ORDER                                 Dated 30.05.2017

K.S.Mohi, President

1. The complainant has filed the present complaint against the OP under section 12 of the Consumer Protection Act 1986. The facts as alleged in the complaint are that the complainant had taken a comprehensive motor insurance policy no. 2540011/31/760 for her Maruti Van bearing No. DL 7C D 5775 on 11.03.2011  and paid Rs. 2649/- as premium of the policy. It is further stated that on 29.09.2011  the aforesaid Maruti Van no. DL 7C D 5775 met with an accident and caught fire when it was left in front of Banke Bihari Motors Workshop at Pilkuwa for routine maintenance work of the vehicle. The mechanic of the workshop had made formal enquiry regarding the repair and had also started formal check up of the vehicle. But before the vehicle could be repaired it got fire on which fire brigade was called and subsequently information was also given to the office of OP at Hapur, UP.  It is stated that on 07.10.2013 the complainant filed claim along with copy of job estimate for the repair of insured vehicle , copy of insurance policy , copy of report of fire brigade. However, the OP declined the claim of the complainant vide letter dated 22.11.2014 stating that the vehicle was in possession of  Banke Bihari workshop at UP during the routine maintenance work as there being contractual liability of workshop and owner of insured vehicle, hence the claim was not payable.  Thereafter complainant approached the office of insurance ombudsman, New Delhi and preferred his claim vide letter dated 11.12.2014 which was rejected by citing the same reasons as pleaded by the OP. Hence the complainant approached  this  forum claiming a sum of Rs. 1,63,529/- along with interest of Rs 1,00,000/- towards mental pain and agony and Rs. 50,000/- towards litigation cost.
2. OP filed its written statement by taking preliminary objections inter-alia that the complaint is barred U/s 24 A of Consumer Protection Act because incident took place on 29.09.2011 and the present complaint has been filed in the Forum in January 2016 i.e. after almost 4 ½ years.  Secondly the claim was not payable in view of General Exception no. 2 of terms and conditions of policy because there was separate contract with the workshop and the insured for repair of the vehicle. On merits the OP admitted the insurance policy of the vehicle but denied the contents of complaint. The OP prayed that the claim be rejected as there was no deficiency on its part.
3. The complainant filed replication whereby she denied the contents of the written statement and reaffirmed the contents of the complaint.
4. Complainant has filed his own affidavit affirming the facts alleged in the complaint. On the other hand Sh. Mahendra Kumar Sharma, Deputy Manager has filed affidavit in evidence on behalf of O.P. testifying all the facts as stated in the written statement. Parties have also filed their respective written submissions.
5. We have carefully gone through the record of the case as well as written submissions filed by both the parties and have also heard the submissions of Ld. Counsel  for the parties.
6. Counsel for OP has raised preliminary objection that the present complaint is barred U/s 24 A of Consumer Protection Act as it was filed after the expiry of period of limitation. So far as the plea of OP regarding limitation is concerned it needs to be clarified that the claim of the complainant was repudiated by OP on 03.07.2014 which provided complainant  a cause of action to approach the forum. Therefore, the complaint which was filed on 23.1.2016 before this forum is well within the period of limitation. Thus plea of limitation placed by OP stands overruled.
7. The polemical point involved in this case is as to whether the rejection of the claim by OP on the basis of general exception no.2  of terms and conditions of policy was justified and valid.  The controversy otherwise lies in narrow compass.  The rejection of the claim by the OP preceded on the premise that since there was contractual liability for repair of the vehicle in question between the insured and the repairer, therefore, the claim was not payable in lieu of general exception no. 2  of terms and conditions of the policy.  We have carefully perused the contents of the policy number 2540011/31/760 valid from 16.03.2011 to 15.03.2012. The so called ‘terms and conditions’ relied upon by the OP do not form part of the policy. The terms and conditions of the policy is a full- fledged separate document which does not appear to have been supplied to the insured at the time of inception of the policy nor at any time subsequent thereto.  Now the question arises as to whether the terms and conditions which were never supplied to the insured can be relied upon by the OP to thwart the legitimate claim of the complainant. It is now well settled law that the insurance company cannot be permitted to take shelter under the umbrella of terms and conditions of the policy until unless the same were duly furnished to the insured. In case titled I (2000) CPJ 1 (SC) M/s Modern Insulators Ltd. Vs  Oriental Insurance Co. Ltd.,  the Hon’ble Supreme Court held as under:-

“it is the fundamental principle of insurance law, that utmost good faith, must be observed by the contracting parties, and good faith forbids either party, from non-disclosure of the facts, which the parties knew.”

 In case titled IV (2014) CPJ 14A (CL) HAR. Oriental Insurance Co. Ltd.  Vs Vivek Rekhan it was held as under :

“ the claim filed on the basis of mediclaim policy was repudiated by the insurance company on the basis of exclusion clause.  The court held that the insurance company vaguely denied without pointing out as to in which manner and on which date terms and condition were supplied to the complainant.  Therefore, unless terms and condition have been supplied to the complainant before taking a policy, exclusion clause cannot be enforced. 

8. In view of the facts stated above we are of the considered view that there was deficiency in service on the part of the O.P. Therefore, we award a sum of   Rs. 1,63,529/- with interest  @ 9% from the date of filing this complaint till realisation. Complainant is further awarded a sum of Rs. 10,000/- as compensation towards mental agony and pain which also includes litigation cost.
9. The OP  shall pay the above entire awarded amount within a period of 30 days from the date of this order failing which OP shall be liable to pay interest @ 9% per annum from the date of order till realisation.

Copy of this order be sent to the parties as per rules. File be consigned to record room.

                        Announced this ___________day of __________2017.