Before the District Consumer Dispute Redressal Commission [Central District] - VIII, 5th Floor Maharana Pratap ISBT Building, Kashmere Gate, Delhi
Complaint Case No. 365/15.12.2015
Vijay Kumar Sharma s/o Shri Amar Nath Sharma
Regd Office - CW.537 Sanjay Gandhi Transport Nagar
Samai Pur, North-West, Delhi-110042
Also at - Flat no.1/1,Pocket A-3, Sector-7
Rohini, Delhi - 110085 ...Complainant
Versus
OP SBI General Insurance Co. Ltd
B, near Rajendra Place, Metro Station
Opposite Siddharath Hotel, Pusa Road
Bank Street, Delhi-110005 ...Opposite Party
Date of filing: 15.12.2015
Date of Order: 03.02.2024
Coram:
Shri Inder Jeet Singh, President
Ms. Shahina, Member -Female
ORDER
Inder Jeet Singh, President
1.1. (Case of complainant) - Complainant Vijay Kumar Sharma, registered owner of truck bearing registration no. HR-55K-7075 ( hereinafter referred as, vehicle or truck) got insured his truck from OP/SBI General Insurance Company Ltd. vide policy no. 0000000000984814-01 for period from 18.05.2014 to 17.05.2015, IDV of Rs. 17,00,000/- against payment of premium (briefly 'the policy' or 'insurance policy'). On 27.11.2014 at about 12:00 am (during the validity period of insurance policy) the said truck was burnt in episode of fire, FIR was also registered with the concerned police station. The OP was also informed of the incident and relevant documents were furnished.
OP had appointed its surveyor, who conducted the survey. The officials of OP had valued salvage of the truck for Rs. 2,05,000/-, for which the complainant had no issue; he was ready to settle the claim. Now, OP is indulging in bad practice of bargaining as meager amount is being offered in place of IDV of Rs. 17,00,000/-. The settlement of his claim was delayed. The complainant is suffering because of negligence and deficiency in service by the OP, since the local body of MCD are levying charges/challan for parking of vehicle for everyday, which is another financial burden on the complainant as well as business losses being suffered by him. The complainant also served OP with legal notice dated 16.11.2015 through his counsel but it was not replied or complied by the OP. That is why the complaint for appropriate directions to the OP to pay insured amount/IDV of Rs.17,00,000/- in lieu of damages to the vehicle; Rs. 1,50,000/- in lieu of compensation on account of pain, mental tension, challan levied by MCD, apart from cost of Rs. 50,000/-.
1.2. The complaint is accompanying with copies - of insurance policy, driving license of complainant, FIR no.991/14 registered u/s 302/201 IPC in P.S. Kotputali, District- Jaipur Rural, legal notice dated 16.11.2015 postal receipt with tracking report of service of notice.
2.1 (Case of OP/Insurer) - The OP filed brief written statement (it is colour photocopy). OP opposes the complaint that it was filed without clean hands. It is a premature complaint since it was filed during the pending of claim of complainant with OP.
The surveyor was appointed; he is an independent authority to assess the loss, who furnished his report and weight-age is to be given to the report of surveyor, being a settled law [ by virtue of United India Insurance Co. Ltd. and others vs Roshan Lal Oil Mills and others 2000(10) SCC 19 & D.N. Baduni vs Oriental Insurance Co. Ltd. 2012 CPJ 272 (NC)]. However, the surveyor's report is subject assessment by Insurer/OP for entitlement of claim. The OP had also given reply to legal notice.
2.2 The complainant was required to cooperate with OP and supply the requisite documents, then OP will be in a position to process the claim of complainant on merit that too within the parameter and conditions of insurance policy. The OP has not indulged in any bad practice. The liabilities of OP is restricted upto amount assessed by the surveyor. There is no merit in the complaint.
2.3 The written statement is not accompanying any documents or with any surveyor report despite referred in reply.
3. (Replication of complainant) - The complainant files detailed rejoinder, he has reiterated his complaint while denying the allegations of written statement as well as about reply of legal notice. The complainant reaffirms his claim in the rejoinder. He also filed the OP's reply dated 30.12.2015 to he legal notice (twhich was subsequent to filing of complaint)
4.1 (Evidence of parties) - The complainant Vijay Kumar Sharma led his evidence by filing filed his detailed affidavit, it is composite of pleadings and documents inclusive of OP's reply dated 30.12.2015 to legal notice
4.2 Similarly, OP also led its evidence by filing affidavit of Sh. Akhil Kulhari, Legal Officer and in fact the evidence of OP is replica/mini extract of written statement, it is annexed with the reply to legal notice (without permission of Commission, since documents ought to have been filed at initial stage of pleading and subsequently only with the permission of the Commission). It is relevant to mention that author of affidavit of evidence and of written statement is same person, the affidavit also gives reference of surveyor report but surveyor's report was not filed.
5.1 The complainant filed written arguments but no written arguments by OP despite opportunities. However, at the stage of oral submissions, Sh. Ravinder Kumar, Advocate for complainant and Sh. Mohit, Advocate for OP made the submissions. The complainant has also referred case law in support of his contentions, it will be referred at appropriate stage.
Moreover, two more developments had taken place during the pending of complaint, the same are being detailed hereunder next sub paragraphs.
5.2. Firstly, when the matter was sub-judice for evidence by OP, there was issue of certain documents, the same were discussed and mentioned in proceedings dated 22.12.2017, one of them was in respect of letter dated 14.08.2015 in respect of seeking various documents from the complainant vis-à-vis the original documents were provided to the insurer/Relationship Manager of OP under acknowledgement on 17.05.2015 that fact was also recorded in the same proceedings.
5.3. Since the OP had not filed survey report either with the written statement nor with evidence despite mentioning so, the OP came with an application proposing to file the surveyor report at the juncture of final argument, however, by reasoned order dated 31.07.2023 the application of OP was dismissed. Further, the complainant also filed an application to support final argument with photocopy of letter dated 14.08.2015 that documents were received by the OP under acknowledgement and it supplements the case of complainant that documents were actually received by the OP under acknowledgement. The request of complainant was allowed by the same order dated 31.07.2023.
6.1 (Findings) – The rival contention of the parties are considered keeping in view their case, pleadings, evidence and provisions of law besides case law presented. The submissions of both the sides are not being reproduced as the same will be dealt appropriate point-wise.
However, there are some admitted facts and other are disputed facts. There is no dispute that the complainant is insured, as he got the vehicle insured from the OP and incident of fire took place during the currency of insurance policy. The vehicle was burnt in that episode. There was police report. There was also appointment of a surveyor and he had carried the inspection. The surveyor had also furnished his report but it was not filed with the written statement nor proved in evidence. The complainant sent the legal notice but till the filing of complaint the legal notice was not responded by the OP, subsequently the OP has sent reply dated 30.12.2015, which has been referred by the complainant in his evidence as well as by the OP, in its written statement and evidence. The OP’s plea is partly based on reply to legal notice, as some of the facts mentioned in reply to legal notice were put contrary to it in the written statement.
But the other circumstances are disputed by the parties, inclusive of want of mentioning the salvage value of the vehicle as well as about the opinion of surveyor in respect of assessment of the damages.
6.2.1 It is already emerged that the written statement filed is not original written statement but it is a colour photocopy, which cannot be accepted as a written statement. Whereas, on the other side it stand explained on behalf of OP that this objection was not taken in the replication, otherwise the written statement was received by electronic mode and it may be considered.
6.2.2 The settled law is the pleadings should be in original and not by way of a photocopy much less a colour photocopy. Since, this matter pertains to year 2015 and in order to avoid de-novo trial, and taking it as an exception, the written statement is being considered to decide the matter on merits. This contention is disposed off.
7.1 The next issue is regarding the salvage value. The complainant has mentioned that the OP has assessed salvage value of Rs. 2,05,000/- of the burnt vehicle, which the complainant had heard in the office of OP but OP does not confirm it except that loss was assessed by a competent and independent surveyor. Then, what is the picture thereof?
7.2 On plain reading of written statement of OP, reply of legal notice and evidence of the OP, nowhere there is mentioning of any fact of salvage value nor of the amount of assessment of damages, if any, by the surveyor. Thus, it is an hearsay that the salvage value was Rs. 2,05,000/-. Although, the surveyor report cannot be read as an evidence since it was not taken on record but the surveyor report is available on the file, it was not provided to the complainant. For the sake of clarification, the surveyor does not decipher any salvage value but zero salvage. This contention is also disposed off.
8.1 The other dispute between the parties is in respect of settlement of the claim as according to case of OP, the OP was not cooperating but complainant failed to supply all requisite documents, that is why the OP contended that it shall remain willing to consider the claim of complainant on merits on providing the record and as per merits of the policy condition besides referring the report of surveyor. The OP in its reply dated 30.12.2015 of the legal notice also declares that the claim of complainant still open and under process and it will be assessed accordingly, but the notice is pre-mature. The complaint is also premature.
But on the other side, the complainant has reservation that all the documents were provided to the surveyor and to OP. Thence there was another letter for further information by letter dated 14.08.2015, that was also complied with by providing documents under acknowledgement to the OP, which is manifest on the face of that letter on record. Further, the OP is taking unnecessary objection and plea regarding deficient documents, whereas, in reply dated 30.12.2015 para-2(iv) the OP clearly mentions that they have assessed the loss and damages, the relevant proceedings for the payment of assessed amount is under process, the claim shall be settled by them at the earliest, however, the claim was not settled and paid to the complainant. The plea of OP is mala-fide from all angles.
8.2 The rival contention on this issue is assessed on the basis of material on record. It is matter of record that the OP has mentioned about the surveyor report (without date) in the reply to legal notice as well as in its pleading & evidence but nowhere assessed damages has been mentioned. The OP also takes stand in the reply and evidence that it will consider the claim of complainant subject to supplying all requisite documents; it is opposed by the complainant.
The reply dated 30.12.2015 also reflects that the OP has evaluated the damages on the basis of documentary record furnished by the complainant to the surveyor or to the OP. This reply dated 30.12.2015 is much prior to written statement and evidence filed by the OP. Moreover, the complainant has been maintaining throughout that the OP and its surveyor were provided complete record. Further, the OP filed an application proposing to take on record surveyor's report dated 23.07.2015, although this request was declined by reasoned order 31.7.2023. The surveyor report in file, [as proposed by the OP], reflects assessment of the loss was on the basis of estimates/documents and other enquiry, therefore, the OP is pleading with mala-fide about want of supply of documents by the complainant. In addition, the OP's letter dated 14.08.2015 (which is after surveyor report dated 31.7.2015) seeks additional documents from the complainant, the receipt of such documents by OP by acknowledging on that letter, is not disputed. Therefore, it is held that the OP had received all the documents and also assured for settlement of the claim but it was not done by the OP.
In fact, the OP is also taking inconsistent stand about deficient documents, since the surveyor has not reported for any deficient document. Since surveyor was having complete record, that is why the surveyor was able to assess the damages (although the OP has withheld that information of amount of assessment of damages throughout in the pleading and evidence). But the complainant was asked by OP by its letter dated 14.08.2015 about additional documents, which were complied by the complainant and despite it false plea has been taken in the written statement and evidence that there was want of supply of documents by the complainant. Accordingly, it is held that the OP and its surveyor were supplied with all the record. It is also held that the OP's plea of premature legal notice or of premature complaint is vexatious, false and motivated, it is without any substance and basis. The complaint is a valid complaint.
8.3. This conduct of OP or its official is also reflecting from the record of proceedings of this case As per proceedings dated 15.12.2017, the OP was also again protesting that documents were not received and in the proceedings dated 22.12.2017, it was also recorded on submissions of OP that no further documents were required to settle the claim and report to furnish about settlement of claim. Thus, it was recorded in the proceedings dated 29.01.2018 by Ld. Predecessors that there was non-compliance of previous order. In the proceedings dated 26.02.2018, there is statement on behalf of OP to effect that all the documents and record pertaining to vehicle has been verified. But no report for settlement of claim.
9.1 The complainant has also proved copy of FIR about the episode happened with the vehicle and its driver, the vehicle was burnt and this FIR No. 991 dated 28.11.2014 was registered u/s 302/201 IPC at P.S. Kotputali, District Jaipur Rural, which was the cause of damage. The vehicle was recovered but it is lying in burnt condition and there was no settlement of claim by the OP. The complainant also contends that the vehicle was burnt and there was total loss, the complainant is deprived of the sum insured to earn his livelihood. In addition to the sum insured of Rs.17 Lakhs, he is also entitled for interest as held in M/s Magppie International Ltd. Vs. Oriental Insurance Company Limited & Anr. (2017) 2 CPJ 126 (NC) dod 23.01.2017, wherein it was held that interest at the rate of 2% above the bank rate prevalent at the beginning of financial year in which claim is reviewed was determined. The complainant is also entitled for the interest besides other claims.
But on the other side, the OP has reservation that complainant could not prove the total loss as claimed in the complaint and the complaint is based on wrong and imaginary fact like there was salvage of Rs. 2,05000/- or MCD challan for parking of the vehicle or loss of income, etc. There is no substance in the claim of complainant nor it was proved by him.
9.2 The submissions of the parties are emerging from the record. It is apparent that the OP had appointed the surveyor, who carried the inspection and also surveyed the matter, however, the surveyor report has not been proved by the OP. Moreover, there is also no mentioning of amount of loss assessed or reasons for such assessment either in the written statement or evidence or reply to legal notice, which was determined by the surveyor. Therefore, there is no proof of amount of assessment of damages by the OP. In fact, the OP has with-held surveyor's report and information of assessment of loss, this was with-held by OP at its own perils and consequences. Simultaneously, there is no evidence by the OP that the vehicle was reparable. The complainant has also proved that the vehicle was burnt and it is still lying stationary at the place of MCD parking, for which he is bearing challan/expenses. But the complainant could not prove either the challan/expenses borne by him. The circumstances are establishing that there was total loss to the vehicle. The OP has not settled the claim despite hollow projection in the reply dated 30.12.2015 to settle the claim. Hence, for want of settlement of valid claim by the OP, it amounts to deficiency of services. The complainant is held entitled for sum insured of Rs. 17 lakhs for the said vehicle. To that extent, the complaint is allowed.
9.3 The complainant claims Rs. 1,50,000/- as compensation in lieu of harassment, mental tension, pain, and MCD challan/parking charges, etc. Whereas, the compensation ought to be commensurate with the sufferings. The complainant suffered the trauma in pursuing his claim while running from post to pillar, since there was registration of criminal case besides repeated request and visits to the surveyor and OP. Moreover, the acts, conduct and reluctance on the part of OP, besides with-holding material record, by OP is also manifesting OP was intentionally avoiding to settle the valid claim of the complainant. Therefore, compensation of Rs. 30,000/-, would meet both ends and accordingly, it is determined in favour of complainant and against the OP. There is no proof of parking charges/challan/expenses by the complainant.
9.4 The complainant is also claiming cost of Rs. 50,000/-. It is matter of record that before filing the complaint, he also sent legal notice, which was responded by the OP but claim was not settled and he was constrained to file complaint and to prosecute to it. Therefore, cost of Rs. 25,000/- is also allowed in favour of complainant and against the OP.
9.5 The complainant has not requested for interest in the complaint but requests for other appropriate relief and the complainant refers and relies upon case law M/s Magppie International Ltd. (supra) for claim of interest. Since the complainant was deprived of sum insured long back, therefore, interest at the rate of 5% pa from the date of complaint till realization of amount is allowed in favour of complainant and against the OP.
10. Is there further scope for other appropriate relief to the circumstances of this case, since OP was taking frivolous, vexatious and other inconsistent plea to avoid its legal obligation under the insurance policy to settle the valid claim. What it could be? Whether punitive damages or else? Whether it would be fit in this case to award punitive damages?.
What punitive damages means and what is its purpose? The punitive damages ( or in other words exemplary damages) are assessed and awarded in order to pinch respondent for outrageous/intolerant behaviour and/or to refrain it or to deter others from engaging in conduct similar to that which formed basis of law suit. This damage is also imposed to reform defaulting party as well as to deter others from indulging in such wrongs. To say, a faulting party shall add to its experience to avoid its repeat. The punitive damages are generally given in civil action, however, there is also provision in section 14(1)(d) the Consumer Protection Act, 1986 for punitive damages. The punitive damages are not fine or penalty as fine is imposed in criminal trials.
By reading evidence on record and paragraphs 8 and 9 above (being not reproduced herein), it is crystal clear that OP indulged into process to halt the settlement of claim and to avoid its obligation, for which inconsistent, contradictory and vexatious stand was taken by projecting them as if it were fair, but no so. It is to be curbed. Therefore the proved circumstances are suggesting that it is fit case to award punitive damages and the same are quantified as Rs.20,000/- in favour of complainant and against OP, keeping in view situation of this case. It is upto discretion of OP to recover it from their defaulting officers/officials indulged into, if so advised, being its in-house arrangements.
11. Thus, the complaint is allowed in favour of complainant and against the OP while directing the OP to pay an amount of Rs. 17 lakhs along with interest at the rate of 5% pa from the last date complaint till the realisation of amount besides damages of Rs. 30,000/, costs of Rs. 25,000/- and punitive damages of Rs.20,000/- payable within 45 days from the date of this final Order. In case the amount is not paid by the OP within 45 days from the date of this order, then the interest rate will be 7% pa on amount of Rs. 17 lakhs (instead of rate of 5%pa). The OP may also deposit the amount by way of pay order/demand draft in the name of OP in the Registry of this Commission
12. Announced on this 3rd day of February 2024 [माघ 14, साका 1945]. 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)
