Before the District Consumer Dispute Redressal Commission [Central], 5th Floor ISBT Building, Kashmere Gate, Delhi
Complaint Case No.-256/2018
Shri Upender Kumar s/o Sh. Tej Pal Singh
r/o H. No. 47-B, Sainik Enclave, Part-III,
C-Block, Jharoda Kalan, Delhi-110072 ...Complainant
Versus
OP1: M/s Oriental Insurance Company Limited
Service Centre (DRO-2), 4E/14 Jhandewalan Extension
Azad Bhawan, N.Delhi (through its Manager/Principal Officer)
OP2: M/s Pooja Finelease Limited, KLJ Complex-I,
Plot No. 70, B-39, Shivaji Marg, Opposite Moti Nagar PS,
Najafgarh Road, Moti Nagar, New Delhi-110005 ...Opposite Parties
Date of filing: 30.11.2018
Date of Order: 20.06.2023
Coram: Shri Inder Jeet Singh, President
Ms. Shahina, Member -Female
Shri Vyas Muni Rai, Member
Inder Jeet Singh, President
ORDER
1. Complainant Sh. Upender Kumar is registered owner of E-rickshaw bearing registration no. DL-9ER-2327, Model-2017, Motor no. AEIPLM17000485 registered with the Transport Department, NCT of Delhi (hereinafter referred as vehicle or e-rickshaw), the complainant was also issued fitness certificate by Department vide letter dated 29.08.2017. The complainant had purchased the vehicle from M/s Aditya E-motors India Ltd. The complainant had completed all the formalities and also obtained driving license for plying the vehicle and he started plying the vehicles as per rules and to earn his livelihood.
1.2. The vehicle was got financed from OP2/ M/s Pooja Finlease Ltd. for a sum of Rs. 97,200/-, repayable by installment of Rs.8,100/- each, which complainant was paying and stand paid up-to November, 2017.
The vehicle was got insured from Insurer/OP1-Oriental Insurance Co. Ltd. vide policy cover note no. 271901728218 and policy no. 271901/312018/1791 valid from 14.08.2017 to 13.08.2018. The complainant paid the requisite insurance premium.
1.3. On 03.10.2017, the vehicle, which was parked near to the house of complainant, was stolen by some unknown person. He searched a lot but no result, therefore, immediately concern e-PS Baba Haridas Nagar, South-West, District Crime Branch was reported, an FIR no. 031165 dated 03.10.2017 u/s 379 IPC was registered. The police could not search the vehicle despite its best efforts, thus final untraced report was filed, which was accepted by the Court of ACMM-1 vide order dated 24.01.2018.
1.4. Complainant approached OP1 for claiming the insured amount of Rs. 95,760/-, he also submitted requisite documents and he has been frequently visiting time and again to OP1 to settle the claim but it has not been settled. However, by letter dated 08.05.2018 by OP1, the complainant was informed that “whatever the knowledge and reply was given by the complainant, the same is not satisfactory and the competent officer of Opposite Party no. 1/ respondent is not agreed to the same”.
The complainant has been approaching the office of OP1, several papers were also got signed from him but no claim has been settled against theft of the vehicle and no cogent or sufficient reason has been assigned and ultimately his claim was repudiated, which is arbitrary, mala-fide, illegal and it is based on conjectures and surmises. The officers of OP1 has acted contrary to the terms of policy. The legal notice dated 27.08.2018 by registered post was also sent to OP1 through counsel of complainant, which was replied by OP1 but without cogent & satisfactory reasons. That is why the complaint is filed for policy amount of Rs. 95,760/-, interest of Rs.20,104/-, compensation of Rs.50,000/- and cost of Rs. 22,000/-.
2.1. The OP1, in its written statement does not deny the insurance policy issued for period from 14.08.2017 to 13.08.2018 in respect of subject policy to Insured/complainant. But the complaint is also barred by limitation period, it deserves dismissal.
2.2. However, as per terms and conditions of policy, the claim was recommended for repudiation. The OP1 has recommended repudiation on the ground that complainant had given his vehicle for its plying to Ramesh on daily rental basis. On 30.09.2017 after driving of vehicle, the e-rickshaw was parked outside the house of complainant. It remained parked outside the house for 01.10.2017 and 02.10.2017 and for these two days Ramesh did not come at the house of complainant. On 03.10.2017 the said vehicle was stolen. The complainant/ insured had given statement to OP’s investigator that it was driver Ramesh alongwith other person, stole the said vehicle. Therefore, it is a case of criminal breach of trust and it is not the case of theft under the policy of theft risk.
In view of the settled law, the OP1 cannot be held liable for criminal breach of trust and the claim of complainant was closed as 'no claim'. There is no deficiency of services on the part of OP1. The complainant is not entitled to file the complaint under the policy cover. There is also concealment of facts by the complainant. The complaint is liable to be dismissed.
3. The complainant filed detailed rejoinder to the written statement of OP1, he denies all the allegations of written statement. Neither the complainant had given any statement to the OP1’s investigator about stolen of vehicle by Ramesh with his aide. The vehicle was parked outside the home on 30.09.2017 after its functioning/operation by driver Ramesh and it remained parked outside the house for two days i.e. 01.10.2017 and 02.10.2017 but it was stolen on 03.10.2017. There is no case of criminal breach of trust and no such complaint was made to the police by the complainant nor any criminal case for criminal breach of trust was registered by the police. The OP1 has furnished false statement before this Commission and no proper investigation was made by the OP1 to repudiate the claim of complainant. The claim of complainant is covered within the policy and he filed the complaint properly with clean hands, he is entitled for insurance amount and other claims.
4. There is no reply by OP2 despite it was served with notice of complaint. In fact, OP2 was not appearing and it was proceeded ex-parte vide order dated 15.02.2019.
5.1. Complainant Sh. Upender Kumar filed his detailed affidavit. The affidavit is supplemented the record filed with complaint of copies of particulars of vehicle, certificate of fitness, copy of driving license, sub-ledger of financer Pooja Finlease Ltd., police complaint of theft of e-rickshaw, formal FIR no. 031165/2017 u/s 379 IPC of e-P.S, Baba Haridas Nagar South-West, request to SHO for handing over vehicle to Insurer in case it is located, letter for safe custody written to Registration Authority, Dwarka, copy of insurance policy, information to NCRB, copy of order dated 24.01.2018 passed by Ld. ACMM-01, South-West District of acceptance of untraced case, schedule of premium, theft claim intimation letter, copy of unsigned letter to Manager, Oriental Insurance Co. Ltd. by the Financer, reply/explanations of complainant to OP1’s letter dated 02.04.2018, letter dated 08.05.2018, legal notice with postal receipts.
5.2. OP1 filed detailed exclusive affidavit of evidence of Sh. Anil Aggarwal, Divisional Manager, DO-22 and it is reproduction of extract from the written statement in reference to terms and conditions of insurance policy by referring clause no. 5.14 that the claim was recommended for repudiation. It is also accompanying with copy of letter dated 02.04.2018, when certain information were sought from the complainant as well as copy of manually written statement dated 28.11.2017 of Upender recorded by surveyor.
6. Then at the stage of arguments, the complainant and the OP1 filed their respective written arguments. Sh. Kuldeep Solkar, Advocate for complainant and Ms. Umesh Kaushik, Advocate for OP1 presented the oral submissions.
7.1. (Findings): The contentions of both the sides are considered keeping in view the material on record of narrative of oral evidence and of documentary records. The submissions of both the sides will be referred point-wise.
At the outset, the insurance policy contract between the complainant and OP1 is not disputed. However, the OP1 in its written statement has made certain correction in para no. 4, by hiding under whitener/deleting some portion since it was not to be referred or pleaded, however, the same portion is appearing in the evidence as well as in the final arguments, which read “under clause no. 5.14 of the policy” after words 'recommended for repudiation' but not referred in the oral arguments as terms and conditions of the policy were not filed by OP1. Secondly, the OP1 has not referred letter dated 02.04.2018 in its written statement but it was filed all of a sudden in evidence as per convenience. The complainant has filed acknowledged copy of reply to letter dated 02.04.2018, it is at page no. 28 of the paper-book of complainant.
7.2. There is rival plea as OP1 contends that the complaint is barred by limitation period prescribed, without explaining facts & dates or by computing the period. But on the other side, Ld. Counsel for complainant requests that letter is of 08.05.2018, therefore, the complaint filed in November, 2018 is within limitation.
The period of filing the complaint is two years from the date of cause of action and it appears that OP1 perceives since there is period of two years from the date of incident of 03.10.2017, even from that time the complaint filed on 30.11.2018 is within limitation period. Otherwise, cause of action for filing the complainant is to be computed, when OP1 did not consider the reply sufficient and informed the complainant by letter dated 8.5.2018. This issue is decided against the OP1.
7.3.1 Another issue raised by OP1 is that the complaint is without cause of action since it is case of breach of trust as the complainant himself given the statement to the surveyor that it was driver Ramesh, who alongwith someone got the vehicle removed, consequently the case of criminal breach of trust cannot be covered in the theft policy. Moreover, by letter dated 02.04.2018 the complainant was asked by the OP1 to initiate legal action against Ramesh and provide OP1 the record of action initiated, which he failed to provide. Consequently, for such plausible reasons the claim was repudiated by letter dated 08.05.2018. During oral submissions, the statement of Upender recorded on 28.11.2017 by surveyor has been read over to fortify its submissions.
Whereas on the other side, submission is opposed by the complainant. The complainant refers reply (furnished on 25.04.2018 in the office of OP1 under acknowledgment) to the letter dated 02.04.2018, wherein it was explained that matter was reported to the police of theft of vehicle. Later CCTV footage discovered from Evergreen School, Saini Enclave, Part-III, CRP Camp, Jharoda, New Delhi, wherein a person was seen taking the vehicle away, it was informed to the I.O. of FIR and CCTV footage was also given to Police; CCTV was also produced before the surveyor but the surveyor refused to receive the same. The complainant has also explained in the letter that he had not given any statement as alleged by OP1. Moreover, there is mis-use of papers got signed from the complainant by surveyor. There is no natural sequence narration at the half end of last line page 1 and remaining half last line o page l and then its continuity on next sheet. The complainant has relied upon Vishan Narain Vs Oriental Insurance Co. Ltd 2002 RLR (note) 94 that when vehicle is lost, the insured is entitled for the sum insured value of vehicle & interest vis a vis market value of lost vehicle is not relevant. The complainant also refers LIC Vs Consumer Welfare Association [dod 11.12.2018 by hon'ble NC] of typographical error in the policy that such typographical error would not give any benefit to insurer.
The OP1 in its letter dated 03.05.2018, sent through authorized signatory, mentions that reply of complainant to letter dated 02.04.2018 was found not satisfactory by the competent officer of OP1 and that is why the claim was repudiated. The letter does not given reason as to on what basis it was found not satisfactory, without taking cognizance of material and relevant information. It was just a bald averment that reply was found not satisfactory by competent officer, without disclosing concerned competent officer or what reasons convinced him/her for coming to conclusion. There is no reference of any verification of fact about CCTV footage either from police or otherwise, nor the OP1 had sought further information that in case surveyor had refused the CCTV footage, then what prevented the OP1 to seek it from Police or Complainant or other concerned person. It was just repeated to initiate action against Ramesh and furnish papers, without bothering to look into the matter of CCTV footage referred to. In fact, letter is without merit & substance and it does not consider the contents of reply of 25.4.2017 to OP1's letter dated 2.4.2017. and it was issued in routine way.
7.3.2 Moreover, just for the sake of argument, in case there was statement of complainant recorded by the surveyor, there is narration that original two keys are with the complainant and (on page 2) driver Ramesh is not coming forward for his statement to police or vehicle may be stolen through the driver. If it is to be so, it will remain a case of theft and not of breach of trust or criminal breach of trust. Since criminal breach of trust could be possible firstly, the vehicle is to be handed over/given under entrustment and then there is refusal in returning the vehicle. In the statement being relied upon by OP1, it is not so that the vehicle was given under trust and it was not returned by the driver to be treated as criminal breach of trust. Moreover, Ld. Counsel for complainant has rightly pointed out that end line of first page and then the second page in continuation is not natural in sequence or theme, thus it cannot be believed.
Otherwise, the complainant had made efforts in securing the CCTV footage, it was also handed over to the police. Had it been the case of theft as alleged by OP1 while relying upon that statement, the police would not have filed untraced report on 25.01.2018 despite having in possession of CCTV footage showing the culprit stealing the vehicle. The police had not named any one. The preponderance of probabilities and circumstances cull out are in favour of plea of OP1 but the same are leaning in favour of case of complainant.
7.4. The letter dated 08.05.2018 is nothing but reiteration of contents of earlier letter dated 02.04.2018 without appreciating and verifying the material facts of CCTV footage ventured by complainant and then informed in reply to OP1 on 25.04.2018 (apart from information to police). The letter is contrary to the canon of fair assessment of the circumstances.
7.5.1. It is relevant to mention about a few important aspect. Firstly, the OP1 had not filed the documents with written statement (it is mentioned otherwise in written statement), but with affidavit; it is not proper since evidence cannot be led beyond pleading and another party cannot be put surprise vis a vis OP1 was required to take permission from the Forum for filing document when not filed earlier. However, the documents have been referred in this order since it is an old case and they expose the conduct of officers of OP1. Secondly, OP1 is taking twin plea for its convenience viz (i) the claim of complainant was recommended for repudiation and it does not refer the letter dated 8.5.2018 throughout but complainant has referred it in the complainant as well as it has also been filed by him and (ii) simultaneously in para 7 of written statement (page 2), the OP1 specifically states that claim of complainant was closed as 'no claim'. Then by which letter, the complainant was informed of this decision of close of claim. Since no other document on record, it means it was the letter dated 8.5.2018. That is why, if there was just recommendation for repudiation, then insurer takes plea that complainant was filed during pending of claim with complainant, but this plea is not taken by OP1. It shows conduct of OP1 of hide and seek.
7.6. The complainant has proved that his vehicle was stolen when it was in a stationary position outside his house and its keys were with the complainant. The State machinery was put into motion by lodging FIR, the case remained untraced and untraced report was filed by the police, which was accepted by the competent court. Since the theft took place within the currency of insurance period and theft is a total loss and complainant had declared IDV of Rs. 95,760/-. He is held entitled for reimbursement of sum insured, on which premium was paid.
Complainant also claims interest at the rate of 18% pa, however, there is no justification proved for this rate of interest, therefore, interest at the rate of 7% pa from the date of complaint till realization would meet both ends of justice. The complainant also claims Rs. 50,000/- as compensation for all trauma and agony faced by him for reimbursement of his valid claim.
The aforementioned circumstances are speaking themselves and considering them, compensation of Rs. 20,000/- is quantified in favour of complainant and against OP1, cost of Rs. 5,000/- are also allowed in favour of complainant and against OP1.
7.7.1 Accordingly, the complaint is allowed in favour of complainant/registered owner/insured and against the OP1/insurer to pay Rs.95,760/- along-with interest @7% pa from the date of complaint till realisation of amount, damages/compensation of Rs.20,000/- apart from costs of Rs. 5,000/-.
The OP1 & the OP2 will cooperate by furnishing within 45 days from the receipt of this order requisite documents to OP1 and of balance amount payable to OP2, since the vehicle was under hypothecation with OP2.
7.7.2 OP2 is financer of vehicle, the vehicle is under hypothecation and as per complainant's own averment in complaint, he had paid installments of Rs.8,100/- each upto November, 2017 to OP2. The complainant has filed sub-ledger being maintained by OP2, which also shows that three installments were paid out of 12 installments of Rs.8,100/- since total amount was repayable as Rs.97,200/- against amount financed was Rs. 80,000/-. OP2 has also first right to receive the amount of hypothecated vehicle, since stolen. Therefore, general directions are given that OP1 will release the amount to OP2, which OP2 deserves to receive as outstanding amount, subject to furnishing further details of balance amount and requisite documents, which OP2 will cooperate in this regard. The excess amount, if any left with OP1, shall be paid by the OP1 to the complainant.
7.7.3 OP1 is also directed to pay the amount within 45 days from the date of receipt of documents from the other side (the complainant and OP2) under acknowledgment. In case amount is not paid within 45 days from the date of such documents, the OP1 will be liable to pay interest at the rate of 9% per annum (in place of 7%pa) on amount of Rs. 95,760/- from the date of filing of complaint till its realization.
7.7.4 In case complainant and OP2 does not furnish further details required of amount and other requisite documents within 45 days, then such period of 45 days or other longer period will be excluded, while computing interest @ 7% pa, or 9% pa as the case may be.
8: Announced on this 20th June, 2023 [ज्येष्ठ 30 , साका 1945]. Copy of this Order be sent/provided forthwith to the parties free of cost as per rules for necessary compliance.
[Vyas Muni Rai] [ Shahina] [Inder Jeet Singh]
Member Member (Female) President
