Delhi

North

RBT/CC/324/2022

DHARAM PAL PATHAK - Complainant(s)

Versus

ROYAL SUNDARAM GENERAL INS CO LTD - Opp.Party(s)

27 Jul 2023

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

RBT/CC No/324/2022

[DCDRC-V (NW) CC No.489/2018]

 

In the matter of

Sh. Dharam Pal Pathak

S/o Sh. Ram Kishan Pathak

B-608, 4^th Floor, Bunkar Colony

Ashok Vihar, Phase-IV, Delhi-110052                                                 ...Complainant

Versus

Royal Sundaram General Insurance Company Ltd.

Through its Branch Manager

Rider House, Plot No.136, Ground & Ist floor

Sector-44, Gurgaon, Haryana-122002                                                  …Opposite Party

                                                                                      

                                                      

ORDER
27/07/2023

Ms.Harpreet Kaur Charya, Member

The present complaint has been received by way of transfer vide order No.F.1/SCDRC/Admn./Transfer/2022/330 dated 16/04/2022 of Hon’ble Delhi State Consumer Dispute Redressal Commission where the matter was transferred from DCDRC-V (North West) to this Commission.

1. This complaint has been filed under Section 12, of the Consumer Protection Act, 1986 by Sh. Dharampal Pathak, the complainant against, Royal Sundaram General Insurance Co. Ltd. as Opposite Party (OP), with the allegations of deficiency in services and unfair trade practice.
2. Facts as per the complaint are that, the complainant being an owner of Maruti EECO, bearing Registration No. DL 8CW 5997 was using it for personal use. The vehicle was insured vide policy dated 30/06/2017, bearing No.MOP4430819 for a period from 20/08/2017 to 19/08/2018 with IDV of Rs.1,55,591/-.  The complainant was regularly paying EMI to State Bank of India, Gulabi Bagh Branch, from where the insured vehicle was financed.
3. As per the complaint, on 04/01/2018, the insured vehicle despite being properly locked was stolen from the residence of the complainant for which the police and OP were informed.  Thereafter, the surveyor appointed by the OP visited the premises of the complainant and took signature of the complainant on the blank paper and form along with 02 keys of the vehicle.  It has been alleged by the complainant that despite submitting all the documents to OP and several visits thereafter, the claim was not settled.  Untraced report as well as intimation to the Transport Department with request to keep the document of the insured vehicle in safe custody was also supplied to the OP.
4.  Ultimately, OP repudiated the claim vide letters dated 14/03/2018 and 10/07/2018, on the ground that the vehicle was being used for commercial purpose thereby violating the provisions of ‘Limitation of use’.  Feeling aggrieved by the repudiation of the claim, the complainant has prayed for  directions to OP to release the claim of Rs.1,55,591/- (IDV of the insured vehicle) along with interest @18% p.a. for the delay; compensation of Rs.2,00,000/-on account of harassment and Rs.25,000/- as litigation expenses.
5. The complainant has annexed the certificate cum policy schedule as Annexure-A,  copy of Registration Certificate as Annexure–B, e-FIR No.388/2018 dated 04/01/2018 as Annexure-C, order dated 23/02/2018 accepting the untraced report by Ld. ACMM, North West District, Rohini Court, Delhi  Annexure-D, intimation to RTO for safe keeping of the record as Annexure-E, letter dated 21/06/2018 written to OP as Annexrue-F1 along with emails are Annexure F-2 to F-3.  The repudiation letter dated 14/03/2018 and 10/07/2018 are Annexure G-1 and Annexure-G-2 respectively.
6. Notice of the present complaint was issued to OP, thereafter, written statement was filed on their behalf, where they have taken several pleas in their defence such as: complaint was bad for non-joinder of bank, as bank is the necessary party; there is no deficiency of service on the part of OP as the claim was repudiated for breach of ‘Limitation as to use’ clause of the policy. They have reproduced the statement of the complainant made to the investigator, where it was stated by the complainant that he was using the insured vehicle for private booking for marriages, temple and other places etc. and was earning Rs.20,000/- per month.
7. As per the ‘Limitation as to use’ clause :

Use only for social, domestic and pleasure purposes and for the Insured’s business.The policy does not cover the use for:

1. Hire or Reward ii) Carriage of goods (other than sample or personal luggage) iii) Organised racing iv) Pace making  v) Speed testing,  vi) Reliability trial vii)  Any purpose in connection with motor trade

 

Further, as per General Exception No.3 (a), the Company shall not be liable under this policy in respect of:

Any accidental loss, damage and/or liability caused sustained or incurred whilst the private car insured herein is

1.  Being used otherwise than in accordance with the limitation as to use.

 

8. The existence of insurance cover is admitted.  It has been denied that the car was properly locked. It has been submitted that the claim was rejected after thorough investigation and application of mind based on the Investigation report dated 24/02/2018 and addendum Report dated 12/07/2018, by investigator, Jain & Associates.  It has been denied that the investigator had taken the signature of the complainant on blank pages.
9. They have further submitted that the investigator had written letter dated 03/1/2018 and 22/01/2018 to the complainant to submit the documents, however, the complainant failed to do so. Rest of the contents of the complaint have been denied with the prayer for the dismissal of the complaint with cost.
10. OP has annexed the copy of the Certificate cum policy schedule with terms and conditions as Annexure R-1(colly), theft investigation report by Jain & Associates, Investigator as Annexure R-2 (colly) and the repudiation letter 14/03/2018 and 10/07/2018 are Annexure R-3 (colly).
11. Rejoinder to the written statement to the OP was filed by the complainant, where, the contents of the written statement have been denied stating them to be wrong, false and incorrect.
12. Evidence by way of affidavit was filed on the behalf of the complainant, he has reaffirmed the averments made in the complaint.  The complainant has relied upon the documents annexed with the complaint and has got them exhibited.  The insurance policy is Ex.CW-1/A, Copy of registration certificate Ex.CW-1/B, FIR as Ex.CW-1/C, Untraced report and letter to Transport Department are Ex.CW-1/D and Ex.CW-1/E respectively.  The complainant has also got exhibited the communication with OP as Ex.CW-1/F-1 to Ex.CW-1/F-3 and repudiation letter dated 14/03/2018 and 10/07/2018 as Ex.CW-1/G-1 and Ex.CW-1/G-2. 
13. Sh. V.Harishankar, Senior Legal Executive was examined on behalf of the OP.  He has also reiterated the contents of their written statement and has relied on the documents annexed with it.  OP has also filed an affidavit of Sh. Lakshay Jain, Investigator in support of their defence.  He has deposed that he had conducted the investigation and submitted the report dated 24/02/2018 and 12/07/2018.
14. We have heard the argument of the Ld. Counsel for the complainant and Ld. Counsel for OP and have perused the material placed on record. We have also gone through the written submissions filed by the parties. The complainant is aggrieved by the repudiation of his claim on account of breach of policy terms and conditions pertaining to ‘Limitation of use’.  The said claim was repudiated vide letters dated 14/03/2018 and 10/07/2018 Ex.CW-1/G-1 and Ex.CW-1/G-2 respectively.  The factum of theft is not in dispute. As per the investigation report, Annexure R-2(colly) the investigator observed that the theft of said vehicle appears to be genuine and no malafide intention or breach of contract is found on the part of insured.  An immediate action was taken by the insured in intimating to police for taking necessary action at their end.  No negligence is observed on the part of insured.  Even in addendum report dated 12/07/2018, the investigator has suggested insurer (OP) to collect:

i) Original RC ii) Loan account statement from financer and iii) Service record, before the settlement of the said theft claim.

The investigator has observed that there was no malafide intention or breach of contract on the part of insured.

15. Hon’ble Supreme Court, in “National Insurance Co. Ltd. versus Nitin Khandelwal, 2008(7) SCALE, 352” has held that:

 

13.....In the case of theft of vehicle breach of condition is not germane. The appellant Insurance Company is liable to indemnify the owner of the vehicle when the insurer has obtained comprehensive policy for the loss caused to the insurer. The respondent submitted that even assuming that there was a breach of condition of the insurance policy; Insurance Company ought to have settled the claim on non-standard basis. The Insurance Company cannot repudiate the claim in toto in case of loss of vehicle due to theft.

 

16. Similarly, Hon’ble Supreme Court  in the case of “Amalendu Sahoo vs. Oriental Insurance Company Ltd., (2010) 4 SCC 536”, has held that in case of any variation from the policy document/any breach of the policy document, the Insurance company cannot repudiate the claim in toto and the claim of the complainant ought to be settled on non-standard basis.
17. Therefore, in the light of the above judgements, OP could not reject the claim of the complainant in toto and should have settled the claim of the complainant on non-standard basis. The rejection of the entire claim of the complainant definitely amounts to deficiency in services.
18. Hence, in the facts and circumstances of the present complaint, we direct OP to:

1. Pay Rs.1,16,694/- (75% of the IDV of Rs. 1,55,591)
2. Pay interest @ 7 % per annum on Rs.1,16,694/- from the date of filing of present complaint till realisation
3. Pay Rs. 25,000/- on account of compensation for mental harassment and agony, inclusive of litigation expenses.

The order be complied within 30 days from the receipt of the order. In case of non-complaince, Rs.1,41,694/-(clause i +iii) shall carry interest @9 % per annum from the date of order till realisation.

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	(Divya Jyoti Jaipuriar)                       President