DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-II
Udyog Sadan, C-22 & 23, Qutub Institutional Area
(Behind Qutub Hotel), New Delhi-110016.
Case No.607/2008
Sh. Inderjit Singh
S/o Sh. S. Gurmit Singh,
231-B, Pocket-C, Sidharta Extension,
New Delhi-110014 ….Complainant
Versus
National Insurance Company Ltd.
Through its Branch Manager
Hauz Khas Branch
E-13, Main Market, Hauz Khas
New Delhi-110016 ……Opposite Party
Date of Institution : 22.09.08 Date of Order : 06.04.16
Coram:
Sh. N.K. Goel, President
Ms. Naina Bakshi, Member
O R D E R
Briefly stated, the case of the Complainant is that he had purchased a Toyata Corolla Car bearing registration No.DL-3CAA-4300 in the year 2004 which was insured by the OP vide policy No.360902/31/05/6100004 for the period 19.01.2006 till 18.01.2007. The insured value of the car was Rs.6,56,250/- and he paid a sum of Rs.10,057/- as premium. On 03.10.2006, his car was stolen from Khan Market parking and he immediately lodged an FIR No.215 dated 03.10.2006 with P.S. Tughlak Road. He also informed the OP regarding the theft of the vehicle and OP appointed a surveyor who carried out the necessary investigations. He submitted all the requisite papers with the OP including the “untraced report” dated 15.12.2006 issued by the police. He received a letter of repudiation dated 15.10.07 from the OP whereby his claim was rejected on the ground that theft of the vehicle was not possible without the original keys and as he had failed to hand over the third key, there was breach of term and condition No.5 of the insurance policy. He moved an application before the Insurance Ombudsman for redressal of his grievance. The Insurance Ombudsman after hearing the parties came to the conclusion that theft of the car was established and also there was no reason for the insurance company to repudiate the claim but his claim was allowed on sub-standard basis and the OP was directed to pay 60% of the IDV of the vehicle to the Complainant within 30 days. However, according to the complainant, the theft of the vehicle had been established beyond doubt and it has been brought on record that the vehicle could also start directly without using the ignition switch. Hence, the claim of the Complainant was liable to be allowed in totality alongwith due interest. Pleading deficiency in service on the part of OP, the complaint has been filed with the following prayers:-
- Direct the OP to pay to the Complainant a sum of Rs.6,56,250/-, the IDV of the insured vehicle.
- Direct to OP to pay an amount of Rs.1 lac towards mental agony and harassment.
- Direct the OP to pay to the Complainant Rs.50,000/- as cost of litigation.
- Direct the OP to pay interest at the rate of 24% on the above said amount.
OP in the written statement has inter-alia stated that the Complainant has already received the insurance amount in full and final settlement of all his dues, it is not the case of the Complainant that he had received the amount under coercion or under protest; the Hon’ble National Commission in the case tiled as Pooja Industries Vs. United India Insurance Company reported (1994) CPJ 105 (NC) has held that in the absence of evidence it cannot be held that the settlement was made under coercion. It is stated that the Surveyor wrote various letters dated 20.10.2006, 15.11.2006, 20.11.2006 and 16.12.2006 to the Complainant to furnish the required documents; that the Complainant submitted the duplicate keys but did not submit the third key of the insured vehicle and he replied vide his letter dated 30.12.2006 that third key could not be traced out at his residence. The Surveyor in his report clearly mentioned that without proper key the engine cannot start and accordingly theft of the vehicle without key is not viable. Thereafter the OP again deputed Sh. Mohindra Kumar Mittal, Investigator and Sh. Ashwani Sethi to get verify the fact that the vehicle cannot be stolen in the absence of original keys. In the report dated 30.04.2007 of Sh. Mohindra Kumar Mittal and report dated 19.07.2007 of Sh. Ashwani Sethi (copy annexure R-1) it is clearly mentioned that the vehicle cannot start without the keys by any means. If one of the master key is stolen then the vehicle is in the risk of theft. The matter was placed before the competent authority of the OP and they came to the conclusion that it was a clear cut violation of condition No.5 of the insurance policy, as the insured had failed to take reasonable safeguard to protect the vehicle. The possibility of theft due to involvement of the employee or any other known person by using the third key of the vehicle could not be ruled out and as such the claim of the Complainant was repudiated. Thereafter, the Complainant approached the Insurance Ombudsman for redressal of his grievance. After hearing both the parties, the insurance Ombudsman, vide its order dated 09.07.2008, has inter-alia held as under:-
“………. There was also negligence on the part of the Shri Inderjeet Singh who has not kept the 3rd key of the car in safe custody and has not been able to produce the same to the Insurance Company. There being a contributory factor by the Insured Shri Inderjeet Singh. I, therefore, pass the award that the claim may be settled as sub-standard claim and the Insurance Company should pay 60% of the IDV of the vehicle….”
OP has further stated that since the IDV of the vehicle was Rs.6,16,250/-, the OP as per the award of the Insurance Ombudsman paid an amount of Rs.3,92,750/- to the Complainant vide cheque No. 629662 dated 23.09.2008 in full and final satisfaction of his claim; the Complainant submitted a letter of subrogation duly executed on a non judicial stamp paper stating that he has received the amount of Rs.3,92,750/- in full and final settlement of his claim. Hence, the Complainant is not entitled to any relief. OP has prayed for dismissal of the complaint with special cost.
Complainant has filed rejoinder to the written statement of OP. It is stated as under:-
“…. that the amount that has been received by the Complainant was received without prejudice to further legal rights and the letter of subrogation being referred to was a necessary requirement of the insurance company prior to release of the payment which the Complainant needed urgently as he being in business was unable to bear the loss of his vehicle. Moreover, it is a settled principle of law as has been held by numerous judgments of the Hon’ble Supreme Court as well as the Hon’ble National Commission that mere execution of the discharge voucher by the insured as full and final settlement does not bar the insured from raising further claims against the insurer [ II (1999) CPJ 10 (SC); II (1997) CPJ 77 (NC)]. It is stated that the same is coercive bargaining and the insured in order to get payment has to succumb to the formalities of the insurers.”
Complainant has filed his own affidavit in evidence while affidavit of Sh. Gurmeet Grover, Sr. Divisional Manager has been filed in evidence on behalf of the OP.
Written arguments have been filed on behalf of the parties.
We have heard the arguments of the counsel for OP and have also gone through the file very carefully.
Complainant has not marked exhibit numbers on the documents as per the exhibit numbers given to them in the affidavit.
The only question which falls for consideration and decision is whether the complainant has received Rs. 3,92,750/- from the OP towards full and final settlement and, if so, to what effect?
It is an admitted fact that the complainant has filed the present complaint on or about 22.9.2008. The complainant was paid the above stated amount by the OP vide cheque dated 23.9.2008 and thereafter the complainant submitted the letter of subrogation thereby receiving the said amount in full and final settlement. However, Annexure. 9 is the copy of the letter sent by the complainant to the OP whereby he informed the OP that he had received the amount of Rs. 3,92,750/- without prejudice to his further legal rights as he had already filed a complaint before this Forum. The letter is dated 3.10.2008 and the same was received in the office of the OP on 3.10.2008 itself. Therefore, the complainant had submitted his protest with the OP at the earliest possible opportunity available with him. Therefore, we do not feel inclined to believe that the complainant had in fact received the said amount in full and final settlement.
It is an undisputed fact that the complainant had handed over only two keys to the OP after the theft of the vehicle in question and he did not handover the third key to the OP on the ground that the same was not traceable at his residence. The case of the OP is that the vehicle in question could not start without the key. However, on the other hand, the case of the complainant is that the vehicle in question could start without key. In its order dated 9.7.2008 (copy filed on record), the insurance Ombudsman also held that there was also negligence on the part of the complainant who had not kept the third key of the car in safe custody and was not able to produce the same to the OP and thus there was a contributory factor by the complainant. We do not see any reason to disagree with the said finding of the fact recorded by the Ombudsman. Therefore, in the facts and circumstances of the case discussed above, we are of the considered opinion that the grant of an amount of Rs. 3,92,750/- as claim on sub-standard basis by the OP to the complainant was justified. Therefore, the complainant has failed to prove any deficiency in service on the part of the OP.
In view of the above discussion, we dismiss the complaint with no order as to cost.
Let a copy of this order be sent to the parties as per regulation 21 of the Consumer Protection Regulations. Thereafter file be consigned to record room.
Announced on 06.04.16.
(NAINA BAKSHI) (N.K. GOEL) MEMBER PRESIDENT
Case No. 607/08
01.09.2015
Present – None.
Vide our separate order of even date pronounced, the complaint is dismissed. Let the file be consigned to record room.
(NAINA BAKSHI) (N.K. GOEL) MEMBER PRESIDENT
