearance after service of notice of complaint, they were proceeded ex-parte on 22.11.2019. However, the complainant filed show-cause letter dated 27.10.2017 issued by the OPs, to show cause as there was misrepresentation of the fact and as to why the claim should not be repudiated, since original keys were lost and keys provided by the complainant are in duplicate/ local keys, which is of changed lock, consequently it confirms that bill provided by the complainant is fake, after verification from the shop, moreover, the complainant was not having valid license and his license is of Learner, which is a violation of drivers’ clause.
4. (Evidence): The complainant led his evidence by filing detailed affidavit coupled with documentary record which has been already narrated in paragraph no. 1 above.
5.: (Final hearing): At this stage, the complainant has filed detailed written arguments followed by oral submissions by Ms. Lakshita Sharma, Advocate for complainant. The oral submissions are based on the documentary record as well as the narration of events took place, as mentioned in the evidence.
However, in order to counter the show-cause letter dated 27.10.2017, the complainant explains that its response had already been filed on record, otherwise the plea of OPs is irrelevant and not acceptable under the law since the vehicle was stolen in a parked condition, there was no substance to ask for driving license but in order to deny the claim this kind of objection was taken. The keys were handed over to the OPs, it suffices the requirement. Complainant relies upon Oriental Insurance Co. Ltd. vs Anil Kumar I 2022 CPJ 139 Delhi, wherein it was held that it is immaterial whether the keys were initially made available or the same were made available later in case of theft of vehicle after parking the same, no motive can be attributed to this effect. Complainant further relies upon Fojaji Harijiji Vanzara vs United India Ins. Co. Ltd. I 2022 CPJ 149 (Guj.), wherein it was held that in case original keys were not produced but in duplicate key which were made from local market by the owner, as original key was lost long back, the claim was directed to be settled. Reliance is also placed on Haresh Dhirajlal Badiyani vs National Insurance Co. I 2022 CPJ 171, insured vehicle was stolen and claim was not settled on the plea of lack of proper care of the vehicle as the key was stated to be left by the drive in the vehicle and for want of proof of that plea by the insurance company, it was held case of deficiency in services and claim was partly settled.
6.1 (Findings) : The contentions of complainant is considered, keeping in view the documentary record as well as the show-cause letter of the OPs. After considering and taking stock of all the circumstances, it is not disputed that the vehicle was insured with the OPs against payment of premium, the vehicle was stolen in a parked condition, for which formal FIR was registered, however, the police failed to track the vehicle during investigation, it result into filing of untraced report. All these circumstances have been established by the complainant.
6.2: The complainant had not received the claim amount but instead the OP issued show-cause letter raising certain clarifications, the complainant had also responded in writing and filed the same on this complaint. Whereas, the OPs remained ex-parte, they could not establish their stand by leading evidence as well as to rebut the evidence of complainant.
6.3: Consequently, the complainant has proved his case of deficiency of services against OPs that despite total loss of the insured subject/ vehicle by way of theft, the insured was not released to the complainant. Therefore, the complainant is held entitled for insured amount/ IDV of Rs. 97,456/- in his favour and against the OPs.
6.4: The complainant claims compensation of Rs. 1,00,000/- and litigation charges of Rs. 21,000/-, but it has not been substantiated as to on what basis and formula the amount is being claimed, consequently considering that complainant was pushing hard to secure his insurance claim amount, the compensation of Rs. 15,000/- in lieu of mental agony, harassment and inconvenience allowed in his favour and against the OPs, apart from litigation expenses of Rs. 5,000/-.
7: Accordingly, the complaint is allowed in favour of complainant and against the OPs to pay jointly and severally insurance amount of Rs. 97,456/- to the complainant, apart from the compensation Rs. 15,000/-and litigation cost of Rs.5,000/- to complainant, within 30 days from the receipt of this order.
In case the amount is not paid within 30 days, then OPs will be liable to pay simple interest at the rate of 6% pa on amount of Rs. 97,456/- from the date of filing of the complaint till the date of its realization.
8. Copy of this Order be sent/provided forthwith to the parties free of cost as per rules for necessary compliance.
9. It is appropriate to record that this Commission is facing great difficulty in day to day its functioning for want of regular PA and stenographer, since only one stenographer Gr-III is posted for all work.
8: Announced on this 29th March , 2023 [चैत्र 8, साका 1945]
[Vyas Muni Rai] [ Shahina] [Inder Jeet Singh]
Member Member (Female) President
