Before  the District Consumer Dispute Redressal Commission [Central], 5th Floor                                         ISBT Building, Kashmere Gate, Delhi

                               Complaint Case No.-271/2017

Ram Sewak Prasad r/o House No. 336, MS Block

Pilli Kothi Jhuggi, Hari Nagar, New Delhi-110064                       ...Complainant

                                      Versus

OP1: The Oriental Insurance Co. Ltd

Through Regional Manager,

Service centre (NRO-02), 4E/14, Jhandewalan

Extn., Ground Floor, Azad Bhawan, Delhi-110055                         

OP2: Uphar Finvest Limited

Through its Managing Director

402, Sheetla House, 23-24, Nehru Place

New Delhi-110019                                                                      ...Opposite Party

                                                                   Date of filing :             20.11.2017

                                                                   Date of Order:             07.08.2023

Coram: Shri Inder Jeet Singh, President

              Shri Vyas Muni Rai,    Member

              Ms. Shahina, Member -Female

Vyas Muni Rai                                        

ORDER

1.1.  The present complaint has been filed by the complainant under section 12 of the Consumer Protection Act, 1986 against (1) Oriental Insurance Company Pvt. Ltd. (in short the OP1) And (2) Uphaar Finvest Limited (in short OP2).

1.2: The complainant in order to earn his livelihood purchased e-rickshaw for a sum of Rs. 1,07,100/- out of his saving and on loan; the e-rickshaw was insured from OP1 and was financed by OP2.

1.3. On 14.04.2017, the said e-rickshaw DL-4ER-1385 was stolen for which policy complaint was lodged and FIR was registered by P.S. Janakpuri vide FIR no. 11289 on 15.04.2017.

1.4. Untraced report was filed by P.S. Janakpuri on 06.05.2017 before the court of ACMM-01, South-West District; the report was accepted by Hon’ble Court.

1.5. The complainant filed claim with all the papers with OP1 seeking Rs. 1,01,745/-; OP1 issued letter cum show-cause notice dated 17.07.2017 requiring the complainant to furnish the copy of license and it was alleged in the notice as under:-

“we have received investigation report for claim under captioned vehicle. However, after going through your statement you have stated that you were driving the vehicle and had boarded passengers from Ghanta Ghar and again boarded passengers from Janakpuri and after dropping at Joginder Marg you dropped the vehicle and went for drinking water and after drinking water you found that the said vehicle was stolen.

As per your statement we observed that you were having learning driving license and you were driving the vehicle in contravention of the provision of Rule-3 of the Central Motor Vehicle Rules, 1989 since you were using the vehicle for carrying passengers.

Kindly submit valid driving license. Otherwise as per insurance policy terms and conditions, as you were using the vehicle for carrying passengers which is a violation of Motor Vehicle Act and basis on that this your claim is not tenable and repudiated. But before doing so, kindly let us have your clarification that why should your claim not to be repudiated. Kindly let us have your clarification within 15 days otherwise we shall close the file without any further notice.”

1.6. Complainant sent letter dated 27.07.2017 requesting OP1 to give 15 days time to produce the permanent licence. The complainant sent a reply to the show cause cum legal notice of demand dated 04.08.2017 through the counsel. The complainant also submitted a copy of judgment passed by Delhi State Consumer Disputes Redressal Forum in case title New Indian Insurance Company Ltd. Vs Dinesh Chander Parwal reported in I (2009) CPJ 230 [relevant portion of the judgment has been outlined in para 7 of the complaint that will be discussed at appropriate place in this order].

1.7. On hearing nothing from OP1, the complainant moved the RTI application on 11.09.2017 with OP1 requesting to supply the outcome of the claim filed by the complainant. On 14.10.2017, complainant visited the head office of OP1 and he was handed over reply to RTI and order rejecting the claim vide letter dated 02.08.2017.

1.8. OP1 repudiated the claim of the complainant on the ground of not possessing valid driving license when the vehicle was stolen. It is the case of the complainant that the vehicle was parked and was not having any passenger on board at the time of theft. Complainant has alleged deficiency of service against OP1 in wrongfully repudiating the valid claim and also adopting unfair trade practice by not serving the copy of repudiation letter dated 02.08.2017.

1.9. The complainant was having learning licence when the vehicle was stolen and the vehicle was parked at that time, thus valid claim of the complainant could not have been declined by OP1, requirement of the license is when the vehicle is being driven. The validity period of the insurance policy was from 16.03.2017 to 15.03.2018 with IDV of Rs. 1,01,745/- (copy of the insurance policy is at page 12 of the complainant’s paper-book). The person who insures his vehicle for the probable loss and theft does so that in case the vehicle is stolen in that eventuality insurance company shall compensate the loss caused by the theft. The copy of repudiation letter dated 02.08.2017 was not given to complainant and OP1 has to show the proof of the postal receipt of speed post and other service report by OP1 through which repudiation letter was sent. He further alleges that the repudiation order dated 02.08.2017 is manipulated after receipt of the legal notice cum show cause reply of 04.08.2017; repudiation letter is pre-dated. The complainant visited the office of OP1 regarding confirmation of claim after serving the show cause notice on his part; and came to know that no such repudiation order was passed till that date; but complainant was assured that his reply to show cause notice given  to OP1 and judgments annexed with the reply will be considered. Therefore, the purported repudiation letter dated 02.08.2017 had been created from back date, that is why, it was not served.

1.10. The complainant has prayed sum of Rs. 1,07,100/- from the date of the receipt of the claim (i.e. 08.05.2017) along with interest at the rate of 24% compounded quarterly after clearing the due of OP2, the claim of interest at the rate of 24% combined quarterly has been claimed from OP1 as he was paying the same rate of the interest toOP2 (the statement of account of loan from OP2 as on 2017 is at page 10 of the complainant’s paper-book); complainant has also prayed for compensation against OP1 for a sum of Rs. 50,000/- for causing mental harassment, anxiety and suffering by not serving copy of the order  (otherwise than through RTI) for repudiating the claim, apart from litigation cost of Rs. 5,000/- and any other relief the Hon’ble Forum may deem fit in the facts and circumstances of the case.

1.11. Complainant in his support has filed various documents i.e. copy of driving licnence dated 07.03.2017, loan statement dated 10.05.2017, invoice of e-rickshaw, insurance policy, copy of RC with registration paper, FIR of theft of e-rickshaw, intimation of untraced report dated 06.05.2017, e-court order dated 17.05.2017 for acceptance of untraced report, claim form dated 08.05.2017, show cause notice dated 17.07.2017, request of the complainant to the serve copy of the licence dated 27.07.2017, reply to show cause notice cum legal notice dated 04.08.2017, copy of RTI dated 11.09.2017, RTI reply dated 29.09.2017 and copy of rejection of claim dated 02.08.2017, non-repossession letter by finance company Uphaar Finvest Ltd.-OP2 etc.

2.1. OP1 has filed the reply of the complaint; that complaint is misconceived & not tenable and is an abuse of process of law and ought to be rejected. The complainant has not come to the Hon’ble Forum with clean hands and has deliberately concealed the true and material facts before this Hon’ble Commission.

2.2. E-rickshaw (make-yatri-battery operated) was insured as new vehicle with OP with passenger carrying capacity not more than 6 vide policy no. 272302/31/2017/5822 for an IDV of Rs. 1,01,745/- subject to compulsory deduction for the period of one year only with effect from 18.03.2017 to 17.03.2018; the said insurance was subject to terms and conditions, exceptions and the law applicable thereof. A claim dated 08.05.2017 was lodged by the complainant with OP about the alleged theft / loss of the vehicle no. DL-4ER-1385 (e-rickshaw) stolen on 14.04.2017. Thereafter, OP1 deputed an insurance investigator to ascertain the facts and to do the all that was necessary, complainant was found plying vehicle in question having learning license as per statement of the complainant as well as per investigation report, whereas, admittedly he was issued permanent driving license for 3 years with effect from 25.07.2017. Therefore, the complainant was plying his e-rickshaw in contravention of the provision of Rule 3 of the Central Motor Vehicle Rules, 1989 as he was using the vehicle in question for carrying passengers. Thus,  the claim of the complainant was repudiated vide letter dated 02.08.2017 as per  terms and conditions of the policy in question. Letter dated 02.08.2017 reads as which follows “on perusal, we observed that the clarifications received from your end does not found considerable and the competent authority has repudiated the claim and has closed the file as no claim, as there is a violation of Motor Vehicle Act, as per insurance policy terms and conditions”, the claim of the complainant was rightly rejected by the competent authority, the complainant was intimated firstly by pre-repudiation letter  dated 17.07.2017 and final letter dated 02.08.2017 and finally vide reply dated 29.09.2017 ( sic. 29.09.2018) to RTI.

2.3. The complainant did not disclose actual facts of the case; rather willfully twisted the facts of the case in such a manner, so as to give color of deficiency in services, there is no deficiency of service as defined in Consumer Protection Act, 1986. The veracity of incidence is denied for the want of knowledge. The complainant while plying the vehicle in question did not follow the layman care while parked on road and had gone to drink water; no liability for payment accrued.

2.4. OP2 has also filed reply to the complaint, it is company duly registered with Registrar of Companies as per the Company Act. The reply of the OP2 has been filed under the signature of Mr. Amit Negi, Officer (legal, authorized representative of the OP2, (authorization letter is at page 9 of the paper-book of OP2). OP2 is registered, non-banking financial institutions having the business of leasing and financing the vehicle and consumable durable goods along with other financial facility/ personal loan to its client on mutually agreed terms and conditions.

2.5. Complainant approached OP2 and availed the facility of finance under Hyphothication loan dated 16.03.2017 for a sum of Rs. 80,000/-. OP2 released the payment through cheque in favour of the complainant and vehicle was handed over to Kohinoor Enterprises on 16.03.2017, the payment schedule under the said agreement was on the basis of monthly installment of Rs. 6,500/- for the period of 16 months equally.

2.6. OP2 has no role in the present controversy; complainant has taken loan which is still unpaid by the complainant. Complainant never paid any installment towards the loan. It came to the knowledge of OP2 that till 20.01.2018, the complainant is liable to pay Rs. 86,256/- as per loan agreement; OP2 also sent a letter of outstanding amount to the complainant on 20.01.2018 for the said amount in the present complaint, no specific allegation has been made against OP2 and no relief has been claimed against the OP2, therefore, OP2 should be dropped as it is not a  necessary party in the complaint. Complainant is liable to pay the loan amount to OP2 which he has not paid. Why the complainant shall only pay if the insurance amount is released to him, for which OP2 is made to suffer for no fault. OP2 has prayed for dismissal of complaint against it.

3.1. Rejoinder to the reply of OP1 by complainant has been filed denying the submissions of OP1 in its reply. There is no negligence on the part of the complainant. Rest of the contents of the rejoinder is a narration and repetition of the pleadings in complaint.

3.2. Rejoinder to the reply of OP2 has also been filed. It has been submitted that the complainant has paid first EMI towards the loan; and thereafter, failed to pay due to theft of vehicle. It has been denied that the complainant never paid any installment of loan. Complainant has also submitted that OP2 is also necessary party. No other material facts has been submitted in the rejoinder.

4.1. Complainant has led the evidence of his own which is on the line of facts and features of the complaint.

4.2.  OP1 has led evidence by way of affidavit which is under signature of Sh. Mohit Gupta, Deputy Manager, in charge in the company of OP1. The evidence of OP1 is also on the line of reply filed by OP1.

4.3. OP2 has not led evidence on its behalf.

5.1.  Complainant has filed written argument which is also on the line of contents of complaint. OP1 has also filed written arguments on its behalf which is on the line of facts and features of reply filed by it.

5.2. Ms. Gurpreet Kaur, (DLSA) Advocate for complainant and Sh. Bhupesh Chandna, Advocate for OP1 made oral submissions, none from OP2 (Finance Co.) was present for making oral submissions.

6.1. Initially complaint of the complainant was dismissed in default vide proceedings dated 23.10.2018 for non-prosecution; complainant filed FA-464/2019 against the order of dismissal in default dated 23.10.2018 passed by the District Forum in CC no. 271/2017; and vide order dated 13.01.2020 of Hon’ble State Commission, the complaint was restored to its original number and parties were directed to appear before District Forum on 24.02.2020.

6.2. As per terms and conditions of policy, the company may at its portion repair, reinstate or replace the motor vehicle  or the part thereof and/ or its accessories or may pay in cash the amount of loss or damage and the liability of the company shall not exceed the actual value of parts damaged or lost less depreciation plus reasonable cause fitting of and shall in no case exceed insured’s declared value of IDV of motor vehicle. Under the motor insurance policy; there can be no loss of profits and earnings.

6.3. It is admitted facts that complainant was unemployed and in order to earn his livelihood purchased e-rickshaw for a sum of Rs. 1,07,100/- out of his saving and on loan from OP2; the vehicle e-rickshaw DL-4ER-1385 was insured with OP1 and the validity of the insurance period was 16.03.2017 to 15.03.2018 and Rs. 4,631/- was the premium amount. Vehicle was stolen on 14.04.2017 and FIR no. 11289 dated 15.04.2017 was lodged with the concerned P.S. Untraced report was filed by the police before the Ld. ACMM-01 SW District, Delhi, which was accepted vide court order dated 17.05.2017. The vehicle was stolen  and after completion of necessary legal formalities; complainant submitted claim form dated 08.05.2017 with OP1; OP1 vide its letter dated 17.07.2017 intimated to the complainant that on receipt of investigation report for claim, it was found that vehicle was being driven with passengers from Ghanta Ghar and again boarded passengers from Janakpuri after dropping at Joginder Marg, complainant stopped the vehicle and went for drinking water and on return, it was found that the vehicle was stolen. As per statement of the complainant it came to know that complainant  was having learning driving license and were driving the vehicle in contravention of the provisions of Rule 3 of the Central Motor Vehicle Rules, 1989. Vehicle was used for carrying the passengers; submit the valid driving license, otherwise as per insurance policy’s terms and conditions, the vehicle was being driven for carrying passenger which is a violation of Motor Vehicle Act; on this basis claim is not tenable and repudiated, we need clarifications within 15 days otherwise file will be closed without any further notice.

6.4. OP in its letter dated 17.07.2017 (stated by OP to be pre-repudiation letter) had raised the issue as under:

“ As per your statement we observed that you were having learning driving license and you were driving the vehicle in contravention of the provisions of Rule 3 of Central Motor Vehicle Rules, 1989 since you were using the vehicle for carrying passenger’s. It was also required from the complainant to submit valid driving license and to clarity within 15 days as to why should your claim not to be repudiated."

6.5. After the receipt of letter dated 17.07.2017 from OP1 regarding submission of valid driving license; complainant vide his request letter dated 27.07.2017 sought extension of 15 days period for submission of driving license. The complainant through his counsel Sh. Pankaj Batra sent letter dated 04.08.2017 to OP1 in the form of reply to show cause notice cum legal notice with regard to his insurance claim. In the reply cum legal notice, complainant through his counsel, inter alia, had submitted that when the vehicle was parked he had gone to drink water, vehicle was stolen and was not being driven at the time of theft.

          In its reply to show cause notice dated 17.07.2017, complainant has taken the stand that, Rule-3 of the Central Motor Vehicle Rules does not contain any stipulation barring the carrying of passengers by the holder of learning license for e-rickshaw;  in the present case, there is no need to present any license for the claim of theft and at that time vehicle was in stationary condition and was not being driven; there were no passengers in the vehicle, thus Rule 3 is not attracted.

6.6. It is evident from the record that OP1 has not submitted the document having terms and conditions of insurance of the vehicle under reference nor it appears to have been supplied to complainant while entering into the contract of insurance. OP1 provided only policy of vehicle insurance to the complainant and the relevant clauses are quoted as below:

(a) any person including insured (b) provided that a person driving hold an effective and valid driving license to drive the category of vehicle insured here under at the time of accident and is not disqualified from holding or obtaining such a license.

(c) Provided also that the person holding an effective and valid leaner’s license to drive the category of the vehicle insured here under may also drive the vehicle not carrying passengers/ goods and such person satisfies the requirement of Rule-3 of the Central Motor Vehicle Rule, 1989.

          Therefore,  condition ‘c’ of the policy as quoted above support the case of complainant and vehicle was also not carrying passengers/ goods when it was stolen; more so, vehicle was parked and not being driven at the time of incident. Further, Rule 3 of Central Motor Vehicle does not contain any stipulation on barring the carrying of passengers by the holder of learning licence of e-rickshaw.

6.7. OP1 in its final repudiation letter dated 02.08.2017, inter alia, has mentioned that reference to pre-repudiation letter dated 17.07.2017, they had received the reply dated 27.07.2017 (seeking extention of time to file reply) from the complainant and observed that the clarification received was not found considerable and the competent authority has repudiated the claim and has closed the file as ‘no claim’, as there is violation of Motor Vehicle Act as per insurance policy terms and conditions which does not inspire confidence.

6.8.  Complainant through RTI dated 11.09.2017 requested certain information from OP1; and OP1 in its RTI reply dated 27.09.2017 stated that competent authority have already repudiated your claim which was conveyed vide letter dated 02.08.2017 but the letter dated 02.08.2017 has not been proved by OP as it has also not been filed with reply.

          Complainant in para 11 of his affidavit of evidence has submitted that after waiting for a considerable period, he visited the head office of OP1 on 14.10.2017, a copy of reply to RTI was given to him and an order/ letter dated 02.08.2017 rejecting the claim was annexed, he was never served the repudiation letter dated 02.08.2017, nor OP1 submitted or record of postal receipt to prove service, the letter dated 02.08.2017 is manipulated and predated after receipt of the legal notice-cum- show cause reply dated 4.08.2017. In his affidavit, complainant has also stated that when he went to the office of OP1 to serve the reply of show cause notice dated 04.08.2017, officers of OP1 confirmed that no repudiation of claim has been made till then, thus how the letter dated 02.08.2017 from OP1 suddenly surfaced is not above the board. So, in view of above discussion, OP1 has not proved the service of repudiation letter dated 02.08.2017.

6.9. Complainant has also relied on case law titled New India Assurance Co. Ltd. vs Dinesh Chandra Porwal of Hon’ble State Commission of Delhi reported in I (2009) CPJ 230 and relevant para of the judgment is reproduced as under:

“however, driving of truck without any authority or valid license may be an offence under any other law, but so far as the insurance cover of a vehicle for damage by way of accident loss, by way of theft or due to fire is concerned that has to be independently assessed in the light of facts and circumstances of its case and not in routine manner or stereotype way.”

          Complainant has also cited another case law titled Jitendra Kumar vs Oriental Insurance Co. Ltd & Anr. (judgment arising out of SLP (C) no. 21910 of 2001), it was held, inter alia, that vehicle in question was damaged due to mechanical fault and no fault of driver; it does not empower the insurance company to repudiate a claim for damages which has occurred due to acts to which driver has not, in any manner, contributed i.e. damage incurred due to reasons other than the act of driver.

7. From the aforesaid discussions/deliberations and careful analysis, conclusion is drawn that complainant has established his case of theft. Complainant submitted his claim of Rs. 1,01,745/- with OP1 which has not been paid, it is deficiency in service and unfair trade practice on the part of OP1; which caused harassment and mental agony to the complainant. Therefore, complainant is held entitled for claim of Rs. 1,01,745/- and also compensation of Rs. 15,000/- against OP1. Since the complainant is a poor person who was deprived of his sole source of earning; his livelihood coupled with mental pressure from finance company and has been litigating upon this complaint since 2017, we allow Rs. 10,000/- as litigation cost in favour of complainant and against OP1. The complainant has claimed interest at the rate of 24% pa compound quarterly since OP2 charges this rate of interest, to meet the ends of justice interest at the rate of 8% pa on amount of Rs. 1,01,745/- is also allowed in his favour and against OP1 from the date of filing of complaint till its realization.

8. Since OP2 had first charge on vehicle, as it was hypothecated to him, OP2 deserves amount of award. It is for OP1 to pay the dues of OP2 out of awarded amount and to pay rest of the amount if any residue to complainant after adjusting dues of OP2.

9. We direct OP1 to pay Rs. 1,01,745/- the IDV value of vehicle along with interest at the rate of 8% pa from the date of filing of the complaint till its realization, Rs. 15,000/- as compensation for mental agony and pain suffered by complainant; apart from Rss. 10,000/-  as litigation costs within 35 days from the date of receipt of this order payable to the complainant after paying valid dues to OP2.

          However, if the aforesaid amount is not paid to the complainant by OP1 within 35 days from the receipt of this order; the amount of Rs. 1,01,745/- shall carry interest at the rate of 10% pa instead of 8% pa.

10. Copy of this Order be sent/provided forthwith to the parties free of cost as per rule for necessary compliance.

11:  Announced on this 7th August, 2023.

[Vyas Muni Rai]                        [ Shahina]                            [Inder Jeet Singh]

           Member                            Member (Female)                              President