Order by:
Sh.Amrinder Singh Sidhu, President
1. This Consumer Complaint has been received by transfer vide order dated 26.11.2021 of Hon’ble President, State Consumer Disputes Redressal Commission, Punjab at Chandigarh under section 48 of CPA Act, vide letter No.04/22/2021/4 C.P.A/38 dated 17.1.2021 from District Consumer Commission, Ludhiana to District Consumer Commission, Moga to decide the same in Camp Court at Ludhiana and said order was ordered to be affected from 14th March, 2022.
2. The complainant has filed the instant complaint under section 12 of the Consumer Protection Act, 1986 (now section 35 of Consumer Protection Act, 2019) on the allegations that he purchased Mobile Phone having Model “Letv’ from Opposite Party No.2 vide Invoice No.RI-32884 dated 20.11.2016 for Rs.18,000/- IMEI No. 869635026572704 and said Mobile Set in question was insured under Smart Suraksha Plan Gamma (1799) on receipt of lump sum premium of Rs.1800/- with Opposite Party No.1 covering the risk of theft, accident etc. for a sum of Rs.18,000/-. Further alleges that said Mobile Set in question was given by the complainant to one Raju Kumar Jha and at that time, Sim No. 700989232 was containing in the said Mobile Set in question. On 30.01.2017 when said Raju Kumar Jha was coming from Sherpur Chowk Ludhiana to his house, he suddenly received a call and after stopping his bike, he was taking on the said Mobile Set in question then two unknown persons came from the backside and snatched the Mobile Set in question and immediately, said Raju Kumar Jha reached the Police Station, Division No.7, Ludhiana for reporting the matter where DDR No. 33 dated 31.01.2017 was registered. Thereafter, on account of loss, the complainant lodged the claim with Opposite Party No.1, but the Opposite Party No.1 did not pay any heed to the request of the complainant. As such, there is deficiency in service on the part of the Opposite Parties. Vide instant complaint, the complainant has sought the following reliefs.
a) The Opposite Parties may be directed to pay Rs. 18,000/- being the sum assured of Mobile Set in question and also pay Rs.10,000/- on account of compensation due to mental tension and harassment caused by the complainant and also to pay any other relief to which this District Consumer Commission may deem fit be also granted.
3. Opposite Party No.1 appeared through counsel and contested the complaint by filing the written version taking preliminary objections therein inter alia that the complaint filed by the complainant is not maintainable and is liable to be dismissed as the complainant has attempted to misguide and mislead this District Consumer Commission. It is submitted that on receipt of the claim, the Opposite Party No.1 scrutinised the claim documents and applied their mind and rejected the claim of the complainant on the ground that this case was rejected due to SIM was not barred with any policy time period and they received the DDR instead of FIR and hence, there is no deficiency in service on the part of Opposite Party No.1 and prayed for the dismissal of the complaint.
4. None has come present on behalf of Opposite Party No.2, so Opposite Party No.2 was proceeded against exparte.
5. In order to prove his case, the complainant has tendered into evidence his affidavit Ex.CA alongwith copies of documents Ex.C1 to Ex.C5 and closed the evidence on behalf of the complainant.
6. On the other hand, to rebut the evidence of the complainant, Opposite Party No.1 also tendered into evidence the affidavit of Ex.RA alongwith copies of documents Mark 1 to Mark 12 and close the evidence.
7. We have heard the ld.counsel for the parties and also gone through the documents placed on record.
8. Ld.counsel for the Complainants as well as ld.counsel for the Opposite Party No.1 has mainly reiterated the facts as narrated in the complaint as well as in their written statement respectively. We have perused the rival contention of the ld.counsel for the parties. The only contention of the complainant is no such terms and conditions were every supplied or conveyed to the complainant at the time of issuance of policy regarding the Mobile Set in question by Opposite Party No.1, so alleged terms and conditions are not applicable to the facts of the present case. On the other hand, ld.counsel for the Opposite Party No.1 has repelled the aforesaid contention of the ld.counsel for the Opposite Party No.1 on the ground that on receipt of the claim, the Opposite Party No.1 scrutinised the claim documents and applied their mind and rejected the claim of the complainant on the ground that this case was rejected due to SIM was not barred with any policy time period and they received the DDR instead of FIR and hence, there is no deficiency in service on the part of Opposite Party No.1. Perusal of the record shows that admittedly, the complainant has purchased the Mobile Set in question from Opposite Party No.2 for a sum of Rs.18,000/-, copy of the bill is placed on record as Ex.C1, said Mobile Set in question was got insured by the complainant from Opposite Party No.1 against the paid up premium of Rs.1800/-. The main contention of the Opposite Party No.1 for the rejection of the claim of the complainant is that the claim of the complainant was rejected on the ground that this case was rejected due to SIM was not barred with any policy time period and they received the DDR instead of FIR. First of all, we of the view that there is no difference of DDR and FIR, it is upon the police authority. The only duty of the complainant is to inform the concerned police authority regarding the occurrence which the complainant has done immediately to the concerned police station and they lodged the DDR in this regard. The next plea raised by Opposite Party No.1 is that the complainant has violated the terms and conditions of the policy in question and as per the terms and conditions of the policy, the complainant is not entitled to the claim as claimed. But the Opposite Party No.1 could not produce any evidence to prove that terms and conditions of the policy were ever supplied to the complainant insured, when and through which mode? It has been held by Hon’ble National Commission, New Delhi in case titled as The Oriental Insurance Company Limited Vs. Satpal Singh & Others 2014(2) CLT page 305 that the insured is not bound by the terms and conditions of the insurance policy unless it is proved that policy was supplied to the insured by the insurance company. Onus to prove that terms and conditions of the policy were supplied to the insured lies upon the insurance company. From the perusal of the entire evidence produced on record by the Opposite Party, it is clear that Opposite Party has failed to prove on record that they did supply the terms and conditions of the policy to the complainant insured. As such, these terms and conditions, particularly the exclusion clause of the policy is not binding upon the insured. Reliance in this connection can be had on Modern Insulators Ltd.Vs. Oriental Insurance Company Limited (2000) 2 SCC 734, wherein it is held that “In view of the above settled position of law, we are of the opinion that the view expressed by the National Commission is not correct. As the above terms and conditions of the standard policy wherein the exclusion clause was included, were neither a part of the contract of insurance nor disclosed to the appellant, the respondent can not claim the benefit of the said exclusion clause. Therefore, the finding of the National Commission is untenable in law.” Our own Hon’ble State Commission, Punjab, Chandigarh in First Appeal No.871 of 2014 decided on 03.02.2017 in case titled as Veena Mahajan (Widow) and others Vs. Aegon Religare Life Insurance Company Limited in para No.5 has held that
“Counsel for the appellant argued that copy of insurance policy was not supplied to the appellant and hence, the exclusion clause in the contract of the insurance policy is not binding upon him. He further argued that no proof of sending of insurance policy was ever produced by the respondent despite specific contention raised by the complainant that the insurance policy was never received by him. He argued that though there is an averment of the OP that the policy in question was delivered through Blue Dart Courier to the complainant. In order to prove their contention, no affidavit of any employee of Blue Dart was produced who would have made a statement to have the effect that the policy was delivered to the complainant nor any acknowledgement slip for having received the article by the complainant through courier company was produced by the insurance company. He argued that since no policy document was received by the insured and argued that the terms and conditions as alleged to be part of the insurance policy were not binding upon the insured. He argued that policy was issued in the name of deceased Sh.Vijinder Pal Mahajan with his wife Mrs.Veena Mahajan as beneficiary and the same was never refused by the OP and the proper premium for insurance was paid by late complainant. He argued that as per the specific allegations made in the complaint in para No.4, no rebuttal to that contention was specifically there in their written reply in para No.2 and para No.4 in the reply filed by OP in the District Forum. He argued that Hon'ble National Consumer Disputes Redressal Commission, New Delhi in case of "Ashok Sharma Vs. National Insurance Co. Limited", in Revision Petition No. 2708 of 2013 held in para No.8 to the point of non-delivery of terms and conditions of the policy. He also cited Hon'ble Supreme Court's decision given in the matter of "United India Insurance Co. Limited Vs. M.K.J.Corporation" in Appeal (civil) 6075-6076 of 1995 (1996) 6 SCC 428 wherein the Apex court held that a fundamental principle of Insurance Law makes it that utmost good faith must be observed by the contracting parties. Good faith forbids either party from concealing what he privately knows, to draw the other into a bargain, from his ignorance of that fact and his believing the contrary. Just as the insured has a duty to disclose, "similarly, it is the duty of the insurers and their agents to disclose all material facts within their knowledge, since obligation of good faith applies to them equally with the assured and further argued that since the terms and conditions were not supplied even on repeated requests the same cannot be relied upon by the opposite party in order to report to repudiate the genuine claim of the wife of the deceased policy holder.”
9. In such a situation the repudiation made by Opposite Party -Insurance Company regarding genuine claim of the complainant have been made without application of mind. It is usual with the insurance company to show all types of green pasters to the customer at the time of selling insurance policies, and when it comes to payment of the insurance claim, they invent all sort of excuses to deny the claim. In the facts of this case, ratio of the decision of Hon’ble Apex Court in case of Dharmendra Goel Vs. Oriental Insurance Co. Ltd., III (2008) CPJ 63 (SC) is fully attracted, wherein it was held that, Insurance Company being in a dominant position, often acts in an unreasonable manner and after having accepted the value of a particular insured goods, disowns that very figure on one pretext or the other, when they are called upon to pay compensation. This ‘take it or leave it’, attitude is clearly unwarranted not only as being bad in law, but ethically indefensible. It is generally seen that the insurance companies are only interested in earning the premiums and find ways and means to decline claims. In similar set of facts the Hon’ble Punjab & Haryana High Court in case titled as New India Assurance Company Limited Vs. Smt.Usha Yadav & Others 2008(3) RCR (Civil) Page 111 went on to hold as under:-
“It seams that the insurance companies are only interested in earning the premiums and find ways and means to decline claims. All conditions which generally are hidden, need to be simplified so that these are easily understood by a person at the time of buying any policy. The Insurance Companies in such cases rely upon clauses of the agreement, which a person is generally made to sign on dotted lines at the time of obtaining policy. Insurance Company also directed to pay costs of Rs.5000/- for luxury litigation, being rich.
10. In view of the above discussion, we hold that the Opposite Party No.1-Insurance Company have wrongly and illegally rejected the claim of the complainant.
11. Keeping in view of the aforesaid facts and circumstances of the case, we partly allow the complaint of the Complainant and direct Opposite Party No.1-Insurance Company to pay the insured amount of Rs.18,000/- (Rupees eighteen thousands only) i.e. price of Mobile Set in question, to the complainant directly alongwith interest @ 8% per annum from the date of filing the present complaint i.e. 08.12.2017 till its actual realization. The compliance of this order be made by Opposite Party No.1-Insurance Company within 60 days from the date of receipt of copy of this order, failing which the complainant shall be at liberty to get the order enforced in accordance with law. Copies of the order be furnished to the parties free of cost by District Consumer Commission, Ludhiana and thereafter, the file be consigned to record room after compliance.
12. Reason for delay in deciding the complaint.
This Consumer Complaint was originally filed at District Consumer Disputes Redressal Forum (Now Commission) at Ludhiana and it keep pending over there until Hon’ble State Consumer Disputes Redressal Commission, Punjab vide letter No.04/22/2021/4 C.P.A/38 dated 17.1.2022 has transferred the instant Consumer Complaint alongwith Other Complaints to District Consumer Commission, Moga with directions to work on this file onward from 14th March, 2022 and accordingly District Consumer Commission, Moga has decided the present complaint at Camp Court, Ludhiana, as early as possible as it could decide the same
Announced in Open Commission at Camp Court, Ludhiana.
Dated:29.06.2022.
