Before  the District Consumer Dispute Redressal Commission [Central], 5th Floor                                         ISBT Building, Kashmere Gate, Delhi

                               Complaint Case No.277 /19.07.2016

Mohit Kumar Suryawanshi son of  Sh. Madan Lal Suryawanshi

R/o RZ-661, Naseer Pur Road, Kailash Puri Chowk,  

Palam, New-Delhi-110045                                             …Complainant(Insured)

                                      Versus

Shri Ram General Insurance Company Ltd.101,

Ground Floor,  Arya Samaj Road,  Naiwalan, Karol Bagh,

New Delhi-110005                                                                …Opposite Party(Insurer)

                                                                   Date of filing               03.08.2016

                                                                   Date of Order:             11.09.2023

Coram:   Shri Inder Jeet Singh, President

              Ms. Shahina, Member -Female

               Shri Vyas Muni Rai,    Member

                                             ORDER

Inder Jeet Singh , President

1.1. (Introduction to case of parties) –The complainant/Insured filed the complaint with allegations of deficiency in services that the insured's vehicle was stolen but the OP/Insurer, being insurer, failed to reimburse the theft loss. The complainant suffered harassment and mental agony. The complainant seek directions to OP (i) to pay Rs.2,78,000/-as insured amount with interest at the rate of 24% p.a. from 24.05.206 being the date of furnishing original documents, (ii)  to pay Rs.2,20,000/- as damages for physical harassment, mental agony and humiliation  besides other appropriate relief.

1.2. However, the OP/Insured failed to file reply to within time. Subsequently it was brought but it was not permitted being beyond time. The OP filed written arguments. It opposed the complaint that there was no deficiency of services on the part of OP, since the OP was ready and willing to pay amount of Rs. 2,77,500/- (i.e. sum insured/IDV Rs. 2,78,000/- less Rs. 5,00/- deductable) but it was complainant, who failed to furnish the few documents asked for by letter dated 18.10.2016 (which was neither filed nor otherwise proved as no such letter is part of record filed by complainant), as the  subject vehicle was under hypothecation to the Financer.

1.3  The present complainant has also filed another complaint no.367/ dt.17.10.2016 as borrower against  his Financer/Shri Ram Transport Finance Company Ltd., its record is also available. It is also scheduled for  Final order today. There cannot be common final orders for both the cases because of filing of separate complaints as well as issues involved. However, the relevant record of that file may be appropriately referred since the final outcome of both the cases will bearing to each other.

2.1. (Case of complainant) – Complainant is registered owner of Gramin Sewa/ vehicle bearing registration no. DL-2W-4092, which was insured with OP vide policy no. 10003/31/16/262276 for period from 25.08.2015 to 24.08.2016. However,  between 17.05.2016  at 7:00am to 18.5.2016 at 8:00 am, the vehicle was stolen from Kailash Puri Chowk parking Palam Colony, New Delhi; all important documents, tools and other articles were lying in the vehicle. Immediately on knowing the theft, PCR at no. 100 was called, then online FIR No. 014678 dated 18.05.2016 was registered in e-police station. The complainant and his father also made all their best efforts to locate the vehicle but no result. The OP was also informed of this theft, its helpline issued complaint no. 275437.   

2.2. On 24.05.2016 OP’s Surveyor visited at the residence of the complainant and took all relevant material and documents [viz. RC,  vehicle keys-2, FIR, insurance policies-current and previous, three photos passport size, three sets of form no. 26,28 ,29,30 and 35, copy of PAN card, driving licence, residential proof] against receipt dated 24.05.2016 vide claim no. 10000-3H7-C-011069 in order to assess the claim. Then, on 09.06.2016 the complainant also sent indemnity cum declaration, undertaking, affidavit, copies of letters sent to MLO, NCRB, particulars of vehicle, etc. to the surveyor. On 11.07.2016 the untraced report of vehicle was also sent to OP. The complainant start visiting the office of OP to pursue his claim but till date the OP failed to settle the claim, which caused him harassment and mental agony. The complainant was having no option but to file the claim.  The complainant is accompanied with copies of aforementioned record inclusive copy of letter dated 22.05.2016 enumerating the list of documents.

3. (Case of OP)- Notice on this complaint was sent to OP, however, OP failed to file the reply within statutory period. The reply was brought after the statutory period, it was not taken on record (simply it was just placed on file). Since reply is not part of the record, therefore the contents of the same are not being referred.

4. (Evidence)- Then case came for evidence. Complainant led his evidence by filing detailed affidavit of evidence with the support of documents filed with the complaint. Since there was no pleading by OP, that is why no evidence was led by it. Although, OP had been participating in the proceedings.

5.1 (Final hearing)- The complainant filed its written arguments followed by oral submission by complainant's  father with authority of complainant. The written arguments are compilation of his pleadings and evidence that he is registered owner of the vehicle and it was stolen but OP failed to settle the valid claim. There is no evidence of OP to deny his valid claim vis-à-vis the OP in its arguments admits the liability of OP to the extent of total loss caused by theft of Rs.2,77,500/-.

5.2.  The OP had filed written arguments thrice following oral submission by Shri Rajan Mishra, Advocate on behalf of OP. In  first written arguments, it reproduction of the reply to complaint [ however, it was not fair on the part of OP since reply brought beyond statutory period was refused]. Then further written arguments were filed with the support of case law, while emphasizing that the insurance company 's liability is restricted to  extend of IDV of insured vehicle and not more than it.  The parties are bound by contract of insurance.  It is not open for the court to add, delete or substitute any words in any insurance contract. The insurance company could indemnify only to the extent of risks covered under the policy and the terms of the policy have to be strictly construed to determine the extent of liability of the insurer. The insured cannot claim anything more than the policy coverage.  The OP refers cases - (i) Suraj Mal Ram Niwas Oil Mills Private Limited vs. United India
Insurance Company Limited and Another, (2010) 10 SCC 567, (ii) Oriental Insurance Co. Ltd. vs. Sony Cheriyan, (1999) 6 SCC 451 and (iii) United India Assurance Company Limited Vs Kantika Colour Lab
& Ors, (2010) 6 SCC 449. Moreover, the OP was asked the complainant to furnish relevant documents [of NOC from financer, form no. 30, KYC of complainant],  however, it failed to furnish the same to release the amount to the extent of Rs. 2,77,500/- [viz. IDV Rs. 2,78,000/- less compulsory deductibles of Rs. 500].

          Financer [i.e. Shri Ram Transport Finance Company] is a separate entity from OP/Insured [i.e. Shri Ram General Insurance Company], thus the OP cannot be held liable to pay either loan or interest amount which is due against the complainant  towards said Financer. The OP had asked the complainant to furnish the requisite papers, including NOC from the finance company, to ensure the Financer does not raise  objections subsequently. Therefore, complaint is liable to be dismissed.

6.1 (Findings)- The rival contentions of parties are considered and assessed keeping in view evidence  on record, besides the record of other case [CC no.367/2016].

  vis-à-vis the contentions of opposite party which is just in the form of final arguments. In fact, the OP tried to put its case from the record of complaint and its supporting documents to collapse case of complainant and cull out that it does not make out case of deficiency in services against the OP.

6.2. By looking at the record, there are juxtaposition situation as on the one hand the complainant has filed and proved the documentary record and on the other side there is no evidence by OP but defensive stand of no case of deficiency of services  is made out from the case of complaint itself.

          By reading them together, it is manifest the complainant has proved that his vehicle along-with papers & tools lying in box was stolen, when it was stationed in parking near his house and its keys were with the complainant. The State machinery was put into motion by lodging police FIR, the case remained untraced and untraced report was filed by the police, which was accepted by the competent court.  Since the theft took place within the currency of insurance period and theft is of total loss.  The complainant had insurance cover for vehicle against declared IDV of Rs.2,78,000/-. The OP/insurer also does not deny these aspects.  According to OP, an amount Rs.500/- is deductible as per policy,  OP was also willing to pay an amount of Rs. 2,77,500/- but it was subject to furnishing of requisite papers by complainant. The OP's surveyor furnished the list of documents asked for and available document were collected from residence of complainant by the surveyor. The complainant also copy of letter dated 9.6.2016 [without postal receipt] sent to Surveyor, that the complainant furnished record to OP/Insurer and lastly copy of untraced report was also furnished. In the list dated 22.05.2016 of documents, the surveyor had also asked NOC & form no.35 besides non-possession of vehicle by Financer but as appearing the same was not furnished since Financer had not issued them [that is why complainant had filed separate complainant no.367/2016 for NOC & other relief] vis a vis in other case the Financer had plea of non-payment of EMIs by complainant, since after loan a single/First EMI was paid.

          Since the complainant had got insured his vehicle, which was stolen but it could not be recovered vis a vis OP has concedes to pay the admissible amount of Rs.2,77,500,  thus, the complainant is held entitled for reimbursement of  risk covered for Rs. 2,77,500/-, however, it is subject to further directions in paragraph 6.5. (Ibid)  to that extent the complaint has been proved.

6.3.  The complaint has also established that the appointed surveyor was provided with all records and there is no contrary evidence by the OP to disprove the facts proved by the complainant. There is no evidence as such that more documents  were asked by the surveyor or by OP, since the documents were already handed over to the surveyor on the eve of his visit at the residence of complainant and subsequently more documents were also provided. The OP refers a letter dated 18.10.2016 that additional documents were asked from complainant, that letter has not seen filed in support of final arguments of OP nor it was proved by OP as reply was not brought in time nor the so called reply (just placed on file) was supported with copy of such letter. Therefore, despite providing the record  by complainant, the claim was not disbursed. The complainant is also claiming interest.

      Complainant claims interest at the rate of 24% pa, however, there is no justification is proved for this rate of interest nor any agreed rate of interest, therefore, interest at the rate of 7% pa from the date of complaint till realization would meet both ends of justice.  

6.4. The complainant also claims Rs. 2,20,000/- as compensation for all trauma and agony faced by him for reimbursement of his valid claim. The OP had surveyor report, who had conducted all inquiry and investigation and then report was furnished.  As appearing from final arguments, the OP/Insurer was prepared to settle the claim but constraint by NOC etc. from the Financer but earlier OP never informed the complainant of his entitlement of such amount of Rs.2,77,500/-, subject to certain forms or NOC.

          The aforementioned circumstances discussed are speaking themselves and considering them, compensation of Rs. 20,000/- is quantified in favour of complainant and against OP in lieu of trauma and agony faced.  The complainant prays for other appropriate relief, therefore, under the circumstances of case, cost of Rs. 5,000/- is also allowed in favour of complainant and against OP.

6.5.1 Accordingly, the complaint is allowed in favour of complainant/registered owner/insured and against the OP/insurer to pay Rs.2,77,500/- along-with interest  at the rate of 7% pa from the date of complaint till realisation of amount, damages/compensation of Rs.20,000/- apart from costs of Rs. 5,000/-.  However, it is subject to further directions.

6.5.2 Now it is appropriate to refer the material in other complaint [CC no.367/2016] schedule today. It is already introduced that complainant has filed another complaint against Financer [vide CC no.367/2016 Mohit Kumar Suryavanshi Vs Shri Ram Transport Finance Company Ltd.] seeking certain directions inclusive of issue of NOC or no due certificate by Financer. This complaint no.277/2016 is against Insurer [Shri Ram  General Insurance Company Ltd.] and other complaint no.367/2016 is against Financer [Shri Ram Transport Finance Company Ltd.]. Shri Ram Transport Finance Company Ltd is financer of vehicle and the vehicle is under its hypothecation,  as per particulars of vehicle furnished and proved by the complainant vis a vis undisputed fact.  The Financer has also first right to receive the amount against hypothecated vehicle, which was stolen by some-one.

          In that complaint, it is held, today, separately that NOC or no due certificate could be issued by Financer only when here are no dues on the part of complainant but there was repayment of single installment of Rs.10,467/- out of total 22 installment, remaining installments 21 installments [i.e.13 installments of Rs.9,520/- and 12 installments of Rs.7323/- each] were not paid vis a vis there is total loss because theft of vehicle.  The Financer has been directed to furnish details of balance outstanding amount to Insurer of vehicle (i.e. OP herein) and other requisite documents; it will enable the Insurer/OP to release that outstanding amount directly to Financer, since vehicle was hypothecated to the Financer. It will strike balance for both sides since insured vehicle was under hypothecation with Financer as well as the complainant need not to arrange money to pay due amount, which he is already constraint.

6.5.3. Therefore, OP is directed to will release amount to Financer to the extent of outstanding payable by the complainant, which the Financer deserves to receive its outstanding amount, [which is subject to furnishing further details of balance amount and requisite documents, which  Financer will cooperate in this regard as directed in other case]. The excess amount, if any, left with OP [after payment of outstanding amount to Financer], it will be paid by the OP to the complainant.

OP is also directed to pay the amount within 30 days from the date of receipt of details & documents from the Financer [or complainant if Financer handover the record to complainant], under acknowledgment.  In case amount is not paid within 30 days from the date of  receipt of all such materials, the OP will be liable to pay interest at the rate of 9% per annum (in place of 7%pa) on amount of Rs. 2,77,500/- from the date of filing of complaint till its realization.

7.5.4. In case the Financer or the complainant, as the case may be, do not furnish such details and other requisite documents within 30 days, then such period of 30 days or other longer period will be excluded, for computing interest at the rate of 7% pa, or 9% pa as the case may be.

7. It is manifest that final order in this complainant case and in other complaint are being written side by side in order to harmonize the circumstances and to appreciate case of parties vis a vis both the order could not be canvassed at one place.

8. Announced on this 11th Sept.  2023 [भाद्र 20, साका 1945].

9. Copy of this Order be sent/provided forthwith to the parties free of cost as per rules for compliances.

[Vyas Muni Rai]                        [Shahina]                              [Inder Jeet Singh]

         Member                       Member (Female)                              President