Delhi

North East

CC/235/2015

Sh. Sanjay Jain - Complainant(s)

Versus

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

23 May 2019

ORDER

 DISTRICT CONSUMER DISPUTES REDRESSAL FORUM: NORTH-EAST

GOVT. OF NCT OF DELHI

D.C. OFFICE COMPLEX, BUNKAR VIHAR, NAND NAGRI, DELHI-93

 

Complaint Case No. 235/15

 

In the matter of:

 

	Sh Sanjay Jain S/o Kashmiri Lal Jain H. no. 33, West Jyoti Nagar Near Shiv Mandir Delhi-110094	Complainant
	Versus
	National Insurance Co. Ltd. D.O.-28, Laxmi Nagar Scope Minar Delhi-110092 Also at:- National Insurance Company Limited General Claim HUB, 2E/25,3rd floor, Above HDFC Bank, Jhandewalan New Delhi-110055	Opposite Party

 

DATE OF INSTITUTION:       JUDGMENT RESERVED ON:               DATE OF DECISION      :

07.07.2015 23.05.2019 23.05.2019

 

N.K. Sharma, President

Ms. Sonica Mehrotra, Member

 Order passed by Ms. Sonica Mehrotra, Member

 

ORDER

1. The brief facts relevant for disposal of present complaint are the complainant being a registered owner of a motor cycle Hero Honda Splendor bearing Registration No. DL 13 SK 3434 had got the said vehicle insured with OP vide policy no. 361701/31/14/6200000762 for a total IDV of Rs. 26,850/- on payment of premium of Rs. 990/- with insurance cover w.e.f. 02.05.2014 to 01.05.2015. The said bike got stolen by unknown person in front of OBC bank Kabool Nagar Shahdara, Delhi on 24.06.2014 for which the complainant immediately lodged FIR bearing no. 366/ 2014 u/s 379 IPC with PS Shahdara on 25.06.2014 and informed the OP as well and lodged theft claim vide claim no. 361701/31/14/629-69. The complainant received letter dated 02.03.2015 from OP asking for the original Section 173 Cr.PC report which was submitted by complainant on 16.03.2015 vide speed post letter. However, OP failed to settle the claim of the complainant without any valid reason despite several enquiries causing harassment to the complainant for which reason a legal notice dated 02.05.2015 was sent by complainant through his counsel to OP which was served on 08.05.2015 on OP but OP failed to act thereupon. Therefore the complainant, suffering inconvenience due to non cooperation, dereliction of duty and deficiency of service on the part of OP in failure to settle the theft claim was compelled to file the present complaint praying for issuance of direction against the OP to pay the IDV of the stolen vehicle i.e. Rs. 26,850/- alongwith interest thereon @ 18% from the date of claim till realization. Complainant further prayed for damages of Rs. 70,000/- towards mental tension, harassment and anxiety suffered by complainant owing to conduct of OP and cost of litigation.
2. Complainant has attached copy of vehicle particulars issued by State Transport Department, GNCTD, copy of certificate of insurance cum policy scheduled issued by OP with respect to the subject vehicle, copy of FIR dated 25.06.2014, copy of letter dated OP to complainant seeking report u/s 173 Cr.PC, reply thereto by complainant to OP dated 16.03.2015 attaching the final report u/s 173 Cr. PC and copy of legal notice dated 02.05.2015 alongwith postal receipt.
3. Notice was issued to the OP on 13.07.2015. OP entered appearance and filed written statement on 08.09.2015 it took the preliminary objection that the complaint filed by the complainant is premature in as much as his theft claim has not been repudiated by OP and therefore complaint is liable to be rejected under Order 7 Rule 11 of CPC. The OP, while admitting the factum of insurance coverage having been granted to the complainant with respect to the subject vehicle, also acknowledged that the claim of the complainant was duly processed and approved to the tune of Rs. 26,750/- (IDV - Rs. 100 as compulsory excess) and the intimation of claim approval was duly sent to the complainant on 10.07.2015 vide which correspondence the complainant was asked to furnish certain documents for settlement of the claim enumerated as serial no. 1 to 6 in written statement mentioned in the said letter filed as Annexure- A. However, the complainant failed to submit the requisite documents for completion of formalities and instead filed the present complaint before this Forum whereas the OP had never denied the claim of complainant at any point of time and was never negligent in performing its obligation or deficient in service. Lastly, OP denied the averment of complainant having sent all requisite documents to the OP required for process of claim and alleged that the complainant was taking shelter of this Forum to save himself from completing formalities for settlement of claim and prayed for dismissal of the complaint.
4. Rejoinder to the written statement was filed by the complainant in rebuttal to the defence taken by the OP in its written statement and the complainant submitted inter alia that the OP has been harassing him by asking again and again for submission of documents already submitted much earlier than the letter dated 10.07.2015 filed by OP as Annexure A with written statement and prayed for relief claim.
5. Evidence by way of affidavit was filed by the complainant exhibiting the documents relied upon / alongwith the complaint.
6. Evidence by way of affidavit was filed by the OP sworn by its Assistant Manager in reassertion of its defence taken in the written statement exhibiting copy of insurance policy and copy of letter dated 10.07.2015. OP submitted that pursuant to its letter dated 10.07.2015  to the complainant, the complainant filed the required documents with OP by end of September 2015 and stated that the complainant can get his claim approved after furnishing transfer of RC of vehicle in favour of OP, signing of Letter of Subrogation and Letter of Indemnity.
7. Written argument were filed by the complainant arguing deficiency of service on the part of OP for non settlement of his genuine claim without any cogent reason despite submission of all requisite documents duly acknowledged by OP vide acknowledgment dated 29.09.2015 causing harassment and inconvenience to the complainant.
8. Written arguments were filed by the OP in reassertion of its defence taken in written statement and evidence by way of affidavit and laying emphasis on requirement by the complainant to submit Letter of Subrogation and Letter of Indemnity which the complainant was asked to submit vide letter date 27.06.2016 attaching the said letter alongwith the written arguments wherein the complainant was asked to get the RC transferred and the aforementioned documents signed. Thereafter arguments were heard by the erstwhile Bench in March 2017 and order was reserved but never passed.
9. Post change of Bench, the matter was relisted on 19.04.2018 and proof of dispatch / service of letter dated 27.06.2016 filed by OP alongwith written arguments was sought by this Forum vide which letter it had sought additional document of complainant apart from documents submitted by him nine months ago in September 2015 as per OP’s own admission post approval of claim in July 2015. Pursuant to the directions, counsel for OP placed on record copy of internal email correspondence dated 17^th -18^th  December 2018 regarding the postal receipt / dispatch proof of the said letter dated 27.06.2016 to which the report from the administrative officer received stated that the said letter was sent to complainant by speed post receipt no. SPED 695828198 IN dated 02.07.2016. However, no proof of delivery thereof was in possession of OP. The complainant denied receipt of any such letter from OP.
10. During the course of oral arguments, counsel for complainant argued that this was a clear of deficiency of service, deficiency being defined u/s 2(1)(g) of Consumer Protection Act, emphasis laid on deficiency in manner of performance for service in question undertaken in pursuance of contract suffering from fault, imperfection, shortcoming or inadequacy. The counsel for OP was put to a specific query by the Forum to the effect / explanation / justification for inaction  on its part in process / finalization / disbursal of claim amount from September 2015 till June 2016 i.e. for nine months from the perspective of OP’s own admission of having received all documents from complainant by end of September 2015 for claim which had been already approved by them in July 2015 to which no cogent explanation / justification / defence came forth except trying to seek refuge of correspondence between complainant and OP not even placed on record before this Forum and was therefore not entertainable.
11. On perusal of letter dated 02.03.2015 from OP to complainant as Final Reminder placed on record by the  complainant alongwith the complaint wherein the OP had asked for final information report u/s 173 Cr.PC, we find reference to several earlier correspondences (five in number) made by OP to the complainant between September 2014 to January 2015. Obviously, these letters had to pertain to furnishing of documents for process of claim as asked for by OP from the complainant and the letter dated 02.03.2015 was a final reminder thereof to which the complainant replied / furnished the requisite documents asked for vide response dated 16.03.2015 received by OP on 20.03.2015 after which sometime must have been taken for process of claim which was finally approved as per OP’s own admission in July 2015 when certain additional documents were asked for from the complainant vide letters dated 10.07.2015 & 17.08.2015 which the complainant furnished by hand vide letter dated 25.09.2015. Thereafter there was a complete silence / no communication between the parties and the proceedings before the Forum continued and around the said period i.e. September 2015, the matter was at the nascent stage of Reply-Rejoinder but the Forum was never apprised ever at any stage of proceedings about finalization of claim or OP having shown any pro activeness in this regard. The Hon'ble National Commission in Vijay Harshad Dholkiya Vs New India Assurance Co. India Ltd. III (2018) CPJ 575 (NC) held in a case of delayed claim settlement by the insurance company which was unnecessarily delayed for want of documents and no decision was taken despite submission of claim documents and legal notice that it clearly shows lackadaisical approach of the insurance company for having failed to settle the claim for three years and upheld the order of State Commission Nagpur, Maharashtra allowing the appeal of the petitioner against dismissal of his complaint by District Forum Chandrapur. The Hon'ble National Commission in the said judgment, on perusal of several correspondences, also held the petitioner / complainant guilty of contributory negligence for not being vigilant and sincere in furnishing the documents as demanded by the surveyor and therefore did not entertain the plea of enhancement of compensation granted by State Commission and confirmed the quantum of compensation as granted by the State Commission Nagpur.
12. The Hon'ble National Commission in Narender Kumar Maheshwari Vs Oriental Insurance Co. Ltd II (2018) CPJ 522 (NC) held Insurance Company deficient in service for inordinate delay in a case where survey was conducted after eight months of accident and payment of claim was made after two years of the date of accident and after one and half years from the date of final survey and upheld the order of District Forum Bulandshahr and UP SCDRC and the quantum of compensation paid and confirmed by both lower Fora.
13. Having appreciated the facts of the present case, chronology and sequence of events and correspondences between both parties, it is apparent that undisputedly the theft claim was approved by OP in July 2015, around the same time when the present complaint was filed which was confirmed by OP vide written statement and intimation of the same was also sent to the complainant in response to which the complainant furnished the documents as asked for in September 2015. However, juxtaposition to the said situation, we cannot ignore reference to several correspondences sent by OP to complainant between September 2014 and January 2015 post theft and filing of claim to which no response / reply has been placed on record by complainant except the last correspondence dated 02.03.2015 referring to the aforementioned correspondences to which the complainant replied on 16.03.2015 and after which he issued a legal notice dated 02.05.2015 before filing the present complaint. Thereafter, OP placed on record letter dated 25.09.2015 as Annexure A with its evidence by way of affidavit acknowledging receipt of additional documents from complainant as asked for vide letters dated 10.07.2015 and 17.08.2015. Therefore, the complainant too has been rather tardy and negligent in responding to the correspondence of the OP, several of which have gone un-answered, un-responded and un-acted upon. Therefore, the said case is covered by Vijay Harshad (Supra) case and observation made by Hon'ble National Commission therein. However, notwithstanding the same, the deficiency of service on the part of OP is writ large and inexplicable as the said is glaring example of gross deficiency of service and inaction on the part of OP for non disbursal of the claim amount despite approval of the same in July 2015 and acknowledging the receipt of documents in September 2015 and then sitting silently and laid back for nine months long and suddenly at the fag end of proceeding before this Forum, file a letter dated June 2016 addressed to the complainant requiring further documentations only to justify and validate / cover up its in action and non performance for which the complainant was made to suffer this litigation for almost four years.
14. We therefore find OP guilty of deficiency of service and direct it to release the IDV of the stolen vehicle / the approved claim amount i.e. Rs. 26,750/- alongwith interest @ 9% from the date of filing of the present complaint. The complainant shall furnish the requisite documents to OP as asked for vide letter dated 27.06.2016 for completion of formalities for process of claim. We further direct the OP to pay a sum of Rs. 5,000/- to the complainant as compensation for mental harassment and Rs. 3,000/- towards cost of litigation. Let the order be complied by the OP within the 30 days from the date of receipt of copy of this order.
15.  Let a copy of this order be sent to each party free of cost as per regulation 21 of the Consumer Protection Regulations, 2005.
16.   File be consigned to record room.
17.   Announced on  23.05.2019

 

(N.K. Sharma)      President

(Sonica Mehrotra)  Member