Delhi

North

CC/49/2022

SH. SUNIL SHAH - Complainant(s)

Versus

ORIENTAL INSURANCE COMPANY LIMITED - Opp.Party(s)

01 May 2024

ORDER

District Consumer Disputes Redressal Commission-I (North District)

[Govt. of NCT of Delhi]

Ground Floor, Court Annexe -2 Building, Tis Hazari Court Complex, Delhi- 110054

Consumer Complaint No.49/2022

In the matter of

Sh.Sunil Shah

S/o Sh.Shatrughan Shah

R/o H.No.1421, Type-2, Gulabi Bagh

Delhi Administration Flats

Delhi-110007

                                                                                                                          …Complainant

Versus

Oriental Insurance Company Ltd.

Acting through its Manager/Authorised representative

Service Centre (DRO-1), Hansalaya Bld.

Barakhamba Road, New Delhi-110001                                                       ...Opposite Party

                                                                                                                                                           

ORDER

01/05/2024

Ms.Harpreet Kaur Charya, Member

Jurisdiction of this commission has been invoked by Sh.Sunil Shah, the complainant against the Oriental Insurance Co.Ltd. , the Opposite Party(OP), with the allegations of deficiency in services. 

1. Facts necessary for the disposal of the present complaint are that the complainant being the owner of Maruti EECO Car, silver colour, bearing No.DL1CR0146 with Chassis No.MA3ERLF1S00CC4144; Engine No.G12BN310418 got it insured vide policy no.131300/31/2019/72826 for a period from 28/02/2019 to 27/02/2020 for IDV of Rs.1,87,000/- from OP. 
2. On 19/02/2020, the insured vehicle was stolen, an e-FIR No. 005949/20 with PS: Civil Lines was immediately registered and OP was duly informed.  However, the claim was not settled even after the expiry of 90 days. 
3. In the month of December 2020, the complainant was telephonically informed by PS: Civil Line that one car having registration No.DL3CCE5683 was recovered in e-FIR No.12168/17. After recovery of the said vehicle bearing No. DL3CCE5683 it was found that though the recovered vehicle had number plate as DL3CCE5683 but the engine and chasis number were of the insured vehicle owned by the complainant.
4. OP was again informed and the complainant got the insured vehicle released on Superdari vide order dated 11/01/2021 passed by the Ld. MM, Tis Hazari Court, Delhi .IO in his reply had stated before the concerned court that the accused person changed the colour of the insured vehicle from’silver’ to ‘white’ and was using the same with wrong number plate.
5.  Upon prayer of the complainant, the Ld. MM, Tis Hazari Court, Delhi passed directions to the concerned RTO that in case the complainant opts for change of colour in his RC from ‘silver’ to ‘white’ then the concerned RTO shall consider his application.
6. OP was duly informed about the recovery and subsequent events; however, despite several emails the claim was not settled. In the month of June 2021, after the relaxation of nationwide lockdown due to COVID-19, the complainant again wrote a letter to OP. The Complainant was asked to estimate the loss for which the car was sent for repair at M/s Rana Motors Pvt Ltd.G.T.Karnal Road.  On 13/07/2021, surveyor was appointed but till 14/01/2022, the OP continued to raise one or other objections in order to avoid their liability.
7. The surveyor filed his report after two months from the date of his appointment and raising vague, false frivolous and baseless objections that the claim with respect to the change of colour of the car cannot be proceeded as there is a direction of the court to the RTO to change the colour in RC.  Hence, it will amount to contempt of court.   
8. The complainant was also asked to furnish the recovery/seizure memo of the insured vehicle with regard to other damages, which is unnecessary requirement.  Same was clarified vide letter dated 24/12/2021 that there is no procedure or mechanism mandated under the law that the recovery memo of the vehicle will record/mentioned about the kind and shall be recorded on extent of damage in the recovered vehicle. 
9. The estimate of repairs has already been shared with the OP.  Again the court of Ld. MM, Tis Hazari Court, Delhi sought status report dated 28/10/2021 from the IO/SHO, PS:Civil Lines, Delhi wherein it has been clearly stated:

“during the course of investigation, it is revealed that the car No.DL1CR0146 has already been recovered in FIR NO.012168 dated 24/07/2017, under section 379 IPC PS Civil Lines and accused had also been arrested in the case.During further investigation it came to knowledge that the car No. DL1CR0146 had been used by the accused with fake number plate of NO.DL3CCE5683 (Echo with different colour), however, engine number and chassis no. were not changed.So it was confirmed that in fact the car recovered in the case FIR No.012168 dated 24/07/2017 under Section 379 IPC PS Civil Lines is actually the car, stolen vide FIR No.05949 dated 19/02/2020 under section 379 IPCPS Civil Lines.Later, the car was released on superdari to its owner/complainant (FIR no.05949) namely Sunil Shah by the order of Hon’ble Court.

It is pertinent to mention here that now through this application complainant is requesting for certified copy of recovery memo/seizure memo of the vehicle no.DL1CR0146.the copy of the memo has been attached with the reply and there is no objection in respect of it.”

 

Further the Ld. MM, Tis Hazari Court, Delhi, clarified its order dated 16/12/2021, that the order dated 11/01/2021 was not a directive to the surveyor or the insurance Company not to consider the complainant’s claim.

10. The OP rejected the claim vide letter dated 14/01/2022 on the ground mentioned in the surveyor report.  Meanwhile the workshop also issued a legal notice to the complainant for recovery of Rs.62,000/- as parking charges.  Feeling aggrieved by the rejection of the claim, the complainant has prayed for directions to OP to pass the claim and to make the payment towards the repair of the car; and/or in alternative to pay Rs.1,87,000/- (IDV) alongwith interest @12% p.a. from 09/07/2021; pay Rs.62,000/- or any other amount which became due or found payable or recovered by the workshop towards parking charges; Rs.3,00,000/- alongwith interest @12% p.a. since 09/07/2021 till realization as compensation; Rs.1,00,000/- towards litigation expenses and any other further relief which this commission deemed fit and proper.
11. Complaint has filed as annexure the copy of Aadhaar Card of the  complainant, copy of the insurance and copy of the RC, copy of the fir, copy of the first letter sent to OP, copy of the surveyor report, copy of the emails sent to the OP, copy of the Superdari order dated 11/01/2021, copy of estimate given by workshop, copy of the application filed by the complainant in the court, copy of the status report submitted by the police in court, copy of order dated 16/12/2021, copy of repudiation letter by the OP, copy of reply of repudiation letter, copy of the rejection of the claim letter, copy of the legal notice, reply of the legal notice, copy of the suit filed by the complainant against workshop
12. Notice of the present complaint was issued to OP.  Written statement was filed on their behalf upon service.  Several preliminary objections have been raised in their defence such as OP has acted in a bonafide manner and operated and processed the claim as per applicable law, rules and regulations as amended to date; OP is not liable to pay interest or compensation as the claim was unjustifiable. 
13. It has been submitted that OP could not make timely assessment and survey on account of forced majeure i.e. COVID-19 and nationwide lockdown extended from time to time.
14. Investigator was appointed in August 2020, while investigation was going on, in December 2020 the complainant himself reported to the OP about the recovery of the insured vehicle.  The complainant failed to share a copy of recovery memo.  It has been further submitted that as per the provision of Section 457 Cr.PC the complainant was responsible to lay his claim to the seized/recovered vehicle and OP had no role or responsibility to discharge unless it were to be expressly called upon by Hon’ble Court with appropriate Section of 451 of Cr.PC. 
15. The complainant was granted liberty by the Court of Ld. MM, Tis Hazari Court, Delhi vide order dated 11/01/2021 to move an appropriate application before concerned RTO for endorsement to the effect of change in the colour of the insured vehicle however, the complainant sought to repaint the vehicle in a different colour and laid a claim with OP.
16. Since the insured vehicle has been recovered the complainant is not entitled to the claim for theft.  OP could not have honoured a claim for repainting of the vehicle in a different colour without an endorsement from the concerned RTO approving the same.  Rest of the content of the complaint have been denied with the prayer for dismissing the complaint with cost.
17. Rejoinder to the written statement was filed by the complainant reiterating the contents of the complaint and denying those of the written statement.
18. Evidence by way of affidavit has been filed by the complainant reiterating the contents of the complaint.  He has got exhibited copy of insurance papers and RC as Exb.CW1/1 (colly) and Exb.CW1/2 respectively, copy of e-FIR as Exb.CW1/3, letter dated 12/07/2021 as Exb.CW1/4 (colly), Surveyor report dated 09/09/2021 as Exb.CW1/5, emails sent to the OP as reminder as Exb.CW1/6 (colly), superdari order dated 11/01/2021 by the Ld.MM as Exb.CW1/7, repudiation letter dated 02/12/2021(sic) as Exb.CW1/8, reply of repudiation letter as Exb.CW1/9 (colly), copy of application to the Ld.MM Court as Exb.CW1/10(colly), copy of status report, general diary and recovery memo as Exb.CW1/11 (colly), copy of court order dated 16/12/2021 as Exb.CW1/12 (colly), estimate and other papers  as Exb.CW1/13 (colly), copy of legal notice as Exb.CW1/14(colly) and Exb.CW1/15 (colly), copy of receipts of Rs.10,000/- as Exb.CW1/16(colly), copy of suit filed and order dated 25/03/2022 as  Exb.CW1/17(colly), copy of rejection letter dated 14/01/2022 as Exb.CW1/18(colly),
19. OP has got examined its Authorised Representative, Sh.Sidharth Ahlawat, Deputy Manager.  He has also repeated the contents of their written statement. 
20. We have heard the arguments on behalf of Ld. Counsel for the complainant and Ld. Counsel for OP and have also gone through the written arguments filed by the parties
21. The OP has repudiated the claim of the complainant vide Repudiation letter dated 13/01/2022 (Exb.CW1/8) on the ground :-

1. No recovery memo has been produced by the insured in this case so far, hence missing parts have not been considered by the Surveyor as the court order in this is issued on 11/01/2021.  The survey was done on 13/07/2021.
2. The colour of the vehicle in this case has been changed to white and the same has been ordered by the Hon’ble court for modification in the RC.  Thus, the same has not been considered by surveyor in his assessment.

22.  As far as first ground of repudiation is concerned, the complainant has placed on record the copy of General Diary No.0047A in e-FIR No.012168/17 wherein, the factum of recovery of the insured vehicle has been explained in detail. Further, if we go through the letter dated 12/07/2021 addressed to the Manager, Oriental Insurance Company, in para 5, the complainant has stated that the IO refused to give the release memo of the damaged vehicle  and released the vehicle to the complainant without providing recovery memo.  Further in para 6 & 7 the complainant has reiterated that the recovery memo has not been provided by the PS: Civil Lines despite written request. Thus, it is clear that the recovery memo was not in custody of the complainant and the police officials refused to give the same.  Therefore, the supply of the said document was beyond the control of the complainant.  Thus, it is not a valid ground of rejection.
23.  For second ground of repudiation, an order dated 11/01/2021 passed by the       Ld.MM -06 (C)/THC/Delhi, in e-FIR no.005949/20 becomes important. Relevant portion is being reproduced  hereunder :

“So far as the grievance of the applicant regarding change of colour of his vehicle by the accused is concerned, the applicant may move an appropriate application before the RTO, concerned for getting the colour of the vehicle changed in the RC.RTO, concerned is directed to consider the said application in view of this order.”

24. Similarly, it has been further clarified by the Ld.MM -06 (C)/THC/Delhi in order dated 16/12/2021 that :-

“It is submitted by Ld. Counsel for applicant that vehicle bearing No. DL ICR 0146 Maruti Ecco Car belonging to the applicant which was stolen on 19/02/2020 ws recovered and released to the applicant on superdari order dated 11.01.2021.However, it is submitted that since seizure memo of the vehicle has not been prepared by IO in the present FIR, the claim of applicant is withheld by the insurance company.

Upon query made by Court, IO as well as SHO submit that since the recovered vehicle contained the number plate of vehicle bearing No. DL 3C CE 5683 stolen in case e-FIR No.012168/2017, recovery memo was prepared in e-FIR NO.012168/2017 and not in the present FIR.However, SHO has placed on record GD No.0047A dated 05/01/2021 wherein the aforesaid facts have been stated in detail and it has been stated that vehicle bearing No. DL 1CR 0146 Maruti Ecco Car was stolen in the present e-FIR, copy of GD No.0047A has been supplied to Ld. Counsel for applicant.

 

           As regard the grievance of the applicant regarding change of colour of the vehicle, it is hereby clarified that vide order dated 11.01.2021, liberty was given to concerned RTO to consider the application moved on behalf of the applicant as per rules and no directive was issued as stated by the Surveyor in e-mail dated 09.09.2021 placed on record.It is further clarified that insurance Company is at liberty to consider the claim of applicant as per rules.

Accordingly, application stands disposed of with above observations.

Copy of this order be given dasti to applicant/Ld. Counsel for applicant.”

25. It has been clarified by the Ld.MM -06 (C)/THC/Delhi vide order dated 11/01/2021, liberty was given to concerned RTO to consider the application moved on behalf of the complainant.  Thus, it is clear that as the accused had changed the original colour of the insured vehicle from ‘silver’ to ‘white’, it was direction to the RTO to consider the application of the applicant (the complainant herein) for endorsement of the change in colour on RC.
26. Once, the queries have been clarified by the Court of Ld. MM-06(C)/THC/Delhi, the OP should have settled the claim within stipulated period of 30 days .OP has not placed on record the Surveyor Report.  It is only at the stage of argument OP has filed the Investigation report dated 25/10/2023, wherein it has been stated by the investigator, Allied Technical Services that the subject vehicle was bearing no damage at the time of recovery.  Alongwith, the said investigation report certain photographs have also been annexed.  It is settled principle of law that OP cannot travel beyond the repudiation letter. Thus, this defence/document cannot be considered.
27.  We have gone through the estimate of repairs dated 11/07/2021 for Rs.3,74,250/- filed alongwith the complaint [Ex.CW1/13(Colly)].  Even if assuming the OP was not liable to pay for the change of body colour of the insured vehicle they are still liable to pay for repairs. Since, the IDV is Rs.1,87,000/- and the estimated cost of repairs being more than the 75% of the IDV ,it is to be considered as constructive total loss.  
28. To substantiate the claim made in the prayer clause for parking charges, the complainant has also placed on record the demand letter issued by M/s Rana Motors Pvt. Ltd. (Ex.CW1/14). The complainant has paid Rs.10,000/- as full and final settlement towards the dispute on 23/03/2022 in suit No.311-22 titled as “Sunil Shah v/s Rana Motors, Workshop” vide order dated 25/03/2022 before Ld.CJ-08(Central), Tis Hazari Court, Delhi.The receipt for the same alongwith the payment for crane charges for Rs.1,500/- is Ex.CW1/16 (Colly).
29. Therefore, in the facts and circumstances of the present complaint, we hold that OP has indulged in deficiency in services not only by rejecting the claim on baseless and arbitrary ground but also delayed the settlement of the claim
30. Hence, we direct OP to pay to the complainant :-

1.   Rs.1,87,000/- being the IDV of the insured vehicle alongwith interest @9% p.a. from 09/07/2021 i.e. date of claim intimation till realization.
2. Rs.10,000/- paid by the complainant towards the parking charges.
3. Rs.50,000/- as compensation on account of mental harassment and agony.
4. Rs.21,000/- as litigation expenses.

31.The order be complied with in 30 days from the date of receipt of order.  In case of non-compliance within a stipulated period, OP shall be liable to pay interest @12% p.a. on Rs.2,68,000/- (a+b+c+d) from the date of order till realization.  

Office is directed to supply the copy of this order to the parties as per rules. Order be also uploaded on the website.  Thereafter, file be consigned to the record room.

 

 

(Harpreet Kaur Charya)             Member	(Ashwani Kumar Mehta)                          Member   (Divya Jyoti Jaipuriar)           President