Delhi

StateCommission

A/140/2019

SBI GENERAL INSURANCE CO. LTD. - Complainant(s)

Versus

SH. BALKISHAN DAWRA - Opp.Party(s)

15 Jul 2020

ORDER

IN THE STATE COMMISSION : DELHI

(Constituted under Section 9 of the Consumer Protection Act, 1986)

Date of Arguments : 15.07.2020

Date of Decision : 17.07.2020

First Appeal No.140/2019

(Arising out of the order dated 22.11.2018 passed in Complaint Case No. 551/14  by the

District Consumer Redressal Forum-SW Distt. Delhi.)

In the matter of :-

 

S.B.I. General Insurance Co. Ltd.,

Registered office at:

101, 201 & 301, Junction of Western Express Highway &

Andheri-Kurla Road, Andheri (E),

Mumbai-400069.

 

Branch office at:

46, IIIrd Floor, Karol Bagh,

Opp. Metro Pillar No.129,

New Delhi-110005.                                                                     …..........Appellant

 

Versus

 

Sh. Balkishan Dawra,

S/o Sh. Atam Prakash Dawra,

R/o GH-14/981, Paschim Vihar,

New Delhi-110087.                                                ….....Respondent

                                                                

CORAM

 

Sh. O. P. Gupta, Member (Judicial)

 

1.     Whether reporters of local newspaper be allowed to see the judgment?                                        Yes/No

2.      To be referred to the reporter or not?                                                                                                     Yes/No

 

Sh. O.P. Gupta, Member (Judicial)

Judgement

1. The present appeal is directed against order dated 22.11.2018 passed by District Forum in CC-551/14 allowing the complaint and directing OP to pay IDV of the car i.e. Rs.9 lacs alongwith interest @9% per annum from the date of claim, directing it to pay Rs.75,000/- as compensation for harassment,  pay Rs.25,000/- as litigation expenses.  Further the OP was directed to impose penalty equal to one day salary of Sh. Jagdish Prasad as on 04.09.2015 (date of which evidence was signed and notarised ) and deposit the same in Consumer Welfare Fund maintained by State Consumer Disputes Redressal Commission.

 

2. The facts of the case are very unusual.  The complainant/respondent herein was owner of car No. DL-11CA-2127 since August, 2012.  The car was insured with M/s. TATA  AIG General Insurance Co. Ltd. which expired on 09.08.2013.  The same was financed by M/s. HDFC Bank Ltd..  On 26.09.2013 during the period the car remained without insurance, complainant lodged a police report about theft.  No FIR was registered.  Lateron, the car was found at the office location of the complainant.  The police authorities were duly informed about the recovery of the car with a request not to proceed further on the report of theft.

 

3. The complainant approached OP/appellant herein for insurance of his car.  As earlier insurance had expired, mandatory physical inspection of the car was carried out on 03.10.2013 by the agent of OP namely M/s. Mac Insurance Auxiliary Pvt. Ltd.  Based on the recommendation of said inspection agent, OP offered to insure the car for Rs.9 lacs (IDV).  The complainant paid the premium of policy from 04.10.2013 to 03.10.2014.  On 10.11.2013 complainant lodged FIR No.491/13 at PS-Mukherjee Nagar, Delhi.  Information was given to the OP on 11.11.2013. OP appointed M/s. MBS Associates, as investigator to examine the claim.  The police filed untrace report which was accepted by Ld. ACMM (North) vide order dated 22.01.2014.  Vide letter dated 28.04.2014 OP requested HDFC bank for NOC and Form No.35, certificate of loan account statement.  This was done so to process the claim in favour of financer. The complainant transferred the stolen vehicle in the name of OP on 19.05.2014.

 

4. OP appointed another investigator namely M/s. The Shield Investigator  to reinvestigate the claim vide letter dated 24.06.2014.  The said investigator sought certain documents vide letters dated 25.06.2014, 03.07.2014 and 14.07.2014.  The complainant did not provide the said documents.  Rather he sent legal notice dated 04.07.2014. Since the complainant did not provide documents to the new investigator, his claim was closed as “no claim” vide letter dated 04.09.2014.  Hence complaint was filed before the District Forum. The OP filed WS and affidavit of Sh. Jagdish Prasad, Executive-Litigation & Recoveries Motor TP.

 

5. The District Forum found that DD No.35A dated 26.09.2013 at PS- Miyanwali Nagar was regarding theft of car.  Vide said DD complainant informed the police that he was not able to find his car but he does not wish to record any statement or lodge a complaint till he tries to locate his car.  He clearly indicated that he will be filing formal complaint if car is not found.  Police did not take cognizance of the said DD entry.  In rejoinder complainant stated that car was later found at his shop.  He informed police which assured that complaint would be closed.

 

6. The District Forum found that insurance police was issued by the appellant on 04.10.2013 after car was physically verified by the agent of the appellant. Merely mentioning that new policy was procured by the complainant by fraudulent means, is not sufficient. If the OP was alleging fraud, it should have filed FIR against the complainant and the agent who conducted physical verification before recommending for issuance of policy.

 

7. The District Forum also reached at a conclusion that insurance company is not permitted to appoint fresh surveyor unless it specified cogent and satisfactory reasons for not accepting report of first surveyor.  In doing so, it placed reliance on decision of Hon’ble Supreme Court in Sri Venkateswara Syndicate Vs. Oriental Insurance Co. Ltd. (2019) 8 SCC 507.  In letter addressed by OP to the financer, it indicated that it was in process of releasing of sum of Rs.8,98,000/- in favour of the financer.  The complainant was required to transfer the car in question in the name of OP insurance company which the complainant did. Thereafter OP took completely different view and appointed second surveyor without assigning in reason for rejecting the report of first surveyor. The appointment of second surveyor appears to be for having tailor made report to repudiate the claim.  Again it placed reliance on decision of Hon’ble Supreme Court in New India Assurance Co. Ltd. Vs. Protection Manufacturers Pvt. Ltd. (2010) 7 SCC 386.  Accordingly the impugned order was passed.

 

8. There is delay in filing appeal.  According to appellant there is seven days delay.  The respondent did not file any reply to application for condonation of delay or appeal.  In view of the reasons mentioned in the application for condonation of delay, the delay is condoned.

 

9. I have gone through the material on record and heard the arguments.  Counsel for appellant vehemently argued that respondent obtained policy by playing fraud on the insurance company. The car had already been stolen on 26.09.2013, a different car with changed number plate was shown to the agent of the OP for taking fresh insurance of car, earlier insurance of which already lapsed. According to him fraud does not give rise to any cause of action. In support of his submission he relied upon the decision in M/s. TCI Exim Private Ltd. Vs. Export Credit Guarantee Corporation of India Ltd. II (2014) CPJ 453 NC and Aware Hospital Vs. New India Assurance Co. Ltd. 2017 (1) CPR 271.

 

10. Counsel for respondent urged that on 26.09.2013 the car was not stolen.  It was found at the office location of the complainant on the same day.  That is why the complainant had mentioned in first DD No.35A dated 26.09.2013 at PS-Miyanwali Nagar that he did not want any action.  He would file a formal complaint if the car is not found.

 

11. Counsel for appellant refuted the above argument stating that in case the car was found, there should have been some untrace report. I am unable to agree.  When no FIR has been registered, there was no occasion of preparing untrace report.

 

12. Counsel for appellant relied upon reply under RTI which is at page-56 of the bunch of appeal. In the said reply, it is mentioned in column-3 that no statement was given by complainant. By this he wanted to make out that complainant did not give second statement to the police regarding finding of his car on the same date i.e. 26.09.2013. I think argument is farfetched.

 

13. The core issue in the present case is what is the effect of inspection of the car before issuing the policy in question, by the agent of the OP.  If the agent of the OP saw the car physically, OP cannot say that car had not been recovered on 26.09.2013. To say that complainant produced the different car with a changed number plate is very easy.  Inspection is done not by number plate alone but by chesis number and engine number.  It is settled law that principal is liable for the act of agent. If the agent of the OP committed any negligence, it is the OP who has to suffer and none else.

 

14. Counsel for appellant tried to escape from the judgement of the Hon’ble Supreme Court in Sri Venkateswara Syndicate Vs. Oriental Insurance Co. Ltd. and New India Assurance Co. Ltd. Vs. Protection Manufacturers Pvt. Ltd. referred to by the District Forum in the impugned order, on the ground that they pertained to extent of evaluation of loss.  The argument is to be mentioned for being rejected only. If second surveyor cannot be appointed to assess the loss afresh, he cannot be appointed to report whether the loss occurred at all.  The purpose behind  the said judgement is that OP should not try to escape from the report of the first surveyor.

 

15. In the instant case, first surveyor did not find that car was not stolen on 10.11.2013 or that on the previous occasion the car was not found on 26.09.2013.

 

16. In view of the above discussion, I do not find any ground to interfere with the order of the District  Forum, in principle.  However, I feel that award of Rs.75,000/- as compensation for harassment is quite excessive and cannot be sustained. The same is set aside.

 

17. Further I may mention that directions to impose penalty equal to one day salary  of Sh. Jagdish Prasad on 04.09.2015 on which date he signed the affidavit and got the same notarised for depositing the same in Consumer Welfare Fund are totally uncalled for. The reason being that said person was not present before the District Forum and he was not afforded any opportunity to defend himself.  Principles of natural justice requires that one should be given an opportunity of being heard before passing any adverse order against him.  Still further only fault of the said person is not filing the documents alongwith the WS. That is a mere technical default and did not call for such a stern action.  That part of the order is also set aside.

 

18. To sum up, the appeal is accepted in part.  Order regarding payment of Rs.9 lacs being IDV of the car alongwith interest @9% per annum from the date of claim i.e. 11.11.2013 till date of payment and Rs.20,000/- as litigation charges are maintained.  Rest of the order regarding payment of Rs.75,000/- as compensation for harassment and imposing penalty equal to one day salary of Sh. Jagdish Prasad are set aside.

 

19. Copy of the order be sent to both the parties free of cost.

 

20. One copy of the order be sent to District Forum for information.

 

21. File be consigned to Record Room.

 

(O.P. Gupta)

Member (Judicial)

Bench-2