Before the District Consumer Dispute Redressal Commission [Central], 5th Floor ISBT Building, Kashmere Gate, Delhi
Complaint Case No.-158/2017
Neeraj s/o Sh. Mahabir Prasad,
R/o-H.No.-974, Block-I,
Jahangir Puri, Delih-110033 ...Complainant
Versus
SBI General Insurance Company Ltd.
Through
General Manager,
7B, Ground Floor, Rajender Park,
Pusa Road, New Delhi-110060 ...Opposite Party
Date of filing: 03.07.2017
Date of Order: 23.09.2023
Coram: Shri Inder Jeet Singh, President
Ms. Shahina, Member -Female
Shri Vyas Muni Rai, Member
Vyas Muni Rai
ORDER
1.1. The instant complaint has been filed by Sh. Neeraj (in short the complainant) against SBI General Insurance Company Ltd. through its General Manager (in short OP) under Section 12 of the CP Act, 1986.
1.2. The complainant is owner of vehicle Canter Eicher 1110 bearing registration no. DL-1GC-0593 which was purchased by him in July 2012 and same was partly financed by Cholamandlum Investment and Finance Company Ltd..
1.3. The complainant took an insurance policy under Commercial Motor Goods having policy no. 00000000002320923 from the OP and policy was effective from 03.12.2014 to 02.12.2015 with premium of Rs. 30,220/-.
1.4. On 23.09.2015, the complainant sent his vehicle through his driver namely Sh. Bindeshwari Singh from Delhi to Jaghadhari. The driver, during his travel when he was at Sadhaura, felt sleepy due to continuous driving then he parked the said vehicle along the roadside and took the sleep; when he got up at 07:30pm he went to field to attend nature’s call but on return he found the said vehicle missing from the site. The driver informed the complainant and also to the local police. A complaint regarding the theft of the said vehicle was lodged by the complainant’s driver Sh. Bindeshwari s/o Kedar Singh and FIR no. 129/2015 u/s 379 of IPC was lodged on 25.09.2015, at P.S. Sadhaura, District-Yamuna Nagar.
1.5. Thereafter, complainant informed OP about the theft, which was acknowledged by the OP vide its letter dated 30.09.2015 sent to the complainant. The complainant provided all the requirements/ documents to the OP as sought in the said letter to fulfill the complete process for the claim no. 204489. But OP had wrongly and falsely alleged in the acknowledgement letter dated 30.09.2015 that the said vehicle was stolen from Delhi. The OP had neither appointed any Invisible Investigator to investigate the case nor any so-called investigation agency had ever served notice to join the investigation by the complainant or his driver.
1.6. The police officials after carrying the investigation in the said FIR filed final report dated 22.12.2015 in the concerned Court as ‘Untraced’. On receipts of the untraceable report from the police officials, the complainant visited the office of OP number of times. Since, he has provided to the OP all the documents which was required by it by letter dated 30.09.2015 but OP failed to pay any heed to the complainant’s claim and even denied to issue the claim form to initiate the claim process. The stolen vehicle was duly covered under the insurance policy taken from OP.
1.7. On 07.07.2017, the complainant had sent legal notice to the OP which was replied vide by letter dated 16.05.2017 but claim of the complainant was rejected taking the shield that it had appointed independent investigator, who submitted the final report (in collusion with the OP) saying that ‘causing of theft is negligence of the driver who had left the ignition key in the vehicle itself, it is a clear violation of condition no. 5 of the policy. However, OP had not communicated any kind of rejection decision of the claim to the complainant, which was rejected vide its letter dated 10.03.2017.
1.8. Complainant prays direction to OP to pay to the complainant Rs. 16,03,300/- (Rs. 9,00,000/- amount of vehicle insured, Rs. 3,78,000/- interest at the rate of 24% pa w.e.f. Sep. 2015 to June 2017, Rs. 3,00,000/- on account of damages and loss of income suffered and Rs. 25,000/- as litigation expenses) on account of insurance cover and loss suffered by him.
1.9. Complaint is accompanied with two pages insurance policy, copy of FIR, claim acknowledgement letter dated 30.09.2015, copy of untraced report, copy of legal notice, copy of reply of legal notice dated 16.05.2017 etc.
2.1. The OP files reply (without disclosing about author of the reply). The said vehicle was stolen on 23.09.2015 as the driver of the complainant parked the vehicle in unlocked condition with the key left in the ignition switch. The complainant failed to intimate to the OP the occurrence of theft immediately. The loss was reported to the OP on 28.09.2015 with a delay of about 5 days of the alleged theft. There is breach of condition number 1 of the policy which reads as under:
“1. Notice shall be given in writing to the company immediately upon the occurrence of any accidental loss or damage in the event of any claim and thereafter the insured shall give all such information and assistance as the company shall require…..”
2.2. OP has cited case law in its reply (which will be dealt at appropriate stage). The complainant has failed to provide the relevant documents to the OP. One key of the vehicle was not made available to the OP despite repeated reminders; according to the claimant’s statement it was lost somewhere. The complainant’s driver has admittedly left the key inside the vehicle and left the vehicle unattended thereby committed act of gross negligence in taking care of the vehicle. The policy does not provide coverage in respect of acts of gross negligence. The complainant has not been able to establish that the vehicle was snatched forcibly.
2.3. The complainant has not come before this Hon’ble Forum with clean hands and is not entitled for claim. The complainant has not taken reasonable steps to safeguard the vehicle from loss and has caused the breach of policy condition no. 5 which reads under:
“5. The insured shall take all reasonable steps to safeguard the vehicle from loss or damage and to maintain it in efficient condition and the company shall have at times free and full assess to examine, the vehicle or any part thereof or any driver or employee of the insured…….”
The violation of the condition entitles the contracting party to exercise its right under the contract, hence claim of the complainant was rejected.
2.4. Despite repeated reminder, the complainant failed to provide (1) One original key and (2) to give explanation about delay in intimation. Since the complainant failed to provide these requisite document; the company left with no other option but to reject the claim of the complainant, therefore, no deficiency in service can be attributed to the OP.
2.5. The insurance policy also contains condition no. 8 which runs as under:
“8. The due observance and fulfillment of the terms, conditions and endorsements of this policy insofar as they relate to anything to be done or complied with by the insured and the truth of the statements and answers in the said proposal shall be conditions precedent to any liability of the company to make any payment under this policy.”
In view of the breach of aforesaid policy conditions, the claim of the complainant is not admissible and has been rightly repudiated. Complainant has no locus standi to file this compliant.
3.1. The complainant has filed rejoinder to the reply of OP. the complainant informed to the local police on 23.09.2015 itself regarding theft of the vehicle and information regarding theft of the vehicle was duly acknowledged by OP vide its letter dated 30.09.2015. It is admitted by the OP that it received the information about the theft of the vehicle on 28.09.2015 from the complainant which is well in time. On the receipt of the information from the driver about the theft the complainant’s brother namely Sh. Vikas reached Yamuna Nagar on 24.09.2015 and thereafter on 25.09.2015 obtained the copy of FIR from local police then copy of the FIR was provided to OP on 28.09.2015 even after receiving the information of theft and FIR to this effect. The OP being aware of the incident mentioned in its letter dated 30.09.2015 that vehicle was stolen from Delhi. OP has also cited case law ‘Oriental Insurance Company Vs. Parvesh Chander Chadda (civil appeal no. 6739 of 2010 decided on 17.08.2010), wherein, it was held that “not informing the insurance company immediately after the theft deprives the insurance company of its legitimate rights to get an enquiry conducted into the matter and such delay is fatal to the claim”. OP in its reply fails to mention as to when so-called Invisible Investigator was appointed and OP also failed to file on record any notice issued by the invisible investigator to the complainant or his driver to join the investigation or to be carried out any investigation. OP also failed to file the report of investigator on record of this Hon’ble Commission. The employee of the OP had taken signature of the complainant and his brother namely Sh. Vikas and driver of the complainant on blank paper and had also taken their photocopy of ID proof with their signatures on these photocopies under the pretext to proceed further and clear the insurance claim of the complainant.
3.2. The complainant denies that one key of the vehicle was not made available to company despite repeated reminder; as according to complainant’s statement it had been lost somewhere. Complainant provided all the required document and key of the vehicle to the OP. It is also denied by the complainant in his rejoinder that complainant’s driver has admittedly left the key inside the vehicle unattended thereby committing act of gross negligence in taking care of the vehicle. The judgment filed by OP has no link with the facts of the present case. There is apparent deficiency of services on the part of OP within the meaning of Section 2(g) of the CP Act, 1986.
3.3. OP has filed the reply to the complaint without mentioning the full name, designation and place of posting of the person. Full name and the designation of the person who signed the reply of legal notice on behalf of OP dated 16.05.2017 has also not been mentioned. OP has not filed any letter dated 10.03.2017 on record while filing its reply as these facts are referred in its reply to the legal notice wherein it is mentioned that OP informed the complainant on 10.03.2017 regarding denial of complainant’s insurance claim. The complaint has reiterated the rest of the contents of the complaint.
4. The complainant files his affidavit of evidence having support of documents filed with complaint. It is on the line of the complaint. OP has also filed the affidavit of evidence under the signature of Sh. Jitender Dhabhai, Deputy Manager, SBI General Insurance Co. Ltd. which is on the line of reply.
5. The complainant and the OP filed their written arguments (which are on the pattern of complaint and reply respectively) and it was followed by oral submission by Sh. Manoj Saxena, Advocate for complainant and on the other side, Sh. Rakesh Kumar, Advocate for OP.
6.1. (Findings)- The contentions of the parties are not repeated here, as the case of the parties have already been detailed in foregoing paras.
6.2. The contentions of both the sides are considered keeping in view the material on record. The issue raised will be determined accordingly.
6.3. The admitted facts of the parties are: the complainant’s commercial vehicle was insured with the OP vide policy no. 00000000002320923 having validity from 03.12.2014 to 02.12.2015 having a premium of Rs. 30,220/-. The vehicle of the complainant was stolen on 23.09.2015 and FIR for the same was lodged on 25.09.2015. The IDV value of the vehicle is Rs. 09 lakh.
6.4. The complainant submitted the necessary documents with OP for processing and disbursing the claim. However, OP repudiated the claim vide its letter dated 10.03.2017. The material contents in letter dated 10.03.2017 for rejecting the claim of the complainant are reproduced as under:-
“Observations:
- At the time of theft the key of the vehicle was left in the vehicle by the driver
Policy terms & conditions
Policy condition no.5:
- The Insured shall take all reasonable steps to safeguard the vehicle from loss or damage and to maintain it in efficient condition and the Company shall have at all times free and full access to examine the vehicle or any part thereof or any driver or employee of the Insured. In the event of any accident or breakdown, the vehicle shall not be left unattended without proper precautions being taken to prevent further damage or loss and if the vehicle be driven before the necessary repairs are effected any extension of the damage or any further damage to the vehicle shall be entirely at the Insured’s own risk.
Our decision:
Considering the fact that the ignition key was left in the vehicle by driver which is a gross negligence which violates policy condition no.5. Hence we deny the liability for the claim reported to us under policy no.-2320923 and claim no. 204489.”
6.5. In addition to that, OP in its reply and affidavit has also taken the plea that the loss/theft was reported to it on 28.09.2015 with a delay of about 5 days and in support of delayed intimation, OP has cited case law titled ‘Oriental Insurance Company Vs. Parvesh Chander Chadda (civil appeal no. 6739 of 2010 decided on 17.08.2010) wherein it was held that not informing the insurance company immediately after the theft deprives the insurance company of its legitimate rights to get an enquiry conducted into the matter and such a delay is fatal to the claim’.
6.6. From the contents of the rejection letter as given in the para-6.4. It is clear that the claim was rejected as the driver of the vehicle left the key inside the vehicle which is an act of gross negligence and in violation of condition no. 5 of the policy in support of violation of condition no. 5 of the policy; the OP has cited the case law titled Devinder Kumar Vs. National Insurance Company Ltd. ( RP No. 3840 o 2011 decided on 02.04.2012 wherein it was recorded as follows:-
“We have seen the facts of the case, as narrated by the driver of the dumper-truck in the FIR of 09.07.2006, in comparison with the facts as detailed by the complainant in his consumer complaint filed before the District Forum on 04.06.2007. The complaint petition is found to contain a significant omission-it does not mention that they key of the vehicle was left inside and that the cabin lock of the vehicle was not working. Both the these pieces of information are contained in the FIR as well as in the written statement of the OP/ National Insurance Company. There is no explanation why the complainant chose to omit these details when they had already figured specifically in the FIR. It is strange that the driver of the dumper truck chose to leave the key in the vehicle, knowing that the lock of the cabin of the vehicle was not functioning. It is equally strange that the driver who claimed to be sleeping practically at no distance from the vehicle had to be told by someone else that the vehicle had been stolen. In our view, the District Forum was wrong in holding that there was no negligence on the part of the driver. For the same reasons, we find ourselves in full agreement with the view taken by the State Commission. The revision petition has no merit and fails to carry any conviction. The same is therefore dismissed and the order of the State Consumer Disputes Redressal Commission, Haryana in FA no 1230 of 2008 confirmed. No order as to costs”.
However, the ratio of the case cited above by OP is not applicable in the present case as in the FIR lodged by local police on 25.09.2015, it is not mentioned that the key of the vehicle left inside and that the cabin of the vehicle was not working; because in the present complaint there is no separate statement recorded by OP that driver or owner of the vehicle left the ignition key in the vehicle reflecting his negligence. This fact has only cropped up in the para under the head ‘Observation and Findings’ and ‘Conclusion’ of the investigator’s report dated 21.12.2016 prepared by Invisible Investigators appointed by OP. Further, in the undated statement of Sh. Brindeshwari Singh (driver of the complainant) prepared on behalf of OP (page no.-26 of the paper book of OP); it is also not mentioned that driver left the key in the vehicle. Further, in another written statement of Sh. Brindeshwari Singh dated 30.01.2017 prepared on behalf of OP and signed by the driver of the vehicle; it is mentioned that start key of the vehicle was in the handle of the vehicle.
Therefore, the aforesaid written statements of Sh. Brindeshwari Singh, driver of the vehicle and written by the OP are contradictory and substantiate the stand of complainant.
6.7. Moreso, the present complaint has been filed on 03.07.2017 and OP filed reply of the complaint on 09.10.2017; there is no explanation why the statement recorded of the driver and the complainant and the investigation report were not filed at the time of filing the reply by it and the same were filed by the OP after an application was moved by it to bring on record statement of the driver and investigation report which was filed on 24.07.2023. Copy of the statement of the driver dated 31.01.2017 was also filed and its original was not available in the original file produced by the OP during proceedings dated 24.07.2023; original letter dated 31.01.2017 is stated to be lying with surveyor, all these episodes reflects an afterthought story on the part of OP.
Further, the investigator appointed by OP submitted his report dated 21.12.2016 to the OP about the incident of theft of vehicle. On furnishing complete report by investigator, he ceased to have further authority to carry investigation unless further advised so. This indicates hands in gloves of OP & investigator to indulge in such act. Not only this, after issuance of the show cause notice by this Commission to produce the original record of claim no. 204489, the OP brought its file carrying report of surveyor and other documents and filed the photocopy of surveyor’s report dated 21.12.2016, undated statement of Sh. Brindeshwari Singh, undated statement of Neeraj from the original. Another copy of statement dated 31.01.2017 of Brindeshwari Singh was filed which was at page no.-82 of the file produced, but there was no original statement dated 30.01.2017 in the file produced during the proceedings on 24.07.2023 and original was stated to be lying with the surveyor. This exhibits their acts & conducts.
6.8. In reply to the OP’s application to place on record the additional documents (statement of the driver and investigation report), complainant has taken the stand that OP also failed to bring on record aforesaid documents despite repeated request and not submitted the actual statement of the driver which he had made while registering the FIR within a time limit, it is not inadvertent error, rather, it is deliberate act. This contentions of the complainant carries weight.
6.9. The reply filed by the OP neither indicates as to who is the author of the reply as the name and designation of the author of the reply have not been disclosed nor there is any authorisation letter in favour of signatory of the reply. Reply of the OP is also not supported by affidavit as well; affidavit of the driver has also not been filed by the OP.
6.10. There is nothing on record as to whether any notice was given by the OP or its investigator to the complainant to join the investigation nor any copy of the investigation report was given to the complainant. Not only this, OP’s repudiation letter dated 10.03.2017 submitted on record vide which the claim of the complainant was repudiated was never sent to the complainant; as OP has not submitted on record any proof to this effect. The OP’s repudiation of the claim is only based on the finding of the investigator’s report which, inter-alia, reads as ‘from the statements of the insured, statement of neighbours, police report, driver’s statement and other circumstantial evidence, we are of the opinion that the truck had actually been stolen because the ignition key was left in the vehicle by the driver which clearly reflects the negligence of the driver. The insurer may take appropriate action as per the policy condition’.
No doubt investigator/surveyor’s report is an important document to facilitate the insurer to decide the claim of the insured wherein claim amount is 20,000/- or more. However, surveyor’s report is not the last and final word. It is not the sacrosanct that it cannot be departed from; it is not conclusive. The approved surveyor’s report may be basis or foundation for settlement of a claim by the insurer in respect of loss suffered by the insured but surely such report is neither binding upon insurer nor insured as was held by the Hon’ble Supreme Court in case of New India Assurance Co. Ltd. Vs. Pradeep Kumar (2009) 7 SCC 787 which was also cited by the Apex Court in its judgment dated 18.08.2021 in case of National Insurance Company Limited Vs. M/s Hareshvar Enterprise (P) in CA No. 7033 of 2009. From the said discussion, it manifestly indicates that deficiency of services and unfair trade practices on the part of OP are writ-large.
6.11. It is settled law that insurer cannot take the shelter of any additional ground which did not find mention in the repudiation letter. Though, OP has taken the stand that intimation of the theft was given by the complainant after delay of 05 days (this ground find not mentioned in the repudiation letter dated 10.03.2017).
However, on the point of delayed intimation to the insurer by the complainant we would like to refer case law.
“In Om Prakash v/s Reliance General Insurance [(2017) 9SCC 724] Hon'ble Supreme Court has « en ‘a vew that delay in informing about the theft to the Insurance Company would not debar the insured from getting the claim. However, another bench of Hon’ble Supreme Court in the matter of Oriental Insurance Co. Ltd v/s Parvesh Chander Chadha [(2018) 9 SCC 798], while accepting the contention of the Insurance Company, Hon’ble Supreme Court held that in case of delay of intimation about the theft to the Insurance Company, the Insurance Company has a valid ground for repudiating the claim. Both these judgements were referred to the parties when Hon’ble Supreme Court was dealing with a different matter titled Gurshinder Singh Vs Shriram General Insurance Company Ltd & Anr [(2020) 11 Supreme Court cases 621], which was referred to a three bench for answering the reference that which judgment from Om Prakash (supra) and (Pravesh Chander Chadha (supra) would prevail. Thereafter this issue was examined by the Hon’ble Supreme Court and three judge bench passed a judgement in the matter of Gurshinder Singh vs Shriram General Insurance Company Limited & Anr [(2020) 11 SCC 612] and concurred with the view taken In the Om Prakash case (supra) and held as under :
"20. we, therefore, hold that when an Insured has lodged the FIR immediately after the theft of a vehicle occurred and when the police after investigation have lodged a final report after the vehicle was not traced and when the surveyor/ investigator appointed by the Insurance company have found the claim of the theft to be genuine, then mere delay in intimating the insurance company about the occurrence of the theft cannot be a ground to deny the claim of the insured.”
In view of the judgment of three judge bench of Hon’ble Supreme Court in Gurshinder Singh case (Supra), the position now is very clear that in case the FIR is lodged in time, the delay in lodging the claim has no relevance in repudiating the Claim if the FIR is lodged in time.
7. In view of the above discussion and case law, complainant has proved his case of deficiency of service on the part of OP. Therefore, we hold that OP is liable for deficiency of services and unfair trade practices meted out to the complainant.
8. Since deficiency of service stand proved against OP; OP is liable to pay Rs. 09 lakh being IDV value of the insured vehicle to the complainant; which was deprived due to rejection of the valid claim by the OP.
9. The complainant seeks Rs. 3,78,000/- on account of interest @ 24% pa w.e.f. September-2015 to June-2017 legally recoverable and to continue till the disposal of the case, but no justification of the rate of interest has been given by the complainant; to meet ends of justice we allow 6% interest on the IDV value of the vehicle i.e. Rs. 09 lakh from the date of filing of the complaint till its realization.
10. The complainant seeks damages/compensation from the OP, thus, it would justify both the ends to quantify the damage of Rs. 25,000/- in the favour of complainant and accordingly it is awarded.
The complainant was constraint to file complaint, now costs are also quantified of Rs. 15,000/- in favour of the complainant and against the OP.
11. We also find that the surveyor/Invisible Investigator after he submitted his final report dated 21.12.2016 to the OP, investigator, thereafter again recorded the statement of the driver on 30.01.2017 and of the complainant under hands in glove with OP, which makes out case of punitive damages, so that the trust and the delicate relation of an insurer and insured is not lost apart from to solace the complainant. The other reasons for punitive damages is that officer of profession insurance company/OP is also intensely misinterpreting the surveyor’s report and policy condition to devise it as a way to deny valid claim of the complainant. Thus, the punitive damages of Rs. 10,000/- in favour of complainant and against the OP is awarded.
12.(a) In view of above, conclusion is drawn and OP is directed to pay the complainant Rs. 09 lakh, the IDV value of the vehicle with 6% pa interest from the date of filing the complaint till realization, Rs. 25,000/- damages/compensation, apart from Rs. 15,000/- towards litigation costs; and Rs. 10,000/- as punitive damages.
12.(b) Since, stolen vehicle was partly financed by Cholamandalam Investment and Finance Co. Ltd., therefore, Cholamandalam Investment and Finance Co. Ltd./Financer is required to furnish details of balance outstanding amount and other requisite document. Accordingly, financer is to furnish such details and documents, either directly to SBI General Insurance Co. Ltd. (who is insurer of vehicle) or to the complainant (for handing it over to insurer/OP); since it will enable the insurer/OP to pay the admissible outstanding amount directly to the Financer at the earliest or within 30 days since vehicle was partly financed by the Cholamandalam Investment and Finance Co. Ltd., in order to secure rights of the financer it will strike balance for both sides.
12.(c) Therefore, Cholamandalam Investment and Finance Co. Ltd/Financer (herein) may furnish details of balance outstanding amount in writing and other requisite document either directly to OP/insurer or to the complainant under acknowledgment, so that insurer will release amount to financer to the extent of admissible outstanding payable by the complainant, which financer deserves to receive outstanding amount on loan account of complainant. The complainant will also cooperate to OP and the financer.
Cholamandalam Investment and Finance Co. Ltd./financer shall comply at the earliest from the date of receipt of this order. In case financer directly hands over the detail and record to insurer but not to the complainant, then simultaneously, the complainant will be informed in writing by financer that record is directly provided to insurer. In case, financer refuses to provide such record, then insurer will remain at liberty to release the amount to the complainant.
13. The necessary formalities required by the OP will be completed by the financer i.e. Cholamandalam Investment and Finance Company Ltd. as prescribed in para 12(b) with regard to dues to be paid to the financer / Cholamandalam Investment by OP, thereafter OP will pay to the complainant appropriate balance amount within 30 days after aforementioned compliances failing which balance amount left, if any shall be payable with interest @7% pa instead of @6% pa from the date of receipt of the documents from other side (the complainant and the financer) under acknowledgment. The complainant will also cooperate to the OP and also to financer.
14. Announced on this 23rd September, 2023.
15. Copy of this Order be sent/provided forthwith to the parties free of cost as per rules for necessary compliance.
[Vyas Muni Rai] [ Shahina] [Inder Jeet Singh]
Member Member (Female) President
