Delhi

East Delhi

CC/479/2021

MOHD. NAIF - Complainant(s)

Versus

ROYAL SUNDRAM G.I.C. - Opp.Party(s)

31 Jul 2023

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION (EAST)

GOVT. OF NCT OF DELHI

CONVENIENT SHOPPING CENTRE, FIRST FLOOR,

SAINI ENCLAVE, DELHI – 110 092

 

C.C. No.479/2021

 

	MOHD. NAIF S/O MOHD. AFSAR R/O H. NO.20/383, TRILOKPURI, DELHI - 110091	….Complainant
Versus
	ROYAL SUNDARAM GENRAL INSURANCE CO. LTD. (THROUGH ITS MANAGER) PLOT NO. AMBADEEP BUILDING, 108/109/111, 1ST FLOOR, KG MARG, BARAKHAMBA ROAD, NEW DELHI – 110001.    ALSO AT:- VISHRANTHI MELARAM TOWER, NO.2/319, RAJIV GANDHI SALAI, (OMR) KARAPAKKAM, CHENNAI – 600097.	……OP

 

 

Date of Institution	:	25.11.2021
Judgment Reserved on	:	11.07.2023
Judgment Passed on	:	31.07.2023

 

QUORUM:

 

Sh. S.S. Malhotra	(President)
Ms. Rashmi Bansal	(Member)
Sh. Ravi Kumar	(Member)

 

Order By: Ms. Rashmi Bansal (Member)

 

 

 

JUDGMENT

 

The present complaint is filed by the complainant against repudiation of his vehicle insurance claim by OP alleging deficiency in service and unfair trade practice on the part of OP, because of which the complainant suffered financial loss, harassment, and mental agony and prays for his claim with interest, compensation and litigation cost.

1. It is the case of the complainant that his vehicle, a motorcycle, was insured with OP for a period from 09.03.2020 to 08.03.2021 on payment of the required policy premium.  On 27.12.2020, the above-stated vehicle was stolen, information of which was given to PCR at phone number 100/112 and an e-FIR was lodged on 28.12.2020, bearing number 034012/20. The OP was intimated about the incident and the surveyor visited and inspected the spot, made inquiries and filed its report regarding the theft. Vide letter dated 21.04.2021 OP asked for some documents for completing the formalities, which were submitted by the complainant, however, the OP rejected the claim of the complainant vide its repudiation letter dated 22.07.2021 and further on 07.09.2021, on the ground of misrepresentation stating that the ignition keys of the vehicle, submitted to the OP, were found inconsistent, different and not identical. The complainant submits that the act of the OP is unwarranted, uncalled and arbitrary as he has not violated any terms and conditions of the policy and paid the premium without default. The legal notice dated 28.08.2021 sent to the OP remained unanswered. The complainant submits that the rejection of his genuine claim amounts to a failure to provide proper service to the complainant and OP is involved in unfair trade practice as he has been deficient in his services, which caused him harassment and mental agony and he has also suffered financially.  complainant submits that he had two keys of the motorcycle but only one key was used by him and the other key remained unused. The complainant has filed the untraced report dated 04.06.2021.
2. Upon notice, the OP has filed its reply. The policy issued to the complainant is not disputed. The OP has appointed an investigator after receiving the information of theft of the above-said vehicle, who submitted its report dated 16.02.2021 stating that the keys of the vehicle were not found in order and recommended a forensic test, which vide its test report dated 09.02.2021 stated that the keys submitted by the complainant are not genuine. OP submits that the complainant has misrepresented the facts regarding the second key which was replaced by a duplicate key as the original one was misplaced. It is further stated that the repudiation on the grounds of misrepresentation is correct and the complainant's complaint is liable to be dismissed as he is not entitled to any compensation from OP.
3. The complainant has filed a rejoinder negating the contents of the written statement filed by the OP and has reiterated his version taken in the complaint. Complainant filed his evidence supported by the documents.
4. OP although filed its Written Statement but failed to file the evidence in terms of the order dated 17.04.2023 of this Commission, whereby he was directed to file the evidence within 15 days and if the same is not filed within 15 days, then OP would pay cost of Rs.1000/- to the complainant. As per the order, the OP was required to file the evidence latest by 03.05.2023 but the same was filed on 11.07.2023 and despite repeated inquiries by the Commission, OP did not pay the cost, instead, the counsel for OP stated that the matter be decided on merit. Though this Commission has the power to close the opportunity to file the evidence by OP on its failure to pay the cost, however,  in the interest of justice the same is taken on record subject to payment of cost of Rs.1000/- earlier imposed and the same would be now the part of the judgment.
5. The complainant has filed his evidence and the documents supporting his claim:

1. The copy of the RC, Ex. CW1/A,
2. The copy of the E-FIR bearing number 034012/2020, Ex. CW1/B;
3. The copy of the untraced report dated 04.06.2021, Ex. CW1/C;
4. The copy of the final information report, Ex. CW1/D,
5. The copy of the insurance policy, Ex. CW1/E;
6. The copy of the affidavit dated 03.07.2021 Ex. CW1/F;
7. The copy of the letter of OP dated 21.04.2021 Ex. CW1/G;
8. The copy of the letter issued by OP dated 22.07.202, Ex. CW1/H,
9. The copy of the letter of refusal of claim dated 07.09.2021 Ex. CW1/I;
10. The copy of the legal notice dated 28.09.2021, Ex. CW1/J and postal receipt, Ex. CW1/K

6. In support of its case, OP has filed a copy of the policy, Ex. R1; the copy of the investigator report dated 16.02.2021, Ex. R2; the copy of the forensic report, Ex. R3. 
7. The commission has perused the record as well as the documents filed by both parties and heard the arguments. The policy issued to the complainant, insurance in favour of the complainant, the factum of the theft, FIR and the untraced report of the vehicle are not in dispute. It is also admitted that there is no break in the previous and present policies and the insured has 0% NCB in the current policy. It is also confirmed that the complainant is the second owner of the vehicle which got transferred in his name and he is having original verified R/C. The only issue is OP’s objection concerning the keys of the said vehicle, which as per repudiation letters are inconsistent, different and not identical. The onus to prove this issue is upon OP.
8. The policy document filed by the complainant shows that the policy is only one-page policy and no terms and conditions have been provided to the complainant. It only mentions that the terms and conditions may be checked out from OP’s website. The complainant has submitted that he is not internet technology savvy and was not aware of the term and conditions of the policy. The OP has filed a detailed policy document which nowhere explicitly discloses the requirement of the keys to be submitted to the insurance company in case of theft of the insured vehicle. Even if this is the condition, based on which the claim of the complainant is rejected, then also OP has not produced any document on record to show that such is the requirement in case of a claim of the theft and that the same had been brought to the knowledge of the complainant. Unless the complainant is aware of any such terms or conditions at the time of issuance of the policy, exclusionary clauses are not applicable.  Hon'ble Supreme Court stated in New India Assurance Co Ltd versus Paris Mohan Lal Parmar, in CA 10398 /2011, vide order dated 04.02.2020 has held that the insurer had to prove that the insured was aware of the policy's terms and conditions when the policy was issued to him.  If the insured is not aware of the terms and conditions of the policy, the claim cannot be rejected and directed insurance company to pay the claim.
9. The OP failed to prove that the terms and conditions of the Insurance Policy were ever furnished to the complainant when the policy document was issued in his favour. The Commission has not come across any tangible material to infer that the relevant terms and conditions of the Insurance Policy were brought to the knowledge of the complainant.
10. Further, the investigator has filed a statement dated 06.01.2021 of the complainant wherein the complainant has stated that he has used one key only and never used the other key and that has never made any duplicate key. There is one affidavit dated 05.07.2021 also filed by the complainant wherein it is mentioned that he made the other key because he lost one at home and later found the original key. The statement dated 06.01.2021 made to the investigator is prior in time to the said affidavit dated 05.07.2021 and was recorded immediately after the theft. The said affidavit is not addressed to anyone and nowhere it is mentioned what the purpose to issue that. This appears to us that the same has been got executed from the complainant under some pretence as it has no relevance after the investigator has filed its report.  Under this situation, the said affidavit cannot be appreciated. 
11. The perusal of the forensic report stated that one key, marked as S1 is original and the other key S2 is duplicate in nature which is not issued by the company. It is also mentioned that the key marked as S1 is a used key and S2 is unused. It is also stated that S1 and S2 are morphologically the same and belong to the same lock but the key S2 is not originally issued by the company. The said statement corroborates the complainant’s statement to the investigator that he has used one key only and has never used the other key. Even otherwise, since both the keys were handed over to the OP, which establishes that the duplicate key had no role to play in the theft of the vehicle in question.
12. In light of the above discussion, this Commission finds that the complainant has duly proved his entitlement to the insurance claim by a preponderance of probability and OP is found deficient in his service in rejecting the claim of the complainant and has caused harassment and mental agony to the complainant as well as the financial loss. Therefore, the complainant is entitled to the insurance claim in respect of the subject vehicle. The insurance policy mentions the Insured Declared Value (IDV) of the subject vehicle as Rs. 44,000/-. The policy currently covers, the loss by theft to the insured vehicle that occurred on 27.12.2020, therefore, the OP is liable to indemnify the complainant.
13. Therefore, OP is directed to pay the claim of the complainant i.e. the IDV of the said vehicle, Rs. 44,000/- along with interest @ 9% p.a. from the date of repudiation of the claim, i.e. 22.07.2021 till its actual realisation by the complainant. The OP is also directed to pay a compensation of Rs.10,000/- and a litigation cost of Rs.5000/- to the complainant along with a cost of Rs. 1000/- as imposed upon OP for his failure to pay the earlier cost in filing the evidence within the given time.
14. The above-said order be complied with within 30 days from the date of receiving the order, failing which the entire amount accrued on the 31st day, shall carry an interest at the rate of 12% per annum.
15. A copy of the order is sent to the parties as per CPA rules.
16. The order contains 08 pages, each beer, our signature.
17. File be consigned to Record Room. 
18. Announced on 31.07.2023.