Before the District Consumer Dispute Redressal Commission [Central], 5th Floor ISBT Building, Kashmere Gate, Delhi
Complaint Case No. 105/09.05.2019
Pritam Narang R/o H. No. 517, Gopi Colony,
Old Faridabad, Haryana-121002 ...Complainant
Versus
OP1. National Insurance Company
General Claim Hub, DRO-II (369200),
Above HDFC Bank, 3rd Floor,
2E/25, Jhandewalan Extension,
New Delhi-110055
OP2. National Insurance Company
5C-1 and 2, BP Railway Road,
Neelam Chowk, Faridabad,
Haryana-121001 …Opposite Parties
Date of filing 09.05.2019
Date of Order: 03.08.2023
Coram: Shri Inder Jeet Singh, President
Ms. Shahina, Member -Female
Shri Vyas Muni Rai, Member
ORDER [ex-parte]
Inder Jeet Singh, President
1.1. (Introduction to case of parties) - The Complainant's truck bearing registration no. HR-38-U-1235 was duly insured with OPs having IDV of vehicle is Rs. 11,60,251/- was robbed and hijacked after removing/abducting its driver and administering him stupefying substance by the culprits, for which formal FIR was also registered by Police of PS Gang Nehar, charge-sheet was also filed against accused persons but truck could not be recovered by the police. The complainant had informed Insurer, immediately when driver could not be contacted and it was felt some-things wrong and again OPs were informed the situation on reaching the spot. The OPs/ Insurers were requested to reimburse the claim of subject vehicle.
But the OPs repudiated the claim on the ground of delay in registration of FIR and for want of filing of unraced report, then claim was reopened and against claim was repudiated on the ground of delayed FIR and at the material time of incident, the driver's licence was found fake. The complaint is filed making allegation of negligence and deficiency of services on the part of OPs.
1.2: The OPs were served with notice on complaint, however, they opted to remain absent from the proceedings, thus for want of their appearance, they were proceeded ex-parte vide order dated 13.08.2019.
1.3 That said truck/vehicle was hypothecated with M/s Sundaram Finance Ltd. having office at Sector 16 Faridabad against finance for Rs.10 Lakhs. The complainant has been paying Rs.27,265/-towards EMI regularly for the last about two and half years, which stand paid till December, 2018. Moreover, despite theft of the said vehicle in August, 2016, the complainant continued to pay EMI without any default to M/s Sundram Finance and till 17.12.2018, the amount stand is of Rs. 12,26,992/-. The complainant repaid entire amount of loan and M/s Sundram Finance has also issued clearance of no due certificate/NOC vide letter dated 20.11.2018 and also wrote to RTA to delete the endorsement of its name as financier of vehicle.
2.1. (Case of complainant) - The Complainant bought a insurance policy bearing no 36110031156300013053 dated 09/03/2016 w.e.f. 13.3,2016 to 12.03.2017 to cover perils and risk in respect of his truck bearing registration no. HR-38-U-1235 'commercial vehicle' (briefly referred as 'vehicle'') from OP2 and IDV of vehicle is Rs. 11,60,251/- against payment of premium of Rs.27,995/-. The complainant was using the vehicle inter-State to transport goods for his customers and clients.
2.2. On 04.08.2016, the vehicle collected goods from Faridabad, for its delivery to Hero Company, based at SIDCO, Haridwar. The goods were delivered on 05.08.2016 at its destination, however, one box was also collected to be delivered at Faridabad in return journey. Then on 06.08.2016, while coming back, a consignment was collected from Haridwar to be delivered at Khawaspur (Gurgaon), which was through broker Super Cargo, Haridwar. There was one more consignment of M/s Aggarwal Packers & Movers Ltd to be collected from Ram Nagar, Roorkee, Uttrakhand for its delivery at Gurgaon. The driver reached and parked the vehicle alongside/near Union Bank, Ram Nagar and he was awaiting for receiving of consignment. It was about 6:30pm, when a black color Scorpio stopped on side of vehicle for seeking enquiry about way to Saharanpur but it was a pretext as the driver was pulled out forcibly by culprits all of sudden from truck/vehicle and took him into the Scorpio. The culprits in the Scorpio made him to drink, due to which he became unconscious as drink was mixed with some substance,.
On 7.8.2016 around 1pm/2 pm, when the complainant received a phone call from Super Cargo, Haridwar inquiring of non-delivery of goods. The complainant rang to the driver but no success to speak to driver, since his phone was not reachable. The complainant sensed some mishap with driver in the situation and he immediately informed the insurance agent Mr. Surender Kumar of OP2, that phone number of driver of vehicle is not reachable and complainant is apprehending that something wrong has happened with said vehicle and they are going to Roorkee to locate said vehicle and driver. Thus, on 8.8.2015, the complainant along with his son left for Roorkee and while in their way reached at Kalindi Kunj, complainant received phone call from unknown number informing that complainant's driver is lying in unconscious condition at Meerapur, Roorkee Road, the details of said phone number is also mentioned in the FIR. Then, complainant then went to Meerapur, Uttarakhand and on reaching there, the driver was found in semi unconscious state but informed about forceful theft of vehicle. The complainant informed the insurance agent Mr. Surender Kumar, about theft of said vehicle and condition of driver. The complainant along-with driver managed and proceeded to PS Gang Nahar, Uttarakhand to register FIR, where police instructed that before registration of formal FIR, a preliminary inquiry will be conducted including to locate the vehicle.
2.3 Then on 10.8.2016 to 13.8.2016, 4 policemen and complainant visited Faridabad (Haryana), Wazirpur (Delhi), Noida, Amroha (U.P) to trace the vehicle and black Scorpio on the basis of having video footage installed at the Union Bank, Gang Nahar, Roorkee. On 11.08.2016 complainant along-with 4 police officers also went to the office of OP2 to file loss claim of Rs. 11,60,251/-.
2.4 After, receipt of claim request of complainant, the OP2 had appointed its surveyor, The complainant furnished all requisite information and documents on receipt of letter dated 18.8.2016, however, instead of concluding the claim, then another letter dated 27.03.2017 was issued seeking further information, it was also provided. Then OP changed the investigator/surveyor, then new surveyor issued another letter dated 14.06.2017 to provide more information, it was also provided but OP2 failed to process the claim on the one excuse or the other that claim is under process or claim will be released shortly, without assigning specific date and time.
The complainant did not receive any plausible response from OP2 till 22.07.2018, the complaint raised his valid issue to OP1 and sent an email and in its response the OP2 sent its email dated 25.07.2018 by raising two queries (i) that police failed to file the untraced report with respect to said vehicle (ii) there is an inordinate delay of 9 days in registration of FIR. The complainant replied their query of email, apart from informing that when it is case of robbery with physical assault and not case of theft for 'untraced report' and then OP2 requested that legal opinion is being sought by them.
2.5. Thereafter OP1 by its email dated 04.09.2018 offered to settle the claim of complainant on non-standard basis for an amount of Rs.8,69,188/- for aforementioned two reasons. However, complainant refused their offer of 'on non-standard basis' by email reply dated 4.9.2018, besides giving explanations and reasons for delay in registering FIR because of preliminary inquiry by police. The OP2 was also provided letter duly signed and sealed by SHO, PS
Gang Nehar, explaining the reasons for delay in registering FIR but OP1 did not agreed to the reasons. OP1 repudiated the claim of the complainant vide its email dated 23.10.2018 on two grounds (i) that there is delay of 9 days in registration of FIR (ii) incident was intimated to the OP on 11.08.2016, which is after 5 days. Since, Complainant was feeling not satisfied to stand of OP1, he took the issue before the Ombudsman of Insurance Company. Then, on complaint to the Ombudsman, the claim of the complainant was reopened.
2.6 The complainant started pursuing his claim and after his repeated follow up, it was 23.01.2019 , when OP1's officer Mr. Amit Kumar, informed the complainant by email that the driving licence of the driver at the time of incident was found fake and secondly there is delay in registration of FIR, therefore claim of the complainant is repudiated. Whereas reasons for delayed FIR were explained, supplemented with letter of concerned SHO, P.S. Gang Nehar, where investigation was done. Further, the issue of fake driving licence was taken first time that too after lapse of two and half years from the date of filing the claim. Then complainant through his Advocate was constraint to send legal notice dated 19.02.2019 to OPs to reimburse claim and OP1 through its officer Mr. Amit Kumar, sent a reply by email to complainant's Advocate on 19.03.2019 by informing that claim of the Complainant was repudiated by letter dated 05.02.2019.
2.7 The complainant seeks award of insurance claim of Rs. 11,60,251/- if its favour and against OPs on account of deficiency of services, apart from interest @ 18% pa from the date of claim lodged on 11.08.2016, compensation of Rs. 2,00,000/- on account of mental and physical harassment, cost of Rs. 1,00,000/- apart from other relief.
2.8. The complaint is accompanied with record of insurance policy, goods consignment note, RC, driver licence of driver, road permit, fitness certificate, copy of claim, copy of letters dated 18.08.2016, 27.03.2017 and 14.06.2017 issued by Investigator, copies of emails dated 23.01.2019, 15.02.2019, 13.03.2019 and one more email dated 25.07.2018, 31.08.2018, 01.09.2018, 25.07.2018 (which include correspondence of repudiation on 5.2.2019 and also reopened of case), copy of FIR with charge-sheet and current status of proceedings on e-court, copy of legal notice apart from copy of loan account statement issued by M/s Sundram Finance & NOC/no dues certificate.
3. (Evidence)-The complainant led evidence by filing his detailed affidavit, it is supported with entire documents filed with the complaint. Moreover, the complainant has also led additional evidence by affidavit supplemented with physical copy of repudiated letter dated 05.02.2019 (although it forms part of correspondence/emails already filed), then evidence was closed.
4.1 (Final hearing)- The complainant filed written arguments followed by oral submission by Sh. Karamvir Kamal, Advocate for complainant. The written arguments and oral submissions are admixture of the material on record in the form of narration given in evidence coupled with case law to fortify case of complainant. Moreover, written arguments has also been filed repeatedly, by referring/adding/updating case law on behalf of complainant.
4.2. The complainant supplements that OP has raised the two issues, but they are already settled, even by law, complainant drives reasons from the following:-
(i) Nirmala Kothari Vs. United India Insurance co. Ltd. ( Civil appeal No. 1999-2000 of 2020, "para 11. While hiring a driver the employer is expected to verify if the driver has a driving licence. if the driver produces a licence which on the face of it looks genuine, the employer is not expected to further investigate the authenticity of the licence unless there is a cause to believe otherwise. it would be unreasonable to place such a high onus on the insured to make inquiries with RTO all over the country to ascertain the veracity of driving licence'. [ it is contended that the Hon'ble Supreme Court of India allowed the appeal filed by the Insurer Nirmala Kothari).
(ii) Om Prakash Vs. Reliance General Insurance & Anr. [civil appeal No. 15611 of 2017], on the point of delay in filing FIR, it is held in 'paragraph-11' "It is common knowledge that a person who lost his vehicle may not straight away go to the insurance company to claim compensation. At first, he will make efforts to trace the vehicle. it is true that the owner has to intimate the insurer immediately after the theft of the vehicle. However, this condition should not bar settlement of general claims particularly when the delay in intimation or submission of documents is due to unavoidable circumstances. The decision of the insurer to reject the claim has to be based on valid grounds. Rejection of the claim on purely technical grounds in a mechanical manner will result in loss of confidence of policy holders in the insurance industry. If the reason for delay in making a claim is satisfactorily explained, such a claim cannot be rejected on the ground of delay. (it is supplemented that the Supreme Court therein allowed the Appeal filed by insurer).
(iii) Sh. Chand Vs. Ms/ National
Insurance company Ltd. & An. (Complaint no.323/2012 ) held that if delay in filing FIR is explained properly, then insurance company is duty
bound to settle the claim of the insurer.
(iv) Jitendra Kumar Vs. Oriental Insurance Co. Ltd. & an. (civil appeal No.
4647 of 2003) held that irrespective of the fact that driving licence is
found fake during investigation by the insurance company the insurance
company cannot deny the claim, if driver of the vehicle is not responsible for the act
5.1 (Findings)- The case of complainant [as mentioned in the complaint and supported by documents, followed by written and arguments fortifying with case law] is assessed, analyzed and considered besides the documentary record, emails, repudiation letters issued by OPs and proved by the complainant.
At the outset, the relationship of the complainant and the OPs are of Insured and the Insurer, the date of incident is of 06.08.2016, this is within the tenure of insurance policy w.e.f. 13.03.2016 to 12.03.2017. The complainant has also proved that the vehicle was under finance as it was hypothecated with M/s Sundram Finance Limited, however, the has repaid entire loan amount and that is why no dues certificate was issued by the said financer, which stands proved. To say, there is a short and narrow dispute left to be adjudicated inter-se the complainant and OPs whether or not the complainant is entitlement for reimbursement of total loss and other relief claimed.
5.2.1. Firstly, point of registration delayed FIR is taken, since the OP had took strong objection in its repudiation letter dated 23.10.2018 and after re-opening of the claim similar objection was taken in other repudiation letter dated 05.02.2019. The complainant in his specifically proved evidence have established that police was immediately informed and the victim driver was also managed to be taken to the concerned police station Gang Nahar, Uttrakhand, after the episode of 06.08.2016. The complainant along-with driver informed the incident to the police, then State machinery came into action, however, the formal FIR was registered on 13.08.2016 after preliminary inquiry by police. The SHO, PS Gang Nahar has also issued letter to this effect that FIR was formerly registered on 13.08.2016. No fault can be attributed to the complainant on this score of registration of FIR at later point of time and OPs cannot any drive any benefit that there was delay of 9 days. The law laid down in Om Prakash Vs. Reliance General Insurance Company Ltd. & Ors. (supra) applies to situation in hand as circumstances are explained satisfactorily. When the Insurer is a nationalized company but simultaneously the Police is a wing of State machinery.
5.2.2. The complainant also informed the agent of insurance company immediately when the complainant could not contact the driver and later-on after reaching the spot and then at police station, again the said agent of OPs were informed of the episode followed by information in writing, therefore, OPs cannot drive any benefit that there was delay of 5 days in informing the insurer on 11.8.2016. It was a phase, when police was already informed of episode and police was conducting its preliminary inquiry. Accordingly, this contentions/objection raised by OPs in their correspondence etc. stand disposed off.
5.2.3. One more aspect is appearing from the correspondence that OPs have been asking for 'untraced report' from complainant. Whereas, the police had filed charge-sheet under FIR no. 75/2017, State Vs. Mahboob Guliya PS Gang Nahar, various heads of section 328, 242, 392, 265, 411 IPC, which is pending trial in the concern court. When there is charge-sheet, it means the culprits were traced and sent for trial, then how it could be an 'untraced case' vis-à-vis the denial of claim on this reason is not tenable under the law. The 'untraced case' means the case could not be solved by the police, however, it happens culprits are arrested by police while solving the case but booty or property is not recovered for one reason or more. The OPs also took shelter that legal opinion was being sought by them on the point of 'untraced case', but there was no response or intimation to the complainant as to what legal opinion was received by the OPs to proceed with claim of complainant. The plea of OPs on point of 'untraced report', appearing from the record, is also not tenable under the law. It also stands disposed off.
5.2.4. The other objections taken in the second repudiation letter dated 05.02.019 is that the driving licence of the driver, who was driving the vehicle at material time, was found fake. It was protested by the complainant on various counts, firstly, in the first repudiation letter dated 23.10.2018 no such plea was mentioned, secondly, the investigator was changed from time to time and all of them were furnished necessary information and record, there was never any such objection by any of them. However, lately, in order to decline valid claim, this objection was taken, which is not tenable in view of the law settled in Nirmala Kothari Vs. United India Insurance Company Limited (supra), since the complainant employed driver after taking driving licence from the driver etc, to satisfy skill in driving, the driver licence has been proved on record.
The aforementioned contention of complainant carries weight since the OPs have been taking different stand like a rolling stone that initially there were different surveyors, who had investigated the matter thoroghly and in the first repudiation letter there was no such reason mentioned but introduced subsequent in repudiation letter. In addition, there is no record or clarification in the repudiation letter as to how the said driving licence was fake. This issues is decided against the OPs.
5.2.5. By taking into account stock of all the discussion and aforementioned conclusions, it appears that OPs have taking the matter in a very casual way by resorting to different reasons for repudiation from time to time, some of them were even not tenable as despite informing of filing the charge-sheet by police in the court, the OPs were asking complaint to file 'untraced report', which is against norms of a professional entity of insurance company and then despite knowing that the complainant informed the police immediately and surveyors were provided with the letter issued by SHO of concern police station for reasons of preliminary inquiry before registration of formal FIR, the OPs took into account just two dots of 'date of incident' and 'date of registration of formal FIR', without taking cognizance of letter issued by SHO and the situation that State machinery is doing its function within the parameter of law but OPs were blaming the complainant for registration of delayed FIR and repudiated the claim. Subsequently, a new ground was introduced of fake driving licence without substantiating it as well as the different surveyors appointed from time to time had not taken objections on this count, otherwise the law laid down in Jitender Kumar Vs. Oriental Insurance Company (supra) favours the complainant. Under these circumstances, denial of valid claim amounts to deficiency of services and against the norms of insurance policy.
5.3. Consequently, it is held the complainant has proved his case of deficiency of services against OPs that despite total loss of the insured truck/ vehicle by way of robbery coupled with abduction of driver and administering him some substance to make him unconscious. The vehicle could not be recovered by police but charge-sheet was filed, which could be filed under law. The complainant-insured was not released the claimed amount of total loss equivalent to IDV of Rs.11,60,251/-by OPs. Therefore, the complainant is held entitled for sum insured/IDV of Rs. 11,60,251/- in his favour and against the OPs.
5.4: The complainant also claimed interest of 18% pa, however, there is no agreed rate of interest, therefore, interest @ 6% pa from the date of complaint till realization of amount in favour of complainant and against OPs will meet both ends.
5.5. The complainant claims compensation of Rs. 2,00,000/- in lieu of physical and mental harassment by OPs and litigation charges of Rs.1 lakh. The compensation has been claimed since complainant faced many difficulties, inconvenience and hardship while approaching the OPs & other authority for seeking reimbursement of its valid claim of total loss of vehicle, however, claim was not paid. The procedure prescribed is that when charge-sheet is filed against culprits in the court the investigation ceases but trial is pending in the court regarding episode happened, but OP2 is writing as if investigation is pending or untraced report is not presented as yet and so, it prolonged the claim process and then 'proposal was made to complainant for non-standard settlement.
Further, when case was reopened after filing complaint before Ld. Ombudsman, then OP introduced a new ground of fake driving licence of the driver, which was not so in the previous ground for repudiation of claim. Whereas OP is a professional Insurance company/entity, it took services of surveyors at its disposal. Considering this situation and the circumstances happened, which are speaking themselves about deficiency of services on the part of OPs and trauma cased to the complainant, the complainant is entitled for compensation, which is quantified as Rs. 35,000/- in his favour and against the OPs. Moreover, cost of Rs. 15,000/- is determined and allowed in his favour and against OPs.
6. Accordingly, the complaint is allowed in favour of complainant and against the OPs to reimburse/pay total loss amount of Rs.11,60,251/- along-with simple interest at the rate of 6% pa from the date of the complaint till realization of amount besides compensation/ damages of Rs.35,000/- and costs of Rs.15,000/-.
OPs are also directed to pay the amount within 30 days from the date of receipt of this order. In case amount is not paid within 30 days from the date of receipt of order, the rate of interest will be 8% pa [instead of 6%pa] on amount of Rs.11,60,251/-.
7. Announced on this 3nd August 2023 [श्र!वण 12, साका 1945].
8. Copy of this Order be sent/provided forthwith to the parties free of cost as per rules for necessary compliance.
[Vyas Muni Rai] [ Shahina] [Inder Jeet Singh]
Member Member (Female) President
