Punjab

Ludhiana

CC/19/301

Rajan Modgil - Complainant(s)

Versus

New India Assurance Co. - Opp.Party(s)

M.S.Sethi Adv.

24 Mar 2023

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, LUDHIANA.

                                                Complaint No:301 dated 20.06.2019.                                                        Date of decision: 24.03.2023.

Rajan Modgil S/o. Surinder Kumar, R/o. B-29-17-6/917, St. No.27, W. No.63, Preet Nagar, Ludhiana-141002.        

..…Complainant

                                                Versus

1. The New India Assurance Co. Ltd., Regd. &       Head Office at 87, M.G. Road, Fort Mumbai-400001 through authorized signatory.
2. The New India Assurance Co. ltd., Divisional Office – V (361700), G.T. Road, Miller Ganj, Ludhiana-141001 through authorized signatory.
3. M/s. Indusind Bank Ltd., SCO 12-13, Canal Colony, Near NRI Silk Store, Pakhowal Road, Ludhiana through its GPA holder Manjot Singh s/o. Amarjit Singh.                           

.….Opposite parties.

Complaint Under Section 12 of the Consumer Protection Act.

QUORUM:

SH. SANJEEV BATRA, PRESIDENT

SH. JASWINDER SINGH, MEMBER

MS. MONIKA BHAGAT, MEMBER

COUNSEL FOR THE PARTIES:

For complainant            :         Sh. M.S. Sethi, Advocate. 

For OP1 to OP3             :         Sh. R.K. Chand, Advocate.

For OP4                         :         Ms. Veena Bhardwaj, Advocate.

ORDER

PER SANJEEV BATRA, PRESIDENT

1.                Succinctly put, the facts of the case are that the complainant hired services of opposite party No.2 for insuring his car Maruti Swift Dezire bearing registration No.PB10-FS-8635 for second period w.e.f. 20.06.2017 12.52.00 PM to 19.06.2018 11.59.59 PM on payment of premium of Rs.17843/- against insured declare value of Rs.5,50,000/-. Opposite party issued two pages insurance policy schedule cum certificate of private car  enhancement cover policy dated 23.05.2017 bearing policy No.36170031170300000904 and customer ID PO50365505 (Ex. C1 and Ex. C2). The complainant submitted that on 26.03.2018, driver Bhupinder Singh plied the car for leaving known person of the father of the complainant (Head Constable in Punjab Police) for Agra and after leaving such person to Agra while returning alone back to Ludhiana, the said driver visited his sister at Badarpur, New Delhi but he forget the way/location of his sister’s residence. He stopped the car at Ambedkar Chowk Madangiri BMT Road to verify the location/road and after locking the door of the car, he visited nearby to knowing the way but on returning back he found that the car was not at that place. Due to non working of server, driver failed to register complaint online which was being registered online later on but immediately information to PS Ambedkar Nagar was given by the driver regarding theft of the car with original driving license and original RC and original insurance policy but the online FIR was entertained by E-police station Adarsh Nagar, North West only on 31.03.2018 (Ex. C3) which was registered by Surinder Singh, father of the complainant. The complainant further submitted that the opposite parties appointed Sh. R.K. Narwana on receiving information of theft of the car who vide letter dated 30.05.2018 asked the complainant to submit insurance policy, RC, 2 original keys and ID proof of driver (Ex. C4). However, the investigator acted illegally and submitted wrong and false report that he failed to trace out the address of residence of sister of the driver due to supply of wrong address by the driver and again address of sister of driver was sent vide registered letter dated 30.08.2019 to the investigator. Thereafter opposite party no.3 vide its letter dated 06.11.2018 (Ex. C6) under sr. No. 1 to 8 also asked the complainant to submit NCRB report, toll plaza receipt or some other proof for the existence of vehicle in Delhi at the time of theft, second key of the car, letter to RTO for block the RC, invoice copy of the vehicle, NOC by financier, currant address of driver's relative sister, mobile number & name of passengers travelling in the car from Ludhiana to Agra etc. The complainant submitted that he got NCRB report dated 29.11.2018 (Ex. C7) and complainant vide its letter dated 03.12.2018 (Ex. C8) submitted certain documents and clarification. However, he was not in custody of toll plaza receipt because of passing of long period after theft but despite of informing such fact, opposite party insisted for toll plaza receipt then complainant through application dated 11.01.2019 sought copy of toll receipt dated 26.03.2018 from toll plaza authority for car number PB1O-FS-8635 but they denied to supply the same on the ground that there is no provision of generation of duplicate toll tax received once a transaction is completed in their system (Ex. C9 & Ex. C10). However, despite of supplying information as received from toll plaza authority (Ex. C9 & C10) opposite party No. 3 vide its letter dated 29.04.2019 (Ex. C11) informed the complainant that "Due to some discrepancies because of non supply of claim documents, as toll plaza receipts of some other proof for the existence of vehicle in Delhi at the time of theft, 2nd key of the vehicle and NOC from financier for non possession of the vehicle and loan account statement hence case file has been closed as no claim.”

                   The complainant further submitted that the investigator as appointed by opposite parties was not a competent and authorized investigator by IRDA. Only licensed surveyor as authorized by IRDA is competent to conduct preliminary investigation and further he was an ex Manager of the opposite parties as such his appointment is also against the section 64UM of Insurance Act, 1938. Further section 9 of regulation 2002 of IRDA (for Protection of policy holders interest) also speaks appointment of surveyor hence his appointment by opposite parties is against the norms/rules of IRDA & Act.  The investigator never visited concerned police station to verifying the creditability of facts narrated by driver or complainant. No statement of official of said police station was recorded. The said investigator never visited concerned toll plaza to verifying the toll receipt dated 26.03.2018 nor demanded the same in time from the complainant rather opposite party no. 3 vide its letter dated 06.11.2018 claimed first time toll plaza receipt which was duly clarified by the complainant and thereafter also supply the letter at 18.04.2019 issued by toll plaza authority for refusing to supply the same as such closing the file as no claim on this ground is illegal, arbitrary. The complainant further stated that taking defense for closing case file as no claim on the ground of non supplying of 2^nd key of the car is not a valid and justifiable because complainant vide its letter dated 03.12.2018 already disclosed to the opposite party no. 3 that he had already handed over the key to the investigator and now he is not in possession of any key but despite of this, opposite party no. 3 illegally insisted upon 2^nd key as such just on ground of discrepancy for non supply of 2^nd key which was not in possession of the complainant, claim cannot be denied on this ground. The Insurance Company is liable to indemnify the owner of the vehicle when the insurer has obtained comprehensive policy for the loss caused to the insurer even assuming that there was a breach of condition of the insurance policy for keeping key in the car or misplacing etc although same has not pleaded in the letter dated 29.04.2018, the Insurance company ought to have settled the claim on non-standard basis. The Insurance Company cannot repudiate the claim in toto in case of loss of vehicle due to theft." Otherwise if it is presumed that driver of the complainant was himself negligent resulting stolen of the car even then opposite parties have no right to close the claim as no claim because complainant has obtained comprehensive policy for the loss caused to the complainant as such opposite parties cannot repudiate the claim in toto in case of loss of vehicle due to theft," As such, the opposite parties have rendered deficient/negligent services on their part. The closing the file as claim on the defense that no some other proof for the existence of vehicle in Delhi at the time of theft was established by insured is not a solid and valid grounds because informing to nearby police station on the same very date as well as lodging of FIR and hereafter submitting NCRB report as well as no traceable report dated 04.08.2018 as accept by Saket Court, Delhi are sufficient material to established theft. The complainant further stated that it is not a case of the opposite parties that no information was given to police on the same day as well as no FIR was lodged. Further ore there is no statement of concerned police station that FIR was false one. In fact opposite parties or their so called investigator never verified from police station or from the site where theft took place as such informing police in time and thereafter registering FIR in any form, opposite parties are debarred to appoint any investigator to investigate whether theft took place or not hence closing claim file as no claim for not showing some other proof for the existence of vehicle in Delhi at the time of theft is amounts to rendering of deficient and negligent services and it is also amounts to unfair trade practice for denying genuine claim on false, illegal arbitrary grounds.

                   The complainant further stated that closing the claim file as no claim on the ground that NOC from the financer of non possession of the vehicle and loan account statement was not supplied is not a valid and legal because opposite party No.3 never verified the same at its own level rather asked the complainant to supply such information/statement. However, the complainant vide its letter dated 03.12.2018 already informed opposite party No.3 that financer had not issued any NOC as loan still pending. However, loan account statement was enclosed but despite of receiving account statement and well reasoned reply from the complainant, the act and conduct of opposite party No.3 for claiming such document/information amounts to deficiency and negligence in service and unfair trade practice. In the end, the complainant has prayed for declaring the letter of opposite party No.3 dated 29.04.2019 (Ex. C11) as illegal, arbitrary and baseless and for directing opposite parties to settle and pay the insured declare value of Rs.5,50,000/- of the vehicle with interest @12% per annum from date of theft i.e. 27.03.2018 till payment. The complainant also claimed compensation of Rs.1,00,000/- and litigation expenses of Rs.22,000/-.

2.                Upon notice, opposite party No.1 to 3 appeared and filed joint written statement took preliminary objections by assailing the complaint on the ground of jurisdiction; maintainability of the complaint; complaint barred under Section 26 of the Consumer Protection Act; the complainant is estopped by his own act and conduct; concealment of facts by the complainant and non impleadment of financer as party to the present complaint. The opposite parties alleged that the complainant lodged the claim with them regarding theft of Maruti Swift Dezire Car No.PB-10-FS-8632 and immediately on receipt of the claim, it was duly registered, entertained and processed. Mr. R.K. Narwara, Investigator was deputed for investigation and he investigated the matter and submitted his investigation report dated 24.10.2018 subject to the terms and conditions of the policy. Opposite party No.2 and 3 and the investigator requested the complainant to supply relevant documents but he has failed to submit the requisite documents. Opposite party No.3 sent a letter dated 06.11.2018 to the complainant requesting him to supply and docu7metns and reply to the query, contents of which is reproduced as under:-

          “With reference to claim on above mentioned policy, while      processing your claim file we found some discrepancies:-

1. Please provide toll plaza receipts or some other proof for the existence of vehicle in Delhi at the time of theft.
2. Current NCRB report.
3. Invoice copy of the vehicle.
4. 2^nd key of the vehicle.
5. Copy of letter to the RTO to block the RC.
6. NOC from the financer for Non possession of the vehicle and loan account statement.
7. Current address of driver’s relative and mobile number where he parked the vehicle for the verification for investigator.
8. Name of passengers travelling in the car from Ludhiana to Agra.

Please complete the above formalities within 7 days otherwise close the file as no claim.”

The opposite parties alleged that the complainant has received the said letter but even then he has failed to submit toll plaza receipts, second key of the vehicle, NOC from the financer for non-possession of the vehicle and loan account statement. The complainant was requested to submit the said documents within 7 days but he has failed to submit the same and his claim was closed vide letter dated 29.04.2019 as no claim on the ground of the said letter and letter dated 29.04.2019, contents of which are reproduced as under:-

“With reference to claim on above mentioned policy, while           processing your claim file we found some discrepancies:-

1. Please provide toll plaza receipts or some other proof for the existence of
2. 2^nd key of the vehicle.
3. NOC from the financer for Non possession of the vehicle and loan account statement.

As you are unable to provide the above claim documents and as per the investigation report the presence of the vehicle could not be established in Delhi by the insured. So we close the file as no claim.”

The opposite parties further alleged that the claim of the complainant was closed as No Claim on account of non-submission of documents despite repeated reminders and as such, there is no deficiency in service on their part. Moreover, the insurance policy is a contract between the insured and insurer and both the parties are bound by the terms and conditions of the insurance policy. The complainant has not complied with the terms and conditions of the policy and has not supplied the requisite documents and as such, the complaint is not maintainable.

                   On merits, opposite party No.1 to 3 reiterated the crux mentioned in the preliminary objections. Opposite party No.1 to 3 alleged that the complainant has intentionally not supplied toll plaza receipts or any other document showing that the said vehicle was in Delhi on the said date and the investigation reveals that there are discrepancies in the statements and story given by the complainant. The opposite parties further alleged that it might be possible that the vehicle was not in Delhi or the vehicle might have been used for hire or reward. The complainant has not supplied second key of the car and NOC from the financer for non-possession of the vehicle and loan statement so possibility cannot be ruled out that the vehicle has been taken into possession by the financer. The opposite parties further alleged that it might also be possible that the driver may left the key intact in the car which is negligence on his part and also violation of terms and conditions of the policy. The said documents were very much necessary for coming to the conclusion regarding genuineness of the claim. The opposite parties further alleged that Mr. R.K. Narwara is investigator and not surveyor and he is competent to investigate the matter. The opposite parties further alleged that the private car enhancement cover policy was issued to the complainant along with terms and conditions and all the terms and conditions are binding between the parties. The complainant has violated the terms and conditions of the policy and has also not given true and correct information in the complaint. The complainant and driver have also not disclosed true and correct facts to the investigator who has given reference of the same in his investigation report which also reveals that there was gross negligence of the driver as per his statement. Moreover, the complainant alleged that he has supplied the keys to the investigator but in statement dated 01.08.2018 the complainant alleged that he has already lost one of the key of the car and the driver has also given wrong phone number and address of his sister and as such, the information provided by driver and owner is totally false and not reliable. The opposite parties denied any deficiency in service on their part and in the end, a prayer for dismissal of the complaint has been made.

3.                During pendency of the complaint, Ms. Veena Bhardwaj, Advocate appeared and filed application dated 05.11.2019 under order 1 Rule 10 CPC for impleading M/s. IndusInd Bank Limited, financer as necessary party which was allowed vide order dated 05.02.2020 and M/s. IndisInd Bank Limited was arrayed as opposite party No.4 in the present complaint. However, opposite party No.4 did not file written statement and absented itself from the proceedings and was proceeded against exparte vide order dated 02.07.2021. Later on, opposite party No.4 filed application for setting aside exparte order and which was allowed vide order dated 19.07.2022 with permission to join the proceedings from the stage the complaint is pending at.

4.                In support of his claim, the complainant tendered his affidavit Ex. CA in which he reiterated the allegations and the claim of compensation as stated in the complaint. The complainant also tendered documents Ex. C1 is the copy of policy schedule cum certificate of insurance w.e.f. 20.06.2017 to 19.06.2018, Ex. C2 is the copy of registration certificate of vehicle No.PB10-FS-8635, Ex. C3 is the copy of FIR No.010303 dated 31.03.2018, Ex. C4 is the copy of letter dated 30.05.2018 written by the investigator to the complainant, Ex. C5 is the copy of postal receipt, Ex. C6 is the copy of letter dated 06.11.2018 of insurance company to complainant, Ex. C7 is the copy of the vehicle enquiry report, Ex. C8 is the copy of letter written by complainant to the insurance company, Ex. C9 is the copy of letter dated 18.04.2019 written by the insurance company to provide documents, Ex. C10 is the copy of letter dated 30.03.2019 of Jay Pee Infratech, Ex. C11 is the copy of letter dated 29.04.2019 written by insurance company to the complainant, Ex. C12 is the copy of untraced report dated 28.04.2018 and closed the evidence.

5.                On the other hand, the counsel for opposite party No. 1 to 3 tendered affidavit Ex. RW1/A of Ms. Punam Sharma, Manager, New India Assurance Company Ltd., Regional Office 108, Surya Tower, 4^th Floor, The Mall, Mall Road, Ludhiana as well as affidavit Ex. RW2/A of Sh. R.K. Narwara, Surveyor and Investigator along with documents Ex. R1 to Ex. R4 are the copies of letters dated 29.04.2019, 01.01.2019, 04.12.2018, 06.11.2018 written by the opposite parties to the complainant, Ex. R5 is the copy of investigation report dated 24.10.2018, Ex. R6 and Ex. R7 are the copies of photographs, Ex. R8 and Ex. R9 are the copies of emails, Ex. R10 is the copy of letter dated 30.05.2018 written by the investigator to the complainant, Ex. R11 is the cop[y of letter dated 03.08.2018 written by investigator to the complainant, Ex. R12 is the copy of postal receipt, Ex. R13 is the copy of letter dated 03.08.2018 written by the investigator to Bhupinder Singh, Ex. R14 is the copy of postal receipt, Ex. R15 is the copy of letter dated 03.08.2018/27.08.2018 written by the investigator to the complainant, Ex. R16 is the copy of postal receipt, Ex. R17 is the copy of letter dated 03.08.2018/27.08.2018/10.09.2018 written by the investigator to the complainant, Ex. R18 is the copy of postal receipt, Ex. R19 is the copy of  letter dated 01.08.2018 written by Bhupinder Singh to insurance company, Ex. R20 is the copy of letter dated 01.08.2018 written by the complainant to written statement, Ex. R21 is the copy of letter written by Bhupinder Singh to the investigator,  Ex. R22 is the copy of envelop, Ex. R23 is the copy of letter dated 16.10.2018 written by the complainant to investigator, Ex. R24 is the copy of policy schedule cum certificate of insurance w.e.f. 20.06.2017 to 19.06.2018, Ex. R25 is the copy of cover note, Ex. R26 is the copy of registration certificate of vehicle No.PB20-FS-8635, Ex. R27, Ex. R28 are the copies of FIR No.010303 dated 31.03.2018, Ex. R29 is the noting of police, Ex. R30 is the copy of claim form, Ex. R31 is the copy of ECS details, Ex. R32 is the copy of application of the complainant to RTO, Ludhiana to block the RC, Ex. R33 is the copy of Central KYC form for individual, Ex. R34 is the copy of NCRB report, Ex. R35 is the copy of letter written by the Yamuna Expressway Industrial Development Authority to the complainant, Ex. R36 is the copy of letter written by the complainant to the insurance company, Ex. R37 is the copy of letter written by the complainant to Yamuna Expressway Industrial Development Authority and closed the evidence.

6.                We have heard the arguments of the counsel for the parties and also gone through the complaint, affidavit and annexed documents and written statement produced on record by the parties. We have also gone through the written arguments on behalf of the complainant.

7.                There is no dispute with the fact that immediately the opposite parties were intimated by the complainant regarding the theft of the car. Sh. R.K. Narwara was appointed as investigator who investigated the matter and submitted his investigation report dated 24.10.2018. Perusal of letters Ex. R1 to Ex. R3 shows that the insurance company demanded the following documents from the complainant:-

1. Please provide toll plaza receipts or some other proof for the existence of
2. 2^nd key of the vehicle.
3. NOC from the financer for Non possession of the vehicle and loan account statement.

As you are unable to provide the above claim documents and as per the investigation report the presence of the vehicle could not be established in Delhi by the insured. So we close the file as no claim.”

It has been mentioned in the letter Ex. R1 that as you are unable to provide the above claim documents and as per the investigation report the presence of the vehicle could not be established in Delhi by the insured, so we closed the file as ‘no claim’. A close examination of these letters reveals that these letters were issued after the receipt of the claim supported by certain documents and only the pending documents were requisitioned through these letters. Moreover, non-submission of the documents cannot be made a sole ground to close the claim of the complainant. The insurance companies are required to be more liberal in their approach without being too technical.

8.                In this regard, reference can be made to 2022(2) Apex Court Judgment 281 (SC) in case title Gurmel Singh Vs Branch Manager National Insurance Company Ltd. whereby it has been held by the Hon’ble Supreme Court of India that the insurance company has become too technical while settling the claim and has acted arbitrarily. The appellant has been asked to furnish the documents which were beyond the control of the appellant to procure and furnish. Once, there was a valid insurance on payment of huge sum by way of premium and the Truck was stolen, the insurance company ought not to have become too technical and ought not to have refused to settle the claim on non­submission of the duplicate certified copy of certificate of registration, which the appellant could not produce due to the circumstances beyond his control. In many cases, it is found that the insurance companies are refusing the claim on flimsy grounds and/or technical grounds. While settling the claims, the insurance company should not be too technical and ask for the documents, which the insured is not in a position to produce due to circumstances beyond his control.

9.                Shriram General Insurance Co. Ltd. Vs Ramcharan Dhobi in 2017(1) CLT 557 passed by Hon’ble National Consumer Disputes Redressal Commission, New Delhi, this Commission is of the considered view that in the light of the guidelines issued vide IRDA circular 20.09.2011, it can be safely held that the insurance company cannot be allowed to reject the claim on technical grounds. Rather the rejection by the insurance company must be based on sound logic and valid grounds. In the instant case, so far as the non supply of the documents are concerned, as observed in the foregoing part of this order, the production of toll plaza receipts, 2^nd key of the vehicle and NOC from the financer etc. was not very relevant or germane to the claim which was based on the theft and on this ground the claim could not have been rejected in toto. No doubt, there has been violation of terms and conditions of the insurance policy by the complainant, but the same are not sufficient enough to reject the claim in its entirety. In the light of the facts and circumstances of the case and taking into consideration the law laid down in Shriram General Insurance Co. Ltd. Vs Ramcharan Dhobi (Supra), this Commission is of the considered view that it would be just and proper if the claim is partly allowed as there has been deficiency on the part of the complainant also who did not cooperate with the insurance company in supplying the requisite documents. As per policy Ex. C1 = Ex. R24 the insured declared value of the vehicle is Rs.5,50,000/-. Therefore, it would be just and appropriate if the claim of the insurance is allowed to the extent of 70% of the insured declared value of the vehicle.

10.              As a result of above discussion, the complaint is partly allowed with direction to opposite party No.1 to 3 to allow the insurance claim of the complainant to the extent of 70% of the insured declare value of Rs.5,50,000/- of the vehicle within 30 days from the date of receipt of copy of order failing which the complainant shall be held entitled to interest  @8% per annum from the date of order till actual payment.  The complainant is further held entitled to composite cost of Rs.10,000/- (Rupees Ten Thousand only) from opposite party No.1 to 3. Compliance of this order be made within 30 days from the date of receipt of copy of the order. However, the complaint as against opposite party No.4 is dismissed. Copies of order be supplied to parties free of costs as per rules. File be indexed and consigned to record room.

11.              Due to huge pendency of cases, the complaint could not be decided within statutory period.

(Monika Bhagat)          (Jaswinder Singh)                      (Sanjeev Batra)                          Member                            Member                                       President         

Announced in Open Commission.

Dated:24.03.2023.

Gobind Ram.

Rajan Modgil Vs The New India Assurance Co. Ltd.              CC/19/301

Present:       Sh. M.S. Sethi, Advocate for the complainant.

                   Sh. R.K. Chand, Advocate for OP1 to OP3.

                   Ms. Veena Bhardwaj, Advocate for OP4.

                   Arguments heard. Vide separate detailed order of today, the complaint is partly allowed with direction to opposite party No.1 to 3 to allow the insurance claim of the complainant to the extent of 70% of the insured declare value of Rs.5,50,000/- of the vehicle within 30 days from the date of receipt of copy of order failing which the complainant shall be held entitled to interest  @8% per annum from the date of order till actual payment.  The complainant is further held entitled to composite cost of Rs.10,000/- (Rupees Ten Thousand only) from opposite party No.1 to 3. Compliance of this order be made within 30 days from the date of receipt of copy of the order. However, the complaint as against opposite party No.4 is dismissed. Copies of order be supplied to parties free of costs as per rules. File be indexed and consigned to record room.     

(Monika Bhagat)          (Jaswinder Singh)                      (Sanjeev Batra)                       Member                     Member                                       President         

Announced in Open Commission.

Dated:24.03.2023.

Gobind Ram.