Before the District Consumer Dispute Redressal Commission [Central], 5th Floor ISBT Building, Kashmere Gate, Delhi
Complaint Case No.157/07.06.2013
Sh. Mayank Kumar s/o Sh. Ravinder Kumar
R/o H. No. I-162, Govindapuram, Ghaziabad,
Uttar Pradesh …Complainant
Versus
The General Manager M/s Oriental Insurance Co. Ltd.
Regd. & Head Office A-25/27, Asaf Ali Road,
New Delhi-110002 ...Opposite Party
Date of filing 07.06.2013
Coram: Date of Order: 04.12.2023
Shri Inder Jeet Singh, President
Ms. Shahina, Member -Female
ORDER
Inder Jeet Singh , President
1.1. (Introduction to case of parties) – This complaint was filed with allegations of deficiency in services against OP that complainant’s motorcycle UP-14BA-6800 having Chasis No. MBLHAI0EJAHC36814 and Engine No. HAI0EAAHC36745 make Hero Honda Splender Plus (hereinafter referred as 'the vehicle') was insured from the OP/Insurer, however, vehicle was stolen and the claim was lodged but it was declined by the OP. The complainant seeks insured amount of Rs. 28,000/- against theft loss along with interest at the rate of 18% besides an amount of Rs. 50,000/- in lieu of mental agony and harassment & other appropriate relief.
1.2. The OP opposed the complaint that there is no deficiency of any services nor complainant is entitled for any claim, since it was the complainant at fault, who failed to furnish the documents despite reminders, letters etc.
2.1. (Case of complainant) –The complainant took insurance policy of his vehicle from OP vide policy No. 254003/31/2012/7942, having insurance code 42109824 dated 19.03.2012 for IDV of Rs. 28,000/- and policy was valid upto March 2013. The complainant lost the vehicle in theft for which FIR No. 224/2012 u/s 379 IPC was registered in PS Daryaganj (the complaint mentions date of theft is of 08.09.2012 but it was 08.10.2012, it may be due to inadvertence since in the heading of untraced report date 08.09.2012 is written but final report details that theft was on 08.09.2012). The complainant also informed the OP about theft of the vehicle and also lodged the claim besides furnishing all the documents, however, his claim was not settled. He was put to unnecessary harassment and mental agony for want of settlement of his genuine claim. That is why, the complaint was filed.
2.2.The complaint is accompanied with copies of particulars of vehicle/RC (showing that vehicle is hypothecated with Hero Honda Motors Ltd.), insurance policy, premium schedule, untraced report dated 17.11.2012, final report of FIR No. 224/2012 u/s 379 IPC P. S. Daryaganj and legal notice dated 02.05.2013 with original postal receipt.
3.1 (Case of OP)- The OP does not deny issue of policy No. 254003/31/2012/7942, w.e.f. 26.03.2012 to 25.03.2013 in favour of complainant in respect of motorcycle UP-14 BA-6800 for sum insured Rs. 28,000/-, but it was subject to terms, conditions, warranties, exceptions, etc. in the policy and the provision of the Insurance Act.
3.2. The OP also narrates that complainant had reported about theft of his vehicle, happened on 08.10.2012 and final report dated 17.11.2012 was filed in the Court of Metropolitan Magistrate, Tis Hazari, Delhi. The complainant came and visited the OP on 14.01.2013, he was asked to furnish the final report, which was also asked telephonically on 06.02.2013. He was further written letters dated 03.12.2012, 30.05.2013 and 12.06.2013 to furnish the final report duly accepted by the Court being necessary for process of the claim and its settlement by the office of OP. The complainant failed to do it. Therefore, there is no deficiency of services or negligence on the part of OP but complainant is at fault.
3.3 The OP denies all other allegations of complaint. No documentary record was filed in support of the written statement.
4. (Replication of complainant) – The complainant filed detailed rejoinder by reaffirming the contents of complaint as well as by explaining that complainant had given all the documents to the OP for processing and settlement of the claim, even the complainant had also issued legal notice but it was not complied by the OP. The complainant also denies the plea of OP that he had visited the office of OP on 14.01.2013 or OP telephone on 06.02.2013 or letters dated 03.12.2012, 30.05.2013 and 12.06.20132 were written to the complainant. The record was already furnished. The claim was not settled. The complaint is correct.
5.1. (Evidence)- Complainant filed his affidavit of evidence, with the support of documents already filed with complaint to establish his case.
5.2. The OP led evidence by filing affidavit of Sh. M. K. Sharma, Deputy Manager of OP, the affidavit is on the lines of reply.
However, the witness first time filed some documents with affidavit viz. insurance cover, copy of claim form and photocopy of complainant’s letter dated 04.06.2013; OP’s letter dated 03.12.2012, 30.05.2013 and 12.06.2013 (without proof of mode of service/dispatch the last three letters), that too without permission from the Forum [Ld. Predecessors] to file documents at belated stage of evidence, whereas, on the principle of natural justice the OP was under legal obligation to file the record with the reply and to provide its copies to the complainant, so that the complainant may also remain aware fairly with the stand of OP and to counter it.
6.1 (Final hearing)-The complainant and the OP have filed their written arguments, the same are blend of their respective pleadings and evidence.
6.2. The parties were given opportunity to make oral submissions, Sh. O. S. Sheron, Advocate for complainant made the oral submissions but no oral submissions on behalf of OP. However, the rival contentions appearing from the case of parties will be appreciated.
7.1 (Findings)- The rival contentions are considered, keeping in view the material on record in the form of narration and the documentary record. By taking into account stock of such material, the following conclusions are drawn:-
(i) There is no dispute of the insurance policy and risk covered in respect of the vehicle, the sum insured, the tenure of insurance policy, theft of the vehicle, report to the police and the vehicle could not be traced and it result into filing of the final report. The complainant had also lodged the claim with OP being total theft loss, it is also not disputed.
However, the dispute is with regard to want of settlement of the claim as well as whether or not documents were provided by complainant to the OP .
(ii) According to complainant, he had furnished all the record to the OP, however, the OP has reservations that record was not furnished despite repeated reminders and letters. Whereas, the OP had not filed any documentary record with the reply to make those record available with the complainant to respond the same, although the OP came with the photocopies of letters dated 03.12.2012, 30.05.2013 and 12.06.2013 with the affidavit of evidence, but these letters are not reflecting the mode or proof of sending them to the complainant nor any acknowledgement is there. There is also no proof on what basis the OP had state visit of complainant in its office on particular date of 14.1.2013.
(iii) As a matter of law, the documents not filed with the reply ought to not have been considered, which is also known to a professional agency of Insurance company and with-holding the document as proper stage means not only the other party to keep in dark but also to deny opportunity to respond it by replication; had those documents provided to the complainant, then complainant would have been able to respondent it. It was also like a surprise to the Forum.
Even if it is to be considered, then photocopy of complainant’s letter dated 04.06.2013, reiterates that all documents were furnished with the OP, however, the copy of final report was not made available by the police as the final report was as yet not accepted by the court vis-à-vis it was advised that the police will furnish it to the insurance company; the complainant was constrained by the directions of the authorities and it cannot be attributed a fault of the complainant. Moreover, there is no whisper by the OP as to what action was taken by the OP after such information by the complainant. The complainant had also filed a copy of final report made available for perusal of the OP.
(iv) The aforementioned conclusion clearly establish that there was total theft loss of Rs. 28,000/- in respect of the vehicle stolen and the complainant has proved his claim against the OP.
(v) There is no other contrary evidence led by the OP to disprove the case of complainant.
7.2 The complainant has claimed compensation of Rs. 50,000/- and interest of 18%. However, there is no agreed rate of interest, therefore, interest @ 6% pa on the amount of Rs. 28,000/- from the date of filing of complaint till its realisation of amount is determined in favour of complainant and against the OP.
7.3 The complainant also seeks compensation of Rs.50,000/- for facing hardship, mental agony and harassment. Since his valid claim was not settled by OP, thus, it would justify both ends to quantify reasonable compensation, it is quantified as Rs. 8,000/- and accordingly it is awarded, apart from Rs. 3000/- as costs in favour of the complainant & against the OP.
8. So, the OP is directed to pay sum insured of Rs. 28,000/- along-with interest at the rate of 6% pa from the date of complaint till realisation of amount, besides compensation of Rs.8,000/- and costs of Rs.3000/- to the complainant, payable by OP to the complainant within 42 days from the receipt of this order, however, it is subject to further directions being given hereinafter, failing which the amount of Rs. 28,000/- shall be payable with interest of 7% pa.
9.1 The complainant has proved Registration Certificate of the vehicle (page no. 8 of the complaint), showing name of Financer –M/s Hero Honda Motors Limited, since vehicle was under hypothecation with M/s Hero Honda Motors Limited, it has insurable interest and also first right to receive the amount of hypothecated vehicle.
9.2 Therefore, OP is directed to release the amount to M/s Hero Honda Motors Limited, which M/s Hero Honda Motors Limited deserves to receive as outstanding loan amount, subject to furnishing further details of actual balance amount and requisite documents, which M/s Hero Honda Motors Limited will cooperate in this regard. The excess amount, whatsoever, if any left with OP [after paying amount to M/s Hero Honda Motors Limited], shall be paid by the OP to the complainant. The M/s Hero Honda Motors Limited will inform both the complainant and OP with statement in writing of balance amount on account of complainant, immediately on preparing the same. M/s Hero Honda Motors Limited & the OP will also inform the complainant immediately on payment tendered by OP and received by M/s Hero Honda Motors Limited.
The OP & the M/s Hero Honda Motors Limited will cooperate by furnishing such details within six weeks (42 days) from the receipt of this order, requisite documents to OP and of balance amount payable to M/s Hero Honda Motors Limited, since the vehicle was under hypothecation with M/s Hero Honda Motors Limited. Further, the complainant will also cooperate to furnish required documents as per law, if so asked by them in writing.
10. OP is also directed to pay the amount within six weeks (42 days) from the date of receipt of details from the complainant and/or the M/s Hero Honda Motors Limited under acknowledgment. In case amount is not paid within six weeks from the date of such details, the OP will be liable to pay interest at the rate of 7% per annum (in place of 6%pa) on amount of Rs. 28,000/- from date of complaint till its realization.
11. In case complainant and M/s Hero Honda Motors Limited do not furnish further details of required of amount and other requisite documents within 42 days, then such period of six weeks or other longer period will be excluded, while computing interest @ 6% pa, or 7% pa as the case may be.
The complainant will furnish copy this order to M/s Hero Honda Motors Limited for appropriate compliances (since it was not impleaded a party to the present complaint).
12: Announced on this 4th day of December 2023 [अग्रहायण 13, साका 1945].
13. Copy of this Order be sent/provided forthwith to the parties free of cost as per rules for compliances besides upload on the website of this Commission.
[Inder Jeet Singh]
President
[Shahina]
Member (Female)
